DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2022 BCPC 76

Citation: British Columbia (Child, Family and Community Service) v. S.B. 2022 BCPC 76 Date: 20220413 File No: 122103 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: L.B. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.B. PARENT AND: G.J. PARENT File No: 119906 Registry: Kelowna AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: G.J. APPLICANT AND: S.B. RESPONDENT RULING ON VOIR DIRE OF THE HONOURABLE JUDGE A. TAM

Counsel for the Director: M. KennedyCounsel for the Parent S.B.: L. KennedyCounsel for the Parent G.J.: M. PattersonPlace of Hearing: Kelowna, B.C.Dates of Hearing: April 11, 12, 13, 2022Date of Judgment: April 13, 2022 [1] This is a ruling on a voir dire to determine the admissibility of two drug tests. In the course of the hearing of the Director’sapplication for a continuing custody order pursuant to s. 49 of the Child, Family and Community Service Act, (CFCSA), counsel for theDirector tendered two documents that purport to be the result of the drug tests Ms. S.B. had taken by way of oral fluid testing. Ms.

S.B. isthe mother of L.B., the child in relation to whom the Director is seeking the continuing custody order. On the face of the documents,they show that Ms. S.B. tested positive for amphetamine and methamphetamine on the respective dates. Position of the parties [2] Counsel for Ms. S.B. objects to the admission of these documents on the basis that the Director has not established the reliabilityof the results, including the lack of evidence pertaining to the methodology and protocols by which the lab reached their conclusions.Counsel for the Director, on the other hand, relies on s. 68 of the CFCSA.

He says that the documents meet the reliability threshold and itwould be wrong for the Court to deprive itself of this valuable piece of evidence that may turn out to be an important consideration onthe ultimate issue. Moreover, it was Ms. S.B. herself who asked to take the drug tests when the Ministry had concerns about her druguse. Implicit in this request is an acknowledgment that these tests are reliable. It is, therefore, not open to her now to object to the use ofthese results. L.B.’s father, Mr. G.J., takes no position on this voir dire.

Child Protection Hearings and s. 68 of the CFCSA [3] It is generally acknowledged that child protection hearings are not like other trials in our adversary system. At para. 6 of J.P.G.v. British Columbia (Superintendent of Family & Child Services) (BC CA), the Court said: [6] We have taken the opportunity to remind ourselves that proceedings under the Family and Child Service Act, S.B.C. 1980, c. 11,are not a trial in the normal legal sense of that word. Rather, such proceedings are to determine if a child is in need of protection.

Thisincludes, of course, consideration as to the best possible permanent arrangements that can be made for the child's future care andupbringing. In this respect we have reviewed and considered the principal decisions on this question, including Re K. (1982), (BC SC), 36 B.C.L.R. 269 (S.C.); H. (D.R.) v. British Columbia (Superintendent of Family & Child Service) (1984), (BC CA), 41 R.F.L. (2d) 337 [58 B.C.L.R. 103] (B.C.C.A.); H. (G.) v. British Columbia (Superintendent of Family & ChildService) (1984), (BC CA), 59 B.C.L.R. 359, 44 R.F.L. (2d) 179 (C.A.); Superintendent of Family & Child Service v.

G.(C.) (1989), (BC CA), 22 R.F.L. (3d) 1 (B.C.C.A.). [4] Consequently, the evidentiary rules that normally govern litigation are relaxed to some degree, both legislatively andjurisprudentially. In W.M.W. and K.C.M. v. J.W. and M.M., 2011 BCPC 360, Judge T. S. Woods commented at para. 49: [49] Hearings under the CFCSA proceed within a more relaxed evidentiary regime than those that are conducted under the FRA. Forexample, pursuant to s. 66(1)(b), a CFCSA hearing may be “as informal as a judge may allow”.

Section 66(2) provides that neither thatinformality, nor departures from other technical requirements (such as those governing the admissibility of evidence, for example), willinvalidate orders made under the CFCSA so long as they do not “affect the merits of the case”. Similarly, in ss. 67(

b) and 68(2)(a),the CFCSA provides specifically for a relaxed approach to the reception of hearsay, making such evidence admissible—both fromchildren and from other persons—provided the court considers it reliable. And a wide discretion is conferred upon trial judges by s.68(2)(

b) to admit oral or documentary evidence of out-of-court utterances found in written statements, reports, transcripts, exhibits,findings in earlier proceedings and the like, so long as they are relevant. [5] The above comments were cited with approval in the British Columbia Court of Appeal decision in J.P. v. British Columbia(Children and Family Development), 2017 BCCA 308 at para. 151. Section 68(2) of the CFCSA [6] As referenced above, s. 68(2) specifically permits a court in a child protection hearing to receive evidence that may otherwise beinadmissible in other more traditional litigation. It reads as follows: 68(2)In a proceeding under this Act, the court may admit as evidence (

