Statement of Opposition to the Proposed
Safe Care Legislation

Introduction

In July of 2000 the BC legislature passed a draconian piece of legislation called the Secure Care Act (Bill 25) which allowed for the forced detainment of youth who were considered "high risk". Risk was widely defined as emotional and behavioural concerns that could lead a child to serious harm, and included severe substance misuse or addiction and sexual exploitation. Bill 25 was severely criticized by the community, including by many First Nations groups who saw the bill as a violation of human rights. It replicated for many First Nations groups and individuals the paternalistic and racist abuse of the residential school system. A number of community groups objected to the Secure Care Act, including First Nations organizations (such as United Native Nations, and Urban Native Youth Association), youth rights organizations (such as Vancouver Youth Voices, Save the Children Canada) and Justice for Girls. Bill 25 the Secure Care Act was never proclaimed and has never been used.

The current BC Liberal provincial government plans to repeal Secure Care Act and replace it with the Safe Care Act. The Ministry of Children and Family Development (MCFD) is planning to introduce Safe Care legislation in the spring of 2005. Christy Clarke, Minister of MCFD, has said the provincial government will spend 20 million dollars over three years to implement the proposed Safe Care Act.

Although the proposed changes in the Safe Care Act address some of the accountability and human rights concerns voiced by the community over the Secure Care Act, the effect of the Safe Care Act will be the same: the forced detention of teenage girls, without charges for any crime, in order to try to protect them from sexual exploitation. Similar legislation operating in Alberta has shown that it is primarily teenage girls (99%) who are detained under 'safe care' type legislation. Through racist oppression and colonization, First Nations girls find themselves overrepresented in situations of extreme poverty, drug addiction and sexual exploitation, and as a result First Nations girls and young women will be the principal targets of Safe Care.

In their Safe Care Discussion Paper, MCFD makes reference to the Protection of Children Involved in Prostitution Act (PChIP) in force in Alberta. According to the paper, Alberta stakeholders have noted the following as positive outcomes of PChIP: increased exposure and awareness of the issue of child sexual exploitation, decreased availability of children for predators, directing or referring children into appropriate resources, and keeping children safe. Firstly, there are many ways of educating the public about the issue of child sexual exploitation, and it is absurd to argue that it is necessary or appropriate to detain victims to raise the public's awareness of their victim hood. Secondly, rather than detaining teenage girls who are sexually exploited, policy makers and law enforcers must instead increase their efforts to remove predators. Thirdly, one hardly needs to confine a young woman to offer her a referral since referral to appropriate resources is well within the means of voluntary and outreach services. Lastly, in order for teenage girls to be truly safe from sexual exploitation there need to be voluntary programs that address the issues of addiction, poverty, violence, colonialism and oppressive discrimination that these young women face daily.

Changes from the old Secure Care Act

The Secure Care Act broadly defined at risk youth as being those who's "emotional or behavioural condition… presents a high risk of serious harm or injury to themselves… (who) are unable or unwilling to take steps to reduce that risk." Such emotional and behavioural conditions included "severe substance misuse or addiction" or "the sexual exploitation of the child." Justice for Girls adamantly states that sexual exploitation can not be constructed as a behavioural or emotional condition of a child. It is a crime committed by adults, overwhelmingly male, and should be responded to as such. While the Secure Care Act broadly targeted and defined youth "at risk" the Safe Care Act is more specifically oriented toward youth who are or are "likely to be" sexually exploited.

While under the Secure Care Act the Secure Care Board would have heard applications for detainment, under Safe Care the Provincial Court of BC will hear applications for detainment within 24 hours of a young woman's apprehension.

Unlike Secure Care, young women will have the right to legal counsel at Safe Care hearings, but as discrimination allowing for involuntary detention will be entrenched in the legislation, it is unclear what arguments lawyers will be able to make. What we hope to see, if this legislation is passed, is that lawyers take the opportunity to challenge the very legislation as a violation of human rights under the Canadian Charter of Rights and Freedoms. The concern remains that teenage girls may not get legal representation because of drastic funding cuts to legal aid under the current provincial government.

Under the Secure Care Act girls could be detained for up to 100 days at a time while under Safe Care girls can be detained for 30 days. However there is no limit on the number of times that a young woman can be detained for up to 30 days.

