Court File and Parties
COURT FILE NO.: C103/16 DATE: 2017-01-27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton Applicant – and – B.I. Respondent (Mother) D.I. Respondent (Father)
Counsel: Mona Anis, for the Applicant Jerry Chaimovitz, for the Respondent Salvatore Garcea, for the Respondent
HEARD: January 16, 17, 19, 20, 23, 24, 25, 26, 2017
THE HONOURABLE MR. JUSTICE A. PAZARATZ
[1] On January 26, 2017 at the outset of Day 7 of this Child Protection trial, counsel for the mother B.I. and the father D.I. both brought oral motions for a mistrial. Those requests were vigorously opposed by counsel for the Catholic Children’s Aid Society (“the Society”). The matter was stood down to give counsel time to prepare submissions. When court resumed at 2:30 p.m. I heard detailed submissions and received case law.
[2] Upon completion of submissions I advised counsel and the parties that I would be granting a mistrial with reasons to follow. These are those reasons.
[3] The trial related to a protection application by the Society which includes requests for the following relief:
a. Findings that the three biological children of B.I. and D.I. be found in need of protection. Those children are two boys currently ages 10 and seven, and a three year old girl. b. A final supervision order placing the children in B.I.’s care for six months, under extensive terms of supervision. The father D.I. would not be allowed to reside in the home without the Society’s supervision. D.I.’s access would be in the discretion of the Society and supervised in its discretion. c. The Society also requests an order that D.I. undergo a sexual risk assessment.
[4] Both parents request that the Society’s claims be dismissed in their entirety.
[5] The Society’s intervention and application is based entirely on serious allegations of sexual abuse by now 17 year old K.W. who is the mother’s biological daughter of a former relationship. At all material times K.W. resided with B.I. and D.I.. D.I. is her stepfather.
[6] At this stage in the trial the Society had not completed its case, but I can briefly summarize the overall narrative.
a. On December 14, 2015 K.W. made a disclosure at her school which resulted in a mental health professional being called in, followed by a police officer. b. K.W. disclosed that her step-father had been sexually abusing her within the family home since she was 12 years old. She said the abuse occurred regularly and consisted primarily of K.W. either performing oral sex on D.I. or him performing oral sex on her. c. K.W. stated that after D.I. learned that she had lost her virginity with her boyfriend in September 2015 he then forced her to engage in sexual intercourse on two occasions in November 2015. d. K.W. stated that all of this sexual contact was non-consensual, but she complied because she felt she had no choice. She said she never told anyone because D.I. warned her that disclosure would destroy the family and ruin life for her younger three half-siblings. K.W. testified that she is extremely close to those siblings and would always want to protect them. e. K.W. stated that she had a previous history of suicidal or self-harming behaviour, and that after the two occasions of sexual intercourse her emotional state deteriorated. She expressed suicidal thoughts on the day she made the disclosure at school. f. As a result of her emotional state, after the interview at school, police took her to a local hospital where she remained until the early morning hours of the following day. g. K.W. never returned to live with B.I. and D.I.. She went to a women’s shelter for a period of time, followed by a second shelter. At one point she obtained public assistance and her own apartment. Since June 2016 she has been residing with her biological father in Nova Scotia. h. K.W.’s disclosures led to intensive follow-up by the Child Abuse Branch of the Hamilton Police Service. In January 2016 D.I. was arrested and charged with Sexual Assault (four counts); Sexual Interference with a Minor (four counts); Invitation to Sexual Touching (two counts); and Sexual Exploitation (two counts). K.W. testified at his preliminary hearing on November 1, 2016. The criminal trial (judge and jury) is scheduled for June 12, 2017. i. D.I. denies all of the allegations. j. K.W. had disclosed the sexual abuse to her mother B.I. (and separately to some friends) about a week before the disclosure at school. k. B.I. categorically rejects any possibility that the accusations are true. She blames K.W.’s boyfriend for manipulating K.W. into fabricating these allegations. K.W. basically acknowledges her former boyfriend is a jerk and was abusive in various ways. But she insists her allegations are entirely truthful and there was no external influence by any other person. l. After D.I. was charged, he was released on terms of bail which allowed him to return to the home to reside with B.I. and their three children under certain terms. B.I. was his surety and he was not to be left alone with those three children. m. Thereafter the Society commenced a protection application expressing concern that the three children were at risk residing in a home with D.I.. Following a temporary care hearing on February 4, 2016 Justice Brown ordered that D.I. would have to arrange for his terms of bail to be varied, and he would have to reside outside of the home. Eventually he relocated to a temporary residence in Scarborough. He is allowed to visit the children in the home under the supervision of B.I., but he is not allowed to reside there. n. All parties expressed a desire that this child protection application be resolved in a timely way and independent of the outstanding criminal charges (since the legislative issues and standards of proof are different). o. The Society says the parties’ three children need to be protected from D.I.. B.I. and D.I. say those children are suffering by being distanced from their father for no valid reason.
