R. v. Babashaverdi, 2018 ONCJ 972

CITATION: R. v. Babashaverdi , 2018 ONCJ 972 DATE : December 12, 2018 4860 999 17 100892-00 THE ONTARIO COURT OF JUSTICE IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990 HER MAJESTY THE QUEEN 5 V. ALEHEH BABASHAVERDI 10 * * * * * * * * R E A S O N S F O R J U D G M E N T 15 DELIVERED ORALLY BY HER WORSHIP JUSTICE OF THE PEACE C. SHONIKER on December 12, 2018, at 60 Queen Street West, Old City Hall, TORONTO, Ontario * * * * * * * * 20 Charges under the Child Care and Early Years Act x 2

* * * * * * * * 25 Appearances: Mr. C. Costain Ministry of Education Prosecutor 30 Ms. A. Babashaverdi The Defendant – in person WEDNESDAY, DECEMBER 12, 2018 R E A S O N S F O R J U D G M E N T 5 SHONIKER, J.P. (Orally) : This is the Judgment hearing for the Court’s ruling in regard to the matter of Babashaverdi. Re Alleged Offence of contravention of the Act 10 concerning number of children in care: Ms. Babashaverdi, Aleheh Babashaverdi, also known by the name of Maria, was charged under the Child Care and Early Years Act , hereinafter referred to 15 by this Court as “the Act”. Ms. Babashaverdi was

alleged to have breached the provisions of the Act, more specifically the legislative provisions related to the allowable number of children at her home child care. Simply put, it was alleged by the 20 Ministry that Ms. Babashaverdi had more than five children in her home child care on the subject date indicated on the Information, on or about January 26th, 2017, thereby in contravention to the provision of the Act and its regulations. 25 Re Determination of the allowable number of children : The Act sets out the number of children allowable 30 in a home care non-licensed situation.

But the Court recognizes that the “allowable” number may sometimes be less than obvious, when various factors and exceptions might apply on any given day altering the “allowable” number as indicated by the Act and its regulatory provisions. In other words, there are variables which can possibly factor into 5 the determination of the allowable number of children, including the ages of the children in care.

Therefore, even if the “allowable” number is exceeded by the home childcare provider, the Act still allows for exceptions to the rules.Another 10 example, if the home childcare provider’s own children, who “regularly attend school” but are off sick and at home, the child care provider may still be considered to be acting within the rules of the Act. 15 Re Various types or categories of child home care: The Act further becomes somewhat complicated by the different rules which apply even to different types 20 of home childcare situations.

For example, there is a difference of one child if the home child care provider is an unlicensed versus a licensed home childcare provider, and something still different again if the home child care provider is acting 25 under an outside licensed umbrella agency. Re Alleged Offence of obstruction of the Inspectors in the reasonable exercise of their duty: 30 Ms. Babashaverdi was further charged with having obstructed the Ministry inspectors, Mr. Nadarajah Kathirganathan and Ms. Beckley, by allegedly having prevented the completion of an inspection at her home and childcare location on January 24th, 2017.

That is the second count on the Information against Ms. Babashaverdi before the Court. 5 More specifically, it is alleged that when the inspectors, the male inspector and the female co- inspector, came to Ms. Babashaverdi’s home unannounced and without any notice to her, on the

10 date of January 24th, they finished their inspection of the entirety of the childcare area but did not see inside a bathroom washroom area to complete their inspection. 15 Re Events of January 24 th , 2017 and January 26 th , 2017: On their arrival, Ms. Babashaverdi had allowed them into her home. The Inspectors, Kathirganathan and 20 Beckley, entered through the main front door of the house, into the main floor and kitchen area initially. After some conversation, the Inspectors then demanded that she show them that area of her home used for her childcare business.

After she 25 showed the two inspectors all the basement area of the childcare space but for the washroom, Ms. Babashaverdi allegedly obstructed the inspectors’ opportunity to see that washroom area. 30 At the time of the inspection, this washroom or bathroom was being occupied by the young adult daughter of Ms. Babashaverdi, who had gone into the downstairs childcare area initially to watch the children. That young lady was only watching the children because the inspectors were occupying Ms. Babashaverdi’s time and attention away from them. 5 Ms.

Babashaverdi had been upstairs answering the inspectors’ questions before the male Inspector’s demand or request to be shown the basement childcare area. The young adult daughter’s 10 involvement was merely to assist with the unexpected situation. She was not normally involved in the childcare activity with her mother’s business.

By having gone into the basement to watch the children, it seemed to this Court that 15 the young adult daughter was helping her mother and the children, but indirectly also helping the Inspectors carry on their conversations and business with her mother. 20 Re Trial proceedings: The trial of this matter started in July 2017. Thereafter, there was a number of trial dates. The Court was presented with evidence by Civil Crown 25 Counsel, Mr. Costain, representing the Ministry of Education, in charge of this legislation. Evidence and testimony were also presented by Ms. Babashaverdi, who represented herself.

She is not legally trained but has a background in education, 30 teaching as well as childcare. The Ministry Prosecution called a number of witnesses over the course of the trial, including Inspector Mr. Eric Chu, then the two Inspectors who made first contact with Ms. Babashaverdi on January 24th, 2017, Nadarajah Kathirganathan and Yemisi 5 Beckley. Crown later called the Enforcement

Officers, Raquel Jerabi, as well as Colm Doyle, who the Court was led to understand was something of a supervisor or team lead. 10 Ministry Counsel also presented exhibits into evidence through his witnesses, including the photos taken by Mr. Kathirganathan on the search warrant day of January 26th, 2017, this being the second day after the initial contact and inspection 15 with Ms. Babashaverdi on January 24th, 2017. Other exhibits presented included the business card that Ms. Babashaverdi had provided to Inspector Kathirganathan and Ms. Beckley on their visit to her home January 24th.

As can be seen by this 20 exhibit, it was spelled out in clear print on her business card, received by them on this first visit, that her childcare service offered both full-day , half-day care, as well as after-school care for young children. It was also indicated on 25 her business card that she was formally educated and had over 15 years of specialized Montessori school training and teaching. Ms. Babashaverdi called upon her husband to 30 testify, as well as testifying herself. By background, the Court heard that her husband is a chemical engineer.

He testified that he was not part of the childcare operation with his wife. He offered evidence regarding his knowledge of the accounting and income from his wife’s childcare business, as reflected on income tax returns for 5 wife and family, as well as the reflection of income of his own. His evidence was consistent with his wife having had the allowable number of children in her childcare programming units.

This gentleman also answered questions about what he 10 observed the Police and the Ministry personnel do inside and outside of his home when the Ministry executed their search warrant on January 26th, 2017. 15 Ms.

Babashaverdi also presented exhibits to the Court as evidence, which exhibits included but were not limited to her certificates for Red Cross and CPR training, certificate for food preparation and handling, educational information regarding her 20 past educational degree, subsequent certification as a specialized Montessori teacher, award certificates and plaques, particularly in recognition of her teaching at the Northview Montessori Private School. 25 She also presented, as exhibits, banking and financial information, income tax return for 2017 regarding her income, inclusive of her childcare business, as well as photos of the inside area of 30 her childcare.

These photos showed shelving with educational manipulatives, games, books, seating area, the inside play area. She also presented, as part of that same exhibit, photos of a large back yard of the detached home - which her family rents in what was indicated to have been the area of North York, perhaps Yonge and Sheppard = showing an 5 outside play area with children’s climbing and riding-type toys. After the testimony and evidence from the Crown and Defense, the Court gave opportunity to the Ministry 10 to call any evidence in reply and none was called.

