COURT FILE NO.: FC-22-1225 DATE: 03072024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant AND: J.M.W., C.M. and J.W., Respondents

BEFORE: J.P.L. McDermot

COUNSEL: Jeffrey Hustins, for the Applicant Jillian Bowman, for the Respondent, J.M.W. Cara Valiquette for the Office of the Children’s Lawyer representing the child, M.W.W. C.M. and J.W. unrepresented

HEARD: February 14, 2024

Ruling on pre-MOTION aPPLICATION

McDERMOT J.

Introduction

[1] This is a motion argued preliminary to the Applicant’s summary judgment motion which was scheduled during the child protection sittings commencing February 12, 2024.

[2] The Society’s motion seeks a finding that the children, M.W.W. (aged 14), M.M. (aged 3) and W.M. (aged 4) are all in need of protection, M.W.W. pursuant to s. 74(2)(c) of the Child, Youth and Family Services Act [1] (child sexually abused or exploited by caregiver) and M.M. and W.M. under s. 74(2)(d) (risk of sexual abuse or exploitation). The Society also seeks, by way of disposition, a deemed custody order under s. 102 of the CYFSA in favour of the Respondent Mother with limited access to the Respondent Father.

[3] At the date of Society involvement, the Respondent Mother, J.M.W. and the Respondent Father, C.M. had been cohabiting on a committed and long-term basis. They have two children of their own, M.W. and W.W. In addition, the Respondent Mother had brought her first child, M.W.W., into the relationship and C.M. acted as a stepfather to M.W.W. She resided with both C.M. and J.M.W. until C.M. was removed from the home.

[4] M.W.W.’s biological father is J.W. who has been participating in these proceedings although he has not filed an answer and plan of care. He has been aligned with the Society and the Respondent Mother throughout these proceedings and has regular parenting time with M.W.W.

[5] This child protection application arose from disclosures made by M.W.W., initially to her friends at school and later to the parent of a friend, that her stepfather, C.M., had touched her sexually when she was between 7 and 9 years of age when cuddling with her in bed. Initially, in November, 2022, these disclosures were of touching outside of her pajamas every month or so; later in August, 2023, M.W.W. disclosed that the incidents happened more often and both over and under her clothing. It is common ground that but for these disclosures, the Society would not have become involved or commenced these protection proceedings.

[6] Another result of the disclosures are serious criminal charges brought against C.M. Subsequent to M.W.W.’s initial disclosure she made similar statements to the police in the presence of the Society worker. C.M. was charged with sexual assault, sexual interference and sexual exploitation. Those charges remain pending; C.M. advised that a preliminary hearing was scheduled for sometime in September, 2024 and that the trial was expected in Superior Court in early 2025. He represents himself both in these child protection proceedings and in the criminal proceedings.

[7] This Summary Judgment Motion was commenced by way of Notice of Motion dated November 20, 2023 and served the next day. It was originally returnable during the November, 2023 child protection sittings. This motion was adjourned to this sittings by my Assignment Court endorsement of November 20, 2023 which also directed that the Society serve and file its motion by November 24, 2023 and that the Respondent Father, C.M. serve and file his own summary judgment motion and affidavit on or before January 15, 2024.

[8] The Society complied with the directions made on November 20, 2023. C.M. has filed nothing. He says that he does not have to on constitutional grounds, complaining of the inadequacies in the Applicant Society’s affidavit of documents. However, a more serious issue which I raised is the conflict between the obligation of the Respondent Father to file a response to the Applicant’s summary judgment motion as set out in r. 16(4.1) of the Family Law Rules [2] to “set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” as opposed to the right of an accused to remain silent and against self-incrimination set out in the Charter [3]. The finding in this case depends upon whether there is a genuine issue for trial concerning the protection issues arising from the disclosures made by M.W.W. to the police and Society worker. However, for C.M. to specifically address those disclosures to dispute the request for a finding would require the filing of material addressing his criminal culpability which would also involve both showing his defence strategy and addressing the criminal charges. That is obviously something that he could not be forced to provide in the criminal proceedings under the Charter.

