CITATION: R. v. C.P.1 et al., 2016 ONSC 1216

COURT FILE NO.: 15-552

DATE: 2016/02/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

M. Murdoch, for the Crown

• and -

C.P.1

E. Van Drunen, for the accused C.P.1

• and -

A.D.

M. Fair, for the accused A.D.

LEACH J. (ORALLY)

[1] C.P.1 and A.D., the two co-accused persons in this proceeding, are both charged with one count of abducting a person under the age of 16, contrary to s.280 of the Criminal Code.

[2] Specifically, pursuant to the sole count of the indictment, it is alleged that the couple:

On or about the 23^rd day of July, 2015, at the City of Stratford, in the said Region, did without lawful authority take C.P.2 (born […], 2015) out of the possession of and against the will of Huron-Perth Children’s Aid Society, the guardian of C.P.2, contrary to Section 280 of the Criminal Code.

[3] The couple, who are the parents of the relevant child, (“C.P.2”), elected to be tried by judge and jury. Twelve jurors and two alternate jurors were selected on February 8, 2016, at the start of the current trial sittings in Stratford, after which the trial was scheduled to begin on February 22, 2016; i.e., this coming Monday.

[4] Shortly before the current trial sittings, various fundamental issues came to the fore.

[5] Those issues included uncertainty about the ability of the defendants to ask questions and/or otherwise introduce evidence regarding the validity of an apprehension warrant issued by a Justice of the Peace on July 16, 2015, pursuant to section 40 of the Child and Family Services Act, R.S.O. 1990, c.C.11, (“the CFSA”), whereby the Justice of the Peace:

• found there were reasonable and probable grounds to believe that C.P.2 was a child in need of protection, within the meaning of s.37(2) of the CFSA; and

• directed all child protection workers and peace officers in Ontario to apprehend C.P.2, and bring C.P.2 to a “place of safety” within the meaning of s.37(1) of the CFSA.

[6] There apparently is no dispute that the relevant apprehension warrant was executed on July 21, 2015, at which point the CAS apprehended C.P.2 and took him into its care by temporarily placing C.P.2 at the home of his paternal grandfather and that grandfather’s partner.

[7] The Crown relies on that legal process for its position that, at the time of the defendants’ alleged misconduct on July 23, 2015:

• the CAS was C.P.2’s “guardian”, within the meaning of s.280(2) of the Criminal Code; and

• the defendants had been deprived of lawful authority to take C.P.2 without the permission and consent of the CAS.

[8] At trial, the Crown intends to lead further evidence to establish the following subsequent developments, which apparently are not in dispute:

• The CAS agreed to arrangements whereby the defendants would enjoy a supervised access visit with C.P.2, at their home in Stratford, on July 23, 2015.

• At approximately 1:15pm that day, (i.e., July 23, 2015), the CAS served the defendants with legal documents pursuant to the CFSA. The documents included the formal protection application brought by the CAS, as well as a notice of motion and supporting affidavit indicating that the CAS intended to ask the court for an order placing C.P.2 in the formal care of his paternal grandfather and that grandfather’s partner. The same legal documents included an indication that the matter would be brought before the court the next day; i.e., on July 24, 2015.

• At approximately 2:00pm that same day, (July 23, 2015), during the aforesaid pre-arranged supervised access visit, the defendants removed C.P.2 from the care of the CAS by taking him to Kitchener without permission from the CAS, and without being accompanied by staff from the CAS. At the time, the defendants

[9] During the course of pretrial discussion, counsel for the defendants apparently indicated an intention to challenge the validity of the apprehension warrant at trial. In response, Crown counsel indicated an intention to object to any such efforts on the basis they would constitute an improper and impermissible “collateral attack” on a judicial order.

[10] During the course of a trial management teleconference with counsel held before me on February 4, 2016, I gave directions for the exchange of material to place the issue formally before the court for argument and formal determination between the time of jury selection on February 8, 2016, and the anticipated commencement of the Crown’s case on February 22, 2016.

