The court said the tribunal's orders must directly impact the child who has been referred to it
A Quebec tribunal that oversees youth matters can order corrective measures to stop the violation of a child’s rights in certain circumstances, but it can only order preventative measures if that same child is at risk of having their rights violated again, the Supreme Court of Canada ruled in a unanimous decision Friday.
The legislative history of the Youth Protection Act confirms that the tribunal is authorized to “deal with the situation of only one child at a time,” Chief Justice Richard Wagner wrote for the court.
He added, “There is nothing to suggest that the legislature intended to authorize the tribunal to order corrective measures that would apply to children whose situations have not been referred to it but who may find themselves in the same situation of encroachment as the child before it.”
However, the court added that broad measures meant to protect a specific child can indirectly safeguard others.
The case revolves around a minor who entered a rehabilitation centre for youth with adjustment issues in 2018 following an order by a tribunal, the Youth Division of the Court of Quebec. At the rehabilitation centre, the minor was treated in various units and was isolated and restrained at various points. Her parents filed a complaint with the tribunal, alleging her rights were repeatedly violated.
The tribunal found that the minor’s rights had been breached in four situations and concluded that corrective measures were necessary. The tribunal ordered the rehabilitation centre to train its youth workers, educators, and intervention officers who worked in the individualized treatment units and to provide the units with access to mental health professionals. The tribunal also ordered the rehabilitation centre to create a policy outlining what the centre should do when a child spits during an intervention and to update the walls of its isolation rooms so they prevent injury.
The rehabilitation centre’s director challenged the four orders, arguing that the tribunal had no authority to impose them. The Superior Court of Quebec partially allowed the appeal, agreeing with the centre that the orders exceeded the tribunal’s authority because they applied to other children, not just the minor behind the complaint. The court narrowed the orders so they specifically applied to the minor.
The minor, her parents, and a government agency, the Commission des droits de la personne et des droits de la jeunesse, appealed the ruling. The Court of Appeal of Quebec upheld the lower court’s findings but amended two of the orders to direct them towards the rehabilitation centre’s director of youth protection rather than the centre itself. The appellants filed another appeal.
The appeal raises the following question: What is the scope of the corrective powers that the legislature intended to confer on the tribunal in s. 91 para. 4 of the YPA? More specifically, did the legislature intend that the tribunal only be able to order corrective measures to prevent the recurrence of a situation of encroachment for the child whose rights were encroached upon, or did it intend that the tribunal also be able to order corrective measures to prevent the same situation of encroachment from occurring for any other child who might be faced with it?
Writing for the court, Wagner allowed the appeal in part. The main issues the court sought to address include the scope of authority that the legislature intended to give the tribunal under the Youth Protection Act. The court also aimed to answer whether the legislature only authorized the tribunal to order corrective measures concerning a child whose rights had been violated or whether it could also order measures that applied to other children who might face the same issue.
Wagner concluded that the legislature intended to give the tribunal “the corrective powers needed to ensure the fullest protection of the interests and rights of the child before it.” This means the tribunal can order corrective measures to stop the ongoing violation of a child’s rights, remedy the resulting consequences, and prevent the situation from occurring again for the child.
Wagner said there were limits to this authority. The tribunal can order corrective measures only if a child whose rights have been violated is at risk of having their rights breached again. The tribunal can order “any corrective measure” to stop such breaches, provided the measure is related to protecting the child’s rights and interests.
The justice said it is possible for a broad corrective measure to relate to the child’s interests directly and “have the advantage of protecting the interests and rights of many other children in an indirect and incidental manner.” However, he added that the Youth Protection Act only empowered the tribunal to mete out “individualized and particularized justice based on the interests and rights of the particular child whose situation has been referred to it.”
The Youth Protection Act does not “grant the tribunal the power to order corrective measures ‘that transcend the case before it,’” Wagner added.
Stéphane Pouliot, a partner at Pringle & Associés who represented the parents, told Canadian Lawyer on Friday that the case "establishes the applicable criteria for the violation of rights in youth protection.
"The Supreme Court of Canada establishes that the budgetary implications of a corrective measure are not a criterion provided for in the Youth Protection Act and, consequently, it is not a factor to be taken into account," Pouliot said. "The Supreme Court emphasizes that the addition of this criterion would 'only add an additional barrier to access to justice in the youth protection system, a situation that would go against the protection of the interests and rights of vulnerable children and their families.'"
In a statement Friday, Vibert Jack, litigation director for one of the intervenors in the case, the BC Civil Liberties Association, said, “Today, the Supreme Court of Canada recognized what should be commonsense: systemic problems require systemic solutions. When institutions regularly violate people’s rights, individuals, particularly vulnerable youth, shouldn’t have to fight the same battles over and over again.
"We’re relieved that the Court today agreed," Jack added. "While the BCCLA would have liked to see fewer limits on available remedies to access justice, we are optimistic that this decision will lead to a more fruitful landscape to create systemic change through public interest litigation."
Counsel for the other parties and the Commission des droits de la personne et des droits de la jeunesse did not immediately respond to requests for comment.
Editor's Note: This story has been updated with comments from Pouliot and the BC Civil Liberties Association.
