Docket: CACV2214 Government of Saskatchewan (Ministry of Social Services) (Applicant) Appellant - v. -, 2012 SKCA 75

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 75 Date: 2012-08-07 Between: Docket: CACV2214 Government of Saskatchewan (Ministry of Social Services) (Applicant) Appellant - and - R.W. (Respondent) Respondent - and - A.B. and T.B. (Respondent) Respondent Coram: Richards, Ottenbreit & Herauf JJ.A. Counsel: Sharon Pratchler and Michael Morris for the Appellant Jacqueline Lane for the Respondent R.W. Christine Hansen-Chad for the Respondents A.B. and T.B.

Appeal: From: 2012 SKQB 1 Heard: June 26, 2012 Disposition: Allowed Written Reasons: August 7, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Richards J.A. I. INTRODUCTION [ 1 ] The central issue in this appeal is the validity of restrictions placed on the dissemination and use of a court-ordered report. [ 2 ] The respondent R.W. (the “Mother”) has a young child (the “Child”). The Child was apprehended pursuant to The Child and Family Services Act , S.S. 1989-90, c.

C-7.2 (the “ Act ”) and an application was made for a protection hearing. In the run up to the hearing, a Queen’s Bench judge sitting in Chambers made an order requiring the Mother to undergo a psychiatric assessment. In so doing, he imposed various conditions with respect to both the use of the assessment report and who could have access to it. The Ministry sought unsuccessfully to have the conditions removed. It now appeals the judge’s denial of its application in that regard. [ 3 ] As explained below, I conclude that this appeal must be allowed.

The Chambers judge erred when he placed the restrictions on the use and disclosure of the report. II. BACKGROUND [ 4 ] The Child was born in 2008. In the spring of 2010, there were incidents involving calls by the Mother to Emergency Medical Services because the Child had stopped breathing. [ 5 ] Medical personnel expressed concern that the Child was being smothered and, as a result, surveillance cameras were installed in the Child’s hospital room.

The Mother was observed putting something in the Child’s food and, on another occasion, was observed opening capsules and adding their contents to the Child’s baby bottles. [ 6 ] The Mother was interviewed and, according to material filed by the Ministry, disclosed that she had three times smothered the Child until the Child had stopped breathing and, as well, had attempted to administer adult hypertension medication to the Child. [ 7 ] On April 15, 2010, the Mother was charged with aggravated assault and with administering a noxious substance.

These charges have not been resolved. [ 8 ] The Child was placed with the Mother’s cousin and her husband (the “Cousins”) pursuant to a six month agreement as per s. 9 of the Act .

Section 9 allows a parent who cannot care for a child because of special circumstances to enter into an agreement concerning the provision of residential services for the child. [ 9 ] The Mother was interviewed by mental health experts and, in early September of 2010, advised Ministry officials that she was having “bad thoughts” about hurting the Child again.

[ 10 ] The residential services agreement was cancelled in September of 2010 and the Child was apprehended by the Ministry. The Ministry told the Mother that it would be seeking a permanent wardship order for the Child. This did not affect the Child’s living arrangements as she continued to reside with the Cousins. [ 11 ] In March of 2011, the Ministry applied for a psychiatric and/or psychological assessment of the Mother. It was proposed that the assessment be done by Dr. Julian Gojer. The application was made pursuant to both s. 32 of the Act and s. 97 of The Queen’s Bench Act, 1998 , S.S. 1998, c. Q-1.01.

Counsel for the Mother did not oppose the application “so long as appropriate conditions are put into place by the Court”. [ 12 ] On March 30, 2011, the Chambers judge directed the assessment and imposed several restrictions on its use and dissemination. His order read as follows: 1. The mother of the child, [E.W.], shall undergo a psychiatric and/or psychological assessment performed by Dr. Julian Gojer pursuant to Section 32(1) (

b) of The Child and Family Services Act and

Section 97 of The Queen's Bench Act ; 2. Counsel for the Ministry and for [R.W.] are to collaborate in preparing a letter of instructions to Dr. Gojer; 3. A copy of the court file shall be made available to Dr. Gojer as well as the hospital records and videos of surveillance; 4. The Regina General hospital shall produce copies of the videos of surveillance and a copy of its records to the Minister; 5. No dissemination or use of the court's file, medical and psychological reports, hospital records and video is permitted other than for the edification of Dr. Gojer, counsel and their respective clients; 6.

Neither [R.W.] nor the Ministry as clients may review these materials in the absence of counsel, and neither [R.W.] nor the Ministry will be given copies of the report; and 7. Dr. Gojer's report shall be placed upon the court file and a copy may be retained by counsel for their respective preparation and use only. [ 13 ] In the meanwhile, the Cousins sought and obtained an order under s. 23 of the Act whereby they were designated as persons having a “sufficient interest” in the Child for purposes of the protection hearing.

