N.B. court fixes legislative mistake that may have invalidated youth protection law

New Brunswick's top court has ruled that a legislative gap in the province's child protection laws did not exist. 

New Brunswick’s top court has ruled that a legislative gap in the province’s child protection laws did not exist.

The issue arises out of a drafting error that caused child protection provisions in the old Family Services Act to be repealed, before the new Child and Youth Wellbeing Act was in place.

That created a six-week legal void where there was no legislative basis for court orders made in child protective cases.

According to an affidavit filed by the attorney general’s office with the Court of Appeal, on Jan. 12 a civil servant discovered that a drafting error had caused the Family Services Act to be prematurely repealed, leaving a 43-day gap where judges had no legal authority to issue supervisory orders, custody orders or guardianship orders. Once the mistake was discovered the government rushed to prepare the regulations for the new Child and Youth Well-Being Act, allowing it to be proclaimed on Jan. 26.

The province sent a reference question to the Court of Appeal, asking if the old law was considered to be in place over those 43 days — effectively covering the gap. If not, the province wanted to know if the court could use an obscure common law legal principle to make it so.

The answer to both questions is ‘Yes,’ according to the court’s unanimous opinion delivered Monday afternoon by Chief Justice Marc Richard.

The court ruled that since it was a drafting error that led to the legal void and not the legislature’s intention, the court could read into the old law that it was only repealed when the new act was proclaimed.

He said that “it is simply inconceivable that the legislative assembly of New Brunswick intended to create a legislative void,” and that the court had to correct the legislation in order to avoid injustice, chaos and absurdity.