Court File and Parties
DATE: July 13, 2021 Court File No. FO-17-00000266-0001
ONTARIO COURT OF JUSTICE
IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. C.11 AND IN THE MATTER OF J. M. M., a child apparently in need of protection
OGWADENI:DEO SIX NATIONS CHILD WELFARE Applicant
- and -
K.L.H. Respondent
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J.P.M Respondent
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S. H-H. Respondent
R E A S O N S F O R J U D G M E N T
REMOTELY BEFORE THE HONOURABLE JUSTICE K.A. BAKER on July 13, 2021 at BRANTFORD, Ontario
APPEARANCES BY VIDEO-CONFERENCE: 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
TUESDAY, JULY 13, 2021
R E A S O N S F O R J U D G M E N T
BAKER, J. (Orally):
This is my judgment on the application by the respondent father, J.M., for a mistrial. The OCL joins in the application. It is opposed by all other parties.
The law in this area is well established. A mistrial should only be granted in the clearest of cases where there is a real danger that trial fairness has been compromised. It is a measure of last resort when no other curative measures will suffice.
The threshold for mistrial was set out recently by Bale, J. in Children's Aid Society of Haldimand Norfolk v. J.J., O.J. No. 1107. Therein it was noted that the court must consider the following factors and give them due weight in considering whether to make an order for mistrial.
a) Mistrial orders are discretional;
b) A mistrial may be ordered where a judge is satisfied that there is a reasonable apprehension that either party will not have a fair trial if it continues, and that a fair trial will be possible if it were to begin afresh before another judge;
c) Mistrials should only be ordered where there is a fatal wounding of the trial process;
d) Mistrials should be granted only as a last resort when no other curative measures could salvage a just and fair trial; and
e) Parties are entitled to fair trials, not perfect trials.
The respondent father says that a series of events have resulted in a situation where this trial is fatally wounded. He says it is the cumulative effect of various missteps and problems that have now made it impossible to remedy the situation, but for the declaration of mistrial.
His complaints as set out in his factum include the following:
the trial record was improperly put together and this has not been remedied despite that problem being brought to the applicant’s attention at the commencement of trial;
the curriculum vitaes for physicians who were witnesses for the applicant were served past the deadline for doing so established by the order at trial management conference;
the applicant tried to rely upon a dated affidavit for a witness, one L.B., without calling the witness for cross-examination. When this wasn't permitted the applicant declined to call the witness, although Ms. B. had important involvement with the family;
there was last minute disclosure of the order of witnesses;
the applicant had communicated that it would not be calling Detective Monteforte, and then did so. No will-say, witness notes, or records were provided in advance;
there was inadequate disclosure of records relating to the maternal grandmother, who is proposed to be the custodian to the subject child;
further disclosure was affected in relation to the matter on June 8th, 2021, after the applicant had closed its case. This has created a situation where the father can be cross examined on information that was not available to the father earlier, thus preventing his counsel from cross-examining agency workers upon it;
one witness, M. S. was called despite not being on the applicant’s witness list. The witness was only given her notes 24 hours prior to testifying, and she was not given other material including two affidavits that she had previously sworn;
there are other “irregularities” with respect to disclosure;
it has not been determined that even to date the applicant has made full and complete disclosure.
Some of the identified issues have not appreciably caused prejudice to the father or any other party. While it's true that the trial record is not put together in accordance with the relevant rule, it is difficult to see how this causes prejudice to the respondent, and indeed none is specifically identified. The late service of the curriculum vitaes could have caused prejudice to the respondent insofar as it would impair his counsel's ability to properly cross-examine Dr. Baird at the voir dire for qualification as an expert. (An order at the trial management conference required the production of the C.V. April 6th, 2021. They were not provided until May 6th, 2021.)
Certainly, it is expected that litigants, especially institutional litigants, comply with orders of the court. As it developed however, Dr. Baird was not qualified to give opinion evidence, and it is thus difficult to see how the father was prejudiced in reality.
