WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

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

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

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2019-06-17

Court File No.: Woodstock C224/17

Between:

Children's Aid Society of Oxford County Applicant

— AND —

E.M.T. M.A.R. H.L.J.M. Respondents

Before: Justice S. E. J. Paull

Motion for Recusal heard: June 10, 2019

Reasons for Judgment released on: June 17, 2019

Counsel

Jane Hegney — counsel for the applicant

James Battin — counsel for the respondent(s), M.A.R.

Gary D. McQuaid — counsel for the respondent(s) E.M.T.

Susan Gordon — Office of the Children's Lawyer

PAULL J.:

Introduction

[1] Before the court is a motion brought during the trial by the respondent M.A.R. for an order that I recuse myself as the presiding judge.

[2] M.A.R. argues that the court's examination of the Society's worker, Ms. Devos regarding her training during a voir dire on the threshold admissibility of the children statements, and then incorporating two of her answers into the ruling created a reasonable apprehension of bias.

[3] The motion is opposed by the Society, E.M.T., and the Office of the Children's Lawyer.

[4] I have considered the factums filed by the parties, the submissions of counsel, and the affidavit of M.A.R. at tab 17 with attachments including the transcripts and Reasons for Judgment in the voir dire.

Background and Evidence

[5] This matter was commenced by way of a protection application dated November 20, 2017 seeking a supervision order placing the 3 children with their mother E.M.T. with discretionary access to M.A.R. with his biological children J.R. (male born […], 2009) and O.R. (female born […], 2011) and his step-child M.R. (female born […], 2006), and with discretionary access to H.L.J.M. with his biological child M.R.

[6] E.M.T. supports the position taken by the applicant.

[7] H.L.J.M. has not participated in these proceedings and was noted in default on January 23, 2018.

[8] M.A.R. seeks a custodial order in favour of E.M.T. with his periods of care and control of the children as outlined in a domestic agreement dated October 23, 2017 between himself and E.M.T.

[9] As part of its case the applicant sought to tender out-of-court statements made by the children to third parties for the truth of their content.

[10] E.M.T. supported the applicant's position that the statements were admissible under the principled approach to hearsay.

[11] M.A.R. opposed the admission of the statements on the basis that both the elements of necessity and threshold reliability were not met. He took the position that the children should be required to give viva voce evidence if the applicant sought to rely on any evidence offered by them.

[12] It was agreed that, prior to the trial, the voir dire would be held to determine the issue of the necessity element of the principled hearsay exception, with a separate voir dire, if required, being conducted regarding the issue of threshold reliability.

[13] Counsel for the children agreed with the applicant and E.M.T. that the issue of necessity was established.

[14] The voir dire concerning necessity was held on December 3, 2018. In Reasons for Judgment released on December 20, 2018 the court found that the test for reasonable necessity had been met with respect to the younger children, J.R. and O.R., subject to threshold reliability, and that the test for reasonable necessity was not found with respect to the child M.R.

[15] Trial in this matter commenced on March 26, 2019. On that date a further voir dire was held to determine whether the statements of J.R. and O.R. to the worker Ms. DeVos met the standard for threshold reliability. The applicant and E.M.T. argued that threshold reliability was met, with M.A.R. and counsel for the children arguing that it was not.

[16] The facts that form the basis of this motion are straightforward.

[17] During the voir dire regarding threshold reliability, after all counsel had completed questioning Ms. DeVos, the following exchange took place between the court and Ms. DeVos:

Q: Do you receive any special training on interviewing children?

A: Yes we do. We receive forensic interviewing.

Q: What's that entail?

A: It entails the specific questions that you need to ask children based on their age and their development, and how to talk about concerning details for children, like embarrassing details.

Q: When was that?

A: I would have had that within my first two years of employment.

Q: What did it entail?

A: It's usually a, a one-day, and it's through the OACAS.

Q: Which is?

A: Which is the Ontario Association of Children's Aid Society's. And you get a certificate if you do well.

Q: Did you successfully complete it?

A: Yes I did.

