Friday, March 17, 2017

How to Adopt a Child in Nunavut

R.A v. S.K. and D.K. 2017 NUCJ 5:

[12]  In Nunavut there are two ways of adopting a child. One way is in accordance with Inuit custom. This does not involve the Courts or any government agencies. If a child has been adopted in accordance with Inuit custom, an adoptive parent may apply for a certificate recognizing the adoption. This is done pursuant to the ACARA, by providing certain information to a Custom Adoption Commissioner and requesting a Certificate. The Commissioner reviews the information and if he or she is satisfied that the child was adopted in accordance with Inuit custom, a Certificate recognizing the adoption is issued. The Certificate is registered with the Nunavut Court of Justice and is enforced as an order of the Court. The Certificate facilitates the issuance of birth certificates and other similar documentation.

[13] An adoption may also proceed under the Adoption Act, SNWT, 1998, c 9 (Nu) [Adoption Act]. The Adoption Act provides for departmental adoptions (where the child is in the permanent care of social services), step-child adoptions (where the adopting parent is a step-parent) and private adoptions (adoptions arranged between the birth parents and the adoptive parents). The majority of adoptions done under the Adoption Act are private adoptions.

[14] A private adoption under the Adoption Act requires that the Director of Adoptions be notified of the intention to place a child for adoption and requires that a pre-placement report be completed before the child can be placed. The biological parents must provide written consent to the adoption, after having received advice as to the legal effects of an adoption. The consent may be revoked within a specified time period.

[15] If a child from Nunavut is being adopted outside of the Territory, the child cannot be removed from the Territory until there is a pre-placement report and the approval of the Director of Adoptions. If the child to be adopted is aboriginal, the appropriate aboriginal organization, Qikiqtani Inuit Association [QIA], Kivalliq Inuit Association [Kivalliq KIA] or Kitikmeot Inuit Association [Kitikmeot KIA]) must be notified and consulted. Once a child has been placed for adoption and has been with the adoptive parents for at least 6 months, a Family Union Report is done by an adoption worker. References and criminal record checks are part of the placement process. Application is then made to the Nunavut Court of Justice to grant the Adoption Order.

[16] One of the distinctions between an aboriginal custom adoption and an adoption under the Adoption Act is the requirement for home studies and other checks to ensure the suitability of the adoptive parents. 

Confession Rule does not apply to Charter Voir Dire

R. v. Paterson, 2017 SCC 15:

The confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter . The Crown must prove the voluntariness of an accused's statement before it can rely upon that statement at trial as supporting a finding of guilt. The purpose of the judicial inquiry in a Charter voir dire is distinct from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused's guilt, but on whether the accused's constitutional rights were infringed. A Charter voir dire thereforeinvolves a review of the totality of the circumstances known to, and relied upon, by the state actor at the time of the impugned action. Only the state actor's contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for the state actor to rely upon the statement as forming grounds for the action under scrutiny. Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused's guilt, does not engage the rationale for the confessions rule. To apply the confessions rule to evidence presented at a Charter voir dire would distort both the rule and its rationale. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings. 

Of the Law Societies of Upper Canada and Nunavut 

Wednesday, March 8, 2017

Reasonable Apprehension of Bias

Miracle v. Maracle III, 2017 ONCA 195:

[2]            The test for reasonable apprehension of bias laid down and consistently endorsed by the Supreme Court of Canada is:

what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.  (Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21

[3]            The reasonable observer is not a person with a “very sensitive or scrupulous conscience”: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para 31.  Rather, it is the “sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument” and “who takes the trouble to read the text of an article as well as the headlines”:  Helow v. Secretary of State for the Home Department, [2008] UKHL 62, [2008] 1 W.L.R. 2416 (U.K. H.L.), at para. 3.

[4]            In our view, that test is not met in the circumstances of this appeal. The issues arising in Tyendinaga Mohawk Council v. Brant were strictly legal in nature and quite distinct from the issues posed on this appeal. A reasonable observer would not conclude that, because a judge has ruled against a party on a legal issue in one case, that judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case.

[5]            Moreover, there is absolutely no connection between anything done in the course of Hourigan J.A.’s prior employment in the office of the Attorney General of Ontario and the issues raised on this appeal. There is no merit to the appellant’s contention that Hourigan J.A.’s prior employment gives rise to a reasonable apprehension of bias.

[6]            We further note that, when this appeal was listed for hearing last week, counsel for the appellant made similar allegations of bias against a differently constituted panel. That panel ruled that, while there was no substance to those allegations, the case would be adjourned to a different panel. The repetition of the same complaint today reveals a pattern of conduct on the part of counsel that cannot be condoned. Unfounded claims of bias and repeated requests for adjournments cause delay and impose added cost to other litigants and the court system. Judges have a duty to sit and hear cases to ensure proper and expeditious justice. They must not be dissuaded from fulfilling that duty by groundless allegations of bias.

