R.T. et al., Re, 2004 SKQB 503

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 10, 2004
• Jurisdiction: Saskatchewan
• Citations: 2004 SKQB 503;(2004), 259 Sask.R. 122 (FD)

R.T., Re (2004), 259 Sask.R. 122 (FD)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. DE.066

In The Matter Of the Child and Family Services Act

And In The Matter Of R.T., born [XXX], 1991 ("Dan") M.T., born [XXX], 1992 ("Jane") M.A.T., born [XXX], 1996 ("Maggie") A.L., born [XXX], 2000 ("John") K.A., born [XXX], 2003 ("Sally")

(1997 F.S.M. No. 46; 2004 SKQB 503)

Indexed As: R.T. et al., Re

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Prince Albert

Ryan-Froslie, J.

December 10, 2004.

Summary:

The Department of Community Resources and Employment (DCRE) applied for an order finding five aboriginal children (aged 14 months to 12 years) in need of protection and placing them in the long-term care of the Minister until age 18.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 248 Sask.R. 174, found the children to be in need of protection but was not satisfied that long-term care was in their best interests. The court adjourned the issue of placement of the children for a continuation of the hearing to determine, inter alia, the adoptability of the children. Counsel for the children argued that an existing DCRE policy or agreement not to allow the adoption of an aboriginal child, without the consent of the child's band, violated ss. 7 and 15 of the Charter and was of no force and effect. An Indian band and its Indian Child and Family Service Agency argued that the adoption of an aboriginal child by a non-aboriginal family, without the consent of their band, violated s. 25 of the Charter and s. 35 of the Constitution Act, 1982 (i.e. they had an aboriginal right to speak for aboriginal children).

The Saskatchewan Court of Queen's Bench, Family Law Division, held that the DCRE policy violated ss. 7 and 15 of the Charter, was not saved by s. 1 of the Charter. The court declared that the policy in issue was unconstitutional and directed DCRE to deal with aboriginal children in a manner consistent with their best interests and to place them for adoption where appropriate without reference to the impugned policy. To ensure the children in issue here were placed in accordance with their best interests, the court invoked s. 24(1) for the purpose of adding conditions to the permanent orders respecting the children to ensure their Charter rights were upheld. The court did not find that there was no aboriginal right for the band/agency to speak for the children.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1208

Security of the person - General - Adoption - At issue was the placement of five aboriginal children previously found to be in need of protection - The Department of Community Resources and Employment (DCRE) had adopted a policy which provided that First Nations children would not be placed for adoption without the consent of the child's band and/or the applicable First Nations Child and Family Services Agency - Band consent would not be given if it meant the child would be adopted outside the aboriginal community - There was no one in that community willing to adopt the children - The result was that the children were destined to remain in long-term foster care - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the children's s. 7 Charter right to security of the person had been infringed by the policy, which in effect, prevented their adoption - The policy had been applied arbitrarily and without regard to the individual circumstances or needs of the children - There was potential for serious harm to these children if they were retained in foster care without regard to their best interests - The infringement was contrary to the principles of fundamental justice - The effect of the policy was to abdicate the Minister's responsibility under the Child and Family Services Act to a child's band and/or the Agency - See paragraphs 62 to 74.

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See Civil Rights - Topic 1208 ].

Civil Rights - Topic 1394

Security of the person - Health care - Child or adult protection - [See Civil Rights - Topic 1208 ].

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians - At issue was the placement of five aboriginal children previously found to be in need of protection - The Department of Community Resources and Employment (DCRE) had adopted a policy which provided that First Nations children would not be placed for adoption without the consent of the child's band and/or the applicable First Nations Child and Family Services Agency - Band consent would not be given if it meant the child would be adopted outside the aboriginal community - There was no one in that community willing to adopt the children - The result was that the children were destined to remain in long-term foster care - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the policy breached the children's s. 15 equality rights under the Charter - These children did not have the same advantages as non-First Nations children who had been apprehended and who could not be returned to their parents - See paragraphs 75 to 93.