[11] By way of a formal application dated February 12, 2016, Ms C.P.1 now has requested a formal ruling that, at trial, she will be permitted:

• to ask questions and introduce evidence regarding the validity of the apprehension warrant issued on July 16, 2015;

• to argue that the apprehension warrant should be found invalid; and

• to argue that, if the apprehension warrant is found to be invalid, the defendants were lawfully entitled to take C.P.2 on July 23, 2015.

[12] Although the formal application was brought by Ms C.P.1, counsel for Mr A.D. confirmed that he joined in the application, so as to seek the granting of the requested relief on behalf of both defendants, and Crown counsel expressed no objection in that regard.

[13] Argument of the application proceeded before me on February 16, 2016, with Crown counsel opposing the joint application and requesting that I instead make an order “disallowing the introduction of any evidence which amounts to or contributes to a suggestion that any person(s) is excused from compliance with an order made by a judicial officer which has not been set aside, legally quashed or rescinded”.

[14] After receiving submissions from counsel, I adjourned the matter to this afternoon for delivery of my decision, so that the parties would have that before the trial resumes this Monday morning.

[15] At the heart of the parties’ present disagreement lie fundamental concerns relating to “the rule of law”, which the preamble to the Canadian Charter of Rights and Freedoms recognizes as the foundation on which our concept of ordered liberty is built.

[16] As outlined and emphasized by our Court of Appeal in R. v. Domm, 1996 CanLII 1331 (ON CA), [1996] O.J. No. 4300 (C.A.), the “rule of law” has a number of principal components which necessarily co-exist, albeit in sometimes countervailing ways.

[17] One such component, (heavily relied upon by Crown counsel in this case), focuses on compliance with the law. In that regard, our courts have emphasized a number of general principles, which include the following:

• The rule of law contemplates a system of government by laws, in which both the governed and the government are subject to and must comply with the law. See Re Language Rights Under Manitoba Act 1870, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721 at 748-749.

• Judicial orders are one manifestation of the law with which the state and individuals must comply. See R. V. Domm, supra, at paragraph 12.

• One important means of promoting and ensuring such compliance is the rule barring collateral attacks on court orders, which generally holds that a judicial order made by a court having jurisdiction to make that order stands in a binding and conclusive way, such that it must be obeyed and receive full effect according to its terms, unless and until it is reversed, varied or otherwise set aside in a proceeding taken for that purpose. Such an order may not be attacked “collaterally”; i.e., by an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the relevant order or judgment. See R. v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R.594, at pp. 599 and 604.

• The rationale behind the rule barring collateral attacks on court orders is powerful: it seeks to maintain the rule of law and preserve the repute of the administration of justice. In particular, if parties were free to govern their affairs according to their individual but not properly confirmed perception as to whether court orders lack a proper foundation, uncertainty and anarchy would not be far behind. Parties therefore generally are expected to obey and abide by court orders unless and until they are successfully challenged in appropriate proceedings taken specifically for that purpose. The “breach first and challenge later” approach, (whereby someone disobeys a judicial order and then tries to challenge its validity in entirely separate proceedings from those permitted and taken specifically for that purpose), does a great disservice to the orderly and functional administration of justice, and is destructive to the compliance goals of the rules of law. See R. v. Litchfield (1993), 1993 CanLII 44 (SCC), 86 C.C.C. (3d) 97, at pp.110-111; and R. v. Dobb, supra, at paragraphs 24, 32 and 33.

• The rule against collateral attack on court orders has been consistently applied in criminal proceedings where the charge involves an alleged breach of a court order. See R. v. Dobb, supra, at paragraphs 14-21, and the authorities cited therein.

[18] As I understand their position, the defendants do not question or challenge any of these fundamental propositions concerning the rule of law, or the general rule barring collateral attacks on court orders.

