Statement of Opposition to the Secure Care Act

Introduction

Justice For Girls is a non-profit society that promotes justice and equality for low income and street involved teenage girls.

Justice for Girls is deeply concerned about the recent passage of the Secure Care Act (bill 25). We believe this legislation is discriminatory in terms of age, race, and gender, that it seriously violates basic rights and freedoms under the Charter, contravenes the Infants Act, and unnecessarily extends state powers with very little accountability. Rather than protecting them, we believe that the Secure Care Act further marginalizes young women and increases their vulnerability to violence.

We are alarmed that the NDP would introduce legislation that is more reactionary in its approach to child protection than Alberta's Protection of Children Involved in Prostitution Act which was recently described as "draconian" by the Alberta Supreme court and ruled unconstitutional on a number of grounds.

Looking at the implementation of the Alberta legislation, it is clearly discriminatory in terms of gender (over 99% of youth apprehended were girls). The Secure Care Act violates young women's right to equality before and under the law (Section 15 of the Charter) in that it will almost exclusively be used to detain young women, and especially First Nations girls.

We see the Secure Care Act as a mechanism to further marginalize and institutionalize young women. Rather than addressing poverty, male violence, colonial devastation of First Nations communities, or shamefully inadequate and inappropriate voluntary services for young women, The Secure Care Act instead criminalizes and patholigizes young women. Ironically, young women who have actually committed a crime are entitled to greater protections under the Charter of Rights and Freedoms and Young Offenders Act than those who will be jailed under the Secure Care Act in the name of child protection.

When the equivalent Alberta Act was challenged in court, it revealed that upon release young women were put at serious risk of violence from angry pimps. We believe the Secure Care Act, contrary to its stated intent, will most likely push street involved girls further underground, isolating young women and making it all the more difficult for them to escape sexual exploitation.

The Secure Care Act is clearly the product of backroom political dealing, as evidenced by the lack of consultation with groups most affected by it and the speed at which it moved through the legislative process (10 days). It is an outrage that Aboriginal communities were not consulted and a clear violation of the BC Government's existing agreements with First Nations with regard to child welfare.

Below are the sections of the Secure Care Act that Justice for Girls finds particularly problematic.

Purpose of the Secure Care Act

"The purpose of this Act is to provide, when other less intrusive measures are unavailable or inadequate, a means for assessing and assisting children who have an emotional or behavioural condition that presents a high risk of serious harm or injury to themselves, and are unable or unwilling to take steps to reduce that risk." (Section 2)

In a context where "other less intrusive measures" are both inadequate and unavailable as evidenced by a severe lack of voluntary safe housing and detoxification facilities for young women it is inevitable that numerous young women will be apprehended. We are particularly disappointed that the provincial government would disregard numerous reviews and reports that clearly articulate these service gaps and repeatedly call for safe housing and detox resources, and instead resort to such regressive measures as locking up young women as an "out of sight, out of mind" solution. We argue that the provincial government must respond to racism, poverty and violence against young women by pursuing the perpetrators of violence, and funding safe, voluntary services that specifically address the needs and vulnerabilities of young women. Only then will young women have a genuine opportunity to escape the violence and oppression that they face day-to-day on the street. Locking young women up and then releasing them back into racism, poverty and male violence does nothing to address the real problem of systemic inequality and inadequate social services.

"For the purpose of this Act, an emotional or behavioural condition may be demonstrated by, among other things, severe substance misuse or addiction, or the sexual exploitation of the child." (Section 2)

We find it particularly ironic that within this Act, the BC government focuses on "sexual exploitation", a term that signifies child prostitution as a form of male violence as opposed to "juvenile delinquency," when their response to such abuse is to blame and detain the victim. Indeed, the Secure Care Act turns back the clock and locates the problem of abuse within the victim, describing sexual exploitation as "an emotional or behavioural condition" of the child. If this is the ideological framework from which this Act derives, is it any wonder that it focuses on jailing young women as opposed to prosecuting perpetrators? We argue that the provincial government must address the criminal behaviour of men who abuse girls through the child sex trade by enforcing section 212.4 of the criminal code and prosecuting them for child sexual abuse. We also recommend safe, accessible, VOLUNTARY services for girls and young women to escape violence. We do not have any "girls only" safe houses even though young women on the street have identified co-ed housing as unsafe and thus inaccessible. Sexual exploitation is not a behavioural or emotional condition of a child, it is a crime committed by adult men and should be responded to as such.