[9] I note that it was the court that raised this concern at the commencement of the hearing. The court’s concerns were echoed however by C.M. I may have been guilty of having unduly interfered with the process; however, C.M. is unrepresented and the court has an obligation to ensure that self-represented parties in child protection proceedings receive sufficient assistance at the hearing of the motion: see Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 80. I accordingly raised it as an issue at the outset of the hearing and the parties agreed that this issue would be addressed prior to proceeding with the motion.

[10] For the reasons set out below I have determined that the Respondent Father is protected by s. 13 of the Charter and that his material may (and should) be filed under r. 16(4.1) of the Family Law Rules.

Analysis

[11] This is a summary judgment motion under r. 16 of the Family Law Rules. Under that rule, the party moving for summary judgment must “serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial”: see r. 16(4).

[12] The rule also sets out what a responding party must do. Rule 16(4.1) states as follows:

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[13] The difficulty that C.M. faces is that the facts upon which the Society relies are directly related to his criminal charges. The Society has filed evidence in this motion which is directed at the allegations by M.W.W. of having been sexually abused by C.M. He says that it is unfair that he be forced to file evidence directed at those allegations as they will breach his right against self-incrimination that is set out in s. 11 of the Charter:

11. Every person charged with an offence has the right (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[14] C.M. argued that, as a result of s. 11(c) and (d) of the Charter, he should not be forced to file an affidavit responding to the motion. He says that this would firstly “tip his hand” as to the defence strategy and that this might be communicated to the Crown, giving it an unfair advantage. Moreover, he says that to force him to file an affidavit may result in self-incrimination contrary to s. 11(c) of the Charter. He says that this motion should not proceed prior to the criminal trial to ensure that his rights are maintained.

[15] Counsel for the Society, the Respondent Mother and the Office of the Children’s Lawyer all provided cases and argued in favour of the matter continuing. They say that there is no jeopardy to the Respondent Father being required to file an affidavit. They point out that there are certain protections available to the father which would not put him in jeopardy in the criminal matter, including protection under the Canada Evidence Act [4], the Evidence Act (Ontario) [5] and s. 13 of the Charter. All of those provisions allow the Respondent Father to file a meaningful response without it being used against him at his criminal trial.

[16] In the United States, there is an absolute right against self-incrimination. We have all seen or heard of individuals in the U.S. “taking the fifth” and refusing to provide testimony that may incriminate the witness.

[17] In Canada, there is no absolute right to refuse to provide testimony where it may incriminate the witness. The Canadian compromise allows a witness to be compelled to testify, but to provide for protections against that evidence being used against the party in criminal proceedings. The primary protection is contained in s. 13 of the Charter provides as follows:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[18] The federal and provincial Evidence Acts are also protective of a witness who is asked to give self-incriminatory evidence and these statutes permit a witness to take the protection of the applicable statute and then provide testimony. For example, the Evidence Act (Ontario), s. 9 (which would govern the requirement for the Respondent Father to give evidence in these proceedings) reads as follows:

9 (1) A witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature.

(2) If, with respect to a question, a witness objects to answer upon any of the grounds mentioned in subsection (1) and if, but for this section or any Act of the Parliament of Canada, he or she would therefore be excused from answering such question, then, although the witness is by reason of this section or by reason of any Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature.

[19] Section 5 of the Canada Evidence Act is similar and, like s. 13 of the Charter, prevents an incriminating statement made in testimony to be used in subsequent criminal proceedings:

5 (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.

[20] It can be argued that those protections in the two “Evidence Act” statutes, pre-dating the Charter, are now, as far as criminal liability is concerned, subsumed in s. 13 of the Charter.

[21] Mr. Hustins argued that the Charter protects against the use of any incriminatory evidence and therefore provides C.M. with a complete answer to any potential criminal jeopardy resulting from his providing an affidavit addressing the sexual abuse allegations and the protection issues for the children. He says that if the Respondent Father is afforded protection under the Charter and the Canada Evidence Act, there is no excuse for not filing an affidavit in response to the Society’s motion for summary judgment and there is no reason to adjourn the summary judgment motion pending the criminal trial which may take place more than a year from now.

