Rahman shaken baby case

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Rahman v. British Columbia (Director of
Child, Family and Community Service),
2009 BCSC 1073

2009 BCSC 1073 (CanLII)
Date: 20090811
Docket: E083988
Registry: Vancouver
Between:
Muhammad Attiq-Ur Rahman
Appellant

And:
The Director of Child, Family and Community Service
Respondent
AND:
Docket: E084032
Registry: Vancouver
Between:
Muzzammil Attiq-Ur Rahman
Appellant
And:
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. Hamilton
Counsel for the Appellant, Muzzammil Attiq-Ur Rahman: M.A. Nathanson
Counsel for the Respondent: D.R. Tate

Place and Date of Hearing: Vancouver, B.C.
July 22-24, 2009
Place and Date of Judgment: Vancouver, B.C.
August 7, 2009

Rahman v. British Columbia (Director of
Child, Family and Community Service) Page 2

[1] In Action E083988, Muhammad Attiq-Ur Rahman (“Mr. Rahman”) seeks an Order
pursuant 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

Community Service (“Director”) “Continuing Custody” of the four Rahman children be set
aside, the finding that the four children are in need of protection be set aside, that the
Director return the four children to him and that the interim Order dated June 10, 2005
be terminated. In the alternative, Mr. Rahman seeks an Order that this matter be
remitted to the Provincial Court for a new trial. In Action E084032, Muzzammil Attiq-Ur
Rahman (“Ms. Rahman”) seeks the identical relief.

BACKGROUND

[2] Mr. Rahman and Ms. Rahman are the natural parents of four children who are
presently age 10, age 9, age 7, and age 6. During March, 2005, the niece of
Mr. Rahman and Ms. Rahman (“Child”) was staying with them and was being cared for
by them. The Child was then two years old.

[3] On April 9, 2005, Mr. Rahman and the mother of the Child were out of the
country attending a wedding. On April 9, 2005, the Child fell from a chair while eating
breakfast. At the time of the fall, Ms. Rahman was in the washroom. The fall was
witnessed by the four children. The children called Ms. Rahman. Ms. Rahman found
the Child on the floor, unconscious and not breathing. Ms. Rahman tried to revive the
Child by rubbing her feet and hands but to no avail. Ms. Rahman then carried the Child
to a neighbour’s house. Ms. Rahman speaks very limited English and does not have a
driver’s licence. The neighbour took the Child from Ms. Rahman, and retrieved a piece
of waffle from the Child’s mouth. In the meantime, the neighbour’s cousin called 911
and, 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 and
found that the Child was not breathing. The Child was transported by ambulance to
Surrey Memorial Hospital where she was examined. Ms. Rahman accompanied the
Child in the ambulance. The physicians took a CT Scan of the Child’s head and
concluded that she had sustained a significant head injury. The Child was transferred to
British Columbia Children’s Hospital.


[5] At Children’s Hospital, the Child was examined by Dr. Nita Jain, who is a
Pediatrician and Child Abuse Specialist. Dr. Jain noted bruising on the Child as well as
a burn to the Child’s genital area. A second CT Scan was taken of the Child’s head and
the results indicated brain damage that was incompatible with life. On April 10, 2005,

the Child was declared brain dead but was kept on life support until her mother could
return 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 autopsy
on April 19, 2005 and concluded that the cause of death was “blunt force trauma” to the
head. Dr. Jain also provided an opinion. Her opinion was that the head injury was
inconsistent with the explanation provided by Ms. Rahman that the Child had fallen from
her 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 care
ever since.

[8] There was a court appearance in Surrey on April 14, 2005 dealing with the
removal of the four children from the care of Ms. Rahman. Mr. Rahman wished to have
the four children returned to his care but this was not acceptable to the Director. The
brother and sister-in-law of Mr. Rahman offered to care for the four children but the
Director 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 the
application for that order was set for a first appearance on July 21, 2005. The
application was opposed and the parties attended mediation which did not resolve the
situation.

[10] On October 20, 2005, Ms. Rahman was arrested and charged with manslaughter
in 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 Director
which was scheduled for November, 2006.