MR. INTERPRETER : Your Worship, I didn’t hear the last part. THE COURT : No reply evidence was called. MR. INTERPRETER : Thank you. 15 THE COURT : Re Submissions and legal argument of the Ministry of Education: 20 In a nutshell, Ministry Counsel, Mr. Costain, made the argument that Ms. Babashaverdi had one or likely two more children than she should have had in her care. Most particularly, on the date of January 26th, the same date when the search warrant 25 was executed.

But, arguably, the suggestion was also that she had possibly one more than the allowable number of children on January 24th, although that was somewhat unclear to this Court. 30 Counsel submitted that the Act required her to have no more than a maximum of five children in her childcare at any given time, and Counsel submitted that the evidence suggested that she had seven children, six or seven children, for an unspecified period of time during the execution of the warrant at her home on January 26 th . 5 Ministry witnesses, particularly the male and female inspector, indicated that on the first day they came to Ms.

Babashaverdi’s home. They arrived without any advance notice of any kind to her, and 10 without having any previous contact in any fashion with her beforehand. Ms. Babashaverdi allowed them into her home, nonetheless. She began and continued to answer their questions, and there was an exchange of business cards at the beginning of 15 that conversation. Even by their own testimony, Kathirganathan and Beckley indicated that, to some extent, their presence interrupted what was otherwise the natural 20 flow of movement and children into Ms. Babashaverdi’s care.

More specifically, the Inspectors indicated that while they were questioning Ms. Babashaverdi initially on her main floor, this questioning was ongoing even as a child 25 was just being dropped off for childcare and appeared to Mr. Kathirganathan as being about the age of three to five years of age. In this Court’s view, their continued conversation 30 with Ms. Babashaverdi effectively detained Ms. Babashaverdi on the upper residential floor, removing her from the basement area where the children in her care were present.

Kathirganathan testified that during the initial conversation on the main floor, his “trigger” for

5 the inspection or his reason to make the inspection was the arrival of a child at approximately 10:32 in the morning. Because Ms. Babashaverdi had earlier in the conversation told Mr. Kathirganathan that she took care of 5 children, it seems that he 10 assumed the child was not necessarily indicated in that count. Ms. Beckley, in her testimony, did not suggest such a “trigger” event, but gave the reason or 15 explanation for their inspection demand by saying it was simply their standard practice of operation. After some time upstairs, the inspectors demanded of Ms. Babashaverdi show them her childcare space.

Ms. Babashaverdi remained agreeable and 20 cooperative. In the childcare area in the basement Kathirganathan testified that he saw five children, including the recent arrival of the boy whose name 25 was Haram. Some of the children were described as in different types of clothing, including outdoor clothing. It seemed because of the inspection and ongoing communication between Ms. Babashaverdi and the Inspectors, she was not effectively able to 30 continue with the childcare programming whilst the Inspectors occupied her time. In her testimony, Ms.

Babashaverdi indicated that snack time and outdoor play time had been interrupted and, to some degree, effectively prevented or postponed by their visit. 5 On seeing the children, Inspector Kathirganathan said absolutely nothing in his testimony about the happy appearance of the children or the positive nature of the learning environment. This came as some surprise to the Court after the Court saw what 10 appeared by photos of a well-presented, clean and organized children’s space.

The Inspector was acting as a representative for the Ministry of Education. and yet said nothing in his testimony about the learning environment and the educational 15 tools that Ms. Babashaverdi was providing to the children. Absent in his testimony was any suggestion that he or his co-inspector colleague made an effort to communicate in any way with any child present, so as potentially to alleviate the 20 tension that their presence might have caused the children. It seemed by the evidence that Kathirganathan never asked Ms. Babashaverdi about the children, never 25 asked Ms.

Babashaverdi whether he and his colleague would be interrupting, potentially interrupting outdoor time, play time or snack time by their presence that day, nor did he ask whether there was any particular other concern for the children 30 caused by their visit. Neither Mr. Kathirganathan nor his colleague asked Ms. Babashaverdi, before or during their inspection, whether she had someone willing and able to step into the childcare space so as to watch over the children, particularly with children of such a young age who arguably needed to be continuously watched. 5

According to Ms. Babashaverdi’s testimony, Ms. Beckley did at least take some positive notice of the surroundings and made some complimentary remarks to Ms. Babashaverdi about her choice of 10 children’s books and games on the shelves. From the male inspector, nothing, and yet he seemed to be the one of the two more greatly in charge of the situation and taking lead … Not a single question regarding the programming of the children on that 15 date.

Again, two days later, even though these Inspectors, representatives of the Ministry, had 20 known in advance that they were attending to execute a search warrant, and knew that the execution of a search warrant would take a substantial period of time and would more greatly potentially cause an interruption to the children’s 25 programming, they still made no inquiries about the children, their welfare and their programming. On January 26th, 2017, they also did not again ask whether there was someone to watch over the 30 children still in care. All the while Ms.

Babashaverdi was called upon to other areas of her home as Kathirganathan, Beckley, Doyle, Sewell, Jerabi, Chu, in the company of two uniformed officers, searched through every room of her two- story detached home, purportedly searching for business records about the number of children in 5 her home childcare.

January 26 th … Again, no conversation or inquiries about the children, no communication noted with the children, no inquiries in advance about children’s activities and how their presence might be interfered with. 10 Some time at about after 3:00 p.m., Kathirganathan took a photograph or photographs of the children in their childcare area. At the time of this snapshot, some of the children in care could be 15 seen already to have been readied to leave the childcare - as they were fully dressed in full winter gear and their knapsacks.

Others less, with more partial winter dress but looking as if they were dressed potentially for some state of 20 transition. Again, despite this observation, Kathirganathan and his colleague did not inquire where or when those children were meant to be going, if at all. 25 At the time of this snapshot, there were seven children in the photo. The Inspectors already knew from their previous first contact with Ms. Babashaverdi that her programming involved half-day morning, half-day afternoon, full-day, as well as 30 after-school children care. Nonetheless, that did not lend to any inquiry by them.

When the search warrant was executed, Kathirganathan testified that he and his co- inspector Beckley were directly involved in the search throughout the home, including the bedroom

5 areas on the second floor. Ms. Beckley testified that she and her co-inspector Kathirganathan also searched the childcare area while the children were still present in it. 10 Re Findings of the Ministry search on January 26 th , 2017: Did they or the four other Ministry members, enforcement officers, locate and/or present any 15 business records to this Court, giving some proof or some evidence of Ms. Babashaverdi having had the care of too many children in her planned programming activities? 20 No.

In fact, this Court heard from the testimony of Inspector Kathirganathan that children’s records or files were seized but seemingly never presented to 25 the Court.

In his testimony, Kathirganathan stated, “I seized a black folder and took some photos of post-dated cheques.” He indicated that the folder was, “holding a yellow business card,” and went on to say, “seized in the master bedroom 30 with the other documents with the business card.” He went on to say, “The other documents said, ‘parent information sheet,’ with the name of the parents, the name of the child and the phone number.” Interestingly, this Court never saw any parent 5 information sheet with parents’ names, names of children or contact numbers, in the context of the evidence presented for trial.

