Case information

Status of persons — Child protection — Encroachment upon child’s rights — Limited human, material and financial resources — Circumstances in which s. 39 of Charter of human rights and freedoms can apply to state, and normative content of that section — Analytical framework applicable to analysis of encroachment upon rights that impose obligation of means on Directrice de la protection de la jeunesse — Youth Protection Act, CQLR, c. P 34.1, s. 91.

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Between September 2022 and November 2022, the Directrice de la protection de la jeunesse du CIUSSS A accepted five reports concerning a child with regard to a situation of psychological ill treatment and physical abuse on the part of the mother and a third party. At the fifth report, given the urgency of the situation, immediate protective measures were applied. The child was then placed in a foster family. During the protection hearing, counsel for the child filed an application for a declaration of encroachment upon rights with the court. The Directrice de la protection de la jeunesse du CIUSSS A opposed it and sought to demonstrate what explained the delays.

The Court of Québec judge found that the 59 day delay between the first report and the taking in charge was clearly unreasonable and that the rights of the child to receive adequate services in a timely manner and diligently to ensure their protection and put an end to the situation in which their security or development was in danger had been encroached upon. The Superior Court dismissed the appeal given that the trial judge’s findings were correct. It added that the delays in the processing of the files were not relevant to the encroachment upon rights issue. The Court of Appeal dismissed the appeal and found that the Superior Court had not committed a reviewable error. The insufficiency of resources was not relevant in determining whether there was an encroachment. Limitations on resources can explain a delay, but they cannot justify unreasonable delays that encroach upon the rights of children.