4/23 Gathering Evidence -Sec26(1)(2)(4)

Gathering Evidence:

Section 26(1)
“Upon the ex parte application of an agency” . . . “the court may grant an order directing that person or organization to produce the records or documents for inspection by the agency” . . .“where the court is satisfied that”
(a) there are reasonable and probable grounds to believe that a person or organization has possession, custody or control of records or documents containing information necessary for the agency to determine whether a child is in need of protection services AND
(b) that person or organization has refused or is unwilling to permit the production and inspection of those records or documents”

Section 26(2)
“where an agency has been refused access to a child or entry to premises where a child resides or is located, the agency may apply ex parte to the court and, where the court is satisfied that there are reasonable and probable grounds to believe that the child may be in need of protective services and that it is necessary to” . . . “determine whether the child is in need of protective services, the court may grant an order authorizing an agent named therein to do anything referred to in clauses (a) to (e) as the court considers necessary to so determine.”
(a) enter specified premises;
(b) conduct a physical examination of the child;
(c) interview the child;
(d) search specified premises and take possession of anything that there are reasonable and probable grounds to believe will afford evidence that a child is in need of protective services;
(e) remove the child and attend with the child for a medical examination of, or interview, the child on such reasonable terms and conditions as the court may order, including the presence of a parent or guardian or, in their absence, some other suitable adult person”

THEN
Section 26(4) states: “hearing in respect of an application made pursuant to this Section [26] shall be held in camera” (in private)

Comments and Recommendations:

• It is interesting to note that, according to Section 26 (1)(2), to get evidence, Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services needs to get a court order BUT TO TAKE A CHILD, according to Section 33(1) and Section 34(3) , Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services does NOT need a warrant or a court order!

• Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services gets around the need for a court order in 26(2) (b)(c) and (e) by first apprehending the child according to Section 33(1). Then, when this is done, the possibility of a parent, guardian, or other person being present, allowed under section 26(2)(e), is eradicated. In this circumstance the child is alone, scared and easily manipulated. There is nothing specified in the Act giving the child legal counsel at this time. In this country, we don’t allow adult’s to be hauled off for such interviews without legal counsel!

• Because of grave concerns about the court system, such hearing should never be allowed “in camera”.