We must also address the clause "among other things" in the criteria for emotional and behavioural conditions that would lead to the certification of young women, as it is extremely vague and gives far too much discretion to authorities who already have excessive control over the lives of young women.

Length of Detainment

"A director of secure care may, without a secure care certificate have been issued under section 8, apprehend a child and detain the child in a secure care facility for a period of not more than 72 hours…" (Section 11)

"If within the 72 hour period, an application is made under section 4 for a secure care certificate in respect of the child, the period during which the director of secure care has the authority to detain the child extends until the board issues or refuses to issue the certificate, and the board's decision to issue or refuse to issue the certificate must be made no later than 10 days after the first day of the child's detainment." (Section 11)

"The period of detainment specified by the board in a secure care certificate must be no longer than, in the board's opinion, is necessary for the purpose of assessing and assisting the child, but in any event must not exceed 30 days." (Section 8)

"The board may renew the secure care certificate for not more than 30 days…" (Section 19)

"A secure care certificate may not be renewed more than twice." (Section 19)

When combining the assessment, hearing, and renewal of certificates, young women may be detained for a total of 100 consecutive days. Justice For Girls sees this as an atrocious response to dealing with issues such as poverty, discrimination, sexual exploitation and addiction. Locking up young women for oppression and crimes against them is not only backward, but also discriminatory, cruel, and draconian in nature.

Child's right to represented and to participate in proceedings

"… a child is entitled to be represented by counsel at the hearing." (Section 25)

We thoroughly agree that young women should have the right to counsel at a Secure Care hearing. Given the context however, in which legal aid must turn down numerous cases due to their limited resources, we believe it is unrealistic to think that young women will readily access legal counsel regardless of their right to do so.

"…the board may exclude a child from all or part of a hearing if failure to do so might, in the board's opinion, result in emotional or other harm to the child, having the child present may endanger the safety of other persons, or the child disrupts the hearing to the extent that it cannot continue." (Section 25)

We fear that young women will be excluded form hearings on the basis of extremely subjective criteria. In a matter where a young woman is being detained wrongfully (she has not committed any criminal act) we believe she is likely to be upset and angry, and thus easily deemed "disruptive" during a hearing. Given that her liberty has been removed without having committed a criminal act, she is likely to express a strong sense of injustice about it at her hearing. In the event that young women are dealing with alcohol or drug issues (i.e. withdrawal), they are even more likely to be viewed as disruptive despite their ability to comprehend and participate in the proceedings. Furthermore, if you combine the vulnerable position of young women who have experienced sexual exploitation, homelessness, and addiction with their anxiety and anger about being detained, the hearing process could easily be said to cause emotional harm. Section 25 opens the door to a plethora of excuses to exclude street involved young women from their Secure Care hearing. To exclude young women from a hearing in which their liberty is at stake based on such loosely defined criteria is a gross violation of the most basic principles of due process.

Warrants and such

"A director of Secure care may, without a warrant and by force if necessary, enter any premises or vehicle or board any vessel for the purpose of apprehending and detaining a child …" (Section 11)

The extension of state authority by authorisation of warrantless and forcible entry granted by Section 11 is frightening to say the least. We are deeply concerned about the potential abuse of Police power and Ministry authority especially given the lack of accountability in the rest of this Act.

Health Care Consent

"While a child is detained under this Act, the director of secure care may, in the child's best interests, do one or more of the following: authorize a health care provider to examine the child; consent to health care for the child if it is directly related to the risk that led to the child's detainment…" (Section 16)

In section 2, the two primary areas of risk that would lead to a young woman's detainment are sexual exploitation and drug use. The health care procedures directly related to these areas of concern would undoubtedly involves gynaecological and reproductive health examinations (i.e. rape kit, STD tests, HIV / AIDS tests, pregnancy tests, PAP smears). These tests are highly intrusive, and should only be done with the direct and clear consent of young women. Justice For Girls stands firm that any non-consentual medical examination of young women constitutes sexual assault. Researchers have already identified the overuse of gynaecological examinations of young women in corrections, and define this as a sexist form of institutional violence.

