The Honourable Anne C. Cools
Bill S-4 An Act to amend the Criminal Code (abuse of process)
Counsel's reliance on false allegations in judicial proceedings
SENATOR COOLS said:
Honourable senators, in the previous session of Parliament this bill was known as Bill S-13. I refer honourable senators to the speech I made on that bill on December 5, 1995, which is reported at page 2407 of the Debates of the Senate.
Bill S-4 upholds the position that judicial privilege may not be employed by lawyers as a shield to mislead, obstruct or defeat truth and justice in judicial proceedings. Bill S-4 creates three new offences in the Criminal Code. The first makes it an offence for counsel in judicial proceedings to make public statements outside the court that are known by counsel to be false. The second makes it an offence to institute proceedings known by counsel to be brought primarily to intimidate or injure another person. The third is to knowingly deceive the court by relying on false, deceptive, exaggerated or inflammatory documents.
The need for this legislation is great because the public's doubt regarding the activities of certain members of the legal profession is increasing and because of the obvious commercialization of the practice of law. The conduct of lawyers in judicial proceedings is critical because lawyers are officers of the court. Recent jurisprudence attests that there is something needing correction in the way that many lawyers are conducting proceedings. I shall review some of the situations, court cases and court judgments that reveal abuse of process and show the pressing need for Parliament to amend the Criminal Code.
Honourable senators, the most obvious example of abuse of process in judicial proceedings is the case of Casey Hill v. the Church of Scientology and Morris Manning. I spoke on the Supreme Court of Canada decision in this case in this chamber on November 23, 1995, which is found at page 2356 of the Debates of the Senate.
This Supreme Court of Canada decision was delivered by Mr. Justice Peter Cory. This is a case of libel and slander and the defence of privilege for false allegations made by Scientology and its lawyers Morris Manning, Michael Code and Clayton Ruby. In his decision, Mr. Justice Cory rejected their defence of privilege and upheld the legal and moral position that falsehood in judicial proceedings is not shielded by judicial privilege.
Honourable senators, Casey Hill was a Crown Attorney in Toronto investigating the Church of Scientology in the early 1980s. The lawyers for Scientology, Morris Manning, Michael Code and Clayton Ruby, endeavoured to destroy the reputation of Casey Hill. During litigation, they made certain false allegations about Casey Hill's reputation and integrity. They did so in a most public manner. They instituted contempt of court proceedings against him seeking his imprisonment.
Scientology and its lawyers held a press conference on the steps of Osgoode Hall, the seat of Ontario's Court of Appeal. Against the backdrop of Osgoode Hall, Morris Manning, dressed in his barrister's robes, read from an unfiled Notice of Motion articulating false and ugly allegations about Mr. Hill. The contempt of court proceedings initiated by Messrs Manning, Code and Ruby were judged to be unfounded by Mr. Justice Cromarty who was unequivocal on the point that the evidence was overwhelming that these allegations were false. Later, in 1984, when Casey Hill sued Scientology and Morris Manning for damages to his reputation by these false statements, these lawyers claimed that their false statements were protected by judicial privilege and consequently shielded them from liability.
In his Supreme Court judgment, Mr. Justice Cory described the conduct of Scientology and its lawyers in making false statements as "recklessly high-handed, supremely arrogant and contumacious." Mr. Justice Cory added:
There seems to have been a continuing conscious effort
on Scientology's part to intensify and perpetuate its attack
on Casey Hill without any regard for the truth of its allegations.
Mr. Justice Cory was unequivocal on the issue of judicial privilege as a shield against such conduct. He ruled that the court's privileges are not to be abused and that falsehood will defeat privilege. Mr. Justice Cory ruled:
As an experienced lawyer, Manning ought to have taken steps to confirm the allegations that were being made... In those circumstances he was duty bound to wait until the investigation was completed before launching such a serious attack on Hill's professional integrity. Manning failed to take either of these reasonable steps. As a result of this failure, the permissible scope of his comments was limited and the qualified privilege which attached to his remarks was defeated.
This misuse of judicial privilege, this abuse of process in judicial proceedings is at the heart of the crisis in civil justice in Ontario and in Canada. The problem is the use of the court process and judicial proceedings by barristers for harassing and injuring others, that is, for civil molestation, without penalty. The deployment of court documents, court privileges and court proceedings as instruments of malice and injury should, indeed, be made criminal offences. This continuing abuse of the legal and judicial process by certain members of the legal profession compels careful examination and scrupulous attention. The barristers in the Scientology case read like a list of the who's who of the legal profession in Canada. This case and the Supreme Court decision seriously questions the conduct of the barristers, one of whom, Clayton Ruby, was a bencher of the Law Society of Upper Canada and, at the time, the vice-chairman of the Law Society's Discipline Committee.