Q: Are you required to take notes when you interview children?

A: Yes.

Q: Do you take them at the time of the interview?

A: Yes, I do.

Q: Did you do that in the case of these children?

A: Yes, I did.

Q: When you prepared your affidavit, was it pursuant to those notes?

A: Yes, it was.

[18] Following this exchange all counsel were given the opportunity to ask further questions arising out of mine and declined.

[19] In oral Reasons given on March 27, 2019 the court found that the children's statements to the worker met the test for threshold reliability on the basis that there were sufficient elements of both procedural and substantive reliability present in the case.

[20] In the Reasons the court reviewed the evidence and identified numerous elements which supported procedural reliability which included that the worker had successfully completed training in the forensic interviewing of children and that she was under duty to record the interviews contemporaneously and confirmed that she had done so.

[21] On March 29, 2019, the third day of trial in this matter, counsel for M.A.R. advised the court and the parties that he would be bringing a recusal motion.

The Legal Framework

[22] The onus of demonstrating bias or a reasonable apprehension of bias lies with the person who is alleging its existence. Whether a reasonable apprehension of bias arises, will depend entirely on the facts of the case.

[23] In R. v. S.(R.D.), the Supreme Court set out the applicable test and stated as follows at para. 111:

111. The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.

[24] In R. v. S.(R.D.), supra, the Supreme Court addressed the reasonable person component at paras. 36 and 37:

The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice & Liberty, supra.) The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.

It follows that one must consider the reasonable person's knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred.

[25] In Bailey v. Barbour, 2012 ONCA 325, the Ontario Court of Appeal considered the law of apprehension of bias. The Court discussed the law and, beginning at paragraph 19, stated the following:

[19] In addition to this "high" threshold set out by Cory J., the Supreme Court has made clear that, in those cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality. Moreover, "in any case where the impartiality of a judge is in question, the appearance of the matter is just as important as the reality" . . . .

[20] In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304, [1969] 1 Q.B. 577 (C.A.), at p. 310 All E.R., Lord Denning M.R. stressed the importance of the appearance of judicial impartiality. He put the matter this way:

[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself . . . . It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.

[26] The test for demonstration of a reasonable apprehension of bias by a judge is an exacting one. It, together with the strong presumption of judicial impartiality, pose a steep hurdle for litigants who seek to overturn a judicial ruling based on the alleged bias of the judicial decision-maker. See for example, Mwanri v. Mwanri, 2015 ONCA 843; Martin v. Sansom, 2014 ONCA 14, 118 O.R. (3d) 522; Tiveron v. Collins, 2017 ONCA 462.

[27] The matter before the court is a child protection application and as such there are further legal considerations.

[28] Morden J.A. on behalf of the Ontario Court of Appeal stated in Gordon v. Gordon, [1980] O.J. No. 1469 (C.A.) that, "[a] custody case, where the best interests of the child is the only issue, is not the same as ordinary litigation and requires, in our view, that the person conducting the hearing take a more active role than he ordinarily would take in the conduct of the trial. Generally, he should do what he reasonably can to see to it that his decision will be based upon the most relevant and helpful information available".

[29] A judge should not intervene in counsel's presentation of the evidence to such an extent that trial fairness or the appearance of impartiality is compromised. However in cases involving children, the trial judge has a wider latitude. The following review of the law was noted by Brownstone J. in Catholic Children's Aid Society of Toronto v. A.V., 2010 ONCJ 657:

