Vancouver, BC (Unceded Coast Salish Territories) – The BC Civil Liberties Association (BCCLA) and West Coast LEAF are disappointed by the BC government’s proposed amendments to s. 96 of the Child, Family and Community Service Act. These amendments were introduced in the Legislature on February 28, 2024 as Bill 5 in response to the BC Court of Appeal’s April 2023 decision striking downs. 96(1) as violating parents’ s. 8 Charter right against unreasonable search and seizure. Regrettably, the proposed amendments do not adequately address the rights violations found by the Court of Appeal, thus permitting continued systemic violations of BC parents’ privacy rights, and leaving the law vulnerable to another challenge.
Under section 96(1), the Ministry of Children and Family Development (MCFD) is granted broad, unrestricted powers to obtain personal information, including the private medical information of parents, without the person’s knowledge or consent. In TL v British Columbia (Attorney General), the plaintiff mother discovered that social workers had obtained her private medical records only because a member of her care team asked her whether she had consented to the request. The BCCLA intervened in the TL case to argue that stronger safeguards are necessary to prevent abuse of the state’s power, and the Court of Appeal agreed, based on the absence of a number of constitutional protections. West Coast LEAF intervened to argue that due to the power imbalance between the state and parents whose children are at risk of being removed from their care, s. 96(1) disproportionately impacts marginalized parents.
In September 2023, MCFD engaged in a hasty process of consultation, providing the BCCLA less than three weeks to consult on a draft policy proposal for new legislation. The BCCLA provided comprehensive recommendations highlighting that the proposal was not in compliance with the TL decision and raising additional privacy concerns. The Ministry did not respond to the submissions, and ignored the recommendations. The Ministry’s statement that the new legislation was developed in collaboration with the BCCLA is firmly rejected.
The BCCLA’s outstanding concerns include that Bill 5 contains no requirement that the parent’s consent be sought in any circumstances, no advance notice that personal information is being demanded, no mandatory form for making a request to ensure that social workers have a reasonable basis for the request and that they consider the privacy implications of their requests, no time limit for when the Ministry must notify a person that their information has been obtained, no guidance to social workers regarding what entities they can legally make requests to, and no protection for non-health-related sensitive personal information.
Media Statements:
“This is a golden opportunity to ensure that Ministry social workers are able to carry out their important work without violating the constitutionally-protected privacy rights of BC families. Unfortunately, the government is squandering it. The province still has a chance to bring this legislation into compliance with the Charter without the need for further litigation, and we hope they will take it.”
-Aislin Jackson, Policy Staff Counsel, BCCLA
“Protecting parental privacy is about protecting children and families from the harms of unnecessary state intrusions. The BC Court of Appeal in TL v British Columbia (Attorney General) was exceptionally clear regarding the constitutional flaws of s. 96. Parents in BC should not have to bear the burden to bring new litigation to force the government to comply with an already issued court decision.”
– Ga Grant, Litigation Staff Counsel, BCCLA
“The limitations in the amendments emphasize the need for a child and family well-being model that is collaborative and cognizant of how the rights of parents and children are intertwined. Robust protections are necessary where there is such a stark power imbalance between the state’s power to remove children, and the vital interests of families.”
– Bety Tesfay, Staff Counsel, West Coast LEAF
