WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45 (7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: C54917/11

Date: 2013-09-30

Ontario Court of Justice

Toronto North Family Court

Parties and Counsel

In the Matter of an Amended Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of R.D., born on […], 2009, and P.D., born on […], 2010.

Between:

Children's Aid Society of Toronto (Applicant)

Margarida M. Pacheco, for the Applicant

- and -

D.S. and C.B. (Respondents)

Daniel L. Etoh, for the Respondent, D.S. Avi Baratz, for the Respondent, C.B.

Heard: September 27, 2013

Justice: S.B. Sherr

Evidentiary Ruling

Part One – Introduction

[1] This is an evidentiary ruling during this child protection trial on the admissibility of a letter dated July 26, 2011 sent from the Children's Aid Society of the Districts of Sudbury and Manitoulin (Sudbury society) to the Children's Aid Society of Toronto (the society). This letter purports to provide a summary of the Sudbury society's involvement with the respondent C.B. (the father) and his parents when the father was a child.

[2] The society seeks to admit this letter pursuant to clause 50 (1) (b) of the Child and Family Services Act (the Act) and introduce it for the truth of its contents.

[3] The respondents are the parents of the two children before the court: R.D., born on […], 2009, and P.D., born on […], 2010 (the children). D.S. (the mother) has not attended at this trial. The father opposes the admission of the letter.

Part Two - Background

[4] The society has brought an amended protection application seeking a finding that the children are in need of protection pursuant to sub-clauses 37 (2) (b) (i) and (ii) of the Act. The society seeks a disposition order that the children be made crown wards, without access, for the purpose of adoption.

[5] The children have been in the care of the society since July 13, 2011.

[6] The father has put forward a plan that the children be returned to his care. His mother (the paternal grandmother) is an integral part of his plan.

[7] The society has led evidence setting out several protection concerns about the father, including concerns about his parenting, his alleged history of domestic violence with the mother and alleged neglect of the children. A major protection concern of the society is that the father was convicted in 2002 of two different instances of sexual interference of minor girls.

[8] The trial began on September 25, 2013.

Part Three – The Letter

[9] The letter sought to be introduced by the society is dated 13 days after the children came into their care. The letter sets out that it is being provided by the Sudbury society for the purpose of a child protection investigation.

[10] The letter sets out the dates of openings and closings of the involvement of the Sudbury society with the father's parents and the father, as a child. These date back to 1985 and end in 1999. The letter also sets out the dates of court orders that were made.

[11] The letter sets out incidents concerning the father's parents that raised child protection concerns during this time. It also contained observations and conclusions by the Sudbury society about the parenting ability of the father's parents and the father's development.

[12] The society did not attempt to introduce the letter as a business record pursuant to section 35 of the Ontario Evidence Act. This letter wouldn't have met the requirements of section 35 as it wasn't prepared contemporaneously with the events described within.

Part Four – The Society's Position

[13] The society seeks to introduce the letter as a written statement or report under clause 50 (1) (b) of the Act. Subsection 50 (1) of the Act reads as follows:

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[14] The society argues that the letter is relevant as it goes to the ability of the paternal grandmother to protect children from harm and her own parenting abilities. They argue that these are crucial considerations given the father's history of convictions for sexual offences. In this case, the society submits that the paternal grandmother was aware of the protection concerns about the parents and failed to protect the children. They submit that the letter shows that this has been a historical concern about her.

[15] The society submits that the contents of the letter are reliable as the Sudbury society workers had a duty to accurately report information. They submit that the evidence is necessary as it would unduly delay the trial to call witnesses to testify about this historical period.

[16] Lastly, the society submits that the father is not unduly prejudiced by the admission of the letter, since the paternal grandmother is available to testify about its contents.

Part Five – The Father's Position

[17] The father argues that the letter is not a written statement or report envisioned by clause 50 (1) (b) of the Act; that it is a document prepared in anticipation of litigation.

[18] The father argues that it would be unduly prejudicial to his client to admit the letter as it contains multiple hearsay and opinion evidence, the sources of the information are unclear and he is unable to cross-examine anyone about its contents.

