SMD Applicant - v. -, 2024 ABKB 14

Court of King’s Bench of Alberta Citation: SMD v Alberta (Child, Youth and Family Enhancement Act, Director), 2024 ABKB 14 Date: 20240108 Docket: FL01 38019 Registry: Calgary Between: SMD Applicant - and - Director (Child, Youth & Family Enhancement Act) and His Majesty the King in the Right of Alberta Respondents Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2(1). No person shall publish the name or a photograph of a child or of the child’s parent or guardian in a manner that reveals that the child is receiving or has received intervention services. NOTE: This judgment is intended to comply with the identification ban so that it may be published. Corrected judgment: A corrigendum was issued on January 12, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the

Honourable Justice Lisa A. Silver _______________________________________________________ Introduction and Procedural Background [1] On July 7, 2022, Judge Davis of the then Provincial Court of Alberta ordered the permanent guardianship of AD and BD:AD(RE), 2022 ABPC 227 at 374-375 [AD]. The trial was heard over seven days from November 29, 2021, to February 17, 2022.

SMD,the biological mother of both children, filed a Notice of Appeal on August 2, 2022. [2] A year after the permanent guardianship order, SMD submitted a Charter application (referred to as a RowbothamApplication) for state-funding of counsel as an unrepresented guardian in a child protection proceeding based on the substantiallikelihood her sections 7 and 11(

d) rights would be violated unless she was represented by counsel. [3] The application used by SMD is a pre-printed form created for such applications in the provincial level of court. The reliefsought under s. 24(1) is the adjournment of the proceedings until funding for counsel is provided. [4] SMD filed material outlining her financial situation including her significant debts, such as government loans and moniesowed to Alberta Legal Aid, who provided counsel for the guardianship hearing.

SMD’s application to Legal Aid to fund the appeal wasdenied. [5] The Director of Child, Youth and Family Enhancement took no position on this application but deferred to the AttorneyGeneral of Alberta, who opposed the application. [6] Counsel for the Attorney General conceded SMD did not have the financial means to retain counsel or order the transcript ofproceedings. Counsel also conceded the complexity of the case and that SMD was not capable of representing herself on appeal. [7] The only outstanding issue on the application was whether the appeal has merit.

I directed counsel to be appointed for thelimited purpose of arguing merit, which was heard on November 30, 2023. [8] For reasons to follow, I find there is some merit to the appeal. The Charter application is allowed. I direct the appointmentof state-funded counsel to represent SMD’s interests on appeal pursuant to s. 24(1) of the Charter. General Legal Principles [9] The Rowbotham case, for which this application is named, was a criminal matter providing for state-funded counsel incertain circumstances where representation by counsel was essential to a fair trial in accordance with sections 7 and 11(

d) of the Charter:R v Rowbotham, (ONCA), 41 CCC (3d) 1 [Rowbotham]. That decision was subsequently applied to child guardianshipproceedings in New Brunswick (Minister of Health and Community Services) v JG, 1999 SCC 46 [JG]. In JG, Chief Justice Lamer, ashe then was, outlined a procedure in which a parent, facing child protection proceedings, could bring an application for state-fundedcounsel: JG at paras 103-104. [10] The granting of such an application is not automatic, and the applicant does not have an unqualified right to counsel:Rowbotham at para 156.

The court must consider whether the applicant’s fair trial rights would be compromised by not beingrepresented at a guardianship trial: JG at paras 75, 90. Some of the factors to consider include the seriousness of the interests at stake,the complexity of the proceedings, and the capacities of the parent to represent themselves: JG at paras 2, 75- 81, 104. [11] The applicant must also show they are indigent and have no other means of retaining counsel. Specifically, the applicant mustestablish ineligibility for Legal Aid or refusal by Legal Aid to provide coverage.

The applicant must exhaust all appeals against anyrefusal: R v Cai, 2002 ABCA 299, leave to appeal to SCC refused, March 4, 2004 at para 10 [Cai]. [12] JG has been applied to appeals against child guardianship orders across the country: Jewish Family and Child Service ofGreater Toronto v.

MH and MH, 2020 ONSC 4318 [MH and MH]; Children’s Aid Society v LM, 2018 ONSC 3633 at paras 22-23[LM]; SG v New Brunswick (Social Development), (NBCA) at para 9; KP v Newfoundland and Labrador (Child,Youth and Family Services), 2017 NLCA 37; DB v AB, 2016 NSCA 43; JF v Newfoundland and Labrador (Child, Youth and FamilyServices), 2013 NLCA 27 at para 40; WS v Director (Child, Youth & Family Enhancement Act), 2013 ABQB 231 [WS]; LD v JB, 2012ABQB 693 (appeal to ABCA dismissed, 2013 ABCA 196) at paras 14 and 24; RAF v Saskatchewan (Department of Justice), 2003SKQB 507 [RAF].