The applicant's effort to file Ms. B.’s dated affidavit is evidence for the trial was certainly ill advised. That affidavit was prepared for a different purpose than trial and was prepared on a different evidentiary standard. The applicant was not prepared to offer any evidence as to why such hearsay evidence would have been both necessary and reliable.
The court however declined to accept the affidavit into evidence for that very reason. The delay, distraction, and additional time invested in that endeavour could go to costs, but the actual prejudice was minimal and involved only the distraction of counsel from the relevant issues for trial.
As to the complaint that Ms. B. was not called by the applicant, each party has complete discretion over what witnesses they wish to call. The failure to call every witness who had involvement in a matter is not a matter for criticism. In fact, parties are expected to call only those witnesses who are necessary for their case. This is congruent with the duty imposed on all justice system participants by Rule 2 of the Family Law Rules.
Notice of witness order is certainly courteous and a component of civility in practice; it is not however, strictly mandated in terms of a party or counsel's obligations under the Rules.
I accept that the decision with respect to the calling of Detective Monteforte was problematic. Detective Monteforte was flagged as a witness by the applicant in its trial management conference brief. The evidence of that witness was obviously highly material for this trial. The need for a W.A.A.G. motion would have been obvious from the outset, and was specifically highlighted in the discussion at the trial management conference. For whatever reason, the applicant elected not to bring such a motion in the two months between the trial management conference and the commencement of trial.
At the outset of the trial the applicant announced an intention not to call Detective Monteforte or any other police officer in relation to the search of the father’s home in September 2020, and father’s contemporaneous arrest. It is difficult to understand the rationale for that decision. In any case however, the court expressed concern about the omission of the witness and indicated that if the agency was not prepared to call that witness, court would consider doing so of its own motion.
At that point the applicant decided to summons the witness.
It is of course only fair and reasonable that respondents know with some certainty the witnesses that are to be called by the applicant. However the potential prejudice to the respondent father was ameliorated by several factors. First, respondent’ counsel had about two days’ notice that the witness would in fact be called. She thus had some time in which to prepare cross-examination, and counsel did in fact complete cross-examination. Counsel did not request a stand-down or other relief so as to permit further review of notes.
This was not a situation where the respondent was not present during a particular event that was described in notes that were not produced. Mr. M. was present during the search and would have known perfectly well what was located in the home.
Further in this vein, Mr. M. was the subject of criminal charges and would, presumably, have received disclosure of the Crown's case prior to these charges being withdrawn. Certainly there is no evidence from Mr. M. that this did not occur.
It is also problematic that aspects of Ms. H-H.’s file was not disclosed prior to her being called as a witness. Frankly the applicant's approach to the disclosure process can fairly be described as chaotic and haphazard. It would have been obvious to the applicant that disclosure was going to be complicated by the fact that there are three separate files that overlap one another. There is a file relating to the subject child, J.; there is a file relating to the “R” children; there is a file relating to Ms. H-H. and her four grandchildren.
I will return to the issue of disclosure presently as it is perhaps the most central concern with respect to trial fairness. But as it relates to the late of the notes, with respect to Ms. H-H., and that fact’s impact on trial fairness there are two points to be made. First, the late disclosed notes were provided on May 20th, 2021. There was sufficient time for the respondent to identify specifically how he was irredeemably prejudiced by their late disclosure. He has not produced any specification in that regard. Second, as soon as the problem with respect to inadequate disclosure was identified, the respondent counsel sought and was granted a deferral of the cross-examination of Ms. H-H. Counsel has now had those notes for almost two months and will have had ample time to prepare cross-examination of Ms. H-H.
Although this is far from an ideal manner in which to conduct a trial and one which has engendered unnecessary delay, I am not satisfied that the late disclosure of those notes has irreparably undermined trial fairness.
