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Speech in Senate Chamber: Senator Cools speaks to her bill, Bill S-12, An Act to amend the Criminal Code (abuse of process), regarding the use of false allegations by legal counsel.

Hon. Anne C. Cools moved second reading of Bill S-12, to amend the Criminal Code (abuse of process).

She said: Honourable senators, I rise to speak to second reading of my Bill S-12, to amend the Criminal Code (abuse of process). Bill S-12 had been Bill S-4 in the last Parliament, and, having passed second reading unanimously, was in committee for examination when Parliament was dissolved last April for the federal election. Bill S-12 will amend Canada's Criminal Code Part IV, Offences Against Administration of Law and Justice, to make it an offence for lawyers in judicial proceedings to:

(a) make public statements outside the tribunal that are known by counsel to be false or that counsel failed to take reasonable measures to ascertain were false;

(b) institute or proceed with proceedings known by counsel to be brought primarily to intimidate or injure another person; or

(c) knowingly to deceive or participate in deceiving the tribunal or to rely on false, deceptive, exaggerated or inflammatory documents.

Honourable senators, Bill S-12 is my parliamentary response to a heart of darkness that has grown up in our midst recently and very swiftly. It is the mischief, deceit, and fraud perpetrated upon the courts as certain barristers deploy false allegations within judicial proceedings. The mischief is that certain barristers use false allegations as an instrument of injury to gain an advantage for their clients in a legal dispute while relying on their barristers' privilege to shield them from any criminal or civil liability for their actions.

A prevalent form of false allegations is the false accusation of child sexual abuse where one parent falsely alleges that the other parent has sexually abused the child. In one particular Ontario case, that of Anglican minister Reverend Dorian Baxter, Mr. Justice Somers referred to the use of false accusations as the weapon of choice in child custody proceedings.

My Bill S-12 was inspired by the questionable behaviour of certain barristers and the Law Society's hesitation to confront the problem. Bill S-12 is a response to the Supreme Court of Canada's judgment in Casey Hill v. Church of Scientology of Toronto. Troubled by this case and Reverend Baxter's case, I studied the matter carefully, and, with this country's finest legislative drafter, developed my bill. I have spoken on these matters often in this chamber, including July 13, 1995 on the Ontario Civil Justice Review Report and the Reverend Baxter case, and on November 23, 1995 on the Hill v. Scientology decision, and on March 26, 1996, and October 28, 1996 on Bill S-4 itself.

The fundamental issues in Bill S-12 are the conduct of court proceedings and the bending of practice by certain barristers. The larger issues are, first, lawyers' ethics, professional conduct, and the duty owed by lawyers as Officers of the Court to integrity, truth, and justice itself; and second, the duty owed by Parliament to the courts and judges to defend them from falsehood, deceit, prevarication, and subornation in court proceedings. Parliament must uphold the principle which underpins the administration of justice, that is, truth itself. Parliament must assert that the contrivance of deceit and fraud upon the courts is no part of the duty of any solicitor-barrister, and further, that lawyers owe a duty of truth and integrity to the courts. I refer senators to a timely 1997 article by lawyer Marvin Huberman in the Canadian Bar Review, Volume 76, entitled "Integrity Testing for Lawyers: Is It Time?" He wrote:

This is not to say that the problem is one of perception alone. There is a problem with professional behaviour amongst lawyers, and this may be linked to a basic integrity problem. A consideration of the Law Society's Discipline Digest shows the existing problems.

He concluded:

It is clear something has to be done to improve the image of lawyers. Integrity testing might help. It could be used to identify which lawyers are deficient in that regard.

Across this land, there is the sentiment that there is something needing correction at the Bench and the Bar in the conduct of judicial proceedings and in certain lawyers' practices.

Honourable senators, in speeches I have cited Mr. Justice Blair's 1995 Ontario Civil Justice Review Report on falsehood in family law proceedings and the crisis in the civil justice system in Ontario. I now add the 1996 Manitoba Civil Justice Review Task Force Report. Appointed by then Manitoba Minister of Justice Rosemary Vodrey and chaired by Manitoba MLA David Newman, it included Manitoba Justices Guy Kroft, Gerald Mercier, and Jeffrey Oliphant. The Task Force Report's Chapter Three entitled "Court of Queen's Bench Family Division" addressed the use of false accusations in civil justice proceedings, saying:

The Task Force heard horror stories about the traumatic impact on the accused person, on the immediate family and children affected by malicious false allegations designed to achieve sole custody, prohibit or restrict visiting privileges, and to punish the other parent.

Further:

When false allegations are discovered, strong and effective sanctions are necessary to discourage such conduct. . . . Lawyers, of course, must never assist in making false allegations and should be on guard against becoming the tool or dupe of an unscrupulous client.

