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
Date: September 29, 2017
Court File No.: C11053/17
Ontario Court of Justice
Parties
Between:
Catholic Children's Aid Society of Toronto
Rachel Buhler, for the Applicant
Applicant
- and -
R.M. and M.C.
Respondents
Renata Kirszbaum, for the Respondent, R.M. Aaron David, for the Respondent, M.C. Beth Purdon-McLellan, on behalf of The Office of the Children's Lawyer, for the children
Heard: September 27, 2017
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] This endorsement deals with the admissibility of urine analysis evidence that the applicant (the society) seeks to introduce about the respondent R.M. (the father) in response to his motion to place his three children in his temporary care and custody in this child protection case.
Part Two - Background
[2] The father and the respondent M.C. (the mother) are the parents of the three children (the children) who are the subject of this protection application. The children are 10, 8 and 6 years old.
[3] The society issued its protection application on June 22, 2017. It sought an order that the children are in need of protection pursuant to clause 37(2)(b) (risk of physical harm) of the Child and Family Services Act (the Act).
[4] On June 27, 2017, Justice Carole Curtis made a temporary order placing the children in the father's care, subject to terms of society supervision. She ordered that the mother's access would be in the society's discretion.
[5] On August 10, 2017, the court varied the temporary order after a temporary care and custody hearing. The children were placed in the temporary care and custody of the society. The parents' access to the children was to be in the society's discretion. For the father, he was to have access a minimum of twice each week, for two hours. The protection concerns identified by the society included the following: inappropriate discipline of the children by the father, inadequate supervision of the children by the father, domestic conflict in the presence of the children between the father and his partner, possible substance abuse by the father and the father's refusal to cooperate with the society.
[6] Three motions were before the court on September 27, 2017. The society moved to place the children in the temporary care and custody of a community member (D.S.). The father moved to have the children placed in his temporary care and custody, or in the alternative, for expanded access. The mother moved for specified supervised access.[1]
[7] On an unopposed basis, the children were placed in the temporary care and custody of D.S. on September 27, 2017, subject to society supervision. On a contested basis, the court ordered that the mother have access with the children a minimum of once each week for 90 minutes, supervised at the society's office - further access to be in the society's discretion.
[8] On consent, at the father's request, his motion to vary the August 10, 2017 order was adjourned until November 16, 2017.
[9] The matter was then held down and the parties entered into a Statement of Agreed Facts. The requisite statutory findings were made about the children pursuant to subsection 47(2) of the Act and the children were found, on consent, to be in need of protection pursuant to clause 37(2)(g) (risk of emotional harm) of the Act.[2] The issue of disposition remains outstanding.
Part Three – Urine Analysis Evidence
[10] In response to the father's motion, the society filed the affidavit of their Family Service Worker, Yogesh Patel.
[11] In his affidavit, Mr. Patel deposed that he spoke to the clinical director (the clinical director) of the Canterbury Clinic in Toronto about a urine screen they conducted on the father. It was reported to Mr. Patel that the urine screen was positive for Ethyl Glucuonide, Benzolyecgonine, THCA and cocaine.
[12] Mr. Patel deposed that he was advised by the clinical director that these results meant that the father had tested positive for alcohol, a by-product of cocaine (indicating that he had used a few days before the test) and marijuana, and that the results were suggestive of the use of these substances.
Part Four – Evidence on Adjournment of a Protection Application
[13] Subsection 51(7) of the Act sets out that the court may rely on evidence that it considers credible and trustworthy when adjourning a protection application. This is the evidentiary standard commonly applied on temporary care and custody motions (and on any motions to change temporary orders) in an originating child protection proceeding.
[14] Subrule 14(19) of the Family Law Rules provides that an affidavit on a motion may contain information that the person learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information is true.
[15] Subrule 33(6) of the Family Law Rules provides that the evidence at a temporary care and custody hearing shall be given by affidavit, unless the court orders otherwise.
[16] This does not mean that "everything goes in" on a temporary motion.
[17] In Children's Aid Society of Toronto v. M.A., Justice Heather Katarynych wrote that cases must be dealt with justly and set out the following to ensure that the process on a temporary care and custody motion is just:
Rule 2(2) of the Family Law Rules requires that dealing with a case justly includes ensuring that the procedure is fair to all parties.
It is admissible evidence in writing that can be filed, not just any evidence.
Rule 14(18) of the Family Law Rules requires that the affidavit should contain as much personal knowledge as possible. If from a third party, the source must be identified.
Past parenting evidence must be relevant. Issues of relevance, probative value and admissibility are still alive.
