WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: C18/13 Date: 2014-10-17 Ontario Court of Justice

Between:

Children's Aid Society of Oxford County Applicant,

— And —

A.G., J.R.1, B.W., E[...] First Nation, L.L., and M.V. Respondents

Before: Justice M.A. McSorley

Heard on: September 8, 2014

Reasons for Judgment released on: October 17, 2014

Counsel:

• Ms. D. Lapare, for the applicant society
• Ms. B. Gratl, for the respondent mother
• Mr. B.W., on his own behalf
• Ms. L.L., on her own behalf
• Mr. W. Brownell, for the Office of the Children's Lawyer, legal representative for the children, T.M.W., T.A.G., and A.A.G.

McSorley J.:

Introduction

[1] The matter before the court involved two motions and a notice of constitutional question brought by the respondent mother, A.G.. Her partner (now her husband) is R.C.. In the first motion, the mother asked for an order that her three children be returned to her care; that the society's protection application be withdrawn; that access to the children by the maternal grandmother and her partner (who are the current caregivers for the children) be in the discretion of the mother; that the court declare that the society violated the mother's constitutional rights; and for full indemnity costs.

[2] In the second motion the mother sought a finding that the society was in contempt of an order dated February 5, 2014 by cancelling an access visit by the mother to the children.

[3] The notice of constitutional question sought a declaration that the mother's s. 7 and s. 8 rights were violated when a society worker entered the mother's home and searched it. The mother sought a further declaration that her s. 7 and s.10 rights were violated when the access visit scheduled on April 28, 2014 was cancelled without full explanation as to why. The remedy sought by the mother was a return of her children to her care and full indemnity costs.

Background

[4] The motions and notice of constitutional question arise in the context of a child protection proceeding commenced in May 2013, concerning three children, T.M.W. […], 2006; T.A.G., […], 2010; and A.A.G., born […], 2012. The society had been involved with the family on and off from the time of the oldest child's birth in 2006. Historical concerns included domestic abuse and assault, drug abuse, alcohol abuse, inappropriate discipline, use of inappropriate caregivers and subjecting the children to an unsafe and inappropriate home environment. Prior to the commencement of the current proceedings, the society had had numerous referrals regarding the presence of many people going in and out of the home and being intoxicated by alcohol or drugs while at the home. There were also referrals that persons who were intoxicated were being left in a care giving role.

[5] On May 21, 2013, a neighbour contacted the society and attended at the Oxford OPP detachment in Tillsonburg with concerns regarding the safety of the children. The information provided by the neighbour was that she had witnessed the child T.A.G. come out to the porch where his mother and Mr. R.C. were sitting. The neighbour reported that Mr. R.C. spit in the child's face. When T.A.G. began to cry, the mother and Mr. R.C. laughed at him. The neighbour also reported that on the weekend she had come out of her house and heard someone saying hello several times. When she looked up, she saw T.A.G., age 2, sitting on the second storey roof outside his bedroom window. T.A.G. climbed back into the house through the window. The neighbour also stated that she had heard Mr. R.C. swear at and threaten the children during the weekend. An investigation was commenced as a result of the referral and led to the apprehension of the children without a warrant.

[6] On May 24, 2013 O'Dea J. heard submissions regarding the apprehension. In his endorsement, he stated that for oral reasons given he found that the society had met its emergency onus under s. 40(7), thereby allowing the apprehension without a warrant to stand and made an interim, interim without prejudice order placing the children in the care of the society.

[7] On November 5, 2013 the court heard submissions on a number of motions. Motions brought by D.G. and K.L. and by J.R.2 and T.R. to be added as parties were dismissed. A motion brought by J.R.1 to have the younger two children placed in the care of his brother was dismissed. On the consent of the parties, the maternal grandmother L.L. and her partner M.V. were added as parties.

[8] A further order made on the consent of the parties, placing the children in the care of the maternal grandmother and her partner subject to terms of supervision. The order also provided access to the mother, J.R.1 and B.W. "as arranged with the Children's Aid Society of Oxford County and in the discretion of the Children's Aid Society of Oxford County as to frequency, supervision and circumstance, pursuant to Section 51(5) of the Child and Family Services Act. The children have remained in the care of the maternal grandmother and her partner since the summer of 2013.

