Release: Case to determine parents’ right to privacy at BC Court of Appeal
For Immediate Release – January 16, 2023
Vancouver, unceded Xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish) and səlilwətaɬ (Tsleil-Waututh) homelands – Today, West Coast LEAF is intervening at the BC Court of Appeal in a case that will impact how parents are surveilled by the family policing system (also known as the child welfare system), T.L. v the Attorney General of British Columbia.
The case is about the constitutionality of s.96 of the Child, Family, and Community Service Act, which gives directors (i.e., representatives of the Ministry of Children and Family Development) unfettered access to information about caregivers and children that is held by service providers like counselors, healthcare providers, and police. Under s.96, directors have the authority to request information without going through a prior authorization process or giving notice to the parent.
“A review of s. 96 needs to consider the social context of parents who are engaged with or surveilled by the colonial family policing system,” says Bety Tesfay, staff lawyer at West Coast LEAF “This law has deep impacts on the privacy, dignity, and substantive equality of parents who experience gender discrimination, particularly Indigenous parents with disabilities.”
In a judicial review at the BC Supreme Court, T.L., a mother who has a mental health disability, said that s.96 unjustifiably infringes ss.7 and 8 of the Charter, which protect people from unreasonable state intrusions on their privacy. The director removed T.L.’s children from her care, using s.96 to receive years of T.L.’s health and psychiatric records from her healthcare providers. The BC Supreme Court found that s.96 was constitutional and dismissed T.L.’s judicial review. T.L. appealed the decision, and the case is now before the BC Court of Appeal.
West Coast LEAF is arguing that any constitutional review of s.96 must recognize the power imbalance between the state and caregivers. S.96’s constitutionality needs to be assessed in the context of a family policing system that disproportionately affects Indigenous families and parents who experience overlapping inequalities. In this context, meaningful limits on the powers under s.96 are necessary to prevent the discriminatory collection of highly personal and sensitive information.
“A shift from a colonial, apprehension-based approach to a more preventative and strength-based approach is urgently needed, especially in light of BC’s commitment to decolonization in the Declaration on the Rights of Indigenous Peoples Act,” continues Tesfay. “Such an approach recognizes the importance of autonomy and collaboration in the treatment of parents and children involved in the family policing system.”
The case will be before the BC Court of Appeal in a two-day hearing on January 16 and 17, 2023.
Manager of communications, West Coast LEAF