Children in crisis.

The Alberta government has recently passed legislation to address the continuing problem of drug abuse by young people. The Protection of Children Abusing Drugs Act, first introduced as a Private Members' Bill by Red Deer--North MLA Mary Anne Jablonski, took effect July 1, 2006. The Act implements several new measures and provides new funding for the Alberta Alcohol and Drug Abuse Commission (AADAC) to address youth drug addictions. While there are already some services in place to support youth in crisis, whether suffering from mental health issues, high risk behaviour such as involvement in prostitution, or alcohol or drug abuse, this is the first legislation in the province, other than in criminal matters, that allows courts to specifically order young people into detox for addictions treatment or services. AADAC has plans to hire additional residential and mobile staff and add 24 beds for detox and treatment, bringing the total number of beds to 68 by March of next year.

How does the Protection of Children Abusing Drugs Act work? From July 1, 2006, under the new legislation, a parent or guardian of a child who is abusing alcohol or drugs can apply to the Provincial Court to have the child placed in a protective safe house for a period of up to five days. During the period of confinement, AADAC will provide detoxification services as well as assessment and counselling to work with parents and youth at risk to develop a voluntary treatment plan to put in place after the child leaves the protective safe house.

How can you access services for your child under the Protection of Children Abusing Drugs Act? Under this legislation, a child is defined as a person under 18 years of age. Drugs include alcohol and substances (other than tobacco) whose use is controlled by law or that is being used in a manner not intended by the manufacturer. A child is considered to be abusing drugs if the child is using the drug--including alcohol--and the use caused or is likely to cause significant psychological or social harm to the child, or physical harm to the child or others. If you are the parent or guardian of a child (as defined by the Child, Youth and Family Enhancement Act) and you suspect or know your child is abusing drugs, then you have the right to apply to the Provincial Court, on notice to AADAC and any other guardian of the child, for an Apprehension and Confinement Order concerning the child.

An Apprehension and Confinement Order may do any of the following:

* authorize the police to apprehend and convey the child to a protective safe house;

* authorize the confinement of the child in a protective safe house for a period of not more than five days;

* authorize the director or head of the safe house to confine the child in accordance with the order;

* authorize AADAC to assess the child and to treat the child for detoxification during the confinement.

In addition, a guardian may apply to the Court for an order authorizing the police to enter, by force if necessary, a place or premises to search for and apprehend a child. The order may be granted if the Court is satisfied that the child may be found in the place or premises.

Once a child has been apprehended and confined to a protective safe house, AADAC must assess the confined child and determine whether there are reasonable grounds to believe that the child is abusing alcohol or drugs. AADAC then has the right to request that the child's guardian appear before the Commission or provide it with access to the child's medical records. In addition, AADAC may treat the child for the effects of detoxification while the child is confined and may, while the child is still confined, assess the child and make recommendations for a treatment program following the release of the child from the protective safe house.

What rights do children have in these cases? First of all, children maintain some right to privacy, since there is an absolute ban on the publication, by any means, of any report of the proceedings which discloses the name of the child or a guardian of the child, or any information serving to identify the child or guardian(s). However, once apprehended and confined, the right to privacy does not extend to the child's medical records since AADAC may request that the child's medical records be produced for use in assessment and treatment during the period of confinement.

What about liberty? Proponents of the new legislation argue that under the circumstances, limits on liberty are both reasonable and justifiable. While their rights to liberty are suspended during the period of apprehension and confinement, and while they do not have to consent to the confinement, assessment, or treatment to which they are subjected, children have the right to a lawyer. They can ask for a review of the Apprehension and Confinement Order and even if the order is upheld on review, the original period of confinement may not be extended by the Court.

In all cases where a child is confined in a protective safe house under the Protection of Children Abusing Drugs Act, the director or head of the protective safe house must "forthwith" give the child a Request for Review Form and inform the child "in writing" of the following:

* the reasons for, and the time period of, the confinement;

* the right to ask the Court to review the Apprehension and Confinement Order;

* the right to contact a lawyer;

* the telephone number for the Legal Aid Society of Alberta.

A review by the Court must then be held within one day of filing the Request for Review. The Court may require the child's parents or guardians to be notified, and after hearing the review, the Court may make an order confirming, varying, or terminating the original Apprehension and Confinement Order. As noted, however, it may not extend the period of confinement set by the original Apprehension and Confinement Order.

And what about evidence? From a rights-based perspective, this is the most dangerous part of the new legislation. In all proceedings under the Act, including an original application and a review hearing, the Court may compel the attendance of any person and require the person to give evidence on oath. It may also exclude any person from all or part of the proceedings, other than a director of a protective safe house, or a lawyer representing the child, or the parent or guardian of the child.

In addition to having the ability to compel the attendance of witnesses, the Court may exercise the powers of a Justice of the Peace under Part XXII of the Criminal Code of Canada to procure such attendance--including subpoenas to attend and warrants for arrest for nonattendance! The Court may also require the production by any person of any documents or things. These provisions are problematic since the Act also permits the Court to issue subpoenas requiring the production of confidential information. It also specifies that the subpoenas may issue to a broad number of potential witnesses, including the entire Alberta Alcohol and Drug Abuse Commission, a director of a protective safe house, a board under the Hospitals Act or the Mental Health Act, or the Chief Medical Officer under the Public Health Act. These individuals, particularly health care providers, face the prospect of being forced to breach their personal oath to maintain patient confidentiality. In addition to facing warrants for arrest if they do not attend the court proceedings, the potential for breaching privilege makes it very difficult for health care providers to maintain the patient's trust in the relationship, including the trust necessary for success in assessment and treatment plans.

In addition, "if the Court considers it proper to do so and is satisfied that no better form of evidence is readily available," the Court may accept evidence by affidavit or it may accept hearsay evidence. The question of what is or is not "better evidence" is left to the discretion of the Court. In addition, affidavit evidence, while sworn under oath, may be problematic since there is no immediate opportunity to cross-examine the deponent, as there would be with direct viva voce, or oral, evidence given during an ordinary court proceeding. Similarly, hearsay evidence presents the added danger of the absence of any ability for the contemporaneous cross-examination of the maker of the original statement in question. Usually, hearsay evidence is not permitted, since it brings into question the truth of the allegations made. Direct, personal evidence is always preferred, since the credibility of the maker of the statements can be assessed at the time of the hearing, offering a measure of protection for the rights of those at risk.

For these reasons, while the success or failure of the legislation remains to be seen, it is encouraging to see the Alberta government provide additional funding and thus expand on opportunities to assist children in crisis. For children who are not otherwise "in the system" via child welfare or youth criminal avenues, and particularly for children whose families lack private resources and private access to treatment options, this may indeed be the lifeline that saves them, even if it does mean balancing the suspension of rights and usual evidentiary rules with the protection of those in crisis.

Michelle C. Christopher is a lawyer with the Youth Criminal Defence Office in Calgary, Alberta.