Part Six – The Law

[19] I rely on my review of case law about the applicability of subsection 50 (1) of the Act in paragraphs 6-14 of Children's Aid Society of Toronto v. L.L., 2010 ONCJ 48 as follows:

[6] In determining relevance, the court must determine whether the evidence is not only logically relevant, but pragmatically relevant. The probative value of the evidence must outweigh any prejudice to its introduction. See The Queen v. A.K. and N.K..

[7] For evidence to be relevant, it must be reliable; otherwise it has no value. The "business record" exception creates a test that ensures a certain degree of reliability for first-hand hearsay. However, this does not preclude the opposing party from leading evidence to show that the evidence is in fact so fundamentally unreliable that it would be prejudicial to admit it.

[8] At this stage, the society's only required to establish threshold reliability. Ultimate reliability is decided after all of the evidence goes in. In the case of The Queen v. Khelawon, 2006 SCC 57, the court said in paragraph [93]:

[…] the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers. In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility -- it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.

[9] This caution is particularly relevant in this case. At this point I have only heard the opening statements and the evidence of the detective. This does not mean, however, that the court should abdicate its role as the gatekeeper of evidence. The Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008) (the "Goudge Report"), released on 1 October 2008, states that judges have a vital role to play in protecting the legal system from the dangers of unreliable evidence. Although his report dealt with the dangers of unreliable expert evidence, the commentary in Commissioner Stephen T. Goudge's report applies to the dangers of admitting unreliable evidence of any nature.

[10] Subsection 50(1) of the Child and Family Services Act appears on its face to permit a lower evidentiary standard with respect to past parenting and child protection cases. There are two lines of cases interpreting how wide this exception is. One line of cases will admit mostly anything under this subsection and attach the appropriate weight to it. See Children's Aid Society of Niagara Region v. D.P. and S.B.; Children's Aid Society of London and Middlesex v. R.H., D.B. and M.V.; and Children's Aid Society of Waterloo Region v. Stephanie Jacqueline Margaret F..

[11] The most recent case adopting this flexible approach is from the Ontario Divisional Court in Catholic Children's Aid Society of Hamilton v. C.R. and A.R..

[12] There is a second line of cases that interpret subsection 50(1) more restrictively and requires a legal standard closer to the principled approach (establishing necessity and reliability). See Children's Aid Society of Algoma v. Lisa H., Henry J. and Timothy C. (No. 1); and Children's Aid Society of London and Middlesex v. B.B. and J.B..

[13] Justice Jones in the case of Catholic Children's Aid Society of Toronto v. Jean L. and Willard R. (No. 3), supra, adopted this more restrictive approach and indicated that, at a minimum, the evidence must meet a test of threshold reliability. In paragraph [40] of her decision she posed the following questions in determining what historical documents should be admitted:

(1) What is the nature of the evidence? Given the circumstances in which the evidence was created, are there any guarantees or significant indicia of reliability?

(2) What is the purpose for which the evidence is being tendered? To prove current state of affairs or historical backdrop?

(3) What is the importance of the evidence to the issue to be decided? That is, does it go to the very issue to be decided as is the case when a child's sexual abuse statements are being tendered through third party witnesses? In that case, the test in The Queen v. Khan, would be used.

(4) What limits could be placed on the evidence that would have the effect of buttressing reliability? For example, limiting the admission to first-hand hearsay and discounting second and third-hand hearsay and disregarding opinions.

(5) How extensively were the records used in cross-examination and to what effect?

(6) What effect would the refusal to admit the evidence have on the trial proceedings? Here multiple witnesses would be required to cover the period from 1991 to 1997. Although relevant, would this be a good use of scarce trial time?

[14] In Catholic Children's Aid Society of Toronto v. Jean L. and Willard R. (No. 3), supra, Justice Jones admitted the records under subsection 50(1), but gave no weight to risk assessment reports or the recorded comments or opinions of third parties, unless the comments or the opinions were confirmed by the parents or by other admissible evidence. This is an approach that appears to be more consistent with the themes set out in the "Goudge Report" and one that I have adopted in assessing the admissibility of the documents for past parenting. I note that the wording of subsection 50(1) of the Child and Family Services Act is permissive. It makes sense to me that the threshold reliability of documents must be achieved before a court should exercise its discretion to admit the documents.