[19] Rather, the defendants emphasize and rely upon another principal component of “the rule of law” confirmed and emphasized by our Court of Appeal in R. v. Domm, supra; i.e., the remedial component of the rule of law. In that regard, our appellate courts have emphasized principles which include the following:

• The rule of law does more than demand compliance with the law, (including judicial orders). In particular, to validate that demand for compliance, “the law must provide individuals with meaningful access to independent courts with the power to enforce the law by granting appropriate and effective remedies to those individuals whose rights have been violated”. See B.C.G.E.U. v. British Columbia (Attorney General) (1988), 1988 CanLII 3 (SCC), 44 C.C.C. (3d) 289, at pp. 298-299; Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp.195-196; Canadian Council of Churches v. Canada, 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, at p.250; Kourtessis v. The Ministry of National Revenue (1993), 1993 CanLII 137 (SCC), 81 C.C.C. (3d) 286, at pp.309-310; and R. v. Domm, supra, at paragraph 12.

• For that reason, as emphasized in R. v. Litchfield, supra, at p.110, and in R. v. Domm, supra, (at paragraphs 30, 31, 34-38 in particular), the rule barring collateral attacks on judicial orders was not intended to immunize court orders from review, and must accommodate the equally important right of individuals to challenge orders which adversely affect their interests. The rule barring collateral attacks on judicial orders therefore is not absolute. To the contrary, the remedial component of the rule of law may demand that an exception be made, in certain circumstances, where the interests underlying the rule are not served by adherence to it. In particular:

o As the rule is designed to reinforce the compliance component of the rule of law and enhance the repute of the administration of justice, (by providing for the orderly and functional administration of justice), then the rule should be relaxed if a collateral attack on an order can be taken without harm to those interests; and

o The remedial component of the rule of law demands that the collateral attack bar not stand in the way of an accused who cannot effectively challenge an impugned court order except after violating it.

• However, the rule barring collateral attacks on judicial orders will not be relaxed in circumstances where the remedial component of the rule of law could have been adequately vindicated through existing court procedures, without resort to a breach of the relevant judicial order. In that regard, perfect vindication from the party’s perspective may not be required; e.g., so as to avoid even a temporary loss of a right, during the time a party is required to comply with a judicial order pending completion of the process required to challenge the order successfully through existing court procedures. Where competing interests are at stake, the interests of justice require a broader perspective. See R. v. Domm, supra, at paragraphs 39-42.

[20] The defendants say this is sufficient to warrant a relaxation of the rule barring collateral attacks on a judicial order.

[21] In particular, they say there is no statutory process for them to challenge the lawfulness of the relevant judicial order, (i.e., the apprehension warrant issued by Justice of the Peace Roberson on July 15, 2015), which is said to have made the CAS C.P.2’s guardian while depriving the defendants of the lawful authority they otherwise would have had, as C.P.2’s parents, to take him on July 23, 2015, without needing the permission or consent of the CAS.

[22] In that regard, the defendants concede that the CFSA made provision for a court hearing within five days of C.P.2’s apprehension, (scheduled by the CAS for July 24, 2015), during which the defendants could have asked the court for an order terminating the removal of C.P.2 by the CAS and returning C.P.2 to their care. However, they say that falls short of affording them any means of challenging the validity of the original apprehension warrant per se.

[23] For that proposition, the defendants rely on two decisions rendered by Justice Kukurin in the Ontario Court of Justice, lamenting a perceived inability, under the provisions of the CFSA, to examine and determine the lawfulness of a warrantless apprehension effected by a Children’s Aid Society acting in professed reliance on s.40(7) of that legislation.

[24] In Children’s Aid Society of Algoma v. L.A., 2011 ONCJ 92, at paragraphs 9-11, Justice Kukurin said this:

With respect to the warrant of apprehension argument, it is rather sad that there really is no practical remedy for an inappropriate warrantless apprehension in child protection matters. There is a reason for the existence of subsection 40(2) and also for subsection 40(7) of the [CFSA]. The statute gives to societies some rather extraordinary powers to take children away from their parents. However, these powers have limitations. The scheme of the apprehension process requires that the apprehension be done pursuant to a warrant issued by a justice of the peace. This is a general rule. A warrantless apprehension is permitted only as an exception to that general rule and, in such a case, there must be a belief on reasonable and probable grounds on the part of the apprehending child protection worker, not only that the child is in need of protection, but more importantly, that there would be a substantial risk to the child’s health or safety during the time necessary to obtain an apprehension warrant. The analysis of whether this belief is founded on reasonable and probable grounds would necessarily include a consideration of what time would be necessary to obtain the warrant, whether the risk inherent in leaving the child with its caregiver was to the child’s health or safety (or both), and whether the degree of the risk in that intervening period was “substantial”.