[7] In that context, the Society’s case is almost entirely based on K.W.’s evidence. There is virtually no external evidence. It will all come down to a credibility determination.
[8] K.W. was flown in from Nova Scotia for this trial and she testified for two and a half-days. Much of that time was either watching her two lengthy videotaped police interviews, or being cross-examined quite thoroughly by counsel for B.I. and D.I..
[9] The mistrial motion arose after I alerted counsel to a concern which became apparent to me at the end of the morning session on day six of the trial. I asked counsel to reflect on the following dynamics which had taken place during the trial.
a. On the first day of trial K.W. was called as a witness by the Society. b. At one point during examination in chief, Society counsel Ms. Anis asked K.W. a routine question: Did she remember participating in two videotaped police interviews. K.W. answered that she did. c. K.W. was asked when the first videotaped interview occurred. She answered that it was a day or so after the day she made the disclosures at school. It is common ground that this recollection was correct. d. K.W. was then asked when the second videotaped interview occurred. She answered “a couple of months later.” e. Anis asked whether K.W.’s statements during those interviews were truthful, and she said yes. f. Anis then went back and gently corrected K.W.. She told the teenage witness that even though she had testified that the second videotaped interview was “a couple of months later”, really it was “a few days later”. K.W. accepted that correction and agreed. Neither parents’ counsel remarked on Anis correcting her own witness. g. During cross-examination K.W. was then intensively cross-examined by both parents’ counsel. Her credibility and ability to recall dates, the frequency of alleged assaults, the number of alleged assaults, and time gaps between events was repeatedly challenged. h. Given the fact that K.W. was describing weekly sexual assaults over a four year period starting when she was 12 years old, there was a lot of ground to cover. And during cross-examination K.W. was repeatedly challenged about her ability to accurately and consistently describe matters of scheduling: the frequency of sexual assaults; the time of day when assaults occurred; the timespan between assaults; the amount of time which elapsed between some of the assaults and some other events. i. Despite persistent cross-examination, K.W. rarely wavered in terms of what happened. j. But during cross-examination counsel suggested to K.W. that her numbers didn’t make sense. Dates. The frequency of assaults. The time of day. Intervals between events. All of those details were aggressively challenged. And at times K.W. agreed that some of her numbers or estimates might have been wrong or inconsistent with previous descriptions.
[10] My concern arose long after K.W. finished her testimony and flew back to Nova Scotia, with the trial still underway.
a. On Day Six of the trial, toward the end of the investigating officer’s testimony, he mentioned a third videotaped interview which K.W. had participated in. b. This appeared to take all counsel by surprise since there had only been discussion of two videotaped interviews, within a few days of one another in December 2015. There appeared to be some confusion as to whether the existence and content of the third interview had been disclosed. c. After the officer’s testimony was completed, and after counsel had an opportunity to confer, they advised me that the existence or contents of the third interview would not be relevant to this trial. Apparently the third interview did not relate to the sex abuse complaint.
[11] Nonetheless, after the lunch break I alerted counsel to my concern that we may inadvertently have done a disservice to a 17 year old female sex assault complainant, testifying about extremely sensitive matters in an inherently intimidating environment.
a. At this trial, K.W.’s first experience on the witness stand was examination in chief by the Society’s lawyer. Given K.W.’s involvement with – and reliance on -- police and Society personnel, it is reasonable to anticipate that she would have regarded Anis as being on her side. b. In that context, I raised the concern that even before K.W. got to the tough questions during cross-examination, her own lawyer may have inadvertently undermined her confidence or thrown her off balance by specifically telling her that she was wrong about something – even though she was actually right. c. And I was concerned about how easily K.W. gave in to what she may have perceived as pressure or an expectation that she should abandon her accurate recollection of events. d. Nothing in this trial turns on whether the interval between two police interviews was a couple of days or a couple of months. e. But the whole of this case is about K.W.’s credibility. And the attack on her credibility focused largely on whether she was able to keep her story straight. Whether she was able to recount dates and frequencies and sequences in a consistent and believable manner.
[12] In that context I expressed concern to counsel not only about the inherent unfairness of “correcting” K.W. when she didn’t deserve to be corrected – but also about the potential impact this may have had on the manner in which she answered the many, many questions which followed during cross-examination.
a. Did we inadvertently cause K.W. to doubt herself, just as she was starting her testimony? To doubt her own memory by specifically telling her she was wrong when she was actually right? She started by stating with certainty that there was a police interview “a few months later”. She was then told she was wrong, it was “a few days later”. She immediately backed down and accepted the new version of events. b. Did we inappropriately encourage her to be too compliant? Too vulnerable to alternate suggestion? Too willing to change her story to appease or satisfy a lawyer in a frightening courtroom setting? c. Did we “rattle” K.W. before cross-examination had even begun? Was it fair that just as she was about to be rigorously cross-examined about her ability to keep dates straight, we tripped her up by convincing her she’d made a big mistake about dates when she hadn’t? d. And did that affect any of her answers when parents’ counsel repeatedly challenged her dates and numbers. And when she acquiesced to some of their “suggestions” that some of her previous descriptions were wrong.
