The applicant objected to appearing at a hearing to determine whether his name should be entered on the Child Abuse Register, arguing he was not a compellable witness and the Ministry had not met its disclosure obligations. His application was dismissed, as section 11 of the Charter did not apply to a witness in civil proceeding. Section 7 applied but was not infringed because it was done in accordance with the principles of fundamental justice. Stinchcombe disclosure obligations do not apply to the Crown in such proceedings.

Administrative law – Charter of Rights – Hearings – Compellability of witness – Disclosure – Child abuse registers

Nova Scotia (Minister of Community Services) v. D.J.M., [2002] N.S.J. No. 119, Nova Scotia Supreme Court (Family Division), March 4, 2002, Hood J.

The Ministry of Community Services sought to have the name of D.J.M. placed on the Child Abuse Register, pursuant to the Children and Family Services Act. D.M.J. objected, arguing he was not a compellable witness at the hearing and the Ministry had not met its disclosure obligations to him.

The provisions of the Children and Family Services Act allowing the Ministry to enter the name of a person on the Child Abuse Register is not a quasi-criminal proceeding and therefore section 11(c) of the Charter does not apply. The sections of the Children and Family Services Act do not create an offence nor does the Act set out a quasi-criminal or regulatory scheme. The result of having a person’s name entered in the Child Abuse Register is not a “true penal consequence”, there is no imprisonment, and there is no potential for a fine. The proceedings and Register itself are confidential.

The hearing at which he will be compelled to testify will, even if it deprives him of security of the person by having his name entered in the Child Abuse Register, be held in accordance with the principles of fundamental justice. The interests of the individual not to incriminate himself and the interests of society to have children protected from abusers are balanced by compelling D.J.M. to testify at the hearing while affording him immunity from further use of that testimony. Therefore, while section 7 of the Charter applies, it is not infringed.

The hearing can be done with procedural and substantive fairness, although, in a civil proceeding like this, D.J.M. does not have all the protections available to him that he would have if he were charged with a criminal or regulatory offence.

Finally, the Minister of Community Services is not under the Stinchcombe obligations of disclosure imposed upon the Crown in a criminal proceeding but must comply with the Rules of Civil Procedure and produce those documents that are “necessary for disposing fairly of the proceeding or for saving costs and is not injurious to the public interest”.

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