It’s one of the most alarming family justice cases in Canadian history: A high-conflict custody battle with allegations of sexual abuse by a father and incompetence by B.C.’s Ministry of Children and Family Development (MCFD) is raising serious questions about how our system deals with families at their breaking point.
In a five-part CKNW special investigation, reporter Charmaine de Silva takes an in-depth look at how a judge, a lawyer and our system, in general, led to justice being derailed.
The stunning reversal of a shocking B.C. Supreme Court decision is raising questions about a judge’s ability to do his job.
In August, the B.C. Court of Appeal threw out lower court decision from Justice Paul Walker that found a father had sexually abused his kids, and that the children’s ministry allowed it to happen.
The mother, J.P., and father, B.G., in the case cannot be named due to a publication ban.
It found the judge relied on the evidence of an expert witness, who misrepresented her qualifications, to not only tear four children away from their father but malign the reputations of psychologists, social workers and the children’s ministry itself.
Now, a CKNW special investigation reveals the case was overseen by a judge whose decisions are overturned more often than is normal in B.C.
Timeline: The longest child welfare civil litigation in Canada’s history
Justice Paul Walker
Appellate courts don’t re-try the facts of a case — they’re concerned with whether the law was applied correctly in lower courts.
But CKNW found four B.C. Court of Appeal decisions before this one that took issue with the judge who presided over it Justice Paul Walker’s fact-finding ability.
The first is a case from 2010, in which the Court of Appeal suggested that Justice Walker may have misinterpreted a comment and could have erred in a conclusion he made.
But the higher court was more pointed in 2012, when then-Justice Kenneth Smith examined Justice Walker’s handling of a dispute over a family trust.
“The judge did not find the facts necessary to decide this issue,” he wrote.
The appellate court also took issue with Justice Walker’s fact-finding in another 2012 case,
“The trial judge’s finding… was unsupported by the evidence and must be set aside,” Justice Mary Newbury wrote in that ruling.
Then last year, Justice John Savage raised issues with Justice Walker’s fact-finding, stating, “the evidence simply does not support this finding.”
These decisions were all written by different judges in different cases. All of them raised concerns about how Justice Walker came to his conclusions.
But how often does the B.C. Court of Appeal find that trial judges have failed in their roles as “triers of fact”?
CKNW reviewed the B.C. Court of Appeal’s 100 most recent decisions, finding just five that disputed the trial judge’s findings — one of them was J.P. and B.G.’s case.
Justice Walker’s track record in appellate court also stands out compared to his colleagues.
In 2016, 41 per cent of the 286 civil cases heard by the higher court were successful in their appeals.
The average since 2008, when Justice Walker joined the bench, is 43.2 per cent.
In 68 per cent of Justice Walker’s civil cases that have reached the higher court, the decisions were either reversed or new trials were ordered.
Trial vs. appeal
Some appeals go to the heart of a judge’s role in the justice system.
One of them was the B.C. Court of Appeal’s August decision in the case of J.P., her ex-husband B.G., their kids and the children’s ministry.
LISTEN: CKNW’s Charmaine De Silva discusses part 2 of her investigation
To explain its significance, however, one must understand the roles of trial and appeal courts in the Canadian system.
Trial courts determine the facts of a case, said Toby Goldbach, an assistant professor at UBC’s Allard School of Law.
“You have the judge or the jury who are hearing witness testimony, hearing live evidence, seeing evidence, and they have all of that information before them, and they are the trier of facts and the judge will be the trier of the law,” he said.
Appeal courts have a very different job: they assess whether the law was correctly interpreted and applied, but they don’t re-try the facts of a case.
“The court of appeal is reading written materials that are prepared by lawyers, and then they’re just hearing the lawyers in front of them in court,” Goldbach said.
The B.C. Court of Appeal’s decision to overturn the B.C. Supreme Court ruling in J.P. v British Columbia (Children and Family Development) hinged on a question of expert evidence.
In its ruling, the B.C. Court of Appeal found that Justice Walker made an error of law in the way he fulfilled his “gatekeeper” role when it comes to evidence.
As gatekeeper, it was his job to assess the costs and benefits of allowing opinion evidence. It’s a role that is crucial to a fair trial, said Michelle Lawrence, an assistant professor in the Faculty of Law at the University of Victoria.
The “gatekeeper” must consider a number of factors:
- The opinion’s reliability
- The significance of the issue upon which an expert is offering an opinion
- The time spent on expert evidence
- The risk of prejudice to parties in the case
“This is a space where a judge has to exercise discretion. It has to be case-specific. It has to be fact-specific. And if the judge feels like those costs outweigh the benefits, the ruling has to be against admissibility,” Lawrence said.
In this case, the Court of Appeal tossed a number of Walker’s findings because it determined that he didn’t fulfil that important role.
A fraudulent expert witness
Chief among those findings was that B.G., the father, had supposedly sexually abused his youngest child and his older children — the higher court said that finding was tainted by a fraudulent expert witness.