Unfortunately, there is no venue for such an analysis ever to take place in a practical sense. The Act does not contain any provisions for the review of a society worker’s warrantless apprehension. Nor does it provide any sanction should such apprehension be unjustified. In fact, the Act provides that a society that apprehends a child must have the “matter” before the court no later than five days after the child is removed. The issue of whether the child should or should not be in the care of the person who had charge of the child prior to the removal by apprehension can be dealt with at that time. In theory, at least, this imposes judicial oversight on the justification for the continuation of the removal and does so within a period of time that is statutorily deemed to be reasonable.

Unfortunately, this reasoning does not actually address whether the removal of the child was properly effected pursuant to the statute. Nor does it address the fact that the child is removed from its lawful custodian and caregiver for the period between the apprehension and the time that the matter is brought before the court (which could be up to five days), without any testing of the apprehending worker’s grounds for removing the child. Whatever determination the child protection court may make on the first court appearance is not with respect to the validity of the apprehension. Rather, it is with respect to the future care and custody of the child.

[Original emphasis.]

[25] Similarly, in Children’s Aid Society of Algoma v. R.S. and C.B., 2013 ONCJ 688, Justice Kukurin said this at paragraphs 22-25:

There is a disturbing casualness surrounding the apprehension of G. Apprehension of a child under the [CFSA] is not a step to be taken with any degree of informality. The removal of a child from the care of his or her primary caregiver, especially a parental caregiver, is the single most significant step in the entire child protection regime in our law. While this involuntary physical severing of the relationship with the child and his or her caregiver results in the most impact, not to be minimized is the effect of the removal of the child from all things familiar and familial in the child’s family: the constellation of persons, both family and friends, with whom the child has relationships; the child’s home environment with which the child is familiar and comfortable; even the routines and every day activities that constitute the framework of a child’s life. The apprehended child is initially placed in a foster home with foster parents (sic) - - a place and persons who are generally completely unknown and total strangers. This is the epitome of disruption. Little wonder that the statute authorizing apprehension of children from their families contains some significant checks and balances.

The scheme of section 40 of the Act is structured in such a way that all apprehensions are to be pursued to a warrant to apprehend issued by a justice of the peace under section 40(2) of the Act.

While apprehension pursuant to warrant may be the general rule, the Act makes provisions for exceptions to the general rule. Those provisions are found in section 40(7) of the Act. The warrantless apprehension of a child requires reasonable and probable grounds for a belief that two pre-requisites set out in s.40(7) are present. The Act requires that this belief be held by the child protection worker who actually apprehends the child and brings the child to a place of safety. What may be the belief of the child protection supervisor, who is not apprehending the child, is irrelevant to the statutory justification for the removal of a child. Ultimately, it is the child protection worker to whom authority to apprehend without warrant is given by the Act. The Act demands of this same child protection worker the belief, based on reasonable and probable grounds, that both of the two specified pre-requisites exist.

It should not be thought for even one second that the reasonable and probable grounds that a Justice of the Peace needs to issue an apprehension warrant are the same reasonable and probable grounds that a child protection worker needs to apprehend a child without a warrant. …

[26] After several more pages of reasons detailing the distinctions between a warrantless and warrant-based apprehension, emphasizing the proper requirements of a warrantless apprehension, and criticizing the CAS for the manner in which it proceeded with a warrantless apprehension in that particular case, Justice Kukurin said this at paragraphs 50-51 of his decision:

This admittedly lengthy discussion in these Reasons is primarily for the benefit of the CAS in this case, and for any other society intending to apprehend any child. The job of a frontline child protection worker is not an easy one, probably most of the time. However, acceptance of such a position means complying with the statute that empowers the person in that position to remove a child from its caregiver.

