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M.H. v. B.S., 2019 BCPC 17 (CanLII)

Date:
2019-02-05
File number:
F60385
Citation:
M.H. v. B.S., 2019 BCPC 17 (CanLII), <https://canlii.ca/t/hxgwf>, retrieved on 2024-03-29

Citation:

M.H. v. B.S.

 

2019 BCPC 17

Date:

20190205

File No:

F60385

Registry:

Nanaimo

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

M. H.

APPLICANT

 

AND:

B. S.

RESPONDENT

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE GOUGE



 

 

 

Appearing in person:

Ms. H

Counsel for the Respondent:

D. Young

Counsel for the Director of Forensic Psychiatric Services:

A. Harlingten

Place of Hearing:

Nanaimo, B.C.

Date of Hearing:

January 28, 2019

Date of Judgment:

February 5, 2019


The Issue

[1]           The Director of Forensic Psychiatric Services (“the Director”) applies to set aside an order which I made on August 15, 2018.  That order required the Director to carry out a psychiatric assessment of Mr. S and to report the result of that assessment to the parties and to the court.  The Director submits that I had no jurisdiction to make that order.

Background

[2]           The Director is the chief executive of the Forensic Psychiatric Services Commission (“the Commission”) and is appointed under the authority of sections 4 and 7 of the Forensic Psychiatry Act RSBC 1996, c 156.

[3]           Ms. H and Mr. S are the parents of one child, a boy who will celebrate his 10th birthday [omitted for publication].  Ms. H and Mr. S have been engaged in highly confrontational court proceedings on the issues of parenting time and child support since his birth.  Ms. H alleges that Mr. S is mentally unstable and, for that reason, opposes his application for parenting time.  Mr. S asserts that he is in good mental health.  A psychiatric or psychological assessment of Mr. S would be helpful in devising a parenting regime suitable to the child’s needs.

[4]           On June 15, 2016, an incident occurred, as a result of which Mr. S was charged with sexual assault of a young woman.  On March 21, 2018, with the consent of Crown counsel, Mr. S entered a guilty plea to the lesser included offence of common assault, for which he received a conditional discharge and 12 months’ probation.  His probation order included the following term:

Having consented, you must … at the direction of your probation officer report to the Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment.

[5]           The parties appeared before me on August 15, 2018.  Ms. Young, counsel for Mr. S, told me that:

Mr. S did make attempts to get a psychiatric assessment.  One through the Ministry of Child & Family Development, requesting a Family Services file be opened.  They refused to fund any court-ordered assessment. 

*   *   *

Mr. S also attempted to receive one through his probation officer, as he … did not have the money to retain one privately.  I do have a letter from his probation officer confirming that Forensics would only do an assessment if they were court-ordered to do so.

Mr. S’s probation officer is Mr. Pierre Murray.  I telephoned him in open court and the following exchange ensued:

The Court:

It is alleged in this proceeding that Mr. S is in poor mental health … and so it is said that he ought not to have unsupervised visits with his son.  He, of course, says that he’s perfectly well and there’s no problem.  …  I had been hoping that he could have an independent psychiatric assessment … but he can’t afford one, his G.P. won’t refer him for one, and I gather that Forensics don’t want to see him.

Mr. Murray:

Forensics had mentioned to me when I spoke with them, Your Honour, that they can’t do a psychological report unless it’s court-ordered, in the sense if it’s a psych report ordered by the court.  …  Otherwise, Mr. S, like you had already mentioned, has to pay out-of-pocket for it on his own.

The Court:

Right.  It’s being suggested that I should order Forensics to prepare a report.

Mr. Murray:

You certainly could, Your Honour.  I mean, you could … certainly request a psychological report be done on behalf of Mr. S.  …  And then I could make that referral for Your Honour to the Forensics clinic here in Nanaimo.

The Court:

Well, that would be exceptionally helpful to me.  So, shall I just make that order now?