[9] There are separate child protection proceedings ongoing with respect to Mr. R.C.'s children, B.T.1, […], 2011 and B.T.2, […], 2011. Heather Masters is the family service worker who was assigned to the T./C. file and had been working with the family since September 2013.

[10] In March 2014, the mother and R.C. provided samples for hair follicle testing. The mother's tests were negative for all substances. Mr. R.C.'s tests were negative for all substances except marijuana, which he confirmed he uses. The mother deposed that Mr. R.C. uses marijuana occasionally, but not in the presence of the children. As a result of these tests, the mother was provided with unsupervised access in her home.

[11] According to the mother, she had the children for a day long access visit on April 27, 2014. The mother described the activities of the family on that day and noted that they all had a wonderful time. She deposed that the children did not want to leave at the end of the visit. A further visit was to occur on April 28, 2014 commencing at 4:00 p.m. When no one brought the children to her, the mother contacted T.R. to ask what was happening. Ms. T.R. advised the mother that she was taking the children home to her house directly from day care and that she did not "know what was going on".

[12] The mother tried to reach the society worker but was unable to do so. She left messages for Ms. Bernardo. According to the mother, Ms. Bernardo returned her call and indicated that she was investigating a referral or allegation and was not at liberty to provide details at that time. According to Ms. Bernardo's affidavit, the mother was told that the visit of April 28, 2014 would be delayed until the investigation was completed. Ms. Bernardo confirms that the mother demanded to know the details, but that Ms. Bernardo could not divulge the details without hindering the investigation. Ms. Bernardo advised the mother that she would provide the details of the allegation and investigation when the investigation was completed. The visit of April 28, 2014 was later cancelled.

[13] Ms. Bernardo attended T.M.W.'s school on April 28, 2013, where she spoke to T.M.W.. When asked how visits were going, T.M.W. said that she did not feel that she or her younger siblings were safe going to unsupervised access at her mother's and Mr. R.C.'s home. She stated that during her visit at the mother's home on Sunday, a 'boy' came to the house and asked R.C. for "needles and stuff'. T.M.W. stated that R.C. said 'sure' and then gave the boy some 'marijuana' in a clear zip lock bag and needles. T.M.W. identified the needles as "the bad kind that you put in your arm". T.M.W. then went on to tell the worker that "the guy and R.C. took drugs from the bag and smoked some" and then R.C. gave the boy his own bag. T.M.W. stated that she saw 4 needles on the table that R.C. gave to the boy when he asked for them. T.M.W. said she had seen this activity when she was sitting on the kitchen floor playing with her Monster High dolls and that R.C. did not see her until everything had taken place. According to T.M.W., R.C. told T.M.W. not to tell her mother, but she did so.

[14] T.M.W. also told Ms. Bernardo that during the same visit, the mother had hit her with the front of her hand and made her nose bleed. T.M.W. did not know why her mother hit her because she (T.M.W.) had been good the whole time.

[15] On April 29, 2014, T.M.W. was interviewed by the police. Much of the information provided to Ms. Bernardo was provided to the police. Assault charges were not laid against the mother because T.M.W. could not say whether the hit to her nose had been accidental or deliberate. T.M.W. also sent text messages to her father that repeated much of the information provided by T.M.W. to Ms. Bernardo and the police.

[16] With respect to the possible drug use, T.M.W. reported to the police that there were needles and drugs at "uncle R.C.'s and Mommy's". She indicated that she had witnessed "bad needles" that have "poisonous stuff in them" on the kitchen counter and that R.C. had given the needles to the "boy" who was in the kitchen with R.C.. T.M.W. further described the needles as those used in doctor's offices.

[17] Later that same day, April 29, 2014, Ms. Bernardo attended the mother's home. She advised the mother that the investigation had been conducted as a result of information provided by the child T.M.W. that her mother had hit her on the nose and made her nose bleed and that T.M.W. had seen needles and drug use in the home.

[18] The mother denied hitting T.M.W. and indicated that T.M.W. had punched her mother on the chin when she was being disciplined for being rude to her siblings. She stated that T.M.W. had hit her nose on her mother's arm in defiance when her mother was holding her by the shoulders. The mother denied any drug trafficking in the house, claiming that her drug test and R.C.'s drug tests had been clean. The mother also deposed that T.M.W. had seen a tattoo artist in the home, spreading out his equipment to give Mr. R.C. a new tattoo. Ms. Bernardo denied being advised of this information by the mother. According to Mr. R.C. T.M.W. had seen him get a tattoo on Thursday April 24, 2014, although T.M.W. had been consistent in telling the worker and the police that she had seen the needles on the Sunday visit, April 27, 2014.