No such evidence was presented by the Ministry to help the Court come to a decision, whether favorable or not to the 10 Ministry position. Re Evidence (or lack thereof) presented by Ministry re Babashaverdi caring for more than allowable number: 15 The Ministry presented no documentary proof or business records of Ms. Babashaverdi having more than the allowable five children in her childcare for structured and paid childcare programming for 20 any given period.

In fact, despite the search of drawers, files, computers and papers, the Ministry provided no information whatsoever about the number of children, names and ages. Instead, the Ministry asked the Court to accept a couple of photographs 25 as proof or part proof of one of the two alleged offences by Ms. Babashaverdi. These photos of the children in their childcare area were taken by Kathirganathan sometime after 30 the Ministry group, including Beckley, Doyle, Sewell, Jerabi and Chu, and the two police officers had already then arrived at Ms. Babashaverdi’s home

and had already begun the execution of the search warrant. Re Evidential w eight and nature of the Ministry’s 5 photographic evidence: These photos were taken at a time of day around 3:30-ish when arguably children would have been toward the end of their afternoon stay and 10 otherwise readied to leave with their parents, with the possibility of an after-school children’s arrival. These photos were taken by Kathirganathan in about the same time that 2 uniformed police officers, one of them described as large or tall, 15 stood in about the doorway of Ms.

Babashaverdi’s home - which was the access door for parents and children to be going into and out of childcare. These two photos were taken at a time when 2 marked police vehicles stood outside of her home on the 20 street with their police lights flashing. And yet the Ministry submitted to this Court that such photos were a reliable snapshot of the number of children in Ms. Babashaverdi’s childcare 25 programming.

The Ministry submitted that the Court should look at the photographs as evidence of one or two more children in her care than was allowable by the Act. 30 Kathirganathan was not even able to say when he exactly took the photographs with what seems to have been his personal camera, but rather gave an approximate time. When asked about the time of the photo-taking, his response was, “ It should be around 3:18 p.m. and 3:35 p.m. I don't recall but I took the photographs .” But for Ms. 5 Babashaverdi’s help, this Court would have known very little from the photographs presented by the Ministry. It is Ms.

Babashaverdi who explained the coming and going of children throughout the day through her program, their ages, which of the 10 children was registered for either half-day morning or half-day afternoon, full day or after-school care by her. Re Ministry submission and argument re alleged 15 offence of Obstruction: Ministry Counsel further submitted that Ms. Babashaverdi committed the further other offence of having obstructed the Ministry Inspectors in the 20 completion of their inspection. The argument made by the Ministry, that Ms.

Babashaverdi was obstructionist by her actions on January 24th, 2017, contrary to the Act. The Ministry argument seemed to be that Ms. Babashaverdi should have 25 perhaps found some way of getting her young adult daughter, approximately I think 21 or 23 years to have stopped using the basement washroom in the childcare area, and should have had her daughter discontinue her stay in the basement washroom as 30 soon as these Inspectors wished to look inside this area of the basement.

Re Ministry submission about reasonable grounds for their Inspectors to have demanded and carried out an inspection: 5 Why is it that Kathirganathan wanted into the bathroom, no matter what, even if such entry by the Inspectors after Mrs. Babashaverdi’s daughter’ use of the facility might have put her daughter in an embarrassing situation? The Inspector 10 Kathirganathan wanted into the washroom because he, most especially, believed that Ms. Babashaverdi’s daughter, with Ms. Babashaverdi complicity, was hiding a child or two inside the washroom.

This related to the fact that he, not his colleague, 15 believed there was more than five children because of the arrival of Haram as his trigger event.

When Kathirganathan and others on the enforcement team saw the basement washroom on January 26th 20 execution of the search warrant, they could see that the toilet sat diagonally to the door, that there was a small laundry facility also in the same room, but no dividing wall between the toilet and the door, just a small curtain or partial curtain. 25 This Court finds it noteworthy that despite the serious nature of an allegation of obstruction and this very allegation concerning this washroom area, neither Kathirganathan, nor anyone else with the 30 enforcement team, bothered to take a photo of the washroom … even though he was only a few feet away when he took the photo of the children in their play area.

Unless, of course, he took a photo but did not submit one to the Ministry counsel and the Court. This was ‘ the scene of the crime ’ , so to speak. 5 Re Ministry submission that the inspection was reasonably grounded and carried out by the 2 Inspectors: 10 In his final submissions, Counsel argued that the Inspectors, Kathirganathan and Beckley, were carried out their inspection reasonably. They argued presumably that their request to go into the final area of the bathroom toilet area was 15 reasonable, even if it was then occupied by the young adult daughter; and, that Ms.

Babashaverdi, having not done something more to get her daughter out, was being obstructionist. By all witness accounts of January 24th, 2017, the date of first 20 contact, Kathirganathan and Beckley left Ms. Babashaverdi’s home only after her young adult daughter had become upset and yelled through the bathroom door, and when at least one of the children in Ms. Babashaverdi’s care in the same 25 childcare area was heard by everyone, including the Inspectors, to be crying. Kathirganathan denied having tried to enter the washroom while the adult daughter was still inside, 30 as was suggested by the Defence, Ms.

Babashaverdi. He said that he had not tried to open the bathroom door on the young lady without permission because he was already upstairs. But the suggestion that he was already upstairs makes no sense with the rest of his testimony. For Kathirganathan to suggest that he had gone upstairs already at that

5 point in time was internally inconsistent with his own other testimony. Only a few sentences before in his testimony he indicated, “ We asked to see the two rooms and she said that the one is a washroom and the other’s a storage unit. One of the rooms 10 was open into the furnace. And then the Defendant told us that her daughter is in the washroom at that time, and we told her that we would just wait, and we would like to see inside as a full inspection.

And she, ” referring to the Defendant, 15 “said to wait.” Re Inspector Nadarajah K athirganathan’s evidence re the opening of the bathroom door: 20 Thereafter, in his testimony, Kathirganathan began to indicate that he had gone “upstairs” rather than waiting to see inside the bathroom to complete the inspection as he had already stated that he would do. 25 This Court finds the testimony of Inspector – then inspector, as I understand now he’s a manager or supervisor as a promotional position, but then- Inspector Kathirganathan to have been problematic, questionable and not entirely credible.

By his 30 very own testimony, he was the more suspicious of the 2 Inspectors that children were being hidden in the washroom. He was the one of the two inspectors who had the “trigger event” of that suspicion. In fact, the testimony of the female Inspector as well as Ms. Babashaverdi’s testimony indicated that Ms. Babashaverdi and the female Inspector, Beckley, 5 were having a non-contentious conversation in the basement childcare area while waiting for the daughter.

By all accounts, it was Kathirganathan who was then, at least initially and physically located nearest the bathroom and the stairwell. 10 For Kathirganathan to have testified that he prematurely went upstairs into the other residential part of the home, in advance of his female co-inspector and without his female 15 colleague following, and without Ms.

Babashaverdi and, most importantly, without his finding out what or who, if anybody, was in the washroom besides the adult daughter, made no sense with the rest of his evidence. 20 In fact, it seemed to this Court that Kathirganathan attempted to over-state what he wanted the Court to believe, that he was upstairs and away from the bathroom door.

In the course of 25 only about four to six sentences, and in the span of only approximately five minutes length of his testimony, this Court counted Kathirganathan having stated the word “upstairs” approximately eight times. “We told her we would just wait, and we 30 would like to see the inside as a full inspection.” He goes on, “She said to wait. And that’s why I went upstairs (#1).