[22] C.M., after hearing my concerns, advised that this reinforces his request for an adjournment of the motion by reason of his inability to file material in response to the summary judgment motion. He originally rested this request on flaws in the Society’s Affidavit of Documents; however he also said that his rights against self-incrimination were jeopardized by the requirement under the rules to provide responding material. He requests an adjournment of the motion until after the criminal proceedings are resolved, which, as noted, was not expected to take place until after the Preliminary Inquiry (expected in September, 2024) with the trial to be heard by the spring of 2025, more than a year from now.

[23] As a result of this, the court must review the requirements for an accused person to rely upon s. 13 of the Charter. In light of my analysis below, I do not need to consider the provisions of the two evidence statutes as I have determined that C.M. is protected under s. 13 of the Charter. However, he can also take the protection of the Canada Evidence Act in his affidavit to be filed in this proceeding in any event.

Is the Evidence to be Provided by C.M. “compelled” testimony?

[24] The first issue to be considered is whether the incriminating evidence which may be proffered by C.M. is “compelled” evidence. The Supreme Court of Canada has determined that, to seek the protection of s. 13, the self-incriminating evidence at the earlier proceeding must be “compelled” testimony: see R. v. Henry, 2005 SCC 76 at para. 33 – 34 and R. v. Nedelcu, 2012 SCC 59 at para. 15 and 18. This only makes sense: if a witness is compelled to testify, he is then expected to provide full and frank evidence on the basis that the evidence would not be used against him in subsequent criminal proceedings. That is described as the quid pro quo of s. 13: in the words of Arbour J. in R. v. Noël, 2002 SCC 67 at para. 21:

Section 13 reflects a long-standing form of statutory protection against compulsory self-incrimination in Canadian law, and is best understood by reference to s. 5 of the Canada Evidence Act. Like the statutory protection, the constitutional one represents what Fish J.A. called a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony. If the evidence proffered is less than full and frank, the witness is subject to prosecution for perjury or for the related offence of giving contradictory testimony.

[25] If, on the other hand, the witness is not compelled to testify, such as an accused testifying at a previous criminal trial on the same charges, the witness has a choice whether or not to testify and thereby also puts himself in jeopardy in subsequent criminal proceedings: see R. v. Henry. Otherwise, if compelled, the previous incriminating testimony is, in the words of Moldaver J. in Nedelcu at para. 15, “off limits” for any purpose including impeachment for credibility.

[26] In addition, the Supreme Court has taken a fairly liberal interpretation of what “compelled evidence” is. The witness need not have had to testify pursuant to a subpoena: In Noel, Lebel J. makes it clear at para. 108 (concurred in by the majority) that it does not matter whether the witness testified under subpoena or not so long as his evidence was compellable in the proceeding:

Therefore, failing to file a statement of defence does not allow the respondent to "avoid coming within the grasp of the procedural rules ... that would, only then, compel his evidence", as the Crown asserts (A.F., at para. 37). Had the respondent failed to file a statement of defence, the plaintiff could have noted him in default and then, under Rule 31.04(2)(b), obliged him to be examined for discovery. I note that whether the plaintiff actually took the step of noting the respondent in default is irrelevant. Just as it does not matter for the purposes of s. 13 that a witness who can be statutorily compelled to testify chooses to testify uncoerced, it does not matter that a plaintiff does not resort to the available statutory powers to compel a defendant to be examined for discovery. In either case, there is a statutory route by which to compel the witness to give evidence. This is what makes a witness compellable. Whether or not that route is actually taken does not change the fact that it was available and could have been taken.

This definition of “compelled evidence” was confirmed in Henry at para. 34.