They indicated their concern about the Child, expressed support for the Government’s application for permanent guardianship and said they were “desirous of being a continued resource for [the Child] and would like to be considered of sufficient interest (“PSI”) who may adopt her in the future”. The order was made on September 20, 2011. [ 14 ] Dr. Gojer completed his report in October of 2011. It was received by counsel for the Ministry and copies were provided to the Court of Queen’s Bench and counsel for the Mother.

Counsel for the Cousins was not given a copy. [ 15 ] On October 14, 2011, the Ministry brought an application aimed at either removing all of the restrictions placed by the Chambers judge on the use of Dr. Gojer’s report or, at a minimum, amending his order so that “protocols can be followed in the usual manner and to ensure full disclosure of relevant information to all of the parties”. III. THE DECISION UNDER APPEAL [ 16 ] The Ministry’s application apparently led the Chambers judge to review Dr. Gojer’s report and, as he later explained, to note Dr.

Gojer’s concern that relevant information “should flow between all interested parties”. The Chambers judge then proceeded, before the return date of the Ministry’s motion and without hearing from counsel, to issue a fiat, dated October 19, 2011. It relaxed the restrictions on the use of the report by Ministry personnel by saying: I am prepared to relax the restrictions which I ordered on March 30, 2011. Dr. Gojer's report may be used by the Ministry, counsel, and all health care providers.

In all other respects my order of March 30, 2011 remains in force to respect the privacy of the parties and the child's best interests. If counsel are not satisfied with this expanded access to Dr. Gojer's report, they may request the local registrar to set a time and date to speak to me by telephone or in person, as they may elect. [ 17 ] The parties reacted by seeking to address the notice of motion in Chambers and, as a result, the Ministry’s motion was ultimately argued in December of 2011. The judge began by granting an application by the Mother to strike certain portions of the affidavit of

Kynan Kindopp which had been filed by the Ministry. He reserved his decision on the Ministry’s motion and, on January 3, 2012, issued a written decision. This is the decision that underlies this appeal. [ 18 ] As to the Ministry’s request that the restrictions on its use of Dr. Gojer’s report be rescinded, the Chambers judge examined s. 74 of the Act and the common law principles of privilege. He concluded the common law principles were engaged with the result that the report was privileged and therefore dismissed the Ministry’s application. [ 19 ] The main features of the decision as it directly concerns the Cousins can be summarized as follows: (

a) At para. 14, the judge said the questions of the Cousins’ access to Dr. Gojer’s report was premature because the involvement of “persons of sufficient interest” arises only after a judge has determined if a child is in need of protection. (

b) At para. 15, the judge appeared to say there was no basis for giving the Cousins access to Dr. Gojer’s report: 15 I cannot conceive of any compelling reasons for A.B. and T.B. [the Cousins], as protective care givers of E.W., to have access to Dr. Gojer's report or to be informed of the contents of that report for the purposes of preparing for pre-trial or trial which includes proper instructions to their counsel. (

c) At para. 16, the judge said counsel for the Cousins should have access to the report and should have “the same rights as other counsel”: 16 Ms. Hansen-Chad has however made a compelling argument that she have access to Dr. Gojer's report. In order for Ms. Hansen- Chad to prepare for the prospect of cross-examination of Dr. Gojer at trial, should that become a possibility, Ms. Hansen-Chad should be on equal footing with other counsel. To this extent I amend my order of March 30th, 2011 to permit Ms. Hansen-Chad the same rights as other counsel.

However those rights are also subject to the same restraints as contained in paras. 5, 6 and 7 of that previous order. Paragraph 6 should include A.B. and T.B.'s names as well as R.W. and the Minister as clients. [ 20 ] The formal order issued in the wake of the decision of the Chambers judge reads as follows: 1. The Order of Mr. Justice Sandomirsky dated March 30, 2011 is amended to permit Ms. Hansen-Chad, counsel for the persons of sufficient interest, [A.B.] and [T.B.] [the Cousins], the same rights as other counsel.

However, those rights are also subject to the same restraints as contained in paragraphs 5, 6 and 7 of that previous Order of March 30, 2011. Paragraph 6 of the March 30, 2011 Order should include [A.B.] and [T.B.]’s [the Cousins’] names as well as [R.W.] and the Minister as clients. 2. The Minister's motion is denied at this interim stage. The Minister, [R.W.] and their respective Counsel are not constrained by the March 30, 2011 Order from the proper preparation needed for the Pre-trial Conference or Trial particularly as it respects to whether [E.W.] is a child in need or protection. 3.