This phenomenon, the aggressive hurling of the weapon of choice during child custody proceedings, is well documented. This phenomenon is the devil's own work. For those terrorized by false allegations of child sexual abuse, for those accused of something so terrible and so repugnant to them as parents, it is soul destroying. False accusations are used by one parent to injure and damage emotionally in an effort to destroy the parent-child relationship of the other parent and even the other parent. This technique is employed mostly in civil proceedings, simply because the standard of proof in civil proceedings is lower than in criminal proceeding. It is the newly identified form of child abuse and child maltreatment. It is also the newest form of civil molestation and civil harassment, using the courts as instruments of injury and malice in civil litigation.

Today I cannot address the enormous financial burdens borne by our citizens personally and by the public treasury collectively, nor the emotional and psychological costs to citizens, particularly to children, but these are of enormous magnitude, as are the social consequences.

In speeches, I have cited some case law and the judges. I have quoted the judges in the cases of Ontario's Reverend Baxter's B(D) and B(R) and B(M) v. Children's Aid Society of Durham Region and Marion Van den Boomen, 1994; British Columbia's Lin v. Lin, 1992; Manitoba's Plesh v. Plesh, 1992; Saskatchewan's Paterson v. Paterson, 1994, and Ontario's Allen v. Grenier, 1996.

I shall now continue with other cases of false accusations of child sexual abuse. In Pott v. Pott, a 1997 Manitoba Court of Queen's Bench case, Mr. Justice Jewers concluded:

In all of the circumstances, there can be no finding - even to the lower civil standard - that the father ever sexually abused his daughter Cheryl.

Ominously, this is a multiple, recidivist, false accusations case. Mr. Justice Jewers said:

The mother had a history of sexual abuse - or alleged sexual abuse - having at one time or another accused her father, brother and sister of sexually abusing her . . . The City of Winnipeg Police had received a total of seven complaints from her alleging sexual abuse - involving some eleven persons - and only one was prosecuted - with an acquittal.

Further, Mr. Justice Jewers said:

Having regard to the mother's sexual history and the fact that the first disclosure was made in the context of ongoing domestic fights and quarrels between the mother and father, one cannot exclude the possibility that the mother influenced Cheryl, either directly or indirectly, to make the allegations that her father had been abusing her.

Honourable senators, I should explain that when I read a case name composed of letters, that is a method used to protect the children involved. I move now to the case of P.(G.L.) v. P.(J.M.) in the British Columbia Supreme Court. In his 1990 judgement, Justice Rowles stated:

Before the action was set for trial the mother had made allegations of sexual and physical abuse of the children by the father.

The father here is G.L.P. and the mother is J.M.P.

G.L.P. was given supervised access. Two psychologists have observed the father with the children.

Mr. Justice Rowles continued:

From her evidence given during the review hearing regarding the access, it appeared to me that J.M.P is either obsessed with the belief that G.L.P. is abusing the boys or, alternatively, for whatever reason, she is determined that G.L.P not have access.

Her attitude and behaviour regarding G.L.P.'s having access may pose a serious risk of emotional harm to the boys, particularly the older child.

Honourable senators, my next case is L.B. v. R.D., a 1998 Ontario Court of Justice Provincial Division case in which Judge Patrick Dunn said:

The issue of L.B.'s opposition to access also arose in a context of sexual abuse allegations which she brought forward against R.D. in November 1995 and again in March 1996. The children's aid society investigated both allegations and concluded that neither could be verified.

Judge Dunn continued:

. . . L.B. obfuscated; she misconstrued evidence and even tried to mislead the police . . . I found L.B.'s evidence to be entirely self-serving, manipulative and a condemnation of R.D. and his good parenting skills and person . . .

Another serious event that strained L.B.'s credibility was that she gave a false written statement dated 5 January 1995 . . . The statement purported to come from N.T., L.B.'s mother . . . L.B. admitted in her evidence that she wrote the letter and signed her mother's name to it.

Judge Dunn concluded:

L.B. has taken the law into her own hands and has repeatedly denied access. By doing so, she deprived her child of a right that this child has to maintain contact with her father . . . Her contempt for the court process and her neglect for the need of her child to see her father cries out for punishment.

Judge Patrick Dunn, in the face of 41 access denials and repeated court order violations, and for other reasons he stated in his judgment, sentenced the child's mother, Lisa Barbosa, to 60 days in jail for contempt of court.

Honourable senators, I move now to the case of Martha Metzner v. Dr. Louis Metzner, a 1993 British Columbia Supreme Court case of false allegations, not of child sexual but of child physical abuse. Mr. Justice Preston stated:

Since she decided to leave her husband, Mrs. Metzner has inappropriately used her control over Kate and Jamie to gain her own ends in this litigation. This was most marked in the Kate incident when she concocted an allegation of physical abuse of Kate as a basis to have Dr. Metzner removed from the matrimonial home . . .