[7]            We adopt, for the purposes of this appeal, the following statement made by Doherty J.A. in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257, at para. 10:

It is important that justice be administered impartially.  A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias.  In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.  Litigants are not entitled to pick their judge.  They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges.  To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

Friday, March 3, 2017

Expert Police Evidence Excluded for Lack of Independence

R. v. McManus, 2017 ONCA 188:
(c)         The Relevant Principles

[63]       To be admitted into evidence, an expert's opinion must be (1) logically relevant to an issue in the proceedings; (2) necessary to assist the trier of fact; (3) not precluded by an exclusionary rule; and (4) tendered by a properly qualified expert:Mohan, at pp. 20-25. The trial judge also has residual discretion to exclude evidence that meets these criteria where the benefits of receiving the evidence are outweighed by the potential risks inherent in the introduction of the evidence: Mohan, at p. 21. This is the two-stage analytical structure for the admissibility of expert opinion evidence recognized by this court in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 76-77, and by the Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 22-24.

[64]       In White Burgess, at para. 32, Cromwell J. described an expert's duty to provide opinion evidence that is fair, objective, and non-partisan:

Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.  It must be unbiased in the sense that it does not unfairly favour one party's position over another.  

[65]       Cromwell J. held that an expert's lack of independence and impartiality must be considered at the "gatekeeper" stage, and "goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted": White Burgess, at para 45.

[66]       An assessment of independence, impartiality, and bias is relevant to the fourth part of the Mohan test in determining whether the expert is properly qualified, and also factors into the balancing of benefit and risks of such evidence: White Burgess, at paras. 53-54; R. v. Shafia, 2016 ONCA 812, at para. 228. A person who opposes the admission of the evidence on the basis of bias has the burden of establishing a "realistic concern" that the witness is unwilling or unable to comply with the duty and the proffering party must rebut this concern on a balance of probabilities to satisfy the Mohan test for admissibility: White Burgess, at para. 48. 

[67]       While an interest in or connection with the litigation does not automatically render the proposed expert evidence inadmissible, the court must consider whether the relationship or interest would result in the expert being unable or unwilling to carry out his or her primary duty to provide fair, non-partisan, and objective assistance: White Burgess, at paras. 49-50; R. v. Abbey, at para. 87. There is a heightened concern with police expert witnesses to ensure their ability to offer impartial expert evidence: see, for example R. v. Tesfai, 2015 ONSC 7792 (where measures taken to ensure the impartiality of the officer's opinion in a drug case were considered adequate) and R. v. T.A., 2015 ONCJ 624 (where the officer qualified to give expert opinion evidence was not involved in the investigation or the laying of charges and did not discuss his analysis with other officers involved in the project). 

[68]       Finally, the admissibility decision is entitled to deference on appellate review, unless there is an error in principle or the decision is unreasonable: Abbey, at para. 97; Shafia, at para. 234.

(d)         The Principles Applied

[69]       Regrettably, the trial judge did not properly consider the fourth Mohan criterion and did not fulfill his proper role as gatekeeper in respect of the proffered expert opinion. He did not give any real consideration to the question of D.C. Bullick's objectivity and ability to give independent and unbiased expert evidence and he did not consider the potential prejudice to the appellants if D.C. Bullick were allowed to testify in a dual capacity – both as an investigator as to several critical pieces of evidence forming part of the Crown's case and as an expert witness. 

[70]       D.C. Bullick's prior involvement with McManus and direct participation in the investigation and prosecution would immediately give rise to a concern about the officer's ability, despite his best intentions, to provide an impartial expert opinion. As explained in White Burgess, at para. 50, the question at the threshold stage is "whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance." Further, "it is the nature and extent of the interest or connection with the litigation or a party thereto which matters": at para. 49. While D.C. Bullick may have testified that he was willing and able to provide an independent opinion, ultimately it was up to the trial judge to evaluate whether he could, in fact, do so. 

[71]       D.C. Bullick's position as a police officer did not disqualify him from giving expert evidence. However, the evidence elicited in the voir dire demonstrated that D.C. Bullick was neither independent nor impartial. D.C. Bullick testified that he had known McManus longer than four years, and that he believed McManus was a drug trafficker. He testified about being involved in investigations of McManus in the past that led to charges, and that he prepared his report in response to the preliminary inquiry judge's comment that the Crown's case was not strong. This testimony suggested that D.C. Bullick had a strong interest in seeing that McManus was convicted. His opinion could not help but be coloured by facts and information that did not form part of the trial record. Finally, his evidence was important and central to the Crown's case. In submissions on the voir dire, Crown counsel characterized it as filling in "an extremely important gap in the Crown's case", and later stated that the interpretation of the cellphone information was "very strong evidence and important evidence for the Crown." 