Then there is the situation with respect to the witness M. S. This person was initially identified as a witness by the respondent father, who indicated in his trial management conference brief that he would be calling her. Later, he changed his mind. It would seem that as a result of that decision the applicant decided to call Ms. S.
There is nothing particularly untoward in a party deciding to call a witness that has been jettisoned by another party. It is always preferable for counsel to prepare their witnesses prior to court as this makes the process unfold more smoothly with less interruption and consequent delay. Part of the preparation process is to ensure that the witness has any notes and other material that they will need in order to effectively provide their evidence and respond to cross-examination. Not doing so however, goes more to trial efficiency than to trial fairness. This is because counsel are always at liberty to request stand-downs or other relief in order to make sure the witness has the necessary material in front of them. That is what happened here.
The bigger problem is that key disclosure was not made until after that witness was examined and cross-examined. This is because the disclosure with respect to the “R” children was only provided in early June 2021.
Ms. S. testified in May and she provided evidence about statements made by the “R” children. The lack of disclosure thus did prejudice the party insofar as it undermined their ability to meaningfully cross-examine Ms. S. As counsel for the mother points out, there are curative orders that can be made in this regard. One would be to strike Ms. S.’s evidence either in full or in part; another would be to permit the recall of Ms. S. for cross-examination now that disclosure has been affected.
In this regard I am advised by Mr. Maltby that he attempted to file a motion to propose that Ms. S. be recalled so that a voir dire can be undertaken on the evidence that she gave with respect to the hearsay evidence of the “R” children. He has requested that I not make any orders with respect to Ms. S.’s evidence until he has had an opportunity to make submissions on that point.
I have carefully considered his request in this regard. Certainly it is generally preferable that every issue be explored thoroughly prior to the court making a significant decision with respect to a child's best interests. In this case however, I am satisfied that it is appropriate to make an order addressing Ms. S.’s evidence without hearing any further motions or submissions.
This is because first, I am extremely mindful that this matter is taking far more time than was initially anticipated. Various delays have been engendered as a result of changing plans about witness’ issues with timely disclosure, late planning for voir dire, and other matters.
The child at the heart of this matter, J., is five years old. Her situation remains unsettled. Every day that is occupied by procedural wrangling is a day that is not available to addressing the key issue —— what order of disposition is appropriate for this child?
The second reason for my reluctance to defer this issue is what seems to me to be the fact that Ms. S.’s evidence was irredeemably compromised. It seems highly likely that counsel would approach the cross-examination differently had they been in possession of disclosure about the children who purportedly made serious assertions about the father. It therefore strikes me that the only way to remedy that situation is to strike Ms. S.’s testimony in totality.
If the applicant or any other party wishes to recall Ms. S., they may apply to do so, and if granted, her evidence will proceed afresh.
In my view, the biggest threat to trial fairness is the uncertainty about whether, even now, the applicant has made proper and complete disclosure. It was most evident from father’s materials for this application that counsel is not convinced that they have received all disclosure. When trial was adjourned on May 20th, 2021 counsel for the applicant gave an undertaking to personally attend at the agency offices and review disclosure for sufficiency. The applicant has filed an affidavit that purports to address this important issue. Somewhat remarkably it does not clearly and specifically address the point.
At paragraph 13 the deponent of the affidavit, Joanna Miller, a law clerk with the agency says, “Ms. Montour has been provided with disclosure on an ongoing basis as per her request”. Ms. Miller goes on to say at paragraphs 15 and 16:
I have been advised by and verily believe Ms. Joyce Soney, that Ms. Montour has not provided any information that suggests that pertinent information was kept from her client. I have been advised by and verily believe Ms. Joyce Soney, that Ms. Montour has not provided any concrete evidence showing that her client is unable to present his case fully.
It is hard to know how the respondent's counsel could provide information to suggest pertinent information was withheld, when, by the very nature of the situation, she feels that she is lacking information. It is impossible to assess information for pertinency if one does not have possession of it. For the same reason it is impossible for a litigant to provide “concrete evidence” that they are unable to present their case fully when the situation is one where information may have been withheld.
