Nunavut (Director of Child and Family Services) v. S.Q. and L.K., 2013 NUCJ 05

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut (Director of Child and Family Services) v. S.Q. and L.K., 2013 NUCJ 05 Date of Judgment: 20130423 Docket Number: 10-10-147-CHW Registry: Iqaluit Applicant: S.Q. and L.K. -and- Respondent: Director of Child and Family Services ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicant): Jack Squire Counsel (Respondent) Michael Chandler Location Heard: Iqaluit, Nunavut Date Heard: April 8, 2013 Matters: Child and Family Services Act (Nunavut) , S.N.W.T. 1998, c. 13; Evidence Act (Nunavut) , S.N.W.T. 1998 c. E-8 as amended by Statutes Enacted Under

Section 76.05 of the Nunavut Act s. 80 S.C. 1993, c. 8 s. 41.1; Rules 1, 325 and 326, Nunavut Rules of Court, R.N.W.T. R-010-96,

Part 44, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] The respondent filed a motion for an order granting permanent custody of the child A.K. to the respondent. [ 2 ] The applicant mother opposed the application and the matter was set for trial on April 15 and 16, 2013. [ 3 ] An evidentiary issue arose at a pre-trial conference and Justice Mahar directed counsel to argue the issue before me on April 8. [ 4 ] At the conclusion of argument I reserved judgment to the trial date because there was insufficient time for counsel to implement any order I was prepared to make.

However, since the trial has now been adjourned to July 11 and 12, those time constraints are no longer present. As a result of the additional time available there is now no reason to delay my judgment to the trial. II. ISSUES [ 5 ] The initial issue raised at the pre-trial conference was whether hearsay evidence was admissible in child welfare hearings. By the time counsel for the mother filed his trial brief, the issue had been further refined to whether the respondent had complied with Rules 1, 325, and 326 of the Nunavut Rules of Court [Rules].

Those sections require that both parties file a trial brief and evidence summaries 10 days before trial. A. Trial brief and evidence summaries (i). Arguments [ 6 ] Counsel for the mother relied on

section 80 of the Child and Family Services Act (Nunavut) , S.N.W.T. 1998, c. 13, as amended by Statutes Enacted Under

Section 76.05 of the Nunavut Act , s. 80 S.C. 1993, c. 8 s. 41.1 [CFSA], to argue that the Rules apply to a trial under the CFSA. Rules 325 and 326 require all parties to file trial briefs and evidence summaries 10 days before the trial is scheduled to begin. [ 7 ] In compliance with these Rules, counsel for the mother filed a trial brief 10 days before the trial that contained a

summary of the evidence that would be given by the mother. [ 8 ] Counsel for the Director did not dispute the applicability of the Rules to the trial and the requirement to file a trial brief. However, he argued that some allowance had to be made for child welfare litigation in Nunavut. The usual practice in trials for permanent custody is to rely on the written records of the Director that are fully disclosed to the counsel for the parents, and to have one or more witnesses introduce and usually give extensive hearsay evidence about them.

That practice was followed in this case and counsel for the mother has been given full disclosure on all of the documentation that the Director will be relying upon. [ 9 ] Counsel for the Director argues that the Director should not have to go the expense of condensing the extensive records into a witness statement. That is the responsibility of counsel for the mother. (ii). Analysis [ 10 ]

Section 80 of the CFSA states: 80. Subject to the regulations, the Rules of the Nunavut Court of Justice apply to proceedings under this Act in any court in which they are brought except where the Rules are inconsistent with this Act or the purposes and intent of this Act. S.N.W.T. 1998,c.34,Sch.C,s.3(3)(c).

[ 11 ] Rule 326 of the Rules states: 326.

(1) In this rule, "evidence

summary" means a written

summary of oral evidence to be given by a witness.

(2) Where an action has been entered for trial, each party shall, on or before the tenth day before the trial, serve on every other party an evidence

summary in respect of each witness intended to be called on any issues of fact to be decided at the trial.

(3) Subject to subrule (4), the intended witness shall sign the evidence

summary and verify the truth of its contents.

(4) Where for any extraordinary reason a party is unable to provide an evidence

summary in respect of a witness or to obtain the signature of a witness on an evidence

summary, the party shall provide to every other party a written explanation of the reason the signed evidence

summary cannot be provided, an outline setting out what the party expects the witness' evidence to be and a certificate stating that, to the best of the party's knowledge, the outline fairly sets out the evidence the party expects the witness to be able to give at trial.

(5) Where a party is represented by a solicitor, the solicitor shall sign the certificate referred to in subrule (4).