And that’s the obstruction of the inspection at this point.” “I went upstairs ,” (#2) . “The Defendant and the Inspector in the basement and I was upstairs calling the manager” (#3) . “And that’s when I was upstairs ,” (#4). 5 “And that while I was upstairs …” (#5). “That the daughter Nakisha”. He called her by name, “yelled at us” and “the daughter opened the washroom door” and “I saw only her head poking

out from the washroom door because I was upstairs ,” (#6). “And 10 she screamed on us,” and those were his words. “And so Aleheh and myself were upstairs ,” (#7). “Downstairs the daughter screaming from the basement towards me,” he says. “And I stayed upstairs ,” (#8). “And then she said to leave, “Do 15 what you need to do but you need to leave now.’” Then he goes on, “I did not see the washroom area, so we did not complete the inspection. While talking to Aleheh upstairs , one of the children is crying. She said we need to leave.” 20 Later on in his testimony, under cross examination, he was asked by Ms.

Babashaverdi questions about his opening the door to the washroom or his attempting to do so and he responded, “First of 25 all, I was upstairs (#9) and, “Ms. Babashaverdi, she was the one”, “I don’t have any idea of what transpired,” his words. By his testimony, Mr.

Kathirganathan asked this 30 Court to accept that he was upstairs, having nothing to do with the basement bathroom door, having nothing to do with the 23-year-old getting extremely upset, and yelling through the washroom door, nothing to do with the situation - even though he clearly stated at one point in his testimony, “The daughter was yelling at me.” All of 5 this was internally inconsistent with the rest of his own testimony. Kathirganathan testimony was also inconsistent with the testimony of his Co-Inspector’s, Ms. Beckley. 10 Ms.

Beckley stated, “the children” – and this after they had gone downstairs – “were all under 10 and they were about two, four, five years of age”. She indicated there was two doors off the big room and she, referring to Ms. Babashaverdi, opened them. 15 And she went on to say, “We did not get to see into the second door for inspection” … “She said the daughter was in the bathroom and we told her that we would wait. And then we said that we would wait again . And then Ms. Babashaverdi tried to open the 20 door. And someone was talking and screaming at us. And at that point she told us that we need to leave.” Ms.

Beckley went on to state, “She tried to open 25 the door,” referring to Ms. Babashaverdi, “and someone from behind seemed to hold the door closed and Ms. Babashaverdi moved towards the door. Someone’s head popped out. Someone popped her head out and was screaming. That person appeared to be 30 an adult. Maybe this was about five minutes downstairs, that she said we needed to leave. We followed her. Later I needed to give her an

inspection report and then we left at about 11:02.” Re Internally inconsistent and contradictory crown evidence re bathroom and the allegation of 5 obstructing completion of the inspection: Nowhere in Ms. Beckley’s evidence was there any suggestion of Kathirganathan leaving to go upstairs early or prematurely, rather than waiting 10 downstairs with his Co-Inspector, as he and Beckley said that they would be doing. Therefore, Ms.

Beckley’s testimony was inconsistent with the testimony of her partner, Inspector Kathirganathan. 15 Re Court’s finding re evidence of Crown witnesses: This Court finds that it is more likely than not that Kathirganathan did try to get into the bathroom while Ms. Babashaverdi’s young adult 20 daughter was still in it, which is a position completely consistent with the manner of his acting and thinking on the date of the inspection. As the daughter was not present to testify, this Court lacked sufficient information on which basis to 25 make a more precise finding of fact.

Suffice it to say, however, that this Court finds as a fact that Kathirganathan had some manner of business with the bathroom door, such to lead to the daughter’s extreme upset and annoyance, consistent with his 30 own testimony about the daughter’s screaming at him. The Court is satisfied that it was for that reason, as well as the child in care now also crying and upset, that Ms.

Babashaverdi, reasonably under the circumstances, stated to the Inspectors, “Do what 5 you have to do but you have to leave now.” The Crown submitted that the statement and her actions were obstructionist and in contravention to the Act. This Court noted that there was no 10 suggestion by any witness, no suggestion by either of the Inspectors, that Ms.

Babashaverdi said, “Get out and never come back.” Nor did they suggest that she spoke sternly saying to leave now or get out, but rather stated, “Do what you have to do but 15 you have to leave now.” And while all of this was taking place, including the upset of the daughter, there was no suggestion of children’s sounds coming from the

bathroom 20 before, during, or after the Inspectors were trying to have a look inside. There were no boots, jackets, shoes, mitts ever said to have been found as extras on the premises, nor a single document seized or submitted to this Court as evidence of a 25 greater number of children in her care than those seen with the Ministry’s own collective eyes that day, which was five children.

Again, this was the Ministry’s argument, despite 30 the fact that there was no evidence ever presented from other parents or any outside third parties collected by the Ministry suggesting the likely presence of more than those children seen in her care on January 24th, 2018. Re Ministry’s presentation of surveillance evidence 5 in support of their case: Ministry Counsel argued that there was further other evidence of Ms. Babashaverdi having “too many children in her care, in her childcare business,” 10 by manner of the testimony of those same inspectors, Kathirganathan and Beckley, and their surveillance of Ms.

Babashaverdi’s home on that same date for approximately six hours. This surveillance took place from about 12 noon, give or 15 take a half an hour difference between the two Inspectors, and ending at about 6:30. These inspectors, Kathirganathan and Beckley, testified that they covertly watched the Babashaverdi home on the 24th and then on the morning of the 26 th , 20 ostensibly to see who was coming and going from the home with children. The Inspectors described keeping ‘eyes on’ or keeping watch on the Babashaverdi home, at times 25 hundreds of metres away.

They indicated that they saw about 11 cars coming and going. They indicated that each of them drove in two separate vehicles, at times moving, driving their vehicles around the area, in order to try and get a better perspective 30 or viewpoint. They described traffic on that street and in the area to be busy and parking to be difficult to find. This Court appreciates that these Ministry employees had the job of inspectors and were not called ‘enforcement officers’ within that

Ministry. 5 This perhaps explained to the Court why they appeared not to have any real level of sophistication nor prior training with surveillance techniques. The Inspectors did not provide the Court with any specific type of information as to 10 when children were dropped off, whether children were dropped off the possible time of drop-off or pick-up for half-day morning childcare, half-day afternoon childcare, full-day childcare or after- school childcare time.

The Inspectors, by their 15 testimony, did not inform this Court, with any degree of specificity, when parents were dropping children off versus picking them up, how the pick- ups or drop-offs were occurring and by what vehicles. 20 In fact, the Inspectors never seemed to have kept nor presented to this Court any sort of activity log of what they were supposedly surveying. Nothing was presented in the form of a report or a 25 log of information - for their “surveillance” for six hours on January 24th and approximately three or four hours on January 26th before the later- afternoon execution of the search warrant.

When Ms. Beckley described the number of vehicles, she 30 said, “About, about 11,” but again, without it clearly known or indicated, what vehicles, and whether vehicles were some of the same going and coming. And yet these same two Inspectors, Kathirganathan and Beckley, even before conducting their covert 5 “surveillance” on her home, already had the business card of Ms. Babashaverdi and knew from her verbally and through the information contained on her business card that her daycare operation offered half-day morning, half-day afternoon, full- 10 day, as well as after-school.

