Windsor-Essex Children’s Aid Society v. A.B., 2012 ONCJ 266

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Windsor File No. 70/10 Citation: Windsor-Essex Children’s Aid Society v. A.B., 2012 ONCJ 266 ONTARIO COURT OF JUSTICE BETWEEN: WINDSOR-ESSEX CHILDREN’S AID SOCIETY, Applicant, — AND — A.B. and D.L., Respondents. Before Justice Douglas W. Phillips Heard on: April 18, 2012 Released on: May 2, 2012 Mark L.

Hurley ......................................................................... counsel for the applicant society Ruza Ljumovic ............................................................. counsel for the respondent mother, A.B. Jotan K. Foster .................................................. counsel for the respondent grandmother, D.L. JUSTICE Douglas W. Phillips:

RULING ON VOIR DIRE [ 1 ] During the course of the status review trial, counsel Jotan K.

Foster on behalf of the maternal grandmother, the respondent D.L., sought leave of the court to have a witness, namely Paul Adams, qualified to give opinion evidence. [1] [ 2 ] The status review proceeding initiated by the society sought an order of Crown wardship without access to facilitate an adoption placement in respect of a child approximately four years of age. [ 3 ] The child’s maternal grandmother, D.L., through counsel sought leave of the court to permit Paul Adams to give opinion evidence in three areas. [2] [ 4 ] Specifically, and of utmost consideration, this individual was offered as an expert witness to give opinion evidence regarding whether a twice convicted child sexual abuse offender, namely K.F., posed a risk of re-offending. [3] [ 5 ] At the same time (at the outset of the voir dire ), Ms.

Foster, introduced into evidence the curriculum vitae of Paul Adams. [4] [ 6 ] At the outset of the voir dire , counsel for the society, namely Mark L. Hurley, indicated that the society was opposed only to the first of three areas for which leave was sought, namely the area where Paul S.

Adams (if granted leave) would provide opinion evidence as to the risk status of sexual offenders in relation to potential sexual re-offending. [5] 1: THE APPLICABLE TEST [ 7 ] The leading authority in determining matters of whether leave should be granted to permit opinion evidence is founded within the Supreme Court of Canada decision, The Queen v. Mohan . [6] The court must consider four critical questions before permitting leave to offer opinion evidence as admissible, including: 1. Is the evidence relevant? 2. Is the opinion essential in assessing the trier of fact? 3.

Is the evidence prohibitive by any exclusionary rule? 4. Is the expert properly qualified? [ 8 ] Expert evidence may be offered by a person who (on evidence) has been demonstrated that the individual has acquired special or peculiar knowledge through study or experience in respect of the matters about which the individual proposes to testify. [7] 2: DETERMINATION ON RULING WITH RESPECT TO THE MATTER OF LEAVE BEING GRANTED TO PAUL S.

ADAMS TO OFFER OPINION EVIDENCE [ 9 ] As determined orally April 18, 2012, the leave sought by counsel on behalf of the respondent maternal grandmother was denied. 3: ANALYSIS AND DISCUSSION [ 10 ] In the curriculum vitae , the witness recites academic credentials.

Some have to do with university training. [8] [ 11 ] After he had a Masters Degree in English conferred upon him in 1977, by his own admission, the witness pursued no further education at the university level. [9] The curriculum vitae revealed no publications, or papers that had been the subject of any peer review. [ 12 ] During examination-in-chief, the attention of the witness was drawn again to his own curriculum vitae under the specific heading designed by the witness, namely “Education.” This portion of the curriculum vitae recited particulars in respect of “Psychiatric In-service” and membership in the “Ontario Association of Jungian Analysts.” [10] [ 13 ] When prompted, and his attention drawn to these portions of his curriculum vitae having to do with education, he described the Psychiatric In-service as “. . . a training and work experience . . .” and that it was more a “practical component to [his] education.” [11] [ 14 ] Questions having to do with the reference within the “Education” segment of the curriculum vitae having to do with the Ontario Association of Jungian Analysts provided vague, generalized and unhelpful responses. [12] Frankly, at the end, the court was left without any sense of the role played by this membership in qualifying the witness. [ 15 ] However, the witness did assert that, in consequence of the participation in that training, Paul S.

Adams acquired the title

of “Psychoanalyst.” This is not a position recognized by Ontario statute law. [13] [ 16 ] In the portion of the curriculum vitae offered, entitled “Certification/Associations”, there was listed the Ontario Society of Psychotherapists (OSP). [14] Again, at the end of the examination, the court was left without any sense of the role played by this membership in qualifying the witness. [ 17 ] Ontario statute does not currently accord recognition as it applies to psychotherapists. [15] [ 18 ] The witness’ curriculum vitae , identified him as a psychoanalyst (as well as a member of the Ontario Association of Psychotherapists).