[19] On April 30, 2014, Mr. R.C.'s worker, Heather Masters attended the home. Mr. R.C.'s children were in his care for an access visit. As a result of T.M.W.'s disclosure that she had seen Mr. R.C. both smoking drugs and giving a needle to a 'boy' Ms. Master needed to ensure the safety of Mr. R.C.'s children during his access time.

[20] As a result of T.M.W.'s disclosure, Ms Masters was required to investigate whether Mr. R.C. had in his possession or was using drugs other than marijuana. Ms. Masters attended the mother's home with police to meet with and speak to Mr. R.C.. The mother was not present. Mr. R.C. was present with his sons. Ms. Masters asked for permission to enter the home. Initially, Mr. R.C. refused to allow Ms. Masters or the police to enter the home, but later allowed them to enter. Mr. R.C. indicates that he was intimidated by the presence of the police and therefore let Ms. Masters into the home. Ms. Masters proceeded to either ask Mr. R.C. to show her the insides of kitchen cabinets or opened them herself. She was looking to see if Mr. R.C. was storing any illegal drugs in the cabinets. Ms. Masters took pictures of the cabinets. No drugs were found in the kitchen. No other areas were looked at and Mr. R.C.'s children were not apprehended.

[21] The constitutional questions and the motions arise out of these facts.

Issues

[22] The issues before the court are as follows:

a) Were the mother's constitutional rights under s. 7 violated;

b) Were the mother's constitutional rights under s. 8 violated;

c) Were the mother's constitutional rights under s. 10 violated;

d) If any of the mother's rights under s. 7, s. 8 and/or s. 10 were violated, were the violations saved by s. 1;

e) If any of the mother's constitutional rights were violated without justification, what relief, if any, is appropriate; and

f) Was the applicant society in contempt of the court order when it cancelled an access visit on April 29, 2013?

Position of the Parties

[23] The mother's position was simply that her rights had been violated and that the most appropriate remedy was to dismiss the protection application and return her children to her care. There was no reference to the case law nor any analysis of how the case law applied to the facts of this particular case.

[24] The society conceded that the mother is entitled to the rights under the Charter but took the position that the none of the mother's rights under s. 7, 8 and 10 were violated and that the constitutional questions should be answered in the negative. The society also submitted that if any of the mother's rights were violated, such violation occurred under the reasonable limits prescribed by law, in accordance with the principles of fundamental justice, and required in the course of a legitimate protection investigation as permitted under s. 15 of the CFSA. The society further submitted that if the mother's rights were violated, and the violation was not within the reasonable limits prescribed by law in accordance with principles of fundamental justice or not permitted under s. 15, the most logical remedy would be to make up the missed visit and exclude any evidence obtained during the search. The society also submitted that the motions brought by the mother should be dismissed.

[25] The Office of the Children's Lawyer representing the mother's children submitted that he was uncertain as to why this matter was before court; that the mother's materials had shown no reason for the constitutional questions or the motions; that her submissions had not enlightened him any further and that there was no nexus between the mother's claims and the protection application concerning her children. He submitted that the motions should be dismissed and that the constitutional questions be answered in the negative.

The Law

[26] The issues before the court relate to possible breaches of the Constitution Act, 1982, and more specifically, sections 7, 8 and 10, therein.

[27] Section 1 of the Act guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[28] Section 7 of the Act deals with life, liberty and security and reads as follows:

"7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." (Emphasis mine)

[29] Section 8 of the Act deals with unreasonable search and seizures, and reads as follows:

"8. Everyone has the right to be secure against unreasonable search or seizure."

