Court File and Parties

WARNING

The court hearing this matter directs that the following notice be attached 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.

Date: June 15, 2021 Court File No.: FO-17-00000266-0001

Ontario Court of Justice

Between:

OGWADENI:DEO SIX NATIONS CHILD WELFARE Applicant

– AND –

K.L.H. Respondent

– AND –

J.P.M. Respondent

– AND –

S.H-H. Added Party

Remotely Before Justice K. A. Baker

Hearing: May 12, 2021

AMENDED Reasons for Judgment on Voir Dire

Released: June 15, 2021

Counsel: J. Soney ……………………………….……………………………………………… Counsel for the Applicant A. Macdonald ………………………………………………..……………….…..………….. Counsel for K.L.H. E. Montour ……………………………………………………………………..…………….. Counsel for J.P.M. M. Elchami ………………….………………………….…………………………………… Counsel for the Band D. Maltby ……………….…………………………………………………………………….… Counsel for S.H-H. M. Pilch ……………………………………………….. Counsel for the Office of the Children’s Lawyer

Reasons for Judgment

BAKER, J. :

[1] On May 12, 2021, I ruled on a voir dire to determine whether to qualify a witness as an expert and permit him to provide opinion evidence. The witness was not qualified, and his report was not tendered into evidence. I provided brief oral reasons at the time and indicated more comprehensive written reasons would follow.

[2] These are my reasons.

[3] The Applicant child protection agency sought to qualify Dr. John Baird as an expert in the field of child maltreatment in relation to the subject child J.M., born […], 2015. The First Nation, the mother and the maternal grandmother joined with the Applicant. The father acknowledged that the witness was an “expert”, but sought the exclusion of his report on the grounds that its probative value was outweighed by the potential prejudice of its content. The OCL took the position that Dr. Baird should not be qualified and therefore not allowed to give opinion evidence.

[4] Dr. Baird is a qualified pediatrician with extensive experience assessing children who are suspected of having suffered maltreatment. He is based out of the Child Assessment and Advocacy Program (CAAP) at McMaster Children’s Hospital in Hamilton, Ontario, where he is a staff pediatrician and the Medical Clinic Lead for CAAP. He is a fellow of the Royal College of Physicians and Surgeons and a Licentiate of the Medical Council of Canada.

[5] Dr. Baird began his professional career in 1998, in Sudbury, Ontario, where he maintained a consulting pediatric practice including neonatal intensive care, emergency and office consultations, and ward-based care. He was appointed Chief of Pediatrics of Sudbury Regional Hospital for the period of December 1999 until 2003. During his tenure at Sudbury Regional Hospital, Dr. Baird was a consultant pediatrician in the diabetes education and care program and in the Cystic Fibrosis clinic. Dr. Baird’s curriculum vitae, entered as an exhibit on the voir dire, indicates that, beginning in September 2006, and continuing to present, he has been a Consultant/Expert with the Provincial Pediatric Sexual Assault Network. His work with CAAP commenced in September 2009. He is also an associate professor with the Department of Pediatrics at McMaster University.

[6] Dr. Baird testified that he has been qualified on approximately 40-50 occasions as an expert in pediatrics and child maltreatment. He said he has never not been qualified following voir dire. The curriculum vitae also sets out the very many occasions on which Dr. Baird has been an invited speaker/presenter on pediatrics and child maltreatment. Although Dr. Baird said that he mainly undertakes clinical work, he has also, more recently authored, in conjunction with colleagues, various scholarly articles in relation to detection of injuries in suspected abuse, appropriate referral in suspected abusive head trauma, and medical evaluation of children with suspected sexual abuse.

[7] In response to cross examination, Dr. Baird acknowledged his medical school education did not include any education on child maltreatment. (There was no such content in medical school education at the time.) Dr. Baird developed an interest in the field during his residency and consulted with two other physicians on the topic, thus beginning his learning in the field. He supplemented this with work through Sick Children’s Hospital in Toronto. During his time in Sudbury, he also received mentoring from the Suspected Child Abuse and Neglect (SCAN) program at the Hospital for Sick Children.

[8] In response to questions from the Bench, Dr. Baird indicated that child maltreatment has only recently been recognized as a subspecialty by the Royal College of Physicians and Surgeons. Training requirements have been in development for about ten years. Very recently a diploma was established to certify competency. Unlike some other medical subspecialties, such as cardiology, this credential is not subject to fellowship requirements.

[9] So far only one doctor in Canada has qualified for a diploma in child maltreatment. As a result of that person’s experience with the training program, (it apparently being too arduous), the program is being re-vamped and is not currently available. Dr. Baird has not taken the program leading to the diploma in child maltreatment, and accordingly does not hold a diploma in the field.

[10] Dr. Baird is a member of the Canadian Pediatric Society and the Society has a section on child maltreatment. He is a member of that section.