Honourable senators, the abuses which this legislation is intended to remedy are most visible in family law proceedings. I spoke to this matter in this chamber on July 13, 1995. That debate can be found at page 2052 of Debates of the Senate. That day, I called the attention of the Senate to the 1995 Civil Justice Review Report and the use of malice, untruth, false statements under oath and perjury in judicial proceedings in the practice of family law in Ontario. The Civil Justice Review was a joint review of the civil justice system in Ontario by the Ontario Court of Justice and the Ministry of the Attorney General of Ontario, co-chaired by the Honourable Mr. Justice Robert Blair. Mr. Justice Blair's report stated:
Lawyers were criticized for their drafting of lengthy, damaging, and sometimes unsupportable affidavit materials.
The Review was told frequently about ... the often poisonous nature of lengthy affidavit materials....
We were told ... that perjury in these affidavits is rampant.
... it is clearly a perception ... that such perjury goes unpunished.
He further stated:
Concern and frustration were expressed about the number of allegations made in affidavits that were not capable of being substantiated in any way.
Mr. Justice Blair concluded in his report that the civil justice system in Ontario is "in a crisis situation."
In my July speech, I addressed the problem of false allegations within the context of matrimonial and custody disputes in Ontario. Let us consider some family law proceedings from four provinces.
The case of Plesh v. Plesh is a case of false allegations within a custody dispute from Manitoba. In his 1992 judgment, the trial judge of the Manitoba Court of Queen's Bench, Mr. Justice Carr stated:
This is a classic example of a family law case gone amok.... It is the sort of case that from time to time has prompted our appellate court and our Chief Justice to comment with amazement at how a seemingly simple matter snowballs and only stops when the financial resources of the parties - and often their parents - are depleted. The chosen course here might seem like sweet revenge to one side, but there is a real loser - the six-year-old boy who is the subject of these proceedings.
Justice Carr told us that:
It is patently obvious from the evidence and the manner in which it was given that the mother ... set out to punish the husband.... The only ways she knew of were to deprive him of property -- she took all the furniture -- and their son. Her motivation was revenge, pure and simple.
Justice Carr focused on the false accusations therein, saying:
... she cried child abuse and continues to make the allegation to this date. In so doing she has nearly destroyed her husband and his relationship with their child. I conclude that she never believed that their son had been abused, not when she reported the abuse and not now. She could not have believed it because she is intelligent, and there was not then and is not now a shred of evidence to suggest it!
Mr. Justice Carr continued:
One of society's most pressing problems is child abuse. It is for this reason that professionals now take so seriously each and every allegation that is brought to their attention.... A case such as this, however, serves as a chilling reminder to us all that an accusation is not a finding.
Justice Carr noted the potential for future dispute, saying:
From the observed sneers and glances of the mother, I worry that she has not yet "finished" with the father.
My next case is Lin v. Lin from the British Columbia Court of Appeal, which again reveals the use of false allegations in custodial disputes. In his judgment, Mr. Justice McEachern quoted the trial judge's findings:
There is no doubt that Mrs. Lin is an adequate care giver in the sense of feeding and clothing the children, but in the broader area of care and affection, she has consistently placed her interests, rather than those of the children, first. She has, in fact, acted against the best interests of the children on a regular basis.
Mr. Justice McEachern affirmed and further quoted the trial judge on the mother's falsehood, saying that:
She coached the older child to repeat her allegations of abuse by Mr. Lin, which the boy later withdrew. She has deliberately cast obstacles in the path of access by Mr. Lin and has attempted to interfere in the children's relationship to him.
Mr. Justice McEachern continued:
... the mother made serious allegations of misconduct against the father, which were later found to be unsubstantiated. These allegations included violence towards the children.... When parties make unsubstantiated allegations which are not supported by evidence, they cannot complain that judges, when required to make a choice about custody, decide in favour of the party who has not exaggerated or overstated his or her case.
Honourable senators, the most notorious case from Ontario is that of Reverend B., an Anglican minister. When it appeared that he might be successful in the child custody proceedings, his wife falsely accused him of sexually abusing their two daughters, then aged two and four years. In this case of false sexual abuse allegations, the Children's Aid Society believed the mother and actively supported her in her false allegations against the father. Both Reverend B. and his children were damaged by these false accusations, particularly in light of the fact that the mother and her lover, a convicted sex offender, had actually abused the children. Reverend B. then sued the Children's Aid Society of Durham Region and the Children's Aid worker, Marion Van Den Boomen.
