Rahman shaken baby case

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  • 1. IN THE SUPREME COURT OF BRITISH COLUMBIACitation: Rahman v. British Columbia (Director of Child, Family and Community Service), 2009 BCSC 1073 2009 BCSC 1073 (CanLII) Date: 20090811 Docket: E083988 Registry: VancouverBetween: Muhammad Attiq-Ur Rahman AppellantAnd: The Director of Child, Family and Community Service RespondentAND: Docket: E084032 Registry: VancouverBetween: Muzzammil Attiq-Ur Rahman AppellantAnd: The Director of Child, Family and Community Service Respondent Corrected Judgment: The front page of the judgment was amended to add appeal detail. Before: The Honourable Mr. Justice Burnyeat On appeal from: Surrey Provincial Court October 30, 2008 (F26010) Reasons for Judgment (from Chambers)Counsel for the Appellant, Muhammad Attiq-Ur Rahman: R.N. HamiltonCounsel for the Appellant, Muzzammil Attiq-Ur Rahman: M.A. NathansonCounsel for the Respondent: D.R. TatePlace and Date of Hearing: Vancouver, B.C. July 22-24, 2009Place and Date of Judgment: Vancouver, B.C. August 7, 2009
  • 2. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 2[1] In Action E083988, Muhammad Attiq-Ur Rahman (“Mr. Rahman”) seeks an Orderpursuant to s. 81 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46(“Act ”) that the Order of Borowicz P.C.J. granting the Director of Child, Family and 2009 BCSC 1073 (CanLII)Community Service (“Director”) “Continuing Custody” of the four Rahman children be setaside, the finding that the four children are in need of protection be set aside, that theDirector return the four children to him and that the interim Order dated June 10, 2005be terminated. In the alternative, Mr. Rahman seeks an Order that this matter beremitted to the Provincial Court for a new trial. In Action E084032, Muzzammil Attiq-UrRahman (“Ms. Rahman”) seeks the identical relief.BACKGROUND[2] Mr. Rahman and Ms. Rahman are the natural parents of four children who arepresently age 10, age 9, age 7, and age 6. During March, 2005, the niece ofMr. Rahman and Ms. Rahman (“Child”) was staying with them and was being cared forby them. The Child was then two years old.[3] On April 9, 2005, Mr. Rahman and the mother of the Child were out of thecountry attending a wedding. On April 9, 2005, the Child fell from a chair while eatingbreakfast. At the time of the fall, Ms. Rahman was in the washroom. The fall waswitnessed by the four children. The children called Ms. Rahman. Ms. Rahman foundthe Child on the floor, unconscious and not breathing. Ms. Rahman tried to revive theChild by rubbing her feet and hands but to no avail. Ms. Rahman then carried the Childto a neighbour’s house. Ms. Rahman speaks very limited English and does not have adriver’s licence. The neighbour took the Child from Ms. Rahman, and retrieved a pieceof waffle from the Child’s mouth. In the meantime, the neighbour’s cousin called 911and, during the call, a further piece of waffle was retrieved from the throat of the Child.[4] Ambulance attendants arrived approximately eight minutes after the 911 call andfound that the Child was not breathing. The Child was transported by ambulance toSurrey Memorial Hospital where she was examined. Ms. Rahman accompanied theChild in the ambulance. The physicians took a CT Scan of the Child’s head andconcluded that she had sustained a significant head injury. The Child was transferred toBritish Columbia Children’s Hospital.
