WILL A JUDGE RULE CHILD REMOVAL IS UNREASONABLE?

Roadside Check

Now we have something to discuss. What did B.C.’s tough drinking laws and the Ministry’s removal of Ayn Van Dyk from her father have in common? I understand these are not identical issues, not nearly. There are however, commonalities which beg some serious questions. I believe it is a commendable objective to rid our roads of drunk drivers. I also believe that it is laudable to protect children and ensure their security. I sympathize with everyone who has been injured or grieved by someone’s decision to drive while drunk. I am saddened by every incident of parental rage or addiction or neglect that has caused damage or death to a child.

Furthermore, I can understand the complaint of a driver who although unimpaired, has nonetheless failed a roadside screening test and without any opportunity for appealing or countering the judgment, has been tried and sentenced on the road where he was stopped. And believe me, I comprehend the resentment of parents who for reasons that cannot withstand cross examination nevertheless have a child removed from them, with no opportunity to explain, to defend, or to contest this action turned allegation and conviction.


Since September 2010 if a driver blew in the warning range of 0.05-0.08 per cent blood alcohol at the side of the road, police were empowered to decide consequences on the spot. Police can immediately seize the driver’s vehicle, suspend the driver’s license and cause the driver to incur thousands of dollars in costs. Yesterday, B.C. Supreme Court Justice J.S. Sigurdson ruled that part of the province's tough drinking and driving laws is unconstitutional. While upholding the bulk of the legislation Sigurdson ruled that B.C.’s law was unconstitutional, that it contravened the Charter of Rights and Freedoms, when a driver who is screened and found to fail a breathalyzer test by blowing above 0.08 per cent, is immediately subject to imposed criminal-like consequences with no opportunity to challenge the decision. "I conclude that this is a significant issue in terms of the reasonableness of the law," he said. 

Yet just as the judge questioned the reasonableness of the roadside law, I insist that B.C.’s judiciary will have to conclude that it is also an unreasonable law that empowers child protection personnel without reliable evidence of neglect or abuse, to remove a child from a parent’s custody into a strange environment. The perverseness of this power used as it was with Ayn Van Dyk is amplified by the knowledge that Ayn is autistic and an autistic child is capable of a surplus of extraordinary activities, and taking a leave of absence is one of them. To deduce that a childhood wandering that is common to all children, not only autistic children, is reason enough to view Derek as a negligent or overwhelmed parent in need of intervention by taking his child away, is unreasonable, foolish, absurd and unfounded.

Perhaps someone or some people are going to have to take this all the way to the Supreme Court.

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