Eli et al., Re, 2012 SKCA 38

• Judge: Jackson, Ottenbreit and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 28, 2011
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 38;(2012), 393 Sask.R. 57 (CA)

Eli, Re (2012), 393 Sask.R. 57 (CA);

    546 W.A.C. 57

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.001

In The Matter Of an Application under the Child and Family Services Act

In The Matter Of "Eli", Born May 4, 2006 and "Jerry", Born March 2, 2007

B.L. and S.L. (respondents/appellants) v. The Ministry of Social Services (applicant/respondent)

(1658; 2012 SKCA 38)

Indexed As: Eli et al., Re

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Herauf, JJ.A.

March 27, 2012.

Summary:

The Minister of Social Services applied for an order that Eli and Jerry were children in need of protection. If found to be so, the Minister sought to have the children permanently committed to the Minister's care.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 319 Sask.R. 110, held that the children were in need of protection and ordered that they be committed to the Minister's care. The appellants appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence the computer records of the Regina Police Service, specifically the Integrated Electronic Information System (IEIS) records supported by Staff Sgt. Wyatt's testimony under ss. 50-52 of the Evidence Act (Sask.) - The Saskatchewan Court of Appeal discussed the proper approach to determine the admissibility of the IEIS record and concluded that the principles summarized by Ryan-Froslie, J., in S.V., Re (SKQB 2002) would normally guide the determination of whether records were admissible - See paragraphs 18 to 25.

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence the computer records of the Regina Police Service, specifically the Integrated Electronic Information System (IEIS) records supported by Staff Sgt. Wyatt's testimony under ss. 50-52 of the Evidence Act - At issue was, inter alia, whether third party statements were admissible under ss. 50-52 - The Saskatchewan Court of Appeal held that there was no valid reason why ss. 50-52 based on the case law should be interpreted more restrictively respecting hearsay than the similar business records exception under the Canada Evidence Act - "The approach the courts have taken to s. 30 of the Canada Evidence Act is not inconsistent with the notion that the law seeks circumstantial guarantees of trustworthiness and reliability before evidence is admissible. Business records are considered inherently reliable because they are created in a context where they are systematically stored, produced and relied on. They are made in circumstances of regularity and continuity which produce habits of precision. Therefore, provided the record complies with the statutory prerequisites, it is sufficiently credible and trustworthy to be admissible and it matters little whether the record contains double or triple hearsay. This is so especially in the light of a specific provision like s. 50(2) of The Evidence Act. This subsection signals that the resolution of the issue of what to make of 'hearsay' in the record, whether double or third party variety, is left to weight and the discretion of the judge and not admissibility." - See paragraphs 26 to 29.

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence the computer records of the Regina Police Service, specifically the Integrated Electronic Information System (IEIS) records supported by Staff Sgt. Wyatt's testimony under ss. 50-52 of the Evidence Act (Sask.) - At issue was, inter alia, whether ss. 50-52 required all the informants to the record to be under a business duty to provide the information - The Saskatchewan Court of Appeal held that given the clear terms of s. 50(2) there was no valid reason why the IEIS records should be inadmissible merely because an informant was not under a business duty to provide the information - Weight, however, was another matter - It was open to the trial judge to admit the records but to give little or no weight to hearsay found in the admissible record - The court still had a discretion to admit even those portions of the record which were inadmissible as business records, for the limited purpose of narrative or background - See paragraphs 30 to 34.

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence the computer records of the Regina Police Service, specifically the Integrated Electronic Information System (IEIS) records supported by Staff Sgt. Wyatt's testimony under ss. 50-52 of the Evidence Act (Sask.) - At issue was, inter alia, whether the IEIS records met the statutory prerequisites for admissibility - The Saskatchewan Court of Appeal held that the statutory definition of "business" included an operation or undertaking in the public sector and was broad enough to encompass the Regina Police Service which was such an entity - Likewise, the definition of "record" was broad enough to encompass IEIS records generated by the Regina Police Service and stored in its computer system - All of the inherent frailties and features of the IEIS records did not make them any less a record of the act, transaction, occurrence or event - The frailties might go to weight or ultimate reliability but did not exclude the records as a business record - The trial judge was correct to conditionally admit copies of the IEIS records as exhibits on the basis that the statutory prerequisites of the Evidence Act had been met - See paragraphs 35 to 42.

