COURT FILE NO.: FC-15-472 DATE: 2017/03/15 ONTARIO SUPERIOR COURT OF JUSTICE

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 THIS HEARING OR THE CHILD’S PARENT OR FOSTER PARENT OR A MEMBER OF THE CHILD’S FAMILY, PURSUANT TO S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – A.F. (Mother) Respondent C. R. (Father) Respondent

Marguerite Lewis, Counsel for the Applicant Kimberley A. Pegg (Dominique Smith), Counsel for the Mother Emmanuel Gibson, Counsel for the Father

Endorsement on Motion

P.E. ROGER, J.

[1] This matter involves a child protection trial. The Children’s Aid Society of Ottawa (the “Society”) alleges that two children, aged 6 and 2, are in need of protection and the Society seeks an order that the children be made wards of the Crown, under the provisions of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended (“CFSA”). The allegations of the Society are disputed by the parents.

[2] The trial of this application began in September 2016 and was not completed within the allotted time. The trial has since been adjourned to days and weeks to accommodate both the parties’ and the Court’s schedules. We are now nearing the end, such that at the conclusion of the last sitting, days were scheduled during the week of March 13 in order to complete the evidence and to hear the submissions of the parties.

[3] At the conclusion of the January 27, 2017 sitting, I indicated that I was contemplating asking the parties for submissions regarding whether or not the Court should exercise the power of the court available under s. 49 of the CFSA and summon an additional witness to testify.

[4] The Society’s main witness is B., who is 19 years old and raised very serious allegations against the parents. The parents have completed their testimonies and have called almost all of their witnesses. At this point, the evidence between the Society and the parents is quite contradictory. On January 27, I mentioned that the state of the evidence (how conflicting it appears between the parties) would make my job difficult and I inquired whether one of the two older siblings (one would now be 17 and the other would now be 23) should be summoned by the Court to testify. I stressed that I had not decided to do so and I alerted the parties that I might ask for their submissions on this issue, to better inform my decision on whether or not this should be done.

[5] I subsequently prepared an endorsement dated January 30, 2017. What I was then contemplating was, firstly, whether the Court should summon such a witness under s. 49 of the CFSA and, secondly, how this could fairly and effectively be carried out. I considered whether this witness, if summoned by the Court, could be led in-chief by the Society (for no more than two hours) and could then be cross-examined by the parents (for no more than three hours) and I sought submissions on this issue. I have, in the past, expressed some concerns that this trial is taking much longer than anticipated and I therefore tried to devise a possible process that might also not unduly delay the trial.

[6] Therefore, my endorsement of January 30, 2017 attempts to describe to the parties what this contemplated process might look like in order to inform their submissions on whether this should or should not be done by the Court and, if it was to be ordered, to inform their submissions on how it could best be structured in order not to unduly delay this trial and to not prejudice the parties. My endorsement of January 30, 2017 described what I was then contemplating. It provided the parties context in an effort to assist them to better formulate their submissions, in turn allowing me to decide if this would be ordered and, if applicable, better formulate the process. Any ordered process by which a witness would have been summoned by this Court would have considered the submissions of the parties, yet to be received, and if ordered might have been quite different from what is described in my endorsement of January 30, 2017.

[7] Following receipt and review of the parties written submissions on March 6, 2017, I decided and informed the parties, in my endorsement of March 7, 2017, that I would not summon any of the older children as I was concerned that this could delay the trial and could prejudice the parties.

[8] One of the Respondents, Ms. F., had informed me that she would be bringing a motion asking this Court for an order that I recuse myself from these proceedings and declare a mistrial on the basis of demonstrated bias or reasonable apprehension of bias. This motion was heard on March 13, 2017.

