Court File and Parties

Date: December 12, 2018

File Number: 4860 999 17 100892-00

THE ONTARIO COURT OF JUSTICE

IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990

Her Majesty the Queen

v.

Aleheh Babashaverdi

Reasons for Judgment

DELIVERED ORALLY BY HER WORSHIP JUSTICE OF THE PEACE C. SHONIKER

on December 12, 2018,

at 60 Queen Street West, Old City Hall, TORONTO, Ontario

Charges

Charges under the Child Care and Early Years Act x 2

Appearances

Mr. C. Costain – Ministry of Education Prosecutor

Ms. A. Babashaverdi – The Defendant – in person

Wednesday, December 12, 2018

Reasons for Judgment

SHONIKER, J.P. (Orally):

This is the Judgment hearing for the Court's ruling in regard to the matter of Babashaverdi.

Re Alleged Offence of Contravention of the Act Concerning Number of Children in Care

Ms. Babashaverdi, Aleheh Babashaverdi, also known by the name of Maria, was charged under the Child Care and Early Years Act, hereinafter referred to by this Court as "the Act". Ms. Babashaverdi was alleged to have breached the provisions of the Act, more specifically the legislative provisions related to the allowable number of children at her home child care. Simply put, it was alleged by the Ministry that Ms. Babashaverdi had more than five children in her home child care on the subject date indicated on the Information, on or about January 26th, 2017, thereby in contravention to the provision of the Act and its regulations.

Re Determination of the Allowable Number of Children

The Act sets out the number of children allowable in a home care non-licensed situation. But the Court recognizes that the "allowable" number may sometimes be less than obvious, when various factors and exceptions might apply on any given day altering the "allowable" number as indicated by the Act and its regulatory provisions. In other words, there are variables which can possibly factor into the determination of the allowable number of children, including the ages of the children in care. Therefore, even if the "allowable" number is exceeded by the home childcare provider, the Act still allows for exceptions to the rules. Another example, if the home childcare provider's own children, who "regularly attend school" but are off sick and at home, the child care provider may still be considered to be acting within the rules of the Act.

Re Various Types or Categories of Child Home Care

The Act further becomes somewhat complicated by the different rules which apply even to different types of home childcare situations. For example, there is a difference of one child if the home child care provider is an unlicensed versus a licensed home childcare provider, and something still different again if the home child care provider is acting under an outside licensed umbrella agency.

Re Alleged Offence of Obstruction of the Inspectors in the Reasonable Exercise of Their Duty

Ms. Babashaverdi was further charged with having obstructed the Ministry inspectors, Mr. Nadarajah Kathirganathan and Ms. Beckley, by allegedly having prevented the completion of an inspection at her home and childcare location on January 24th, 2017. That is the second count on the Information against Ms. Babashaverdi before the Court.

More specifically, it is alleged that when the inspectors, the male inspector and the female co-inspector, came to Ms. Babashaverdi's home unannounced and without any notice to her, on the date of January 24th, they finished their inspection of the entirety of the childcare area but did not see inside a bathroom washroom area to complete their inspection.

Re Events of January 24th, 2017 and January 26th, 2017

On their arrival, Ms. Babashaverdi had allowed them into her home. The Inspectors, Kathirganathan and Beckley, entered through the main front door of the house, into the main floor and kitchen area initially. After some conversation, the Inspectors then demanded that she show them that area of her home used for her childcare business. After she showed the two inspectors all the basement area of the childcare space but for the washroom, Ms. Babashaverdi allegedly obstructed the inspectors' opportunity to see that washroom area.

At the time of the inspection, this washroom or bathroom was being occupied by the young adult daughter of Ms. Babashaverdi, who had gone into the downstairs childcare area initially to watch the children. That young lady was only watching the children because the inspectors were occupying Ms. Babashaverdi's time and attention away from them.

Ms. Babashaverdi had been upstairs answering the inspectors' questions before the male Inspector's demand or request to be shown the basement childcare area. The young adult daughter's involvement was merely to assist with the unexpected situation. She was not normally involved in the childcare activity with her mother's business. By having gone into the basement to watch the children, it seemed to this Court that the young adult daughter was helping her mother and the children, but indirectly also helping the Inspectors carry on their conversations and business with her mother.

Re Trial Proceedings

The trial of this matter started in July 2017. Thereafter, there was a number of trial dates. The Court was presented with evidence by Civil Crown Counsel, Mr. Costain, representing the Ministry of Education, in charge of this legislation. Evidence and testimony were also presented by Ms. Babashaverdi, who represented herself. She is not legally trained but has a background in education, teaching as well as childcare.

The Ministry Prosecution called a number of witnesses over the course of the trial, including Inspector Mr. Eric Chu, then the two Inspectors who made first contact with Ms. Babashaverdi on January 24th, 2017, Nadarajah Kathirganathan and Yemisi Beckley. Crown later called the Enforcement Officers, Raquel Jerabi, as well as Colm Doyle, who the Court was led to understand was something of a supervisor or team lead.

Ministry Counsel also presented exhibits into evidence through his witnesses, including the photos taken by Mr. Kathirganathan on the search warrant day of January 26th, 2017, this being the second day after the initial contact and inspection with Ms. Babashaverdi on January 24th, 2017. Other exhibits presented included the business card that Ms. Babashaverdi had provided to Inspector Kathirganathan and Ms. Beckley on their visit to her home January 24th. As can be seen by this exhibit, it was spelled out in clear print on her business card, received by them on this first visit, that her childcare service offered both full-day, half-day care, as well as after-school care for young children. It was also indicated on her business card that she was formally educated and had over 15 years of specialized Montessori school training and teaching.

Ms. Babashaverdi called upon her husband to testify, as well as testifying herself. By background, the Court heard that her husband is a chemical engineer. He testified that he was not part of the childcare operation with his wife. He offered evidence regarding his knowledge of the accounting and income from his wife's childcare business, as reflected on income tax returns for wife and family, as well as the reflection of income of his own. His evidence was consistent with his wife having had the allowable number of children in her childcare programming units. This gentleman also answered questions about what he observed the Police and the Ministry personnel do inside and outside of his home when the Ministry executed their search warrant on January 26th, 2017.

Ms. Babashaverdi also presented exhibits to the Court as evidence, which exhibits included but were not limited to her certificates for Red Cross and CPR training, certificate for food preparation and handling, educational information regarding her past educational degree, subsequent certification as a specialized Montessori teacher, award certificates and plaques, particularly in recognition of her teaching at the Northview Montessori Private School.

She also presented, as exhibits, banking and financial information, income tax return for 2017 regarding her income, inclusive of her childcare business, as well as photos of the inside area of her childcare. These photos showed shelving with educational manipulatives, games, books, seating area, the inside play area. She also presented, as part of that same exhibit, photos of a large back yard of the detached home - which her family rents in what was indicated to have been the area of North York, perhaps Yonge and Sheppard - showing an outside play area with children's climbing and riding-type toys.

After the testimony and evidence from the Crown and Defense, the Court gave opportunity to the Ministry to call any evidence in reply and none was called.

Re Submissions and Legal Argument of the Ministry of Education

In a nutshell, Ministry Counsel, Mr. Costain, made the argument that Ms. Babashaverdi had one or likely two more children than she should have had in her care. Most particularly, on the date of January 26th, the same date when the search warrant was executed. But, arguably, the suggestion was also that she had possibly one more than the allowable number of children on January 24th, although that was somewhat unclear to this Court.

Counsel submitted that the Act required her to have no more than a maximum of five children in her childcare at any given time, and Counsel submitted that the evidence suggested that she had seven children, six or seven children, for an unspecified period of time during the execution of the warrant at her home on January 26th.

Ministry witnesses, particularly the male and female inspector, indicated that on the first day they came to Ms. Babashaverdi's home. They arrived without any advance notice of any kind to her, and without having any previous contact in any fashion with her beforehand. Ms. Babashaverdi allowed them into her home, nonetheless. She began and continued to answer their questions, and there was an exchange of business cards at the beginning of that conversation.

Even by their own testimony, Kathirganathan and Beckley indicated that, to some extent, their presence interrupted what was otherwise the natural flow of movement and children into Ms. Babashaverdi's care. More specifically, the Inspectors indicated that while they were questioning Ms. Babashaverdi initially on her main floor, this questioning was ongoing even as a child was just being dropped off for childcare and appeared to Mr. Kathirganathan as being about the age of three to five years of age.

In this Court's view, their continued conversation with Ms. Babashaverdi effectively detained Ms. Babashaverdi on the upper residential floor, removing her from the basement area where the children in her care were present.

Kathirganathan testified that during the initial conversation on the main floor, his "trigger" for the inspection or his reason to make the inspection was the arrival of a child at approximately 10:32 in the morning. Because Ms. Babashaverdi had earlier in the conversation told Mr. Kathirganathan that she took care of 5 children, it seems that he assumed the child was not necessarily indicated in that count.

Ms. Beckley, in her testimony, did not suggest such a "trigger" event, but gave the reason or explanation for their inspection demand by saying it was simply their standard practice of operation. After some time upstairs, the inspectors demanded of Ms. Babashaverdi show them her childcare space. Ms. Babashaverdi remained agreeable and cooperative.