In an effort to comply with the Infant's Act the government of BC has said it will include the right of young women to consent or refuse medical treatment in the Safe Care Act. This right was explicitly denied under Secure Care. However, MCFD still plans to allow involuntary medical and psychological assessments of teenage girls.

The Safe Care Act will be subject to the provisions of the Freedom of Information and Protection of Privacy Act, while the Secure Care Act was exempt. MCFD assures that youth detained under the Safe Care Act will have the same rights youth have under the Child, Family and Community Services Act, so long as the youth is not deemed a safety risk. We wonder who will make that risk assessment, and what guidelines they will use. Considering the entire Safe Care Act is specific to children and youth who are deemed to be a danger to themselves, and that young women and girls held against their will may be angry and resistant, it seems clear that risk assessments will be easily biased in favour of further limiting girl's rights while detained.

Lastly, while the Secure Care Act applied to youth under 19 years of age, MCFD is suggesting that Safe Care will target youth under 18, with the final age still to be determined.

Justice for Girls objects to the proposed Safe Care legislation for the following reasons:

Safe Care is a violation of young women's rights under the Canadian Charter of Rights and Freedoms. In particular, this proposed legislation is a violation of Section 15 of the Charter which says that people are equal before and under the law and have the right to the equal benefit of the law without discrimination based on race, color, sex, and age (as well as other factors). We know this legislation will affect primarily teenage girls, and First Nations girls in particular. Rather than addressing poverty, male violence and colonial devastation of First Nations communities, Safe Care works to further marginalize and pathologize young women through forced confinement, forced assessment and treatment agendas developed in an environment of fear and desperation. Safe Care creates a social environment where young women will be further isolated from services as they try to avoid detention. After detention and upon their return to the street, they may also be at serious risk of retaliatory violence from angry pimps and drug dealers.

The Ministry for Children & Family Development claims that Safe Care will only be used when youth are unwilling or unable to access voluntary services, and that voluntary and mandated services will be created to support the Safe Care legislation. They make that claim in an era of cumulative and severe cut backs to already scarce programming for high risk youth, particularly girls. Voluntary programs and housing options specific to young women and girls, in particular those who are sexually exploited, have been woefully insufficient and inadequate in British Columbia for years. Recent cuts to services only exacerbate what was already a desperate situation. Since March 2004, 3 alternative school programs for high risk youth were cut, 8 out of 9 youth outreach workers in the Downtown Eastside were cut, a previously reduced team of support workers was completely cut, 9 Safe house beds for children aged 13-15 were closed, and at least two youth social worker positions in the downtown area were cut. There are still only 10 youth detox beds in Vancouver and drug treatment is often inaccessible due to prohibitively long waitlists. Areas outside of the Lower Mainland have always struggled against having even fewer services. The 20 million dollars Christy Clarke has earmarked for Safe Care would be far better spent replacing and expanding the voluntary services MCFD has recently taken away.

Rather than detaining sexually exploited young women, there needs to be a greater focus and determination toward charging, convicting and containing pimps and johns under Section 212 of the Criminal Code. Excuses that such charges are hard to lay, and hard to prosecute have to do with a lack of political will rather than actuality. Provincial Court Judge Craig (R. vs. Takahashi, 2000) stated in his reasons for judgement on a 212.4 case that he hoped the government would put its' "money where its mouth is" when it came to efforts to criminalize men who buy sex from girls. Section 212, particularly 212.4 is an under utilized mechanism for criminalizing and penalizing predators of teenage girls.

Forced confinement doesn't work! There is no evidence that forcibly removing young women, confining them for a period of time and coercing them to form a treatment plan reduces the risk to youth outside of the time they spend in confinement. Time in confinement can work to increase risk of self harm as young women feel anger, depression and panic at their lack of control. The Secure Care Working Group (1998) did a literature review that showed that confinement actually worked to increase substance abuse, homelessness and isolation in youth. Enough research has been done about substance abuse that we know forced treatment doesn't work. In an effort to avoid being targeted for containment, girls are very likely to avoid services that they might have accessed voluntarily, such as social workers, outreach services or drug and alcohol services. Further, under the Young Offenders Act and even currently under the Youth Criminal Justice Act, girls have been jailed for breaches as a way of trying to "protect" them from sexual exploitation and drug addiction. There is no evidence that such efforts have succeeded in girls achieving freedom from the street or substance abuse.