CFS v. Jordan,

• Judge: Rooke, J.
• Neutral Citation: 2000 ABQB 976
• Date: 21 December 2000
• Court: Court of Queen's Bench of Alberta (Canada)

CFS v. Jordan, P.C.J. (2000), 279 A.R. 328 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JA.042

In The Matter Of the Protection of Children Involved in Prostitution Act, S.A. 1998, c. P-19.3;

And In The Matter Of a decision by the Learned Provincial Court Judge K. Jordan dated July 28, 2000.

Her Majesty the Queen in Right of Alberta and a Director of Child Welfare (applicants) v. The Honourable Judge K.J. Jordan, Judge of the Provincial Court, Family and Youth Division and K.B. born March 1982 and M.J. born February 1982 children within the meaning of the Protection of Children Involved in Prostitution Act (respondents)

(Action No. 0001-12802; 2000 ABQB 976)

Indexed As: Director of Child Welfare (Alta.) v. Jordan, P.C.J. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

December 21, 2000.

Summary:

Two 17 year old prostitutes applied for a ruling that Alberta's Protection of Children Involved in Prostitution Act was ultra vires the province, violated the Charter and could not be saved by s. 1. A preliminary issue was whether the applicants had standing to bring the application where they had been released from the protective safe house and the issue for them was moot.

The Alberta Provincial Court, Family Division, in a decision reported at 268 A.R. 248, held that the applicants had standing. The court held that the legislation violated ss. 7 and 9 of the Charter, s. 2(11) of the Act violated s. 8 of the Charter, and none of the violations could be saved by s. 1 of the Charter. The Crown applied for judicial review in the nature of certiorari.

The Alberta Court of Queen's Bench allowed the application.

Civil Rights - Topic 650

Liberty - Limitations on - Child protection - Section 2(9) of the Protection of Children Involved in Prostitution Act provided for a child to be apprehended and conveyed to a protective safe house without an order where a police officer or director had reasonable and probable grounds to believe that the child's life or safety was seriously and imminently endangered because the child was engaging in or attempting to engage in prostitution - Under s. 2(10), a director could confine the child for up to 72 hours if he considered it necessary for the safety of, or to assess, the child - Section 2(12) provided that when a child was confined without an order, the director had to appear before the Provincial Court within three days to show cause why the confinement was necessary - The Alberta Court of Queen's Bench held that ss. 2(9), 2(10) and 2(12) did not violate s. 7 of the Charter - Although there was a deprivation of liberty, it accorded with the principles of fundamental justice - See paragraphs 38 to 81.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Section 2(9) of the Protection of Children Involved in Prostitution Act provided for a child to be apprehended and conveyed to a protective safe house without an order where a police officer or director had reasonable and probable grounds to believe that the child's life or safety was seriously and imminently endangered because the child was engaging in or attempting to engage in prostitution - Under s. 2(10), a director could confine the child for up to 72 hours if he considered it necessary for the child's safety or to assess the child - Section 2(12) provided that when a child was confined without an order, the director had to appear before the Provincial Court within three days to show cause why the confinement was necessary - The Alberta Court of Queen's Bench held that ss. 2(9), 2(10) and 2(12) did not violate s. 9 of the Charter - The detention was not arbitrary - See paragraphs 82 to 91.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 2(9) of the Protection of Children Involved in Prostitution Act provided for the apprehension and conveyance to a safe house of a child engaging in or attempting to engage in prostitution - Under s. 2(10), a director could confine the child for up to 72 hours if he considered it necessary for the child's safety or to assess the child - Section 2(12) provided that when a child was confined without an order, the director had to appear before the Provincial Court within three days to show cause why the confinement was necessary - The Alberta Court of Queen's Bench held that ss. 2(9), 2(10) and 2(12) did not violate the Charter - Alternatively, they were saved by s. 1 of the Charter - See paragraphs 92 to 113.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 8584 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - The Alberta Court of Queen's Bench stated that the Provincial Court, a statutory court, was limited to interpreting or applying the law necessary to deal with the issues before it, and could not grant a formal declaration of invalidity, which was a remedy exercisable only by a superior court - The Provincial Court could only apply the Charter to determine whether a particular legislative provision was of no force or effect if the provision was relevant to the outcome of the proceedings before it - In any event, courts should not make significant rulings on the meaning and content of constitutional rights in a factual vacuum - See paragraphs 29 to 37.

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review of Provincial Court decision - Two 17 year old prostitutes were apprehended and confined under the Alberta Protection of Children Involved in Prostitution Act - They challenged the legislation's constitutionality at a show cause hearing - A Provincial Court judge held that the legislation violated the Charter - The Crown applied for judicial review - The Alberta Court of Queen's Bench held that as the case dealt solely with questions of law on constitutional matters, the appropriate standard of review was correctness - See paragraphs 25 to 28.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - A Provincial Court judge held that certain sections of the Alberta Protection of Children Involved in Prostitution Act violated the Charter and were not saved by s. 1 - The Crown applied for judicial review - The respondents argued that because the Crown raised no written or oral submissions in the court below with respect to the s. 1 justification, this should be interpreted as a finding that there was no justification under s. 1 for any Charter violations occasioned by the Act - The Alberta Court of Queen's Bench rejected the argument - The Crown's failure to discharge its onus was not equivalent to a positive admission that the legislation could not be justified under s. 1 - See paragraphs 92 to 96.