[30] Section 10 of the Act deals with rights on arrest or detention, and reads as follows:

"10 Everyone has the right on arrest or detention

a) To be informed promptly of the reasons therefor;

b) To retain and instruct counsel without delay and to be informed of that right; and

c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

[31] Section 24 of the Charter provides that:

"24(1) Anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

"S. 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

[32] The society also referred to section 1(1) and s. 15 of the Child and Family Services Act. Section 1(1) sets out that the paramount purpose of the Act; that being to promote the best interests, protection and well being of children. Section 15(3) of the Child and Family Services Act, sets out the functions of a children's aid society as follows:

a) To investigate allegations or evidence that children who are under the age of sixteen years or are in the society's care or under its supervision may be in need of protection;

b) To protect, where necessary, children who are under the age of sixteen years or are in the society's care or under its supervision;

c) To provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

d) To provide care for children assigned or committed to its care under this Act;

e) To supervise children assigned to its supervision under this Act;

f) To place children for adoption under Part VII; and

g) To perform any other duties given to it by this or any other Act.

[33] The mother and the society filed books of authorities, that the court anticipated would be referred to during argument. Although the society counsel did refer to the case law provided, the mother's counsel made no reference to her case law and only referred to one of the cases provided by the society during her reply to the society's submissions.

Analysis

Section 7 Rights

[34] Dealing firstly with the mother's claim that her s. 7 rights to life, liberty and security of person were violated, the society referred to a case filed by the mother at Tab 1 of her book of authorities. In New Brunswick (Minister of Health and Community Services) v. J.G. et al., [1999] 3 S.C.R. 46, the Supreme Court of Canada dealt with a claim that a parent's s. 7 rights had been violated by the application of the rules and policies governing the distribution of Domestic Legal Aid. In that case the mother had been denied legal aid funding in a protection case.

[35] Speaking for the court, Lamar C.J. held that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of the case. He went on to say that when government action triggers a hearing in which the interests protected by s. 7 of the Charter are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. At paragraph 58 of the judgment, it was noted that the court had held on a number of occasions that the right to security of the person protects "both the physical and psychological integrity" of the individual. Lamar C.J. then made some general comments about the nature of the protection of 'psychological integrity' included in the "right to security of the person".

[36] At paragraph 59, Lamar C.J. noted that the security of the person would be restricted through "serious state imposed psychological stress" and that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. Lamar C.J. went on to note that if the right were interpreted with such a 'broad sweep' countless government initiatives could be challenged and in the process the meaning of the right to be constitutionally protected would be trivialized. At paragraph 60, it was noted that the impugned state action must have a serious and profound effect on a person's psychological integrity and must be greater than ordinary stress and anxiety.

[37] The society argued that the mother provided no information as to how the investigation on April 29, 2014, and the cancellation of one access visit caused her any profound psychological distress. In reply to this submission, the mother argued that it was totally inappropriate to suggest that the mother had to show any objective perceivable damage and that there is a presumption that when a child is apprehended and is not returned to a parent, there is a stigma of being an unfit parent and that this along with her bringing the motion was sufficient to show that she was psychologically stressed.

[38] In the case at bar, the mother argued that her right to security of person was affected by the society carrying out its mandate to investigate allegations regarding the safety of children. The children were not present at the mother's home at the time of the investigation and in fact had not been in the mother's care since the latter part of May 2013. The warrantless apprehension of the children from the mother's care in May 2013 was confirmed by court order, after a hearing, as being necessary to protect the children from harm, and the interim placement of the children with the maternal grandmother and her partner was done by court order after a hearing, at which the mother had counsel and was able to make submissions. The actions of the society on April 29th did not affect the status of the proceeding in any way and there was no evidence that the society's actions in investigating a claim regarding possible physical abuse at the hands of the mother and drug use and drug dealing in the home caused the mother any additional stress than what she may have already been suffering as a result of the court finding the children could not be protected in her care.

[39] Further, if the court is wrong on this point, the court agrees with Lamar C.J.'s statements at paragraph 69 of the judgment noted above in that a restriction of a parent's rights under the charter may occur when such a restriction is in accordance with the principles of fundamental justice. Paragraph 69 goes on to state that the state may relieve a parent of custody when necessary to protect a child's health and safety. At paragraph 70, the court held that the state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination. Not only had there been a fair determination that the children should not be in the custody and care of the mother, made following a hearing at which the mother had counsel, those orders were never appealed by any of the parties.

[40] The court finds that the mother's right to life, liberty and security of person was not infringed by the actions of the society worker in carrying out her mandate to investigate allegations of risk to children. Further, if the mother's rights under s. 7 were infringed, that infringement was necessary to protect the safety of the children.