At the end of the evidence, the court was left with the impression that any person (with or without credentials, education or training) can “claim” to be a psychoanalyst or psychotherapist. [ 19 ] A portion of the witness’ curriculum vitae addressed “Specialized Education and Training”. [16] A portion of this

section listed a number of identified individuals but it was difficult, if not impossible, to determine what training or the extent of training was received by the witness.

The evidence in this respect was, to be blunt, sketchy and therefore of more importance, unhelpful. [17] [ 20 ] Within the same portion of the curriculum vitae , there was further mention dealing with specialized education and training. [18] [ 21 ] On the whole, the examination (during the course of the voir dire ) was neither instructive nor helpful. [19] [ 22 ] The witness provided no evidence of actual treatment or assessment of any individual during this “training”.

The inability of the witness to provide clear, succinct and direct answers in this respect was troubling. [ 23 ] The witness also avoided a complete answer when questioned about actually utilizing “forms of risk assessment in sexual abuse or sexual offenders”. [20] [ 24 ] Within the “Specialized Education and Training portion of the curriculum vitae at page 2, he identified “group dynamics in small and large groups...” [21] [ 25 ] The witness explained that he received certification with a Dr. I.

Yalom for, “experiential and technical understanding of group dynamics.” However, there was no explanation or detail provided as to the length of time with which the witness worked with Dr. Yalom and what any “certification” entitled the individual to do, if anything. There was no information provided as to the accreditation of Dr. Yalom (whether he was a psychiatrist, psychologist or some other type of doctor). [22] [ 26 ] The academic credentials of the witness, namely the Bachelor of Arts Degree and Masters Degree in English, are removed from the study of psychiatry or psychology.

Participation in the Richmond Fellowship, the Ontario Association of Jungian Analysts and the Ontario Society of Psychotherapists are not (based on the evidence adduced) accredited educational institutions recognized by any of the professional colleges governed by the Regulated Health Professions Act . [23] [ 27 ] Individuals engaged in assessment are, by the nature of the task, obliged to ensure continuing education in the proficiencies of skills necessary to perform such duties.

There was insufficient information provided in the curriculum vitae of the witness that demonstrated the achievement of this objective.

During the course of the examination within the voir dire , the witness was asked about continuing education which was in a fashion a means of maintaining membership in certain programs. [24] [ 28 ] In the circumstances involving a Crown wardship trial, where serious issues of risk are to be determined, reliance on an individual such as that presented by counsel for the respondent maternal grandmother would be irresponsible. [ 29 ] When cross-examined by counsel for the society, the witness would not concede that a psychiatrist or psychologist would be the individual best to make actual clinical assessments of a patient. [25] [ 30 ] During the course of cross-examination by counsel for the society, the witness was asked questions about tests applied by him in assessing risk. [26] [ 31 ] The witness identified three singular tests applied and administered.

There was no evidence about the origins or such tests or more importantly their proven reliability. [ 32 ] Mr. Adams acknowledged that, in the administration of the three tests, it involved essentially the assessor asking questions and assigning a numerical value based on answers provided by the subject. As pointed out by society counsel, results could be manipulated were the subject untruthful. [ 33 ] The trust applied by Mr.

Adams (upon the subject being assessed or treated) requires truthful admissions and the ability to discern “truth” from fiction. [27] There is nothing to suggest (from the evidence during the course of the voir dire ) that this witness has any greater ability to ascertain truth from falsehood (by virtue of his credentials and background) than anyone else. [ 34 ] It bears noting that (in consequence of the evidence later adduced during the course of the trial with K.F. [28] ), Mr. Adams was the individual who was providing treatment to the person the subject of the opinion evidence.

It is troubling that an individual providing treatment (in this instance to Mr. K.F.), would be providing an assessment on critical issues for determination before the court. Expert assessors should be independent and impartial if not wholly detached from the subject about whom assessment and opinion is offered. An individual providing treatment and assessment places himself in a precarious position. In a worst case scenario, such an assessor who also treats the subject is arguably in a position of conflict where a result is designed to promote the efficacy of a counselling regime.

4: CONCLUSION [ 35 ] Mr. Adams has spent many years serving this community in counselling persons. Having said that, on the evidence, he should not have been offered as an expert in this case. After refusing to grant leave to permit the witness to offer opinion evidence, counsel having called Mr. Adams chose not to have him continue further with any other evidence related to his contact with Mr.

