Canada: Case Brief: J.P. V. British Columbia (Children And Family Development), 2017 BCCA 308

In an unanimous decision released on August 31, 2017, the British Columbia Court of Appeal ordered a new trial for B.G., a father accused of sexually abusing his four children. Miller Thomson lawyers Morgan Camley and Robin Dean successfully argued that the trial judge's reliance on flawed expert opinion evidence led to a fundamentally unfair trial and caused a miscarriage of justice. This case stands as an important example of the vital "gatekeeper" role that a trial judge must play when admitting the evidence of experts.

The Trial Proceedings

The Court of Appeal's judgment covers two interrelated appeals involving three proceedings dating back to 2011: (1) a family proceeding commenced in 2011 by the mother, J.P., against B.G. for a divorce and a division of property; (2) a child protection proceeding commenced in the BC Provincial Court by the Director of Child, Family and Community Services (the "Director") after the children were removed from J.P.'s care during the family proceeding due to concerns about her mental health; and (3) a civil proceeding commenced by J.P. against the Director and the Province alleging misfeasance of public office, breach of fiduciary duty and negligence related to the response of the Ministry and its social workers to the allegations of sexual abuse. The civil proceedings also included a claim that B.G., who was added as a third party by the Province, had sexually abused his youngest child.

The proceedings were interrelated due to the allegations of sexual abuse common to the claims as well as two uncommon procedural steps taken by the trial judge, who presided over all three. First, the trial judge joined the family and removal proceedings (the "joint proceedings"), notionally sitting as a Supreme Court judge in the family trial and a Provincial Court judge in the removal proceeding. Second, on J.P.'s application, and without the participation of B.G., the trial judge imported all of the evidence and rulings from the family trial into the civil trial, including credibility findings adverse to the father. B.G. objected to the trial judge presiding over the civil trial, arguing that to do so would raise a reasonable apprehension of bias given the trial judge's findings against him in the joint proceedings. The trial judge disagreed and declined to recuse himself.

B.G., facing the very serious allegations against him and unable to hire a lawyer, represented himself throughout the 91-day trial in the joint proceedings and the 146-day civil trial.

Ultimately, the trial judge found that B.G. had sexually and physically abused his children based in large part on the now-discredited evidence of "Dr." Claire Reeves, who was called by J.P. to advance her claims of sexual abuse. The trial judge permitted Reeves to testify over the objections of B.G. even though Reeves had never interviewed B.G. or the children, and had spoken to J.P. only once over the telephone.

Among other procedural deficiencies, J.P. served Reeves's report late — one month into the trial. In her report, Reeves claimed to be a licensed psychologist and an expert in child sexual abuse with experience testifying as an expert witness in cases "across the United States and Canada." She listed Bachelor's, Master's and Doctorate degrees but did not provide dates for when she obtained her degrees or qualifications for obtaining her license. Her experience in the area of child sexual abuse was primarily that of an advocate. She: (1) founded an organization called Mothers Against Sexual Abuse; (2) attended fundraising events with celebrities; and (3) expressed public opposition to Michael Jackson.

Reeves gave testimony on the indicia of child sexual abuse, including sexualized behaviour. She told the court that physical abuse is also common in cases of sexual abuse. In her testimony, she said that she was absolutely, "like 180 percent" sure that the children were sexually molested. Reeves testified that she relied on child sexual abuse accommodation syndrome ("CSAAS"), a debunked theory, in reaching her conclusions. Reeves also opined on the difficulties of coaching young children to report sexual abuse. She spoke about her support of chemical castration laws, her belief in the prevalence of ritual abuse, and her Hollywood talk show appearances.

In addition to Reeves's testimony, the testimony of other witnesses called by J.P. also presented problems. The trial judge permitted a retired RCMP superintendent to opine on the likelihood of abuse based on the father's psychological profile, evidence that is typically inadmissible. Some of this testimony impermissibly encroached on the ultimate issue of whether the children's allegations were credible and whether B.G. posed a real risk to the children. The trial judge also allowed factual witnesses to give extemporaneous expert opinion evidence, in one case on matters entirely outside of the witnesses' area of expertise (by his own admission).

Based on this questionable evidence the trial judge found that the father had sexually abused the children. In doing so, the trial judge ignored reports by two registered psychologists who had interviewed the parents and the children and had found no proof of sexual abuse. The trial judge awarded the mother sole custody and guardianship of the children and permanently prohibited the father from contacting his children.

