This case addresses whether an assessment co-authored by non-court approved and non-expert parties in its creation is admissible evidence as an expert assessment ordered under s. 54 of the Children’s Law Reform Act.
In October 2010, a judge ordered an assessment to be conducted by a Dr. Ashbourne, a licensed psychologist who worked at the Centre for Children and Families in the Justice System (the Centre) in London, Ontario.
At the start of the assessment, the parents and the Children’s Aid Society of London and Middlesex (CAS) were notified that the assessment would be conducted in a ‘team approach’ by Dr. Ashbourne and Mary Kay Arundel, a social worker from the Centre. No one – neither the parties, Dr. Ashbourne, Ms. Arundel, nor the Centre – sought court approval to authorize Centre staff to participate in the assessment.
Dr. Ashbourne and Ms. Arundel were both equally involved in the assessment process. The only task that Ms. Arundel was not equally involved in was the psychological testing as that was Dr. Ashbourne’s professional responsibility as the psychologist.
Additionally, numerous staff at the Centre contributed input to various parts of the report. These written contributions, including record reviews and interviews, were supposedly checked for accuracy by Dr. Ashbourne before being included into any draft of the report.
The writing process consisted of Ms. Arundel and Dr. Ashbourne writing different segments at different times, depending on who was less busy. The draft would then be shared with the other for editing, and prior drafts would be deleted. The final assessment report was signed by both Dr. Ashbourne and Ms. Arundel.
Considering the substantial yet unclear amount of input by parties other than the court appointed assessor, Justice Harper is tasked with determining whether the report is an assessment under s. 54 of the CLRA. He must also decide whether Dr. Ashbourne should be allowed to testify as an expert given the above circumstances.
Section 54 Assessments & Expert Evidence
Section 54 of the CLRA allows a court to order a child, a parent of the child, or any other person who is not a foster parent who plans to participate in the care, custody or access of the child, to undergo an assessment by a qualified and court appointed expert. The court must be satisfied that the appointed assessor is sufficiently qualified to express opinions that will be used as evidence. While the parties can suggest their choice of expert, the judge has the final determination of an appointment after an extensive vetting process.
In reviewing the established principles of expert evidence, Justice Harper notes the important role of judicial gate-keeping functions with regards to expert testimony. Judges are crucial in protecting the legal system from unreliable and flawed evidence. In R v Mohan, Justice Sopinka laid out four criteria to determine whether evidence can be admitted as expert testimony:
- Necessity in assisting the trier of fact;
- The absence of any exclusionary rule; and
- A properly qualified expert
Additionally, according to Children’s Aid Society of Algoma v L. (S.), if specialized knowledge will assist the judge to understand the evidence or a fact in issue, a witness who qualifies as an expert by their knowledge, skill, experience or training may testify by way of opinion. This expert must possess special knowledge and experience beyond that of the judge, and their testimony is only admissible if it is needed to allow a judge to make sense of the evidence.
Admissibility of the Report
In the end, Dr. Ashbourne was the appointed assessor whereas Ms. Arundel and the Centre staff were not. Ms. Arundel was not an expert and was involved without consulting or vetting with the court.
The fact that the assessment process, opinion formation and written expressions of opinions were done jointly and equally with a non-expert was of deep concern as the formulation of expert and non-expert opinions cannot be segregated. In a melting pot of ideas, it is not possible to determine how the opinions given in the report were arrived at. This is true despite Dr. Ashbourne’s claims that he only signed off on input he agreed with.
A collage of different people’s input, editing, and unclear contributions is far from helpful for a judge as the court cannot be certain whether the expert opinions it might rely upon were formed without outside influence.
Ms. Arundel and the staff of the Centre should have identified themselves to the court and the parties in advanced for a judge to determine whether their involvement in the assessment process was permissible. Merely inferring that the Centre would be involved in the assessment by the fact of Dr. Ashbourne’s affiliation was insufficient.
Accordingly, the report was deemed inadmissible due to the irrevocable comingling of expert and non-expert opinions. For the same reasons, Dr. Ashbourne was not permitted to testify despite being the appointed assessor.