  • 3. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 3[5] At Children’s Hospital, the Child was examined by Dr. Nita Jain, who is aPediatrician and Child Abuse Specialist. Dr. Jain noted bruising on the Child as well asa burn to the Child’s genital area. A second CT Scan was taken of the Child’s head andthe results indicated brain damage that was incompatible with life. On April 10, 2005, 2009 BCSC 1073 (CanLII)the Child was declared brain dead but was kept on life support until her mother couldreturn to Canada. On April 19, 2005, the Child was taken off life support and died.[6] Dr. Danny Straathof, a pathologist at Children’s Hospital performed an autopsyon April 19, 2005 and concluded that the cause of death was “blunt force trauma” to thehead. Dr. Jain also provided an opinion. Her opinion was that the head injury wasinconsistent with the explanation provided by Ms. Rahman that the Child had fallen fromher chair while eating breakfast.[7] The Director removed the four children from the care of Ms. Rahman on April 9,2005 and placed the children in foster care. The children have remained in foster careever since.[8] There was a court appearance in Surrey on April 14, 2005 dealing with theremoval of the four children from the care of Ms. Rahman. Mr. Rahman wished to havethe four children returned to his care but this was not acceptable to the Director. Thebrother and sister-in-law of Mr. Rahman offered to care for the four children but theDirector was not prepared to accept this placement.[9] An Interim Custody Order in favour of the Director was made on June 10, 2005.The Director initially applied for a three-month temporary custody order and theapplication for that order was set for a first appearance on July 21, 2005. Theapplication was opposed and the parties attended mediation which did not resolve thesituation.[10] On October 20, 2005, Ms. Rahman was arrested and charged with manslaughterin the death of the Child. Once Ms. Rahman was committed to stand trial, the parties re-attended mediation rather than proceed to the trial of the application of the Directorwhich was scheduled for November, 2006.[11] The second mediation occurred in December, 2006 and January, 2007. As aresult of that mediation, a separate residence for Ms. Rahman was obtained,
  • 4. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 4Mr. Rahman commenced a program entitled “Family Strengthening and InterventionProgram”, and the four children commenced unsupervised visits with Mr. Rahman andhis parents at the Rahman family home. In May, 2007, Mr. Rahman insisted thatMs. Rahman be incorporated into the family visits. 2009 BCSC 1073 (CanLII)[12] The Director then amended its application from a request for a three-monthtemporary custody order to an immediate continuing custody order. The amendedapplication was filed with the Court on May 30, 2007.THE CRIMINAL PROCEEDINGS[13] Between February 4 and March 19, 2008, the criminal trial proceeded beforeGrist J. The Crown called medical evidence from the following specialists:(a) Dr. Poskitt, a pediatric neuro-radiologist; (b) Dr. White, an ophthalmic pathologist;(c) Dr. Gardiner, a pediatric ophthalmologist; (d) Dr. Lyons, a pediatric ophthalmologist;(e) Dr. Jain; (f) Dr. Straathof; and (g) Dr. Henderson, a pathologist. In her defence,Ms. Rahman called medical evidence from Dr. Ronald Uscinski, a neurologist from thestate of Virginia and a Clinical Associate Professor at Georgetown University andGeorge Washington School of Medicine.[14] On May 21, 2008, Grist J. acquitted Ms. Rahman on the charge of manslaughter.In acquitting Ms. Rahman, Grist J. reviewed at length the medical and lay evidenceadduced before him and made the following findings: (a) the Child fell from a chair inthe kitchen in the basement suite onto a floor compromised of linoleum over concrete;(b) the Child had food in her mouth and throat when taken to the neighbour’s home;(c) the Child was found to have had a fractured collar-bone following autopsy; (d) theChild showed bruising to her left upper arm and torso as well as her forehead and aboveher right ear; (e) the Crown’s case was insufficient to prove an assault upon the Child asthe only reasonable inference to be drawn from the evidence; (f) each of the Crown’sdoctors who opined as to the cause of death stated that the Child would not be capableof sitting at a table and eating after sustaining her injury; (g) the Crown’s medicalevidence contained significant inconsistencies including different views regarding thecause of death: Dr. Straathof concluded the Child most likely died from a blunt forcetrauma; Dr. Poskitt did not agree that blunt force trauma could cause the bleeding seenin the brain of the Child; (h) Ms. Rahman sought appropriate medical care for the Child