Mr. Murray:

You could.  Certainly, Your Honour.

The Court:

And it would be an order for a psychiatric assessment and report to be prepared by Forensic Psychiatric Services?

Mr. Murray:

Yes, Your Honour.

The Court:

Very well, sir.  I will make that order.

Mr. Murray:

OK

The Court:

And we we’ll have it drawn up and sent over to you.

Mr. Murray:

OK, perfect.

Jurisdiction to Make the Assessment Order

[6]           Ms. Harlingten, counsel for the Director points out, correctly, that jurisdiction cannot be conferred by consent: Goertz v. College of Physicians & Surgeons of Saskatchewan 1989 CanLII 4748 (SK CA), [1989] 6 WWR 11 @ paragraph 21.  She submits that:

a.   under the terms of its governing statute, the mandate of the Forensic Services Commission is limited to criminal matters; and

b.   there is no statute empowering this court to order the Commission to perform a psychiatric assessment for use in a family law proceeding.

[7]           Ms. Harlingten’s first point is founded on section 5 of the Forensic Psychiatry Act:

The functions of the commission are:

(a) to provide forensic psychiatric services to the courts in British Columbia and to give expert forensic psychiatric evidence;

(b) to provide forensic psychiatric services for

(i) accused persons remanded for psychiatric examination,

(ii) persons held at the direction of the Lieutenant Governor in Council under the Criminal Code or the Mental Health Act,

(iii) persons in need of psychiatric care or assessment while in custody, and

(iv) persons held under a court order;

(c) to provide in-patient and outpatient treatment for persons referred to in paragraph (b) and other persons the minister may designate;

(d) to plan, organize and conduct, either alone or with other persons and organizations,

(i) research respecting the diagnosis, treatment and care of forensic psychiatric cases, and

(ii) educational programs respecting the diagnosis, treatment and care of forensic psychiatric cases;

(e) to consult with ministries, departments and agencies of the federal and provincial governments, and municipal departments or agencies, mental health centres and other persons or organizations about the advancement of the objectives set out in this section;

(f) to perform other duties, responsibilities, research and educational programs respecting forensic psychiatry as directed by the Lieutenant Governor in Council.

[8]           Ms. Harlingten says that the word “forensic” refers only to criminal proceedings, and that a psychiatric assessment for use in a family law proceeding is not a “forensic” assessment.  For the reasons given below, I disagree.

[9]           There has been some recent criticism of the rule that, in general, the words of a statute are to be construed according to their meaning in ordinary English usage: Sullivan on the Construction of Statutes, chapter 2.  Despite that criticism, I continue to think it a salutary rule.  Legislators, most of whom (fortunately) are not lawyers, should be able to understand what they are voting for.  We cannot expect citizens to comply with the statutes unless the statutes are written in language which the ordinary citizen can understand.

[10]        “Forensic” is defined by the Canadian Oxford Dictionary as “… of or used in connection with courts of law, esp. in relation to crime detection …”.  In this context, “esp.” means “especially”.  That definition was adopted in Bell Canada Ltd. v. Wesley [2018] FCJ No. 150; 2018 FC 66 @ paragraph 37.  I construe that definition to mean that, while the most common usage of “forensic” is in relation to crime, the word is not limited to criminal matters, and may properly be used in relation to any court proceeding.  For example, an accountant retained to provide opinion evidence in a civil case is commonly referred to as a “… forensic accountant …”: Taylor & Associates v. Louis Bull Tribe #439 [2006] AJ No. 1325; 2006 ABQB 698 @ paragraphs 40 – 42; Treaty Group Inc. v. Drake International Inc 2005 CanLII 45406 (ON SC), [2005] OJ No. 5232 @ paragraph 47; Hansen v. Tilley [2010] BCJ No. 2112; 2010 BCCA 482 @ paragraph 17; Bank of China v. Fan [2015] BCJ No. 703; 2015 BCSC 590 @ paragraphs 33 - 34. 