In the childcare area in the basement Kathirganathan testified that he saw five children, including the recent arrival of the boy whose name was Haram. Some of the children were described as in different types of clothing, including outdoor clothing. It seemed because of the inspection and ongoing communication between Ms. Babashaverdi and the Inspectors, she was not effectively able to continue with the childcare programming whilst the Inspectors occupied her time. In her testimony, Ms. Babashaverdi indicated that snack time and outdoor play time had been interrupted and, to some degree, effectively prevented or postponed by their visit.

On seeing the children, Inspector Kathirganathan said absolutely nothing in his testimony about the happy appearance of the children or the positive nature of the learning environment. This came as some surprise to the Court after the Court saw what appeared by photos of a well-presented, clean and organized children's space. The Inspector was acting as a representative for the Ministry of Education and yet said nothing in his testimony about the learning environment and the educational tools that Ms. Babashaverdi was providing to the children. Absent in his testimony was any suggestion that he or his co-inspector colleague made an effort to communicate in any way with any child present, so as potentially to alleviate the tension that their presence might have caused the children.

It seemed by the evidence that Kathirganathan never asked Ms. Babashaverdi about the children, never asked Ms. Babashaverdi whether he and his colleague would be interrupting, potentially interrupting outdoor time, play time or snack time by their presence that day, nor did he ask whether there was any particular other concern for the children caused by their visit. Neither Mr. Kathirganathan nor his colleague asked Ms. Babashaverdi, before or during their inspection, whether she had someone willing and able to step into the childcare space so as to watch over the children, particularly with children of such a young age who arguably needed to be continuously watched.

According to Ms. Babashaverdi's testimony, Ms. Beckley did at least take some positive notice of the surroundings and made some complimentary remarks to Ms. Babashaverdi about her choice of children's books and games on the shelves. From the male inspector, nothing, and yet he seemed to be the one of the two more greatly in charge of the situation and taking lead. Not a single question regarding the programming of the children on that date.

Again, two days later, even though these Inspectors, representatives of the Ministry, had known in advance that they were attending to execute a search warrant, and knew that the execution of a search warrant would take a substantial period of time and would more greatly potentially cause an interruption to the children's programming, they still made no inquiries about the children, their welfare and their programming.

On January 26th, 2017, they also did not again ask whether there was someone to watch over the children still in care. All the while Ms. Babashaverdi was called upon to other areas of her home as Kathirganathan, Beckley, Doyle, Sewell, Jerabi, Chu, in the company of two uniformed officers, searched through every room of her two-story detached home, purportedly searching for business records about the number of children in her home childcare. January 26th … Again, no conversation or inquiries about the children, no communication noted with the children, no inquiries in advance about children's activities and how their presence might be interfered with.

Some time at about after 3:00 p.m., Kathirganathan took a photograph or photographs of the children in their childcare area. At the time of this snapshot, some of the children in care could be seen already to have been readied to leave the childcare - as they were fully dressed in full winter gear and their knapsacks. Others less, with more partial winter dress but looking as if they were dressed potentially for some state of transition. Again, despite this observation, Kathirganathan and his colleague did not inquire where or when those children were meant to be going, if at all.

At the time of this snapshot, there were seven children in the photo. The Inspectors already knew from their previous first contact with Ms. Babashaverdi that her programming involved half-day morning, half-day afternoon, full-day, as well as after-school children care. Nonetheless, that did not lend to any inquiry by them.

When the search warrant was executed, Kathirganathan testified that he and his co-inspector Beckley were directly involved in the search throughout the home, including the bedroom areas on the second floor. Ms. Beckley testified that she and her co-inspector Kathirganathan also searched the childcare area while the children were still present in it.

Re Findings of the Ministry Search on January 26th, 2017

Did they or the four other Ministry members, enforcement officers, locate and/or present any business records to this Court, giving some proof or some evidence of Ms. Babashaverdi having had the care of too many children in her planned programming activities?

No.

In fact, this Court heard from the testimony of Inspector Kathirganathan that children's records or files were seized but seemingly never presented to the Court. In his testimony, Kathirganathan stated, "I seized a black folder and took some photos of post-dated cheques." He indicated that the folder was, "holding a yellow business card," and went on to say, "seized in the master bedroom with the other documents with the business card." He went on to say, "The other documents said, 'parent information sheet,' with the name of the parents, the name of the child and the phone number."

Interestingly, this Court never saw any parent information sheet with parents' names, names of children or contact numbers, in the context of the evidence presented for trial. No such evidence was presented by the Ministry to help the Court come to a decision, whether favorable or not to the Ministry position.

Re Evidence (or Lack Thereof) Presented by Ministry Re Babashaverdi Caring for More Than Allowable Number

The Ministry presented no documentary proof or business records of Ms. Babashaverdi having more than the allowable five children in her childcare for structured and paid childcare programming for any given period. In fact, despite the search of drawers, files, computers and papers, the Ministry provided no information whatsoever about the number of children, names and ages. Instead, the Ministry asked the Court to accept a couple of photographs as proof or part proof of one of the two alleged offences by Ms. Babashaverdi.

These photos of the children in their childcare area were taken by Kathirganathan sometime after the Ministry group, including Beckley, Doyle, Sewell, Jerabi and Chu, and the two police officers had already then arrived at Ms. Babashaverdi's home and had already begun the execution of the search warrant.

Re Evidential Weight and Nature of the Ministry's Photographic Evidence

These photos were taken at a time of day around 3:30-ish when arguably children would have been toward the end of their afternoon stay and otherwise readied to leave with their parents, with the possibility of an after-school children's arrival. These photos were taken by Kathirganathan in about the same time that 2 uniformed police officers, one of them described as large or tall, stood in about the doorway of Ms. Babashaverdi's home - which was the access door for parents and children to be going into and out of childcare. These two photos were taken at a time when 2 marked police vehicles stood outside of her home on the street with their police lights flashing.

And yet the Ministry submitted to this Court that such photos were a reliable snapshot of the number of children in Ms. Babashaverdi's childcare programming. The Ministry submitted that the Court should look at the photographs as evidence of one or two more children in her care than was allowable by the Act.

Kathirganathan was not even able to say when he exactly took the photographs with what seems to have been his personal camera, but rather gave an approximate time. When asked about the time of the photo-taking, his response was, "It should be around 3:18 p.m. and 3:35 p.m. I don't recall but I took the photographs." But for Ms. Babashaverdi's help, this Court would have known very little from the photographs presented by the Ministry. It is Ms. Babashaverdi who explained the coming and going of children throughout the day through her program, their ages, which of the children was registered for either half-day morning or half-day afternoon, full day or after-school care by her.

Re Ministry Submission and Argument Re Alleged Offence of Obstruction

Ministry Counsel further submitted that Ms. Babashaverdi committed the further other offence of having obstructed the Ministry Inspectors in the completion of their inspection. The argument made by the Ministry, that Ms. Babashaverdi was obstructionist by her actions on January 24th, 2017, contrary to the Act. The Ministry argument seemed to be that Ms. Babashaverdi should have perhaps found some way of getting her young adult daughter, approximately I think 21 or 23 years to have stopped using the basement washroom in the childcare area, and should have had her daughter discontinue her stay in the basement washroom as soon as these Inspectors wished to look inside this area of the basement.

Re Ministry Submission About Reasonable Grounds for Their Inspectors to Have Demanded and Carried Out an Inspection

Why is it that Kathirganathan wanted into the bathroom, no matter what, even if such entry by the Inspectors after Mrs. Babashaverdi's daughter' use of the facility might have put her daughter in an embarrassing situation? The Inspector Kathirganathan wanted into the washroom because he, most especially, believed that Ms. Babashaverdi's daughter, with Ms. Babashaverdi complicity, was hiding a child or two inside the washroom. This related to the fact that he, not his colleague, believed there was more than five children because of the arrival of Haram as his trigger event.

When Kathirganathan and others on the enforcement team saw the basement washroom on January 26th execution of the search warrant, they could see that the toilet sat diagonally to the door, that there was a small laundry facility also in the same room, but no dividing wall between the toilet and the door, just a small curtain or partial curtain.

This Court finds it noteworthy that despite the serious nature of an allegation of obstruction and this very allegation concerning this washroom area, neither Kathirganathan, nor anyone else with the enforcement team, bothered to take a photo of the washroom … even though he was only a few feet away when he took the photo of the children in their play area. Unless, of course, he took a photo but did not submit one to the Ministry counsel and the Court. This was 'the scene of the crime', so to speak.

Re Ministry Submission That the Inspection Was Reasonably Grounded and Carried Out by the 2 Inspectors

In his final submissions, Counsel argued that the Inspectors, Kathirganathan and Beckley, were carried out their inspection reasonably. They argued presumably that their request to go into the final area of the bathroom toilet area was reasonable, even if it was then occupied by the young adult daughter; and, that Ms. Babashaverdi, having not done something more to get her daughter out, was being obstructionist. By all witness accounts of January 24th, 2017, the date of first contact, Kathirganathan and Beckley left Ms. Babashaverdi's home only after her young adult daughter had become upset and yelled through the bathroom door, and when at least one of the children in Ms. Babashaverdi's care in the same childcare area was heard by everyone, including the Inspectors, to be crying.