  • 5. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 5while the Child was in her care and when she had transportation available to her; (i) thebruise on the Child’s upper arm was not indicative of the very forcible repeated shakingthe Crown attributed to it; (j) there was evidence that Ms. Rahman was taking propercare of the Child; (k) the evidence of Dr. Uscinski provided a plausible alternative 2009 BCSC 1073 (CanLII)explanation for the death of the Child; and (l) Grist J. was unable to discount either ofDr. Uscinski’s or Dr. Poskitt’s opinion over the other, and determined that neitherdoctor’s evidence could be rejected.CUSTODY ORDER PROCEEDINGS[15] The trial relating to the application of the Director for an immediate ContinuingCustody Order (“Protection Hearing”) commenced before Borowicz P.C.J. on June 17,2008, approximately three years following the removal of the four children from theRahman residence. The Director did not call all of the evidence that was before Grist J.with the medical evidence being limited to evidence from Dr. Straathof, Dr. Jain andDr. Poskitt. In response, Ms. Rahman called Dr. Uscinski.[16] For the purposes of the trial before Borowicz P.C.J., the Director admitted thefollowing facts: 1. There is no evidence of abuse, neglect, violence, want of care, or any signs of child abuse in relation to the four Rahman children at any time that they were in the care of their parents; 2. On or about April 9, 2005, Elizabeth Johnson, a social worker, interviewed the two eldest Rahman children and concluded that there was no indication that they had any outward signs of abuse; 3. On or about April 11, 2005, Dr. Paul Korn of the Heal Clinic, performed a medical examination of the Rahman Children and found that there were no signs of abuse; 4. On or about November 13, 2003, the Child had suffered a seizure; 5. Ms. Noella Connelly, Infant Development Worker, saw the Child eight times, and did not see any indication of abuse;
  • 6. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 6 6. Ms. Connelly observed that the Rahman children and the Child were friendly and cheerful, and played well together; 7. Ms. Connelly reported that the Child appeared to be comfortable with Ms. Rahman, and enjoyed being with the Rahman children; 2009 BCSC 1073 (CanLII) 8. Dr. Rai, family doctor, saw the Child a total of 43 times, and did not note any signs of child abuse during the course of any of these visits; 9. Dr. Sandhu, family doctor, saw the Child on three visits, (March 20, March 29, and March 31, 2005), and, with the exception of a small cut under her right foot on March 29, Dr. Sandhu did not note any signs of injury during the course of the three visits; 10. On or about March 15, 2005, a CT Scan was performed on the Child; 11. Mr. Baldir Gill, who owned the house which contained the basement suite occupied by the Rahman family, did not hear anything unusual from the suite while the Child was there, for example, no loud bangs or children crying for an extended period of time; 12. The house which contained the basement suite occupied by the Rahman family has a tank that supplies water and the tank is set to a very high temperature. This was confirmed by the Landlord, Mr. Baldir Gill, and two police officers who checked the temperature of the hot water tank; 13. The Child had developmental delays and problems with her fine motor skills; 14. The Child fell from a chair in the kitchen of the basement suite on to a floor comprised of linoleum over concrete; 15. The Child had food in her mouth and throat when taken to the neighbour’s home; 16. During the 911 call, the sound of the Child choking could be heard;
  • 7. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 7 17. The Eggo Waffle was not put into the Child’s mouth while she was unconscious.[17] Including submissions, there were 14 days of hearings before Borowicz P.C.J.between June 17 and August 15, 2008. On October 30, 2008, the Learned Trial Judge 2009 BCSC 1073 (CanLII)found the four children in need of protection and granted the Director an immediateContinuing Custody Order. The plan for the care of the four children is to place them foradoption.ISSUES ON APPEAL[18] Mr. Rahman describes the issues on appeal as follows: (a) the Learned TrialJudge erred in finding that the Child was physically harmed by Ms. Rahman; (b) theLearned Trial Judge erred by shifting the burden of proof from the Director to the twoAppellants; (c) the Learned Trial Judge erred by finding the four children in need ofprotection from Mr. Rahman; (d) the Reasons for Judgment of the Learned Trial Judgeare inadequate and prevent appellate review; and (e) the Learned Trial Judge erred byfailing to properly apply the relevant provisions of the Act.