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence the computer records of the Regina Police Service, specifically the Integrated Electronic Information System (IEIS) records supported by Staff Sgt. Wyatt's testimony under ss. 50-52 of the Evidence Act - At issue was, inter alia, whether the trial judge erred by admitting the records thereby "shifting the burden of proof" from the Minister to the parents - The Saskatchewan Court of Appeal held that the use of the business records exception whether documents were tendered under s. 50 or s. 52 was an entirely appropriate tool to prove certain relevant facts - There was nothing inherently unfair in the process - It did not relieve the Minister of its ultimate burden - The evidentiary onus was on the Minister to justify the admission of the records under the Evidence Act - They did this by tendering the documents and calling Sgt. Wyatt who testified about the creation of the records - Then the evidentiary onus shifted to the parents to adduce any evidence addressing the records if they thought it necessary or advisable - In this case, the parents had the opportunity to challenge the content of the records as would any party - There was no "shifting the burden of proof" - See paragraphs 43 to 47.

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence the computer records of the Regina Police Service, specifically the Integrated Electronic Information System (IEIS) records supported by Staff Sgt. Wyatt's testimony under ss. 50-52 of the Evidence Act (Sask.) - The Saskatchewan Court of Appeal dismissed the appeal - The IEIS were business records within the meaning of s. 52 - The four conditions of s. 52(2) had been met - The trial judge committed no error in admitting the IEIS records - See paragraphs 16 to 47.

Evidence - Topic 1597

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Police or customs records - [See all Evidence - Topic 1586 ].

Evidence - Topic 3092

Documentary evidence - Secondary evidence - General - Transcripts - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The appellants appealed, asserting that the trial judge erred by admitting into evidence transcripts from a series of sentencing hearings at the Provincial Court respecting the appellants under s. 30 of the Child and Family Services Act (Sask.) - The Saskatchewan Court of Appeal dismissed the appeal - Absent proof the transcripts were not accurate or their contents had been seriously impugned, there was no reason to second-guess the authenticity or accuracy of these records and their reliability - Necessity was established as well - The purpose of s. 30 was to expedite the trial - To require the Ministry to call witnesses to prove every fact as contained in the transcript would negate the purpose of s. 30 - Further, there was no indication the admission of the transcripts, despite their meeting the requirements of reliability and necessity, would otherwise be prejudicial to the parents - See paragraphs 48 to 58.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - The trial judge found that the Eli and Jerry were children in need of protection and ordered that they be committed to the Minister's care - The parents had long standing addictions to alcohol - They struggled with sobriety and had repeatedly made promises to stop drinking only to "fall off the wagon" - Their short marriage had been punctuated with events of domestic violence - They both had convictions for alcohol and domestic violence related offences - Both children had been in foster care since birth - They were in the care of a highly competent foster mother and had strong ties to her - Eli was a high needs child - He needed special care to cope with his disabilities engendered by fetal alcohol syndrome - Jerry did not have the same high level of needs as his older brother but had certain physical and developmental challenges - The evidence did not demonstrate that the mother was equipped to handle either Eli or Jerry, with or without the father's aid nor with the moral or available support of her community - It was in the children's best interest that they be committed to the Minister's permanent care and that a plan of adoption be put in place - The appellants appealed and sought to adduce further evidence on questions of fact under s. 63(4)(a) of the Child and Family Services Act - The Saskatchewan Court of Appeal dismissed the appeal - The further evidence was admitted - The evidence could not be adduced before because it pertained to events after the trial - It was relevant in that it enabled the court to make a determination on an accurate picture of the situation at hand - The evidence was relevant in that it was potentially decisive as to the children's best interests - However, having regard for the whole of the evidence taken together with the further evidence, there was no basis to intervene - See paragraphs 63 to 88.