[8] That being said, it is well recognized that, in family law cases, especially where a child's best interests are at stake, a trial judge can take a more active role than in ordinary civil litigation: Gordon v. Gordon (1980), 23 R.F.L. (2d) 266, [1980] O.J. No. 1469, 1980 CarswellOnt 341 (Ont. C.A.); Catholic Children's Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., 139 D.L.R. (4th) 534, [1996] O.J. No. 3018, 12 O.T.C. 161, 1996 CarswellOnt 3160 (Ont. Gen. Div.); Cundy v. Irving, 106 B.C.A.C. 5, 48 B.C.L.R. (3d) 344, 172 W.A.C. 5, 37 R.F.L. (4th) 401, [1998] B.C.J. No. 754, 1998 CarswellBC 718 (B.C.C.A); Muir v. Sabean, 2003 NSCA 99, 217 N.S.R. (2d) 168, 683 A.P.R. 168, 47 R.F.L. (5th) 135, [2003] N.S.J. No. 344, 2003 CarswellNS 351 (N.S.C.A.); Catholic Children's Aid Society of Toronto v. S. (Giovanna) and C.-C. (Roberto), 133 A.C.W.S. (3d) 92, [2004] O.J. No. 3460, 2004 CarswellOnt 3392 (Ont. S.C.); Children's Aid Society of Waterloo Region v. Rhonda C., 2009 ONCA 840, [2009] O.J. No. 5107, 2009 CarswellOnt 7411 (Ont. C.A.); Children's Aid Society of Brant v. S.C.(K.)M.R., 2010 ONSC 5846, [2010] O.J. No. 4584, 2010 CarswellOnt 8221 (Ont. S.C.), at paragraph [19]. In appropriate cases, this can include the authority to insist upon more evidence than the parties have presented. In Farrar v. Farrar, 63 O.R. (3d) 141, 167 O.A.C. 313, 222 D.L.R. (4th) 19, 32 R.F.L. (5th) 35, [2003] O.J. No. 181, 2003 CarswellOnt 195 (Ont. C.A.), which was a matrimonial property case, the trial judge was held to have acted improperly by demanding additional evidence. Note, however, the comments of Appeal Justice Louise V. Charron at paragraph [27]:

[27] . . . This case was not one, for example, where the best interests of a child may be at stake giving rise to different considerations that may allow for the gathering of further evidence at the direction of a trial judge.

[9] There have been custody and access cases where the court has insisted upon further evidence: Stefureak v. Chambers (No. 4), 17 R.F.L. (6th) 374, [2005] O.J. No. 1962, [2005] O.T.C. 377, 2005 CarswellOnt 1935 (Ont. Fam. Ct.); Hewitt v. Hewitt, 2004 ONCJ 325, 135 A.C.W.S. (3d) 662, [2004] O.J. No. 5127, 2004 CarswellOnt 5361 (Ont. C.J.). It seems to me that, if this can be done in private disputes between parents, it should most definitely be an available option to the court where the state is seeking to terminate parental rights and place a child for adoption. The legislature itself has recognized this principle by enacting section 49 of the Act, which permits the court in child protection cases to call witnesses who were not called by any party. That provision would probably not apply to the situation in this case, because I have required the creation of evidence that did not exist (a fresh hair drug screen) rather than to summon a witness to present evidence that already exists, as was done in Children's Aid Society of London and Middlesex v. Sharon K. and Tom J., 149 A.C.W.S. (3d) 611, [2006] W.D.F.L. 3458, [2006] O.J. No. 2662, 2006 CarswellOnt 4027 (Ont. Fam. Ct.), where the court on its own motion ordered the production of police occurrence reports. Nevertheless, I find that, in child protection cases where a parent's drug use is the singular discrete issue to be addressed in assessing a child's best interests, the court has the authority to request a parent to provide a recent drug screen and, if the parent agrees to submit to the drug test, the results are admissible in evidence, and any party may call further evidence arising from or relating to the drug test. I specifically refrain from commenting on whether the court has the authority to compel an unwilling parent to submit to a drug test.

[30] Section 49 of the CFSA referred to by Brownstone J. which provided legislative authority for the court to take a more active role in protection proceedings was included in the CYFSA as section 92 which provides:

Power of the court

92. The court may, on its own initiative, summon a person to attend before it, testify and produce any document or thing, and may enforce obedience to the summons as if it were made in a proceeding under the Family Law Act.

