E.L.L. et al, (1983) 65 A.R. 363 (ProvCt)

• Judge: Fitch, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 14, 1983
• Jurisdiction: Alberta
• Citations: (1983), 65 A.R. 363 (ProvCt)

E.L.L. et al., Re (1983), 65 A.R. 363 (ProvCt)

MLB headnote and full text

Re E.L.L. et al.

(N 7134)

Indexed As: E.L.L. et al., Re

Alberta Provincial Court

Fitch, P.C.J.

February 14, 1983

Summary:

Counsel for both the Crown and the parents in a child protection inquiry under the Child Welfare Act requested an in camera hearing. Section 12(3) of the Act stated that the judge "shall exclude" the public.

The Alberta Provincial Court held that mandatory in camera hearings were inconsistent with the right to a "fair and public hearing" under s. 11(d) of the Charter of Rights and Freedoms. Therefore, the court held that "shall" exclude should be read down as "may" exclude.

Civil Rights - Topic 3149

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Public hearing - Abridgment of - Canadian Charter of Rights and Freedoms, s. 11(d) - Section 12(3) of the Child Welfare Act, R.S.A. 1980, c. C-8, provided that in child protection inquiries the judge "shall exclude" the public - The Alberta Provincial Court held that the nature of the proceedings made them quasi-criminal, therefore the right under s. 11(d) of the Charter to a "fair and public hearing" applied - The court held that s. 12(3) violated s. 11(d) insofar as it made in camera hearings mandatory - Therefore, the court held that "shall" exclude should be read down as "may" exclude.

Guardian and Ward - Topic 905

Public trustee or guardian - The hearing - In camera hearing - Section 12(3) of the Child Welfare Act, R.S.A. 1980, c. C-8, provided that in child protection inquiries the judge "shall exclude" the public - The Alberta Provincial Court held that the nature of the proceedings made them quasi-criminal, therefore the right under s. 11(d) of the Charter to a "fair and public hearing" applied - The court held that s. 12(3) violated s. 11(d) insofar as it made in camera hearings mandatory - Therefore, the court held that "shall" exclude should be read down as "may" exclude.

Cases Noticed:

R. v. N. (1979), 10 C.R.(3d) 68 (B.C.C.A.), refd to. [para. 4].

Statutes Noticed:

Child Welfare Act, R.S.A. 1980, c. C-8, sect. 12, sect. 38 [para. 5].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 12(1) [para. 5].

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b), sect. 11(d), sect. 24(1) [para. 5].

Constitution Act, 1982, sect. 52(1) [para. 5].

Counsel:

M. Bradshaw, for the Director of Child Welfare;

B. Limpert de Morin, for the parent.

This case was heard before Fitch, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on February 14, 1983.