2023: Child protection social worker's warrantless entry into home unlawful: Ontario Court of Appeal
2023: Land v. Dryden Police Services Board, 2023 ONCA 207
Child protection worker’s warrantless entry into home deemed unlawful — Ontario Court of Appeal
Ontario Court of Appeal has ruled that a child protection worker’s warrantless entry into a home was unlawful because there was no proof of a subjective belief that there would be a substantial risk to the child. The decision in Land v. Dryden Police Services Board, 2023 ONCA 207 sets an important limit on the use of extraordinary powers under child protection legislation.
π CONSENT TO INTERCEPTION – CANADA
Documenting the facts is not a crime...
Broadly speaking, Canadians can legally record their own conversations with other people, but not other peoples' conversations that they are not involved in.
Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part. [1993, c.40, s.2.]
The Criminal Code, R.S.C. 1985, c. C-46 imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other people's conversations that they are not involved in.
Other legislation in Canada protects various privacy rights, but does not prevent Canadians from recording their own conversations with others. π www.legaltree.ca/node/908 – Recording conversations in Canada
π The Dryden case: warrantless entry & child protection powers
In Land v. Dryden Police Services Board, 2023 ONCA 207, Dryden police officers responded to information that Stephanie Henry appeared to be under the influence of alcohol when she picked up her seven-year-old daughter from school. When the officers went to Henry’s home to check on the child, Henry and her partner, Jonathan Land, refused to allow the officers to enter. The officers then contacted the local children’s aid society, Anishinaabe Abinoojii Family Services.
Society worker Danielle Gardner arrived at the scene. She requested the police officers to enter the home with her because she "had concerns for her safety and the safety of the child." However, when the officers attempted to accompany Gardner, Land tried to close the door, so one of the officers put his foot in the door and forced it open.
Land and Henry filed a suit for damages, claiming that Gardner and the police officers’ entry into their home was unlawful. The motion judge concluded no genuine issue required a trial and dismissed the action against all respondents. Land and Henry elevated the matter to the Ontario Court of Appeal, which ultimately ruled in their favor.
⚖️ Authority to enter without a warrant?
The appeal court noted that the CFSA authorizes a child protection worker to enter a place without a warrant, use force if needed, search for and take a child, and request help from the police if necessary. However, the court emphasized two conditions that must first be satisfied — the child protection worker must have believed on "reasonable and probable grounds that a child is in need of protection and that there would be a substantial risk to the child's health or safety during the time necessary to obtain a warrant."
The motion judge found that Gardner had a subjective belief that the child "may have been" in need of protection on the day of the incident. However, the appeal court said that Gardner gave no specific evidence addressing whether she believed that the child met the statutory criterion of being a child in need of protection when she entered the residence. Her only evidence for that statutory criterion was that no adult caregiver was present in the home after the police arrested the appellants. Consequently, the appeal court found that the trial judge's finding on this criterion was not based on a proper evidentiary foundation.
The appeal court stressed that to act without a warrant, a child protection worker must believe on reasonable and probable grounds that a child "is in need of protection." The motion judge described Gardner's state of mind as believing that the child "may be in need of protection" — which falls short of the statutory threshold.
Moreover, the motion judge made no finding concerning the requirement that the worker must believe on reasonable and probable grounds that there would be a substantial risk to the child's health or safety during the time necessary to obtain a warrant. Gardner did not give any evidence that she subjectively believed there would be a substantial risk.
Accordingly, the court concluded that the motion judge's finding that Gardner's entry was lawful under the CFSA could not stand. The court emphasized that the extraordinary powers under the CFSA are exceptional and must be strictly followed and enforced. The court set aside the summary judgment dismissing the claims for negligence, false arrest, false imprisonment, assault and battery, trespass, and invasion of privacy and the claims under s.7 and s.9 of the Charter, which must proceed to trial.
πΉ Video of similar incident (2016, Smiths Falls Police)
π₯ Watch: Smiths Falls police – warrantless entry / child protection context (YouTube)
❓ WHAT ARE REASONABLE GROUNDS?
In Ontario, Canada, reasonable grounds is a legal standard that requires a belief to be based on more than a feeling or suspicion. It's a standard that's used in criminal law, such as when the police make an arrest or conduct a search.
According to the Ontario Association of Children's Aid Societies (OACAS)
It is not necessary to be certain that a child is or may be in need of protection to make a report to a children’s aid society. “Reasonable grounds” refers to the information that an average person, using normal and honest judgment, would need in order to decide to report. (and who decides who is and who isn't an average person using normal and honest judgment in a "child protection" setting, a judge or a child poaching funding predator?)
This standard has been recognized by courts in Ontario as establishing a lower corporate friendly threshold for reporting. The role of the Children’s Aid Societies is to investigate calls made by the public using a professional and standardized process that throws away standard legal definitions and avoids judicial oversight.
The person making the report should bring forward their concerns and child protection social worker will determine if there is a sufficient legal basis to warrant further assessment of the concerns about the child.
Research indicates that many professionals overreport families based on stereotypes around racial identities to which Child Protection Social Workers bear absolutely no responsibility for in anyway.
Both Indigenous and African-Canadian children and youth are overrepresented in child welfare due to systemic racism. Stereotypes around poverty can also lead to overreporting. While poverty is a risk factor for children and youth, it is not a cause of child maltreatment.
π OACAS – Duty to report (reasonable grounds guidelines)
π Core holdings – Land v. Dryden Police Services Board, 2023 ONCA 207
- Warrantless entry standards: The Child, Youth and Family Services Act (formerly CFSA) allows warrantless entry only when a worker has reasonable and probable grounds to believe a child is in immediate need of protection and that substantial risk would arise during warrant‑procurement time.
- "Concerns" insufficient: Simply having "concerns" for safety is not enough; the worker must demonstrate a subjective belief that a child is in danger during the time it would take to obtain a warrant.
- Legal action proceeds: The Court of Appeal allowed the plaintiffs' (Land and Henry) claims against the Dryden Police for negligence, false imprisonment, and Charter breaches (ss. 7 and 9) to proceed to trial.
- Limitation period: The court upheld the dismissal of claims against the Anishinaabe Abinoojii Family Services defendants due to the expiration of the limitation period.
- Costs decision: An earlier dismissal of the appeal for abandonment was reconsidered, and in 2023 ONCA 329, the court set aside a significant cost award of $25,000 against the appellants.
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π° Law Times News: Child protection worker's warrantless entry into home unlawful, Ontario Court of Appeal