[11] In cross-examination, Dr. Baird defined child maltreatment pediatrics as an area that attempts to answer or assist in determining the question of whether a child has experienced the forms of maltreatment recognized, being inter alia, emotional, physical, sexual maltreatment, and neglect. He said that his role as an expert in that regard is to gather information from available sources, examine the child, do assessment as needed and based on those actions, come up with an opinion as to the likelihood a child has been exposed to any of those forms of maltreatment.

[12] Dr. Baird examined the subject child on October 16, 2019 and he then prepared a report dated November 28, 2019. The reason for the assessment was a concern that the child might have experienced sexual abuse. Dr. Baird then concluded, “In summary, J.’s medical examination cannot contribute to a determination of whether or not she has been sexually abused”.

[13] The report then goes on to offer an opinion on the potential for the child having suffered other maltreatment, going on to say, “Having said that, the statements that she has made raise significant concerns that she has experienced and/or learned about some age inappropriate sexual concepts and theories. There is also concern that she has been exposed to violent adult conflict either directly or otherwise.”

[14] The findings in the report are based on information provided by child protection worker Melisa Sayegh, the maternal grandmother who accompanied the child (and who was at the time and remains the caregiver of the child) and by physical examination of the child. The child herself was not questioned on any subject.

[15] The report describes the physical examination of the child, which was inconclusive for sexual abuse. It is noted that medical literature indicates that the vast majority of prepubertal girls suspected of having been sexually abused have no findings of genital injury when examined.

Legal Test for Expert Evidence

[16] The legal test for the admission of expert evidence has been set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 and further clarified in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[17] Opinion evidence is presumptively inadmissible. The party seeking to introduce it bears the onus of establishing its admissibility on a balance of probabilities.

[18] Expert evidence is admissible when it meets the test set out in the following two stage process:

First, the evidence must meet the threshold requirements of admissibility. Accordingly:

a) The evidence must be logically relevant, b) The evidence must be necessary to assist the trier of fact, c) The evidence must not be subject to any other exclusionary rule, d) The expert must be properly qualified, and e) For opinions based on novel of contested science of science used for a novel purpose, the underlying science must be reliable for that purpose.

[19] The court must then proceed to the second gatekeeping stage and weigh the benefits of admitting the evidence against the potential risks considering such factors as:

a. Legal relevance b. Necessity c. Reliability d. Absence of bias

[20] The potential dangers of the admission of expert evidence were discussed at some length by the court in R. v. Mohan, supra. Sopinka, J. noted the following:

“There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. As LaForest J. stated in R. v. Béland, [1987] 2 S.C.R. 398, with respect to the evidence of the results of a polygraph tendered by the accused, such evidence should not be admitted by reason of “human fallibility in assessing the proper weight to be given to evidence cloaked under the mystique of science”.

[21] As Justice Penny Jones stated in Children’s Aid Society of Halton v. J.B. and D. T., 2018 ONCJ 884,

“Given the real risk that a miscarriage of justice will arise from the too-ready admission of unreliable expert opinion evidence into the trial record for consideration by the trier of fact (examples of which are documented in the Goudge and Motherisk reports), trial judges, as gatekeepers, have been directed to actively scrutinize the credentials of the experts and the nature of the opinion evidence sought to be adduced at the front end by way of a voir dire. The purpose of doing so is clear—it is to weed out unreliable opinion evidence that would offer little benefit to the trial process, given its unreliability, and might distort and prejudice the fact-finding process. See R. v. Abbey, 2017 ONCA 640

The danger of admitting unreliable expert opinion evidence has not been restricted only to situations where a jury is involved. Judges sitting alone on criminal cases and in civil matters have recognized the importance of keeping out unreliable opinion evidence rather than allowing it in and letting all of the frailties of the evidence go to weight and not to admissibility. See Brandiferri v. Wawanesa Mutual Insurance, et al., 2011 ONSC 3200 where Lauwers, J. wrote:

“Trial judges are expected to play a fortified gatekeeper role, and not just in criminal cases or just in cases with a jury. Judges are increasingly aware that for them too, the bell cannot be easily unrung. It is better that inadmissible evidence is simply not heard.”

[22] Where the court is faced with a witness whose expertise is in novel science, special scrutiny of that science is required.

[23] In R. v. J.-L.J., [2000] 2 S.C.R. 600, Binnie, J. set out the considerations on which the court must undertake its “special scrutiny” of novel science as follows:

1. whether the theory or technique can be and has been tested:

Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.

2. whether the theory or technique has been subjected to peer review and publication:

Submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected.

3. the known or potential rate of error or the existence of standards; and,

4. whether the theory or technique used has been generally accepted:

A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.”

Widespread acceptance can be an important factor in ruling particular evidence admissible, and a “known technique which has been able to attract only minimal support within the community”, …may properly be viewed with skepticism.