[19] Ms. Rahman describes the issues on appeal as follows: (a) the Learned TrialJudge erred at law by failing to give adequate reasons for judgment; (b) the LearnedTrial Judge erred at law in coming to a different conclusion than Mr. Justice Gristconcerning whether or not the Child suffered physical harm at the hands ofMs. Rahman; (c) the Learned Trial Judge erred at law by reaching unreasonableconclusions, and conclusions based on the absence of evidence, insufficient evidence,or a misapprehension of the evidence; (d) the Learned Trial Judge erred at law bymaking unreasonable findings regarding the creditability of Mr. and Ms. Rahman aswitnesses, and in using those findings to support unreasonable conclusions; (e) theLearned Trial Judge erred at law in finding that the four children were in need ofprotection when there was no evidence, or alternatively, insufficient evidence, thatMs. Rahman posed any risk of harm to the four children; (f) the Learned Trial Judgeerred at law by ordering that the four children be placed in the Continuing Custody of theDirector pursuant to section 41(1)(d) and 42(2) of the Act when there was no evidence,or alternatively, insufficient evidence of a risk of harm to the four children if they werereturned to the custody of Ms. Rahman; (g) the Learned Trial Judge erred at law in
  • 8. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 8failing to take into consideration the best interests of the four children and, in particular,in failing to consider section 4 of the Act when deciding to place the four children in theContinuing Custody of the Director; (h) the Learned Trial Judge erred at law in failing toproperly apply the guiding principles as set out in section 2 of the Act and in particular, in 2009 BCSC 1073 (CanLII)failing to properly consider the cultural, racial and religious heritage of the four children;and (i) the Learned Trial Judge erred at law in concluding that in civil child protectionproceedings the benefit of the doubt must go to the children who may be at risk andthereby wrongfully shifted the burden of proof.[20] The Director describes the issues on appeal as follows: (a) the issue for theLearned Trial Judge to determine was not whether the Child was physically harmed byMs. Rahman but whether or not, having regard to the safety and well being of the fourchildren, the four children should be returned to their parents or be placed in theContinuing Custody of the Director; (b) the Learned Trial Judge applied the correctburden of proof; (c) the Learned Trial Judge was correct in finding the four children inneed of protection; (d) the Learned Trial Judge provided sufficient reasons for judgmentfor the review of her decision by an appellate court; and (e) the Learned Trial Judgeproperly applied the relevant provisions of the Act.STANDARD OF REVIEW ON APPEAL[21] The burden of proof before the Learned Trial Judge remained with the Director:B.S. v. British Columbia (Director of Child, Family and Community Service) (1998), 48B.C.L.R. (3d) 106 (C.A.) at para. 26. The standard of proof is the civil standard of proofbeing proof on a balance of probabilities: B.S., supra, at para. 26; and F.H. v. McDougall(2008), 83 B.C.L.R. (4th) 1 (S.C.C.) at paras. 40 and 49.[22] The appeal is not a trial de novo. There cannot be a review of the evidencebefore the Learned Trial Judge and a substitution of a judgment. The decision cannotbe set aside unless I find that the Learned Trial Judge made an error at law, erred inprinciple, disregarded significant material evidence that there was a lack of factualsupport for the judgment, or that the award was clearly wrong: B.S. v. British Columbia(Director of Child, Family and Community Service) (1997), 44 B.C.L.R. (3d) (S.C.) atpara. 23; A.L. v. British Columbia (Director of Child, Family and Community Service),
  • 9. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 9[2008] B.C.J. No. 1177 (S.C.); and D.M.G. v. British Columbia (Director of Family andChild Services), [2007] B.C.J. No. 682 (S.C.).[23] In D.M.G., Russell J. stated in this regard: 2009 BCSC 1073 (CanLII) Before commencing a review of the trial judges decision, the appropriate standard of review must be considered. The appropriate standard of review of the B.C. Supreme Court on an appeal pursuant to section 81 of the CFCSA is well set out by MacKenzie J. in A.S. v. British Columbia (Director of Child, Family and Community Service), 2006 BCSC 133 at paras. 19-21: The scope of appellate review, pursuant to s. 81 of the Act is narrow. This Court does not re-hear the matter and substitute its own findings. The parties agree that this Court can intervene only if the trial judge made an error of law or seriously misapprehended the evidence. There must be an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment: New Brunswick (Minister of Health and Community Services) v. L.(M.), [1998] 2 S.C.R. 534, 165 D.L.R. (4th) 58, at paragraph 35; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60, at paragraph 13. Errors in findings of fact are not to be overturned unless the appellant can point to some palpable error. The appellant must be able to point to an error that is "plain to see:" Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at paragraph 5. In Re S.