a) any hearsay evidence that the court considers reliable, or (

b) any oral or written statement or report the court considers relevant, including a transcript, exhibit or finding in an earlier civil orcriminal proceeding. [7] Interestingly, reliability does not appear to be a criterion for admissibility under s. 68(2)(b). A statement or a report may beadmissible as long as it is relevant. However, it would stand to reason that any evidence a court finds unreliable would be accorded noweight in any event. Be that as it may, it is clear that the threshold for admissibility is considerably lower at a child protection hearing. The evidence at bar

[ 8 ] The two documents in question pertain to drug tests that were done, the second of which was at the request of Ms. S.B.. The oral fluid samples were taken on July 12, 2021, and in March of 2022. The specimens were collected in Kelowna and then presumably sent to a lab for analysis. The Court heard no evidence as to where the lab is located, but on the form, it indicates that the company is called Dynacare and shows an address in London, Ontario. The collector of the sample certified on the form that that the specimen came from Ms.

S.B. and that it was then “labelled, sealed, and released to the Delivery Service noted in accordance with applicable requirements”. Ms. S.B. also certified on the form that she provided the sample in an unadulterated way, and that each sample was sealed in her presence. On the bottom of the form, a medical review officer verified that the samples were tested positive for amphetamine and methamphetamine “in accordance with applicable requirements”. The quantity of the drug found was also stated on the documents. [ 9 ] Whether Ms.

S.B. uses drugs, how much she uses, and when she used it are highly relevant in a child protection hearing for obvious reasons. As such, the reports are, in my view, admissible under s. 68(2)(b). Lessons from the Motherisk Inquiry [ 10 ] My conclusion notwithstanding, Ms. Kennedy, on behalf of Ms. S.B. quite rightly pointed out that there is no evidence led at this hearing about the protocols the Dynacare lab observes. As a corollary, there is no evidence about whether those protocols were properly followed.

The consequences of blindly accepting what may otherwise appear on their face to be scientific and reliable evidence have proven in legal history to be tragic. Until about 2015, test results from the Motherisk Drug Testing Laboratory were routinely admitted in Ontario during court proceedings, including child protection hearings. The premise was that hair testing was a valid and reliable method to determine alcohol or drug use of the subject. After further examination, however, the test results provided by Motherisk was determined not to be reliable.

The reliance on these invalid tests obviously resulted in devastating consequences for thousands and thousands of individuals and their families. Both counsel referred to the Motherisk saga in their submissions on this voir dire . Other Jurisdictions [ 11 ] To be clear, I do not understand Ms. Kennedy to be disputing the scientific validity of oral fluid testing as a means to determine drug use. But rather, she says that the evidence presented here falls short of permitting the Court to properly receive into evidence the documents in question.

In Ontario and Nova Scotia, I have been told, the practice is to tender the evidence by way of expert evidence that speak to whether the samples were properly collected and that proper protocols were followed, including while the samples were in transit. Ms. Kennedy relies on Nova Scotia (Community Services) v. J.M. , 2018 NSCA 71 . In that case, the motions judge excluded the evidence of cocaine testing. The Nova Scotia Court of Appeal then overturned that decision, on the basis that there was a proper foundation for its admissibility.

At para. 35, the Court said: [35] The evidence was that the QEII lab followed forensic practices. The Minister’s first witness was a licensed practical nurse, who described the collection, labelling, and transmission of the urine samples in this case. She explained how random visits were arranged to cover both weekdays and weekends.

The written protocol for testing by child protection agencies was entered as an exhibit through this witness. [36] The nurse testified about the use of rubber gloves, minimum sample quantity and temperatures, placement in a container with a tamper-proof seal, with R.R. present for each step. The sealed container is double-bagged before transmission to the lab. None of this process or testimony was challenged. [ 12 ] Ms. Kennedy submitted that the practice in Ontario and Nova Scotia ought to be adopted here in British Columbia. I agree that it would be preferable to have that type of evidence.

However, in the case at bar, the documents in question are not completely devoid of those details. The person who took the samples certified that they received it directly from Ms. S.B.. Ms. S.B. herself certified that the sample was submitted by her, unadulterated, and that the specimen was sealed with a tamper-evident seal in front of her. The samples were then labelled, sealed, and released to the Delivery Service in accordance with “applicable requirements”. It was then tested also “in accordance with applicable requirements”.