K.F.. [ 36 ] The ultimate consequence in this trial involves the most intrusive remedy ultimately capable of severing the parent-and- child relationship, i.e. , Crown wardship without access. [ 37 ] Accordingly, every appropriate precaution must be taken to ensure that what is admitted into evidence is done so with the highest standards in mind. [ 38 ] The witness has not the ability to diagnose or prognosticate about “risk” related to sexual offenders.

Without that basis (that is found in experts within the field, whom have been called upon to give opinion evidence in this court), he is not in a position to offer opinion evidence in relation to “relapse prevention”. [29] [ 39 ] Based on the application of tests enunciated in The Queen v. Mohan , supra , the leave sought to admit opinion evidence of the witness must be denied. The individual is not qualified in respect of the areas about which qualification to offer opinion evidence were identified. Released: May 2 , 2012 Douglas W. Phillips Justice “Area of Expertise – Paul S. Adams: 1.

To assess the risk status of sexual offenders in relation to potential sexual re-offending. 2. To provide recommendations to sex offenders in relation to relapse prevention. 3. To provide treatment recommendations and/or treatment services to sex offenders in relation to relapse prevention.” Bachelor of Arts English/Education, Honours degree University of York — 1969-1972 York, UK Masters English, University of Windsor — 1975-1977 Windsor, ON” “Question: And from what University did you obtain your Masters? Answer: The University of Windsor. Question: Thank you.

Did you pursue any further education after obtaining your Masters Degree? Answer: No.” “Psychiatric In-service, Individual & Group Therapy, Richmond Fellowship — 1978-1980 London, UK Ontario Association of Jungian Analysts, Psychoanalyst — 2003-2010 Toronto, ON” “Question: Well, underneath, and I’m referring to page one of your C.V., underneath ‘EDUCATION’ there are two more entries after the Masters entry. Could you explain what those two are, please?

Answer: The Psychiatric In-Service was a training and work experience, ah, in a therapeutic community, ah, initially in the north of England in a training house, and then in the south of England, in London, in a training house, so this was for patients who’d been demitted from psychiatric hospitals so I was engaged in training there, and I lived on the premise in a separate apartment.

The training was very intense and then the ah, one day a week there was something called ‘Day Release’ where you, you are required to attend for formal lectures and seminars that were given by psychiatrists, locally, and psychologists and other therapists.

Question: So, could we agree that that was more of a practical component to your education? Answer: Certainly.” “Question: And then the fourth entry, could you explain what that is in reference to? Answer: Ah, the, the ah, training with a lodge of the Ontario Association of Jungian Analysts is basic psychoanalytic training, so that’s ah, it’s a sort of satellite program based on the, the original training in Zurich. It’s really — I don’t know how far you want me to go to describe what psychoanalysis is, but it’s . . . Question: If you could just provide a brief description.

Answer: It’s just a, a branch of psychoanalysis that is somewhat different or quite a lot different from basic Freudian. It has a different concept or understanding of the unconscious, but it’s still working with the psyche, so that was a, you know, a seven year training . . . Question: Okay. Answer: . . . which was, again, pretty intense. There’s a lot of form requirements in terms of understanding of psychopathology and so on. So the ah, do you want me to continue? Question: Yes, please.

Answer: Ah, the ah, the training, you know, entitles me to become a, a psychoanalyst and also automatically confers membership in the International Association for Analytical Psychology. Question: Okay, so as a result of the fourth entry under ‘EDUCATION’, you were given a designation of a psychoanalyst, correct? Answer: Yes.” Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by adding the following section: 33.1 Psychotherapist title.—

(1) Despite

section 8 of the Psychotherapy Act, 2007 , a person who holds a certificate of registration authorizing him or her to perform the controlled act of psychotherapy and is a member of one of the following Colleges may use the title ‘psychotherapist’ if he or she complies with the conditions in subsections (2), (3) and (4): 1. The Colleges of Nurses of Ontario. 2. The College of Occupational Therapists of Ontario. 3. The College of Physicians and Surgeons of Ontario. 4. The College of Psychologists of Ontario. 2009, c. 26, s. 24(6) .

(2) Oral identification .— A person mentioned in subsection (1) shall not describe himself or herself orally as a ‘psychotherapist’ to any person unless the member also mentions the full name of the College where he or she is a member and identifies himself or herself as a member of that College or identifies himself or herself using the title restricted to those who are members of the health profession to which the member belongs. 2009, c. 26, s. 24(6) .

(3) Written identification.— A person mentioned in subsection (1) shall not use the title ‘psychotherapist’ in writing in a way that identifies the member as a psychotherapist on a name tag, business card or any document, unless the member sets out his or her full name in writing, immediately followed by at least one of the following, followed in turn by ‘psychotherapist’: 1. The full name of the College where he or she is a member. 2. The name of the health profession that the member practises. 3. The restricted title that the member may use under the health profession Act governing the member’s profession. 2009, c. 26, s. 24(6) .