(P.J.), [2000] B.C.J. No. 787, 2000 BCSC 582 at paragraph 6, Blair J. confirmed the standard of review on an appeal from the provincial court on a child protection proceeding, described by Lord Simmonds in McKee v. McKee, [1951] A.C. 352, 2 W.W.R. (N.S.) 181, (Canada P.C.) at p. 360, as follows: [T]he question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunity generally denied to an appellate tribunal of seeing the parties and investigating the infants circumstances, and that his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence. The deferential standard of review in child custody cases is based upon the trial judges unique role in observing the witnesses and in societys interest in promoting finality and stability in those types of hearings: Van de Perre, at paragraph 11-12. To these comments, I add that the same standard of palpable and overriding error applies to inferences of fact (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at paras. 19-25), and to questions of mixed fact and law where the issue on appeal involves the trial judges interpretation of the evidence as a whole (Housen v. Nikolaisen, supra, at para. 36). I also agree with the Directors submission that the appropriate standard of review will be correctness on a pure question of law: Housen v. Nikolaisen, supra, at paras. 8-9. (at paras. 6-7)
  • 10. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 10APPLICABLE PROVISIONS OF THE ACT[24] The applicable provisions under the Act are the following sections: 2. This Act must be interpreted and administered so that the safety and well- 2009 BCSC 1073 (CanLII) being of children are the paramount considerations and in accordance with the following principles: (a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; (c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (d) the childs views should be taken into account when decisions relating to a child are made; (e) kinship ties and a childs attachment to the extended family should be preserved if possible; (f) the cultural identity of aboriginal children should be preserved; (g) decisions relating to children should be made and implemented in a timely manner. 4 (1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the childs best interests, including for example: (a) the childs safety; (b) the childs physical and emotional needs and level of development; (c) the importance of continuity in the childs care; (d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (e) the childs cultural, racial, linguistic and religious heritage; (f) the childs views; (g) the effect on the child if there is delay in making a decision. (2) If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests. 13 (1) A child needs protection in the following circumstances: (a) if the child has been, or is likely to be, physically harmed by the childs parent; 40 (1) At the protection hearing the court must determine whether the child needs protection. (2) If the court finds that the child does not need protection, it must (a) if the child was removed, order the director to return the child as soon as possible to the parent apparently entitled to custody unless the child has already been returned, and
  • 11. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 11 (b) terminate any interim order made under sections 33.2 (2), 35 (2) and 36 (3). (3) If the court finds that the child needs protection, it (a) must consider the plan of care presented by the director, and 2009 BCSC 1073 (CanLII) (b) may hear any more evidence the court considers necessary to help it determine which order should be made under section 41. 41 (1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the childs best interests: (a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the directors supervision for a specified period of up to 6 months; (b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the directors supervision, for a specified period in accordance with section 43; (c) that the child remain or be placed in the custody of the director for a specified period in accordance with section 43; (d) that the child be placed in the continuing custody of the director. 49 (1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order. ... 81 (1) A party may appeal to the Supreme Court from an order of the Provincial Court made under this Act. ... (7) After hearing the appeal, the Supreme Court may do one or more of the following: (a) confirm the order of the Provincial Court; (b) set aside the order of the Provincial Court; (c) make any order that the Provincial Court could have made; (d) direct the Provincial Court to conduct a new hearing.DISCUSSION AND CASE AUTHORITIES[25] In view of the decision I have reached regarding the sufficiency of reasons of theLearned Trial Judge, I will not deal with the other issues which Mr. Rahman andMs. Rahman believe are raised on these appeals.[26] If the reasons for judgment of a trial judge do not permit appellant review, that isan error at law. In D.M.G., supra, Russell J. concluded: “The appellant mustdemonstrate not only that the reasons are inadequate, but also that they preventappellant review.” (at para. 54). Examples given in this regard included where the TrialJudge has failed to address and resolve confusing or conflicting evidence, or where theTrial Judge has failed to explain the rejection of testimony on a critical point. In Gibson
