COURT FILE NO.: FC-19-FO-25 DATE: 2021-03-02
WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87 (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.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of Haldimand and Norfolk v. J.J., C.M., and Six Nations of the Grand River
BEFORE: The Honourable Madam Justice L. Bale
COUNSEL: Ms. L. Edwards for the Society Ms. A. Macdonald for the Respondent mother Mr. E. Kiernan for the Respondent father Mr. M. Elchami for the Six Nations of the Grand River Band
HEARD: February 25, 2021 – via Zoom (video)
E N D O R S E M E N T
OVERVIEW
[1] This is the court’s ruling on the Respondent mother’s request for a mistrial in this action.
[2] Late in the day, on the eighth day of trial in this child protection proceeding, an unexpected and unfortunate event took place in the virtual (zoom) courtroom. Counsel for the Respondent father requested a brief indulgence to confer with his client before formally closing his cross-examination of the Respondent mother. The court went ‘off record’ and the participants muted their microphones and turned off their video to permit this brief indulgence.
[3] Unfortunately, the mother neglected to mute her microphone, and an exchange with an unknown third-party was broadcast into the virtual courtroom. Statements were overheard by the court and court staff which raised both procedural and substantive concerns: (a) whether an unknown male was present in the virtual courtroom during the Respondent mother’s evidence and potentially attempting to influence her evidence; and (b) whether new child protection concerns arose from a reference to a potential drug transaction made by the unknown third party. Shortly after the statements were made the Respondent mother’s microphone was muted and no further discussion ensued.
[4] As a result of this event the mother has brought a motion to declare a mistrial. The Respondent mother relies upon the following materials filed in support of this motion: the Respondent mother’s Notice of Motion dated February 25, 2021, the Respondent mother’s Affidavit sworn February 25, 2021, the Affidavit of Society worker B. Munro, sworn February 23, 2021, and the Factum of the Respondent mother. The Respondent father has filed a Memorandum of Law and Casebook. All of the materials have been reviewed and considered by the court in combination with the oral submissions of counsel.
POSITION OF THE PARTIES
Respondent Mother
[5] The mother asserts that a declaration of a mistrial is necessary to prevent a miscarriage of justice, and that no other curative measures could remedy the problem. She requests that a mistrial be declared and that the conduct of the trial to date be ‘salvaged’ by way of a transcription of all evidence taken, and an order that all trial exhibits entered and evidentiary and procedural rulings made be applied in a subsequent proceeding before another judge.
[6] The central themes of the Respondent mother’s position are:
a. The trial judge has become a witness to an issue in dispute in this action and cannot preside over a trial where she is now a “compellable witness”. She asserts that the information provided to counsel as to what was overheard is inconsistent with the explanation of the mother;
b. The information overheard by the court is relevant to the substantive issues at trial including (a) allegations of drug use, (b) allegations of associations and intimate relationships with inappropriate persons, and in particular with respect to an individual known as I.E. [1]
[7] Interestingly, the mother’s position does not specifically claim a reasonable apprehension of bias, but rather suggests that the information improperly received by the court is so prejudicial that a reasonable person having some familiarity with the file, the parties, and the issues would agree that the trial will be unfair if it continues. In essence, the mother asserts that the reference to “soft”, explained in counsel’s factum to refer to powdered cocaine, is so prejudicial that a fair trial can no longer be conducted.
The Society
[8] Counsel for the Society is strongly opposed to a declaration of mistrial. In essence, the Society submits that:
a. The issue of mistrial and recusal are inextricably linked: a mistrial cannot be granted without a finding of a real or reasonable apprehension of bias and the facts of this case do not warrant such a finding;
b. The incident which occurred over the court recess may be considered by the court in the context of observations as to general demeanour of the witness;
c. A declaration of mistrial is a measure of last resort: other less drastic remedial measures are available. For example, the mother’s case is not closed: she is entitled to call other witnesses, including I.E. on her behalf if so desired;
d. A significant miscarriage of justice will occur of a mistrial is ordered: the Respondent mother will have in effect been permitted to manufacture her own mistrial and the administration of justice will be brought into disrepute.
