The Public Has the Right to Know: JP v. British Columbia

GeorgiaLeeLang009In the tradition of open courts and transparency, the BC Court of Appeal has ordered that affidavits, written submissions, and other material filed in the Court be released to the media, in this case CKNW and the Vancouver Sun, a decision I applaud.

The case of JP v. British Columbia has occupied many pages of local newspapers and a multitude of radio and TV reports. It is, of course, the case concerning the groundbreaking decision last summer after a 147 day trial, when Mr. Justice Paul Walker of the British Columbia Supreme Court found that B.C.’s child protection authorities had negligently permitted a father to sexually abuse his children while the youngsters were in the custody of the Ministry. The Court found that the government’s failure to protect the children was “egregious, negligent, and a breach of duty” and government social workers showed a “reckless disregard to their obligation to protect children.”

The evidence before Mr. Justice Walker included expert evidence from Californian Dr. Claire Reeves who had been an expert witness at the 90 day family law trial that preceded the action against the Ministry by several years. Dr. Reeves’ expert opinion played a significant role in the original finding that this father had sexually abused his children.

The legal profession was shocked when the Court of Appeal reviewed the evidence and determined that the so-called expert had defrauded the court. Their awe was not a criticism of the high court’s findings, but that the lower court has been so taken in by Dr. Reeves and the utter disregard for proper procedure.

Last year in a 411 paragraph decision, the Court of Appeal (JP v. British Columbia 2017 BCCA 308) held that Dr. Reeves’ fraud impacted the integrity of the entire judicial process, leading to a gross miscarriage of justice. The trial findings that the father was guilty of sexual abuse of his children were thrown out and a new trial ordered. The scathing denouncement of BC’s child protection authorities was also dismissed, the appeal court finding that the alleged misfeasance was the product of procedural unfairness.

With the Court of Appeal’s order made today, more details of this extraordinary case will be forthcoming. Last week, the Supreme Court of Canada refused to hear JP’s appeal of the BC Court of Appeal decision. It is her lawyer that introduced Dr. Reeve’s evidence into the trial process and who has been soundly criticized in the media for the debacle that occurred. JP was the only participant in today’s appeal that resisted the principle of open access to the courts….not surprising!

Lawdiva aka Georgialee Lang

Judge Makes Impromptu Home Visit

DSC00567 - Version 2A Family Court Judge in England decided to “see for herself” in a court case that involved two young children. (AMV v. RM (2012) EWHC 3629) The proceedings commenced in the usual fashion, but early in the hearing the children’s father disputed the mother’s claim that she and the two children lived in a three-bedroom flat in London. He asserted that mother and children spent most of their time at her parent’s home in council housing, the term used in Britain and Ireland for public or social housing.

Mother admitted that she and the children spent time at her parent’s home, an admission that raised the issue of the standard of the living accommodation of the children. Suddenly, the Judge suggested to mother’s counsel that the court hearing be adjourned so that she could personally inspect both homes.

With only fifteen minutes to ponder the Judge’s request, mother’s lawyer consented to the Judge’s suggestion, but advised that her client had not been able to reach her parents to arrange a visit to their home.

So off they went, the Judge was driven to the homes, both of them, by the father’s lawyer with the mother accompanying him. The mother’s lawyer drove her car with her passenger, the father.

First the Judge inspected the mother’s home, opening cupboards, looking through the refrigerator and scanning the garbage in the waste paper basket. Then they drove to her parent’s home, surprising them as they entered the premises to look about the home, even opening drawers to examine their contents.

At the conclusion of the inspections, the Judge noted that the parent’s home was “cramped, dirty and untidy”.

Not surprisingly, the Court of Appeal was not impressed with the impromptu inspections calling them “litigation by ambush”. The Appeal Court noted that the Judge’s request to view the homes was unfair because if mother’s lawyer had not agreed, it is likely the Judge would have drawn an adverse inference against the mother. The unexpected request on short notice was also a breach of the mother’s right to a fair trial.

The Court’s imposition on the maternal grandparents was also wholly inappropriate as they had no time to consider their position or obtain independent legal advice. Finally, the Appeal Court said that if there were issues about the children’s accommodation, it was a matter for social services, not for a Judge of the Court.

Lawdiva aka Georgialee Lang