  • 12. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 12v. Insurance Corp. of British Columbia (2008), 80 B.C.L.R. (4th) 232 (C.A.), the Courtordered a new trial stating: In the context of the metaphor often used in the adequacy of reasons analysis, the trial judge takes us to the final destination, but we are left to wonder by which 2009 BCSC 1073 (CanLII) pathway he led us there. Whether the plaintiff suffered a left shoulder injury in the accident, the quantum of his past wage loss and whether he has suffered a loss of future earning capacity, were contentious issues at trial. We have the benefit of the trial judges conclusory findings on each of these issues, but we do not enjoy an indication of the reasoning process, the evidentiary analysis, or a discussion of the acceptance and rejection of the evidence of the numerous experts, in which the trial judge had to engage in arriving at these conclusions. The law on the adequacy of reasons has been developed in numerous cases. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, was a criminal case involving a conviction for possession of stolen property. The trial judge, in convicting the accused, said simply: Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged. Mr. Justice Binnie, writing for the Court, stated at para. 24: In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be. At para. 55, Binnie J. summarizes the jurisprudence on the duty of a trial judge to give reasons. This was said in the context of a criminal case, but we consider at least these points in the list applicable in the context of reasons in a civil case: 1. The delivery of reasoned decisions is inherent in the judges role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large. 2. [...] Reasons for judgment may be important to clarify the basis for the [result] but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met. 3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record. ... 6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial
  • 13. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 13 judges conclusion is apparent from the record, even without being articulated. 7. Regard will be had to the time constraints and general press of business in the [...] courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judges 2009 BCSC 1073 (CanLII) reasons provide the equivalent of a jury instruction. 8. The trial judges duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judges decision. 9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court. (at paras. 23-29)[27] The Court in Gibson, supra, concluded that a new trial was necessary, stating: The gravamen in the reasons debate is their adequacy to permit proper appellate review. The scope of that review is discussed at length in Housen v. Nicholaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. It varies between the standards of correctness and palpable and overriding error depending on whether the question is one of law, mixed fact and law or, fact. None of these standards can be properly applied on appellate review, in a case such as this, when the court is presented only with the trial judges conclusions, shorn of any indication of the reasoning process by which he or she reached those conclusions. (at paras. 23-36)[28] In Hill v. Hamilton-Wentworth Police Services Board, (2007) 285 D.L.R. (4th)620, McLachlin C.J., for the majority, set out the principles from Sheppard which apply ina civil case where the Court is called upon to consider the adequacy of the reasons ofthe Trial Judge: The question is whether the reasons are sufficient to allow for meaningful appellate review and whether the parties "functional need to know" why the trial judges decision has been made has been met. The test is a functional one: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 55. In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal. On the other hand,