[31] In Métis Child, Family and Community Services v. M.(A.J.) et al, 2008 MBCA 30, Steel J.A. stated the following on behalf of the Manitoba Court of Appeal:

51. Where the welfare of children are concerned, the trial judge may intervene as much as is necessary in order to clarify the facts, confirm his understanding of expert testimony and generally make sure his appreciation of the evidence is correct. If necessary, he or she may intervene to keep the proceedings moving along efficiently. This is true in custody cases, but even more necessary in child protection cases where the state with all the resources at its disposal is intervening in a substantial way in the relationship between children and their parents. See New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, Cundy v. Irving (1998), 37 R.F.L. (4th) 401 at para. 4 (B.C.C.A.), and Gordon v. Gordon (1980), 23 R.F.L. (2d) 266 (Ont. C.A.), where Morden J.A., referring to the trial judge, stated (at p. 271):

Generally, he should do what he reasonably can to see to it that his decision will be based upon the most relevant and helpful information available.

52. And so I agree with the trial judge when he stated with respect to the motion for mistrial (at para. 9):

The trial judge has the right and a duty to intervene, to clarify and to ask questions in order to fully appreciate the evidence. He is to make a decision on the best evidence available. If not satisfied, he has available to him by statute, the right to call his own evidence.

53. However, none of that allows the trial judge to intervene in such a manner and with such language that a reasonable apprehension of bias arises. The appearance of impartiality should not be compromised.

54. The Ontario Superior Court of Justice in Authorson (Litigation Guardian of) v. Canada (Attorney General) (2002), 32 C.P.C. (5th) 357, summarized the principles set out in R. v. S. (R.D.), some of which are reproduced here as they apply to the case at bar (at para. 9):

55. Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues.

56. "Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair." (at p. 524 S.C.R.)

57. The party alleging bias has the onus of proving it on the balance of probabilities.

58. Prejudgment of the merits, prejudgment of credibility, excessive and one-sided interventions with counsel or in the examination of witnesses and the reasons themselves may show bias. The court must decide whether the relevant considerations taken together give rise to a reasonable apprehension of bias.

59. The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.

60. Nonetheless, if the judge's words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision. Therefore, on appeal, a finding of actual or apprehended bias will ordinarily result in a new trial.

58 Thus, an apprehension of bias will not result merely from the active participation of a judge in the trial. There must be something more. There is a point at which judicial intervention becomes interference, the image of impartiality is destroyed and the court is deprived of its jurisdiction. See Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 23 O.R. (3d) 362 at 369 (C.A.). As held by the court in Authorson (at para. 9):

A trial judge has the right, indeed the duty, to intervene to clarify and understand the evidence or to control the trial, provided that in intervening, the trial judge does not prejudge the issues in dispute or the credibility of the witnesses.

And, as has been held by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851 (at para. 3):

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.

Analysis and Findings

[32] The starting point is that the onus is on the moving party. What is required is cogent evidence to overcome the presumption of impartiality.

[33] M.A.R. is not submitting that the court showed actual bias, but that I intervened improperly by the questions posed and by the use of the answers in the Reasons. These, he submits, give rise to reasonable apprehension of bias.

[34] For the following reasons, M.A.R. has not satisfied the onus of establishing a reasonable apprehension of bias.

[35] The analysis is conducted from the point of view of a reasonable and right minded person. That reasonable person must be one who is informed with reasonable knowledge of all the relevant circumstances and an understanding of the judicial process and nature of judging in child protection matters.

[36] That reasonable person would be aware of the expanded role of a judge in family law matters and in child protection matters in particular. In a case where the paramount consideration is the best interests of children, the court not only has the authority but the duty to intervene to clarify and understand the evidence.

[37] Further, that reasonable person would be aware that both the case law and the CYFSA provide the court in protection proceedings with the authority to insist on more evidence than the parties presented.

[38] Section 92 of the CYFSA provides specific legislative authority to the court in child protection proceedings to summon and question witnesses on its own initiative.

[39] I am of the view that a reasonable person would agree with the submission of OCL counsel as outlined in her factum that if judicial interference is not triggered by a trial judge compelling and questioning a witness who was not summoned by any of the parties, it would not be triggered by a trial judge questioning a witness who has been summoned by one of the parties.