Part Seven – Analysis

[20] Clause 50 (1) (a) of the Act states that the court may consider the conduct of any person who may care for the children. This applies to the paternal grandmother, as she is an integral part of the father's plan.

[21] Clause 50 (1) (b) of the Act allows the court to consider any oral or written statement that it considers relevant to the proceeding. It goes on to provide a non-exhaustive list of examples, such as an exhibit, transcript, finding or reasons for decision in a previous case. A letter prepared for investigative purposes in a child protection case currently before the court is not on that list. That does not preclude its admission.

[22] Reliable evidence about the ability of the paternal grandmother to protect the children is relevant as is reliable evidence about her historical ability to protect children.

[23] When a family has a long history of child protection openings and closings, it is often preferable for the society to provide a summary of these events. This is usually relevant evidence, as a backdrop to consider the more recent protection concerns. There are often multiple persons who have dealt with the family over a long time span. It would be unrealistic to obtain affidavit evidence from each of them, so many years after their involvement. It would also be unfair to bombard the parents with voluminous historical records from the society. Further, this evidence is recorded by society workers, who have a duty to record the information contemporaneously, and it is likely more reliable than the evidence that could be obtained from those witnesses today (see my comments in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646).

[24] It is the method in which the society chooses to introduce this evidence in this case that is problematic. They are attempting to admit the letter under clause 50 (1) (b) of the Act - essentially as a replacement for sworn evidence that is capable of cross-examination. Clause 50 (1) (b) is an exception to the hearsay rule that permits the admission of relevant historical documents that are inherently reliable. It needs to be carefully applied – otherwise a critical decision about children could be made on unreliable evidence. This clause isn't intended as a vehicle to admit letters of this nature[1] as a substitute for sworn evidence and cross-examination, particularly where sworn evidence is readily available. The necessity test has not been met.

[25] The preferred practice in introducing evidence summarizing historical child protection involvement is to file an affidavit by a society worker who has reviewed the complete file. Ideally, the affidavit should restrict itself to summarizing society file openings and closings, court events and protection concerns.[2] It should be restricted to first-hand hearsay. This would be admissible evidence under clause 50 (1) (a) of the Act. Evidence presented in this form is capable of cross-examination and the underlying documentation can be produced, if required.

[26] The court has the additional following concerns about the admission of this letter:

(a) The letter states that the Sudbury society has extensive records that are contained in many forms and frequently intertwined in many different files. Accordingly, it could not guarantee that all information in its record is included. It is unknown if additional information would provide clarification of the stated protection concerns. Additional information could cause greater concern or perhaps provide explanations that would alleviate the concerns.

(b) The letter contains opinion evidence about the father's functioning and the parenting ability of his parents. The source of these opinions is not identified and there is no evidentiary foundation that the persons giving these opinions have the requisite expertise to give them (in submissions, the society agreed that these portions of the letter should be excluded).

(c) The sources of information in the letter are not identified. This is particularly important when the letter refers to specific incidents. It is extremely difficult for the father and the paternal grandmother to fairly respond to these allegations. The historical nature of the incidents just exacerbates this problem.

(d) The letter is rife with multiple hearsay. This evidence would not be admissible even if it was in the form of a sworn affidavit.

[27] If evidence is unreliable, then it is not relevant. The dangers of this letter outweigh any probative value of its admission. I find that threshold reliability has not been met as there are too many evidentiary flaws in the letter.

[28] Nothing precludes the society from using the information in the letter when they cross-examine the paternal grandmother, or from calling further evidence if the information is contradicted by her.

Part Eight – Order

[29] The society's request to admit the letter from the Sudbury society dated July 26, 2011 is denied.

Dated: September 30, 2013

Justice S.B. Sherr

Footnotes

[1] A historical summary of events prepared by one society at the request of another society related to the case before the court.

[2] If the society wishes to introduce prior findings of fact or admissions, it has the ability to introduce statements of agreed facts, transcripts, court orders and endorsements, transcripts, and possibly medical, therapeutic and police records pursuant to clause 50 (1) (b) of the Act.