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 subsections 48(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 . . . the 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) (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

Windsor File No.: 70/10

ONTARIO COURT OF JUSTICE

BETWEEN:

WINDSOR-ESSEX CHILDREN'S AID SOCIETY, Applicant,

— AND —

A.B. and D.L., Respondents.

Before: Justice Douglas W. Phillips

Heard on: April 18, 2012

Released on: May 2, 2012

Counsel

Mark L. Hurley ......................................................................... counsel for the applicant society

Ruza Ljumovic ............................................................. counsel for the respondent mother, A.B.

Jotan K. Foster .................................................. counsel for the respondent grandmother, D.L.

JUSTICE Douglas W. Phillips

RULING ON VOIR DIRE

[1] During the course of the status review trial, counsel Jotan K. Foster on behalf of the maternal grandmother, the respondent D.L., sought leave of the court to have a witness, namely Paul Adams, qualified to give opinion evidence.

[2] The status review proceeding initiated by the society sought an order of Crown wardship without access to facilitate an adoption placement in respect of a child approximately four years of age.

[3] The child's maternal grandmother, D.L., through counsel sought leave of the court to permit Paul Adams to give opinion evidence in three areas.

[4] Specifically, and of utmost consideration, this individual was offered as an expert witness to give opinion evidence regarding whether a twice convicted child sexual abuse offender, namely K.F., posed a risk of re-offending.

[5] At the same time (at the outset of the voir dire), Ms. Foster introduced into evidence the curriculum vitae of Paul Adams.

[6] At the outset of the voir dire, counsel for the society, namely Mark L. Hurley, indicated that the society was opposed only to the first of three areas for which leave was sought, namely the area where Paul S. Adams (if granted leave) would provide opinion evidence as to the risk status of sexual offenders in relation to potential sexual re-offending.

1: THE APPLICABLE TEST

[7] The leading authority in determining matters of whether leave should be granted to permit opinion evidence is founded within the Supreme Court of Canada decision, The Queen v. Mohan. The court must consider four critical questions before permitting leave to offer opinion evidence as admissible, including:

1. Is the evidence relevant?
2. Is the opinion essential in assessing the trier of fact?
3. Is the evidence prohibitive by any exclusionary rule?
4. Is the expert properly qualified?

[8] Expert evidence may be offered by a person who (on evidence) has been demonstrated that the individual has acquired special or peculiar knowledge through study or experience in respect of the matters about which the individual proposes to testify.

2: DETERMINATION ON RULING WITH RESPECT TO THE MATTER OF LEAVE BEING GRANTED TO PAUL S. ADAMS TO OFFER OPINION EVIDENCE

[9] As determined orally April 18, 2012, the leave sought by counsel on behalf of the respondent maternal grandmother was denied.

3: ANALYSIS AND DISCUSSION

[10] In the curriculum vitae, the witness recites academic credentials. Some have to do with university training.

[11] After he had a Masters Degree in English conferred upon him in 1977, by his own admission, the witness pursued no further education at the university level. The curriculum vitae revealed no publications, or papers that had been the subject of any peer review.

[12] During examination-in-chief, the attention of the witness was drawn again to his own curriculum vitae under the specific heading designed by the witness, namely "Education." This portion of the curriculum vitae recited particulars in respect of "Psychiatric In-service" and membership in the "Ontario Association of Jungian Analysts."

[13] When prompted, and his attention drawn to these portions of his curriculum vitae having to do with education, he described the Psychiatric In-service as ". . . a training and work experience . . ." and that it was more a "practical component to [his] education."

[14] Questions having to do with the reference within the "Education" segment of the curriculum vitae having to do with the Ontario Association of Jungian Analysts provided vague, generalized and unhelpful responses. Frankly, at the end, the court was left without any sense of the role played by this membership in qualifying the witness.

[15] However, the witness did assert that, in consequence of the participation in that training, Paul S. Adams acquired the title of "Psychoanalyst." This is not a position recognized by Ontario statute law.

[16] In the portion of the curriculum vitae offered, entitled "Certification/Associations", there was listed the Ontario Society of Psychotherapists (OSP). Again, at the end of the examination, the court was left without any sense of the role played by this membership in qualifying the witness.

[17] Ontario statute does not currently accord recognition as it applies to psychotherapists.

[18] The witness' curriculum vitae identified him as a psychoanalyst (as well as a member of the Ontario Association of Psychotherapists). At the end of the evidence, the court was left with the impression that any person (with or without credentials, education or training) can "claim" to be a psychoanalyst or psychotherapist.