[9] Ms. F. alleges that this Court by contemplating to order the Society to call further evidence after having heard from her witnesses, whom she says supports her case, was soliciting further evidence from witnesses who would be negative about her case. She further alleges that the Court appears to be favouring the Society, as it is telling the Society how to structure its case or asking the Society to call witnesses to corroborate B.’s evidence. The father and the Society did not inform me of their respective position prior to the return of the motion. During the motion, Mr. R. indicated that he supports the motion for the same reasons, including that he alleges that the conduct of the Court amounts to requiring the Society to buttress its case. The Society made representations but expressed no position on the motion. In reply, the moving party inquired from the Court as to the position of the Society. The Society indicated that it supported the motion on the basis that the Court showed bias against the Society when, on January 27, it made references to making an adverse inference against the Society for their failure to call any of the older siblings.

[10] The test for reasonable apprehension of bias is set out in Justice de Grandpré’s dissenting opinion in Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 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. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[11] The Supreme Court of Canada has repeatedly endorsed this test. In R. v. S. (R.D.), [1997] 3 SCR 484, Cory J. explained, at para. 111, that this test contains a “two-fold objective element”: not only must the person considering the alleged bias be reasonable, but “the apprehension of bias itself must also be reasonable in the circumstances of the case.”

[12] In Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, at para. 131, the Ontario Court of Appeal enunciated the following important principles:

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.

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

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.

[13] Applying the above to the circumstances of this case, I find that a reasonable, informed and right-minded person, viewing the matter realistically and practically, would not conclude that it would be more likely than not that this Court, whether consciously or unconsciously, would not decide this case fairly. My reasons follow.

[14] A reasonable person, realistically and practically considering the circumstances of this case, would be more likely to consider that what I expressed to the parties on January 27, was that the evidence would make it difficult for me to reach a decision, thus clearly demonstrating an open minded approach.

[15] A reasonable person, informed about this matter, would be aware of and would consider, when realistically and practically assessing this important issue, that there is no evidence before this Court about why none of the three parties engaged in this trial called, as a witness, any of the older siblings. Such a person would also know and consider that there is no evidence before this Court relating to what the evidence of any such sibling might or might not be. As a result, such a reasonable person considering this important issue realistically and practically would not think more likely than not, that I was contemplating summoning such a witness to buttress the evidence of a specific party, as is alleged. This reasonable person would appreciate that this Court does not have any knowledge of what that evidence might or might not be. Consequently, such a reasonable person viewing this matter realistically and practically would be much more likely to conclude that this Court was contemplating a yet-undefined process in an effort which hopefully might assist this Court with the difficult decisions still ahead, again demonstrating an open mind.

[16] Similarly, such a reasonable person would not consider it more likely than not that this Court was asking the Society to re-open its case. Such a reasonable person, viewing this matter realistically and practically, would be much more likely to conclude that this Court was very simply contemplating both summoning a witness and using the Society to call that witness in-chief on behalf of the Court, with the process still not precisely defined, until this Court could review and consider the submissions that it had expressly sought from counsel on these points.

[17] A reasonable person, viewing this matter realistically and practically, would consider that this is a child protection proceeding where, under the provisions of the CFSA, the paramount purpose is to “promote the best interests, protection and well being of children” (CFSA, s. 1(1)). In that context, such a reasonable person would be aware and consider that the CFSA contemplates a potentially different threshold for the admissibility of some evidence (see CFSA, s. 50) and that the CFSA also provides for the power of the court to summon witnesses, documents, or things, as this Court contemplated on January 27 (see CFSA, s. 49).

[18] Indeed, section 49 of the CFSA does not provide how this process would practically be carried out. For example, section 49 does not provide who would examine a witness summoned by the Court. In our legal system, it is implied that it would not be the Court. Consequently, would it be necessary for a court contemplating such a process to appoint an amicus counsel, or require one of the parties to examine this witness on behalf of the court? Assuming that a court contemplated, as an effective method, requiring one of the parties to examine in-chief a witness summoned by that court, would this be fair and when could such a witness be found to be adverse, allowing such party to cross-examine the witness? None of this is provided by section 49 and all of this was being assessed by this Court as it contemplated this process. This is precisely why submissions were sought from the parties.