The affidavit material should set out at the beginning of the affidavit, the reasons for the intervention, why less disruptive steps were not taken, and what has been learned in the investigation to date. The parent's entire life should not be on parade.
There should be a respect for the rules of evidence. Supposition, conjecture, speculation, innuendo, gossip, unqualified opinion, where qualified opinion is required have no place in an affidavit.
Exhibits shouldn't be used as a substitute for proper evidence.
The affidavits should be proportionate. Factual inferences can be drawn from the evidence only if the facts alleged to support the inference are established by the evidence.
[18] In Children's Aid Society of Algoma v. H.P., 2011 ONCJ 679, Justice John Kukurin wrote that the evidentiary standard in subsection 51(7) of the Act should be more rigorously applied the longer a case is before a court. Justice Kukurin writes at paragraph 15:
….In many cases, it is extremely difficult, if not impossible, to have evidence that meets a more conventional standard before the court in such a short time. When combined with the requirement on the court to make some kind of temporary care and custody order on each date that the child protection case is before the court, there is some logic to legislating a reduced evidentiary standard, at least to apply in the early stages of a case.
[19] Child protection cases must be brought before the court within 5 days of a child's apprehension.[3] It is often necessary for society workers to advise the court about information they have learned from third parties, such as the police, doctors, teachers and community members at this stage, as there is inadequate time to obtain direct affidavits from these persons. A relaxed evidentiary standard is required at this preliminary stage to ensure that children are protected while the investigation continues. However, the longer the case goes on, the more important it becomes for the society to produce direct evidence from these third parties.
[20] Direct evidence from witnesses is likely to be more reliable, as it is not being interpreted by a third person. Witnesses are also likely to be much more careful about, and accurate with their evidence if they know it will be in a court affidavit and they may be cross-examined about it. When courts are dealing with the protection of children and the intrusion of the state into a family's life, it is imperative that they be able to make decisions based on the most reliable evidence that can be presented.
Part Five – Discussion About the Urine Analysis Evidence
[21] This brings the court to the evidence about the father's urine analysis.
[22] The society is relying on scientific evidence to establish a protection concern of substance abuse by the father.
[23] The Motherisk Hair Analysis Independent Review (Toronto: December 17, 2015, by the Honourable Susan Lang) (the Lang report) noted that Children's Aid Societies, counsel and judges relied for many years on hair-strand test results for alcohol and drug use from the Motherisk Laboratory.[4] This laboratory operated at the Hospital for Sick Children in Toronto and conducted thousands of hair-strand tests that were used in child protection matters. The Lang report explains how the Motherisk Laboratory was a clinical laboratory and not a forensic laboratory and did not meet internationally recognized forensic standards for its testing.[5] The report concluded that the laboratory lacked expertise in the interpretation of the purported test results, which it frequently misinterpreted or over interpreted.
[24] The Lang report set out in detail multiple flaws and deficiencies in Motherisk's procedures, administrative processes, staff training and staff oversight. It concluded that the hair-strand testing conducted at the Motherisk Laboratory was inadequate and unreliable for use in child protection and criminal proceedings.[6] The report expressed concern about how this unreliable evidence was relied upon in these cases.
[25] The Lang report reiterates the message set out in the "Inquiry into Paediatric Forensic Pathology in Ontario" (Toronto: Queen's Printer for Ontario, 2008) (the Goudge report) that judges have a vital role to play in protecting the legal system from the dangers of unreliable expert evidence. Both reports urge judges to act as gatekeepers by taking a more rigorous approach to examining the reliability of expert evidence.
[26] It follows that judges should be vigilant gatekeepers at all stages of a protection case – not just at the trial stage. A preliminary finding of drug or alcohol abuse against a parent at this stage is likely to follow that parent throughout the entire protection case. It has the potential to significantly impact the direction of the case. It is critical that any such finding be based on reliable evidence.
[27] The evidence of the urine analysis of the father, as presented by the society, does not meet the threshold of being credible and trustworthy evidence for the following reasons:
a) The society did not provide direct evidence from the clinical director.
b) The requirements when a witness attests to evidence learned from someone else, set out in subrule 14(19) of the Family Law Rules, were not complied with by the Family Service Worker.
c) No evidence was led about whether the clinical director is an expert in this area.
d) A curriculum vitae from the clinical director was not produced.
e) No evidence was led about the reliability of urine tests.
f) There was inadequate explanation about possible limitations of urine testing and analysis.
g) There was no discussion about possible alternative explanations for the test result.
[28] Before admitting the urine test result and its analysis, the court, in exercising its gatekeeper role, needs to hear evidence about whether urine testing is reliable evidence about what it purports to prove. It will also require evidence that the testing done in this case complied with the generally accepted professional standards and quality assurance processes in this field.
