New Brunswick’s top court has ruled that a legislative gap in the province’s child protection laws did not exist.
The issue arises out of a drafting error that caused child protection provisions in the old Family Services Act to be repealed, before the new Child and Youth Wellbeing Act was in place.
That created a six-week legal void where there was no legislative basis for court orders made in child protective cases.
According to an affidavit filed by the attorney general’s office with the Court of Appeal, on Jan. 12 a civil servant discovered that a drafting error had caused the Family Services Act to be prematurely repealed, leaving a 43-day gap where judges had no legal authority to issue supervisory orders, custody orders or guardianship orders. Once the mistake was discovered the government rushed to prepare the regulations for the new Child and Youth Well-Being Act, allowing it to be proclaimed on Jan. 26.
The province sent a reference question to the Court of Appeal, asking if the old law was considered to be in place over those 43 days — effectively covering the gap. If not, the province wanted to know if the court could use an obscure common law legal principle to make it so.
The answer to both questions is ‘Yes,’ according to the court’s unanimous opinion delivered Monday afternoon by Chief Justice Marc Richard.
The court ruled that since it was a drafting error that led to the legal void and not the legislature’s intention, the court could read into the old law that it was only repealed when the new act was proclaimed.
He said that “it is simply inconceivable that the legislative assembly of New Brunswick intended to create a legislative void,” and that the court had to correct the legislation in order to avoid injustice, chaos and absurdity.
“It is simply inconceivable to us that the intention of the legislature could be thwarted by a drafting error,” Richard said.
The court also ruled that should here have been a gap, the court would have been able to exercise its parens patriae jurisdiction, where the court steps in to protect those who cannot protect themselves in order to preserve the authority of those acting under the repealed Family Services Act.
Richard said that without intervention, the gap could have had disastrous consequences.
“A literal interpretation of the situation is that as of Dec. 13, New Brunswick no longer had a child protection regime,” Richard said.
The ruling means that either way, the court is able to ensure that all child protection orders made during the six week gap remain valid. There were 80 new files opened covering 129 children in that time.
A statement from New Brunswick’s attorney general Ted Flemming sent out on Monday afternoon thanked the court and said the province would take time to review the opinion.
“The Office of the Attorney General thanks the Court of Appeal for its expeditious hearing of our reference questions on this important matter,” the statement reads.
“Its excellent questions to counsel during the hearing and its timely opinion is appreciated.”