Section 8 Rights

[41] The mother also claimed that her s. 8 rights were infringed when a society worker entered her home and looked into kitchen cupboards on April 29, 2014. The worker, Ms. Masters deposed that the mother was not present at the home when she arrived. Ms. Masters was Mr. R.C.'s family service worker. Mr. R.C. was at the home. His two year old twin sons were also present for an access visit. Ms. Masters deposed that she advised Mr. R.C. about the information received from the child T.M.W. regarding drug use and possible drug dealing by him and asked him to let her into the home. Mr. R.C. deposed that he did not give consent for Ms. Masters to enter the home. He indicated that he let her into the home because he was intimidated by the police, who were also present. Ms. Master's looked into kitchen cupboards and took pictures. She did not look into any other part of the home.

[42] Ms. Masters did not force her way into the home. She was allowed into the home by Mr. R.C. who was present with his children. The court acknowledges that Mr. R.C. may have felt intimidated by the presence of the police. It is possible that Mr. R.C. felt obliged to let Ms. Masters into the home and did not voluntarily give his consent. On that basis, the mother argued that her right to be secure against unreasonable search or seizure was infringed.

[43] There is no question that Ms. Masters conducted a search of part of the home. She admitted to looking into the kitchen cupboards and taking pictures of the contents, although none of the pictures have been entered into evidence. The mother argued (in reply) that the society had no right to search the kitchen for drugs because they were aware that Mr. R.C. used marijuana. His hair follicle test showed marijuana in his system and he had always admitted to using marijuana. However, the mother had always claimed that Mr. R.C. did not use marijuana in the presence of the children, yet T.M.W. reported that she saw Mr. R.C. smoke marijuana with the unknown 'boy' during her access visit.

[44] The mother further argued that the society worker had no right to investigate whether someone was trafficking in illegal drugs and that the worker was acting as an "agent" of the police in conducting a criminal investigation. The society argued that the society was obliged to investigate the allegation made by T.M.W. following her access visit on April 27, 2013 regarding Mr. R.C.'s drug use in her presence and his provision of drugs to another person. T.M.W.'s description of the event, timing of the event and description of the needle did not match Mr. R.C.'s story of receiving a new tattoo four days earlier.

[45] Case law supports an infringement of rights under the charter, if such an infringement is "justified". At paragraph 95 of the decision noted above, the court cited the decision of Iacobucci J. in R. v. Oakes, [1986] 1 S.C.R. 103, where the analytical framework for determining whether a law constitutes a reasonable limit on a Charter right:

"A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right."

[46] On the first condition, the objective and aim of the legislation must be pressing and substantial. The paramount purpose of the CFSA is to promote the best interests, protection and well being of children. The Act is both pressing and substantial and under it, the society is mandated to investigate referrals and information provided to them that could affect the safety and well being of children.

[47] T.M.W.'s information was that Mr. R.C. was using marijuana with the 'boy' during an access visit when she and her siblings were present. Further the use of needles is not required by a person smoking marijuana. T.M.W.'s disclosure raised concerns about other drug use and or drug trafficking occurring in the home when the children were present. These concerns had to be investigated by the society. As such the rights that may have been violated were rationally connected to the aim of the legislation.

[48] The means chosen by the worker were reasonable and minimally impaired the mother's rights. The worker attended the home. She did not enter the home until Mr. R.C. let her in. The child had seen the use of needles and drugs in the kitchen and it was only the kitchen area that was searched. There was no evidence that anything was removed from the home or disrupted from its placement. The actions of the worker compared to the risk that could be visited on the children from the trafficking of illegal drugs was minimal.

[49] The effect of the measure and objective was to ensure that there were no other illegal drugs being stored in the home and dispensed in the home by Mr. R.C.. If Mr. R.C. was found to be dealing drugs out of the mother's home while the children were present (precisely the information provided by T.M.W.), the safety of the children could be at great risk. The steps taken by the worker were proportionate to the risk of harm to the children.

[50] The limitation on the mother's constitutional right to unreasonable search and seizure met all of the conditions set out in R. v. Oakes, noted above.

[51] The nature of the allegations that prompted the intervention also made the search of the kitchen cupboards reasonable in this case.