Ministry Counsel submitted that the surveillance information was further evidence of Ms. Babashaverdi having ‘too many’ children, children in excess of the allowable number. 15 Re Defense evidence about the number of cars and children: In Ms. Babashaverdi’s testimony, she explained the 20 number of vehicles to the satisfaction of the Court, explaining that she had a couple of full- time children and then two or three of the others were half-day kids, some half-day morning, some half-day afternoon, an after-school child.

This, 25 perhaps not surprisingly, accounted for the approximate 11 or so vehicles seen going and coming from or to her home on those “surveillance” dates. In fact, the Court finds that this surveillance information put forth by the Crown’s own witnesses

30 was arguably as much or more in support of Ms. Babashaverdi’s defense position. She confirmed the number of children in her care on those dates, at those times and time periods as being within the allowable childcare number. When considering the very young ages of the 5 children, as mentioned by Ms. Beckley, ages two, three and five, half-day programming would be expected and normative, and presumptively should have been anticipated and factored into their surveillance on those dates. 10 Ministry Counsel also submitted that the Court could look to Ms.

Babashaverdi’s own testimony to support the position that she was “likely” in contravention or certainly in contravention of the 15 Act, indicating that she herself had stated a belief that she could have six children in her care. That said, her testimony indicated that although believing she could have had six children in her care at one time in her programming or for a 20 programming unit, she indicated also that, at the time, despite that belief, she had five children in any or each slot of the day’s programming. Ms.

Babashaverdi indicated or testified that she 25 was under what turned out to be a mistaken belief of an allowable six children for home childcare because of a conversation that she had had with a colleague friend who worked for a large umbrella organization and had received information both 30 verbally and in writing from her. One can perhaps more easily understand the confusion when one looks to the Act and its regulations. This Act had only come into effect on August 31st, 2015 , so really quite young legislation. In fact, the handout, exhibit 3, that was given to Ms.

Babashaverdi on first contact January 24th, was titled “The New 5 Child Care and Early Years Act ,” with the descriptor “new” about the Act itself, Child Care and Early Years Act. Despite her effort to inform herself through a 10 professional colleague, as well as through informational written resources, one can also understand that there could potentially be some confusion when there are various legislated and regulated manners of home childcare. There are 15 home childcare providers which are contracted by licensed agencies. There are home childcare providers who are more independently licensed.

There are home care providers that are unlicensed. There are home care providers that come under an

20 umbrella outside larger organization, and for which the allowable number is six, as opposed to five with an unlicensed home care situation. Re Crown argument of overlapping care: 25 The Ministry Counsel further submitted that Ms. Babashaverdi was in breach or contravention of the Act when the parents dropped their children off to her childcare earlier than was programmed and 30 expected by her, or picked them up later than the programming time; and that because of the overlap potentially between morning children and afternoon children, and afternoon children with after-school children, Ms.

Babashaverdi would then have had more than the allowable number of children in her care during that overlap period. 5 Ms. Babashaverdi explained that when dealing with situations with children and their parents, sometimes those parents single, that the unexpected would sometimes happen.

She gave examples of a 10 single mother who arrived late because of a university exam and therefore picked up her child late, another example where the parents arrived later than the programming in the afternoon because of snowy weather or difficult road conditions, 15 particularly so during the winter season where the trip from their work to access their child was double the time anticipated. Ms. Babashaverdi explained in these situations that she would have already dressed and readied the child for pick-up, 20 and that the child might then wait upstairs with one of her family members if that parent was delayed.

Ms. Babashaverdi did this to be kind to the parent and the child and did not charge extra money, even if the wait for the parent was a little 25 bit more prolonged due to the parent’s unexpected delay or a little sooner in advance of the programming start. Those children in that overlap situation of care 30 arguably became a personal care situation, rather than a business childcare situation, as this was for a time entirely without compensation to her but only given by her to ensure the wellbeing and safety of that child.

In fact, the Act and its regulations provides for situations of urgent or emergency need for childcare, where the childcare 5 supervisor might then have more than the allowable or planned number of children.

Re Strict liability offence and Babashaverdi’s exercise of due diligence: 10 This Court is satisfied that Ms. Babashaverdi was doing her best and exercised due care and diligence to be within her programming mandate. She was doing her best to have children dropped off and picked up 15 at appropriate times. This Court is also satisfied that after the bit of discussion that took place between her and the Inspectors on January 24th first contact, to her credit, she followed-up with a search for information and reviewed the materials 20 passed to her on that date.

Even before the execution of the search warrant on her home less than two days later, Ms. Babashaverdi testified that she had already more firmly advised the parents of the children to stay as close as 25 possible to the start and finish times of their programming schedules. This Court recognizes that the business of children and the care of children is a very human process … 30 dealing with real children, with single or double parents, with real concerns in a busy city with real weather, traffic and work challenges. What was the alternative? To cast the child out of her home whose parents arrived late?

Or refused to have taken them when the parents indicated an urgent need at the time to have dropped them off a little 5 earlier than was expected? No, Ms. Babashaverdi instead kept them safe and sheltered in her home, now in her care, a temporary personal-care situation by herself or a different other family member without any additional programming childcare 10 fee charged to the parent. The Court was told that Inspector Kathirganathan came to the Ministry of Education as an inspector from the Ministry of Finance. Moving children is 15 not like moving numbers on a ledger.

Unlike dealing with numbers and accounting, there are no hard and fast rules. The process of early education, childhood education and care, is a learning process for everyone, including the 20 childcare providers. Again, this Court heard that Ms. Babashaverdi made immediate efforts then and is more strongly making efforts now.

Re the Principles of the Act: 25 If there was a situation of non-compliance, and this Court is not satisfied that such non- compliance has been proved beyond a reasonable doubt , the Court would nonetheless find that Ms. 30 Babashaverdi had made best efforts to be ‘in compliance’ and exercised due diligence and care. At present, she has an even greater understanding

of the provisions of this relatively new Act and its regulations. The Child Care Act and Early Years Act is a mandate to ensure the safe and healthy environment for children. Ms. Babashaverdi 5 seemed to have been motivated to act in the best interest of children, each and every one of them, even to the point of self-sacrifice. The legislative intent of the Child Care and Early Years Act seemed to this Court to have been better 10 appreciated and followed by Ms. Babashaverdi than arguably by the Ministry’s own representatives and their enforcement of it.

Re Complaint against the Ministry Inspector: 15 The inspectors attended January 24th, 2017. On that date, the young adult daughter was upset and angered and a child left crying. Nobody disputed that in their evidence. The Inspectors left Ms. 20 Babashaverdi’s home soon thereafter. Nobody disputed that in their evidence. Inspector Kathirganathan had indicated in his testimony that he had exchanged business cards with Ms. Babashaverdi. Ms. Babashaverdi testified that 25 later that night or the next day she called the number on that business card, the card of Mr.

Kathirganathan, to make a verbal complaint and voice concern about the situation that had happened at the bathroom with her daughter. 30 She testified that she called the very same phone number as was indicated on this male inspector’s card and spoke to a male person on the phone about what had happened. She indicated that the recipient of the call, whose name unfortunately she did not obtain, told her that they would follow up with her 5 complaint. No one followed up with her about that conversation or complaint. The next time that contact was made with Ms.

Babashaverdi was the knock on her door less than 48 hours later by the Ministry to execute a search warrant. In the 10 Court, when asked about her complaint, not a single Ministry witness testified as to knowing anything about that complaint or what happened to it, if it was made. 15 It was interesting for the Court to note that Mr. Kathirganathan knew the daughter’s first name. Ms. Beckley didn’t know the daughter’s first name, but he did. He knew her name was Natasha (sic). 20 MR. INTERPRETER : I apologize, Your Worship. The last sentence. THE COURT : But he knew the adult daughter’s first name.