Guardian and Ward - Topic 881

Public trustee or guardian - Evidence and proof - General - [See all Evidence - Topic 1586 , Evidence - Topic 3092 and Guardian and Ward - Topic 815 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Guardian and Ward - Topic 815 ].

Cases Noticed:

D.T.P.-L.C. et al., Re (2011), 385 Sask.R. 31; 536 W.A.C. 31; 2011 SKCA 101, refd to. [para. 12].

C.W. v. Saskatchewan (Minister of Social Services) (1990), 25 R.F.L.(3d) 308 (Sask. C.A.), refd to. [para. 13].

Catholic Children's Aid Society of Toronto v. J.L. (2003), 39 R.F.L.(5th) 54 (Ont. C.J.), dist. [para. 20].

Setak Computer Services Corp. v. Burroughs Business Machines Ltd. et al. (1977), 76 D.L.R.(3d) 641 (Ont. H.C.), refd to. [para. 23].

S.V. et al., Re (2002), 228 Sask.R. 161; 2002 SKQB 499 (Fam. Div.), appld. [para. 24].

R. v. Martin (A.), [1997] 6 W.W.R. 62; 152 Sask.R. 164; 140 W.A.C. 164 (C.A.), refd to. [para. 27].

R. v. Lukacko (2002), 164 C.C.C.(3d) 550 (Ont. C.A.), refd to. [para. 27].

R. v. Gregoire (R.J.) (1998), 129 Man.R.(2d) 261; 180 W.A.C. 261; 130 C.C.C.(3d) 65 (C.A.), refd to. [para. 27].

V.J.C., Re, [2009] Sask.R. Uned. 163; 2009 SKQB 395 (Fam. Div.), refd to. [para. 33].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 52].

R. v. Hamilton (A.) et al. (2011), 279 O.A.C. 199; 271 C.C.C.(3d) 208; 2011 ONCA 399, refd to. [para. 53].

R. v. Kaysaywaysemat (1992), 97 Sask.R. 66; 12 W.A.C. 66 (C.A.), refd to. [para. 62].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 66].

Genereux v. Catholic Children's Aid Society of Metropolitan Toronto - see V.G. v. Catholic Children's Aid Society of Metropolitan Toronto.

V.G. v. Catholic Children's Aid Society of Metropolitan Toronto (1985), 9 O.A.C. 398; 53 O.R.(2d) 163 (C.A.), refd to. [para. 66].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 66].

Children's Aid Society of Peel v. M.J.W. and W.W. (1995), 81 O.A.C. 56; 23 O.R.(3d) 174 (C.A.), refd to. [para. 67].

R.D. v. Children's Aid Society of Owen Sound and Grey County (2003), 178 O.A.C. 69; 44 R.F.L.(5th) 43 (C.A.), refd to. [para. 67].

D.F.R. v. Director of Child Welfare (Alta.), [2005] A.R. Uned. 581; 260 D.L.R.(4th) 322; 2005 ABCA 344, refd to. [para. 68].

Redshaw v. Redshaw (1985), 41 Sask.R. 141; 47 R.F.L.(2d) 104 (C.A.), refd to. [para. 69].

F.H. v. J.W., [2002] Sask.R. Uned. 105; 2002 SKCA 78, refd to. [para. 69].

Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S. (1996), 146 Sask.R. 46 (Q.B. Fam. Div.), refd to. [para. 86].

Statutes Noticed:

Child and Family Services Act, S.S. 1989-90, c. C-7.2, sect. 30 [para. 49]; sect. 63(4)(a) [para. 65].

Evidence Act, S.S. 2006, c. E-11.2, sect. 50(1), sect. 50(2), sect. 52(1), sect. 52(2) [para. 16].

Counsel:

Jill M. Drennan, for the appellants;

Barbara C. Mysko, for the respondent.

This appeal was heard on September 28, 2011, by Jackson, Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Ottenbreit, J.A., on March 27, 2012.