[29] The court advised the parties that a voir dire will be required to determine the admissibility of the urine analysis evidence if the society still wishes to rely upon it on the return of the motion. The court also said that it would provide the parties in this endorsement with some guidance as to what evidence would assist it in determining this admissibility issue. This guidance follows in paragraphs 30 and 31 below.
[30] The society should call the clinical director as a witness at the voir dire and he will be subject to cross-examination. His curriculum vitae should be provided in advance. If the urine analysis evidence is admitted, his evidence on the voir dire will also be considered on the motion.
[31] It would assist the court if it received the following evidence at the voir dire:[7]
a) Whether the clinical director is qualified as an expert in this field. The process and criteria to determine his expertise set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, should be followed.[8]
b) What laboratory actually conducted the urine testing and measured or interpreted the results.
c) Whether that laboratory is a forensic or clinical laboratory.
d) What the qualifications are of the persons conducting the testing and measuring or interpreting of the test results.
e) Whether urine testing is generally accepted as reliable evidence of drug and alcohol use.
f) Whether there are additional tests or markers that are used to verify the reliability or integrity of a sample in a forensic setting.
g) Whether there are meaningful peer review, professional standards and quality assurance processes for urine testing. In particular, are there generally accepted standards about chain of custody of a sample and the time frames for each step in the process to be completed? Are subjects providing a sample fully monitored?
h) Whether there is a serious dispute or uncertainty about the science and, if so, what they are.
i) What the limitations are in the testing or situations where they may be considered less reliable.
j) What is the generally accepted error rate of such testing?
k) Whether the professional standards and quality assurance processes were followed in this case to protect the reliability and integrity of the sample.
l) The step by step process followed in this case in conducting and interpreting the testing and ensuring its accuracy should be described.
m) A full explanation of what the test scores mean and a discussion of other possible interpretations of the test results should be provided.
n) To what extent can the results be reliably interpreted to determine if they reflected recreational use of substances or more significant impairment?
[32] The court, in structuring this process, is not stating that oral evidence will always be required when a party seeks to introduce urine test results at a temporary stage of a protection application. If the court makes a finding that this scientific evidence is credible and trustworthy, it may be that similar evidence can be introduced by affidavit in the future in other cases, provided that the affidavit includes the information set out above that is relevant to that case.
[33] However, this court has not previously ruled on the admissibility of urine analysis evidence at a temporary stage of a protection application and is not prepared to find that it is credible and trustworthy evidence without knowing much more about it. The court finds that oral evidence is required in this case on the issue of admissibility, pursuant to subrule 33(6) of the Family Law Rules, to ensure that the process is just and that it makes this important temporary decision based on reliable evidence.
[34] The motion is returnable on November 16, 2017 at 2 p.m. The society is to confirm by Form 14C, at least five days before the motion, if it will be relying upon urine analysis evidence.
Released: September 29, 2017
Justice S.B. Sherr
Footnotes
[1] All three motions were motions to vary the August 10, 2017 order, brought pursuant to subsection 51(6) of the Act.
[2] The urine analysis evidence was not relied upon to make this protection finding.
[3] See subsection 46(1) of the Act.
[4] The Lang report also acknowledged that the hair-strand test results were usually just one piece of evidence relied upon in making child protection decisions.
[5] A forensic laboratory will conduct testing with the purpose of it being used in a legal proceeding and will have far more rigorous standards than a clinical laboratory because of that purpose.
[6] Children's Aid Societies have stopped relying on hair-strand testing since the release of this report.
[7] Many of these are suggested questions set out in the Goudge report.
[8] The Supreme Court of Canada set out the following in White Burgess:
The inquiry for determining the admissibility of expert opinion evidence is divided into two steps. At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four factors set out in R. v. Mohan, [1994] 2 S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). Evidence that does not meet these threshold requirements should be excluded. At the second discretionary gatekeeping step, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.
Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. The acid test is whether the expert's opinion would not change regardless of which party retained him or her. These concepts, of course, must be applied to the realities of adversary litigation.
Concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework. A proposed expert witness who is unable or unwilling to fulfill his or her duty to the court is not properly qualified to perform the role of an expert. If the expert witness does not meet this threshold admissibility requirement, his or her evidence should not be admitted. Once this threshold is met, however, remaining concerns about an expert witness's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.
Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. Absent challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. However, if a party opposing admissibility shows that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty, the proponent of the evidence has the burden of establishing its admissibility. Exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.
The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert's interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.