[11] The second mediation occurred in December, 2006 and January, 2007. As a
result of that mediation, a separate residence for Ms. Rahman was obtained,


Mr. Rahman commenced a program entitled “Family Strengthening and Intervention
Program”, and the four children commenced unsupervised visits with Mr. Rahman and
his parents at the Rahman family home. In May, 2007, Mr. Rahman insisted that
Ms. Rahman be incorporated into the family visits.

[12] The Director then amended its application from a request for a three-month
temporary custody order to an immediate continuing custody order. The amended
application was filed with the Court on May 30, 2007.

THE CRIMINAL PROCEEDINGS

[13] Between February 4 and March 19, 2008, the criminal trial proceeded before
Grist 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 the
state of Virginia and a Clinical Associate Professor at Georgetown University and
George 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 evidence
adduced before him and made the following findings: (a) the Child fell from a chair in
the 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) the
Child showed bruising to her left upper arm and torso as well as her forehead and above
her right ear; (e) the Crown’s case was insufficient to prove an assault upon the Child as
the only reasonable inference to be drawn from the evidence; (f) each of the Crown’s
doctors who opined as to the cause of death stated that the Child would not be capable
of sitting at a table and eating after sustaining her injury; (g) the Crown’s medical
evidence contained significant inconsistencies including different views regarding the
cause of death: Dr. Straathof concluded the Child most likely died from a blunt force
trauma; Dr. Poskitt did not agree that blunt force trauma could cause the bleeding seen
in the brain of the Child; (h) Ms. Rahman sought appropriate medical care for the Child


while the Child was in her care and when she had transportation available to her; (i) the
bruise on the Child’s upper arm was not indicative of the very forcible repeated shaking
the Crown attributed to it; (j) there was evidence that Ms. Rahman was taking proper
care of the Child; (k) the evidence of Dr. Uscinski provided a plausible alternative

explanation for the death of the Child; and (l) Grist J. was unable to discount either of
Dr. Uscinski’s or Dr. Poskitt’s opinion over the other, and determined that neither
doctor’s evidence could be rejected.

CUSTODY ORDER PROCEEDINGS

[15] The trial relating to the application of the Director for an immediate Continuing
Custody Order (“Protection Hearing”) commenced before Borowicz P.C.J. on June 17,
2008, approximately three years following the removal of the four children from the
Rahman 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 and
Dr. Poskitt. In response, Ms. Rahman called Dr. Uscinski.

[16] For the purposes of the trial before Borowicz P.C.J., the Director admitted the
following 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. 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;

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;


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

found the four children in need of protection and granted the Director an immediate
Continuing Custody Order. The plan for the care of the four children is to place them for
adoption.

ISSUES ON APPEAL

[18] Mr. Rahman describes the issues on appeal as follows: (a) the Learned Trial
Judge erred in finding that the Child was physically harmed by Ms. Rahman; (b) the
Learned Trial Judge erred by shifting the burden of proof from the Director to the two
Appellants; (c) the Learned Trial Judge erred by finding the four children in need of
protection from Mr. Rahman; (d) the Reasons for Judgment of the Learned Trial Judge
are inadequate and prevent appellate review; and (e) the Learned Trial Judge erred by
failing to properly apply the relevant provisions of the Act.

[19] Ms. Rahman describes the issues on appeal as follows: (a) the Learned Trial
Judge erred at law by failing to give adequate reasons for judgment; (b) the Learned
Trial Judge erred at law in coming to a different conclusion than Mr. Justice Grist
concerning whether or not the Child suffered physical harm at the hands of
Ms. Rahman; (c) the Learned Trial Judge erred at law by reaching unreasonable
conclusions, and conclusions based on the absence of evidence, insufficient evidence,
or a misapprehension of the evidence; (d) the Learned Trial Judge erred at law by
making unreasonable findings regarding the creditability of Mr. and Ms. Rahman as
witnesses, and in using those findings to support unreasonable conclusions; (e) the
Learned Trial Judge erred at law in finding that the four children were in need of
protection when there was no evidence, or alternatively, insufficient evidence, that
Ms. Rahman posed any risk of harm to the four children; (f) the Learned Trial Judge
erred at law by ordering that the four children be placed in the Continuing Custody of the
Director 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 were
returned to the custody of Ms. Rahman; (g) the Learned Trial Judge erred at law in


failing 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 the
Continuing Custody of the Director; (h) the Learned Trial Judge erred at law in failing to
properly apply the guiding principles as set out in section 2 of the Act and in particular, in

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 protection
proceedings the benefit of the doubt must go to the children who may be at risk and
thereby wrongfully shifted the burden of proof.

