FOR IMMEDIATE RELEASE
WHAT: BCCLA at BC Court of Appeal to intervene in T.L. v. British Columbia (Attorney General) to argue that unrestricted access to parents’ medical records is unconstitutional
WHEN: January 16 and 17, 2023, 10:00 am PST
WHERE: British Columbia Court of Appeal (Vancouver)
Vancouver, BC (unceded Coast Salish Territories) – The BC Civil Liberties Association (BCCLA) will make oral arguments at the BC Court of Appeal in its hearing of T.L. v. British Columbia (Attorney General) on January 16 and 17, 2023, a case that will determine the constitutionality of sections 96(1) and (2) of the Child Family and Community Service Act (CFCSA). These provisions provide the Director of Child Protection and their social workers broad and unrestricted authority to obtain private information including medical records of parents—even where they have no suspicion of a risk to their children—without the parent’s consent or even notification. This medical information may then be used to make unilateral decisions, including the removal of children from their families.
The impact of state interference in the familial and parenting relationship is extremely serious and cannot be undone. The BCCLA argues that assessing whether the broad search and seizure of private medical information is reasonable under s. 8 of the Charter requires considering not only the privacy of medical records themselves, but also the uses of that information. Child protection proceedings seriously impact the well-being of children, parenting relationships, and individual identity, all of which require heightened protections under the Charter. As the Supreme Court of Canada has recognized, child protection proceedings are a direct state interference with the parent-child relationship and a gross intrusion into a private and intimate sphere. In this context, the BCCLA opposes access to medical records without appropriate safeguards including court review.
The law currently allows seizure of records which may be irrelevant to whether a child is in need of protection. This legislative overbreadth not only violates the Charter but the purpose of the CFCSA to keep children with their families. These provisions may cause parents to refrain from obtaining effective medical treatment or to withdraw from family supports that could prevent the removal of children. Without appropriate safeguards, medical records, and in particular, sensitive counselling and psychiatric records, may be vulnerable to misinterpretation. The legislation unnecessarily creates a preventable risk of unreasonable decisions which carry serious consequences for children and families. As shown by other provinces, British Columbia has better alternatives available. A less intrusive regime with checks and balances is not only possible but promotes the protection of children and families.
The BCCLA is represented by Lisa Glowacki and Maegen Giltrow, KC.
The BCCLA’s factum is available here.