  • 14. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 14 reasons are particularly important when "a trial judge is called upon to address troublesome issues of unsettled law, or to resolve confused and contradictory evidence on a key issue", as was the case in the decision below: Sheppard, at para. 55. In assessing the adequacy of reasons, it must be remembered that "[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself": Sheppard, at para. 26. 2009 BCSC 1073 (CanLII) (at paras. 100-1)[29] In Bedwell v. McGill (2008), 76 B.C.L.R. (4th) 291 (C.A.), Tysoe J.A. stated: The question of whether a trial judges reasons are adequate is a threshold issue. If the reasons are not adequate to permit proper appellate review, the appeal must be allowed and a new trial ordered. Inadequate reasons do not enable the appellate court to make its own findings of fact and conclusions of law based on those findings. In addition, the issue of adequacy of reasons is different than the issue of whether the failure of the trial judge to address critical evidence constitutes a palpable and overriding error. (at para. 21)[30] In R. v. Dinardo, [2008] 1 S.C.R. 388, Sharron J. for the Court states: Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the cases live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judges reasons are so deficient that they foreclose meaningful appellate review: Sheppard. (at para. 25)[31] On behalf of the Appellants, it is submitted that the more contentious theevidence and the more complex and unsettled the context, the higher the duty on thetrial judge to give detailed reasons. It is submitted that there must be proportionalitybetween the degree of detail in the reasons and the nature of the evidence and issues inthe case. I agree.[32] Here, there was complicated and conflicting medical evidence against thebackdrop of a purely circumstantial case. I am satisfied that the duty on the LearnedTrial Judge was very high to give detailed reasons. Even if the onus on the LearnedTrial Judge was not higher than usual, I am satisfied that the insufficient reasons wereso deficient that meaningful appellant review is impossible.[33] The Reasons for Judgment included the following paragraphs:
  • 15. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 15 Much of the hearing focused on expert efforts to substantiate with certainty what actually happened to ... [the Child] and caused the injuries she sustained. The expert analysis remains inconclusive. What is not in doubt, however, is that what happened to ... [the Child] was much more than an accident. [The Child] ... was the victim of severe, 2009 BCSC 1073 (CanLII) sustained, and unexplained, child abuse. Some, if not all, of that abuse happened while she was in the care of Mrs. Rahman, who was present and responsible for her health, safety, and well-being. And, Mrs. Rahman is either unable or unwilling to explain what happened to ... [the Child] while she was in her care. (at paras. 14-15) .... To the extent Mrs. Rahman suggests some explanations for ... [the Child’s] injuries, they are inconsistent and implausible. The do not account for the healing fracture of her collar bone. They purport to justify what happened to ... [the Child] as the ordinary rough and tumble of child play, when the nature and extent of her injuries are obviously far beyond that. And no matter what terrible act may have caused her severe genital burn, it does not justify allowing her to suffer for days in extreme pain without medical attention. (at para. 23)[34] There is no indication regarding which doctors testified at Trial or what opinionsthey advanced. It is not clear how the Learned Trial Judge went from the observationthat the expert medical evidence analysis “remains inconclusive” to the finding that whatoccurred to the Child was not an accident and that the Child was a victim of “severe,sustained, and unexplained, child abuse”. There is no basis set out as to why theLearned Trial Judge rejected the evidence that there were accidental causes for theinjuries of the Child. The Reasons for Judgement did not deal with the testimony ofeach of the medical experts who provided opinions on behalf of the Director that it wouldnot have been possible for the Child to sit at the table and eat breakfast after sustainingthe injuries she did. There was no attempt to resolve these opinions with the otherevidence before the Court that the Child was eating breakfast prior to her fall and thatpieces of chewed waffle were removed from her mouth and throat by the neighbour ofMs. Rahman.[35] There is a complete failure to either review or analyze any of the expertevidence. The failure of the Learned Trial Judge to explain how she arrived at thedetermination that there had been severe, sustained and unexplained child abuse is acritical omission. It is that finding which is at the core of the decision that the fourchildren are in continuing need of protection and that they should not be returned toMr. Rahman and Ms. Rahman. Given the critical nature of this conclusion, some
