2022 MBKB 189, 2022 MBKB 189

Date: 20221012 Docket: CP 21-01-17658 (Winnipeg Centre) Indexed as: N.P. v.

Child and Family Services All Nations Coordinated Response Network (ANCR) Cited as: 2022 MBKB 189 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: ) Appearances : N.P., ) ) ) Zachary Kinahan , for the applicant applicant, ) ) - and - ) ) ) CHILD AND FAMILY ALL NATIONS ) Melissa Serbin and COORDINATED RESPONSE NETWORK, ) Alyssa Cloutier , ) for the respondent respondent. ) )) ) ) JUDGMENT DELIVERED: October 12, 2022 RESTRICTION ON PUBLICATION: Pursuant to subsection 75(2) of The Child and Family Services Act , no press, radio or television report of a proceeding shall disclose the name of any person involved in the proceedings as a party or a witness or disclose any information likely to identify any such person.

ANTONIO J.

I NTRODUCTION [ 1 ] This is a Child Abuse Registry (CAR) proceeding, however, this decision is the result of this Court presiding over a pre-trial hearing to determine certain preliminary issues. [ 2 ] In September 2023, there will be a hearing before another judge to determine the ultimate issue in this proceeding, namely whether the applicant (N.P.) should have his name entered on the CAR in connection with the alleged abuse of the subject child (A.). [ 3 ] This Court received written argument and supplemental briefs, heard oral argument, and also reviewed records from the Winnipeg Police Service (WPS) and Child and Family All Nations Coordinated Response Network (ANCR).

The argument, case law and the statutory authority focused on the following issues:

a) Whether the Child Abuse Committee (CAC) complied with the timelines set out in the Child Abuse Regulation, Man. Reg. 14/99 ( Regulation );

b) Whether reference to a vaguely identified incident, relating to another child (other than A.), is admissible at the hearing; and,

c) Whether polygraph test results of the applicant are admissible at the hearing. [ 4 ] The applicant submits that ANCR and/or the CAC did not comply with the timelines prescribed by

section 9 of the Regulation .

He argues that ANCR has not substantially complied with the Regulation due to an excessive delay that took place before N.P. was served with the Notice of Opportunity to Provide Information (NOPI). [ 5 ] The applicant says that

section 9 of the Regulation also required the CAC to hold subsequent meetings “as required”, which meant in a timely manner, and this did not occur. He argues that ANCR therefore has not substantially complied with the Regulation . He submits that he has been prejudiced in various ways and the damage done should not be disregarded by this Court, nor can it be remedied; consequently, his application opposing entry on the CAR should be granted. [ 6 ] The Court has sympathy for his arguments regarding delay. The gap in time between the investigation and notice to the applicant was well over two years.

It will be six years between the allegations of abuse coming forward and the hearing. ANCR points out that this type of timeline is not uncommon due to the lack of resources available to handle the Agency’s significant caseload. [ 7 ] The CAC complied with the 30-day timeline for its initial meeting, and there is no other timeline specified in the Regulation .

Given this, the Court concludes that the Agency substantially complied with the requirements of the legislation, and therefore the application shall proceed to the hearing next fall. [ 8 ] ANCR argues that the question of admissibility of information, about an alleged incident unrelated to the child A., is a question that should be left for determination by the hearing judge; however, this Court disagrees. This preliminary decision will be made now so that the parties have the benefit of the Court system as it was designed to flow.

With the hearing a year away, early resolution of these issues is beneficial to the parties, which will allow sufficient time to prepare documents and witnesses. The objective of this Court is to ensure that the parties know the basic facts and evidence they are dealing with at the hearing and to avoid an adjournment of the final adjudication of this proceeding. [ 9 ] The Agency also argues that admissibility of the polygraph test results of the applicant is a question that should be left for determination by the hearing judge.