Whether an application is brought for trial or appeal, the ultimate question remains the same: the court mustdetermine whether counsel is necessary to ensure a fair hearing. [13] In determining the ultimate question for appeal proceedings, the factors from JG apply but courts have modified the test toinclude consideration of the merits of the appeal: LM at para 36; WS at para 12.

In WS, Justice Ross described the merit standard as a“minimum merit threshold” in the context of a Charter right, which should not be applied to deny legal representation “except in obviouscases”: WS at para 15. [14] This threshold requires the appeal have “some demonstrated or arguable legal ground” that has “some chance of merit.” Thisis not a high threshold but requires the appeal to have “some basic merit”: MH and MH at para 19; WS at para 15; RAF at para 7. [15] Notably, the court is not bound by the decision of Legal Aid to deny funding. Neither is this a judicial review of the Legal Aid

decision: R v Iyer, 2014 ABQB 684 at para 21; WS at para 14; R v Peterman, , 185 CCC (3d) 352 (ONCA) at para22. Rather, it is an independent determination by the court through the Charter lens and fair trial rights. Test for Prospective Charter Breach [16] The application involves a prospective Charter breach, which requires the applicant to show there is a “sufficiently seriousrisk” the alleged violation will occur: Cai at paras 6-13.

In the words of Justice Cory in Phillips v Westray Mine Inquiry, , [1995] 1 SCR 441 at page 458, the court must be satisfied that without relief there is a “very real likelihood” the person’s Charterrights would be prejudiced. [17] This test was not specifically applied in JG. Even so, this standard, which is relevant to the granting of relief, is in place toensure the prejudice and harm identified is not speculative. I note SMD’s pre-printed application requests the court make a finding “thatthere is a substantial likelihood” the Charter would be breached without assistance of counsel.

This same wording was used by the Courtof Appeal for Alberta in granting a Rowbotham application in a criminal matter: R v Vader, 2018 ABCA 389 at para 5. [18] In my view, “substantial likelihood” and “very real likelihood” are similar standards. I will therefore apply the substantiallikelihood test for the granting of relief of the prospective or anticipated Charter breach alleged in this case. Analysis [19] Before analyzing the grounds of appeal, I am mindful of Justice Zarzeczeny’s admonition in RAF that the merit thresholdshould not “prejudge the outcome of the appeal”: RAF at para 7.

I will therefore limit my analysis to the extent needed to establishwhether the minimum merit threshold has been reached. Beyond that threshold, the appeal may ultimately succeed or fail. This finaldetermination is a matter for the appellate judge who will fully analyze the issues to the appellate standard. That, however, is not my rolein this application. I am merely assessing the potential grounds for appeal through the lens of “some chance of merit.” [20] Counsel for SMD argued several grounds of appeal.

For purposes of determining whether the appeal has some merit, I willnot review all potential grounds but will focus on the trial judge’s use of and approach to the expert evidence proffered by SMD. I findthis ground is bound up with other arguable grounds of appeal involving the trial judge’s credibility assessment of SMD and ineffectiveassistance of counsel. These issues also raise concerns with the procedural fairness of the hearing. The expert evidence [21] There was much evidence heard at trial on SMD’s lack of confidence in Children’s Services (CS).

SMD did not trust CSofficials and believed the government agency was biased against her. It is therefore unsurprising that she refused to work with a parentingexpert retained by the Director. Instead, funds were provided for SMD to retain her own expert to provide a parenting capacityassessment, which the trial judge found was “relevant and necessary” evidence: AD at para 273. [22] Overall, the report was positive. The expert recommended the children remain in SMD’s care with therapeutic interventionand in-home supports.

The expert, who was qualified at trial in areas of parenting capacity and psychological assessments, confirmed shereceived and reviewed “very extensive” materials from the Director as well as materials provided by SMD in preparing the report: AD atpara 276. [23] The expert’s opinion changed dramatically in cross examination. It became clear the expert, contrary to her initial evidence,had reviewed very little of the material provided by the Director. The expert explained she did not do so because of time constraints: ADat para 309.