[11]        That view is supported by Jowitt’s Dictionary of English Law (2nd ed), which provides two instructive definitions:

Forensic

belonging to courts or justice

Forensic medicine

Medical jurisprudence; legal medicine, that science which teaches the application of every branch of medical knowledge to the purposes of the law ….  Forensic medicine is occasionally required in cases of a civil nature, such as questions of insanity … or cases of nullity of marriage or nuisances injurious to health.  Its most important function, however, is in criminal trials ….

[12]        Because the question is how ordinary people use or understand the word, it is useful to look at sources other than dictionaries and jurisprudence.  For example, Psychology Today magazine describes forensic psychologists in the following terms:

Forensic psychologists are most commonly licensed psychologists who specialize in applying psychological knowledge to legal matters, both in criminal and civil arenas.

The Canadian Psychology Association offers the following comment on its website:

Forensic social work can be defined as the application of social work as it directly relates to issues involving the legal and law systems both criminally and civilly.

The following passage appears on the website of the American Academy of Forensic Sciences under the heading “What is Forensic Science?”:

The word forensic comes from the Latin word forensis:  public, to the forum or public discussion; argumentative, rhetorical, belonging to debate or discussion.  A relevant, modern definition of forensic is:  relating to, used in, or suitable to a court of law (Merriam Webster Dictionary, www.merriam-webster.com).  Any science used for the purposes of the law is a forensic science.

The forensic sciences are used around the world to resolve civil disputes, to justly enforce criminal laws and government regulations, and to protect public health.  Forensic scientists may be involved anytime an objective, scientific analysis is needed to find the truth and to seek justice in a legal proceeding.  Early on, forensic science became identified with law enforcement and the prosecution of criminal cases — an image enhanced by books, television, and movies.  This is misleading because forensic science is objective, unbiased, and applies equally to either side of any criminal, civil, or other legal matter.

[13]        Subsection 5(a) of the Forensic Psychiatry Act provides the Commission with a mandate “… to provide forensic psychiatric services to the courts in British Columbia and to give expert forensic psychiatric evidence …”.  As I construe the statute, that mandate is not limited to criminal matters.

[14]        Ms. Harlingten’s second point is founded upon the proposition that the Commission is not a “person”, with the consequence that section 211 of the Family Law Act, SBC 2011, c 25 does not authorize the order which I made. 

[15]        Section 211 provides (underlining added):

(1)  A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:

*   *   *

(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2)  A person appointed under subsection (1)

(a) must be a family justice counsellor, a social worker or another person approved by the court

*   *   *

(4)  A person who carries out an assessment under this section must

(a) prepare a report respecting the results of the assessment,

(b) unless the court orders otherwise, give a copy of the report to each party, and

(c) give a copy of the report to the court.

[16]        Section 2(1) of the Forensic Psychiatry Act provides (underlining added):

The Forensic Psychiatric Services Commission is continued as a corporation consisting of at least 5 members appointed by the Lieutenant Governor in Council to hold office during pleasure.

“Person” is defined by section 29 of the Interpretation Act RSBC 1996, c 238 as follows (underlining added):

"person" includes a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law.

For that reason, the Commission is a “person”, and may be appointed under section 211(1) of the Family Law Act.

The Constitutional Issue

[17]        Ms. Harlingten points out that the Commission has a limited budget.  She relies upon the constitutional principle that a court has no authority to order the government to spend money.  The leading authority is Auckland Harbour Board v. The King [1924] AC 318.  The principle has often been reaffirmed in the Canadian jurisprudence: Canada (Attorney-General) v. Savard 1996 CanLII 3294 (YK CA), [1996] YJ No. 4; 106 CCC (3d) 130; R v. Gray [2002] BCJ No. 1989; 2002 BCSC 1192; 169 CCC (3d) 194.  The principle was succinctly stated in Auckland Harbour Board as follows (underlining added):

… no money can be taken out of the Consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself ….