The Minister, [R.W.], and [A.B.] and [T.B.] [the Cousins] as persons as sufficient interest, together with the respective counsel, are not constrained in properly preparing for Pre-trial or Trial as respects the appropriate disposition of an Order under

Section 37 of The Child and Family Services Act . 4. Dr. Gojer' s report may be discussed without limitations for the purposes of the Pre-trial and exploring the prospect of settlement at that stage. 5. This ruling in no way constrains or is binding upon the Trial Judge. He or she will determine at Trial what use may be made of Dr. Gojer's report by the Minister according to the Ministries normal protocols. 6. The Court refuses to order Dr. Gojer's report be made available to [R.W.]'s criminal defence Counsel.

Such an application is to be made to the presiding Judge in the criminal proceedings. [ 21 ] As I read this order (and I understand counsel to be of the same mind), the judge effectively put his October 19, 2011 order to the side so as to render it no longer relevant to the ways in which Dr. Gojer’s report could be seen or used. IV. ISSUES [ 22 ] As indicated, the Ministry has appealed from the decision of the Chambers judge. [ 23 ] The Ministry advances four submissions about the January 3, 2012 decision. First, it says Dr. Gojer’s report is not privileged.

Second, it says s. 74 of the Act is a complete code with respect to the disclosure and dissemination of information like Dr. Gojer’s report and, as a consequence, it cannot be over-ridden by court order. Third, the Ministry says the Chambers judge erred in striking portions of the Kindopp affidavit.

Fourth and finally, the Minister says the Chambers judge was wrong to limit the rights of the Cousins to access the Gojer report given that they are persons of sufficient interest and parties to the proceedings. [ 24 ] The Cousins take no position with respect to the Chambers judge’s decision to strike parts of the Kindopp affidavit. They support the Ministry’s arguments with respect to the other issues. [ 25 ] I should note as well that the Mother did not contest the Ministry’s ability to appeal as of right in the circumstances at hand.

Without attempting to resolve this issue one way or the other, I am content to say that, if leave is required, I would grant it nunc pro tunc in light of the way this appeal has evolved. V. ANALYSIS [ 26 ] I will deal in turn with each of the issues raised by the Ministry except for the one concerning the affidavit. It is a collateral matter and the contents of the affidavit make no difference, one way or the other, to the outcome of this appeal. As a result, I will leave that point to the side. A.

Privilege [ 27 ] As noted above, the Chambers judge relied on the concept of privilege to deny the Ministry’s request that all restrictions on its use of the Gojer report be rescinded. In order to assess the validity of the judge’s approach, it is necessary to look more closely at his reasoning. [ 28 ] The Chambers judge began by referring to, and quoting, s. 74 of the Act . It imposes a general duty of confidentiality on the Government-side actors in the child protection system, but then goes on (by way of exception) to authorize particular individuals to divulge information in specified circumstances.

Section 74 reads as follows: 74(1) Notwithstanding

section 18 of The Department of Social Services Act , members of the board, members of family review panels, mediators, officers and employees of the department, members of boards of directors of agencies, officers and employees of agencies, foster parents and all other persons who are employed in or assist with the administration of this Act : (

a) shall preserve confidentiality with respect to: (

i) the name and any other information that may identify a person that comes to their attention pursuant to: (

A) this Act ; (

B) The Family Services Act , not including

Part III; or (

C) The Child Welfare Act , not including

Part II; and (ii) any files, documents, papers or other records dealing with the personal history or record of a person that have come into existence through anything done pursuant to: (

A) this Act ; (

B) The Family Services Act , not including

Part III; or (

C) The Child Welfare Act , not including

Part II; and (

b) shall not disclose or communicate the information mentioned in clause (

a) to any other person except as required to carry out the intent of this Act or as otherwise provided in this section.

(2) The minister, a director or an officer may disclose or communicate information mentioned in subsection (1) relating to a child to: (

a) the guardian, parent or foster parent of that child; or (

b) the child to whom the information relates.

(3) On the request of a person, the minister or a director may: (

a) disclose; or (

b) authorize an officer to disclose;

information mentioned in subsection (1) relating to that person in any form that the minister or director considers appropriate.

(4) Notwithstanding subsection (2) or (3), no person shall, except while giving evidence in a protection hearing, disclose to anyonewho is not an officer or a peace officer the name of a person who: (

a) makes a report pursuant to

section 12; and (

b) requests that his or her name not be disclosed.

(5) Any information that may be disclosed to the person to whom it relates may, with the written consent of the person to whom itrelates, be disclosed to any other person.

(5.1) Information mentioned in subsection (1) may be released where, in the opinion of the minister, the benefit of the release ofinformation clearly outweighs any invasion of privacy that could result from the release.

(5.2) The information mentioned in subsection (5.1) may be released in any form that the minister considers appropriate.