(4) In accordance with regulations .— A person mentioned in subsection 91) shall use the title ‘psychotherapist’ in accordance with the regulations made under subsection (5). 2009, c. 26, s. 24(6) .

(5) Regulations. — Subject to the approval of the Lieutenant Governor in Council and with prior review by the Minister, the Council of a College mentioned in paragraphs 1 to 4 of subsection (1) may make regulations governing the use of title ‘psychotherapist’ by members of the College. 2009, c. 26, s. 24(6) . “Question: Now, if we can turn to the third page of your C.V., under the heading ‘CERTIFICATIONS/ASSOCIATIONS’. From what’s stated under that, are you indicating that you are a member of the first four associations? Answer: Yes. Question: And are you required to do anything specific as a member of those four associations?

Answer: Particularly they’re just conferred by the experience and the work that I’ve done, or the training that I’ve done. Question: So, for example, are you required to do anything to maintain that membership, for example, continuing education of any type? Answer: Oh there, there are certain requirements for the, ah, Ontario Society of Psychotherapists, yes. Question: And briefly, what would that entail? Answer: Well, just continuing education, supervision, hours, that kind of stuff.” “Question: And then as it relates to the second entry, can you detail what you mean by what that heading is there?

Answer: Well, in the, the course of my work at different times I’ve attended for different conferences and seminars, workshops and so on by, led by ah, people in the field dealing specifically in the area of sexual abuse, treatment, assessment and so on. Question: So am I — are you indicating then that the second entry, the information contained within there are really, um, seminars and not actual practical assessments of patients per se ?

Answer: That’s true.” “Assessment and treatment of psychiatric and psychosocial disorders including patients presenting with sexual abuse issues, eating disorders, substance abuse issues, schizophrenia, mood and anxiety disorders and dissociative disorders” “Question: Okay, and then in the third entry you indicate that you provided assessment and treatment of a number of psychiatric and psychosocial disorders. What exactly were you assessing of those disorders? Answer: Sorry, can you repeat the — I’m just looking at the entry and I’m . . . Question: Sorry. Answer: Oh the — it’s, it’s diagnostic.

It’s assessing the, the condition of the, the people that I was presented with. Question: So, for example, is it assessing the presence of that condition or . . . Answer: Yes. Question: . . . or anything further as it relates to that condition? Answer: Well, it’s assessing the presence of something but also then moving forward to a place of treatment. Question: And what did your treatment of those disorders detail? Answer: Well, it’s, it’s current, but I mean, it’s, it’s what I do in analytic practice.

Question: So, for example, if you, according to this point here, if you are treating psychiatric or psychosocial disorders as it relates to say, people presenting with sexual abuse issues, what exactly does that, in a

summary form? Answer: Well, it would be peripheral, but it, it may be that in the course of, of meeting with individuals who have committed some kind of sexual crime, I may also discover that they have other disorders. Question: Are you — under that specialized education and training point, were you assessing risk as it related to any type of sexual abuse issues? Answer: Well, that would be part of what I do in my treatment program. Question: Thank you.

Answer: Specific to, you know, in – dealing with sex offenders.” Question: Now, if we can move to the third entry under the heading, ‘WORK EXPERIENCE.’ You indicate that you are a co-founder of an agency. Can you explain what that, that — what that means?

Answer: Ah, it was a, when I, when I was at the Children’s Aid, I had a strong interest in ah, the treatment issues arising out of the, ah, problem of sexual abuse of children, so ah, as part of that I, I helped, through the child abuse council, develop some interventions to do with treatment, um, and in the end started running treatment groups for sex offenders when the only other agency that was involved at the time was no longer doing that work so we needed a way to assess or gauge where the, the offender was in terms of possible or potential reintegration into homes.

When I left the Children’s Aid, I ah, continued that work and then got involved with the ministry of, well, the probation and parole office, and the area manager there, and the two of us basically founded ah, a collaborative effort that looked at both prevention through education ah, and also looked at the whole spectrum of treatment response in the community ah, for different kinds of sex offenders including persons with developmental disability and also adolescent offenders . . . Question: Now. Answer: . . . ah, as well as . . .

Question: Sorry. Answer: . . . obviously the adult population that I’d been mainly dealing with. Question: Okay, and during your time in this position, 1996 to 1999, was there any aspect of this that required you to utilize forms of risk assessment in sexual abuse or sexual offenders? Answer: Well, I, I was already running the treatment group, so whatever work I was doing was already involved in assessing risk.” “Group dynamics in small and large groups including Bion, (Richmond Fellowship, UK) and certification with Dr. I.