[18]        In practice, most assessments and reports ordered under section 211 of the Family Law Act are conducted and completed by family justice counsellors employed by the Ministry of the Attorney-General.  The Attorney-General provides those services without charge to the litigants.  Ms. Harlingten’s submission would require me to conclude that, by section 211 of the Family Law Act, the Legislature intended that I should have the authority to direct the Attorney-General to incur staffing costs to conduct assessments and prepare reports, but that I should not have authority to direct the Commission to do the same thing.  There is simply nothing in the statute to support such an inference.  On the contrary, the phrases “… family justice counsellor …” and “… another person …” appear with equal prominence in section 211(2)(a).  I do not think that the inference follows by necessary implication.  Many government employees, including social workers, family justice counsellors and police officers, often attend court in family proceedings without charge to the litigants.  In cases like this one, their evidence is commonly of great assistance. 

[19]        I am therefore of the opinion that jurisdiction to make the assessment order was conferred by s. 211 of the Family Law Act.

Jurisdiction to Set Aside the Assessment Order

[20]        I acknowledge that: (i) opinions are likely to differ respecting the issues discussed above; and (ii) it is likely that a court of higher authority will be called upon to address them.  For that reason, I think it useful to address the case on the premise that Ms. Harlingten is correct in her assertion that the assessment order should not have been made.

[21]        With limited exceptions described in R. v. Brown 2017 NBQB 188 (CanLII), [2017] NBJ No. 284; 2017 NBQB 188, I have no jurisdiction to review or set aside an order which (like the assessment order in this case) has been pronounced and entered in the Registry, unless jurisdiction to set aside or vary the order is conferred upon me by a statute.  None of the exceptions described in Brown apply in this case.  Ms. Harlingten says that jurisdiction is conferred in this case by Rule 20(4) of the Provincial Court (Family Rules) BC Reg 347/2012 (underlining added):

A judge may change, suspend or terminate an order made in the absence of a person, or made when the person failed to file a reply, if

(a) there is a good reason for changing, suspending or terminating the order, and

(b) that person applies by notice of motion to a judge under rule 12 within a reasonable time and attaches to the application an affidavit stating

(i) the reason the person did not file a reply or attend before the court when required,

(ii) the reason for any delay if there has been delay in filing the application, and

(iii) the facts that support the application.

Ms. Harlingten would be right if: (i) I had no jurisdiction to make the assessment order; and (ii) the order were made in the absence of the Commission.  However, in my opinion, the order was not made in the absence of the Commission.

[22]        Section 6(1) of the Forensic Psychiatry Act provides (underlining added):

The commission is, for all purposes, an agent of the government.

Section 29 of the Interpretation Act defines “the government” as “Her Majesty in Right of British Columbia”.  Mr. Murray is an employee of the government, and was acting in the course of his duties when he appeared by telephone in this case.  The government, represented by its agent, Mr. Murray, appeared on the application and invited me to make the assessment order.  On this application, the Commission appears as an agent of the government.  Because of section 6(1) of the Forensic Psychiatry Act, it cannot appear in any other capacity.  As a result, the present application can only be characterized as an application by the government to set aside the order which the government invited me to make.  The government, represented by its agent, Mr. Murray, was present when the assessment order was made.  That being so, Rule 20(4) does not apply, and I have no jurisdiction to set aside the assessment order.

[23]        I do not mean to suggest that the Commission is without a remedy.  If Ms. Harlingten is right in saying that I had no jurisdiction to make the assessment order, the government is entitled to apply for an order, under section 7 of the Judicial Review Procedure Act, RSBC 1996, c 241, to set aside the assessment order.  The jurisdiction to make such an order is reserved to the Supreme Court, and I say no more about it.

Disposition

[24]        The application is dismissed.

February 5, 2019

 

 

_____________________________

T. Gouge, PCJ