  • 16. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 16analysis and assessment of the conflicting evidence was required. No such analysisand assessment is evident in the Reasons of the Learned Trial Judge.[36] I am satisfied that this failure constitutes an error at law. While we have the 2009 BCSC 1073 (CanLII)benefit of the findings of the Learned Trial Judge, there is no indication of the reasoningprocess, the evidentiary analysis, or a discussion of the acceptance and rejection of theevidence of the numerous experts. There can be no real understanding by Mr. Rahmanor Ms. Rahman of why their four children will not be returned to them or why theLearned Trial Judge was of the opinion that: “… there remains a significant unresolvedrisk of harm to the Children if they are returned to the care of Mrs. Rahman”, and that“… the best interests of the Children compel a conclusion that they not be returned tothem.” (at para. 26 of the Reasons for Judgment). There are also a number of otherfailures by the Learned Trial Judge to set out the process of arriving at the decisionreached.[37] In paragraph 13 of the Reasons for Judgment, the Learned Trial Judge comes tothe conclusion that Mr. Rahman and Ms. Rahman refused to cooperate or participate inany transitional plans or programs that restricted or supervised the access ofMs. Rahman to the four children. However, the Learned Trial Judge does not explainhow or why she rejects the evidence that Mr. Rahman and Ms. Rahman were preparedto obtain a separate residence for Ms. Rahman, that Mr. Rahman participated in andcompleted the “Family Strengthening and Intervention Program”, and that a gradualreintegration of Ms. Rahman into the lives of the four children while ensuring thatMs. Rahman’s contact with the four children was initially supervised was proposed.[38] In paragraph 19 of the Reasons for Judgment, the Learned Trial Judgecomments on some concerns she had relating to the credibility of Mr. Rahman but doesnot address the specific evidence of Mr. Rahman and the fact that there was noevidence to challenge the evidence of Mr. Rahman regarding the statement that hisfamily was “the most educated family in Pakistan”, regarding his work and schoolhistory, and regarding his purported medical knowledge.[39] At paragraph 22 of the Reasons for Judgment, the Learned Trial Judge statesthat the Child suffered major burns and did not receive any medical attention “at all”.However, the Learned Trial Judge does not deal with the evidence of Ms. Rahman to
  • 17. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 17the effect that she called her father who is a doctor in Pakistan to get advice regardingwhat to do regarding the burn, that she applied the cream that was recommended by herfather, and that she intended to follow the advice of her father that she should take theChild to a doctor when she could by taking the Child to a doctor in a few days when 2009 BCSC 1073 (CanLII)transportation became available and when she had a pre-arranged doctor’s appointmentfor her son.[40] At paragraph 23 of the Reasons for Judgment, the Learned Trial Judge statesthat “the Child was left to suffer in extreme pain without medical attention”. However,the Learned Trial Judge does not deal with the fact that there was uncontradictedevidence that the Child was not suffering from extreme pain due to the genital burn.[41] Finally, and most importantly, at paragraph 26 of the Reasons for Judgment, theLearned Trial Judge concludes that there is a “significant unresolved risk of harm to the[four] Children if they were to be returned to the care of Mrs. Rahman”, but does notprovide an analysis as to how she concludes there is such an unresolved risk where themedical evidence as to the cause of the death of the Child is inconclusive or, at least,contradictory.CONCLUSION[42] Given the “live issues” that were before the Learned Trial Judge and havingregard to the evidence as a whole, I have reached the conclusion that the Reasons forJudgment were so deficient that they foreclose meaningful appellant review: Sheppard,supra, at para. 25. While the scope of review is clear, the standard of review cannot beapplied as it is only the conclusions of the Learned Trial Judge which are set out in theReasons for Judgment, and not the reasoning process, the analysis of the evidence, orany discussion of the acceptance and rejection of the evidence that was before theLearned Trial Judge. As stated in the decision in Gibson, supra, the conclusions of theLearned Trial Judge are: “shorn of any indication of the reasoning process by which …she reached those conclusions” (at para. 36). I am satisfied that the appeal must beallowed. In the circumstances, a new trial is ordered.
  • 18. Rahman v. British Columbia (Director ofChild, Family and Community Service) Page 18 _________ “Burnyeat J.”_______________ The Honourable Mr. Justice Burnyeat 2009 BCSC 1073 (CanLII)