Respondent Father
[9] The Respondent father is also opposed to a declaration of mistrial. The father argues that:
a. The request for a mistrial in this action is one and the same as a request for recusal on the grounds of bias;
b. Public policy reasons militate against allowing the Respondent mother to rely upon her own error to further delay determination of this child protection proceeding: she is the author of her own dilemma and is the only party who would benefit from a delay in this proceeding;
c. This trial is in its final stages. A mistrial would result in enormous waste of judicial resources and would have an extremely prejudicial effect on Respondent father who is the only party participating in this matter by private retainer. The trial should continue – the determination of a mistrial can be deferred or reviewed by an appellate court after decision is rendered if necessary;
d. The curative measures proposed by the Respondent mother (i.e. reliance upon the record to date) run counter to any subsequent court’s authority to control its own process;
e. Other less drastic curative measures are available to this court to salvage the trial.
Six Nations
[10] Counsel for the Six Nations supports the mother’s request for a mistrial and submits that the court should recuse itself, having become one of only two witnesses to the event in question. The Six Nations argues that:
a. The statements overheard by the court go to the very core of the child protection concerns;
b. The trial judge has a positive duty to act protectively in a child protection proceeding, and as a result it would be inappropriate to disabuse itself of the information received;
c. The band would intend to call the trial judge or court registrar as witnesses at trial if no other party were to do so.
SUBSEQUENT EVENTS
[11] Upon recall of the matter after the recess, out of concern that an unknown third party might have been present in the virtual courtroom, the court enquired as to identity of the voice. The mother identified the unknown third party as ‘a friend’. No individual appeared to be present in the virtual courtroom with the mother.
[12] The cross-examination of the mother by counsel for the father continued briefly and was then concluded. Immediately after completion of same an in camera conference was held and counsel for all parties were advised of the incident and requested to contemplate the ramifications of this rather novel event. This discussion was not held on the record and in the presence of the parties, and in hindsight, perhaps it ought to have been. The decision not to immediately do so was to some extent influenced by the Society’s indication that they would immediately be conducting a child protection investigation into the matter over the weekend, and the court’s reluctance to interfere with the integrity of that child protection investigation.
[13] At this time, for purposes of ensuring that all parties are aware of what the trial judge overheard and observed, the following reflects the entirety of the court’s observations:
a. Two sentence fragments in a male voice were heard through the court’s speaker: (1) ‘how much longer will you be’ (or similar words to that effect); and (2) … ‘hook some people up with some soft’… (or similar words to that effect);
b. The mother’s video panel was highlighted (i.e. identifying the source of the audio) during this transmission;
c. The exchange was brief, and the mother’s microphone was visibly muted immediately thereafter.
[14] Court was adjourned over the weekend, with the Respondent mother held between cross-examination and re-examination and unable to discuss this topic with her counsel. The Respondent mother was interviewed by a Society worker with respect to their protection concerns. It is understood that the society worker also later interviewed the court registrar by telephone and prepared a casenote reflecting the content of that discussion. The casenote has been shared with all counsel but not with the court.
[15] On resumption of the trial after the weekend, the court advised that it would not, on its own motion, be declaring a mistrial or a recusal, however at the same time could not preclude any party from bringing an application for such relief. Counsel agreed that, in order for instructions to be properly obtained from the Respondent mother, an exception must be made to rule 5.4-2 of the Rules of Professional Conduct to allow communications between counsel and the Respondent mother on this important issue. Further, it was agreed that a brief Affidavit would be prepared by the Society’s investigating worker, attaching the worker’s contact log, safety plan, and any other relevant documents which may have been prepared in response to this event.