Evidence - Topic 1737

Hearsay rule - Hearsay rule exceptions and exclusions - Utterances relevant as circumstantial evidence - What constitute -Two 17 year old prostitutes were apprehended and confined under the Alberta Protection of Children Involved in Prostitution Act - They challenged the legislation's constitutionality at a show cause hearing - A child welfare worker testified, inter alia, that the police attended at the premises where the girls were found because they were looking for stolen property - A Provincial Court judge held that the legislation violated the Charter - The Crown applied for judicial review - The respondents objected to the welfare worker's hearsay evidence - The Alberta Court of Queen's Bench stated that the evidence was admissible in this context (an analysis of the legislation's constitutionality) because, inter alia, it was not relevant for its truth, but rather for the type of circumstances in which the apprehension might take place - See paragraph 71.

Guardian and Ward - Topic 817.1

Public trustee or guardian - Appointment - Child in need of protection - Apprehension order - [See Civil Rights - Topic 650 , Civil Rights - Topic 3603 and first Civil Rights - Topic 8348 ].

Cases Noticed:

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 16].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129, refd to. [para. 17].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 25].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 27].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 27].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 30].

Western Irrigation District v. Craddock et al. (2000), 267 A.R. 297 (Q.B.), refd to. [para. 31].

Hicks v. Kennedy (1957), 20 W.W.R.(N.S.) 517 (Alta. C.A.), refd to. [para. 32].

C.I.L. v. Development Appeal Board Edmonton (1969), 71 W.W.R.(N.S.) 635 (Alta. C.A.), refd to. [para. 32].

Alberta Giftwares Ltd. v. Calgary (City) (1979), 9 R.P.R. 45 (Alta. C.A.), refd to. [para. 32].

Shewchuk v. Ricard, [1986] 4 W.W.R. 289 (B.C.C.A.), refd to. [para. 33].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340; 77 D.L.R.(4th) 94, refd to. [para. 33].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481, refd to. [para. 33].

Tétrault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358, refd to. [para. 33].

R. v. R.J.H. (2000), 255 A.R. 320; 220 W.A.C. 320; 186 D.L.R.(4th) 468 (C.A.), refd to. [para. 34].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250; 50 C.R.R. 59; 74 O.R.(2d) 763; 73 D.L.R.(4th) 686, refd to. [para. 35].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; [1989] 6 W.W.R. 351; 61 D.L.R.(4th) 385; 43 C.R.R. 1, refd to. [para. 35].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 35].

Krieger et al. v. Law Society of Alberta (2000), 277 A.R. 31; 242 W.A.C. 31 (C.A.), refd to. [para. 35].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 39].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481; 5 C.R.(4th) 253, refd to. [para. 39].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 39].

Child and Family Services of Winnipeg Central v. K.L.W. et al. (2000), 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161 (S.C.C.), appld. [para. 39].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 42].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 42].

C.A., Re (1990), 105 A.R. 72 (Prov. Ct. Fam. Div.), refd to. [para. 47].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91; 62 C.C.C.(3d) 385, refd to. [para. 47].

T. v. Director of Child Welfare (Alta.) (2000), 261 A.R. 315; 225 W.A.C. 315 (C.A.), refd to. [para. 68].

C.U. v. McGonigle et al. (2000), 273 A.R. 106 (Q.B.), refd to. [para. 69].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 71, footnote 5].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398; 63 C.R.(3d) 14; 4 M.V.R.(2d) 170; 32 C.R.R. 193, refd to. [para. 86].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 88].

Reza v. Minister of Employment and Immigration (1992), 58 O.A.C. 377; 11 O.R.(3d) 95 (C.A.), refd to. [para. 93].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 94].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Parker, [2000] O.J. No. 2787 (C.A.), refd to. [para. 94].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510; 18 C.R.(4th) 274, refd to. [para. 94].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 94].

R. v. Hudson (1990), 87 Sask.R. 288 (C.A.), refd to. [para. 96].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 98].

R. v. Downey and Reynolds, [1992] 2 S.C.R. 10; 136 N.R. 266; 125 A.R. 342; 14 W.A.C. 342, refd to. [para. 99].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 99].

R. v. Sharpe (J.R.) (1999), 127 B.C.A.C. 76; 207 W.A.C. 76; 175 D.L.R.(4th) 1; 136 C.C.C.(3d) 97 (C.A.), refd to. [para. 99].

R. v. Tang (P.) (1997), 200 A.R. 70; 146 W.A.C. 70 (C.A.), refd to. [para. 103].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 111].

Statutes Noticed:

Protection of Children Involved in Prostitution Act, S.A. 1998, c. P-19.3, sect. 2(9), sect. 2(10), sect. 2(12) [para. 6].

Authors and Works Noticed:

Alberta, Family and Social Services, Report by the Task Force on Children Involved in Prostitution (January 28, 1997), generally [para. 44]; pp. 1044, 1045 [para. 101].

Badgley Report - see Canada, Report of the Committee on Sexual Offences Against Children and Youths.

Canada, Report of the Committee on Sexual Offences Against Children and Youths (1984), p. 961 [para. 47].

Hodgson, Games Pimps Play: Pimps, Players and Wives-In-Law (1997), pp. 24, 32, 40, 41, 43 to 68, 101, 102 [para. 103]; 103 [paras. 47, 103]; 104 to 111 [para. 103]; 112, 113 [paras. 47, 103]; 114 to 118 [para. 103].

Hogg, Peter W., Constitutional Law of Canada, vol. 2 (1992 Looseleaf), pp. 37-2 [para. 33]; 46-5, 46-6 [para. 84].

Jessome, Somebody's Daughter (1996), pp. 7, 58 [para. 103].

MacInnes, children in the game (1998), pp. 103 to 123 [para. 103].

Wade, Administrative Law (1994), pp. 272, 273 [para. 32].

Counsel:

M. Unsworth, J.R. Robb, Q.C., and K. Tottrup, for the applicants;

H.M. Van Harten, and B. Border, for the respondents.

This application was heard by Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on December 21, 2000.