The foregoing portion of these Reasons may be an academic exercise. In this case there is no warrant and consequently, no possibility of quashing any warrant. This child protection court does not have jurisdiction to quash warrants in any event, or to do anything about a warrantless apprehension that fails to meet the requirements of the Act. However, this court can take the circumstances of such an apprehension into account in making decisions that it does have jurisdiction to make. One such decision is on the issue of temporary care and custody…

[Emphasis added.]

[27] I have quoted at length from these two decisions to outline the fundamental interests which the defendants say are at stake, from a parent’s perspective, but also to make clear that the phenomenon which apparently troubled Justice Kukurin in both cases was perceived abuse of the warrantless apprehension procedure permitted by the CFSA; i.e., a statutory authority not requiring any degree of judicial oversight or corresponding judicial order for its initial exercise.

[28] Insofar as Justice Kukurin comments on an inability to address the possible invalidity of an apprehension warrant, his remarks therefore were made in obiter.

[29] Moreover, in my view, from a rule of law perspective, there are obvious and fundamental distinctions to be made between such warrantless apprehensions and those involving and requiring initial judicial oversight, and corresponding court authorization.

[30] For present purposes, however, I will accept the defendants’ submission that the CFSA does not provide a legislated mechanism for challenging the validity of an initial apprehension warrant per se, (as opposed to legislated mechanisms that permit parties to promptly challenge, effectively end, and reverse the custodial situation temporarily created by that apprehension warrant).

[31] The defendants say this is sufficient to warrant a relaxation of the rule barring collateral attacks on a judicial order.

[32] I disagree.

[33] In my view, the defendants’ position elevates form over substance.

[34] The focus in this rule of law context is on remedy, i.e., whether the law provides an adequate remedy to an aggrieved party, in relation to a judicial order perceived to be unjust and inappropriate, to validate society’s demand for interim compliance with that judicial order.

[35] In that regard, it seems to me that challenging the validity of an initial judicial order is but a means to an end.

[36] For example, a challenge to a judicial order that results only in a pro forma observation that the original judicial order should not have been granted, but continues the effects of that order in all respects, would be an entirely hollow victory and offer no true “remedy” at all from the perspective of the aggrieved party.

[37] Conversely, it seems to me that a legislated opportunity to have the matter brought back before the court almost immediately, and obtain a further court order which may not formally declare that the original order should never have been made, but nevertheless makes it absolutely clear that the legal situation it brought about should no longer continue, and that the original order and its terms need no longer be obeyed, provides very real redress that may be considered an adequate, albeit imperfect, “remedy” sufficient to validate the need for interim compliance with the original judicial order to maintain the rule of law.

[38] In my view, that reality is borne out by the authorities in this context essentially focusing on whether an aggrieved party has the ability to undo the effects of a judicial order on a prospective basis, by employing legal procedures designed to specifically address whether or not that should be done.

[39] In that regard, I think it no accident that the terminology employed by courts to describe what may be required, on the “remedial” side of the rule of law equation, is not confined to the need for a formal mechanism to declare that the original judicial order should be treated as if it never existed. In particular, the terminology used by our appellate courts speaks to “reversal” and “variation”, as well as “nullification”.

[40] Such an approach is also demonstrated by authorities which recognize that the interim existence of the original order and demanded compliance with that order may well have entailed some temporary constraint on a party’s rights, but that does not necessarily make the remedy of addressing and ending such a constraint through exercise of a specified process an inadequate remedy sufficient to validate the demand for interim compliance with the initial judicial order to preserve the rule of law.

[41] For example, in R. v. Domm, supra, our Court of Appeal recognized that the ability to challenge a judicial order restraining free speech, through a specified process specifically aimed at determining whether such restraints should continue, inherently may result in temporary loss of the right of free speech during the period it took that specified legal process to run its course, and end in a further court order reversing, varying or nullifying the effects of the original court order. However, that was still considered an adequate “remedy”, sufficient to validate the demand for interim compliance with the original judicial order, given the need to recognize and protect competing societal interests such as preservation of an accused’s right to a fair criminal trial.