It also dismissed Justice Walker’s finding of misfeasance in public office against an MCFD social worker. This finding, the court said, was based on procedural unfairness.
In her written reasons for judgment, B.C. Court of Appeal Justice Daphne Smith blasted Justice Walker for failing to fulfil one of a judge’s basic jobs:
Later in the judgment, she highlighted the importance of the judge’s role as a gatekeeper of expert opinion:
Ultimately, she ruled that Walker’s treatment of the “expert” witness led to a “fundamentally unfair trial”:
The questionable evidence at the centre of the appeal came from Claire Reeves, a self-described “expert” in child sex abuse.
Reeves, who is best-known for appearances on daytime talk programs like The Montel Williams Show, was introduced as a witness after J.P., the mother, found her online.
But the Court of Appeal found that she received her credentials from a “diploma mill,” an institution that offers questionable education.
Reeves also never interviewed the children or the father in the case, yet she was allowed to give expert testimony.
The admission of her evidence amounted to a “miscarriage of justice,” the B.C. Court of Appeal ruled:
Critically, Reeves’ evidence shaped the outcome of not only one trial, but two.
The effect of Reeves’ evidence was amplified because Justice Walker didn’t just oversee the family trial that addressed the custody of the children.
He also decided to oversee a subsequent civil suit that J.P. launched against the provincial government.
Justice Walker allowed much of the evidence from the family trial to be rolled into the civil trial — and the appeal court slammed him for it.
The judge should have recused himself to avoid any “appearance of unfairness”:
But why would a judge choose to oversee both trials?
The Canadian system pressures judges to be as efficient as possible, said Trevor Farrow, chair of the Canadian Forum on Civil Justice.
“When there are matters involving similar parties, similar issues or related issues, there is certainly a push to at least consider whether those matters can be heard together, whether they can be joined, or somehow being heard in a more efficient matter,” Farrow said.
WATCH: The Supreme Court is going after backlogs in Canada’s Courts
But in the case of J.P. and B.G., that push for efficiency appeared to have backfired, Farrow said.
“Because of some evidentiary rulings that were found to be inappropriate by the court of appeal, those rulings tainted all of the hearings in the proceedings,” he said.
But Farrow doesn’t necessarily see the push for efficiency as a bad thing, despite a “problematic” result in this case.
Other experts warn that a push for efficiency carries costs.
“Judicial efficiency, judicial economy, we hear everything in one time, one-stop shop, someone who knows all the parties already,” said UBC assistant law professor Erez Aloni.
“There is a judge who hears everything together, so maybe this is less than ideal, because there are fewer eyes that look for mistakes.”
Aloni argued that Justice Walker’s role as gatekeeper was even more crucial in this case because B.G., the father, didn’t have his own lawyer.
Judging the judges
Evaluating a judge’s performance is complicated and controversial.
In part, that’s because judicial independence and impartiality are so important for the system’s integrity, said Trevor Farrow of Osgoode Hall.
“Judges are human and judges make mistakes and I think we know that, we all do,” he said.
But that’s why there are appellate courts, to correct situations in which judge’s intentions were correct but the outcomes were wrong, Farrow added.
“If we’ve got a judge who continues to make mistakes, perhaps different mistakes, or the same mistake over and over, I think that should raise concerns, and judges should not be immune from some form [of] evaluation,” he said.
The CJC has been used in several recent high-profile cases.
But that system has challenges of its own. It’s complaint-based, meaning many who pass through the courts are unlikely to avail themselves of it.
Disciplinary cases like that former Federal Court justice Robin Camp – who resigned after the CJC recommended removal over controversial comments in a sex assault case – were brought forward by academics, not trial participants.
More recently, Quebec’s justice minister filed a complaint against a judge who suggested a 17-year-old victim of sexual assault may have been “flattered” by interest shown in her by the cab driver who assaulted her, because she was “overweight, but has a pretty face.”
There are no reported CJC decisions concerning Justice Walker.
Former judge Wally Oppal has sat on both the B.C. Supreme Court and the B.C. Court of Appeal. He warned that assessing a justice’s performance on appeal is difficult.
“The Court of Appeal looks at these with different eyes, at a different point of time, with different judges,” he said.
“And that’s to ensure that if there are errors made in the trial court, the court of appeal would deal with it.”
Oppal said a case of his own was overturned; he said it’s important for judges not to take the situation personally and to reflect on the decision of the higher court.
It is also important to consider the way each case is heard before jumping to conclusions, even if a judge has had several cases overturned, he added.
“Each case is decided separately, and it may be entirely coincidental that a particular trial judge is being overruled by the appeal court on matters.”
The Supreme Court of Canada has yet to decide whether it will hear this case — which it could, and also side with Walker.
The judicial branch typically does not comment on stories about judges.
However, we did reach out to the Supreme Court of B.C. on behalf of Justice Walker and Chief Justice Christopher Hinkson.
It declined to comment.