The Appeals

Proceedings in the Court of Appeal commenced in August 2015 when the Province appealed the findings of liability against it at the conclusion of the civil trial. In late August, Miller Thomson agreed to represent B.G. on a pro bono basis.

As a first step, B.G. successfully applied to be added as a respondent to the civil appeal. After an investigation into the claims found in Reeves's Curriculum Vitae, B.G. also applied for an extension of time to appeal the order in the family proceeding. The application was based on a fresh evidence challenging Reeves's qualifications. In an unprecedented decision, the Court of Appeal permitted B.G. to appeal, even though he was more than four years out of time.

On appeal, B.G. presented fresh evidence, accepted by the Court, that none of Ms. Reeves's degrees came from legitimate academic institutions. Rather, they were obtained through unaccredited "diploma mills" which provide academic credentials for a fee without any requirements for study or exams. This included her PhD from Ashwood University, an entity that offered doctorate degrees for $349 plus free shipping, with delivery in approximately 15 days. B.G. also demonstrated that Reeves was not a licensed psychologist and had testified as an expert witness in only three reported cases (as opposed to the 52 she had claimed), one of which rejected her evidence as being unbelievable and not credible because she had never interviewed the child or the alleged perpetrator. Further, B.G. presented evidence on the CSAAS theory, which is based on discredited science and has been rejected by courts in Canada and the United States.

Based on this fresh evidence, the court concluded that Reeves was unqualified as an expert and had perpetrated a fraud on the court, which could only result in the rejection of her evidence.

J.P. did not try to rehabilitate Reeves at the hearing of the appeal. Rather, she argued that Reeves's evidence made no difference to the ultimate findings of sexual abuse against B.G. The court of Appeal disagreed, stating at para. 178:

The judge's reliance on Ms. Reeves' opinions permeated his analysis of the issues in both the family and civil proceedings because ... the evidence in the family trial became part of the evidentiary record of the civil trial.

The Court set aside the orders for sole custody and guardianship of the children to the mother, and no access to the father, granting the father a new trial.

Integral to the Court of Appeal's ruling was its scrupulous approach to reviewing the trial judge's fact-finding process. The Court emphasized the role of trial judges and lawyers as "gatekeepers" in determining whether evidence is admissible. In particular, trial judges must ensure that expert evidence meets the Mohan criteria for threshold admissibility: the evidence must be relevant and necessary; it must not be rendered inadmissible by any other exclusionary rule; and it must be offered by a properly qualified expert. The expert evidence must also be fair, objective, and non-partisan to be admissible (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23). The Court of Appeal found that the rules of evidence were simply not followed in this case. Evidence did not meet the threshold admissibility requirements and did not comply with the procedural requirements for tendering expert opinion evidence.

Applying these principles, the Court of Appeal rejected most of the evidence from J.P.'s witnesses. Ms. Reeves was neither properly qualified nor impartial. The expert evidence relating to the father's psychological profile was rejected for being unreliable and unnecessary, as it relied on inapplicable methods and too closely approached the function of the trier of fact. Further, the Court of Appeal held that the trial judge erred in accepting opinion evidence from the other lay witnesses, as they were not properly qualified as experts.

With regards to the mother's civil claim against the Province, the Court of Appeal dismissed the mother's Notice of Civil Claim and the trial ruling. The Court held that the trial judge's findings of liability were based on "misapprehensions" of the evidence. In reaching its conclusion, the Court of Appeal scrutinized the trial records, including transcripts of testimony. Notably, the Court reversed the trial judge's finding that one of the social workers, Mr. Strickland, was not a credible witness, holding that this finding was speculative or based on misapprehensions of the evidence or both.

Conclusion

By scrutinizing the trial decisions in this manner, the judgment demonstrates that, under certain circumstances, the Court of Appeal will go behind the trial judge's findings of fact. Where a trial judge's findings are not supported by any evidentiary foundation, or based on misapprehensions, the decision may be overturned for palpable and overriding error. The case therefore serves as a caution to trial judges that their gatekeeper role cannot be overstated and as a caution to practitioners that improperly vetted expert evidence can extort the fact-finding process.

The case also highlights issues of self-representation and the importance of funding legal aid, at a time when access to justice is in a crisis in BC and across Canada. B.G. was self-represented while facing incredibly serious allegations, close to those in a criminal case, which resulted in him losing access to his children.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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