[72]       I am satisfied that there was a "realistic concern" that D.C. Bullick was unable to comply with the duty of an expert to provide independent, impartial and unbiased evidence, and that the Crown did not rebut this concern on a balance of probabilities, to satisfy the fourth Mohan criterion for admissibility: White Burgess, at paras. 48, 53.

[73]       It is indeed surprising that the Crown sought to rely on the expert evidence of D.C. Bullick. The evidence that D.C. Bullick provided could easily have been offered by another witness who had no connection to the case. In fact, the Crown had already sought a report from an officer who had no involvement in the investigation who gave expert evidence at trial, without objection, on the interpretation of coded language in the documents alleged to be debt lists, all based on evidence she observed at trial. 

[74]       Instead of ruling the expert opinion evidence inadmissible, the trial judge left the issue of bias to be addressed in D.C. Bullick's cross-examination before the jury. In doing so, the trial judge failed to appreciate the practical impossibility that would present. To effectively explore the grounds of D.C. Bullick's bias and partiality, the defence would necessarily have elicited prejudicial bad character evidence about McManus before the jury.

Of the Law Societies of Upper Canada and Nunavut

Thursday, March 2, 2017

Lawsuits are to be determined on the pleadings

Moore v. Sweet, 2017 ONCA 182:

[39]        This Court has made it clear on a number of occasions that lawsuits are to be decided within the boundaries of the pleadings (i.e., the documents framing the issues), and based on findings and conclusions that are "anchored in the pleadings, evidence, positions or submissions of any of the parties". Otherwise, they are "inherently unreliable" and "procedurally unfair, or contrary to natural justice". When a judge steps outside of the case as it was "developed by the parties" to decide a given issue, the parties are deprived of the opportunity to make submissions and to "address that issue in the evidence." See Rodaro, at paras. 60-63; Labatt Brewing, at paras. 5-7; 460635 Ontario Ltd. v. 1002953Ontario Inc. (1999), 127 O.A.C. 48 (C.A.), at para. 9; A-C-H International Inc. v. Royal Bank of Canada (2005), 254 D.L.R. (4th) 327 (Ont. C.A.).

Of the Law Societies of Upper Canada and Nunavut 

Tuesday, February 21, 2017

Better to Be Fair Than Fast

Traditionally in Canada very serious criminal cases go to trial only after they have been reviewed by a judicial officer who hears from witnesses and decides there is enough evidence to make a trial necessary.  The idea is that someone ought not to be put on trial for a serious case like arson or manslaughter or kidnapping without having an independent judicial officer listen to at least some of the evidence.  It also allows the accused to challenge the case before trial and make sure all the evidence is tested.  This testing is called a preliminary inquiry.

The testing of the case done at a preliminary inquiry is limited.  The judicial officer does not have to be satisfied to beyond a reasonable doubt that the accused is guilty – rather the trial goes ahead if there is sufficient evidence put forward that a reasonable person could convict the accused.  It is a low standard but it is not no standard and sometimes cases end at the preliminary inquiry.
Recently the right to have a preliminary inquiry has been limited by the former Conservative government and some people are saying, in order to get faster trial times, we should get rid of the preliminary inquiry altogether.

To my mind the elimination of a preliminary inquiry is a false saving.  It is helpful to hear the evidence of the Crown witnesses (and, if they are not available for trial their evidence may be available for the Crown to use!  I have had that happen a few times so the preliminary inquiry does not only help the accused).  In Canada today people charged with criminal offences are provided with all the evidence against them but a written statement or even a videotaped statement does not replace hearing someone testify in Court and be cross-examined on what they say happened.   Even if the case goes ahead, once the evidence is taken at the preliminary inquiry reasonable lawyers can usually narrow down what the trial needs to be about and witnesses are not able to come up with new stories because their evidence has been taken down.  The witnesses have sworn that what they said at the preliminary inquiry is the truth and if they try to vary from that evidence at trial, the accused and the Crown will be going to question why it has changed.  Sometimes evidence changes for a good reason but usually changed evidence is weak evidence.

Preliminary inquires can speed up cases.  As an example, I had an arson case in which the Crown’s case depended on one witness.  The witness gave a story which was, on paper, plausible.  But she was so obviously unsure of what she was saying that the Crown decided not to go ahead with the arson trial – as a result much trial time was saved.  In Nunavut even if the judicial officer is of the view there is sufficient evidence to go ahead with a trial, if the case seems weak the Crown will often reconsider the charges.

It’s easy to try to limit the rights of people charged with criminal offences – people charged are often held in contempt by their community – but a fair process is the only process that is suitable for Nunavummiut.  It’s better to be right than to be fast!