[16] The Respondent mother has now brought a formal motion for a mistrial. In support of her motion she has produced the Society’s Affidavit and has sworn her own Affidavit. Within those materials the mother maintains that no person was physically present with her during her evidence or on the court recess. The exchange that took place was a “voice clip” inadvertently sent to the mother by a third party and opened (i.e. played) by the mother on her phone over the course of the recess. A voice clip was played to the Society worker during the investigation which contained wording of similar effect. The child remains in the care of the maternal grandmother: no significant changes to the child’s placement were made as a result of the incident.
LAW AND ANALYSIS
Judicial Officers as Witnesses
[17] At the outset, it is important to clarify that a judge of the Superior Court is not a compellable witness. Judges are immune from testifying about matters which arose while engaged in their judicial duties. This principal has been repeatedly upheld by our highest court in no uncertain terms: see for example MacKeigan v. Hickman, [1989] 2 S.C.R. 796, Valente v. The Queen, [1985] 2 S.C.R. 673, Beauregard v. Canada, [1986] 2 S.C.R. 56. This judicial immunity accrues to the judge in his or her judicial capacity and cannot be waived by the parties: Condessa Holdings Ltd. v. Rusnak, [1993] S.J. No. 219 (Sask. C.A.). This should be obvious, but since the issue has been raised it must be stated in no uncertain terms: this trial judge is not compellable as a witness at this trial or at any subsequent retrial of this matter.
[18] Court staff are however compellable as witnesses, but to the extent possible, this practice ought to be avoided: see for example Hajrizi v. Ottawa-Carlton District School Board, [2018] O.J. No. 246 (ONSC) at para. 39, and R. v. Toutissani, 2007 ONCA 772 at para. 6.
General Observations in the Courtroom
[19] It is also important at this early stage to address the argument of the Society that the off-record comments overheard by the court and the court staff over the recess may be considered by the court in (a) assessing the credibility of the mother as (b) a general observation of her demeanour in the courtroom. I have reviewed the case of Her Majesty the Queen v. T.M. 2014 ONCA 854, as supplied by the Society, and I do not find it to be applicable to the unusual facts before me.
[20] I do not accept that the off-record statements heard over the court recess can be relied upon as evidence for any purpose as it is not evidence properly before the court. The statements overheard were mis-received by the court. That is, they were not tendered with the safeguards of established procedural and evidentiary rules deemed necessary for the conduct of a fair trial: they do not constitute proper evidence before the court.
Mistrials Generally
[21] Counsel for the parties have provided a helpful collection of caselaw which articulates the law applicable to mistrial applications. I have reviewed all of the caselaw referred to by counsel in argument. In general, the caselaw consistently confirms that:
a. Mistrial orders are in the discretion of the trial judge;
b. A mistrial may be declared where a judge that is seized of a matter is satisfied that, for any reason, there is a reasonable apprehension that either party will not have a fair trial if the current trial continues (and that a fair trial would be possible if it were to begin afresh before another judge);
c. Mistrials should be ordered only in the clearest of cases, where there has been a ‘fatal wounding’ of the trial process;
d. Mistrials should be granted only as a last resort, where no other curative measure could salvage a just and fair trial; and
e. Parties are entitled to fair trials, not perfect trials: R. v. Khan, 2001 SCC 86, Forsythe v. Tone, 2018 ONSC 3598, Van Ooyen v. Carruthers, 2018 SKQB 73, R. v. Toutissani, 2007 ONCA 772.
[22] The Respondent mother urges to court to follow the conclusion reached in Forsythe v. Tone. In that case a mistrial was ordered when it was discovered that the Applicant had been coached by counsel through cross-examination and prepared for re-examination by her counsel. The trial judge noted that the extent to which her evidence was tainted by this “deliberate attempt to cheat the trial process and deceive the court” was unknown. The trial judge concluded that the unethical conduct potentially affected every area of importance in the case, fatally wounding the process of a fair trial. The court concluded that no portion of the trial could be salvaged. [2] Those facts are very distinct from the facts before this court.