Kathirganathan denied having tried to enter the washroom while the adult daughter was still inside, as was suggested by the Defence, Ms. Babashaverdi. He said that he had not tried to open the bathroom door on the young lady without permission because he was already upstairs. But the suggestion that he was already upstairs makes no sense with the rest of his testimony. For Kathirganathan to suggest that he had gone upstairs already at that point in time was internally inconsistent with his own other testimony. Only a few sentences before in his testimony he indicated, "We asked to see the two rooms and she said that the one is a washroom and the other's a storage unit. One of the rooms was open into the furnace. And then the Defendant told us that her daughter is in the washroom at that time, and we told her that we would just wait, and we would like to see inside as a full inspection. And she," referring to the Defendant, "said to wait."

Re Inspector Nadarajah Kathirganathan's Evidence Re the Opening of the Bathroom Door

Thereafter, in his testimony, Kathirganathan began to indicate that he had gone "upstairs" rather than waiting to see inside the bathroom to complete the inspection as he had already stated that he would do.

This Court finds the testimony of Inspector – then inspector, as I understand now he's a manager or supervisor as a promotional position, but then-Inspector Kathirganathan to have been problematic, questionable and not entirely credible. By his very own testimony, he was the more suspicious of the 2 Inspectors that children were being hidden in the washroom. He was the one of the two inspectors who had the "trigger event" of that suspicion. In fact, the testimony of the female Inspector as well as Ms. Babashaverdi's testimony indicated that Ms. Babashaverdi and the female Inspector, Beckley, were having a non-contentious conversation in the basement childcare area while waiting for the daughter. By all accounts, it was Kathirganathan who was then, at least initially and physically located nearest the bathroom and the stairwell.

For Kathirganathan to have testified that he prematurely went upstairs into the other residential part of the home, in advance of his female co-inspector and without his female colleague following, and without Ms. Babashaverdi and, most importantly, without his finding out what or who, if anybody, was in the washroom besides the adult daughter, made no sense with the rest of his evidence.

In fact, it seemed to this Court that Kathirganathan attempted to over-state what he wanted the Court to believe, that he was upstairs and away from the bathroom door. In the course of only about four to six sentences, and in the span of only approximately five minutes length of his testimony, this Court counted Kathirganathan having stated the word "upstairs" approximately eight times. "We told her we would just wait, and we would like to see the inside as a full inspection." He goes on, "She said to wait. And that's why I went upstairs (#1). And that's the obstruction of the inspection at this point." "I went upstairs," (#2). "The Defendant and the Inspector in the basement and I was upstairs calling the manager" (#3). "And that's when I was upstairs," (#4). "And that while I was upstairs …" (#5). "That the daughter Nakisha". He called her by name, "yelled at us" and "the daughter opened the washroom door" and "I saw only her head poking out from the washroom door because I was upstairs," (#6). "And she screamed on us," and those were his words. "And so Aleheh and myself were upstairs," (#7). "Downstairs the daughter screaming from the basement towards me," he says. "And I stayed upstairs," (#8). "And then she said to leave, 'Do what you need to do but you need to leave now.'"

Then he goes on, "I did not see the washroom area, so we did not complete the inspection. While talking to Aleheh upstairs, one of the children is crying. She said we need to leave."

Later on in his testimony, under cross examination, he was asked by Ms. Babashaverdi questions about his opening the door to the washroom or his attempting to do so and he responded, "First of all, I was upstairs (#9) and, "Ms. Babashaverdi, she was the one", "I don't have any idea of what transpired," his words.

By his testimony, Mr. Kathirganathan asked this Court to accept that he was upstairs, having nothing to do with the basement bathroom door, having nothing to do with the 23-year-old getting extremely upset, and yelling through the washroom door, nothing to do with the situation - even though he clearly stated at one point in his testimony, "The daughter was yelling at me." All of this was internally inconsistent with the rest of his own testimony.

Kathirganathan testimony was also inconsistent with the testimony of his Co-Inspector's, Ms. Beckley. Ms. Beckley stated, "the children" – and this after they had gone downstairs – "were all under 10 and they were about two, four, five years of age". She indicated there was two doors off the big room and she, referring to Ms. Babashaverdi, opened them. And she went on to say, "We did not get to see into the second door for inspection" … "She said the daughter was in the bathroom and we told her that we would wait. And then we said that we would wait again. And then Ms. Babashaverdi tried to open the door. And someone was talking and screaming at us. And at that point she told us that we need to leave."

Ms. Beckley went on to state, "She tried to open the door," referring to Ms. Babashaverdi, "and someone from behind seemed to hold the door closed and Ms. Babashaverdi moved towards the door. Someone's head popped out. Someone popped her head out and was screaming. That person appeared to be an adult. Maybe this was about five minutes downstairs, that she said we needed to leave. We followed her. Later I needed to give her an inspection report and then we left at about 11:02."

Re Internally Inconsistent and Contradictory Crown Evidence Re Bathroom and the Allegation of Obstructing Completion of the Inspection

Nowhere in Ms. Beckley's evidence was there any suggestion of Kathirganathan leaving to go upstairs early or prematurely, rather than waiting downstairs with his Co-Inspector, as he and Beckley said that they would be doing. Therefore, Ms. Beckley's testimony was inconsistent with the testimony of her partner, Inspector Kathirganathan.

Re Court's Finding Re Evidence of Crown Witnesses

This Court finds that it is more likely than not that Kathirganathan did try to get into the bathroom while Ms. Babashaverdi's young adult daughter was still in it, which is a position completely consistent with the manner of his acting and thinking on the date of the inspection. As the daughter was not present to testify, this Court lacked sufficient information on which basis to make a more precise finding of fact. Suffice it to say, however, that this Court finds as a fact that Kathirganathan had some manner of business with the bathroom door, such to lead to the daughter's extreme upset and annoyance, consistent with his own testimony about the daughter's screaming at him.

The Court is satisfied that it was for that reason, as well as the child in care now also crying and upset, that Ms. Babashaverdi, reasonably under the circumstances, stated to the Inspectors, "Do what you have to do but you have to leave now."

The Crown submitted that the statement and her actions were obstructionist and in contravention to the Act. This Court noted that there was no suggestion by any witness, no suggestion by either of the Inspectors, that Ms. Babashaverdi said, "Get out and never come back." Nor did they suggest that she spoke sternly saying to leave now or get out, but rather stated, "Do what you have to do but you have to leave now."

And while all of this was taking place, including the upset of the daughter, there was no suggestion of children's sounds coming from the bathroom before, during, or after the Inspectors were trying to have a look inside. There were no boots, jackets, shoes, mitts ever said to have been found as extras on the premises, nor a single document seized or submitted to this Court as evidence of a greater number of children in her care than those seen with the Ministry's own collective eyes that day, which was five children.

Again, this was the Ministry's argument, despite the fact that there was no evidence ever presented from other parents or any outside third parties collected by the Ministry suggesting the likely presence of more than those children seen in her care on January 24th, 2018.

Re Ministry's Presentation of Surveillance Evidence in Support of Their Case

Ministry Counsel argued that there was further other evidence of Ms. Babashaverdi having "too many children in her care, in her childcare business," by manner of the testimony of those same inspectors, Kathirganathan and Beckley, and their surveillance of Ms. Babashaverdi's home on that same date for approximately six hours. This surveillance took place from about 12 noon, give or take a half an hour difference between the two Inspectors, and ending at about 6:30. These inspectors, Kathirganathan and Beckley, testified that they covertly watched the Babashaverdi home on the 24th and then on the morning of the 26th, ostensibly to see who was coming and going from the home with children.

The Inspectors described keeping 'eyes on' or keeping watch on the Babashaverdi home, at times hundreds of metres away. They indicated that they saw about 11 cars coming and going. They indicated that each of them drove in two separate vehicles, at times moving, driving their vehicles around the area, in order to try and get a better perspective or viewpoint. They described traffic on that street and in the area to be busy and parking to be difficult to find.

This Court appreciates that these Ministry employees had the job of inspectors and were not called 'enforcement officers' within that Ministry. This perhaps explained to the Court why they appeared not to have any real level of sophistication nor prior training with surveillance techniques. The Inspectors did not provide the Court with any specific type of information as to when children were dropped off, whether children were dropped off the possible time of drop-off or pick-up for half-day morning childcare, half-day afternoon childcare, full-day childcare or after-school childcare time. The Inspectors, by their testimony, did not inform this Court, with any degree of specificity, when parents were dropping children off versus picking them up, how the pick-ups or drop-offs were occurring and by what vehicles.

In fact, the Inspectors never seemed to have kept nor presented to this Court any sort of activity log of what they were supposedly surveying. Nothing was presented in the form of a report or a log of information - for their "surveillance" for six hours on January 24th and approximately three or four hours on January 26th before the later-afternoon execution of the search warrant. When Ms. Beckley described the number of vehicles, she said, "About, about 11," but again, without it clearly known or indicated, what vehicles, and whether vehicles were some of the same going and coming.