He knew her by name, and I’m just looking for the name, if it was Natasha.

Just give me a 25 second. Nakisha … He knew the daughter by her first name but was not able to give any information of a complaint concerning her. That same Inspector, now supervisor, Mr. 30 Kathirganathan, was seen by this Court to be taking notes in the body of the court during the testimony of Ms. Babashaverdi. In the event that he might be recalled by the Ministry for reply evidence, the Court then excused him. Re Legal processes of the Ministry in the context 5 of the Act’s mandate: A search warrant was executed on Ms. Babashaverdi’s home.

The Ministry got the assistance of two Toronto Police Service officers, 2 uniformed 10 officers, who came with their marked police scout cars for the execution of the warrant. Again, this Court was left to wonder how it was thought that this approach by the Ministry was in the best interests of the children who were in the childcare 15 situation at her home at that time, and who had been observed - not even a full two days earlier - to be safe, sound, well-fed and properly sheltered.

The Court has reviewed Whether the legal processes 20 used by the Ministry were in accord with the written provisions and intent of the Act and its regulations. The Court has also reviewed whether the legal processes used by the Ministry on the date of January 26th accorded with the judicial 25 authorization given to them for that date.

Re Legal process used by the Ministry representatives for their Inspection January 24 th, 2017: 30 Looking first at the business of inspections: The Act specifies that inspections “must be carried out reasonably.” If a situation requires it, an inspection can be started and carried through on another date, particularly when, arguably as here, 5 there was good reason to have delayed the completion.

This Court finds that there was ample enough reason to have adjourned the completion of the inspection, 10 rather than having interfered with the private personal use of a bathroom potentially by a young adult person. This young adult was only in that place and in that position arguably to have earlier assisted the Ministry Inspectors, who had been in 15 conversation with Ms. Babashaverdi and had taken her away from her care of the children. Next, the Court looks at the rules attached to findings of an inspection.

By the Act, a childcare 20 provider is to be given a written, certified copy of the Inspector’s report, and some time to review, consider and respond to that initial report. In the present case, the Court looked to exhibit 8, 25 the ‘Inspection Report/Preliminary Notice’ for an indication of the alleged non-compliance.

The alleged non-compliance was marked with an X on this report, “the above-noted childcare provider was not in compliance with the following sections of the 30 Act and/or regulations”, Below, paragraph 12(1), “Duty to disclose if not licensed, including the sentence: ‘This childcare program is not licensed by the government of Ontario.’” Also, beside the line under Act 12(2), “A duty to retain record of disclosure to parents.” And beside Act 76(

a) Obstruction. “Hinder, obstruct or interfere with 5 an inspector.” The Court has already reviewed the evidence with regard to why the two Inspectors alleged infractions by her on that date of January 24 th , but 10 Ms. Babashaverdi was never given a certified copy of this Inspector’s Report, and by that very form, Ms. Babashaverdi was to have been given time to provide her response to what was described as “A Preliminary Notice”. The form itself says, 15 “If the inspector has advised you that you are in contravention, a report will be forwarded to the manager of the enforcement unit for review.

Please note he or she may issue a compliance order 20 requiring you to come into compliance with the Child Care and Early Years Act and its regulations. If you would like to submit any additional information for the manager’s consideration prior to a final determination, please do so within two 25 business days . You may submit information for consideration to the Ministry of Education Child Care Quality Assurance and Licensing.” The address is given, a phone number, fax and email.

30 She had two business days, but, in less than two business days, on the second day, the Ministry was at her door with a search warrant. Ms. Babashaverdi, stated by this form, had two clear business days and that process was not followed. To her credit, Ms. Babashaverdi read and reacted to 5 everything she received from the Inspectors on January 24 th . By her testimony, this included her reaction of phone calling every one of her parents that very same night to advise them of her non- license status and indicating that to them the next 10 day in written form.

In fact, that very document that she gave to the parents was one of the documents seized by the Ministry officials on the search January 26 th and submitted as evidence by the Ministry as one of the exhibits. 15 In fact, in the present case, it was Inspector Beckley who, in her own words, indicated that she was “unprepared” on January 24th, that she did not have the proper form with its copies, so she 20 instead had to quickly fill out the one form that she had available to her. She took a picture of it with her camera and gave the Initial Inspection Report to Ms. Babashaverdi. Ms.

Beckley testified that she gave the Inspection Preliminary Report as 25 well as two other documents, one of which was a legal-style information sheet about the Act’s provisions, 8pages in length, as well as the one- page chart diagram to Ms. Beckley, all before she and her co-inspector left in haste from Ms. 30 Babashaverdi’s home. Re Response time not afforded to Ms. Babashaverdi by the Ministry: Within that 48 hours, those clear two days that Ms. Babashaverdi was to have been afforded for 5 response, the Ministry did not follow up with any calls to Ms.

Babashaverdi, nor afford her a chance to speak or provide documentation or information in response to their report. Yet the Act calls for a collaborative approach between the Ministry and its 10 clients and its community, persons such as Ms. Babashaverdi. In the Regulations and in the Act following at s. 49(1) is a statement about the Ministry’s mandate,

15 that it is a matter of provincial interest that there be a system of child care and early-year programming and services, focused on Ontario’s children and families; a system that promotes the health, safety and wellbeing of children; that 20 provides high-quality experiences; that includes knowledgeable, self-reflective and qualified professionals and staff, including members of the College of Early Childhood Education; a system responsive to community’s needs by providing a 25 range of services, including for families that require financial assistance; a system with a mandate that is a respectful of equity, inclusiveness and diversity in communities; a system that provides for a strong and sustainable 30 partnership amongst the province’s service systems, managers and others, is coordinated with other community and human services, is flexible and is able to adapt to local circumstances, supports the social and economic wellbeing of Ontarians, ensures appropriate accountability for public funding, supports a transition from childcare and early year 5 programs to services and services to school.

The Act speaks about education, consultation and collaboration, and contains other sections about giving opportunity for compliance . One can better 10 appreciate the need for clarification and education when one looks to the provisions of the Act and tries to understand the different designations - even within the home child care structure. 15 Re Lack of contact, clarification and

interpretation: After the Inspectors left her home on January 24th, those two inspectors did not call or contact Ms. 20 Babashaverdi to see if she was able to read and understand the informational pages – including the 8-page legal style document regarding the provisions of the Act - quickly provided to her before their leaving on that date. 25 Ms. Babashaverdi has been assisted throughout the entire trial by the Farsi interpreter. The Farsi interpreter was not on standby throughout the proceedings, but rather interpreted everything to 30 Ms. Babashaverdi.

This was not because she does not speak some English, nor even because she does not have what might be referred to as a conversational level of English use and understanding. This case is a matter concerning the Ministry of Education. As educational representatives. They, better than anyone, ought to 5 have appreciated that an academic or legal understanding of the English language particularly in the context of understanding law and legal obligation and regulations, is something more than a conversational understanding. Even on first 10 meeting with Ms.

Babashaverdi, the Inspectors did not ask her whether she would require any

interpretation, nor did they follow up between the dates of January 24th and 26th.