To be sure, the state of evidence here is not nearly as complete and compelling as the usual practice in Ontario and Nova Scotia. However, to meet the modest threshold of relevance, I find that the documents clearly do meet that test. [ 13 ] Although the documents are admissible under s. 68(2)(b), it still remains open to Ms. S.B. to argue the weight that should be accorded those documents in light of the state of the evidence surrounding its admissibility. In addition, it is open to her to call evidence to challenge the veracity of the test results.

If there is a basis to do so, she could also apply to cross-examine those who were involved with the testing. Dr. Grisdale’s Expert Opinion [ 14 ] During the voir dire , Ms. Kennedy also made the observation that, without expert evidence interpreting the results, the documents themselves mean very little. But it seems to me that that criticism is answered to some extent by the introduction of Dr. Grisdale’s letter. By consent, the Director proffered a letter from Dr. Grisdale, in the nature of an expert report, that explains the process, validity but also the limits of oral fluid testing. For example, Dr.

Grisdale commented generally on the testing window using oral fluids. He said that drugs that are snorted or smoked can be detected almost immediately after use, but “can be undetectable within 1-2 days after last use”. As well, drug concentrations tend to be lower using this method, as compared to urine testing, for example. Moreover, passive exposure can be an issue when it comes to THC, but does not appear to be an issue for cocaine and heroin.

In concluding his report, he wrote: As you can see the limits of oral fluid testing relates to the short window of detection and low concentrations of metabolites in oral fluid as well. It means false negatives could be more prevalent than with urine testing. However, there is more concern with the possibility of passive inhalation causing a false positive in oral fluid testing as compared to urine testing. Regardless, an oral fluid positive drug test result from the laboratory can be 100% trusted. It does, of course, require MRO review for further

interpretation. [ 15 ] In addition to providing this expert evidence, Dr. Grisdale was also the MRO (Medical Review Officer) who reviewed and interpreted the drug tests in question. He verified that both tests were positive for amphetamine and methamphetamine and that he did so

“in accordance with applicable requirements”. Since his letter was marked as an exhibit by consent, the Director will not be calling Dr. Grisdale to give viva voce evidence. Ms. S.B. had not asked that Dr. Grisdale be available for cross-examination. [ 16 ] Consequently, there is some expert evidence that assists the Court to properly interpret the test results. For example, it is open to the Court to conclude that Ms. S.B. had used amphetamine and methamphetamine within 2 days of the testing. But there remains valid points that were not addressed.

For example, one of the tests showed a concentration of 220 mg/ml of methamphetamine. Without further evidence, the Court does not know what that means. Moreover, Dr. Grisdale’s report is silent with respect to the degree passive exposure is an issue when it comes to amphetamine and methamphetamine. There is also no evidence as to whether these substances are found in prescribed medication or whether the source is necessarily illicit street drugs. But these very valid submissions are more appropriate, in my view, in closing argument after all of the evidence is tendered.

They do not render the test results inadmissible at this stage. [ 17 ] In coming to my conclusion on the issue of admissibility, I had considered the question if the test results had been negative and it were Ms. S.B. who wished to rely on them. In that scenario, it would seem tremendously unfair to not permit her to do so.

If a parent does everything the Director asks of him or her, takes all the counselling required, is able to maintain sobriety, and performs oral fluid testing that shows up negative every time, I do not imagine the Court saying to that parent that those tests are nevertheless not admissible on the basis that the chain of continuity had not been established, for example. The weight to be given those tests, as always, will be a function of the totality of the evidence.

But it would be an injustice, and painfully frustrating for the parent, to not let her or him show the Court their clean drug tests since they are clearly relevant. That being so, I can see no rational justification that the answer should be different when it is the Director tendering the same document. Conclusion and

Summary [ 18 ] At a child protection hearing, the rules of evidence are more relaxed than in a traditional trial. I do not think this is so because the stakes are lower. If anything, I think this may be so because the stakes are higher. As Ms. Kennedy put it, it is “for all the marbles”. As such, pursuant to s. 68(2)(b), the Court may receive into evidence any written statement or report that the Court considers relevant. Any drug use on the part of a parent, as evidenced by the tests, is clearly relevant on the issue of whether L.B. is in need of protection, and if so, what the appropriate remedy may be.

In addition, I find that there are some assurances within the documents themselves that indicate their reliability. Dr. Grisdale’s expert opinion also assists the Court in interpreting the results to some degree. Should the veracity of these tests be challenged, it remains open to Ms. S.B. to call evidence, or to apply to cross-examine the individuals involved in the testing process, including Dr. Grisdale. Any further arguments with respect to the test results’ significance, or lack thereof, will be more appropriate during closing submissions.

For all of the above reasons, the two test results may be admitted into evidence. _________________________ The Honourable A. Tam Provincial Court Judge