[20] The Director describes the issues on appeal as follows: (a) the issue for the
Learned Trial Judge to determine was not whether the Child was physically harmed by
Ms. Rahman but whether or not, having regard to the safety and well being of the four
children, the four children should be returned to their parents or be placed in the
Continuing Custody of the Director; (b) the Learned Trial Judge applied the correct
burden of proof; (c) the Learned Trial Judge was correct in finding the four children in
need of protection; (d) the Learned Trial Judge provided sufficient reasons for judgment
for the review of her decision by an appellate court; and (e) the Learned Trial Judge
properly 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), 48
B.C.L.R. (3d) 106 (C.A.) at para. 26. The standard of proof is the civil standard of proof
being 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 evidence
before the Learned Trial Judge and a substitution of a judgment. The decision cannot
be set aside unless I find that the Learned Trial Judge made an error at law, erred in
principle, disregarded significant material evidence that there was a lack of factual
support 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.) at
para. 23; A.L. v. British Columbia (Director of Child, Family and Community Service),


[2008] B.C.J. No. 1177 (S.C.); and D.M.G. v. British Columbia (Director of Family and
Child Services), [2007] B.C.J. No. 682 (S.C.).

[23] In D.M.G., Russell J. stated in this regard:

Before commencing a review of the trial judge's 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 infant's 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 judge's unique role in observing the witnesses and
in society's 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 judge's interpretation of the evidence
as a whole (Housen v. Nikolaisen, supra, at para. 36). I also agree with the
Director's 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)


APPLICABLE 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-

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 child's views should be taken into account when decisions relating
to a child are made;
(e) kinship ties and a child's 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 child's best interests,
including for example:
(a) the child's safety;
(b) the child's physical and emotional needs and level of development;
(c) the importance of continuity in the child's 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 child's cultural, racial, linguistic and religious heritage;
(f) the child's 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
child's 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


(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

(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 child's 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 director's 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 director's 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 the
Learned Trial Judge, I will not deal with the other issues which Mr. Rahman and
Ms. Rahman believe are raised on these appeals.

[26] If the reasons for judgment of a trial judge do not permit appellant review, that is
an error at law. In D.M.G., supra, Russell J. concluded: “The appellant must
demonstrate not only that the reasons are inadequate, but also that they prevent
appellant review.” (at para. 54). Examples given in this regard included where the Trial
Judge has failed to address and resolve confusing or conflicting evidence, or where the
Trial Judge has failed to explain the rejection of testimony on a critical point. In Gibson


v. Insurance Corp. of British Columbia (2008), 80 B.C.L.R. (4th) 232 (C.A.), the Court
ordered 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

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 judge's 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 judge's 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


judge's 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 judge's

reasons provide the equivalent of a jury instruction.
8. The trial judge's 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 judge's 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 judge's 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 in
a civil case where the Court is called upon to consider the adequacy of the reasons of
the 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
judge's 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,


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.

(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 judge's 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
case's 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 judge's 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 the
evidence and the more complex and unsettled the context, the higher the duty on the
trial judge to give detailed reasons. It is submitted that there must be proportionality
between the degree of detail in the reasons and the nature of the evidence and issues in
the case. I agree.

[32] Here, there was complicated and conflicting medical evidence against the
backdrop of a purely circumstantial case. I am satisfied that the duty on the Learned
Trial Judge was very high to give detailed reasons. Even if the onus on the Learned
Trial Judge was not higher than usual, I am satisfied that the insufficient reasons were
so deficient that meaningful appellant review is impossible.