[24] The court then quoted Sopinka, J. in Mohan saying:

“In summary therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert.”

[25] The party putting forward this form of evidence must demonstrate that there is a reliable foundation for the novel science.

Application to Child Maltreatment as a Novel Theory

[26] I find that ‘Child maltreatment’ is a novel theory or technique. Although a defined program of study and experience was developed in the last few years, that program has since been suspended. A single diploma in the subspecialty was granted prior to the suspension of the program. At present, there is no specific training program, and the diploma program is in limbo. The previously established training requirements are apparently being re-vamped. Child maltreatment has only recently been recognized as a subspecialty by the Royal College of Physicians and Surgeons.

[27] In applying the considerations for scrutiny of novel science, I note the following:

[28] There was no evidence to demonstrate what precisely are the theories or techniques employed in assessing child maltreatment as a general field of scientific or medical inquiry. Accordingly, there is no evidence that these theories/techniques/principles are even capable of being tested, let alone that they actually have been tested.

[29] There was no evidence that the discipline of child maltreatment assessment generally, has been the subject of scholarly consideration. Of the various scholarly articles that Dr. Baird co-authored, none were identified as having been peer reviewed. None were related to the reliability of a general field in child maltreatment. The articles that did pertain to child maltreatment were in relation to very specific aspects of what would appear to be physical examination of injuries — such as abdominal visceral injury, or head injury [1]. Dr. Baird did co-author one article on medical evaluation of prepubertal children with suspected sexual abuse. There was however no indication of how that might validate a more general theory of assessment of child maltreatment.

[30] There was no evidence as to what, if any, standards apply to a generalized theory/discipline of child maltreatment assessment. This is particularly concerning given that the process involves the taking of information upon which the opinions are based. So, for example, there appears to be no standard as to the quality of the information upon which the opinion is based. Here, there was no indication that Dr. Baird took any step to ensure that the information he was receiving and upon which he said he based his opinion, was reliable.

[31] The fact that the Royal College has accepted child maltreatment as a subspecialty does support that it has a degree of acceptance in the medical/scientific community. The absence of a universal or generally accepted training program, or pathway to accreditation however, together with the lack of any specific credential, derogates from the notion that there is a general acceptance of a theory or discipline of ‘child maltreatment’.

[32] A significant part of the problem here arises from the amorphous nature of the medical/scientific discipline that was presented as the ‘science’ at hand. It was clear from the cross-examination that the Society sought to qualify Dr. Baird to opine that the child had been exposed to violent adult conflict directly or otherwise based on the ‘information’ that he was solely provided by the child protection worker. (Dr. Baird did not speak with the child other than to effect the physical examination, such as ‘which ear would you like me to look in first?’). There was also no evidence that Dr. Baird took any steps to establish the reliability of the information which he used to form his opinions.

[33] ‘Child maltreatment’ then, was being presented as some overarching discipline wherein the ‘expert’ can ascertain whether a child has been the subject of any form of maltreatment. This seems to be where the concept truly breaks down. While it is understandable that a pediatrician might well have the expertise to assess a child’s injuries as being likely caused by trauma (and thus maltreatment or abuse), it is less clear how a pediatrician could have expertise to assess child maltreatment on the basis of hearsay information of unknown reliability.

[34] Given the lack of threshold reliability in the discipline or theory of the area proposed, being ‘child maltreatment’, the proposed evidence fails to pass the first branch of the test for admissibility.

Balancing Benefits and Risks

[35] Even had I found that the Applicant had established that ‘child maltreatment’ is a theory or discipline for which there is threshold reliability, I would still have excluded the evidence on the basis that the risks of its admission outweighed any benefit.

[36] The import of a child maltreatment report is in many ways, analogous to a parent capacity assessment, which was the nature of the report being considered in CAS Halton v. J.B. supra. In that case, the court noted that the report had a significant impact on the approach taken by the society and if accepted by the court, would have set out a clear path forward — being extended care.

[37] The opinions in this report touch on one of the ultimate issues for this court’s determination: That is, was the child exposed to harm in the father’s care? The conclusion on this point would obviously point to a clear path forward: the child should not be returned to her father’s care.

[38] As noted by Molloy, J. in R. v. France, 2017 ONSC 2040 at para 12:

“The necessity factor is raised where the expert’s proposed evidence impinges on the role of the trier of fact, often offering an opinion on the very question that the jury is required to answer. Sometimes, because of the nature of the question to be answered by the jury, expert testimony on the issue is essential for the jury to understand the subject matter. However, the trial judge must be vigilant to ensure that the expert’s testimony does not stray from the true area of the witness’s expertise and into the fact-finding role of the jury.”

[39] In these circumstances, there would be a significant risk of a miscarriage of justice as a result of the admission of unreliable evidence on this vital issue.