Interestingly however is that ANCR also takes the position that if this Court determines to dispose of this issue during this pre-trial phase, it will no longer seek to admit the polygraph test results. What flows from this is that ANCR will no longer seek to admit those test results at the hearing. The Court agrees that the case law supports the applicant’s argument that if the Court has to rule on admissibility, then the polygraph test results would not be admissible for the CAR hearing. ISSUE #1: Whether the CAC complied with the timelines set out in the Child Abuse Regulation THE LAW [ 10 ]

Section 9 of the Regulation provides the following: Committee to meet within 30 days of referral 9 A child abuse committee shall meet within 30 days after a matter is referred to the committee and after that time as required. [ 11 ] ANCR provided the Court with the Manitoba Court of Appeal decision in B.W. v.

Child and Family All Nations Coordinated Response Network , 2009 MBCA 95 , where Hamilton J.A. indicated the following: [49] While substantial compliance favours the exercise of discretion to disregard or cure the non-compliance, it must be considered in the context of all of the circumstances, including any prejudice suffered by others. It may be that there has been substantial compliance, but there has also been prejudice suffered by the other party. In the end, it is a question of what is fair and just in the circumstances. [ 12 ] ANCR relied on M.R.G.R. v.

Kinosao Sipi Minisowin Agency , 2021 MBQB 195 ( M.R.G.R. ) , where Petersen J. determined that a two and one half year delay from the referral of the investigation to the CAC to the issuance of the Notice of Intended Entry (NIER) on Child Abuse Registry, was not unreasonable. The delay was partly caused by circumstances outside of the CAC’s control, such as the pending criminal investigation and a further disclosure made against the applicant concerning the subject child.

M.R.G.R. dealt with a six month delay between the stay of the criminal proceedings and service of NOPI, and a further six or seven months between the CAC receiving the applicant’s response to NOPI and the CAC issuing the NIER. ANALYSIS [ 13 ] The parties agree that the CAC initially reviewed the ANCR referral on October 25, 2017 and the meeting took place within the 30-day timeline required for the CAC to meet.

However, the applicant submits that the mischief arises from the 34-month period from October 25, 2017 to August 27, 2020; the delay that occurred after the initial meeting until the final meeting date, when it determined that it would serve the applicant with a NOPI. [ 14 ] The applicant argues that the CAC’s obligation to hold subsequent meetings “as required” and make its final determination, should be interpreted to mean to do so within a reasonable period of time, and 34 months is a significant failure of what was reasonable.

He argues that meetings to conclude the process should, nonetheless, be done in a timely manner and here that was not done, causing prejudice to him. [ 15 ] The applicant says generally that with the passing of six years from the investigation of this case to the hearing date, there is prejudice to him. His counsel argued that the Court should take into account the applicant’s age by the time of the hearing (70 years old).

He says that there is no reasonable excuse for the delay between the initial meeting and the final meeting, such as a pending WPS investigation or criminal proceedings, and the CAC should have brought this matter forward much more quickly than it did. [ 16 ] The applicant asks the Court to disregard ANCR’s submission, that the delay in holding subsequent meetings would have had no impact on the applicant and the applicant was “free to carry on with his life”. He submits that it is irrelevant that a Child Abuse Registry check would not have yielded notice to anyone about an ongoing investigation.

[ 17 ] The applicant asks the Court to disregard ANCR’s argument that this proceeding fell within the jurisdiction of the General Child and Family Services Authority (General Authority) and the “delay”, if any, must be viewed in context of the significant case load of the General Authority.

ANCR noted that the majority of child abuse referrals are handled by the General Authority, and while the CAC proceeds with its case reviews as efficiently as possible, there are approximately 2,000 abuse referrals each year. [ 18 ] The applicant says it is not enough to say that the system cannot be changed or that there was no clear impact to the applicant during the 34-month period that passed from investigation to service of the NIER. [ 19 ] The applicant submits that perhaps the delay is the result of a systemic problem.

Perhaps, he says, the CAC should prioritize its oldest cases first, or maybe the CAC should meet more frequently than once per month. Regardless of any flaws in the system of the CAC’s process, he submits that ANCR has failed to hold meetings on a reasonable timeline and as such, it has not substantially complied with the Regulation .