15 The Court will next look at whether proper legal process was taken in accordance with the Act and followed particularly in respect to the execution of the search warran t. 20 I’m just going to stop here for a second. I’ve got perhaps about - a number of pages to go. Does anybody require a health break or break? CLERK OF THE COURT : I need a 15-minute break, Your Worship. 25 THE COURT : Sure, why don’t we take that. CLERK OF THE COURT : Thank you. THE COURT : All right.

So, we’re just going to take a recess for a few minutes, and we will come back at five after or 10 after? 30 CLERK OF THE COURT : Five after’s fine. THE COURT : Okay, five after, folks. R E C E S S P O N R E S U M I N G: 5 THE COURT : Just before moving into the area of the search warrant and legal process attached thereto, I just want to move back to matters more so concerning the first contact date, January 24th, 2017 ... and the paper handouts given somewhat in 10 haste to Ms. Babashaverdi.

Re Legal process followed by the Ministry with the Inspection January 24 th , 2017: 15 The Court reviewed the substance of those handouts and also compared their content, particularly the 8-page document with the Act itself and its regulations. This Court found that the handouts lacked information, otherwise contained in the Act, 20 including but not limited to matters such as the notice requirement for inspections, particularly inspections of residential premises, the reasonable manner within which an inspection is to be carried out, and situations where a person can move to 25 decline or adjourn an inspection.

The handout given by the Inspectors to Ms. Babashaverdi was not so detailed as the Act in specifying that the person is entitled to reasonableness in relation to the time and manner that an inspection is 30 conducted. Also, pursuant to s. 30(1), an inspector may, at

any reasonable time and without a warrant, enter and inspect (

a) a childcare center, (

b) a premises where in-home childcare is provided; (

c) premises where home childcare is provided; (

d) a premise 5 where home childcare agency is located and a premise where the inspector suspects on reasonable grounds that a person is not complying with this Act or its regulations; or (

f) a premise where the inspector on reasonable grounds that childcare is 10 provided … But ss. 30 regarding the power to enter and inspect a premise described in s. 1(f), which applies to the residential situation without a warrant, shall not be exercised to enter and inspect the premises that is used as a dwelling 15 except with the consent of the occupier of the premises.” Re Notice of inspection in residential home child care situations: 20 So, there were those pieces missing in the Handout regarding the potential requirement of inspectors obtaining consent in a home child care situation.

There is some distinction in the Act where notice 25 needs to be given more especially where it is a home child care but under an umbrella organization, with attachment of some form of licensing or not. But when the Inspectors went to the home of Ms. Babashaverdi on January 24 th , without any specific 30 knowledge of her home care operation, they did not provide to her any notice, advance written notice or otherwise. This was at that point they had somewhat limited information. Essentially, their information was somebody looking up on a computer and not seeing her name as listed as a licensed childcare provider.

But without more than that, 5 arguably notice would have been a prudent and reasonable idea. Re Compliance provisions of the Act: 10 Also, before leaving issues attached to January 24th, 2017, the Preliminary Notice/Inspection Report indicated two clear days’ notice to have been given to Ms. Babashaverdi for response. … There was also reference in the Act to the 15 legislative ability for the Ministry to make a compliance order and give the opportunity to comply before more drastic enforcement measure is taken.

Section 36(1) about order/compliance orders 20 indicates that, “If a director or inspector believes on reasonable grounds that a person is not in compliance with a provision

of this Act or its regulations that the director or inspector may make any compliance order (

a) ordering the person to 25 comply with the provisions; (

b) ordering the persons to do so, refrain from doing anything specified in the order; (

c) specifying dates by which the person is required to do so or refrain from doing the thing specified, and shall include 30 information prescribed by the regulations.” Again, this gives emphasis to the point that she was not given an opportunity to respond. There was not a formal certified copy given to her.

There was no follow-up by way of a compliance order request from the Ministry before they knocked on her door on January 26th. 5 Re Legal process required and/or exercised by the Ministry in the execution of the Search Warrant: Okay, now moving into the area of legal process. 10 The Court heard testimony from the Ministry’s witnesses. As the Court heard from a number of witnesses. As can be seen by the documentation of the search warrant and the evidence heard, there was a large number of persons from the Ministry who 15 attended Ms.

Babashaverdi’s home on January 26th. 6Ministry officials with 2uniformed police officers all at once attended at her home to execute the warrant. 20 Re Ministry’s e mployees’ understanding of grounds for the Search Warrant: Enforcement Officer Raquel Jerabi was one of this list of Ministry witnesses, heard from by the 25 Court. This female enforcement officer that was part of the whole group executing the search.

When questioned by Ministry Counsel about the execution of the search warrant and her understanding of the reasons for the search, it then became apparent to 30 this Court that she perhaps had very little understanding about the Act and the Ministry of Education’s position regarding unlicensed home child care.

This impression was left with the Court when, in answer to one of Crown Counsel’s questions about the reason for execution, her response was, “We would not have been there if it 5 wasn't unlicensed.” It seemed by her response that this enforcement officer with the Ministry was otherwise oblivious to the more specific reasons for which the Ministry 10 had provided to support their search warrant application and its execution. This was despite the fact of the enormity of a search warrant executed on someone’s residence; the search of Ms. Babashaverdi’s entire residence, including and not

15 limited to the basement which was used more specifically for her home childcare programming. From this female enforcement officer’s response, she thought it was already unlawful, simply for Ms. Babashaverdi to be operating a childcare program 20 without a license, seemingly without the need in her opinion for Ms. Babashaverdi to have done something more. Re ‘Unlicensed’ is not ‘Unlawful’ under the CCEYA: 25 This Court knows as a fact that there is absolutely nothing wrong or ‘unlawful’ about someone operating an unlicensed home child care program, in accordance with the regulations and the Act.

In 30 fact, the Act speaks to rules pertaining to both licensed centers, as well as unlicensed home childcare and licensed home child care and home childcare that falls under an umbrella outside licensed organization. Re Terminology of ‘unlicensed ’ versus non-licensed 5 in the Act: The Court thought perhaps that the Enforcement Officer view of “unlicensed” as perhaps it meant something less than a licensed facility; and 10 wondered if it was because the Act refers to the home childcare as “unlicensed”.

The prefix “un” means lacking or less, for example unfit, lacking in fitness; unwell, lacking in health; uncomfortable, lacking in comfort. So perhaps the 15 label of ‘unlicensed’ is indicative of something less desirable, less preferred and, in this case, less lawful in the view of this particular enforcement officer. Language is a powerful thing. 20 And yet, the majority of our population of parents do, in fact, turn to unlicensed as well as licensed home childcare and childcare centers.

They turn to unlicensed childcare situations as potentially offering something more, not less, for their 25 children …whether that something ‘more’, in the parents’ view, due to the professional nature of a particular childcare- provider, a more intimate environment, the involvement of the neighborhood’s other children, cost or convenience of location 30 relative to the parents’ home. Perhaps the Act is, by its choice of label, not effectively communicating this message even to its own Ministry officials, administrators and enforcers.

The Act is meant to regulate unlicensed or ‘non-licensed’ home childcare, as this Court

5 would prefer to label, and not to denigrate unlicensed childcare meant to be in the best interest and for the safety of children. Re Evidence about Ms. Babashaverdi and her home 10 childcare program: From what this Court saw and heard from Ms. Babashaverdi, the photographs and the other information provided, Ms. Babashaverdi legitimately 15 took pride in her work, loves children, and enjoys teaching them. She spoke of the importance to her of seeing those first moments in a very young child’s life.