The Interconnectivity of Mistrial and Recusal in this Case
[23] I agree with the submissions of the Society and the Respondent father that the request for a mistrial in this action cannot be considered without reference to jurisprudence relating to judicial recusal. While counsel for the mother stressed that the request for a mistrial is not premised upon any allegation of conflict or personal interest in the outcome of these proceedings by the court, it is clear that the basic premise of her argument is that it is no longer possible for the Respondent mother to have a fair trial before this judge, or alternatively, that it would not appear to a reasonable person that a fair trial could possible before this judge, as a result of the information mis-received by this court.
[24] Counsel have made reference to the following well-established principles relating to bias and recusal:
a. Bias or prejudice refers to a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case: R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 106;
b. The 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. In the words of the Court of Appeal, that 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”: Committee for Justice and Liberty v. National Energy Board at p. 394;
c. Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary. It is key to the judicial process and must be presumed. While the requirement for judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified: Wewyakum Indian Band v. Canada, 2003 SCC 45, at para. 59;
d. The threshold for a finding of real or perceived bias is high: R. v. S. (R.D.) at para. 113.
[25] The caselaw suggests that the most common basis for the granting of a mistrial is founded upon the issue of bias: something has been done or not done, said or not said, before or during the proceedings, inside or outside of the courtroom, that gives rise to a reasonable apprehension that the trier of the case is now biased as against one of the parties or witnesses.
[26] It appears therefore that the thrust of the mother’s claim for a mistrial is the assertion that a reasonable apprehension of bias arises from the court’s accidental mis-reception of inadmissible information. That is, the court is in receipt of information that it ought not to possess.
[27] After careful consideration of the caselaw as reviewed above, and for the reasons that follow, I am not satisfied that this event is a sufficient basis upon which to declare a mistrial and recuse myself from this trial proceeding.
The Significance of the Information Received
[28] First, I do not believe that the mis-received information would have had a determinative impact upon the outcome of this trial as suggested, even if the information could be considered by the court:
a. I do not accept that the mis-received information goes to the very heart or core of the trial itself. While undoubtedly a portion of the evidence led at trial has highlighted the Society’s concern that the mother (a) may have in past or may currently be engaging in illicit drug use, and (b) may be associating with persons whose criminal reputations and activities might impact her ability to provide stable care for the subject-child, these are ancillary issues. The central theme of this trial to date has been the Respondent mother’s alleged long-standing history of alcohol abuse and the impact this has on her stability as a parent. All of the Society’s Child Protection Applications, as amended, have very clearly identified alcohol-related issues as the Society’s primary protection concern.
b. The only placement options being advanced for the child at trial are (a) that the child be placed in the care of the Respondent father or (b) that the child remain in the care of the maternal grandmother. All parties are advancing the position that the mother should have supervised time with the child: no party is seeking placement in her care, including the mother herself.
c. I accept the mother’s explanation regarding the comments (i.e. “voice clips”) overheard as plausible. In my view, the mother’s explanation does not run counter to the observations of the court. I do not consider the mother’s credibility to be in issue as a result of any contradiction between the court’s observations and the mother’s explanation.
d. The Society subsequently investigated the events which unfolded over the court recess, and this protection investigation did not result in any significant change to the child’s placement with the maternal grandmother.
e. I am satisfied that no third-party was present in the virtual courtroom during the mother’s evidence and her testimony was not tainted by outside influence.
[29] The Respondent father correctly identifies that it was not an option for the court to simply look the other way and pretend not to have heard the information. Procedural fairness to the participants and the court’s duty to act protectively towards children both demanded that this information be brought to the attention of the parties, regardless of the ultimate impact it may have had. However, in this case, the potential substantive impact of the information received, after an explanation was provided and a protection investigation was completed, is limited even if admissible into evidence.