(6) Any disclosure of information pursuant to this

section does not constitute a waiver of Crown privilege, solicitor-client privilegeor any other privilege recognized in law. [29] The Chambers judge stressed s. 74(6) in his analysis and read it as meaning that he had to consider and apply the common lawrelating to litigation privilege. He reviewed some case law concerning litigation privilege but also referred to the four generalrequirements for privilege identified by the Supreme Court in M.(A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157. These arethat (

a) the communication in issue must have originated in a confidence that it would not be disclosed, (

b) the element of confidentialityis essential to the full and satisfactory maintenance of the relation between the parties to the communication, (

c) the relationship must beone which ought to be sedulously fostered, and (

d) the interests served by protecting the communication from disclosure outweighs theinterest of pursuing the truth in disposing correctly of the litigation. [30] The Chambers judge concluded that these four criteria were satisfied on the facts before him and that the “common law principlesof privilege take precedence over the provisions of s. 74”. He wrote as follows: 32 All of the cases cited above are predicated upon the four conditions identified in Wigmore on Evidence. These four conditionsprovide the foundation for asserting privilege.

The first three of Wigmore's conditions are present in this interim application as it respectsDr. Gojer's report. The fourth of Wigmore's conditions requires this court consider whether R.W.'s right to privacy and protecting allcommunications to Dr. Gojer from being disclosed outweighs the interest in getting to the truth of R.W.'s mental condition and disposingcorrectly of the child protection hearing. 33 In my order of March 30th, 2011, as amended on October 19th, 2011, I sought to make an order for partial privilege because theprivacy interests of R.W. was compelling.

I employed the same line of reasoning as McLachlan J. (as she then was) used in A.M. v. Ryan.That is, by imposing conditions on who may see and copy Dr. Gojer's report thus ensuring the: highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking thetruth Wilkinson J. in Smith v. Smith at para. 11 [(1997), (SK KB), 159 Sask.

R. 40] 34 These common law principles of privilege take precedence over the provisions of s. 74 as can be seen by the precise wording of s.74(6). [31] Accordingly, although he began his analysis by styling it as an exploration of “litigation privilege”, the Chambers judge appears tohave concluded by finding privilege based on the nature of the relationship between the Mother and Dr. Gojer. [32] I agree with the Ministry that this line of analysis was misplaced.

First, and most fundamentally, s. 74(6) of the Act does not saythat communications impressed with a privilege (litigation or otherwise) cannot be disclosed by the Ministry. Quite to the contrary, itcontemplates or presumes that such communications will, at least sometimes, be disclosed. It says only that, if this occurs, the disclosureis not to be taken as a waiver of privilege. [33] The second problem with the analysis of the Chambers judge on the issue of privilege is also rather fundamental.

I will deal with itby looking first at litigation privilege and by then considering whatever privilege might arguably have arisen from the nature of therelationship between the Mother and Dr. Gojer. All of this can be done in a relatively brief compass. [34] Generally speaking, litigation privilege applies to communications between a lawyer and a client or third parties, or tocommunications produced by a lawyer, a client, or third parties, for the dominant purpose of ongoing or contemplated litigation. See:

Hubbard et al. , The Law of Privilege in Canada (looseleaf, para. 12.10). Of course, a self-represented litigant may also claim litigation privilege in relation to his or her work product, communications and so forth. The purpose of litigation privilege is to create a “zone of privacy” in relation to pending or apprehended litigation. See: Blank v. Canada (Minister of Justice) , 2006 SCC 39 , [2006] 2 S.C.R. 319 at para. 34 . [ 35 ] In this case, there was never any sense or expectation that Dr.

Gojer’s report would remain private as between the Mother and her counsel while they prepared for the anticipated child protection hearing or that it would be used only by the Mother and her counsel. To the contrary, the report was prepared because of an application made by the Ministry. Significantly, counsel for the Ministry and counsel for the Mother were directed to collaborate, and did collaborate, in preparing the letter of instruction to Dr. Gojer.

Further, the order requesting the report provided that counsel for the Ministry could see the report when it was completed and that, although they could not make copies, Ministry officials could see it as well. The order expressly stated that the report would be “placed upon the court file” and would be retained there and employed by counsel on both sides of the protection hearing for their “preparation and use”. Dr. Gojer wrote in the report that he had explained to the Mother that he had been “retained by the courts” to do an assessment. In these circumstances, I fail to see how Dr.

Gojer’s report could be impressed with litigation privilege in favour of the Mother. It was prepared at the direction of the Chambers judge for purposes of advancing the litigation at large and to enable the judge himself to properly resolve the issues before the court. [ 36 ] There is also no way in which Dr. Gojer’s report could be impressed with some sort of privilege grounded in the nature of the relationship between Dr. Gojer and the Mother. As explained, this was a court-ordered report and it was understood from the outset that it was being prepared for the use of both sides in the protection hearing.