She has a university degree in education and acquired certification in Montessori 20 teaching, a very specialized teaching method. In her testimony she indicated that with the advantage of the Montessori methodology of teaching, many of the parents of children in her care have been thrilled to find that their child began reading and 25 writing before other children of the same age. Re Subjective and objective impact of the execution of the Search Warrant: 30 But on January 26th, 2017, Ms.

Babashaverdi testified that she and her family were made to feel and look like criminals, particularly to the parents of children in her childcare, as well as to persons in her neighborhood. She testified that that feeling came with the police presence of 2 officers, uniformed officers, at her doorway, 5 standing in and outside of her front door with their marked cars and police lights flashing outside the front of her home, partially obstructing the doorway at times, as well as the roadway, for use by her childcare parents as well 10 as neighbors. Ms.

Babashaverdi as well as the Ministry’s own witnesses, testified to the fact that it was hours before the police officers and 6 Ministry personnel 15 finally left her home sometime about 6:30 p.m. on January 26th, having arrived there somewhere about 3:30 or earlier in the afternoon. Ms. Babashaverdi testified that she was left to try and explain to parents the reason for them being there. 20 Fortunately, the parents knowing her through the care of their children, those parents gave Ms.

Babashaverdi the benefit of the doubt regarding any thought of a criminal-type of concern, and later sent her notes of comfort and bouquets of flowers. 25 Re Whether the execution of the search warrant by the Ministry was executed in a reasonable and authorized manner:

30 The Ministry has argued and submitted that the search warrant was reasonable and reasonably executed on the date of January 26th, 2017. The Ministry has asked the Court to potentially rely on items seized by one or more of the six officials with the Ministry and the police as evidence to support their case and argument of proof beyond a 5 reasonable doubt in regard to the two alleged infractions.

The Court looked at whether the search warrant was executed in what this Court considered ‘a 10 reasonable way ’, and upon the conditions and terms as judicially authorized on January 26th, 2017, by the Issuing Justice. The Issuing Justice specified the terms and 15 conditions upon which the warrant was authorized and by which the warrant was to have been executed by the Ministry. In other words, the warrant was granted by the Issuing Justice but only based on certain conditions and terms as specified by that 20 Justice at the time of its issuance and order.

Re Conversations with parents and/with children whilst in the execution of the Search Warrant: 25 One of the Issuing Justice’s conditions, as set out in the Appendix to the search warrant, stated, “ They not have conversation with parent or children in the course of conduct of the search .” 30 This Court has heard testimony to indicate that this term and condition of the search warrant was, in fact, breached on January 26th.

In the view of this Court, it was a breach of that Issuing Justice’s term (attached as part of that warrant) when the different Ministry employees and the Toronto Police Officers, asked by the Ministry 5 officials to assist, stopped and questioned parents. These parents were presumably sometimes standing alongside their pre-school-age child, stopped while those parents were trying to drop off or pick up their children at the home. 10 In the testimony of Kathirganathan, that male inspector related to the first contact 2 days earlier on January 24th, he indicated that he alone had interviewed 8 parents.

And yet he indicated

15 that, at most, there was 7 children, as depicted in the photo taken by him. The Court did not know and was not informed who he spoke to, which parents, when he spoke to parents, whether he spoke to parents repeatedly, individually, with children, 20 without children, whether he spoke to parents individually when in a couple or spoke to both parents at one time. Re Lack of record keeping and/or its presentation 25 to the Court: Again, there was absolutely no log kept by that Inspector in regard to his search and execution of the search warrant, nor about his having stopped 30 and questioned parents.

As well, the Court heard evidence that he wasn't alone. The other Ministry official-members testified that they too at times were having conversations with different parents as those parents were either coming into or trying to leave the premises with their child who had been in care that day. 5 Re Objectivity and level of detachment necessary of those persons in execution of Search Warrant: In respect to the process and execution of the 10 search warrant, the Court further considered evidence from witness Inspector Beckley and witness Inspector Kathirganathan. indicating Mr.

Kathirganathan continued to play a significant part, even on January 26 th , with the search 15 warrant’s execution. This Inspector was less than two full days later part of a team executing the warrant at a home, even though there had been potentially some contentious behavior alleged between himself and Ms. Babashaverdi’s daughter, 20 whether or not anybody else knew at the time.

He would have recognized, understood or perhaps anticipated the potentiality of some form of complaint against him. 25 In the Court’s view and in these particular circumstances, the search warrant execution ought to have been taken out of this Inspector’s hands and left for its execution by other Ministry employees instead.

Such an arms-length and 30 objective approach is preferred, if not mandated, so as to preserve the integrity, reliability and neutrality of the evidence so as not to potentially impact the choice ultimately made by this individual and/or other, not to have submitted into Court evidence exhibits/items perhaps considered ‘not relevant’. Those items might have been

5 submitted by a different other Ministry official, and those items might arguably have advanced the position of the Defense rather than the Ministry. The Court heard Mr. Kathirganathan clearly testify 10 about his observation of parent records and lists of child’s names, phone numbers and contact information.

But that information and those documents were not submitted to the Court as part of the Crown’s case. 15 Re Training and methodology required for execution of a Search Warrant: Further, this Court understands, more generally and 20 typically, that enforcement officers in any ministry are those personnel who are supposed to be knowledgeable and specially trained in the methodology of search and seizure situations. Unfortunately, in the case at hand, that general 25 rule did not seem to apply, even with enforcement officers present that day.

In the present case, all of the Ministry personnel, including their enforcement officers, seemed to have failed to log and present any type of specific and detailed 30 information to the Court about which official seized which item from which location in the Babashaverdi home; and, at what time and in what way that item was tagged and preserved in its state or condition at the time of seizure, until such time that that item was required potentially for trial purposes. 5 In other words, there was no methodology or process used by the enforcement officers and inspectors executing the search that day, so as to preserve the continuity, possession and integrity of the 10 item in its state at the time of seizure.

Instead, the Court learned through the information and testimony of the various witnesses, particularly from the Ministry’s own witnesses, 15 that 6 different Ministry officials were moving about, roaming and rummaging through various places within Ms. Babashaverdi’s home.

There was no suggestion of a pre-plan for organizing, recording or logging of activity, precluding any indication 20 about their time in and time out of the Babashaverdi home, but for the Court being left to understand that it was somewhere about three hours, give or take some time around 3:30 or earlier, ‘til about 6:30, a little bit earlier or a little bit 25 later.

There was, it seems, a hodgepodge of information of items seized, no clear indication by whose hands, and through whom possession of those items passed, before those items then landed into the Court as exhibits. 30 Re Manner of collection and preservation of items seized:

The Court heard evidence and testimony from various witnesses that different persons were speaking to the parents, and this was going on with a number of 5 different parents, and it was not clear whether those conversation were taking place at the same time or different times. This included the testimony of Colm Doyle about such conversations by him, as well as Ms. Beckley, and Kathirganathan. It 10 was also suggested that some of the officers also had discussions with parents, either on their arrival or their leaving the residential scene.

Re Persons authorized by the Act to execute a 15 Search Warrant: The Court has looked next at the other conditions and terms of the search warrant. The search warrant gave authorization to Ministry of 20 Education’s named officials. The search warrant granted by the Issuing Justice on January 26th, 2017, did not authorize an assistance order. This Order of the Issuing Justice was without

[…]