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CHILD PROTECTION - Protective agencies - Child in need of protection - Practice and procedure - Courts - Statutory authority - Discovery - Production and inspection of documents

Tuesday, October 24, 2017 @ 8:35 AM  


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Appeal by Child and Family All Nations Coordinated Response Network (ANCR), a child protection agency, from the dismissal of its application for an order compelling the respondent telecommunications company, Shaw Communications Inc. (Shaw), to provide customer information associated with an internet protocol (IP) address. The ANCR was informed by the police about a 2012 Skype chat between a Winnipeg user thought to be a child, and a foreign convicted sex offender. The agency wished to identify the Winnipeg user in order to determine whether there was a child in need of protection or services. The respondent advised that it would not provide the requested information without a court order. The agency therefore applied for an order to compel the respondent to provide the information. Specifically, the ANCR filed a notice of application for an order compelling Shaw to produce the subscriber's associated subscriber name, address and contact telephone numbers. ANCR sought production of the information linked to the 2015 IP address used to change the Skype account's password in May 2015, not information linked to the IP address that was used during the 2012 Skype chat with the sex offender. The application was dismissed, as the application judge concluded that she did not have jurisdiction to make such an order either under the Child and Family Services Act (CFS Act), the Queen’s Bench Rules or the Court’s inherent parens patriae jurisdiction. The agency appealed, arguing that the judge erred in finding that there was no jurisdiction to order the disclosure of documents and information, and in finding that the evidentiary foundation was not sufficient to make the order.

HELD: Appeal dismissed. Although the application judge erred in finding that she had no jurisdiction to make the order, it was not appropriate to order the production of the customer information associated with the IP address. The CFS Act and its regulations give ANCR the jurisdiction to require that Shaw furnish the information and produce the records and papers directly to it. Although, the CFS Act did not contain specific enforcement provisions that the agency could utilize in circumstances where production was refused by a third party, the agency could request relief from the Court by way of a finding of contempt or an injunction. However, such relief was not requested by the agency in the lower court or on appeal and it was not appropriate for the Court to grant that relief in the absence of relevant evidence and submissions. It was also not appropriate for the Court to exercise its discretion to grant the agency a declaration determining its rights based upon the interpretation of the CFS Act and regulations. While the agency was mandated to investigate a matter upon receiving information that caused it to suspect that a child was in need of protection, the duty to investigate upon suspicion could not be unlimited. The powers granted by section 4(2)(b.1) of the CFS Act were subject to the Canadian Charter of Rights and Freedoms (Charter) and were to be exercised in a Charter-compliant manner. The evidence in this case was severely lacking in several respects. There was no evidence before the application judge on the utility of releasing the subscriber information linked to the 2015 IP address to the subscriber information directly connected to the 2012 Skype chat in question. In particular, she indicated that no evidence was provided to her as to whether Shaw could connect Skype user names to specific customers. Further, the IP address connected to the Skype chat that gave rise to the concerns that a child might be in need of protection differed from the one specified in the application. In addition, information from foreign law enforcement officials indicated that the Skype account in question was created in May of 2012 from a third IP address; and while there were two password changes in May 2015, neither occurred on the date of use specified in ANCR's application. There were also significant doubts as to whether there was a child in need of protection or whether there was a still a child involved in the case, as there was no evidence that the person involved in the chat was a child.

Child and Family All Nations Coordinated Response Network v. Shaw Communications Inc., [2017] M.J. No. 260, Manitoba Court of Appeal, F.M. Steel, H.C. Beard and M.M. Monnin JJ.A., September 26, 2017. Digest No. TLD-October232017003