This is important because, as noted above, the first requirement for the establishment of privilege within the general framework of principle prescribed by M.A. v. Ryan is that the communication in issue must have “originated in a confidence that it would not be disclosed”. This was self-evidently not the case with Dr. Gojer’s report. As a result, I conclude that the Chambers judge erred in finding that the report was impressed with a privilege somehow arising out of the relationship between the Mother and Dr.

Gojer. [ 37 ] In sum, I respectfully conclude that the Chambers judge erred in finding that the disclosure of the report had to be limited because it was subject to privilege, litigation or otherwise. B.

Section 74 as Self-Contained Code [ 38 ] I turn next to the Ministry’s argument about s. 74 of the Act . As will be recalled, the Ministry submits that – at least in relation to documents like Dr. Gojer’s report – s. 74 stands as a self-contained code which exhaustively prescribes the limitations that can be placed on how, or if, such documents may be divulged. As a result, it is submitted that the Chambers judge simply did not have the authority to put limits on the Ministry’s disclosure and use of the report. [ 39 ] In order to better understand this submission, it is necessary to look more closely at s. 74 . Section 74(1)(

a) obliges Government- side actors in the system to “preserve the confidentiality” of information that could identify individuals (s. 74(1)(a)(i)) and “any files, documents, papers or other records dealing with the person’s history or record of a person that has come into existence through anything done pursuant to ... this Act ” ( s. 74(1) (a)(ii)).

This obligation is imposed on “members of the board, members of family, review panels, mediators, officers and employees of the department, members of boards of directors of agencies, officers and employees of agencies, foster parents and all other persons who are employed in or assist with the administration of this Act .” ( s. 74(1) ) [ 40 ] Section 74(1)(

b) goes on to say, in effect, that the enumerated individuals may disclose what would otherwise be confidential information “... as required to carry out the intent of this Act or as otherwise provided”. Section 74(2) , (3) , (5) and (5.1) then enumerate other specific sorts of situations where otherwise confidential information may be released or disclosed. [ 41 ] Section 74(5.1) took on particular significance during the course of oral argument.

It says otherwise confidential information may be released if, in the opinion of the Minister, “the benefit of the release of information clearly outweighs any invasion of privacy that could result from the release”. The Mother argued that s. 74(5.1) should be read as somehow trumping or submerging the other provisions of s. 74 so as to create a regime where, absent a determination by the Minister with respect to the balance between the pros and cons of releasing otherwise confidential information, it cannot be divulged. [ 42 ] I do not accept this reading of s. 74.

It is apparent that s. 74 , as a whole, contemplates that otherwise confidential information may be divulged by different actors pursuant to distinct authorities. First, the individuals listed in s. 74(1), including officers and employees of the Department, may (as per s. 74(1)(b)) disclose or communicate information if such steps are “required to carry out the intent of this Act or as otherwise provided in this section”. The Minister is not listed in s. 74(1).

[ 43 ] Second, “[t]he minister, a director or an officer” may, pursuant to s. 74(2), disclose or communicate information relating to a child either to the child or to the guardian, parent or foster parent of the child. [ 44 ] Third, “the minister or a director” may disclose or authorize the disclosure of information to the person who is the subject of that information. [ 45 ] Fourth, and quite distinctly, otherwise confidential information may be released when “in the opinion of the minister”, the benefit of the release clearly outweighs any invasion of privacy that the release might occasion. [ 46 ] In other words, it is apparent that s. 74 makes clear distinctions between, inter alia , “the minister”, “directors” and “officers and employees” of the Department.

The minister’s authority pursuant to s. 74(5.1) is quite independent of the authorities to release information described in ss. 74(1), (2) and (3). It cannot be read as somehow subsuming the authority specifically described in those other parts of the section. [ 47 ] The Ministry, however, is in search of bigger game. Relying on s. 74 of the Act , it requests this Court to declare, in effect, that a Queen’s Bench judge can never place restrictions on the way in which a court-ordered report is used by Government-side officials in the child protection system.

The Ministry’s concern is that, if individual judges can impose varying sorts of conditions on reports, Ministry officials will be forced to deal with the situation where, before passing on or divulging individual pieces of information, they will be obliged to double-check if any sort of special restriction applies to the information. This, according to the Ministry, will make it difficult for front-line workers, in particular, to make the sorts of quick decisions which are so often demanded of them. [ 48 ] In my view, this case does not present a proper foundation for attempting to resolve this issue.

My concern is grounded in the fact that the Ministry brought its application to appoint Dr. Gojer under two distinct provisions: s. 97 of The Queen’s Bench Act, 1998 and s. 32(1) of The Child and Family Services Act .