[52] In the case of Chatham-Kent Children's Services v. J.K. and F.H.D., 2009 ONCJ 589, [2009] O.J. No. 5423, Justice L. Glenn of the Ontario Court of Justice dealt with a similar constitutional challenge where the respondent mother sought to exclude evidence of pictures taken in her home, along with evidence of observations made by the worker and police officer.

[53] In that case, a worker had attended at the mother's home in response to a report that a child was in the home unattended. When she arrived, a young child answered the door. When no adult came forward, the worker climbed three steps leading from the front entrance. She observed the mother sleeping on the couch and another adult sleeping on the floor beside the mother. The worker noted a strong odour of faeces in the home, saw rabbit droppings in the vicinity and testified the home was in disarray. The worker was unable to rouse the mother. She called for assistance and apprehended the child. Following the apprehension, the worker advised the officer that she needed to re-enter the home to advise the mother of the apprehension and complete her investigation. The worker spent ten to fifteen minutes with the officer going through the home and taking numerous pictures.

[54] Justice Glenn held that the mother had not consented to the worker touring the home and taking photographs and that after the child was apprehended, the worker had no further right to re-enter the home and continue her search. In her decision, Justice Glenn also discussed when a search might be reasonable, even if illegal under the Charter. She referred to the decision of Nevins J. in Re Tamatha L.W. (An Infant), [1982] O.J. No. 1067, where Nevins J. found that:

"… although the worker conducted a search that was unauthorized, given the nature of the allegations, the previous involvement with the family and the initial impression of the worker immediately upon entering the premises, the search that was conducted was not unreasonable under section 8 of the Charter."

[55] In discussing the applicability and meaning of Nevins J.'s decision, Justice Glenn went on to say at paragraph 36 of her decision:

"In other words, although the search was illegal, in the circumstances, it was not unreasonable. Further, the nature of the any [sic] set of allegations that prompt an intervention is critical in assessing the limits of what is reasonable when it comes conducting the limited search that must take place in order to confirm or deny the veracity of those allegations. It is noted that the nature of the allegations were not articulated in Re Tamatha L.W. (An Infant), supra, but in my view, an allegation that a child was not being fed adequately might support an argument that it was reasonable for the worker to look inside the refrigerator and kitchen cupboards before deciding to apprehend the child. The important thing is that any search that takes place must be limited to confirming the validity or veracity of the allegations in order to allow the worker to determine whether or not to apprehend the child."

[56] In the case before Justice Glenn, she found that the worker had properly engaged in investigative activities directed at verifying the report that a child was unattended in the home. Once she was unable to rouse the adults in the home, she was able to confirm the truth of the report. Justice Glenn found that the worker was completing a limited investigation in observing the condition of the child and the home that was in plain view. She found that these actions were reasonable in the circumstances and not in violation of the mother's s. 8 rights and that this evidence alone would have been credible and trustworthy enough to support the need for the apprehension of the child.

[57] It was the re-entry and search of the home that occurred after the apprehension that Glenn J. found to be a violation of the mother's s.8 rights. At paragraph 47, Justice Glenn stated that the worker's right to be in the residence expired once the child was removed from the premises. At paragraph 48, Glenn J. held that after the child had been apprehended, there was nothing in the initiating report that would have justified taking pictures of every corner of the home including the interior of the closet, toilet, tub, freezer and refrigerator.

[58] In the case at bar, the worker did not attend at the home to apprehend children. She attended at the home to investigate a report that illegal drugs were being used and trafficked in the home by Mr. R.C.. The worker did not look into or take pictures of every corner of the home. She looked at and took pictures of kitchen cupboards because T.M.W. had reported that she was in the kitchen when she saw Mr. R.C. smoke marijuana and give a needle to the 'boy'. The investigation was limited to the specific report and was not unreasonable under the circumstances.

[59] If the court is wrong in this approach and the search and picture taking was a breach of the mother's s. 8 rights, the appropriate and just remedy would be to exclude the evidence, not return the children to their mother.

Section 10 Rights

[60] The mother also alleged that her s. 10 Charter rights had been infringed when the society cancelled her access visit on April 29, 2013 without immediately advising her of the reason for such cancellation. The mother was immediately informed that the visit would be postponed and later cancelled because the society was investigating a report that raised a risk of harm to her children in her home. T.M.W. had not yet been interviewed by the worker or the police, details of the investigation could not be provided to the mother. The society advised the mother that they would provide details upon completion of the investigation. Once the investigation was completed, the mother was advised of the results of the investigation. The investigation was completed promptly and the mother's access was reinstated.