(6) Where a party calls a witness in respect of whom no evidence

summary has been provided, or where an explanation and outline has been provided under subrule (4) but the explanation is not satisfactory or the outline does not fairly represent the evidence given by the witness, the Court may, if satisfied that any party adverse in interest has been prejudiced by the non-production of an evidence

summary in respect of a witness, adjourn the trial on such terms and conditions, including any terms as to costs, as the trial judge considers just under the circumstances.

(7) This rule does not apply to the evidence to be given by an expert witness to whom

Part 18 applies. [ 12 ] As noted in Hess v Iqaluit (Town), [2010] NWTJ No 50 , 2010 NWTSC 46 , and Suchlandt v Diveky, [2009] NWTJ No 2 , 2009 NWTSC 2 , the purpose of Rule 326 is to prevent the opposite party from being taken by surprise or ambushed at a trial. This rule supplements the extensive rules for the examination for discovery of witnesses before trial. There are also requirements for all parties to file a Statement of Documents.

These Rules ensure that all parties are fully apprised of all relevant documents and to learn about the evidence of all potential witnesses who may be called at the trial. [ 13 ] The Rules are in place to resolve disputes where the parties cannot agree. If the parties agree then there is no need to resort to the Rules. But where there is disagreement, the Rules are applicable and will be given the requisite

interpretation. [ 14 ] While discovery is available to both parties in a child welfare trial, to my knowledge, it has never been used in Nunavut because it is very expensive and court reporters are not readily available. Instead, the practice followed is full disclosure and production of all of the documents in the possession of the Director, as occurred in this case.

Although this practice has been followed to date in Nunavut, it does it not mean the Rules can be ignored when one party relies on them. [ 15 ] Counsel for the Director acknowledges that the evidence he intends to introduce through his witnesses contains a substantial amount of hearsay as revealed in the documentation provided to the counsel for the applicant. Because of the volume of information provided, he argues the Director should be relieved of his obligation under the Rules to provide a

summary or summaries of the evidence the Director will be calling. [ 16 ] Although counsel for the Director may have been taken by surprise by the request for the evidence

summary from the mother’s counsel so close to the trial date, it is not a satisfactory excuse to say the Director has provided all the disclosure and therefore there is no need for the witness

summary. The Rules specify that witness summaries “shall” be provided 10 days before trial. [ 17 ] The only exception is provided in Rule 326(4) where for “any extraordinary reason” a party is unable to furnish the witness

summary the party may provide a written explanation and then provide an outline of the anticipated evidence.

[18] Although compliance with the Rules will increase the workload of the Director, I am satisfied it will shorten the trial because it willfocus the Director on the key parts of the evidence and simplify the examination-in-chief and cross-examination. [19] The Director shall provide the witness summaries in compliance with the Rules when the trial starts in July. The evidence

summaryof the mother is deficient because it is not a separate document signed by her verifying the truth of its content but is contained within thetrial brief signed by counsel for the mother. Counsel for the mother will also comply with the Rules by filing a separate witness

summarysigned by her. B. Hearsay (i). Arguments [20] Counsel for the Director relies on

section 45 of the Evidence Act (Nunavut), S.N.W.T. 1998 c. E-8 as amended by Statutes EnactedUnder

Section 76.05 of the Nunavut Act, s. 80 S.C. 1993, c. 8 s. 41.1 [Evidence Act], to argue that the documents provided by theDirector are admissible as evidence even though they contain substantial hearsay evidence. The evidence would also be admissible as ahearsay statement in lieu of oral evidence upon satisfying the other conditions of

section 61. [21] Alternatively, the hearsay evidence in the documents is admissible under the business records exception established in Ares vVenner, (SCC), [1970] SCR 608, [1970] SCJ No. 26 [Ares], and used for a truth purpose if the necessity and reliabilityrequirements set out in R v Kahn, (SCC), [1990] 59 CCC (3d) 92, [1990] SCJ No 81 [Kahn], and R v Smith, (SCC), [1992] 2 SCR 915, 75 CCC (3d) [Smith] 257, are satisfied. [22] The evidence is necessary because attempting to call all 48 witnesses who have had something to do with the file would beprohibitively expensive and logistically impossible in a small community in Nunavut. [23] The evidence is reliable because it consists of the records produced by professional social workers and health care providers duringthe course of their duties on this file. [24] Counsel for the mother acknowledges that the social worker case notes come within the business records exception established inAres if they were made in the regular course of business, contain the writer’s personal knowledge or observations, and are madecontemporaneously with events set out in the record.

