D.M.E. v. Nova Scotia (Minister of Social Services), (1987) 80 N.S.R.(2d) 46 (FC)

• Case Date: October 10, 1986
• Jurisdiction: Nova Scotia
• Citations: (1987), 80 N.S.R.(2d) 46 (FC)

D.M.E. v. N.S. (1987), 80 N.S.R.(2d) 46 (FC);

    200 A.P.R. 46

MLB headnote and full text

D.M.E. v. Minister of Social Services

Indexed As: D.M.E. v. Nova Scotia (Minister of Social Services)

Nova Scotia Family Court

Daley, J.F.C.

May 1987.

Summary:

A father applied under s. 43(1A) of the Children's Services Act to have his name struck from the child abuse register. The father allegedly sexually abused his then nine month old daughter.

The Nova Scotia Family Court allowed the application and struck the father's name from the register.

Evidence - Topic 2725

Polygraph - Admissibility - The Nova Scotia Family Court referred to the general rule that polygraph evidence was inadmissible - A father alleged to have abused his daughter submitted evidence of a polygraph test to disprove the allegation - The court stated that "I was and am prepared to accept polygraph evidence taken under proper conditions", but the court set out three deficiencies in the test pertaining to the father.

Infants - Topic 3344

Child abuse - Child abuse register - Striking recording from register - After a report of child abuse was investigated, the Minister had a discretion to direct that the information be recorded in a child abuse register - The alleged abuser was notified and had the right to apply under s. 43 (1A) of the Children's Services Act to have the recording struck from the register - The Nova Scotia Family Court held that the Department of Social Services had the onus of proving why the recording should not be struck from the register, which onus could be satisfied by showing "credible evidence supporting the information in the register".

Infants - Topic 3344

Child abuse - Child abuse register - Striking recording from register - There was evidence to support a finding that a nine month old girl was sexually abused - The girl named "daddy" as the abuser - The father denied the abuse - The information was recorded in the child abuse register - The father applied under s. 43 (1A) of the Children's Services Act to have his name struck from the register - The Nova Scotia Family Court struck the information - The court noted that no attempt was made to determine whom the girl meant by "daddy", especially where the girl's older brother had been "daddy" in role playing - The court was not satisfied that there was credible evidence supporting the information in the register.

Cases Noticed:

C.D. v. Administrator of Family and Children's Services (1985), 68 N.S.R.(2d) 151; 159 A.P.R. 151, appld. [para. 13].

G.H. v. Minister of Social Services (1987), 73 N.S.R.(2d) 23; 176 A.P.R. 23, refd to. [para. 13].

Re Milner, 23 R.F.L. 86, refd to, [para. 13].

Lake v. Children's Aid Society of Halifax (1981), 45 N.S.R.(2d) 361; 86 A.P.R. 361, refd to. [para. 13].

R. v. Harper (1980), 2 Man.R.(2d) 153 (C.A.), refd to. [para. 39].

Prince v. Home Insurance Co. (1985), 61 N.B.R.(2d) 170; 158 A.P.R. 170, refd to. [para. 39].

R. v. Wong (No. 2) (1976), 33 C.C.C.(2d) 511, refd to. [para. 39].

R. v. Beland and Phillips (1984), 16 C.C.C.(3d) 462, refd to. [para. 39].

R. v. Phillion (1977), 14 N.R. 371; 33 C.C.C.(2d) 515 (S.C.C.), refd to. [para. 40].

Statutes Noticed:

Children's Services Act, S.N.S. 1976, c. 8, sect. 42, sect. 43 [para. 9].

Children's Services Act Regulations, sect. 2(m)(vii) [para. 11].

Authors and Works Noticed:

Barland, Gordon H., Bibliography of Scientific Studies Pertaining to the Validity of Current Lie Detection Techniques [para. 38].

Schiff, Evidence in the Litigation Process (2nd Ed.), "Scientific Aid to Testimonial Trustworthiness" [para. 38].

Silverberg, B.A., A Compendium on Polygraph Techniques (1986) [para. 38].

Cavoukian and Heslegrave, Law and Human Behaviour, vol. 4, "The Admissibility of Polygraph Evidence in Court" [para. 38].

Raskin, Barland and Podlesney, Validity and Reliability of Detection of Deception (1978) [para. 38].

Counsel:

Michael King, for the applicant;

Brian Norton, for the respondent.

This application was heard on August 13, September 16-19 and October 10, 1986, and February 27, 1987, before Daley, J.F.C., of the Nova Scotia Family Court, who delivered the following judgment in May 1987.