[19] A portion of the witness' curriculum vitae addressed "Specialized Education and Training". A portion of this section listed a number of identified individuals but it was difficult, if not impossible, to determine what training or the extent of training was received by the witness. The evidence in this respect was, to be blunt, sketchy and therefore of more importance, unhelpful.

[20] Within the same portion of the curriculum vitae, there was further mention dealing with specialized education and training.

[21] On the whole, the examination (during the course of the voir dire) was neither instructive nor helpful.

[22] The witness provided no evidence of actual treatment or assessment of any individual during this "training". The inability of the witness to provide clear, succinct and direct answers in this respect was troubling.

[23] The witness also avoided a complete answer when questioned about actually utilizing "forms of risk assessment in sexual abuse or sexual offenders".

[24] Within the "Specialized Education and Training" portion of the curriculum vitae at page 2, he identified "group dynamics in small and large groups..."

[25] The witness explained that he received certification with a Dr. I. Yalom for, "experiential and technical understanding of group dynamics." However, there was no explanation or detail provided as to the length of time with which the witness worked with Dr. Yalom and what any "certification" entitled the individual to do, if anything. There was no information provided as to the accreditation of Dr. Yalom (whether he was a psychiatrist, psychologist or some other type of doctor).

[26] The academic credentials of the witness, namely the Bachelor of Arts Degree and Masters Degree in English, are removed from the study of psychiatry or psychology. Participation in the Richmond Fellowship, the Ontario Association of Jungian Analysts and the Ontario Society of Psychotherapists are not (based on the evidence adduced) accredited educational institutions recognized by any of the professional colleges governed by the Regulated Health Professions Act.

[27] Individuals engaged in assessment are, by the nature of the task, obliged to ensure continuing education in the proficiencies of skills necessary to perform such duties. There was insufficient information provided in the curriculum vitae of the witness that demonstrated the achievement of this objective. During the course of the examination within the voir dire, the witness was asked about continuing education which was in a fashion a means of maintaining membership in certain programs.

[28] In the circumstances involving a Crown wardship trial, where serious issues of risk are to be determined, reliance on an individual such as that presented by counsel for the respondent maternal grandmother would be irresponsible.

[29] When cross-examined by counsel for the society, the witness would not concede that a psychiatrist or psychologist would be the individual best to make actual clinical assessments of a patient.

[30] During the course of cross-examination by counsel for the society, the witness was asked questions about tests applied by him in assessing risk.

[31] The witness identified three singular tests applied and administered. There was no evidence about the origins of such tests or more importantly their proven reliability.

[32] Mr. Adams acknowledged that, in the administration of the three tests, it involved essentially the assessor asking questions and assigning a numerical value based on answers provided by the subject. As pointed out by society counsel, results could be manipulated were the subject untruthful.

[33] The trust applied by Mr. Adams (upon the subject being assessed or treated) requires truthful admissions and the ability to discern "truth" from fiction. There is nothing to suggest (from the evidence during the course of the voir dire) that this witness has any greater ability to ascertain truth from falsehood (by virtue of his credentials and background) than anyone else.

[34] It bears noting that (in consequence of the evidence later adduced during the course of the trial with K.F.), Mr. Adams was the individual who was providing treatment to the person the subject of the opinion evidence. It is troubling that an individual providing treatment (in this instance to Mr. K.F.), would be providing an assessment on critical issues for determination before the court. Expert assessors should be independent and impartial if not wholly detached from the subject about whom assessment and opinion is offered. An individual providing treatment and assessment places himself in a precarious position. In a worst case scenario, such an assessor who also treats the subject is arguably in a position of conflict where a result is designed to promote the efficacy of a counselling regime.

4: CONCLUSION

[35] Mr. Adams has spent many years serving this community in counselling persons. Having said that, on the evidence, he should not have been offered as an expert in this case. After refusing to grant leave to permit the witness to offer opinion evidence, counsel having called Mr. Adams chose not to have him continue further with any other evidence related to his contact with Mr. K.F.

[36] The ultimate consequence in this trial involves the most intrusive remedy ultimately capable of severing the parent-and-child relationship, i.e., Crown wardship without access.

[37] Accordingly, every appropriate precaution must be taken to ensure that what is admitted into evidence is done so with the highest standards in mind.

[38] The witness has not the ability to diagnose or prognosticate about "risk" related to sexual offenders. Without that basis (that is found in experts within the field, whom have been called upon to give opinion evidence in this court), he is not in a position to offer opinion evidence in relation to "relapse prevention".

[39] Based on the application of tests enunciated in The Queen v. Mohan, supra, the leave sought to admit opinion evidence of the witness must be denied. The individual is not qualified in respect of the areas about which qualification to offer opinion evidence were identified.

Released: May 2, 2012

Douglas W. Phillips Justice