And yet these same two Inspectors, Kathirganathan and Beckley, even before conducting their covert "surveillance" on her home, already had the business card of Ms. Babashaverdi and knew from her verbally and through the information contained on her business card that her daycare operation offered half-day morning, half-day afternoon, full-day, as well as after-school. Ministry Counsel submitted that the surveillance information was further evidence of Ms. Babashaverdi having 'too many' children, children in excess of the allowable number.

Re Defense Evidence About the Number of Cars and Children

In Ms. Babashaverdi's testimony, she explained the number of vehicles to the satisfaction of the Court, explaining that she had a couple of full-time children and then two or three of the others were half-day kids, some half-day morning, some half-day afternoon, an after-school child. This, perhaps not surprisingly, accounted for the approximate 11 or so vehicles seen going and coming from or to her home on those "surveillance" dates. In fact, the Court finds that this surveillance information put forth by the Crown's own witnesses was arguably as much or more in support of Ms. Babashaverdi's defense position. She confirmed the number of children in her care on those dates, at those times and time periods as being within the allowable childcare number.

When considering the very young ages of the children, as mentioned by Ms. Beckley, ages two, three and five, half-day programming would be expected and normative, and presumptively should have been anticipated and factored into their surveillance on those dates.

Ministry Counsel also submitted that the Court could look to Ms. Babashaverdi's own testimony to support the position that she was "likely" in contravention or certainly in contravention of the Act, indicating that she herself had stated a belief that she could have six children in her care. That said, her testimony indicated that although believing she could have had six children in her care at one time in her programming or for a programming unit, she indicated also that, at the time, despite that belief, she had five children in any or each slot of the day's programming.

Ms. Babashaverdi indicated or testified that she was under what turned out to be a mistaken belief of an allowable six children for home childcare because of a conversation that she had had with a colleague friend who worked for a large umbrella organization and had received information both verbally and in writing from her. One can perhaps more easily understand the confusion when one looks to the Act and its regulations. This Act had only come into effect on August 31st, 2015, so really quite young legislation. In fact, the handout, exhibit 3, that was given to Ms. Babashaverdi on first contact January 24th, was titled "The New Child Care and Early Years Act," with the descriptor "new" about the Act itself, Child Care and Early Years Act.

Despite her effort to inform herself through a professional colleague, as well as through informational written resources, one can also understand that there could potentially be some confusion when there are various legislated and regulated manners of home childcare. There are home childcare providers which are contracted by licensed agencies. There are home childcare providers who are more independently licensed. There are home care providers that are unlicensed. There are home care providers that come under an umbrella outside larger organization, and for which the allowable number is six, as opposed to five with an unlicensed home care situation.

Re Crown Argument of Overlapping Care

The Ministry Counsel further submitted that Ms. Babashaverdi was in breach or contravention of the Act when the parents dropped their children off to her childcare earlier than was programmed and expected by her, or picked them up later than the programming time; and that because of the overlap potentially between morning children and afternoon children, and afternoon children with after-school children, Ms. Babashaverdi would then have had more than the allowable number of children in her care during that overlap period.

Ms. Babashaverdi explained that when dealing with situations with children and their parents, sometimes those parents single, that the unexpected would sometimes happen. She gave examples of a single mother who arrived late because of a university exam and therefore picked up her child late, another example where the parents arrived later than the programming in the afternoon because of snowy weather or difficult road conditions, particularly so during the winter season where the trip from their work to access their child was double the time anticipated. Ms. Babashaverdi explained in these situations that she would have already dressed and readied the child for pick-up, and that the child might then wait upstairs with one of her family members if that parent was delayed. Ms. Babashaverdi did this to be kind to the parent and the child and did not charge extra money, even if the wait for the parent was a little bit more prolonged due to the parent's unexpected delay or a little sooner in advance of the programming start.

Those children in that overlap situation of care arguably became a personal care situation, rather than a business childcare situation, as this was for a time entirely without compensation to her but only given by her to ensure the wellbeing and safety of that child. In fact, the Act and its regulations provides for situations of urgent or emergency need for childcare, where the childcare supervisor might then have more than the allowable or planned number of children.

Re Strict Liability Offence and Babashaverdi's Exercise of Due Diligence

This Court is satisfied that Ms. Babashaverdi was doing her best and exercised due care and diligence to be within her programming mandate. She was doing her best to have children dropped off and picked up at appropriate times. This Court is also satisfied that after the bit of discussion that took place between her and the Inspectors on January 24th first contact, to her credit, she followed-up with a search for information and reviewed the materials passed to her on that date. Even before the execution of the search warrant on her home less than two days later, Ms. Babashaverdi testified that she had already more firmly advised the parents of the children to stay as close as possible to the start and finish times of their programming schedules.

This Court recognizes that the business of children and the care of children is a very human process … dealing with real children, with single or double parents, with real concerns in a busy city with real weather, traffic and work challenges. What was the alternative? To cast the child out of her home whose parents arrived late? Or refused to have taken them when the parents indicated an urgent need at the time to have dropped them off a little earlier than was expected? No, Ms. Babashaverdi instead kept them safe and sheltered in her home, now in her care, a temporary personal-care situation by herself or a different other family member without any additional programming childcare fee charged to the parent.

The Court was told that Inspector Kathirganathan came to the Ministry of Education as an inspector from the Ministry of Finance. Moving children is not like moving numbers on a ledger. Unlike dealing with numbers and accounting, there are no hard and fast rules. The process of early education, childhood education and care, is a learning process for everyone, including the childcare providers. Again, this Court heard that Ms. Babashaverdi made immediate efforts then and is more strongly making efforts now.

Re the Principles of the Act

If there was a situation of non-compliance, and this Court is not satisfied that such non-compliance has been proved beyond a reasonable doubt, the Court would nonetheless find that Ms. Babashaverdi had made best efforts to be 'in compliance' and exercised due diligence and care. At present, she has an even greater understanding of the provisions of this relatively new Act and its regulations. The Child Care Act and Early Years Act is a mandate to ensure the safe and healthy environment for children. Ms. Babashaverdi seemed to have been motivated to act in the best interest of children, each and every one of them, even to the point of self-sacrifice. The legislative intent of the Child Care and Early Years Act seemed to this Court to have been better appreciated and followed by Ms. Babashaverdi than arguably by the Ministry's own representatives and their enforcement of it.

Re Complaint Against the Ministry Inspector

The inspectors attended January 24th, 2017. On that date, the young adult daughter was upset and angered and a child left crying. Nobody disputed that in their evidence. The Inspectors left Ms. Babashaverdi's home soon thereafter. Nobody disputed that in their evidence. Inspector Kathirganathan had indicated in his testimony that he had exchanged business cards with Ms. Babashaverdi. Ms. Babashaverdi testified that later that night or the next day she called the number on that business card, the card of Mr. Kathirganathan, to make a verbal complaint and voice concern about the situation that had happened at the bathroom with her daughter.

She testified that she called the very same phone number as was indicated on this male inspector's card and spoke to a male person on the phone about what had happened. She indicated that the recipient of the call, whose name unfortunately she did not obtain, told her that they would follow up with her complaint. No one followed up with her about that conversation or complaint. The next time that contact was made with Ms. Babashaverdi was the knock on her door less than 48 hours later by the Ministry to execute a search warrant. In the Court, when asked about her complaint, not a single Ministry witness testified as to knowing anything about that complaint or what happened to it, if it was made.

It was interesting for the Court to note that Mr. Kathirganathan knew the daughter's first name. Ms. Beckley didn't know the daughter's first name, but he did. He knew her name was Nakisha. He knew the daughter by her first name but was not able to give any information of a complaint concerning her.

That same Inspector, now supervisor, Mr. Kathirganathan, was seen by this Court to be taking notes in the body of the court during the testimony of Ms. Babashaverdi. In the event that he might be recalled by the Ministry for reply evidence, the Court then excused him.

Re Legal Processes of the Ministry in the Context of the Act's Mandate

A search warrant was executed on Ms. Babashaverdi's home. The Ministry got the assistance of two Toronto Police Service officers, 2 uniformed officers, who came with their marked police scout cars for the execution of the warrant. Again, this Court was left to wonder how it was thought that this approach by the Ministry was in the best interests of the children who were in the childcare situation at her home at that time, and who had been observed - not even a full two days earlier - to be safe, sound, well-fed and properly sheltered.

The Court has reviewed Whether the legal processes used by the Ministry were in accord with the written provisions and intent of the Act and its regulations. The Court has also reviewed whether the legal processes used by the Ministry on the date of January 26th accorded with the judicial authorization given to them for that date.

Re Legal Process Used by the Ministry Representatives for Their Inspection January 24th, 2017

Looking first at the business of inspections:

The Act specifies that inspections "must be carried out reasonably." If a situation requires it, an inspection can be started and carried through on another date, particularly when, arguably as here, there was good reason to have delayed the completion.

This Court finds that there was ample enough reason to have adjourned the completion of the inspection, rather than having interfered with the private personal use of a bathroom potentially by a young adult person. This young adult was only in that place and in that position arguably to have earlier assisted the Ministry Inspectors, who had been in conversation with Ms. Babashaverdi and had taken her away from her care of the children.

Next, the Court looks at the rules attached to findings of an inspection. By the Act, a childcare provider is to be given a written, certified copy of the Inspector's report, and some time to review, consider and respond to that initial report.

