A new bill before the Nova Scotia Legislature is making changes to the way publication bans guard the identity of a child in the care of the province — keeping them in place even if that child dies.
Some observers are concerned the change will limit scrutiny on the child protection system and could prevent parents from speaking publicly about their children if they die in care.
The minister responsible says the change is about protecting privacy even after a child’s death.
“Even in situations of deep tragedy, their story is not for public consumption,” Opportunities and Social Development Minister Barbara Adams told the legislature when she introduced Bill 201 on Feb. 26.
The amendments would likely change the way media organizations can report on incidents such as a recent case in Yarmouth where a mother pleaded guilty to manslaughter in the death of her 17-month-old son.
The child was in foster care and was returned to his mother weeks before he died. Experts in the child welfare field said the case shed important light on the functioning of the child welfare system.
Adams told reporters Monday the ban on a deceased child’s identity is meant to protect the rights of that child, which she said should continue after death. She added the ban is also meant to protect the child’s family.
“A publication ban is just one of the other tools [for protection], and this is just simply a housekeeping bill to ensure that the publication ban that is already in place also includes social media,” she said.
When asked if she had concerns the ban would change the scrutiny on cases like the Yarmouth death, Adams said she’s confident the review process for such incidents is robust.
Privacy rights after death
Michael Karanicolas, an associate professor at Dalhousie University’s Schulich School of Law, said there’s a general understanding that while the right to privacy can in some situations persist after a person dies, “it is significantly diminished, weakened by the death of the subject.”
Karanicolas acknowledged health information can remain confidential after death, and that the privacy rights of family members could be affected by disclosure.
However, he said there can also be good reasons to disclose in cases where systems like law enforcement or child protection have failed to protect vulnerable people.
The bill gives the minister of opportunities and social development the discretion to lift the ban if necessary for the “administration of justice,” but Karanicolas thinks this places the discretion in the wrong place.
“Generally speaking, I think judges are best positioned to make these kinds of assessments,” he said.
Karanicolas noted there have been cases where families want to speak publicly on behalf of a deceased loved one.
“Any time you’re advocating in favour of any kind of legislative change, it’s helpful to put a name and a face behind it — a person that maybe could have been helped,” he said.
No other legislation in Canada explicitly says a child in care cannot be identified after death. This has in some cases allowed parents to speak out for change, such as a recent case where a Nunavut mother sued the territory after her daughter died in a group home.
‘I remembered the sound of my own voice’
Some in the public want to know more about why the province is changing the publication bans.
Elizabeth McCarthy, a presenter during a committee hearing Monday, asked for more information about how the bans will work out of a concern that survivors of domestic violence could be “silenced.”
The writers of the legislation were not present to answer questions.
The committee received some letters with questions related to the publication bans, including one from Carrie Smith, who identified herself as a survivor of sexual assault and said she had many concerns about the bans.
“I think the public understands that families sometimes choose not to share the details in things like obituaries for privacy concerns,” she wrote.
“However, what if those stories and publications could create the awareness needed to prevent more loss of life? How do we face new family and friends of victims knowing that we could have prevented the same outcome? Prevention should and must be a consideration.”
Smith said in her letter that she had been under a publication ban for six years and it felt like “extortion.”
“It wasn’t until the ban was lifted that I remembered the sound of my own voice,” she wrote.
Media submissions
The committee also received submissions from lawyer David Hutt of the Halifax firm Burchell Wickwire Bryson, who made a submission jointly on behalf of the Canadian Media Lawyers Association and the CBC.
The CBC legal department participated in drafting the submission.
In an email to CBC News, media lawyer Nancy Rubin of Stewart McKelvey also raised concerns about how the bill moves discretion to lift the ban from the courts to a minister responsible for the child welfare system.
“Our concerns about it are transparency and accountability when a child passes away in care,” Hutt said in an interview Tuesday.
“It seems to be more valuable to the adults in the child’s life than it is to the child, after the child is passed away. What it’s doing is protecting the adults because it bans any information that would lead to the identity of the child.”
The bill leaves lifting the ban to the “opinion of the minister,” if it’s in the child’s interests or in the interest of justice.
“It’s strange to me that we would put this discretion in the minister with no obvious way to challenge it or to expose the reasoning or ask the minister to explain the reasoning for a decision to or not to remove the ban,” Hutt said.
He said the way the current legislation is written already covers social media, and he’s concerned the way the bill is written would prevent families from grieving publicly.
“I don’t like the idea that a ban on the child’s life and identity kind of erases the child after they’ve passed away,” he said. “This is a child who’s obviously gone through some form of tragedy in almost every case when a child passes away in care.”
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