"If a director of secure care authorizes the examination of, or consent to health care for, a child under this section, the examination is deemed to have been done, or health care is deemed to have been provided, with the consent of the child or the child's guardian." (Section 16)

The Secure Care Act clearly authorizes such sexist institutional violence against young women and accepts no accountability for these actions. To simply state that consent is deemed to have been provided when a director authorizes it, regardless of a young woman's decision, is not only a violation of Section 17 of the Infants Act but perpetuates the sexist myth of "implied consent". One needs only to look at section 59 of the Child, Family & Community Services Act to find a model of appropriate process in relation to medical examinations of a child, which is only authorized, in the most extreme circumstances. The provincial government must learn to respect young women when they say "No!"

The Secure Care Board

"On application or its own motion the board may dispense with a requirement of this Act or the regulations that a child or other person be notified, or served with notice if the board is satisfied that it is in the best interest of the child to do so, and the prescribed circumstances exist." (Section 26)

This section gives the Board carte blanche authority to exercise their discretion to throw out requirements of the Act under the broad justification of "best interest of the child". What is the point of having laws if Boards are given the unquestioned authority to dispense with them? We find this an alarming degree of power for any authority to possess especially one that has the power to determine the liberty of young women.

"The board has exclusive jurisdiction to hear any application or other matter under the Secure Care Act, except an application for a warrant to enter private premises. Proceedings of the board must not be challenged, reviewed or called into question by a court, except on the grounds of lack or excess jurisdiction." (Section 22)

How can a court hold a Secure Care Board accountable if it is not subject to any form of judicial review? How can young women seeking recourse in relation to wrongful detainment find justice if they have no way to challenge the Secure Care Board? This section eliminates a young woman's access to procedural fairness and indeed nullifies her options for recourse.

Confidentiality

"A director of secure care may, without the consent of any person, disclose information obtained under this Act if the disclosure is…(a) necessary ensure the safety or well-being of a child, (i) made to a service provider…, (j) made to the director under the Child, Family and Community Service Act…, (k) made to the director of adoption…, (l) made to the parent…" (Section 40)

Justice For Girls is particularly concerned that sensitive information about a young woman, for example her HIV or pregnancy status, might be shared under the broad justification of "best interest of the child". While we appreciate that some extreme circumstances may require limited information sharing in order to intervene on a young woman's behalf, this should only be done under extremely restrictive guidelines. Untethered sharing of sensitive information, especially health-related, could put girls at further risk of harm and may lead to serious privacy violations. We argue that young women's privacy rights, even in the context of child protection, should be respected pursuant to the Infants Act (section 24 (a)) and the Freedom of Information & Protection of Privacy Act.

Liability

"No person is personally liable for anything done or omitted in good faith in the exercise, performance or intended exercise or intended performance of a power, duty or function conferred by or under this Act, or a power, duty or function on behalf of or under the direction of a person on whom the power, duty or function is conferred under this Act." (Section 43)

Once again it must be asked: where is the accountability? Street involved teenage girls often report that they are not well served by child protection agencies and often face negative repercussions and even further violence as a result of social workers acting in "in good faith." Given young women's liberty is at stake under this Act, the Ministry must be held to a very high level of accountability and accept responsibility every step of the way.

Offences and Penalties

"A person commits an offence if the person without lawful excuse impedes or obstructs a director of secure care from apprehending or detaining a child in accordance with this Act, knowingly, during the period a child is authorized under this Act to be detained in a secure care facility, assists, by an act or omission, the child in leaving without the permission of a director of secure care..." (Section 44)

"A person who commits an offence under subsection (1) is liable to a fine of not more than $10,000 or to imprisonment for not more than 6months or to both. (Section 44)

In the context of inadequate voluntary services, most street involved girls fit the criteria to be detained under this Act. Generally, street involved girls are scared and distrustful of social services, and thus it often take many months for service providers to establish a trusting rapport. By forcing frontline services to comply with unconstitutional and discriminatory interventions under threat of fines and/or imprisonment, this legislation will handicap front line service providers by nullifying any safety or trust that has been previously established. Frontline services will be left with the moral dilemma of whether to violate young women's basic constitutional rights in order to uphold the Secure Care Act or face criminalization in order to protect young women's rights. Either way, frontline services must break the law to perform their duties.