The Trial Judge’s Role as Gatekeeper of Evidence
[30] Second, the mis-reception of information by a judge sitting alone is insufficient, in and of itself, to declare a mistrial. It must be coupled with the judge’s inability to disabuse his or her mind of that information, or the reasonable belief that the trial judge could or would not be able to do so.
[31] It is a function of a trial judge to be able to be unaffected by inadmissible evidence. Trial judges are routinely entrusted with the task of hearing and rejecting information that should not be entered into the court record. If this were not the case voir dires as to the admissibility of evidence in all proceedings would routinely be heard by someone else. Likewise, family court judges presiding over temporary care hearings would be precluded from hearing any subsequent child protection trial in the same proceeding as a result of their previous consideration of a lower threshold level of ‘credible and trustworthy’ evidence: see for example Children’s Aid Society of Ottawa v. A., 2015 ONSC 38 at para. 6. Trial judges can and routinely do disabuse their minds of potentially prejudicial information. The circumstances before me, although unique in fact, are not different in principle.
[32] This court will disabuse itself of the discussions overheard in the virtual courtroom during the court recess. A reasonable, thoughtful, and informed person, viewing the matter realistically and practically, would presume that a judge of this court who has sworn the judicial oath of office could and would faithfully perform this requisite judicial function.
Fault-Based Arguments
[33] The Respondent father and the Society both argue that, for public policy reasons, the mother should not be permitted to rely upon her own careless error to effect a significant delay in the conclusion of this matter and preserve a status quo which advantages only her position. Counsel for the father draws the court’s attention to the interesting case of Boardwalk Reit LLP v. Edmonton (City) wherein the Alberta Court of Appeal draws attention to the potential for engineered conflicts and opportunistic recusal motions: 2008 ABCA 176 at para 72-74.
[34] By contrast, the Respondent mother in her factum suggests that the court and court staff ought to have taken greater precautionary measures to ensure privacy of the participants over court recesses. The conduct of a zoom trial is a relatively new phenomenon, and no doubt as the court and counsel become more familiar and comfortable with this process best practices will emerge. However, it should be noted that:
a. Over the course of eight days of trial, a routine had developed such that:
i. All parties, counsel, court staff, etc., remained within the virtual courtroom during short recesses, turning off their video and muting their microphones unless they intended to engage in public dialogue with one another. This practice appeared to assist in avoiding connectivity issues which arose from time to time;
ii. During longer recesses (e.g. over the scheduled lunch hour) most parties would typically log out of the zoom session and return at the appointed time;
iii. The zoom ‘waiting room’ was typically only occupied while awaiting commencement of court in the morning and after the lunch recess;
iv. If counsel requested to have private discussions with their clients over the zoom platform they were assigned to a breakout room by the registrar, and permitted to return into the virtual courtroom upon completion of their discussions;
v. At all times throughout this trial all participants have had sole control over their individual zoom audio and visual controls. No party or counsel objected to this practice, or at any time suggested that the registrar should be controlling their individual microphones.
b. The registrar alone has been acting as the zoom host throughout the conduct of this trial. The trial judge has not been logging in as a co-host and has not exercised control over any other participant’s microphone. All parties and counsel have conducted themselves in a courteous and civil manner throughout the trial: at no time has it be necessary to direct that any party or counsel be involuntarily ‘muted’.
[35] While I am alert to the potential for mischief (e.g. in the form of hoping to ‘inadvertently’ receive information over the zoom platform by actively listening to discussions unintentionally made public, or the improper distribution of information for tactical advantage, etc.) I have no doubt that the circumstances before the court were simply an unfortunate mistake, not intentionally caused or premeditated by any actor in this proceeding. Attributing fault does not assist in the legal analysis in this matter or impact this court’s decision.