[61] Section 10 of the Charter deals with the rights of a person, on arrest or detention. At no time was the mother arrested or detained. Having one access visit cancelled without being provided immediately with a full explanation, may have been frustrating, but there is no support for the premise that such an action is the same as being arrested or detained without being advised of the reason for the arrest or detention or that s. 10 of the Charter would apply to such a situation. Again, the mother provided no case law to support this senseless argument. Further, the cancellation of the visit was rationally connected to the aims of the CFSA in ensuring the protection and well being of children.

Appropriate Remedy

[62] If the court had found a breach of the mother's Charter rights, it would be necessary to determine the appropriate and just remedy under all of the circumstances. As indicated above, a breach of s. 8 can be easily, appropriately and justly remedied by excluding the evidence.

[63] The Supreme Court of Canada has set out the law relating to inquiries that must be undertaken before deciding to exclude evidence obtained as a result of a Charter breach. In The Queen v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, it was held that when faced with an application for exclusion of evidence under s. 24(2) of the Charter, the court must consider the following:

"(1) the seriousness of the Charter-infringing State conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society's interests in the adjudication of the case on its merits."

[64] The factors above were enunciated in a case involving criminal charges. The rights of parents are equally protected under the Charter. However, it is important to treat these cases differently. Canadian society believes that children should be protected from risk of harm. The court agrees with Glenn J.'s assertion in paragraph 51 of her decision above, that if a child's right to be protected from abuse comes into conflict with the Charter rights of their parents, courts have most often favoured the rights of the child. This does not however, allow the society free reign to infringe the Charter rights of parents. The court must apply a balanced approach to the competing interests of the parties when determining if a s. 24 remedy is appropriate in the particular circumstances of the case.

[65] In this case, the conduct of the society in looking for drugs in the kitchen was neither serious nor unreasonable. The mother has provided no evidence that the search and picture taking has affected her in any way. Finally, society has a strong interest in ensuring that children are protected from risk of harm. The issues of finding the children in need of protection and determining the appropriate disposition in their best interests must be decided on the merits of the case, not on the basis of a Charter breach.

[66] The court was not asked to exclude the evidence. Instead, the mother asked in her Notice of Constitutional Question and in motion at Tab 38 of the Continuing Record, that the children be returned to her care; that there be a declaration that the society violated the mother's constitutional rights; that the maternal grandmother and her partner's access be in the discretion of the mother; that the society withdraw its application; and that the mother be awarded her costs on a substantial indemnity basis.

[67] There is no jurisdiction to simply ignore the best interests of the children and return them to their mother, because a worker entered her home and looked at and took pictures of the kitchen cabinets. If the court allowed the Charter to be used in such a way, the investigative and protective mandate under the CFSA and the requirement that any order made by the court be in the best interests of the children would be completely undermined and rendered ineffective. The Charter was never meant to be used to put children at risk of harm.

[68] As indicated, the children were removed from the mother's care in May 2013. That removal was confirmed by court order. The current placement was ordered following a temporary care and custody hearing under s. 51 of the CFSA. A final order finding the children in need of protection and a determination of what disposition is in their best interests can only be made after a hearing into the merits of the case. The mother provided no case law that would support a dismissal of child protection proceedings on the basis of alleged Charter breaches, such as the ones suggested by the mother in this case. To do so would completely undermine the court's duty to ensure the protection of the children and make an order that is in their best interests.

[69] In the case of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, the Supreme Court of Canada examined the meaning of the words "appropriate and just" in s. 24 of the Charter. At paragraph 52, the court held that the task of giving these words meaning in particular cases will fall to the courts ordering the remedies since s. 24(1) specifies that the remedy should be such as the court considers appropriate and just and calls on the judge to exercise a wide discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles. The considerations to be kept in mind were set out in paragraphs 55 to 59 of the decision.

[70] In paragraph 101 of the decision in New Brunswick (Minister of Health and Community Services) v. G.J. (supra), although the mother's rights were found to have been infringed, the court found that a stay of proceedings was clearly inappropriate as it would result in a return of the children to their mother's care. Lamar C.J. went on to say:

"Children should not be returned to their parent's care when there is reason to suspect that they are in need of protection. Indeed, it would run contrary to the purposes of Part IV of the Family Services Act."