They read as follows: The Queen’s Bench Act 97(1) On application or on the judge’s own motion, a judge may adjourn a family law proceeding and order the preparation of a report for the assistance of the court respecting the custody of, access to or welfare of children. [“Family law proceeding” is defined in s. 2 to include an action or matter based on The Child and Family Services Act .] The Child and Family Services Act 32(1) The court may request that: (

a) a child who is the subject of a protection hearing; (

b) a parent of the child mentioned in clause (a); or (

c) any person having a sufficient interest in the child mentioned in clause (a); undergo medical, psychological, developmental or educational assessment performed by a person qualified in the relevant discipline … In making his orders, the Chambers judge did not specify which of these provisions was the basis of his decisions. [ 49 ] This is potentially significant for at least two reasons. First, s. 32(1) says that the court may “request” someone to undergo an examination while s. 97 says a judge may “order” the preparation of a report.

As a result, the former authority might arguably be one which cannot be used to force an individual to undergo an assessment. If this were to be found to be the case, a question might arise as to whether a report generated in relation to an individual who voluntarily undergoes an assessment should, or should not, attract the same level of confidentiality as a report prepared in relation to someone who is required to have an assessment.

Thus, although it is a point I will not attempt to explore or resolve here, the difference in wording between ss. 32(1) and 97 might have implications for the Ministry’s argument about the effect of s. 74 of the Act . [ 50 ] The second point to note here is that s. 74 applies to those files, documents and materials described as follows in s. 74(1) (a)(ii) of the Act : 74(1) Notwithstanding

section 18 of The Department of Social Services Act, members of the board, members of family review panels, mediators, officers and employees of the department, members of boards of directors of agencies, officers and employees of agencies, foster parents and all other persons who are employed in or assist with the administration of this Act :

(

a) shall preserve confidentiality with respect to: . . . (ii) any files, documents, papers or other records dealing with the personal history or record of a person that have come into existence through anything done pursuant to : (

A) this Act ; (

B) The Family Services Act, not including

Part III; or (

C) The Child Welfare Act, not including

Part II; [emphasis added] [ 51 ] As a result, it is at least arguable that, if Dr. Gojer’s report was prepared pursuant to an order made under The Queen’s Bench Act, 1998 , it is not a file, document, paper or other record that has “come into existence through anything done pursuant to … this Act ” as per s. 74(1) (a)(ii)(A).

At a minimum, there are issues in this regard which were not fully canvassed by the parties or considered, or at least considered expressly, by the Chambers judge. [ 52 ] As a consequence, and as indicated above, it appears to me that this is not a case for tackling the Ministry’s arguments about whether s. 74 prescribes an exhaustive system for the handling of confidential-type information. This appeal can be fully resolved on the basis of the “privilege” point. The issues concerning the effect of s. 74 can and should remain for another day and an appeal with a more satisfactory record. C.

The Cousins’ Access to the Report [ 53 ] The Ministry and the Cousins also take issue with the limitation placed by the Chambers judge on the Cousins’ access to Dr. Gojer’s report. [ 54 ] This issue presents itself in a peculiar fashion because the parties do not read the judge’s decision, or the formal order of the Court of Queen’s Bench, in the same way.

Accordingly, it is necessary to begin the analysis of this aspect of the appeal by looking at the nature of the disagreement between the Mother, on the one hand, and the Ministry and the Cousins on the other. [ 55 ] As noted above, paragraph 1 of the formal order now under appeal purports to give counsel for the Cousins the same rights as those enjoyed by other counsel in relation to the Gojer report. It does this by way of amending the March 30, 2011 order. Paragraph 1 reads as follows: 1. The Order of Mr. Justice Sandomirsky dated March 30, 2011 is amended to permit Ms.

Hansen-Chad, counsel for the persons of sufficient interests [A.B.] and [T.B.] [the Cousins], the same rights as other counsel. However, those rights are also subject to the same restraints as contained in paragraphs 5, 6 and 7 of that previous Order of March 30, 2011. Paragraph 6 of the March 30, 2011 Order should include [A.B.] and [T.B.]’s [the Cousins’] names as well as [R.W.] and the Minister as clients. [ 56 ] In this regard, the order seems to faithfully reflect what the Chambers judge said at paragraph 16 of his decision: 16 Ms.

Hansen-Chad has however made a compelling argument that she have access to Dr. Gojer's report. In order for Ms. Hansen- Chad to prepare for the prospect of cross-examination of Dr. Gojer at trial, should that become a possibility, Ms. Hansen-Chad should be on equal footing with other counsel. To this extent I amend my order of March 30th, 2011 to permit Ms. Hansen-Chad the same rights as other counsel. However those rights are also subject to the same restraints as contained in paras. 5, 6 and 7 of that previous order.

Paragraph 6 should include A.B. and T.B.’s [the Cousins'] names as well as R.W. and the Minister as clients . [emphasis added] [ 57 ] However, if the Cousins’ names are added to paragraph 6 of the March 30, 2011 order as directed by the Chambers judge, the effect appears to go beyond simply giving their counsel access to Dr. Gojer’s report.