Stage of Proceedings and the Administration of Justice
[36] Third, it is not appropriate for a trial judge to recuse herself simply out of ‘an abundance of caution’ – to do so without having the onus met may result in prejudice to the other parties or to the system in general: Children’s Aid Society of the Regional Municipality of Waterloo v. L.-A.B. and M.D., 2004 ONCJ 235, at para. 55, Jewish Family and Child Service of Greater Toronto v. J.Z., 2014 ONCJ 165 at para. 107.
[37] Counsel for the father urges the court to consider the significant waste of resources and further delay that would be caused by the declaration of a mistrial in this action, and the implications of such a result in the unique context of child protection proceedings: as considered in Children’s Aid Society of the Regional Municipality of Waterloo v. L.-A.B. and M.D., 2004 ONCJ 235, at para. 52, and Children’s Aid Society of Toronto v. V.L., 2010 ONCJ 711 at para. 17-18.
[38] This Child Protection Application was commenced on March 8, 2019. The maximum time to bring this matter to completion (i.e.120 days), as prescribed the timetable under by Rule 33(1) of the Family Law Rules has long since expired. This matter was scheduled for trial on four previous trial sittings: January 13, 2020, April 6, 2020, May 25, 2020, and November 23, 2020. The current health pandemic has impeded the court’s ability to move this matter forward in accordance with the culture of urgency that child protection proceedings demand. Although the child is not in care (he is residing with kin), this court still has a duty to consider the most stable and safe long-term plan for the child as quickly as reasonably possible. Further delay in this proceeding is not in the best interests of the child.
[39] At the time of this unexpected receipt of information, the court had heard eight days of testimony from eight separate witnesses. Only the re-examination of the Respondent mother, the anticipated evidence of the maternal grandmother, and closing submissions of counsel remain. While certainly not determinative of the issue, I accept that the Respondent father will suffer prejudice if a mistrial is ordered: he is the only party on private retainer in this action and his ability to be represented by counsel in a retrial of this action may be compromised.
[40] Counsel for the father submits that a reasonable person should expect that our justice system is strong enough to withstand this irregularity. I agree. The collective interests of the parties, the child, and public at large all weigh in favour of continuing with this trial.
Curative Measures
[41] In my view it is unnecessary to hear any further evidence on this topic. A trial judge certainly has considerable discretion to make procedural orders designed to promote the primary objective of the Family Law Rules during the trial of an action. This includes the discretion to permit any party to disrupt the orderly flow of evidence and to tender further evidence out of sequence up until the formal order is signed and sealed. However, in this case the cumulative prejudicial effect of (a) re-opening the cross examination of the mother, (b) allowing the other three parties to re-open their cases, (c) potentially permitting the court registrar to be called as a witness at trial, and (d) the resultant delay in determining the best interests of this child, outweigh the probative value of allowing further exploration of this subject-matter. No other curative measures are necessary to ensure a fair trial. The trial will simply continue at the earliest opportunity: re-examination of the Respondent mother, and the calling of the balance of her witnesses will occur in the ordinary course.
ORDER
[42] On the basis of the above, there shall be an order to go as follows:
The Respondent mother’s motion to declare a mistrial is dismissed.
The Respondent mother’s re-examination and presentation of evidence through remaining witnesses will continue in the ordinary course.
The Affidavit of the Respondent mother, sworn February 25, 2021, and the Affidavit of B. Munro, sworn February 23, 2021 will be marked as lettered exhibits in this trial proceeding.
This matter is scheduled to be spoken to be spoken to on March 10, 2021@ 12:00 p.m. Counsel shall immediately canvas three (full) days of trial time for the continuation and conclusion of this trial through the Office of the Trial Coordinator. The continuation of the trial will be formally confirmed at the March 10, 2021 court attendance.
Bale J. DATE: March 2, 2021
[^1]: Note: I.E. is not specifically named in the mother’s Affidavit but in submissions her counsel identified I.E. as the author of the voice-clip in question. [^2]: Note: In Forsythe the Applicant was the only witness to have testified at the time the mistrial issue arose.