He asks the Court to bear in mind that the six year delay in getting this proceeding to a hearing is prejudicial to him because he has to defend against an abuse claim that involves a young child and events that took place many years ago. [ 20 ] The Court agrees with ANCR’s submission that had there been an intention to include a defined timeline within which the CAC was required to meet and make its final determination, such as the 30-day timeline for the initial referral to be made, that requirement would have been spelled out in the legislation.

It was not. [ 21 ] The Court disagrees that any possible impact of the passage of time on the reliability of the evidence of abuse is sufficient for this Court to grant the application opposing entry of the applicant’s name on the CAR. [ 22 ] The Court acknowledges the overburdened caseload of the General Authority and acknowledges the need for increased resources; however, the issue this Court must decide is whether the CAC held subsequent meetings within a reasonable period of time. [ 23 ] Taking into account that the CAC requires time to review information, and carefully draft the NOPI to set out the allegations with sufficient detail, the Court finds that ANCR has substantially complied with the obligations under

section 9 of the Regulation to meet “as required”. ISSUE #2: Whether reference to alleged abuse related to another child is admissible at the hearing. THE LAW [ 24 ] The Court considered the Court of King’s Bench Rules , Man. Reg. 553/88 , Rule 70.02.1(2), which states: Proportionality 70.02.1(2) Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, so far as is practicable, conducting the proceeding and allocating appropriate court resources to the proceeding in ways that are proportionate to (

a) the interests of any child affected; (

b) the importance of the issues in dispute; (

c) the amount of support and the value of property likely at issue in the proceeding; (

d) the complexity of the proceeding; and (

e) the likely expense of the proceeding to the parties. [ 25 ] The Court considered the role of the pre-trial judge who pre-tries a CAR proceeding with the same objectives in mind as prescribed for case management. Rule 70.24(1) states: Objectives of case management process 70.24(1) Recognizing the emotional and financial impact family proceedings can have on those involved and consistent with the principle of securing the just, most expeditious and least expensive determination of a family proceeding, the case management process established by this rule has the following objectives: (

a) facilitating settlement of family proceedings; (

b) setting early trial or final hearing dates and establishing timelines for the completion of steps in the litigation process; (

c) identifying and simplifying the issues in dispute between the parties; (

d) avoiding unnecessary or wasteful steps in the litigation process; (

e) ensuring that a family proceeding is ready for trial or final hearing by making orders and giving directions respecting substantive and procedural issues in the proceeding. ANALYSIS [ 26 ] There are a few vague references in the ANCR and WPS records to another allegation, or incident, relating to a child other than

the subject child A. The applicant seeks a ruling that references to this other allegation are inadmissible at the hearing, includingreferences in the WPS and CFS records. ANCR seeks adjournment of the issue of admissibility of allegations relating to another child. [27] The applicant points out that this Court’s April 13, 2022 Pre-trial Conference Memorandum indicated “[a] further pre-trial isscheduled for September 14, 2022 at 9:00 a.m.

At the pre-trial, the Court will hear argument and dispose of the above noted preliminary issues.” [28] The applicant asks this Court to address this issue now, so that the parties are in a position to properly prepare for the hearing. He has concerns that if the issue is not determined now, it may result in an adjournment of the hearing or a request for additional time. Taking into account Rules 70.24(1)(

d) and (e), the Court shares those concerns and agrees with the applicant. [29] The proper streamlining of this case, including disposing of issues that effect witnesses and document management at the pre-trial phase, will promote an efficient and fair hearing for the applicant, and decreases the likelihood of unnecessary steps at the hearingstage. [30] This Court has the benefit of time to pre-try this proceeding in preparation for the hearing. It would not be proportional to deferany of the preliminary issues to the hearing judge.

It would be highly inefficient for the parties to wait until the hearing begins a yearfrom now to know what witnesses and expert evidence may be required.