Rather, it seems that the Cousins themselves would be entitled to review the report, subject to the same qualifications as were imposed on the Ministry and the Mother, i.e. , they could review the report only in the presence of their counsel and they could not make copies of it. As amended, paragraph 6 of the March 30, 2011 order would read as follows:

6. Neither [the Mother], [the Cousins], nor the Ministry as clients may review these materials in the absence of counsel, and neither [the Mother], [the Cousins] nor the Ministry will be given copies of the report; [ 58 ] But, that said, the Mother points to paragraphs 14 and 15 of the Chambers judge’s reasons for decision. There, the judge seemed to say that the Cousins should not have access to Dr. Gojer’s report: 14 I consider A.B. and T.B.'s [the Cousins’] arguments for access to Dr.

Gojer's report to be premature, regardless of the conditions, confidentiality or limited use of information gleaned from the report which A.B. and T.B. [the Cousins] have suggested to the court. A trial date has not been scheduled. The involvement of persons of sufficient interest in the subject matter of this litigation, the child protection hearing, only arise after the trial judge has determined whether E.W. is a child in need of protection. . . . 15 I cannot conceive of any compelling reasons for A.B. and T.B. [the Cousins], as protective care givers of E.W., to have access to Dr.

Gojer's report or to be informed of the contents of that report for the purposes of preparing for pre-trial or trial which includes proper instructions to their counsel. Focusing on this language, the Mother has taken the position that the Cousins may not see Dr. Gojer’s report whether they are in the presence of their counsel or not. [ 59 ] That, then, is the nature of the disagreement among the parties as to the meaning and effect of the decision of the Chambers judge.

For my part, despite the ambiguities involved, I am prepared to read the judge’s decision in the way it is understood by the Mother, i.e. as meaning that the Cousins themselves may not have any access at all to Dr. Gojer’s report. By proceeding in this way – whether it precisely reflects the terms of the formal judgment or not – it will be possible to get at, and resolve, the substance of the issues that are vexing the parties in this dimension of the appeal. [ 60 ] I turn, therefore, to the heart of the Chambers judge’s reasoning with respect to the entitlements of the Cousins in relation to Dr. Gojer’s report.

That reasoning turned on a particular view of the status of “a person having a sufficient interest in a child”, a term which is explained in s. 23(1) of the Act : 23(1) Subject to subsection (2), where an application for a protection hearing has been made, the court may, on an oral or written request, by order designate as a person having a sufficient interest in a child: (

a) a person who, in the opinion of the court, is a member of the child’s extended family; (

b) where the child is a status Indian: (

i) whose name is included in a Band List; or (ii) who is entitled to have his or her name included in a Band List; the chief of the band in question or the chief’s designate; or (

c) any other person who is not a parent of the child but who, in the opinion of the court, has a close connection with the child. [ 61 ] The judge appears to have proceeded on the basis that the interests of such persons in a child protection hearing arise only if a child is found to be in need of protection. This is what he said: 14 I consider A.B. and T.B.'s [the Cousins’] arguments for access to Dr. Gojer's report to be premature, regardless of the conditions, confidentiality or limited use of information gleaned from the report which A.B. and T.B. [the Cousins] have suggested to the court.

A trial date has not been scheduled. The involvement of persons of sufficient interest in the subject matter of this litigation, the child protection hearing, only arise after the trial judge has determined whether E.W. is a child in need of protection. If E.W. is found to be a child in need of protection, the trial judge and counsel would turn their attention to s. 37 of The Child and Family Services Act , S.S. 1989-90, c. C-7.2, as am. in order to determine what might be the appropriate order to be made in the circumstances.

It is only at this second step in the process when A.B. and T.B.'s [the Cousins’] interest will arise. [ 62 ] In my respectful opinion, the Chambers judge erred in concluding that the interests of a “person having a sufficient interest” arise only after a determination has been made that the child is in need of protection. By basing his reasoning on this faulty premise, he was led to make an inappropriate order with respect to the Cousins’ right to see Dr. Gojer’s report. [ 63 ]

Part III of the Act contemplates that, at a protection hearing, the judge will first determine if the child is in need of protection (s. 36(1)). If the judge determines that the child is in need of protection then he or she shall make an appropriate order ranging from returning the child to the custody of his or her parents, on one end of the spectrum, to permanently committing the child to the Minister on the other (s. 37(2)). The key parts of ss. 36 and 37 of the Act provide as follows: 36(1) On a protection hearing, the court shall determine whether the child is in need of protection.

(2) Where the court determines that a child is in need of protection, the officer shall present to the court the officer’srecommendations respecting an order to be made pursuant to

section 37.