[42] That sort of weighing of competing interests is inherent in our Court of Appeal’s more general admonition, noted above, that because the rule barring collateral attacks on judicial orders is designed to reinforce the compliance component of the rule of law, and enhance the repute of the administration of justice, (by providing for the orderly and functional administration of justice), the rule should be relaxed only if a collateral attack on an order can be taken without harm to those interests.

[43] The defendants suggest that granting their requested relief would raise no such concerns. In particular:

• In their submission, a judicial precedent, effectively signaling to parents and other child caregivers that apprehension warrants issued pursuant to the CFSA may be disregarded when served, on the understanding that there will be a right to challenge their appropriateness in the context of much later criminal proceedings such as this, if and when such charges are brought and pursued, realistically will not jeopardize the fundamental integrity of our legislated system of child protection, create any meaningful concerns about possible disorder in this area of the law, or threaten to bring the administration of justice into disrepute as far as the protection of children is concerned.

• They say that few parents or other individuals faced with a judicial order, in the form of an apprehension warrant, will be willing to risk the effort, expense and possible consequences of a criminal prosecution by disobeying such orders.

• They also say that granting the right the defendants now seek, confirming the ability of parents and others to challenge the appropriateness of an initial apprehension warrant in the context of a subsequent criminal proceeding, will simply have the salutary long term effect of promoting more efforts by Children’s Aid Societies to ensure more adequate and appropriate disclosure when they go through the process of obtaining such apprehension warrants, in an effort to ensure that the warrants will survive such eventual challenges in the context of criminal proceedings.

[44] I disagree entirely with the defendants’ position in that regard.

[45] In my view, there are few motivations stronger than the desire of most parents not to be separated from their children.

[46] That understandable and very fundamental human impulse is reflected again and again in the countless custody and access proceedings that occupy considerable court time across the country; proceedings in which parents fight tenaciously, often to the extent of completely exhausting their financial resources, and thereafter without the benefit of legal assistance, to “hang on to” their young children as much as possible.

[47] That same impulse is also reflected, sadly, in never-ending examples of parents violating court orders imposing custody and access arrangements which one or both parents find hard to accept.

[48] Given such realities, I have little doubt that parents who love their child therefore would welcome and readily embrace any legal mechanism that might justify their temporary refusal to part with their children in the face of a child apprehension warrant, despite the possible risks of criminal prosecution.

[49] These are not fanciful imaginings.

[50] To the contrary, that precise dynamic is playing itself out in this very case.

[51] I accordingly have little doubt that the relief sought by the defendants would be entirely destructive to the functional and orderly administration of justice, in relation to our legislated system of child protection, and seriously threaten the reputation of our justice system in that regard.

[52] It would, I think, almost certainly neutralize the effectiveness of our legislated mechanism of addressing such child welfare concerns, which permits the controlled but timely ability of the state to intervene if and where necessary to safeguard children in need of protection.

[53] In that regard, while comments such as those of Justice Kukurin raise legitimate concern about possibly precipitous and cavalier state intervention that unnecessarily disrupts the lives of children and their families, without adequate cause, one must not lose sight of other unfortunate but all too realistic scenarios that raise very fundamental competing concerns.

[54] In particular, while our society strives to foster, respect and protect healthy parent-child relationships, it also does not permit the welfare of children to be jeopardized by the absence of any mechanism to permit timely state intervention, if and when necessary, to rescue a young and otherwise completely helpless child in serious danger of harm or even death, owing to a demonstrable failure or incapacity of the child’s parents to ensure the basic protection and care every child in our community should receive.

[55] As Justice Kukurin himself notes in Children’s Aid Society of Algoma v. R.S., supra, at paragraph 22, the CFSA, which authorizes apprehension of children from their families, therefore contains “significant checks and balances”; i.e., to address various possible child protection scenarios, pending objective judicial determination of which type of scenario may truly exist or not exist in a particular case.

[56] In particular, prompt state intervention is permitted, but its continuation must then be justified objectively to an impartial court almost immediately, and no later than five days after the child’s apprehension.