In the present case, the Court looked to exhibit 8, the 'Inspection Report/Preliminary Notice' for an indication of the alleged non-compliance. The alleged non-compliance was marked with an X on this report, "the above-noted childcare provider was not in compliance with the following sections of the Act and/or regulations", Below, paragraph 12(1), "Duty to disclose if not licensed, including the sentence: 'This childcare program is not licensed by the government of Ontario.'" Also, beside the line under Act 12(2), "A duty to retain record of disclosure to parents." And beside Act 76(a) Obstruction. "Hinder, obstruct or interfere with an inspector."

The Court has already reviewed the evidence with regard to why the two Inspectors alleged infractions by her on that date of January 24th, but Ms. Babashaverdi was never given a certified copy of this Inspector's Report, and by that very form, Ms. Babashaverdi was to have been given time to provide her response to what was described as "A Preliminary Notice". The form itself says,

"If the inspector has advised you that you are in contravention, a report will be forwarded to the manager of the enforcement unit for review. Please note he or she may issue a compliance order requiring you to come into compliance with the Child Care and Early Years Act and its regulations. If you would like to submit any additional information for the manager's consideration prior to a final determination, please do so within two business days. You may submit information for consideration to the Ministry of Education Child Care Quality Assurance and Licensing."

The address is given, a phone number, fax and email.

She had two business days, but, in less than two business days, on the second day, the Ministry was at her door with a search warrant. Ms. Babashaverdi, stated by this form, had two clear business days and that process was not followed.

To her credit, Ms. Babashaverdi read and reacted to everything she received from the Inspectors on January 24th. By her testimony, this included her reaction of phone calling every one of her parents that very same night to advise them of her non-license status and indicating that to them the next day in written form. In fact, that very document that she gave to the parents was one of the documents seized by the Ministry officials on the search January 26th and submitted as evidence by the Ministry as one of the exhibits.

In fact, in the present case, it was Inspector Beckley who, in her own words, indicated that she was "unprepared" on January 24th, that she did not have the proper form with its copies, so she instead had to quickly fill out the one form that she had available to her. She took a picture of it with her camera and gave the Initial Inspection Report to Ms. Babashaverdi. Ms. Beckley testified that she gave the Inspection Preliminary Report as well as two other documents, one of which was a legal-style information sheet about the Act's provisions, 8 pages in length, as well as the one-page chart diagram to Ms. Beckley, all before she and her co-inspector left in haste from Ms. Babashaverdi's home.

Re Response Time Not Afforded to Ms. Babashaverdi by the Ministry

Within that 48 hours, those clear two days that Ms. Babashaverdi was to have been afforded for response, the Ministry did not follow up with any calls to Ms. Babashaverdi, nor afford her a chance to speak or provide documentation or information in response to their report. Yet the Act calls for a collaborative approach between the Ministry and its clients and its community, persons such as Ms. Babashaverdi.

In the Regulations and in the Act following at s. 49(1) is a statement about the Ministry's mandate, that it is a matter of provincial interest that there be a system of child care and early-year programming and services, focused on Ontario's children and families; a system that promotes the health, safety and wellbeing of children; that provides high-quality experiences; that includes knowledgeable, self-reflective and qualified professionals and staff, including members of the College of Early Childhood Education; a system responsive to community's needs by providing a range of services, including for families that require financial assistance; a system with a mandate that is a respectful of equity, inclusiveness and diversity in communities; a system that provides for a strong and sustainable partnership amongst the province's service systems, managers and others, is coordinated with other community and human services, is flexible and is able to adapt to local circumstances, supports the social and economic wellbeing of Ontarians, ensures appropriate accountability for public funding, supports a transition from childcare and early year programs to services and services to school.

The Act speaks about education, consultation and collaboration, and contains other sections about giving opportunity for compliance. One can better appreciate the need for clarification and education when one looks to the provisions of the Act and tries to understand the different designations - even within the home child care structure.

Re Lack of Contact, Clarification and Interpretation

After the Inspectors left her home on January 24th, those two inspectors did not call or contact Ms. Babashaverdi to see if she was able to read and understand the informational pages – including the 8-page legal style document regarding the provisions of the Act - quickly provided to her before their leaving on that date.

Ms. Babashaverdi has been assisted throughout the entire trial by the Farsi interpreter. The Farsi interpreter was not on standby throughout the proceedings, but rather interpreted everything to Ms. Babashaverdi. This was not because she does not speak some English, nor even because she does not have what might be referred to as a conversational level of English use and understanding. This case is a matter concerning the Ministry of Education. As educational representatives. They, better than anyone, ought to have appreciated that an academic or legal understanding of the English language particularly in the context of understanding law and legal obligation and regulations, is something more than a conversational understanding. Even on first meeting with Ms. Babashaverdi, the Inspectors did not ask her whether she would require any interpretation, nor did they follow up between the dates of January 24th and 26th.

The Court will next look at whether proper legal process was taken in accordance with the Act and followed particularly in respect to the execution of the search warrant.

Recess

The Court took a brief recess at this point.

Upon Resuming

THE COURT: Just before moving into the area of the search warrant and legal process attached thereto, I just want to move back to matters more so concerning the first contact date, January 24th, 2017 ... and the paper handouts given somewhat in haste to Ms. Babashaverdi.

Re Legal Process Followed by the Ministry with the Inspection January 24th, 2017

The Court reviewed the substance of those handouts and also compared their content, particularly the 8-page document with the Act itself and its regulations. This Court found that the handouts lacked information, otherwise contained in the Act, including but not limited to matters such as the notice requirement for inspections, particularly inspections of residential premises, the reasonable manner within which an inspection is to be carried out, and situations where a person can move to decline or adjourn an inspection. The handout given by the Inspectors to Ms. Babashaverdi was not so detailed as the Act in specifying that the person is entitled to reasonableness in relation to the time and manner that an inspection is conducted.

Also, pursuant to s. 30(1), an inspector may, at any reasonable time and without a warrant, enter and inspect (a) a childcare center, (b) a premises where in-home childcare is provided; (c) premises where home childcare is provided; (d) a premise where home childcare agency is located and a premise where the inspector suspects on reasonable grounds that a person is not complying with this Act or its regulations; or (f) a premise where the inspector on reasonable grounds that childcare is provided … But ss. 30 regarding the power to enter and inspect a premise described in s. 1(f), which applies to the residential situation without a warrant, shall not be exercised to enter and inspect the premises that is used as a dwelling except with the consent of the occupier of the premises.

Re Notice of Inspection in Residential Home Child Care Situations

So, there were those pieces missing in the Handout regarding the potential requirement of inspectors obtaining consent in a home child care situation. There is some distinction in the Act where notice needs to be given more especially where it is a home child care but under an umbrella organization, with attachment of some form of licensing or not. But when the Inspectors went to the home of Ms. Babashaverdi on January 24th, without any specific knowledge of her home care operation, they did not provide to her any notice, advance written notice or otherwise. This was at that point they had somewhat limited information. Essentially, their information was somebody looking up on a computer and not seeing her name as listed as a licensed childcare provider. But without more than that, arguably notice would have been a prudent and reasonable idea.

Re Compliance Provisions of the Act

Also, before leaving issues attached to January 24th, 2017, the Preliminary Notice/Inspection Report indicated two clear days' notice to have been given to Ms. Babashaverdi for response. … There was also reference in the Act to the legislative ability for the Ministry to make a compliance order and give the opportunity to comply before more drastic enforcement measure is taken.

Section 36(1) about order/compliance orders indicates that, "If a director or inspector believes on reasonable grounds that a person is not in compliance with a provision of this Act or its regulations that the director or inspector may make any compliance order (a) ordering the person to comply with the provisions; (b) ordering the persons to do so, refrain from doing anything specified in the order; (c) specifying dates by which the person is required to do so or refrain from doing the thing specified, and shall include information prescribed by the regulations." Again, this gives emphasis to the point that she was not given an opportunity to respond. There was not a formal certified copy given to her. There was no follow-up by way of a compliance order request from the Ministry before they knocked on her door on January 26th.

Re Legal Process Required and/or Exercised by the Ministry in the Execution of the Search Warrant

Okay, now moving into the area of legal process. The Court heard testimony from the Ministry's witnesses. As the Court heard from a number of witnesses. As can be seen by the documentation of the search warrant and the evidence heard, there was a large number of persons from the Ministry who attended Ms. Babashaverdi's home on January 26th. 6 Ministry officials with 2 uniformed police officers all at once attended at her home to execute the warrant.

Re Ministry's Employees' Understanding of Grounds for the Search Warrant

Enforcement Officer Raquel Jerabi was one of this list of Ministry witnesses, heard from by the Court. This female enforcement officer that was part of the whole group executing the search. When questioned by Ministry Counsel about the execution of the search warrant and her understanding of the reasons for the search, it then became apparent to this Court that she perhaps had very little understanding about the Act and the Ministry of Education's position regarding unlicensed home child care. This impression was left with the Court when, in answer to one of Crown Counsel's questions about the reason for execution, her response was, "We would not have been there if it wasn't unlicensed."

