Canadian legislation to end abuse of process techniques used by Scientology in Canada

Bill S-4
An Act to amend the Criminal Code
(abuse of process)

Counsel's reliance on false allegations
in judicial proceedings

THE SENATE
Tuesday, March 26,1996

CRIMINAL CODE
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).


She 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.

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Senator Cools' speech is reproduced here as it appears in the Canadian Senate
Hansard and through the courtesy of Senator Cools.

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