Civil Rights - Topic 5659

Equality and protection of the law - Particular cases - Adoption - [See Civil Rights - Topic 5646 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - (Charter, s. 7) - [See Civil Rights - Topic 1208 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - At issue was the placement of five aboriginal children previously found to be in need of protection - The Department of Community Resources and Employment (DCRE) had adopted a policy which provided that First Nations children would not be placed for adoption without the consent of the child's band and/or the applicable First Nations Child and Family Services Agency - Band consent would not be given if it meant the child would be adopted outside the aboriginal community - There was no one in the aboriginal community willing to adopt the children - The result was that the children were destined to remain in long-term foster care - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the policy breached the children's ss. 7 and 15 Charter rights - The policy was not "prescribed by law" (it was only an internal policy) and thus could not be justified under s. 1 - Alternatively, it could not be justified - See paragraphs 94 to 104.

Guardian and Ward - Topic 815.7

Public trustee or guardian - Appointment - Child in need of protection - Cultural heritage - [See Civil Rights - Topic 1208 and Civil Rights - Topic 5646 ].

Indians, Inuit and Métis - Topic 6031

Particular aboriginal or treaty rights - Respecting children - An Indian band and its Indian Child and Family Service Agency argued that the adoption of an aboriginal child by a non-aboriginal family, without the consent of their band, violated s. 25 of the Charter and s. 35 of the Constitution Act, 1982 - They alleged that aboriginal "notions of community and kinship" were an integral part of aboriginal society - First Nations families and communities shared responsibility for the upbringing, training, education and well-being of their children - As such, the aboriginal right of self-government included the legal right and moral obligation to speak for persons who were under a legal disability, such as children - As this "right" had never been extinguished, the Child and Family Services Act could not impair it by placing aboriginal children for adoption without the band's consent - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the evidence fell far short of establishing the right asserted by the band/Agency - Further, the "right" asserted appeared to be of a general nature and not a defining feature of the culture in question - Alternatively, if such a right did exist, there was no evidence that its existence was "pre-contact" (i.e. arrival of Europeans in North America) - See paragraphs 52 to 61.

Cases Noticed:

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 8].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 9].

Dan v. R. - see R. v. Dick.

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 53].

Four B Manufacturing Ltd. v. United Garment Workers of America, Labour Relations Board (Ont.) and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 53].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 53].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 53].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 55].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 56].

MacKay et al. v. Manitoba (1989), 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 60].

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. 60].

R. v. Steinhauer, [1985] 3 C.N.L.R. 187; 63 A.R. 381 (Q.B.), refd to. [para. 61].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 62].

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. 62].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 62].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 62].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 66].

Child and Family Services of Winnipeg v. M.A. et al. (2002), 165 Man.R.(2d) 279; 2002 MBQB 209, refd to. [para. 68].

Natural Parents v. Superintendent of Child Welfare (B.C.) et al., [1976] 2 S.C.R. 751; 6 N.R. 491, refd to. [para. 73].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 75].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 77].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 86].

Sunday Times v. United Kingdom (1979), 2 E.H.R.R. 245 (Eur. Ct. Hum. Rts.), refd to. [para. 96].

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285, refd to. [para. 97].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 98].

Weatherall v. Canada, [1989] 1 F.C. 18; 86 N.R. 168 (F.C.A.), refd to. [para. 99].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 103].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 105].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 684, 685 [para. 96].

Saskatchewan, Children's Advocate Report, Children and Youth in Care Review: LISTEN to their Voices (April 2000), p. 40 [para. 82].

Counsel:

T.W. Klassen, for Department of Community Resources and Employment;

P.M. Cuelenaere and J.L. Claxton-Viczko, for the mother;

H.A. (father of K.A.), on his own behalf;

V.E. Elliot-Erickson, for NASC Child & Family Services and Sturgeon Lake First Nation;

G.G. Walen, Q.C., for the children;

R.W. MacNab, for the Attorney General of Saskatchewan.

This matter was heard by Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Prince Albert, who released the following decision on December 10, 2004.