It seemed by her response that this enforcement officer with the Ministry was otherwise oblivious to the more specific reasons for which the Ministry had provided to support their search warrant application and its execution. This was despite the fact of the enormity of a search warrant executed on someone's residence; the search of Ms. Babashaverdi's entire residence, including and not limited to the basement which was used more specifically for her home childcare programming. From this female enforcement officer's response, she thought it was already unlawful, simply for Ms. Babashaverdi to be operating a childcare program without a license, seemingly without the need in her opinion for Ms. Babashaverdi to have done something more.

Re 'Unlicensed' is Not 'Unlawful' Under the CCEYA

This Court knows as a fact that there is absolutely nothing wrong or 'unlawful' about someone operating an unlicensed home child care program, in accordance with the regulations and the Act. In fact, the Act speaks to rules pertaining to both licensed centers, as well as unlicensed home childcare and licensed home child care and home childcare that falls under an umbrella outside licensed organization.

Re Terminology of 'Unlicensed' Versus Non-Licensed in the Act

The Court thought perhaps that the Enforcement Officer view of "unlicensed" as perhaps it meant something less than a licensed facility; and wondered if it was because the Act refers to the home childcare as "unlicensed". The prefix "un" means lacking or less, for example unfit, lacking in fitness; unwell, lacking in health; uncomfortable, lacking in comfort. So perhaps the label of 'unlicensed' is indicative of something less desirable, less preferred and, in this case, less lawful in the view of this particular enforcement officer. Language is a powerful thing.

And yet, the majority of our population of parents do, in fact, turn to unlicensed as well as licensed home childcare and childcare centers. They turn to unlicensed childcare situations as potentially offering something more, not less, for their children …whether that something 'more', in the parents' view, due to the professional nature of a particular childcare-provider, a more intimate environment, the involvement of the neighborhood's other children, cost or convenience of location relative to the parents' home.

Perhaps the Act is, by its choice of label, not effectively communicating this message even to its own Ministry officials, administrators and enforcers. The Act is meant to regulate unlicensed or 'non-licensed' home childcare, as this Court would prefer to label, and not to denigrate unlicensed childcare meant to be in the best interest and for the safety of children.

Re Evidence About Ms. Babashaverdi and Her Home Childcare Program

From what this Court saw and heard from Ms. Babashaverdi, the photographs and the other information provided, Ms. Babashaverdi legitimately took pride in her work, loves children, and enjoys teaching them. She spoke of the importance to her of seeing those first moments in a very young child's life. She has a university degree in education and acquired certification in Montessori teaching, a very specialized teaching method. In her testimony she indicated that with the advantage of the Montessori methodology of teaching, many of the parents of children in her care have been thrilled to find that their child began reading and writing before other children of the same age.

Re Subjective and Objective Impact of the Execution of the Search Warrant

But on January 26th, 2017, Ms. Babashaverdi testified that she and her family were made to feel and look like criminals, particularly to the parents of children in her childcare, as well as to persons in her neighborhood. She testified that that feeling came with the police presence of 2 officers, uniformed officers, at her doorway, standing in and outside of her front door with their marked cars and police lights flashing outside the front of her home, partially obstructing the doorway at times, as well as the roadway, for use by her childcare parents as well as neighbors.

Ms. Babashaverdi as well as the Ministry's own witnesses, testified to the fact that it was hours before the police officers and 6 Ministry personnel finally left her home sometime about 6:30 p.m. on January 26th, having arrived there somewhere about 3:30 or earlier in the afternoon. Ms. Babashaverdi testified that she was left to try and explain to parents the reason for them being there.

Fortunately, the parents knowing her through the care of their children, those parents gave Ms. Babashaverdi the benefit of the doubt regarding any thought of a criminal-type of concern, and later sent her notes of comfort and bouquets of flowers.

Re Whether the Execution of the Search Warrant by the Ministry Was Executed in a Reasonable and Authorized Manner

The Ministry has argued and submitted that the search warrant was reasonable and reasonably executed on the date of January 26th, 2017. The Ministry has asked the Court to potentially rely on items seized by one or more of the six officials with the Ministry and the police as evidence to support their case and argument of proof beyond a reasonable doubt in regard to the two alleged infractions.

The Court looked at whether the search warrant was executed in what this Court considered 'a reasonable way', and upon the conditions and terms as judicially authorized on January 26th, 2017, by the Issuing Justice.

The Issuing Justice specified the terms and conditions upon which the warrant was authorized and by which the warrant was to have been executed by the Ministry. In other words, the warrant was granted by the Issuing Justice but only based on certain conditions and terms as specified by that Justice at the time of its issuance and order.

Re Conversations with Parents and/with Children Whilst in the Execution of the Search Warrant

One of the Issuing Justice's conditions, as set out in the Appendix to the search warrant, stated, "They not have conversation with parent or children in the course of conduct of the search."

This Court has heard testimony to indicate that this term and condition of the search warrant was, in fact, breached on January 26th. In the view of this Court, it was a breach of that Issuing Justice's term (attached as part of that warrant) when the different Ministry employees and the Toronto Police Officers, asked by the Ministry officials to assist, stopped and questioned parents. These parents were presumably sometimes standing alongside their pre-school-age child, stopped while those parents were trying to drop off or pick up their children at the home.

In the testimony of Kathirganathan, that male inspector related to the first contact 2 days earlier on January 24th, he indicated that he alone had interviewed 8 parents. And yet he indicated that, at most, there was 7 children, as depicted in the photo taken by him. The Court did not know and was not informed who he spoke to, which parents, when he spoke to parents, whether he spoke to parents repeatedly, individually, with children, without children, whether he spoke to parents individually when in a couple or spoke to both parents at one time.

Re Lack of Record Keeping and/or Its Presentation to the Court

Again, there was absolutely no log kept by that Inspector in regard to his search and execution of the search warrant, nor about his having stopped and questioned parents. As well, the Court heard evidence that he wasn't alone. The other Ministry official-members testified that they too at times were having conversations with different parents as those parents were either coming into or trying to leave the premises with their child who had been in care that day.

Re Objectivity and Level of Detachment Necessary of Those Persons in Execution of Search Warrant

In respect to the process and execution of the search warrant, the Court further considered evidence from witness Inspector Beckley and witness Inspector Kathirganathan. indicating Mr. Kathirganathan continued to play a significant part, even on January 26th, with the search warrant's execution. This Inspector was less than two full days later part of a team executing the warrant at a home, even though there had been potentially some contentious behavior alleged between himself and Ms. Babashaverdi's daughter, whether or not anybody else knew at the time. He would have recognized, understood or perhaps anticipated the potentiality of some form of complaint against him.

In the Court's view and in these particular circumstances, the search warrant execution ought to have been taken out of this Inspector's hands and left for its execution by other Ministry employees instead. Such an arms-length and objective approach is preferred, if not mandated, so as to preserve the integrity, reliability and neutrality of the evidence so as not to potentially impact the choice ultimately made by this individual and/or other, not to have submitted into Court evidence exhibits/items perhaps considered 'not relevant'. Those items might have been submitted by a different other Ministry official, and those items might arguably have advanced the position of the Defense rather than the Ministry.

The Court heard Mr. Kathirganathan clearly testify about his observation of parent records and lists of child's names, phone numbers and contact information. But that information and those documents were not submitted to the Court as part of the Crown's case.

Re Training and Methodology Required for Execution of a Search Warrant

Further, this Court understands, more generally and typically, that enforcement officers in any ministry are those personnel who are supposed to be knowledgeable and specially trained in the methodology of search and seizure situations. Unfortunately, in the case at hand, that general rule did not seem to apply, even with enforcement officers present that day. In the present case, all of the Ministry personnel, including their enforcement officers, seemed to have failed to log and present any type of specific and detailed information to the Court about which official seized which item from which location in the Babashaverdi home; and, at what time and in what way that item was tagged and preserved in its state or condition at the time of seizure, until such time that that item was required potentially for trial purposes.

In other words, there was no methodology or process used by the enforcement officers and inspectors executing the search that day, so as to preserve the continuity, possession and integrity of the item in its state at the time of seizure.

Instead, the Court learned through the information and testimony of the various witnesses, particularly from the Ministry's own witnesses, that 6 different Ministry officials were moving about, roaming and rummaging through various places within Ms. Babashaverdi's home. There was no suggestion of a pre-plan for organizing, recording or logging of activity, precluding any indication about their time in and time out of the Babashaverdi home, but for the Court being left to understand that it was somewhere about three hours, give or take some time around 3:30 or earlier, 'til about 6:30, a little bit earlier or a little bit later. There was, it seems, a hodgepodge of information of items seized, no clear indication by whose hands, and through whom possession of those items passed, before those items then landed into the Court as exhibits.

Re Manner of Collection and Preservation of Items Seized

The Court heard evidence and testimony from various witnesses that different persons were speaking to the parents, and this was going on with a number of different parents, and it was not clear whether those conversation were taking place at the same time or different times. This included the testimony of Colm Doyle about such conversations by him, as well as Ms. Beckley, and Kathirganathan. It was also suggested that some of the officers also had discussions with parents, either on their arrival or their leaving the residential scene.