[40] This report has limited value in assessing whether the child suffered sexual abuse. The physical examination was inconclusive. The suggestion that the child may have been exposed to sexually inappropriate concepts and theories is premised only on the information provided by the child protection worker. No inquiry was undertaken as to the source of this information: for example, whether Ms. Sayegh herself had heard the statements allegedly made by the child or whether that information was sourced from reading file documents.

[41] The reliability of a conclusion or opinion is often only as sound as the information it is based on. No effort was made to assess that information.

[42] The same problem arises in relation to Dr. Baird’s conclusion that, “There is also concern that she (the subject child) has been exposed to violent adult conflict either directly or otherwise.”

[43] This court has received direct evidence from various witnesses with first hand information about what are presented as the child’s concerning statements. The court then would seem to be in a better position to determine the reliability of that evidence and what concerns arise from the statements. Accordingly, the opinion is not necessary.

Participation vs. Litigation Expert

[44] There is one further issue that requires address. Dr. Baird was put forward by the Applicant as a participation expert. Accordingly, the requirements of Rule 20.2(2) of the Family Law Rules were said not to apply.

[45] In Westerhof v. Gee Estate, 2015 ONCA 206, the Ontario Court of Appeal defined the differences between a “participation expert” and a “litigation expert” and discussed the duties that apply to each, stating:

“… I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.

As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.”

[46] The Family Law Rules at rule 20.20 define a “participation expert” as a person who is not engaged to provide expert opinion evidence for the purpose of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events in issue”. This is contrasted with a “litigation expert” who is defined as, “a person engaged for the purposes of the litigation to provide expert opinion evidence”.

[47] As noted by the Superior Court of Justice in Davies v. The Corporation of the Municipality of Clarington, 2016 ONSC 1079, there is often a fine line between when a treating doctor may testify as a fact witness offering opinion evidence and when a treating doctor becomes a litigation expert.

[48] In this case, Dr. Baird was asked to examine the child on October 16, 2019. By that date, the child had already been removed from the care of the Respondent father. Coincidentally, the Society had had the current Status Review application issued on exactly the same date that Dr. Baird examined the child. Quite obviously, the Society was already planning the herein litigation at the time that Dr. Baird was engaged to undertake this report.

[49] Dr. Baird was not a treating physician to the child. He was engaged for a very specific purpose: to assess this child in relation to concerns of sexual abuse or other forms of child maltreatment and to provide an opinion as to whether the child had in fact suffered abuse or maltreatment. That, of course, related precisely to the concerns that gave rise to the litigation. Not very surprisingly indeed, his report was then relied upon by the Applicant in course of this litigation.

[50] Given the overall context, it seems to me that a more realistic view of Dr. Baird is that he was a litigation expert, and that the requirements of Rule 20.2(2) were engaged, but not complied with.

[51] This would be another reason to exclude the report.

Dated at Brantford, Ontario This 15th day of June 2021

The Honourable Justice K.A. Baker

Footnotes:

[1] There were no references to scholarly articles that have been produced by authors other than Dr. Baird. Dr. Baird’s curriculum vitae describes articles co-authored by Dr. Baird. Those that obviously related to child maltreatment were as follows:

Experience with Abdominal Injury: A Survey of Canadian Child Maltreatment Physicians, Murry CL, Baird JB, Chauvin-Kimoff LA, MacPherson J. Poster Presentation, Annual Meeting of the Ray Helfer Society, Annapolis, Maryland. April 7, 2014.

Experience with Abdominal Injury: A Survey of Canadian Child Maltreatment Physicians; Murray CL, Baird JB, Chauvin-Kimoff LA, MacPherson J. Poster Presentation, Annual Meeting of the Canadian Pediatric society. Montreal, Canada. June 27, 2014.

Detecting Abdominal Visceral Injury in Cases of Suspected Physical Abuse; Chauvin-Kimoff, L. Baird, B, MacPherson, J. Murray, L, Popel, J. Poster Presentation, Annual Meeting of the Ray Helfer Society. Orlando, Florida. April 8, 2019.

Detecting Abdominal Visceral Injury in Cases of Suspected Physical Abuse; Baird, B., Chauvin-Kimoff L., MacPherson, J. Murray, L., Popel, J. Poster Presentation, Annual Meeting of the Canadian Pediatric Society. Toronto, Canada. June 7, 2019.

Ophthamology Referral as part of a Multidisciplinary Approach to Suspected Abusive Head Trauma; Donaldson L., Isaza, G., Baird, B., Chaudhary, V. Canadian Journal of Opthamology. Accepted for publication, July 2019.

Smith, T. Chauvin-Kimoff, L., Baird, B., & Ornstein, A. (2020). The medical evaluation of prepubertal children with suspected sexual abuse. Pediatrics & Child health, 2020, Volume 25, No. 3. 180-186.