[27] This has been adopted in several Ontario civil and child protection cases. In Ontario Psychological Ass’n v. Mardonet, 2015 ONSC 1286, Perrell J. considered whether a party’s evidence is civil proceedings was “compelled” evidence. He said that it was, stating at para. 32 that “while a party rarely summonses or subpoenas his or her opponent as a witness for an interlocutory motion or at trial, the opponent is, nevertheless, a statutorily compellable witness.” He therefore determined that parties providing evidence in response to a motion for a Mareva Injunction were protected under s. 13 of the Charter [at para. 33]:

Thus, regardless of whether Ms. Mardonet and Mr. Bensusan are in fact being compelled (as they would be to attend and give evidence at an examination for discovery) they are compellable throughout the action, and, thus, any incriminating evidence they proffer is compelled testimony. The so called quid pro quo of the principle against self-incrimination is triggered, and the Defendants are entitled to the protection that s. 13 of the Charter offers.

Therefore, even where the evidence is not required in the motion before the court, if the parties are compellable witnesses in the main action, the evidence is protected from subsequent incriminating use against them under the Charter.

[28] This echoes a statement of Schnall J. in child protection proceedings in Family & Children's Services of St. Thomas & Elgin v. F. (W.), [2003] O.J. No. 717 (C.J.) where she stated that a party in child protection proceedings is a compellable witness [at para. 157]:

In civil proceeding (sic.), the witness is compellable. The purpose of the compulsion is not to incriminate the witness but to produce evidence that must be given if the public interest is to be served. Certainly in child welfare proceedings, the public interest includes the well-being of infants.

[29] This is confirmed by the wording of r. 16(4.1) which provides that a party responding to a summary judgment motion “shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” (emphasis mine). This appears to be a compulsory requirement for a responding party to a motion such as that brought by the Society. And in this proceeding, the Respondent Father, C.M., is a compellable witness both at the summary judgment motion where oral evidence may be relied upon in a mini-trial as contemplated by rr. 16(6.1) and (6.2) and in the proceeding itself if the summary judgment motion is dismissed and a trial is found to be necessary. C.M. can therefore be compelled to provide testimony in this proceeding and in my view any affidavit that he files in this motion is “compelled evidence” within the meaning attributed to it in R. v. Noel, supra.

[30] C.M. can therefore be required to provide testimony for this summary judgment motion and in this child protection proceeding. If he does not provide an affidavit, the consequences are dire, with a potential for a final order finding the children in need of protection with the remedies that entails: see M.N.V. v. F.K.D., 2020 ONSC 5911 where Kitely J. stated that, in light of s. 13 of the Charter, she would draw an adverse inference against a party failing to file an affidavit that might incriminate that person. I therefore find that the affidavit evidence to be provided by C.M. under r. 16(4.1) for this motion to be “compelled” testimony as described in the case law and protected under s. 13 of the Charter.

Is the Affidavit Evidence To Be Filed by C.M. “testimony” Within the Meaning of s. 13?

[31] It might be arguable that the word in s. 13, “testimony” is defined as oral testimony only. Case law has put paid to this idea.

[32] In King v. Drabinsky, 2008 ONCA 566, the Ontario Court of Appeal considered an appeal of the application judge ordering the enforcement of a sizeable United States judgment in Canada. In those proceedings, the Defendants had failed to provide affidavit evidence in a summary judgment motion in the United States because of their right against self-incrimination in pending Canadian criminal proceedings. Those Defendants argued that the judgment should not have been enforced because to force them to respond to the summary judgment motion would have breached their rights against self-incrimination in those criminal proceedings.

[33] The court determined that the affidavit evidence that might have been provided in the U.S. summary judgment proceeding was protected under s. 13 of the Charter. Implicit in this decision was the premise that affidavit evidence to have been provided in the United States in response to the summary judgment motion was “testimony” within the meaning of s. 13.

[34] In Ontario Psychological Ass’n v. Mardonet, supra, Perrell J.A. stated that any evidence within a civil proceeding that is not voluntary is “testimony”, stating at para. 29 that “the case law establishes that a person examined at a civil trial or an examination for discovery or an affiant in civil proceedings is treated as a compelled witness” (emphasis mine).

[35] In R. v. Baksh, at para. 79 – 80, [2005] O.J. No. 2971 (S.C.J.), an agreed statement of facts provided in earlier proceedings was not afforded the protection of s. 13 of the Charter as it was not compelled evidence and was also not testimony. However, a previous affidavit filed by the accused in those previous proceedings was protected testimony.