Re Persons Authorized by the Act to Execute a Search Warrant

The Court has looked next at the other conditions and terms of the search warrant. The search warrant gave authorization to Ministry of Education's named officials. The search warrant granted by the Issuing Justice on January 26th, 2017, did not authorize an assistance order. This Order of the Issuing Justice was without any authorized assistance. More specifically, the Issuing Justice had not authorized Toronto Police Services or any third other outside party to have been involved, in any capacity, with the Ministry's execution of the search warrant.

Re Assistance Order Not Requested Nor Authorized

To be clear, there was no indication anywhere on the Warrant or its included Appendix (as part of that Search Warrant Order) that the Ministry had ever asked for what is legally referred to as an 'assistance order'; nothing indicative of a request for assistance by Toronto Police Services or indicative of any request for any type of assistance from anyone outside third party.

But even without that assistance order, 2 police officers came and entered the home, entered different areas at the home at different times, and were present while the Ministry officials were looking in or about the three stories of the home, the second floor, main level, as well as the basement. Mr. Kathirganathan testified that he looked even inside bedside tables of the master bedroom. Sometimes those Officers were within the house, or at the doorway, or in the doorway or on the front area outside in front of the home.

The Issuing Justice was correct in recognizing that the search warrant could name an inspector, as well as an enforcement officer within the Ministry, for execution of the search. This Court found it interesting and somewhat surprising to find that under the warrant provisions s.32 and following, an inspector may make an application to a Justice for a warrant. A Justice may issue a warrant authorizing an inspector named in the warrant to enter the premises specified in the warrant where home childcare is provided "and" – and that's an important "and" – "the inspector has been prevented from exercising a right of entry, or there are 'reasonable grounds to believe that the inspector will be prevented from exercising a right of entry" into the dwelling. That section goes on to speak of home care child care agencies, and the special provisions attached to a residential situation.

Section 32(5) goes on to indicate, "A Warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the inspector with the execution of the warrant". As that section states, it is a specific authorization called 'an assistance order', where it may be authorized by the Issuing Justice.

Otherwise, the only other situation indicated by the legislation where the police can basically be moved in is indicated by subsection 32(8) saying, "An inspector named in a warrant issued under this section may use whatever force is necessary to execute the warrant and may call upon a police officer for assistance in executing that warrant." That provision speaks about where the exercise of force is necessary, and in a circumstance where the call to the police officer becomes necessary to then assist with the execution of the warrant.

Re The Time Chosen by the Ministry for the Execution of the Search Warrant

The warrant itself indicated that the Ministry officials had between the hours of 6:00 a.m. and 9:00 p.m. on the date of January 26th and/or the 27th to give execution to it.

The provisions were clear to the Court that the inspectors were able to apply for the warrant. This is interesting because they were involved with the initial inspection. In the case of Mr. Kathirganathan, he made the inspection, reported findings of his inspection, provided information to obtain the warrant in regard to those findings, executed the warrant himself, seized items himself, and then seemingly decided, at least in part, whether and which items would be submitted to Crown Counsel for submission to the Court as evidence.

One might see a bit of a problem with all of this, particularly where it is one and the same person continuously through the one situation. Inspectors are not police officers yet there is certainly, by the legislation, some weighty authority and responsibility given to them as Ministry participants and officials.

Re Authorized Purpose and Intent of the Search Warrant

The Issuing Justice further indicated as part of the terms and conditions of the Search Warrant, the following re "childcare provider parent":

• The search is to obtain, "childcare provider parent contracts, receipts, schedules, attendance logs, parent contact information, emergency contact forms, advertising/promotional materials and all other business records pertaining to the operation of a childcare center within the said time period."

• Secondly, "A cellular telephone containing parent contact information and information pertaining to the operation of an unlicensed premise where childcare is provided"

• And, execution between dates of and dates given January 19th through to and inclusive of January the 26th.

Re Limitations on the Search by Conditions and Terms Indicated by the Issuing Justice

The Issuing Justice followed up with limitations by conditions on the search for items. The Issuing Justice stated,

"To minimize disruption during the execution of the warrant and ensure that the privacy rights of persons and business entities who are not subject of an investigation are respected, the following conditions apply:"

a) A person in charge was to be given a copy of the warrant.

This Court did not hear any evidence to suggest that Ms. Babashaverdi was given a copy of the warrant to search her premises.

b) Next, the issuing justice stated, "The occupants will not be prevented from contacting any persons of their choice, including legal counsel, during the execution of the warrant."

Again, there was no indication or testimony about any suggestion or indication by any of the Ministry officials that Ms. Babashaverdi was to be given an opportunity to make contact to any person of her choice, including legal counsel.

Without having received a copy of the warrant from the Ministry officials, it seems that she was not made aware that that condition was being afforded to her by the Issuing Justice.

c) Next, "The search team leader will, on request, identify the search team members to the person in charge."

Again, this was not part of the testimony that the Court heard from the Ministry witnesses. None of the Ministry witnesses gave testimony to suggest that an effort was made by them to identify each of their team to Ms. Babashaverdi on January 26th.

d) Next, "Person in charge of the premises will be allowed to continue to care for any children who may be present."

e) Next, "The search team will not interfere with the person in charge of the premises who is providing care for any children who may be present."

f) Next condition, "The search team will not interview any child who may be present at the premise."

g) Next, "The person in charge of the premises will be afforded a reasonable opportunity to examine seized items before they are removed from the premises."

h) Next condition by the Issuing Justice, "The premises will be vacated immediately by the search team upon compliance of the search and a person from whom items are seized will, following the issuance of an order pursuant to s. 159 of the Provincial Offences Act, be notified in writing of the place wherein the seized items are stored and the procedure for gaining access to them."

i) Finally, the further and last condition or limitation imposed by the Issuing Justice on this warrant was, "To minimize the impact of the subject of the seizure of the cell phone, it will be submitted for examination, imaging by the Forensic Data Recovery Unit. A duplicate of the data contained will then be produced by the said unit. The said device will be then immediately returned to the subject of the search."

Re Assistance by Toronto Police Not Authorized by the Search Warrant

As stated, the Justice was not asked for nor granted an assistance order, for the Ministry officials on their own accord to have brought in two uniformed police officers with their flashing marked scout cars parked outside Ms. Babashaverdi's home. One Ministry official, Mr. Colm Doyle, testified that he called the police - without any reason to justify such a call such as the need because of some forceful resistance to the execution of the warrant - but, in his words, he had simply called the police in advance of the warrant even being issued. Once issued by the Justice, he had gone to the police station and waited for the company of police officers even before going to the location of Ms. Babashaverdi's residence. By his testimony, as well as that of other Ministry officials, Ms. Babashaverdi made absolutely no physical or other protest, despite her not understanding when there was a door knock what was about to happen to her and her family in their home.

In other words, there was absolutely no need or legislative authorization allowing or justifying such assistance by police in this situation. Mr. Colm Doyle in fact said that the Officers were brought in because he thought they had a calming presence' and there "so as to avoid potential problems."

This was contrary to s. 32(3): Ministry officials could call police only where there is an unanticipated responsive and reactive need for police presence on the scene.

Ms. Babashaverdi and her husband indicated in their testimony that the presence of 6 Ministry officials and particularly the 2 Officers was anything else but calming. Ms. Babashaverdi's husband spoke about a look of concern or shock on the faces of the children. The Ministry witnesses themselves, as well as Ms. Babashaverdi and her husband, testified about one child particularly who had started to cry at the sight of these strangers in their childcare space in the basement, a space where they were normally meant to feel safe under the care of Ms. Babashaverdi.

Re Condition Against Interruption of the Childcare Operation

The search warrant stated that the childcare was not to have been interrupted; i.e. The childcare provider was to be able to continue to care for the children. At the same time, the person from whom items were being seized was to have been afforded an opportunity to see what was being seized.

Effectively, the Ministry Officials in their execution of the search warrant did not afford Ms. Babashaverdi either the reasonable opportunity to see what was being seized, or the ability to have continued the care of the children in her childcare program at that time in her home.

In such a situation, it became effectively impossible for Ms. Babashaverdi to maintain the necessary care and support of the children still present, to coordinate reuniting them with the parents, and, as well, to tend to the other matters of search and seizure of items within her home and afforded the chance to see what, if anything, was being seized.

The Inspectors, particularly the first contact inspectors, Kathirganathan and Beckley, already knew, from their first contact date with Ms. Babashaverdi, that it was just Ms. Babashaverdi who was looking after the home childcare operation. They knew already that her other family members were not working with her in the childcare operation. And they knew this before they planned to execute the search warrant on the entire house, ultimately taking a phone(s), documentation and any other items they felt in their minds were determinative or relevant.

Re Timing of Execution of the Search Warrant

The Court has considered whether this was a reasonable execution of the search warrant granted by the Issuing Justice, who gave a entire couple of days, including times as early as 6:00 a.m. and 9:00 p.m. Did the Ministry's office think it was 'a good idea' to have arrived at the latter part of the afternoon when little children were in an afternoon-care or at the end of a full day childcare setting - when they would likely be getting tired and soon going home and picked up by parents, and when Ms. Babashaverdi was potentially transitioning between an afternoon childcare group to an after-school childcare situation?