[57] Moreover, in the case of apprehension by warrant, at least, it should not be forgotten that, as noted above, the original permission to apprehend the child also was subject to judicial oversight, (albeit based on the court perhaps receiving only one side of the story).

[58] The CFSA is not a perfect system.

[59] In particular, a more fulsome court hearing, at which all interested parties can be heard, and at which a court therefore is more likely to receive both or all sides of the story, may very well result in a finding that concerns about the child’s need for protection were overstated, and that continued removal of the child from his or her parents care is not required. That in turn may very well suggest that, with the benefit of hindsight, the original court order authorizing state intervention should not have been made.

[60] However, as noted above, the “remedial” component of the rule of law sufficient to validate the demand for interim compliance with a court order, does not demand perfection, but adequacy, having regard to the circumstances and the competing interests at stake.

[61] In my view, the system of remedy offered by the CFSA, in terms of a party’s ability to challenge a child’s apprehension by warrant through a prompt court hearing directly aimed at reviewing whether or not it is appropriate to continue or terminate the continuing effects of that apprehension warrant, (a mechanism that would have been available to the defendants in this case the very next day after their alleged disregard for the judicial order made by Justice of the Peace Roberson), does provide an adequate remedy sufficient to validate the demand for interim compliance with the relevant judicial order, having regard to the competing interests at stake.

[62] In particular, I think the remedial system contemplated by the CFSA for specifically and promptly addressing the appropriateness of the custodial situation created by the apprehension warrant is infinitely preferable to that effectively suggested by the defendants, whereby the parents could continue to defy an apprehension warrant until a possible criminal hearing many months down the road.

[63] In my view, a system of “child protection” that effectively delays any possible state intervention for at least many months, despite what may be extremely serious concerns of child neglect or endangerment, would offer little in the way of meaningful child protection, and quickly bring the administration of justice into disrepute.

[64] I also note that, by effectively and in my view inevitably transferring the adjudication of child protection issues to our criminal courts, (which generally must remain very public proceedings so as to prevent any incremental return to the excesses of punitive tribunals that operate in secret, such as the Star Chamber), would completely circumvent the intricate system of private hearings and publication restrictions established by the CFSA in relation to child protection proceedings, for the benefit of children and their families. See, in that regard, the provisions of section 45 of the CFSA.

[65] In particular, I note that s.45(3) of the CFSA expressly directs that a child protection hearing must be held separately from hearings in criminal proceedings. What the defendants suggest, by their requested relief, effectively would prevent such a separation, and transform this criminal proceeding into one focused in a very direct way on whether the child C.P.2 was in need of protection at the time of his apprehension.

[66] In short, I see little good, and much harm, that would flow from granting the relief sought by the defendants in their application.

[67] More to the point, and as noted above, I find that the CFSA provides an adequate remedial mechanism, to a party seeking to “undo” the ongoing effects of an apprehension warrant, that is sufficient to validate society’s demand for interim compliance with such a judicial order to promote and ensure the rule of law.

[68] There accordingly is no basis for relaxing the rule barring collateral attacks on such a judicial order. To the contrary, doing so in these particular circumstances would be destructive of the rule of law, insofar as it would jeopardize the orderly and functioning administration of justice in relation to child protection matters, and bring that system of justice into disrepute.

[69] For the reasons set out above, the application brought by the defendants is dismissed.

[70] Moreover, for the sake of clarity, and an in effort to assist the parties in framing their questions, evidence and submissions in the presence of the jury, I make the following order and directions:

• At trial, the defendants and their counsel may not ask questions or introduce evidence regarding the validity of the apprehension warrant granted by Justice Roberson on July 15, 2015; and

• At trial, the defendants and their counsel will not be permitted to argue or suggest to the jury, directly or indirectly, that the apprehension warrant should be viewed as invalid, such that the defendants were lawfully entitled to take C.P.2 on July 23, 2015, without the permission and consent of the CAS.

[71] A typed copy of my endorsement, setting forth my reasons and decision, will be provided to counsel now, so that they have that available to assist in their planning before the trial continues before the jury on Monday.

JUSTICE I. F. LEACH

Released: February 19, 2016