BC Supreme Court rules that ministry of attorney general must disclose information on funding of legal counsel for children to representative for children and youth

8 November 2019

By Kevin Zakreski

In a decision released earlier this week, the Supreme Court of British Columbia has decided that the BC Ministry of Attorney General must disclose certain records relating to the funding of legal counsel for children to the Representative for Children and Youth for British Columbia, providing an interpretation of the reach of the representative’s mandate and powers under the Representative for Children and Youth Act.

British Columbia (Representative for Children and Youth) v British Columbia (Attorney General), 2019 BCSC 1888, has its roots in work on legal representation for children that the representative is currently carrying out, under its mandate to make special reports to the legislative assembly. The court characterized the issues in the case in its overview of the proceedings:

[1] By the terms of her home statute, the Representative for Children and Youth has the right to any information that is in the custody or control of a public body, and the public body must disclose this information where it is necessary to enable the Representative to exercise her statutory powers or perform her statutory functions or duties. The Representative has requested documents that are in the custody or control of the Ministry of the Attorney General. These documents relate to funding of counsel for children. The Ministry resists production of the documents requested.

[2] The Representative petitions for a declaration that the Ministry has failed to comply with its statutory duty to provide the information requested. The Attorney General also filed a petition. It seeks a declaration that the Representative’s request is invalid, on the basis that the Representative seeks the information to perform a function that is outside her mandate. In the alternative, the Attorney General seeks a declaration that the Representative’s request for information is invalid to the extent it impinges on vested privileges.

[3] Accordingly, the central issue revolves around the scope of the Representative’s mandate. Is she seeking information from the Ministry that is necessary to performance of her statutory powers, functions, or duties, or is her request outside of these bounds? The Representative wants this information to make a special report to the Legislative Assembly on the availability of legal and other forms of representation for children involved in cases under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (CFCSA), the Mental Health Act, R.S.B.C. 1996, c. 288, and family law proceedings. For the reasons that follow, I conclude there is only one reasonable interpretation of the Representative’s home statute: she has the right to this information in order to make this report. It follows that the information sought from the Ministry must be produced, subject only to any successful claims of privilege that might be made in relation to a particular document or class of documents.

In ruling in the representative’s favour, the court took a fairly broad view of the representative’s statutory mandate:

[32] The Representative thinks it advisable to make a special report that addresses advocacy for children in family law proceedings that were proximate to CFCSA proceedings, or proximate to critical injuries or deaths of children. And, to prepare a useful report, the Representative says that she needs to understand the history of advocacy for children in British Columbia including the defunct Family Advocacy Program. I agree with the Representative’s submission that the subject of the special report arises out of and is closely connected to her advocacy and her CID [critical injuries and deaths] mandates. I reject the Attorney General’s submission that it is a project unmoored from her powers, functions, and duties established by s. 6(1).

[33] The Representative’s interest is in seeing the child protection system work as well as it can. Concurrent court proceedings overlap and intertwine. Judges and masters often see this with parallel CFCSA and family law cases. There is nothing in the text of s. 20, the other sections of the RCYA, or the purpose of this remedial legislation that supports a restriction on the Representative addressing the extent to which children’s voices are heard in proceedings proximate to child protection proceedings. What occurs in parenting cases, and in particular whether children are heard in these proximate parenting proceedings, could have a bearing on the workings of the child welfare system and this is squarely within the Representative’s mandate to address by way of a special report.

[34] The modern approach to statutory interpretation is that “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”: Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21. Having regard to the text of s. 20, interpreted in the context of the purpose of the RCYA as a whole and the scheme of this legislation, I conclude that the making of the special report contemplated by the Representative is plainly within her power notwithstanding that its subject matter touches on family law matters other than child welfare proceedings. I conclude that this is the only reasonable interpretation.

[35] The Representative is an officer of the Legislature. In her unique role, she does not adjudicate. She advocates, monitors, reviews, investigates, and makes reports in relation to children connected with the child welfare system. The Representative refers to Friedmann and the principle that remedial legislation is to be given a fair, large, and liberal interpretation as best ensures the attainment of its objects. I agree that the RCYA is remedial legislation and that the Representative’s mandate is remedial.

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