Child was seized by Winnipeg Child and Family Services one day after birth. The mother claims that the warrantless apprehension of her child in a non-emergency situation one day after birth violated her s. 7 rights. The mother brought a constitutional challenge on grounds that the agency should have to get judicial authorization before taking a child into care.
- When can an agency apprehend without a warrant?
L'Heureux-Dubé, writing for the majority, held that an "emergency" threshold is not the correct threshold to meet for warrantless apprehension. Rather, "apprehension is a measure of last resort in cases where child protection authorities have reasonable and probable grounds to believe child is at risk of serious harm".
To determine when Child Services can intervene without a warrant, there must be a balancing of the seriousness of the interests at stake, the difficulties in distinguishing between emergency and non-emergency situations, and the risks to children in adopting an emergency only approach. Children are highly vulnerable members of society, and the state should not have to wait for serious harm before getting involved. Requiring prior judicial authorization in "non-emergency" situations (assuming they can be distinguished from "emergency" situations) may impede proactive intervention by placing the burden on the state to justify intervention of arguably non-imminent yet serious danger to the child.
The "emergency" threshold is not the appropriate minimum s. 7 threshold for apprehension without prior judicial authorization. Where a statute provides that apprehension may occur without prior judicial authorization in situations of serious harm or risk of serious harm to the child, the statute will not necessarily offend the principles of fundamental justice so long as there is a fair and prompt post-apprehension hearing (re: s. 39 of the Child and Family Services Act).