The Issuing Justice indicated that the Ministry was to ensure "best efforts" that the execution of the warrant would "not cause a disturbance." This Court finds that the execution of the warrant by the Ministry was not in compliance with this term and condition of the Issuing Justice's Order, because the situation created by them on that date, on January 26th, was anything but not a disturbance.

Re Disruption of Flow of Persons and Children Into and Out of the Child Care

The evidence of officers and the other individuals present within the home, in total 8 individuals, indicated a disruption to what would have otherwise been the normal flow of people and cars into Ms. Babashaverdi's home and childcare situation that day, creating a challenge for parents to gain access into the home and their children in unobstructed fashion.

One can only easily imagine that some of those children's parents would have had difficulty in finding parking, or simply witnessing a situation of police vehicles flashing outside, hesitantly at least standing clear of the scene for perhaps some bit or more than a bit of time before ascertaining in their mind what exactly to do. As earlier mentioned by this Court …the disorganization, lack of planning, lack of any logging, lack of any real technique or professional approach in respect to the execution of the warrant further caused or created the disturbance.

Re The Length of Execution of the Search Warrant, and Need to 'Vacate Thereafter Immediately'

The execution of the search went on for such a prolonged period, over the course of three hours or more, the Ministry's own witnesses testified that consequently the children in care had to be temporarily watched by different people during that period- at one point watched by Colm Doyle -for another time, an Officer was downstairs, a police officer in uniform- for another period of time, Mr. Babashaverdi - for another part, Ms. Babashaverdi. This was not in compliance with the intent and wording of the Issuing Justice's Order. It was not the Justice envisioned or authorized.

This kind of a situation, this method and timing of the execution of their search warrant, was avoidable. If executed at a different other time, business records and phones would still have been present, but children under five would not then have been present and in care.

The Issuing Justice indicated, "The premises were to be vacated immediately on completion". Again, three hours or more, there was nothing immediate about that.

Re Condition Against Questioning During Execution of the Search Warrant

The words of the Issuing Justice directed the Ministry to get in, look for the business records, perhaps a phone with child contact names, and then get out. Period. The Issuing Justice did not authorize 'any disruption', and in fact specifically said that there was not to be a disruption and persons were "not to be questioned".

This Court finds that the actions of the Ministry, their execution of the warrant in this way, their manner of their having stopped and questioned parents and children who stood with them was not reasonable. This was not authorized by the Issuing Justice and was not justified in the circumstances. Arguably and, also most importantly, this was not in the best interests of the children in their childcare situation at that time.

The Ministry's own witnesses testified that the parents arrived at different times and so there was ongoing and staggered interruption to the parents and, indirectly, to the children. Parents were delayed thereby in accessing their children, and parents and children delayed by the questioning.

In the view of this Court, this questioning the parents with or without the children at their side, particularly when the children were not of an age to have been questioned directly, amounted to an indirect questioning by the Ministry officials of the child as well as their parent, which contravened the terms and conditions as set out by the Issuing Justice for the search warrant.

Re Duplication and Immediate Return of Cell Phones If Seized

Further, the Justice indicated that, if any cell phone was seized, it was to be simply "duplicated and returned immediately to the subject". The Court heard that it was just prior to the first trial date in July 2017, that Ms. Babashaverdi had her phone returned. The phone had away from her for at least a number of months, and not so immediately returned. And yet, the detention of the phone seemingly had nothing to do with its being kept for contents or data regarding parent contacts or otherwise, as nothing was presented from it by the Ministry for purposes of the prosecution of its case.

Re Photo Taking Not Authorized by the Issuing Justice

Further, the Court finds that the Ministry did not act in compliance with the terms and conditions as set out by the Issuing Justice when the Court learned that the same first-contact Inspector Kathirganathan chose to take photos on the search warrant date and while the search warrant was being executed.

This was not authorized by the Issuing Justice. That same witness for the Ministry then submitted those photos as items seized at the time of the execution of the search warrant. This was the close-up and the further away shot of the children in care. These photos were taken by Kathirganathan on January 26th but at a time at which even he himself does not exactly know. The Court believes that the photographs were taken with his own camera.

For this Search Warrant, the Issuing Justice authorized the seizure of items that were already items in existence, i.e. business records and any recording of contact records if contained within a phone. The Issuing Justice did not authorize the creation of new items by the Ministry's executing officials, nor give permission to this.

The Court finds also that this photo-taking would fall into a disruption that was sought to have been avoided by the Issuing Justice, a disruption to the circumstances, as well as, significantly, to the children's own privacy and sense of peace.

Re Court Finding That Search Warrant Not Executed as Authorized

Therefore, this Court has found that the execution was, due to various and numerous reasons, not in compliance with the terms and conditions as set out by the Issuing Justice back on the date of January 26th, 2017.

Re Court Finding That, HAD the Search Warrant Been Properly Executed, the Ministry Nonetheless Failed to Prove the Alleged Offences Beyond a Reasonable Doubt

Even if this Court had found that the search warrant was executed appropriately and lawfully, and therefore in a position to accept the items presented by the Ministry Officials as exhibits seized in the course of that search, this Court finds that there was in fact nothing seized by the Ministry personnel on that date which would so substantively advance the Crown's case to a level of proof beyond a reasonable doubt in regards to either and both of the alleged offences against Ms. Babashaverdi.

The Ministry failed to seize and/or if seized, failed to present any of Ms. Babashaverdi's teaching documents, student record logs, student files, food charts, teaching ledgers, attendance records, cancelled cheques, lists of children, bookkeeping documentation and/or any other documentary or business proof of a number of students in her care in contravention to the Act and its provisions. In fact, the only financial documentation that was presented to this Court was that from Ms. Babashaverdi herself, besides of course the Ministry's copies of the rental cheques that Ms. Babashaverdi and her family gave to their landlord.

This Court is not satisfied that (1) the photos by themselves; and/or (2) the testimony presented by the Ministry; and/or (3) the information from the Ministry in regard to their so-called covert surveillance of Ms. Babashaverdi's home, individually or collectively established evidence to support proof beyond a reasonable doubt.

This Court accepts Ms. Babashaverdi's own testimony about the number of children she had in her care for each of the given childcare programming units of a given day.

Re Availability of Defense of Due Diligence to Ms. Babashaverdi HAD the Ministry Proved the Allegations Beyond a Reasonable Doubt

Even if this Court were to have been satisfied, which it was not, of a case made out by the Ministry beyond a reasonable doubt in respect to each of its elements of the alleged infractions, these infractions fall within the category of strict liability offences, wherein Ms. Babashaverdi is afforded the defense of due diligence and reasonable care.

This Court would have been satisfied that she did exercise just that, due diligence and care, in her efforts, both then, before, at the time of and subsequent to the search warrant was presented at her door.

Re Potential Consequences of Convictions for Obstruction, Operation Outside Regulated Number of Children, and/or Non-Disclosure of Statement of Status

Upon a conviction for the offence of 'obstructing a Ministry official in the execution of his work or duties', this Court turned to one of the information sheets that was quickly passed to Ms. Babashaverdi on January 24th, 2017. Appreciating that this was sort of a synopsis or short form version of some of the legislative provisions, this Court looked in that Ministry Handout where it was indicated, "Offence:" "Obstruction of an inspector is an offence under s. 78(1) of the Child Care and Early Years Act. A person convicted of an offence under this Act is liable to a fine of not more than $250,000, imprisonment for a term of not more than one year, or both."

In addition to that consequence, by looking through some of the other materials presented, as well as the Act, its legislation and regulations, the Court recognized that a conviction for non-compliance, and particularly also for obstruction, would have been posted publicly against her on the Ministry website.

Again, in review of the materials, legislation and Regulations provided, the Court recognized that if Ms. Babashaverdi were convicted of such an offence, that conviction would potentially preclude her in the future from obtaining her licensing of her childcare operation.

Turning to the other alleged offences … In respect to the allegation whereby the Ministry contends she had more than the regulated number of children in her care at a given time – I am just looking for the specific provision. I will not take too long to look for it because of the time of the day right now being after five o'clock … The Court, without referring more specifically to it, recognized that the potential penalty in regard to such a non-compliance-conviction would have placed the Ministry in a position to have potentially asked for an amount of approximately $2,000 per child, per number of children in excess of the regulations.

In regard to the other non-compliance alleged - This was not an offence alleged on the Information, but just in the context of the situation – that she had not provided the written statement of her unlicensed status. Ms. Babashaverdi remedied that immediately, and well within the 48 hours that should generally have been afforded to her for a global response to the alleged infractions.

Re Proper Exercise of Power by the Ministry

The Ministry clearly has a tremendous amount of power in these situations. With a lot of power comes a lot of responsibility to exercise such power with care.

In this Court's view, such care was not taken with Ms. Babashaverdi, her family, nor the children in her care on the dates of January 24th and January 26th, 2017.

The Court is dismissing both charges against her and trusts that the Ministry of Education, its representatives and officials, will more carefully consider how their power is to be exercised appropriately in the future, particularly when the Act speaks about collaboration in the community and an opportunity for compliance. And it is, after all, the Ministry of Education. One would hope that the Ministry of Education would look to do just that, educate.

JUDGMENT: BOTH CHARGES DISMISSED

End of Judgment