(3) If the court determines that a child is not in need of protection, it shall dismiss the application and order the return of the child to aperson who has a right to custody of the child. . . . 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an orderpermanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child werepermanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. [64] I see nothing in the terms or structure of

Part III, or of ss. 36 and 37 in particular, to suggest a “person having sufficient interest” in aprotection hearing is to play no role in the proceedings unless and until a finding has been made that the child is in need of protection.Rather, s. 23(4) of the Act provides, in straightforward terms, that a person having a sufficient interest in a child is “a party to aprotection hearing respecting that child”.

A “protection hearing”, by definition, includes both the determination pursuant to s. 36(1) as towhether the child is in need of protection and the making of a resulting order under s. 37(1), if such a finding is necessary. [65] All of this accords with at least two important practical realities. First, persons having a sufficient interest will frequently have avery deep stake in whether or not a child is found to be in need of protection. They will not be focused simply on the sort of order that ismade pursuant to s. 37 of the Act.

Imagine, for example, a grandparent who has been very actively involved in a child’s life and whowants to resist the suggestion that the child is in need of protection and to thereby avoid any risk of the child being taken from his or herparents.

It would be difficult to convince such a grandparent that he or she has no interest in the question of whether the child is in needof protection. [66] Second, child protection hearings are not typically conducted as distinct two-stage proceedings where, to begin, evidence andargument is heard about whether the child is in need of protection and then, in a separate and second hearing, evidence and argument isheard about the nature of the appropriate order. Rather, although of course keeping the two-stage decision-making process clearly inmind (Saskatchewan (Minister of Social Services) v.

E.K.S. (1996), (SK KB), 146 Sask.R. 46 (Q.B.)), the judge willgenerally hear all of the evidence in the course of a single proceeding. Given this reality, the idea of excluding persons of sufficientinterest from the “is the child in need of protection” dimension of the hearing but allowing them to participate in its “appropriate order”dimension becomes self-evidently complex. [67] I note as well that, in this case, the Chambers judge obviously intended that the Cousins’ counsel should have access to Dr. Gojer’sreport.

He also anticipated that the Cousins themselves would participate in the pre-trial conference and that, at the conference, “Dr.Gojer’s report may be discussed without limitations for the purpose of the pre-trial and exploring the prospect of settlement …”. Thistoo, points out the difficulty in attempting to deny the Cousins access to the report unless and until a finding is made that the Child is inneed of protection. The reality is that the Cousins would, in all probability, have knowledge of the import of Dr. Gojer’s report and of hisconclusions by virtue of their participation in the pre-trial process.

If that is the case, nothing is accomplished by denying them access tothe report itself other than making it difficult for them to properly instruct their counsel. [68] That said, and to be fair to the Chambers judge, one of his motivating concerns seems to have been that Dr. Gojer’s report shouldnot make its way into the public domain or be used for purposes unrelated to the protection hearing. The Mother makes the same pointand expresses the same concerns. However, the answer to this entirely legitimate worry, in my view, is not to deny the Cousins access tothe report.

Rather, it is to ensure that they keep the report confidential and use it only for the purposes of the child protectionproceedings. This can be accomplished by way of an appropriate court order.

[ 69 ] In the end, at least on the facts of this case, I can see no proper basis for denying the Cousins access to Dr. Gojer’s report. By virtue of a court order made pursuant to s. 23 of the Act , they are parties to the protection hearing and, as such, they should be entitled to see Dr. Gojer’s report in order that they can properly instruct their counsel and otherwise prepare for, and participate in, both the pre-trial proceedings and the hearing itself. VI. CONCLUSION [ 70 ] In my opinion, this appeal must be allowed and the formal order of the Chambers judge amended.

That order (obviously drafted by counsel and not by the Chambers judge) is somewhat unusually worded in that it reflects not just the bottom-line decision of the Chambers judge but also, to some extent, the reasons for those bottom-line decisions. Nonetheless, the results flowing from this appeal can be effected if the order is amended as follows: (

a) By deleting everything in paragraph 1 including and following the words “However, those rights …”; (

b) By deleting the first sentence of paragraph 2; and (

c) By adding paragraphs or provisions to the effect that paragraphs 5 and 6 of the March 30, 2011 order are deleted and that the words “for their respective preparation and use only” are deleted from paragraph 7 of that same order. [ 71 ] The Cousins shall have access to Dr. Gojer’s report for the limited purposes of allowing them to instruct their counsel and facilitating their participation and the participation of their counsel in the proceedings relating to the child protection hearing in issue here.

They must keep the report and its contents strictly confidential save as required for participating in, and instructing their counsel with respect to, such proceedings. [ 72 ] There will be no order with respect to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 7 th day of August, A.D. 2012. “Richards J.A.” Richards J.A. I concur “Richards J.A.” for Ottenbreit J.A. (as per authorization) I concur “Richards J.A.” for Herauf J.A. (as per authorization)