Trial lawyers are constantly searching for those elusive qualities of clients and witnesses which will capture the attention of the Court and result in favourable treatment by a judge or jury. Opinions on the subject are frequently based on little more than gut reactions. In the recent case of Catholic Children’s Aid Society of Toronto v. Nikesha B., Madam Justice Heather Katarynych of the Ontario Court of Justice gave a helpful summary of her observations of the mother in that case, who was facing the loss of her child to adoption as a result of her battle with mental illness. Justice Katarynych’s moving tribute included the following:
She [the mother] paid attention to her personal appearance and was unfailingly well groomed. There is a generosity of spirit about her. She presented herself throughout the trial, and in the face of difficult testimony, with great calm. She paid careful attention as the society unfolded its case against her. The only time she showed impatience and it was brief, occurred when society counsel was being particularly obtuse with her at one point in cross-examination of her. She displayed good understanding of the court’s task. She was thoroughly attentive to the witnesses, refrained from dialogue with her counsel or others when witnesses were in the midst of their testimony, refrained from body language designed to draw the courts’ attention to herself rather than the witness and was responsive to the courts’ directions. She displayed good stamina. Her own evidence was presented over the course of three days. She was articulate. Her answers to questions, whether posed by her own counsel or society counsel, were responsive and thoughtful. She displayed excellent listening ability and excellent ability to communicate her evidence, faltering only briefly when society counsel asked about the sorts of symptoms that indicated to her that her mental health was deteriorating. The question was appropriate cross-examination. It was nonetheless apparent that this concentration takes this mother to a place in her being that is quite raw.
Although Justice Katarynych decided in favour of the society, it seems to me that her words of wisdom and insight into the qualities of a good witness extend well beyond the case before her.