Mr. Justice Somers, in his 1994 ruling in favour of Reverend B. stated:
... one can certainly understand the frustration the father must have felt in this case attempting to deal with allegations against him which were untrue and which he regarded as utterly repugnant, and a bureaucracy that treated him with ill concealed contempt .... as I have said, I do believe that much of the damage sustained by the plaintiff was as a result of the machinations of his former wife...
Referring to the testimony of Barbara Chisholm, an experienced professional in the field of child abuse, Mr. Justice Somers said:
Ms. Chisholm indicated that the experience has been for some time that sexual assault allegations made by a mother against a father in custody disputes are very prevalent nowadays and indeed have become what she called "the weapon of choice."
My final case is the Saskatchewan case of Paterson v. Paterson, a case from the Court of Queen's bench in which the mother was seeking to deny the father's access to their two-year-old son. Mr. Justice Dickson, in his 1994 judgment, said:
Her belief is based primarily upon what she calls her recovered memory of satanic cult rituals at which both she and the boy were sexually abused by Allan and others.
About the mother, Melanie, Mr. Justice Dickson tells us:
... she says she experienced the first of what she calls several separate episodes of memory recall while she was in a wakeful state.
In one episode of recovered memory, Mr. Justice Dickson tells us that the mother recalled:
A woman wearing a hood and seeming to be surrounded by a fiery aura resembling a devil's head, ... Allan and his brother held her legs apart while this woman cut one inch into her vagina. The blood from the cut was drained into a cup from which each person in the room drank. A shimmering blue triangle floated between her legs, entered her vagina...
Mr. Justice Dickson continued:
A few nights later, Melanie says she experienced two more episodes of memory recall in which she saw a white, smoky figure emerge from the keys of the piano.... She saw a wolf and a huge rat on the floor and a snake in the air. Again, the shimmering blue triangle was present and again many of the same people were there.
About this situation, with absolutely no evidence put before him by the mother, Melanie, Mr. Justice Dickson concluded that the mother:
... presented no physical evidence that she and the boy have been sexually abused. She offered no independent evidence that even remotely suggests that Allan is involved with a satanic cult. Her evidence consists only of her own assertion that widely [sic] improbable events took place. I am expected to believe that her husband committed acts of monstrous depravity just because she says he did. That I cannot do. I find it nothing short of preposterous that I am expected to do so. Facts are not proved by simple assertion.
Honourable senators, in this very nasty case which I have just shared with you, Melanie falsely accused 13 persons in this case, making false allegations in judicial proceedings. Some of these persons were virtually unknown to her. The only thing that allowed reason to prevail in this case was that the accusations were so all-encompassing.
Honourable senators, the mischief I am placing before the Senate for correction today is the role of certain lawyers in advancing and perpetrating these false allegations, and their reliance on the protection of judicial privilege, and on their positions as officers of the court. It is a symptom of the times that the criminalization of falsehood by lawyers is necessary because of its widespread usage in civil litigation.
The cases I have cited are only a few of hundred [sic]. It is clear that neither the courts nor the professional governing bodies are willing to curb these abuses without Parliament's support. These cases jolt every sensibility.
The Hon. the Acting Speaker: Honourable senators, the senator's time has elapsed. Will honourable senators consent to allow the honourable senator to continue?
Hon. Senators: Agreed.
Senator Cools: Such instances of perjury and prevarication of false allegations offend every principle of law. Parliament must invoke the power of the criminal law to rectify this continued corruption and perversion of our principles of justice. We must act because the legal profession is failing to do so. The recent scandals in the Law Society of Upper Canada provide sufficient proof that the legal profession in Ontario is incapable of self-regulation. It has fettered its own ability to act resolutely in the face of these problems. This malignancy, this pathology, is deeply imbedded within the hardened and crystallized interests of the practice of law as a commerce. The law society and its benchers are reluctant to make the corrections that are needed.
Honourable senators, this legislation answers a pressing need in Canadian society. Bill S-4 will criminalize the behaviour of barristers who put before the courts allegations known by them to be false. This legislation will rectify an insufficiency in the common law. It will correct an increasingly insistent, unconscionable and unremitting legal problem. Parliament must speak to these mischiefs of fraud and deceit perpetrated on the courts by its own officers.
I urge honourable senators to pass this bill.
On motion of Senator Kinsella, debate adjourned.
Senator Cools' speech is reproduced here as it appears in the Canadian Senate Hansard and through the courtesy of Senator Cools.
Tuesday, March 26,1996
BILL TO AMEND -- SECOND READING -- DEBATE ADJOURNED
Hon. Anne C. Cools moved second reading of Bill S-4, to amend the Criminal Code (abuse of process).