Yalom (group therapy tasks and techniques), ON” “Question: In the fourth entry there is a heading that indicates ‘Group dynamics in small’ — ‘in small and large groups, including Bion.’ Can you advise what that is, exactly? Answer: This was part of the, the training I took in ah, the Richmond Fellowship, initially, so that would just be an understanding, experiential understanding and also technical understanding of group dynamics in both small and large groups . . . Question: And . . .

Answer: . . . just an, ah, well, a post Freudian analyst who wrote on groups and also as a, as a form of an experiential group that I undertook training in. Question: And did you receive a certification for your participation in that? Answer: No. That was with Doctor Yalomb (ph.). That was ah, later.” “ [29] . . .

I can appreciate the connection between her training in psychology and the nature of her evidence, but I do not think that she is at a sufficient academic level for her opinion to be of much value.” “Question: So, for example, are you required to do anything to maintain, for example, continuing education of any type? Answer: Oh there, there are certain requirements for the, ah, Ontario Society of Psychotherapists, yes. Question: And briefly, what would that entail?

Answer: Well, just continuing education, supervision, hours, that kind of stuff.” “Question: And as far as the clinical approach, the clinical approach would be a situation where an individual would meet with a psychiatrist or psychologist. They would develop . . . gain information based on some of these tests but there would also be a clinical component where they would be assessed by a psychiatrist or a psychologist. Is that a fair description of the clinical approach? Answer: I’m not quite understanding the difference in terms of the way you’re saying it.

Question: Well, the difference would be in a clinical approach there would be a psychologist or a psychiatrist who would assess the individual in addition to just gathering the information. Answer: I still don’t see the difference. Is it — I’m — the — I’m sorry. I, I’m probably being really stupid here. I just don’t see the difference. Question: Well, Mr. Adams, you confirm that you’re not a psychiatrist or a psychologist. Answer: Yes. Question: So, the difference would be that the added layer would be an assessment by a psychiatrist or a psychologist.

Answer: I don’t know that they would be doing anything different. Um, an assessment is just in the understanding of the person and the gathering of the information. Question: Mr. Adams, you have the ability to diagnose um, an individual with a psychiatric disorder. Answer: Yes. Question: You have the ability to make a psychiatric diagnosis. Answer: You didn’t say that the first time. Am I able to make diagnosis of — in terms of presenting symptoms? Yes, but I’m not a psychiatrist.” “Question: Let’s, let’s talk about, just to make it ah, maybe a little simpler, let’s talk about each of these tests individually.

Static-99, as I understand it, there were a number of questions involved in that assessment, and based upon the answers to those questions there’s a numerical value given to those answers. Is that fair to say? Answer: Correct. Question: And based upon the result of that test, there is a numerical figure when that test is, has been administered.

Answer: Yes. Question: And when that number is then plugged into a certain code so to speak, it gives you, as the assessor, a reading of risk. Answer: Right. Question: And then you’ll do the same thing when you administer the Stable-2000. Answer: Yes. Question: There are a number of questions. Answer: Yes. Question: There’s a numerical value of, given to those questions, and at the end there is again a number that you associate risk with, either low, low moderate, moderate high, or high. Answer: Right. Question: And then you do the same thing with the Acute-2000. Answer: Yes.

Question: Questions, numerical values, and at the end you get a number. Answer: Right. Question: And then is it fair to say, Mr. Adams, that as a result of your three tests, you come up with a final number and that’s where you get your assessment of risk with an individual. Answer: Yes. Question: And those specific tests again are rely – you’re relying on the individuals to give you honest answers to those questions.

Answer: I don’t take everything that I’m told at face value, and I’d be clearly stupid if I did, but I make some, I mean, I, I use the experience that I have in interviewing, to get a handle or get a sense of whether or not, whether the person is actually being honest or not, but where, where the omissions are and so on and so forth, yeah. Question: But there are, if, to, to get somewhat specific in each, in each test, you are relying on answers from individuals related to their ongoing use of alcohol, correct? Answer: Yes.

Question: You’re relying on answers from an individual with respect to whether or not they resort to strip bars or masturbate? Answer: Yes. Question: And whether or not they use or look at pornography? Answer: Yes. Question: So, you would agree with me then that the answers given to these questions, if they’re not truthful, could impact your assessment of risk. Answer: Of course. Question: And, Mr. Adams, to go back to my, ah, one of my earlier questions, there really is no other assessment that you provide on top of these three tests that are administered to these individuals. Answer: Correct.”