Sections 45 and 61 of the Evidence Act are a statutory statement of the Ares rule. [25] Counsel for the mother argues that, where the social worker has no personal knowledge and his or her testimony is based onbusiness records (i.e. case notes of other social workers), he or she must disclose the records of the other social workers that provide thebasis for his or her notes so that the admissibility of the evidence can be addressed. This disclosure should come from the evidencesummaries that must be provided under Rule 326.

While this type of evidence is admissible, courts have given it a very restrictiveinterpretation as seen in Setak Computer Services v Burroughs, (ON SC), [1977] 15 OR (2d) 750, 76 DLR (3d) 641(HC) [Setak]. (ii). Analysis B.ii.1 Legislative authority [26] Alberta, British Columbia, Saskatchewan, Manitoba, Nova Scotia, Newfoundland, and the Yukon Territory have legislativeprovisions that permit the use of hearsay evidence. Alberta, British Columbia, Newfoundland, and the Yukon grant the judge a broaddiscretion to admit any hearsay. For example,

Section 108 of the Alberta Child, Youth and Family Enhancement Act, RSA, c C-12 states:

(3) The evidence of each witness in a Court proceeding under this Act shall be taken under oath and forms part of the record.

(4) Notwithstanding subsection (3), the Court, if it considers it proper to do so and it is satisfied that no better form of evidence isreadily available, may (

a) accept evidence by affidavit, or (

b) accept hearsay evidence. [27] Manitoba, Nova Scotia, and Saskatchewan permit the use of hearsay statements for children. [28] There are a multitude of reported cases that have grappled with the use of hearsay in child welfare proceedings in the absence oflegislation. As noted by the Newfoundland Court of Appeal in J.B. (Re), (NL CA), [1998] NJ No 208, 163 DLR(4th) 438 [JB], some cases that pre-date Kahn took an open-ended approach to the reception of hearsay evidence because of the non-adversarial, inquisitorial nature of such proceedings.

Other cases, decided after Kahn, applied the principled exception to determine ifhearsay should be permitted in child welfare proceedings. The Newfoundland Court of Appeal held that the principled exception fromKahn and Smith should be applied in Newfoundland. In 2010, the province enacted legislation that now permits a judge to admit and actupon hearsay evidence that he or she considers reliable in the circumstances.

B.ii.2 Past practice in Northwest Territories and Nunavut [29] In my experience, the courts in the Northwest Territories and Nunavut have used the open-ended approach described in JB and haveroutinely accepted hearsay evidence contained in business records or in the viva voce evidence of a witness in contested child welfareproceedings. An additional reason for taking this approach in the North flows from the significant turnover of the Director’s employeesand the high cost of travel. When the trial takes place in a small community there are also problems in finding accommodation for a largenumber of witnesses.

The Director usually relies on a few key witnesses who then give hearsay evidence from the information containedin the file on the history of the involvement of the Director. This is supplemented by viva voce evidence from the current social workerswho have personal knowledge of the most recent events. The judge then determines the weight if any that should be given to hearsayevidence in rendering a judgment. [30] This is the first case that has directly raised the use of hearsay evidence in child welfare cases in Nunavut.

B.ii.3 Necessity and reliability [31] As held in R v Khelawon, 2006 SCC 57 , [2006] 2 SCR 787, [2006] SCJ No 57, the general common law rule is thathearsay is not admissible unless it comes within one of the exceptions. Hearsay evidence is not excluded because it is irrelevant butbecause it is difficult to test.

The essential defining features of hearsay are that the statement is introduced for a truth purpose and there isno opportunity to cross-examine the witness who made the statement. [32] The rigid application of the common law exceptions created problems because it led to the unwarranted exclusion or admission ofrelevant evidence. In Khan, Smith, and later R v Starr, 2000 SCC 40, [2000] 2 SCR 144, the Supreme Court accepted the principledadmission of hearsay evidence. The basic rules were summarized at para 15 in R v Mapara, 2005 SCC 23, [2005] 1 SCR 358, as follows: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions tothe hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by theprincipled approach. The exception can be modified as necessary to bring it into compliance. (

c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability arelacking in the particular circumstances of the case.

(

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity areestablished on a voir dire. [33] The Director argues that the hearsay evidence is necessary because attempting to call all 48 witnesses who have had something todo with the file would be prohibitively expensive and logistically impossible in a small community in Nunavut.

I am satisfied that thenecessity requirement would likely be successful for most of the witnesses but would require some evidentiary base at the trial.However, it is up to the Director to decide which witnesses are the most important to convince the trial judge that a permanent custodyorder should be granted. That determination will be facilitated by the provision of the witness statements to the mother’s counsel.