What is surprising is that the applicant’s evidence does not address the key issue —— Did the deponent undertake a diligent review of records and confirm that all records pertaining to Mr. M. in the matter before the court have been disclosed?
The affidavit also doesn't explain why there is either an absence or a dearth of records relating to Ms. H-H. for the period from May 2019 to October 2019. That inquiry had been made by Ms. Montour in May of 2021, and it, to date, remains unanswered.
The failure of the applicant to provide meaningful assurance about the adequacy of disclosure at this late date constitutes the greatest threat to trial fairness.
The one salvaging factor however is that the only disclosure that has been identified as obviously problematic is that relating to Ms. H-H. Ms. Montour has yet to cross-examine Ms. H-H., and that can be deferred until the applicant, a) meaningfully addresses the absence of notes from May to October 2019; and b) provides evidence that a diligent review of file material has been undertaken, and all material related to these respondents and the matter has been provided.
Given that the applicant has had notice of this issue for almost two months, and thus ample time to make that inquiry, I would think that evidence could be provided fairly rapidly.
In summary then, the trial process in this matter has been inefficiently managed. Much of this has been the result of poor trial planning and management by the applicant. I accept the respondent’s submission that it is not a situation of a single precipitating event that has been problematic; it is rather, the accretion of many avoidable complications, which have included the applicant's failure to comply with the Rules and court orders.
But mistrial is the exceptional remedy, and a remedy of last resort. Very significant resources have been poured into this trial, which includes six days of trial, with seven lawyers participating. At the heart of this is the best interests of a five-year-old child, who is waiting for a resolution of her situation. I find that the process is not fatally flawed to the point where a mistrial should be ordered at this time. I am also concerned that the delay inherent in restarting a trial, with seven counsel, would be contrary to the best interests of this child.
Before closing I wish to address two other points. The father has also argued that reasonable apprehension of bias plays a role in the analysis of this application. He says that this is because of the applicant’s dealing with him, and its conduct of the trial have demonstrated bias and that this somehow tilts the balance towards mistrial. I disagree. Reasonable apprehension of bias is a concept relating to a situation where a litigant may believe that justice cannot be done, or seen to be done, because the court has demonstrated some partiality. I don't see the application in this situation.
Even had the concept of reasonable apprehension of bias had application in this fashion, I would decline to find it. Although the applicant has not conducted in an optimal manner, even disregarding orders and Rules and directions from the trial management conference, I am not persuaded from the evidence heard so far that this arises from bias, either actual or reasonably appended.
The second point I wish to address is the father's references to his Charter rights. I do not see that that advances his position on the application for mistrial.
The availability of the relief of mistrial is a key mechanism in ensuring procedural fairness and fundamental justice. That would be true in any proceeding, either child protection or other. The test has been developed in the jurisprudence is highly specific to mistrial. Reference to Charter protections does not alter the applicable test.
Conclusion
Accordingly, for oral reasons given,
the application for mistrial is dismissed;
the applicant shall produce an affidavit addressing its efforts to respond to the respondent father's inquiry about missing notes, and to address the diligence of the record search and production by commencement of trial on July 15th, 2021. Trial is otherwise to resume forthwith.
... WHEREUPON THESE PROCEEDINGS WERE ADJOURNED
Certificate of Transcript
Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act
I, Karen Kearns, ACT ID 6335686389 (Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of Ogwadeni:deo v. H. and M. et al (Name of Case) in the Ontario Court of Justice (Name of Court) held at 44 Queen Street, Brantford, ON (Court Address) taken from Recording 0211_1_20210713_085821__6_BAKERKAT.dcr, which has been certified in Form 1.
This certification does not apply to the Reasons for Judgment / Reasons for Sentence which may have been judicially edited. July 26, 2021 (Date) (Signature of Authorized Person(s))