Mr. Justice Preston continued:

Mrs. Metzner was interviewed by Sergeant Armstrong of the West Vancouver Police Department on January 8, 1990. The officer's notes indicate that she told him that there was no history of abuse and that Dr. Metzner had never hit her or the children. His notes also contain the entry, "Martha said lawyer told her that this would be enough to get him out of the house because he wouldn't leave."

In 1997, at the British Columbia Court of Appeal, Mr. Justice McEachern cited Justice Preston, saying:

"The judge said he was struck by the lengths she would go to demean the husband and that, in the judge's view, she is likely to continue to frustrate the children's access to their father and to undermine their relationship with him if it is in her power to do so." The most obvious manifestation of this attitude on the part of the wife was the Kate incident mentioned by the trial judge when she persuaded Kate to make false, and later recanted, allegations of physical abuse against her father to the police.

Honourable senators, the heart of the problem is the misuse of the privileges that are entrusted to lawyers as Officers of the Court. This privilege, both the absolute and the qualified, including solicitor-client privilege, shelters lawyers from criminal and civil liability for unsworn statements made within court documents and court proceedings.

This privilege originates in Her Majesty's sovereign prerogative and is bestowed upon solicitor-barristers when they are admitted by Her Majesty as Officers of Her Court. These privileges are not wholly owned. Officers of the Court hold these privileges in trust from Her Majesty. They are grants from the Sovereign to protect the Sovereign's public interest in justice. Officers of the Court hold this privilege as part of the Sovereign's protection for the procedures of securing the truth and for securing justice itself. Her Majesty's privilege cannot be enlisted to defeat truth or to defeat justice.

Honourable senators, Bill S-12 imposes no new standard on barristers. Bill S-12 upholds and affirms the standard of the barristers' code of ethics. The drafting language of Bill S-12 borrows from the language of the Law Society of Upper Canada's rules of professional conduct. Bill S-12 simply elevates that same standard, an informal one, to law. Bill S-12 codifies these ethics and standards as law and places them into statute.

Honourable senators, Bill S-12 has its origins in the Hill v. Church of Scientology case, which lasted eleven years and cost countless millions of dollars. In September 1984, Scientology and its lawyers instituted contempt of court proceedings seeking to imprison Casey Hill, the Crown prosecutor associated with investigating the Church of Scientology. Casey Hill is now Mr. Justice Casey Hill.

In November 1984, Mr. Justice Cromarty ruled that Scientology's allegations against Casey Hill were untrue and unfounded. This terrible case is known for the inordinate financial cost, the longevity, and the mean-spiritedness of Scientology through its several lawyers and their unstoppable campaign to destroy Casey Hill. Their persistent, reckless and unconscionable repetition of vicious and untrue accusations against Casey Hill, despite the judicial determination to the contrary, were shocking.

Mr. Justices Griffiths, Catzman, and Galligan, in their 1994 Ontario Court of Appeal decision, revealed Scientology's and its lawyers' contumacious actions. They said regarding the Church of Scientology:

It continued with unfounded contempt proceedings against Casey Hill when it knew, no later than September 27, 1984, that its principal allegation was untrue. It hid its knowledge of the falsity of that allegation from the court, from Casey Hill and from counsel whom it had retained to prosecute the contempt charges.  

That counsel is Mr. Manning. The justices continued:

Counsel for Scientology suggest that the unfounded charges of contempt of court against Casey Hill were laid as a result of the advice, albeit misguided, of Scientology's solicitors, and that therefore those charges could not constitute evidence of specific malice on the part of Scientology against Casey Hill.

Finally, the 1995 Supreme Court of Canada judgment upheld the Ontario Court of Appeal decision in Casey Hill's favour and awarded him the largest damages award in the libel history of Canada.

About a nasty, threatening letter written by Scientology's counsel, Mr. Clayton Ruby, to Casey Hill, Mr. Justice Peter Cory said:

It should be noted that at the time this letter was written, Clayton Ruby was a Bencher of the Law Society and Vice-Chairman of the Law Society's Discipline Committee.

The letter implied that there could be disciplinary proceedings brought before the Law Society of Upper Canada and that a contempt action might be instituted.

Honourable senators, Bill S-12 is a legislative response to a modern pathology. This psychopathy in the body politic of our courts needs our political and parliamentary study and action. While I do sincerely believe that lawyers and lawyers' privileges must be upheld, that lawyers' privileges must be maintained, and that the majority of lawyers are honest professionals, the minority who are abusing the process, namely the deviants, need sanctions.

I urge honourable senators to pass Bill S-12.

 

The remainder of this day's Senate Debates available here.