He hasindicated that much of the proposed hearsay will be admitted by consent but he cannot do so until he knows the content of their proposedevidence. [34] The reliability of the proposed evidence can only be determined after hearing the witnesses and argument at trial. However, a broadstatement that all the evidence is reliable because professionals in the course of their duties recorded it will not satisfy the test. Thevariety of evidence recorded on a file will likely range from very unreliable to very reliable. Each statement would have to be consideredand the admissibility determined on a voir dire.

This again underscores the need for the witness statements. B.ii.4 Business records exception to general rule excluding hearsay [35] One of the traditional exceptions to the inadmissibility of hearsay evidence is the exception for declarations made in the course of abusiness duty. The rule contained a number of technical preconditions that led to the exclusion of highly relevant evidence. Judicialreform of the rule in Canada came with the judgment in Ares.

It was followed by legislative reform in amendments to the Evidence Actsof Canada and all provinces and territories, except Newfoundland and Alberta. [36] The relevant sections of the Evidence Act of Nunavut are sections 45, 47, 61, and 62. [37]

Section 45 authorizes a court to admit a copy of an entry in any document of the Government of Nunavut or Canada if an officertestifies that the document was made in the usual course of business. This is the Nunavut equivalent to section 30(3) of the CanadaEvidence Act, RSC 1985 c C-5. The purpose of these sections is to avoid the inconvenience of producing the original governmentdocuments in accordance with the best evidence rule. [38]

Section 47 is the Nunavut version of the business records exception and states: 47.

(1) In this section, "business" includes every kind of business, profession, occupation or calling, whether carried on for profit or not. Proof of record

(2) A record in a business of

an act, condition or event, is, insofar as it is relevant, admissible in evidence if (

a) the custodian of the record or other qualified person testifies to its identity and the mode of its preparation, and to its having beenmade in the usual and ordinary course of business, at or near the time of the act, condition or event; and (

b) in the opinion of the Court, the sources of information, mode and time of preparation of the record were such as to justify itsadmission. [39] To admit documentation from the Director’s files, the custodian of the files or other qualified person must testify that thedocumentation contained in the file was made in the usual and ordinary course of business and contemporaneous with the eventsrecorded. In my experience, the files in permanent custody cases are voluminous and are admitted without objection from counsel for theparents because the files come within the statutory wording.

As noted in Winnipeg South Child and Family Services, (MB KB), [1986] MJ No 209, 40 Man R, (2d) 64 [Winnipeg], the intention of the Legislature was to improve the court process andfacilitate the manner of proof of certain routine matters without the necessity of calling a plethora of witnesses. However, I agree withHamilton J. that counsel should review the documentation to ensure that only relevant documentation is included.

[ 40 ] Once the relevant documentation is admitted a second problem arises because the witnesses chosen by the Director to testify will likely not have personal knowledge of the information contained in the documentation. They will testify about the information in the files as information and belief. As noted at p. 297 of The Law of Evidence in Canada, this form of secondary hearsay may be admissible because of provincial and territorial legislation similar to

section 61. That

section states: Documentary evidence 61.

(1) Subject to subsections (2) and (3), in an action where direct oral evidence of a fact would be admissible, a statement made by a person in a document and tending to establish that fact is, on production of the original document, admissible as evidence of that fact if the following conditions are satisfied, namely,

a) if the maker of the statement (

i) had personal knowledge of the matters dealt with by the statement, or (ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement, insofar as the matters dealt with by the statement are not within his or her personal knowledge, in the performance of a duty to record information supplied to him or her by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

b) if the maker of the statement is called as a witness in the action. Non-compliance with subsection (1)

(2) The condition that the maker of the statement shall be called as a witness need not be satisfied if

a) the maker of the statement is dead or unfit by reason of his or her bodily or mental condition to attend as a witness;

b) it is not reasonably practicable to secure the attendance of the maker of the statement; or

c) all reasonable efforts to find the maker of the statement have been made without success. Power to admit documentary evidence

(3) The Court may at any stage of an action, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that the statement mentioned in subsection (1) is admissible as evidence or may, without that order having been made, admit the statement in evidence (

a) notwithstanding that the maker of the statement is available but is not called as a witness; and (

b) notwithstanding that the original document is not produced, if in place of it, there is produced a copy of the original document or of the material part of it certified to be a true copy in the manner that may be specified in the order or as the Court may approve. Statement by interested person

(4) Nothing in this

section renders admissible as evidence a statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact that the statement might tend to establish. Authentication of statement by maker

(5) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by the person with his or her own hand, or was signed or initialled by the person or otherwise recognized by the person in writing as one for the accuracy of which the person is responsible. Discretion of Court respecting admissibility of statement

(6) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this section, the Court may draw any

reasonable inference from the form or content of the document in which the statement is contained, or from any other circumstances, andmay, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a qualified medical practitioner, and where the action is with a jury, the Court may,in its discretion, reject the statement notwithstanding that the requirements of this

section are satisfied with respect to it, if for any reasonit appears to the Court to be inexpedient in the interests of justice that the statement should be admitted. Weight to be attached to evidence 62.