[19] Considering the nature of the Society’s allegations, it should not reasonably be surprising in a child protection proceeding, where the paramount purpose of the CFSA is to promote the best interests, protection, and well being of children, that a court might have had questions on its mind, early on, as to why none of the parties were contemplating calling any of the older siblings (who in this case are 17 and 23 years old), and it should not reasonably be surprising that such a court would more likely than not wait towards the end of the trial, when obviously most of the evidence is known to that court, prior to expressing whether it should, in these circumstances, summon a person to attend before it to testify, as is contemplated by section 49. Viewed reasonably, in the circumstances of this case, this does not demonstrate that it is more likely than not that this Court, both consciously and unconsciously, would not decide this case fairly.

[20] The primary purpose of the Family Law Rules, O. Reg. 114/99 (the “FLRs”), which are made specifically applicable to this CFSA proceeding, is to enable courts to deal with cases justly (rule 2(2)). This includes acting fairly, effectively and proportionately, and courts are given broad discretion to make orders promoting the primary objective (see rules 2(2), 2(3)-(5) and 1(7.2)). Rule 2(5) and rules 1(7.2), 1(7.3), 1(7.4), 1(8), and 1(8.1) are clearly designed to allow courts, in these matters, some rather significant control over how matters are tried, in order to promote the primary objective.

[21] Exercising or contemplating the exercise of some of these powers is not, in and of itself, a demonstration of bias or circumstances giving rise to a reasonable apprehension of bias. In fact, the Supreme Court requires that courts and parties be more innovative, and I suspect that more and more courts will exercise these powers and enforce any such procedural order much more rigorously.

[22] The above peculiar aspects of the CFSA and of a CFSA trial do not however limit the very important duty on our courts to demonstrate fairness and impartiality. However, they should inform what a reasonable person, viewing the matter realistically and practically—and having thought the matter through—would conclude is more likely than not, in any given circumstances, regarding whether, consciously or unconsciously, a court would not decide a case fairly.

[23] In addition to the above, paragraph 7 of the endorsement of this Court dated January 30, 2017 and any question or comment relating thereto, also demonstrate to an informed and reasonable person that it is more likely than not that this Court had and has a critical and an open mind towards the evidence.

[24] My statements, made late on January 27, could no doubt have been better articulated. However, when they are read as a whole and together with my endorsement of January 30, it is clear that the Court expressed that this is a difficult case and enquired whether it should summons, as a witness, one of the older siblings. Similarly, although no distinction is made between an unfavourable inference and an adverse inference, the Court indicated that it did not know what will be determinative, how this might factor in the analysis and that the Court will obviously need to analyse all the evidence very attentively to decide this case. Subsequently, the Court made it very clear to the parties that the subject of any unfavorable or adverse inference would only be definitely decided once all the evidence and the submissions were in. A reasonable and informed person, viewing the matter realistically and practically would therefore not conclude, from any of the above, that it is more likely than not that, consciously or unconsciously, this Court would not decide this case fairly.

[25] This case is extremely important and the parties are very focused on their respective interests and positions. As a result, they tend to overly dissect anything that is said by the Court and view everything through the eyes of their interests and positions.

[26] However, that is not the test. The test on such a motion contains a two-fold objective element: (1) the person considering the alleged bias must be reasonable and (2) the apprehension of bias itself must be reasonable in the circumstances of the case, viewed by an informed person with knowledge of the relevant circumstances, including the tradition of integrity and impartiality that a judge is sworn to uphold.

[27] A reasonable and informed person would conclude that the circumstances of this matter do not give rise to a reasonable apprehension of bias and, consequently, that there is no real danger of prejudice or danger of a miscarriage of justice that could justify granting a mistrial.

[28] For all of the above, this motion is dismissed.

Justice Pierre E. Roger Released: 2017/03/15

COURT FILE NO.: FC-15-472 DATE: 2017/03/15 BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – A.F. (Mother) C. R. (Father) Respondents ENDORSEMENT Justice Pierre E. Roger. Released: 2017/03/15