[40] The granting of the legislative power in section 92 of the CYFSA underscores the importance of the court having all the relevant information available in making decisions concerning the protection and well-being of children.

[41] As such, the court is empowered to intervene including by asking questions of a witness where appropriate. The issue then is whether the nature and manner of the court's questions in this case gives rise to reasonable apprehension of bias. I am of the view that a reasonable person would reach the conclusion that they do not.

[42] In reaching this position, that reasonable person would also consider the following:

1. The questions themselves posed by the court did not convey any partiality or suggest a prejudgment of the issues or the credibility of the witness.

2. The intervention was not excessive or one-sided.

3. Counsel's presentation of the evidence was not interrupted and the questions posed by the court were done after all counsel were finished examination.

4. All counsel were provided an opportunity to address any further issues with the witness that may have arisen from the court's questions.

[43] M.A.R. also argues that a reasonable apprehension of bias is established on the basis that, but for my questions the applicant would not have established threshold reliability.

[44] I am not convinced a reasonable person informed of the judicial process and the circumstances of this case would agree with this proposition for two reasons.

[45] Firstly, the submission that the two elements elicited from Ms. DeVos regarding her training and note taking, which are referred to in the Reasons, were primarily responsible for the court's finding is not accurate.

[46] In the Reasons the court identified approximately 20 elements in the evidence that established procedural and substantive reliability. A review of the Reasons makes it clear that considerations of Ms. Devos' training and note taking, while relevant, were simply two of many indices supporting threshold reliability.

[47] Secondly, and perhaps more importantly, even if the evidence adduced by the court was the primary basis for the finding, that nonetheless would have remained consistent with the broad latitude that the court has when children's best interests are involved to ensure that it has the most relevant and helpful evidence available.

[48] The issue on the voir dire was an important one and involved the admissibility of the children's statements through third parties. The best interests of the children necessitate that the decision to admit the statements be on the best evidence available. This approach is also consistent with the court's gatekeeper function to ensure that, among other considerations, only sufficiently reliable evidence is admitted.

[49] The Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008) (the "Goudge Report"), released on 1 October 2008, states that judges have a vital role to play in protecting the legal system from the dangers of unreliable evidence. Although his report dealt with the dangers of unreliable expert evidence, the commentary in Commissioner Stephen T. Goudge's report applies to the dangers of admitting unreliable evidence of any nature. Children's Aid Society of Toronto v. L.L., 2010 ONCJ 48.

[50] The questions posed to Ms. DeVos by the court were straightforward and routine, and on issues that counsel ought to have been exploring in the circumstances of a voir dire on threshold admissibility.

[51] Further, a reasonable person informed of the issues would also recognize the distinction between a voir dire decision and the final decision on the Society's protection application at the end of the trial.

[52] An allegation of bias on the part of a judicial officer or the assertion of a reasonable apprehension of bias must rest on substantial and serious grounds, in light of the strong presumption of judicial impartiality.

[53] It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic. Beard Winter LLP v. Shekhdar, 2016 ONCA 493.

[54] In this case, a reasonable person would know that the questions asked were designed to clarify the evidence and were aimed toward soliciting such evidence as was required to make an appropriate order in the best interests of the children.

[55] That reasonable person would recognize that the questions posed were entirely consistent with the court's duty in child protection proceedings and were reasonably necessary to ensure that the important decision regarding the admissibility of the children's statements was based on the most relevant and helpful information available.

[56] That reasonable person would also understand that to disqualify a judge on the basis of the grounds submitted given the circumstances of this case and the law, with the resultant waste of resources, the excessive delay in the proceedings which would represent an injustice to the parties, most particularly to the children, would undermine the administration of justice.

[57] In my view, that reasonable person would inevitably conclude, on the basis of all these considerations, that there is no reason to be concerned about a reasonable apprehension of bias on the part of the court.

[58] As such, the motion is dismissed.

Released: June 17, 2019

Signed: "Justice S. E. J. Paull"