A decision now would be consistent with the objective of pre-trial management to ensure that the parties know the case they have to meet and prepare the evidence accordingly. [31] The applicant says that information about an unrelated allegation is irrelevant to the question of abuse concerning A., and in anyevent is unreliable due to vagueness, and is highly prejudicial to him. [32] Relevance drives admissibility and the applicant has clearly demonstrated that vague references in the materials to an unrelatedincident have no bearing on the ultimate issue in this case. [33] The ANCR and WPS records, with reference to this unrelated incident, shall be redacted.

Any information concerning thisunrelated incident is irrelevant and inadmissible for the CAR hearing generally. ISSUE #3: Whether the polygraph test results of the applicant are admissible at the hearing. [34] Given the objectives of pre-trial management and the principle of proportionality, as articulated above, the issue of theadmissibility of polygraph test results should be dealt with at this stage and not be adjourned to the CAR hearing. If the polygraph resultswere determined to be admissible, it would necessarily require expert opinion evidence and notice of any expert reports relied upon bythe Agency.

The applicant would then need to consider whether he requires his own expert witness. The Rules respecting pre-trials weredesigned to promote efficiency and ensure that a proceeding is properly organized and prepared for a final hearing. If this Courtadjourned the preliminary issues to the hearing, the process could become a “trial within a trial”, which may result in there beinginsufficient time to hear the actual application within the time scheduled in September 2023.

ANCR’s request to adjourn this issue isdenied. [35] Given that this Court confirms its earlier direction to dispose of these preliminary issues now, and that it is only following theruling that the Agency will agree not to raise the polygraph testing at the CAR hearing, the issue of the admissibility of the polygraphtest results had to be argued at this hearing. [36] The Court heard oral argument and reviewed the written argument and case law provided on the admissibility of polygraph testresults at the CAR hearing.

ANCR’s position withdrawing its intention to tender those results is a position that comes late; however, asound position in law. Polygraph test results are not admissible at a CAR hearing if they are tendered for the purpose of assessingcredibility (R. v. Béland, (SCC), [1987] 2 S.C.R. 398 (Béland). [37] The decision E.W. v. D.W. a.k.a. D.K., 2005 BCSC 890 (E.W.), follows the Court’s majority decision in Béland. In E.W.,Scarth J. stated the following: [4] … Mr.

Justice McIntyre gives four basic reasons for excluding the polygraph evidence in the Béland case: (1) it would offend therule against oath-helping; (2) it would offend the rule against the admission of past out-of-court consistent statements by a witness; (3) itwould offend the rule relating to character evidence; and (4) it would offend the expert evidence rule. At para 18 Mr.

Justice McIntyrestates: … it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has noplace in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. [38] In E.W., Scarth J. also confirms that the inadmissibility of polygraph test results also applies to non-criminal cases: [16] …The foundation of Mr. Justice McIntyre’s decision is that polygraph evidence, albeit in a criminal case, would be contrary tocertain basic rules of evidence and hence is not admissible.

Madam Justice Wilson, in a dissenting opinion, disagreed that those ruleswould be contravened if the polygraph evidence was admitted. Plainly, however, judges of this Court are bound by the majority decisionof the Supreme Court of Canada. Secondly, I am of the view that the fact this is a civil case involving the alleged sexual interferencewith a child does not serve to distinguish it from the majority decision in Béland. Mr. Justice McIntyre was writing in the context of a criminal case without the involvement of a child or allegations of sexual abuse.

Butthe rules of evidence upon which McIntyre J. based his decision apply equally in both types of proceedings. In particular, the issue ofcredibility is a matter for the trier of fact based upon his or her common sense and every day experience. [39] Considering all of the foregoing, ANCR’s secondary position agrees with the law - the polygraph test results are inadmissible forthe CAR hearing.

CONCLUSION [ 40 ] The application will be heard as scheduled in September 2023. ANCR has complied with the timelines prescribed by

Section 9 of the Regulation . There will be no reference to records or information concerning an unrelated incident, and tendering of the polygraph test results will not be raised as an issue at the CAR hearing. ________________________ J.