The expert also conceded that in many other respects, she failed to complete a proper parenting assessment: AD at paras 313-320. [24] The trial judge found the expert’s “reliability and credibility” was “severely undermined”: AD at para 307. The trial judgefurther remarked the expert was the “antithesis of what is expected of a court expert”: AD at para 329.

Despite these devastatingfindings, the trial judge gave weight to the expert’s changed opinion as reflected through cross-examination: AD at para 335. [25] A reading of the reasons reveals some merit to the argument that the trial judge erred in admitting the expert evidence or, atthe very least, erred in placing weight on the expert’s changed opinion. [26] In White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess], Justice Cromwell commentedon the vital importance of expert opinion evidence to be “fair, objective and non-partisan” as such evidence “can be a key element in thesearch for truth.” The case outlines the framework for the admissibility of expert evidence including the importance of the judge’s roleas gatekeeper in exercising the judicial discretion to exclude the evidence where the prejudicial effect of admission outweighs itsprobative value. [27] The trial judge referenced White Burgess and her obligation to consider the admissibility and weight of the evidence.

Sheraised concerns the expert was too aligned with SMD but was satisfied that the expert’s changed opinion given in cross-examinationprovided more “balance and clarity” against this bias concern: AD at para 333. Although, admissibility findings are afforded deference, itis arguable that the trial judge misapplied the admissibility test from White Burgess considering the trial judge’s assessment of theexpert. [28] Upon reviewing the reasons, it is arguable the real issue with the expert’s opinion was not the bias in favour of SMD.

Rather,the more pressing concern was the capacity of the expert to give any kind of expert opinion. The cross-examination destroyed the entirepremise of the expert opinion evidence, essentially removing the expert designation from the witness as commented on by the trialjudge. At that point, the expert was simply incapable of providing a fair, objective, and reliable opinion. It could even be argued that theexpert’s opinion lacked logical relevancy: R v Abbey, 2009 ONCA 624 at paras 82. In these circumstances, it is arguable that the trial

judge erred in admitting any part of the expert’s opinion evidence considering the enhanced Mohan criteria outlined in White Burgess : White Burgess at para 23 . [ 29 ] Moreover, even if the opinion evidence was admissible, the opinion was subject to the “second discretionary gatekeeping step” involving the judicial discretion to exclude, which was never clearly applied by the trial judge: White Burgess at para 24 .

Again, considering the trial judge’s own findings, the potential risks and benefits of admitting the evidence required balancing to determine whether the probative value of the evidence outweighed its prejudicial effect. [ 30 ] The only balancing the trial judge appeared to employ involved the risk of bias for SMD against the “better informed” opinion that was created under cross examination: AD at para 335. It is arguable this is not the balancing contemplated in the judicial discretion to exclude.

For instance, at no time did the trial judge review the risks associated with admitting the expert’s evidence, which included bad character evidence of SMD. This evidence will be discussed later. [ 31 ] Finally, it is arguable that even if the expert’s opinion was admissible, the trial judge erred in placing “more” weight on the “better informed” opinion, which was solely created under cross examination. The change in the expert’s opinion under cross- examination could not rehabilitate the witness. Rather, it merely highlighted the gross deficiencies in that expert opinion.

It was incumbent on the trial judge to be vigilant in the use of this evidence considering the trial judge’s finding the expert could not provide credible and reliable expert evidence. By accepting and relying on the changed “opinion” of the witness, the trial judge validated the witness as an expert in circumstances where that label was no longer viable. [ 32 ] All these concerns with the trial judge’s approach to the expert evidence arguably raises concerns with the procedural fairness of the hearing.

It was vitally important SMD have a fair opportunity to provide a parenting assessment from an expert unconnected to the Director. Yet, the lack of efficacy of the opinion only became evident in cross examination. The trial judge arguably had various options to proceed when it became obvious the expert opinion lacked any merit such as pausing the proceedings to allow the expert to properly review the reports and materials outside of the courtroom.

In fact, the trial judge contemplated this having found “all” the “shortcomings” of the expert’s opinion could have been avoided by the expert reviewing the material given to her by the Director: AD at para 321. Credibility assessment of SMD [ 33 ] In re-examination, counsel attempted to rehabilitate the expert by taking the expert to her psychological assessment and observations of SMD. The expert testified SMD was not suffering from borderline personality disorder.

It was during this exchange, the expert volunteered information about SMD, which the trial judge used to make further negative credibility findings of both SMD and the expert. According to the expert, SMD admitted to deliberately giving false answers to psychological test questions in 2012 to be diagnosed with borderline personality disorder, which would gain SMD’s access to costly government funded therapy: AD at para 328.