[36] In R. v. Seecheran, 2016 ONSC 7642, Code J. provided a definition of “testimony” which proves to be useful in this analysis [at para. 35]:

The noun "testimony" means "evidence given in court, an oral or written statement under oath or affirmation." See: The New Shorter Oxford English Dictionary [1993, Clarendon Press, Oxford], Vol. 2 at p. 3261. Seecharran "testified" or provided "testimony," within the meaning of these two definitions. Finally, the term "evidence," as used in s. 13 of the Charter, refers to "any incriminating evidence," which must be evaluated at the time of the second proceeding. See: R. v. Nedelcu, supra; R. v. Dubois, supra. There is no doubt that the Transcript from the prior proceedings is being used as "incriminating evidence" at the subsequent proceedings.

[37] I find that affidavit evidence to be provided by C.M. in this summary judgment motion would be within the definition of the word, “testimony” set out in s. 13 of Charter. Any incriminating evidence in that affidavit, and the affidavit itself would not be useable against C.M. in the forthcoming criminal proceedings.

Competing Interests in This Adjournment Request

[38] Even if there is potential for self-incrimination, and even taking into account the fact that C.M.’s affidavit may “tip his hand” on the contents of his criminal defence, the equities in this matter favour the matter proceeding.

[39] It is acknowledged that, as there are no children in care, there are no statutory timelines in play in this case. There is also no overt urgency in this proceeding as the children are protected by the terms of the access order and are in the care of the Respondent Mother.

[40] The timelines under r. 33 have long expired as this hearing should have taken place within 120 days of commencement of the proceeding on November 10, 2022.

[41] However, what is important, according to the case law, is the interest in having the rights of children determined on a timely basis. In Children’s Aid Society of Thunder Bay v. S.D., 2010 ONCJ 721, where one child was in care and two with kin, Elder J. stated the clear intention of the legislation and the rules:

Clearly, the legislation reflects that it is in the best interests of children to have decisions made about their placements as expeditiously as possible. Permanency planning for children in need of protection should take place within a year for young children. Conversely, if children are not in need of protection, then disruption to families should be minimized without delay.

[42] If C.M.’s Charter rights are being infringed, it must also be remembered that the children also have Charter rights of security of the person under s. 7 as well. The delay of proceedings would affect those rights. Where charter rights of a parent conflict with those of children, the interests of children must come first. As stated by Schnall J. in the St. Thomas case cited above [at para. 413], “Rights of parents are secondary to the rights of children to security of the person.”

[43] C.M. also submitted that he should be entitled to an adjournment because the Society has not filed a proper affidavit of documents. He says that is the reason why he has not filed any materials on the motion and does not have to until a proper affidavit of documents is filed.

[44] If that affidavit is to be challenged, C.M. must file materials to do so, including a motion. I understand that he is concerned that the Affidavit of Documents does not disclose the basis of the privilege claimed by the Society and that can be argued before me when the summary judgment motion is returnable. This is not a basis for adjourning the motion or not filing his materials for the motion; the issue of privilege would be addressed only once I have had a chance to review C.M.’s materials and the documents excluded from disclosure on a motion to challenge the affidavit. That can be argued on return of the summary judgment motion.

[45] Therefore, the motion should not be adjourned and C.M. should file all of his materials prior to the motion. If there is further disclosure and those documents disclose that further materials should be filed, then the Respondent Father may be given an opportunity to file a further affidavit, but we are only discussing three documents that the Respondent does not have which are related to the child abuse index filing and it is unlikely that these documents would make a material difference to the result.

Conclusion

[46] The request for an adjournment is dismissed. The matter will proceed during the May, 2024 trial sittings before me.

[47] Filing timelines to be determined on return of this matter when it is to be spoken to on March 11, 2024.

Justice J.P.L. McDermot

Date: March 7, 2024

[1] S.O. 2017, c. 14 [2] O. Reg. 114/99 [3] Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c.11 (U.K.). [4] R.S.C. 1985, c. C-5 [5] R.S.O. 1990, c. E.23