Contempt Motion

[71] The court finds that the mother's Charter rights were not infringed under s. 7, 8 or 10 of the Charter. If the mother's s. 8 Charter rights were infringed, then any and all photographs taken by Ms. Masters are to be excluded from evidence. No other remedy would be appropriate and just under the circumstances of this case.

[72] The relief requested by the mother in her motion at Tab 38 sought a withdrawal of the protection proceeding, which would result in final order being made without any determination of the merits of the case. If in fact, the mother was seeking a variation of the temporary custody and care order on an interim basis, neither her affidavit nor the affidavit of Mr. R.C. provided any evidence or grounds to vary the interim order of November 5, 2013.

[73] The mother's motion at Tab 40 of the Continuing Record sought a finding that the society was in contempt of the order to provide access to the mother. The contempt alleged by the mother was the cancellation of her access visit on April 28, 2013. Again, the mother sought to have her children returned to her care and the protection application withdrawn as remedy for this alleged contempt.

[74] The order under which the mother was entitled to exercise access was made on November 5, 2013. The order provided the mother with access to the children "as arranged with the Society and in the discretion of the Society as to frequency, supervision and circumstance."

[75] In order for the society to be in contempt of the order of November 5, 2013 there must be a finding that the order that was breached stated clearly and unequivocally what should and should not be done; the party who disobeys the order must do so deliberately and wilfully; and the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. (See Prescott-Russell Services for Children and Adults v. G. (N.), [2006] O.J. No. 2488).

[76] There was nothing in the order of November 5, 2013 that stated clearly and unequivocally that the mother was to have access to the children on April 28, 2013. All access was as arranged by and in the discretion of the society. The society had the discretion to increase or decrease the frequency of access, designate its location and dictate the level of supervision necessary. Clearly, in exercising its discretion, the society had to act reasonably. The court finds that the society exercised its discretion appropriately when they postponed and then cancelled access on April 28, 2013 for the purpose of carrying out an investigation regarding physical discipline and drug trafficking in the home. As noted above, the investigation was carried out promptly and the only access missed by the mother was on April 28th, while the investigation was still ongoing. The order was not clear and unequivocal; the reason for cancelling the visit was reasonable and within the discretion of the society; and the mother has failed to show contempt beyond a reasonable doubt.

[77] In addition to the finding that the mother's Charter rights under s. 7, 8 and 9 were not infringed by the actions of the society, the court finds there is no merit in the mother's motions for a final or temporary order that the children be returned to her care. A full hearing must be held to determine if the children are in need of protection and if so, what disposition should be made in their best interests. Finally, the court finds that the mother's motion to find the society in contempt has no merit and should be dismissed.

Disposition

[78] For the reasons set out above, the motions at Tabs 38 and 40 are dismissed in their entirety and each of the constitutional questions are answered in the negative.

[79] The motions and constitutional questions had no merit. When the matter first came before the court, efforts were made to provide an early hearing of the motions, so as not to delay the real issues of protection and disposition. Although the date was agreed to by the mother, she then missed all filing deadlines and the matter could not proceed. A later date then had to be provided, resulting in a five month delay in the protection proceedings. As noted earlier, mother's counsel made little effort to present her case, citing no case law and providing no analysis of her position to the court. Her submissions took less than 5 minutes to make. It was only after the society had addressed all of the issues fully and competently that the mother's counsel attempted to begin her submissions again in the guise of reply.

[80] The mother was completely unsuccessful in her motions and constitutional questions. While awarding costs to a society are unusual, they are not unheard of. This may well be a situation where both the society and the Office of the Children's Lawyer seek costs for the time wasted on the mother's frivolous claims. If the parties are unable to resolve the issue of costs, they may make submissions in writing limited to five pages each. The Society shall serve and file their submissions on or before November 7, 2014. The Office of the Children's Lawyer shall serve and file their submissions, (if any) on or before November 21, 2014 and the respondent mother shall serve and file her submissions on or before December 5, 2014. Any reply submissions are to be served and filed by December 19, 2014.

[81] The protection proceeding is adjourned to October 28, 2014 to set dates for the next step in these proceedings.

Released: October 17, 2014

Signed: "Justice M.A. McSorley"