[33] The Reasons for Judgment included the following paragraphs:


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,

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 opinions
they advanced. It is not clear how the Learned Trial Judge went from the observation
that the expert medical evidence analysis “remains inconclusive” to the finding that what
occurred 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 the
Learned Trial Judge rejected the evidence that there were accidental causes for the
injuries of the Child. The Reasons for Judgement did not deal with the testimony of
each of the medical experts who provided opinions on behalf of the Director that it would
not have been possible for the Child to sit at the table and eat breakfast after sustaining
the injuries she did. There was no attempt to resolve these opinions with the other
evidence before the Court that the Child was eating breakfast prior to her fall and that
pieces of chewed waffle were removed from her mouth and throat by the neighbour of
Ms. Rahman.

[35] There is a complete failure to either review or analyze any of the expert
evidence. The failure of the Learned Trial Judge to explain how she arrived at the
determination that there had been severe, sustained and unexplained child abuse is a
critical omission. It is that finding which is at the core of the decision that the four
children are in continuing need of protection and that they should not be returned to
Mr. Rahman and Ms. Rahman. Given the critical nature of this conclusion, some


analysis and assessment of the conflicting evidence was required. No such analysis
and 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

benefit of the findings of the Learned Trial Judge, there is no indication of the reasoning
process, the evidentiary analysis, or a discussion of the acceptance and rejection of the
evidence of the numerous experts. There can be no real understanding by Mr. Rahman
or Ms. Rahman of why their four children will not be returned to them or why the
Learned Trial Judge was of the opinion that: “… there remains a significant unresolved
risk 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 to
them.” (at para. 26 of the Reasons for Judgment). There are also a number of other
failures by the Learned Trial Judge to set out the process of arriving at the decision
reached.

[37] In paragraph 13 of the Reasons for Judgment, the Learned Trial Judge comes to
the conclusion that Mr. Rahman and Ms. Rahman refused to cooperate or participate in
any transitional plans or programs that restricted or supervised the access of
Ms. Rahman to the four children. However, the Learned Trial Judge does not explain
how or why she rejects the evidence that Mr. Rahman and Ms. Rahman were prepared
to obtain a separate residence for Ms. Rahman, that Mr. Rahman participated in and
completed the “Family Strengthening and Intervention Program”, and that a gradual
reintegration of Ms. Rahman into the lives of the four children while ensuring that
Ms. Rahman’s contact with the four children was initially supervised was proposed.

[38] In paragraph 19 of the Reasons for Judgment, the Learned Trial Judge
comments on some concerns she had relating to the credibility of Mr. Rahman but does
not address the specific evidence of Mr. Rahman and the fact that there was no
evidence to challenge the evidence of Mr. Rahman regarding the statement that his
family was “the most educated family in Pakistan”, regarding his work and school
history, and regarding his purported medical knowledge.

[39] At paragraph 22 of the Reasons for Judgment, the Learned Trial Judge states
that 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


the effect that she called her father who is a doctor in Pakistan to get advice regarding
what to do regarding the burn, that she applied the cream that was recommended by her
father, and that she intended to follow the advice of her father that she should take the
Child to a doctor when she could by taking the Child to a doctor in a few days when

transportation became available and when she had a pre-arranged doctor’s appointment
for her son.

[40] At paragraph 23 of the Reasons for Judgment, the Learned Trial Judge states
that “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 uncontradicted
evidence 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, the
Learned 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 not
provide an analysis as to how she concludes there is such an unresolved risk where the
medical 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 having
regard to the evidence as a whole, I have reached the conclusion that the Reasons for
Judgment 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 be
applied as it is only the conclusions of the Learned Trial Judge which are set out in the
Reasons for Judgment, and not the reasoning process, the analysis of the evidence, or
any discussion of the acceptance and rejection of the evidence that was before the
Learned Trial Judge. As stated in the decision in Gibson, supra, the conclusions of the
Learned 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 be
allowed. In the circumstances, a new trial is ordered.


_________ “Burnyeat J.”_______________
The Honourable Mr. Justice Burnyeat


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