In short, the expert repeated an admission made by SMD that she manipulated psychological testing for her own personal advantage. [ 34 ] Although the trial judge found other reasons for finding SMD was not credible, the trial judge specifically found this test faking by SMD harmed her credibility: AD at para 271. Later in the reasons, the trial judge used this admission to question the efficacy of the psychological testing done by SMD’s expert, suggesting SMD “faked good” to get her children back: AD at para 343-344.

In the end, the trial judge found whether SMD “faked bad” or “faked good” did not matter. [ 35 ] It is arguable that this hearsay statement was potentially bad character evidence, with little relevance, which the trial judge should have either disregarded completely or been cautious in using: White Burgess at para 19 . Even if admissible, it is questionable whether the trial judge could use it for the truth of the contents as she appeared to do. Ineffective Assistance of Counsel [ 36 ] At the hearing, I was advised the original trial counsel retained by SMD was unable to assist due to a family emergency.

This resulted in new counsel taking on the file on short notice. It is SMD’s position the new counsel, although experienced, was not adequately prepared for the hearing. SMD will need to file fresh evidence and affidavit material supporting this contention on appeal but the record, as it relates to the unfolding of the expert evidence, appears to support SMD’s contention. [ 37 ] For example, it is unclear why SMD’s counsel was not aware of the severe shortcomings in the experts opinion.

Although the presumption is that counsel had an opportunity to review the report and speak to the expert before the hearing, in this case counsel took over the file on short notice. This could be explored on appeal and may show that counsel’s conduct was not within the range of reasonable professional assistance expected in the circumstances. [ 38 ] Another area of concern with the assistance of counsel is the admission made by SMD elicited during the re-examination of the expert. It is arguable that ineffective assistance of counsel may be found when harmful evidence is introduced by a party’s own counsel.

In this case, instead of rehabilitating the expert, counsel’s questioning led to the expert giving, what could be considered, bad character evidence. Without reviewing the transcript exchange, it is difficult to know how this evidence came about and if counsel objected to the admissibility or use of this evidence. At this point, however, the argument, together with the other concerns outlined, has some chance of merit on appeal. Conclusion [ 39 ] Counsel for the Attorney General argued the case against SMD was overwhelming.

Counsel further argued that the findings of the trial judge would attract considerable deference on appeal, particularly the finding that permanent guardianship was in the best interests of the children. In the end, it is for the judge hearing the appeal to apply the appropriate appellate standard in a guardianship

appeal. My task at this early stage is to consider the JG factors and merit. As outlined in these reasons, I am satisfied there are several meritorious grounds of appeal that have some chance of success. [ 40 ] The grounds of appeal are sophisticated and complex. This fact together with SMD’s limited capacity to conduct an appeal on her own and the seriousness of the issue, being the permanent guardianship of her children, results in a very real and substantial likelihood SMD’s Charter rights will be prejudiced without the assistance of counsel. I am also satisfied there is no way to provide a lawyer for SMD through other means. As a result, I declare that SMD’s rights under

section 7 of the Charter would be breached if SMD was required to continue with the appeal without assistance of counsel. [ 41 ] Therefore, pursuant to section 24(1) of the Charter, I am directing the appointment of state-funded counsel. This appointment will take into account SMD’s preferences for counsel. Included in that appointment will be funding for reasonable disbursements associated with the appeal, including the transcripts of proceedings. SMD will communicate to the Attorney General of Alberta her preference for counsel by February 12, 2024.

The matter will be returned to the Family Law Appeals Speak to List and spoken to on March 11, 2024. The serving and filing of the transcript shall be extended to May 21, 2024. [ 42 ] As counsel for SMD was appointed and funded by the Attorney General of Alberta to argue merit, there will be no costs ordered on this application. [ 43 ] I am also mindful of the passage of time since the appeal has been launched. I therefore direct that the appointment of counsel, the preparation of the transcripts, and the hearing of the appeal be expedited. [ 44 ] I thank both counsel for their helpful submissions in this case.

Heard on the 30 th day of November, 2023. Dated at the City of Calgary, Alberta this 8 th day of January, 2024. Lisa A. Silver J.C.K.B.A. Appearances: Fraser Gordon for SMD Georgia Cairns for the Attorney General of Alberta Josh Hill for the Director _______________________________________________________ Corrigendum of the Reasons for Decision

of The Honourable Justice Lisa A. Silver _______________________________________________________ Paragraph 41- has been revised.