[13] After I alerted counsel to my concerns – with a view to eliciting their comments – counsel for both B.I. and D.I. brought an oral motion for a mistrial. It wasn’t necessarily what I in mind, but it was certainly a logical and appropriate response.
[14] There are two basic questions I have to consider:
a. Did the “inappropriate correction of her recollection” actually or potentially affect the evidence which K.W. subsequently gave? b. In any event, does the mere fact that I raised these concerns create a reasonable apprehension of bias?
[15] As for the first question – Did K.W. answer differently because her confidence was shaken? – it’s impossible to know for sure. More to the point, it’s impossible to rule out.
[16] The context is important:
a. K.W. is a 17 years old girl, said to have a history of suicidal or self-harming behaviour. b. She knew she was going to be cross-examined at length about horrible allegations of sexual abuse, said to have started when she was 12 years old. c. She sat in the witness box for much of three days facing the step-father she says abused her, who was sitting with her mother who has now rejected her. (At the outset of the trial I asked whether courtroom arrangements were required to shield the witness from the accused but I was advised that it wasn’t necessary.) d. K.W. was questioned at length and in graphic detail about many intimate sexual details, some of them quite historical. Although both parents’ counsel conducted themselves professionally, there can be no doubt that the experience was stressful and draining. K.W.’s physical energy and stamina wilted as each day went on. On one of the days I had to end court early because K.W. was visibly too tired to keep going. e. In that context, I cannot help but have some concern that unintentionally undermining K.W.’s confidence in her memory during examination in chief, may have had some impact on her confidence or resilience in responding to relentless cross-examination.
[17] I considered the possibility of having K.W. re-called as a witness to perhaps answer whether the confusion about the police video interviews had any impact on her during the balance of her testimony. But I decided against this option as it would simply expose this teenager to yet another stressful day in a courtroom, with little likelihood that anything she said would put an end to the issue.
[18] Trials are supposed to be about fairness – to everyone.
[19] Unfortunately, when certain information arose during the trial, I felt I had no alternative but to express my concern that K.W. – a vulnerable young person and the pivotal witness in this case -- may have been treated unfairly, and that this may have affected her answers or approach with respect to important questions presented during cross-examination.
[20] I won’t ever be sure whether K.W.’s answers were affected.
[21] And if I complete the trial, whatever I decide, B.I. and D.I. won’t ever be confident that I weighed the evidence without lingering doubt about whether she might have answered differently if it weren’t for that early mis-step before cross-examination began. The parents’ perceptions of me are as important as my worries about K.W..
[22] The Society insists nothing inappropriate happened; the correction about dates was minor and insignificant; K.W.’s subsequent evidence was unaffected; and that in any event the evidence is so clear that this court will have no difficulty making an impartial determination of all issues, including K.W.’s credibility.
[23] Parents’ counsel – who appear happy with some of the answers they got during cross-examination – also agree K.W.’s evidence was unaffected.
[24] But counsel for B.I. and D.I. both submit that after all of these expressions of concern on my part, the parents have a reasonable apprehension of bias, and for this reason a mistrial should be declared.
[25] The test for reasonable apprehension of bias was stated by the Ontario Court of Appeal in Martin v. Martin, 2015 ONCA 596, and recently confirmed by that court in M. (A.) v. M. (J.) 2016 ONCA 644:
"Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly".
[26] The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge's impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry. R. v. S. (R.D.), 1997 CarswellNS 301 (S.C.C.); M. (A.) v. M. (J.) (supra)
[27] The assessment of a reasonable apprehension of bias is to be considered within the context of the particular circumstances of the case. Particularly in family law cases, the trial judge must maintain at all times an appearance of impartiality and fairness when presiding over acrimonious matrimonial disputes. The trial judge must be alive to the emotionally charged nature of the proceedings. Parties to family litigation may be particularly vulnerable and sensitive. Miglin v. Miglin 2003 SCC 24, 2003 CarswellOnt 1374 (S.C.C.)
[28] There’s no element of blame here, and it wouldn’t matter anyway. Ms. Anis acted in good faith without any reason to anticipate that a simple exchange with her witness might have such repercussions. I acted as soon as I was alerted to a potential issue. All counsel responded appropriately.
[29] Fairness to K.W., to the parties, and to the integrity of the court process requires that I declare a mistrial.
[30] After I advised counsel of my decision, I suggested that we engage in a further Settlement Conference, since I was now so familiar with the file. The parties agreed and we had some preliminary discussions with a view to exploring whether it may be possible to avoid the matter returning for trial. The parties will be reporting back on some options we discussed.
[31] Adjourned to February 7, 2017 11:00 a.m. for Settlement Conference. No briefs are required.
[32] If necessary the new trial can be scheduled on that date. The parties have agreed that the new trial will not take place until after completion of D.I.’s criminal trial now scheduled for June 12, 2017.
[33] Existing order to Continue.