(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by

section 61, regard shall be had toall the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and in particular

a) to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated; and

b) to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. Corroboration of evidence

(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in whichuncorroborated evidence is to be treated, a statement rendered admissible as evidence by

section 61 shall not be treated as corroborationof evidence given by the maker of the statement. [41] However, as held in Setak and Winnipeg, the weight given to this type of evidence may be minimal. In Winnipeg, Hamilton J.approved of the following statement of Griffiths J. in Setak: The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe s. 36as admitting hearsay evidence of any third party would make the

section an almost limitless dragnet for the introduction of randomtestimony from volunteers outside of the business whose information would be quite beyond the reach of the usual test of accuracy. [42] In Children’s Aid Society of Huron-Perth v H (C.), 2007 ONCJ 744 , 2007 CarswellOnt 9293, MacKenzie J. held that thedeponent to an affidavit on information and belief in a

summary judgment application should satisfy the following requirements: (

a) The deponent should identify the source of the information and that the source has personal knowledge or observation of the factalleged. (

b) The deponent must explain why the original source of the information has not sworn his or her affidavit and therefore why it wouldbe necessary for the court to accept hearsay evidence. (

c) The deponent must explain the circumstances of how the hearsay evidence was obtained, why the source would have knowledge ofthe information and the full details of the information and the source so that the court can ascertain the soundness of the information andthe source and assess some kind of level of reliability to that evidence. (

d) The deponent must explain not only that they believe the evidence from the hearsay source, but also explain for each piece ofhearsay evidence the reasons why the court should believe the source and rely on that untested evidence. [43] The same requirements would be applicable to the evidence given by the Director’s witnesses who do not have personal knowledgeof the information in the file. I assume the Director will be calling evidence similar to the affidavit filed in support of the motion forpermanent custody.

A review of this evidence will hopefully illustrate some of the problems I anticipate at trial in applying these legalprinciples on the admission of hearsay evidence. [44] In paragraph 3 of Ms. Patterson’s affidavit she states: “A.K.’s file states that A. K. was apprehended on March 3, 2008 by Gail Bowen of Ottawa Children’s Aid Society and verily believethis to be true.”

[ 45 ] This hearsay is likely very reliable because it is part of the duties of any social worker to record this type of information in a report about the apprehension. However, there should be some reference to the documentation that was the source of the information. [ 46 ] In paragraph 4 of the affidavit Ms.

Patterson states: “A.K.’s file states that on March 3, 2008, L.K. admitted that she smoked marijuana for two hours while carrying her baby on her back” [ 47 ] This hearsay is in an entirely different category and would not be given any weight because it does not indicate who heard L.K. make the statement and the circumstances surrounding it. It also does not identify the document that was relied on to obtain this information. [ 48 ] In paragraph 5 of the affidavit Ms.

Patterson states: A.K.’s file states that on March 3, 2008 Gail Bowen, Social Worker at Children’s aid Society of Ottawa, observed L.K. use physical discipline toward A.K. three times during their meeting. One of these times, Gail observed L.K. pick A.K. up by one arm and slap him forcefully across the buttock. [ 49 ] This hearsay is likely reliable and would be given some weight if the documentation that was the source of the information was identified. It may have been an affidavit that Ms. Bowen filed in the Ontario proceedings or notes that she made on the file. III.

CONCLUSION [ 50 ] Counsel for the mother requests that the Director identify these types of source documents that are intended to support the hearsay anticipated from the Director’s witnesses so that he can consider their reliability. As he stated in his brief: There may be no issue re admissibility, but the specific document should be subject to scrutiny, not simply relied upon and presented as a fact by a witness making an oral statement of which he or she has no personal knowledge. [ 51 ] I am satisfied that this is a very reasonable request that will shorten the trial time.

It can be easily incorporated into the witness statement that the Director will be filing in compliance with the Rules. Dated at the City of Iqaluit this 23rd day of April, 2013 _______________________ Justice Earl D. Johnson Nunavut Court of Justice