| The topic of the discussion was “False Abuse Allegations and Senate Bill S-9,
(sponsored by Sen. Cools) DR: Welcome back to Dave Rutherford, welcome back to
this portion of the program.
My guest will be a Canadian senator, and I know that this is a
hard-working senator who may defend other senators -- I don’t know -- but none the
less, some senators do a lot of hard work. My next guest, despite the fact that she
was appointed by a Liberal government -- which I will hold above her head forever more --
Senator Anne Cools is a hard-working senator. Welcome Senator Cools.
SC: Hello, there. How are you today? (mutual laughter)
DR: In fine fettle today, Senator.
SC: Excellent, I didn’t hear that. (more mutual laughter)
DR: Senator Cools has been working very hard on a bill -- don’t worry about
the number necessarily, or forget it, but it’s S-9 -- which would change the criminal
code to punish those who use false accusations primarily in matters of custody and
domestic dispute, false allegations against the other spouse, usually of sexual
interference with children, which is a horrible damning allegation, and the Senator
described it even this way in the pre-amble to her most recent debate, in which she said:
I have studied a terrible and pernicious
heart of darkness that has developed in our court system, being the
use of false accusations in civil justice.
My very good pro-senator, “a pernicious heart of darkness”;
what would this Bill do, Senator, that perjury laws cannot?
SC: O.K., first of all let me thank you for sounding so poetic. (laughs)
DR: I’m just reading, I’m reading what is
SC: I know (laughs)
DR: from the page. It leaks from the page, as if alive.
SC: Absolutely.
DR: Oh yes.
SC: Very well. My Bill, essentially, looks at the, as you just said a few
minutes ago, this terrible heart of darkness, and I sincerely believe that it is.
And my Bill S-9 is an amendment to the criminal code to augment those sections in the
criminal code which speak to what we call the administration of law and justice. In
other words, it will create, a new offence
DR: Yeah
SC: against the administration of law and justice, making it an offence to
mislead justice by willfully and deliberately utilizing false accusations within judicial
proceedings.
Now, your question relates to the question of perjury, and perjury,
as you know, is deliberate and willful falsehood, with an item misleading justice
DR: Yes.
SC: again by within sworn documents
DR: Yes.
SC: The unfortunate fact of it is that within judicial proceedings many of these
accusations and allegations are articulated outside of sworn statements and outside of
sworn proceedings, so they’re not captured, so to speak
DR: Yes.
SC: by the perjury provisions, like for example, if such allegations are raised
in what lawyers call pleadings, for example, statements of defence, statements of claim,
notices of motion, the perjury provisions do not kick in so clearly. So, my Bill is
attempting to speak to that lacunae.
DR: This inhuman, aggressive hurling of false accusations is the weapon of
choice, you suggest in your debate. You obviously, and I know that you have,
documented many, many of these cases. How often do you see this occurring?
SC: Well, hmm, the particular expression you just used, weapon of choice, I was
citing and quoting a particular judge, in a very famous case her in Ontario, the Reverend
Baxter case, where these terrible allegations, of this particular individual abusing his
own children, were made, and he was exonerated.
The fact of the matter is that in my speech last week, I put on the
record 49 cases where judges had found such allegations to be false. So I have not
put on the record instances where allegations have been alleged, or where these
accusations have been articulated. What I’ve been trying to do is to build up
the record of determination, within the judicial system, and I think 49 is -- to my mind
-- speaks to a serious crisis, if [not] an epidemic.
DR: All right, and I was generous in my introduction because I suggested that
this was in custody and access disputes, I’m gonna cut through the generosity, you
suggest that most of these, if not the vast majority -- maybe all -- are, are mothers
against fathers. Is that right?
SC: The majority of them are clearly by mothers. Mothers are the
accusers, or the allegers, rather,
DR: Right.
SC: against fathers, although that we have some cases where it’s the women
who’ve been accused: the particular case I cited at the end, the case of Pails
Chart-Mill, who now works for the Parental Alienation Foundation,
DR: Right.
SC: in Washington, and the majority of them are about child sexual abuse, but
some are about, about physical abuse. But, remember what we are talking about here
is false accusations.
DR: Right.
SC: not genuine accusations -- false.
DR: The court system is made up of many facets. Of course, lawyers are a
part of it, even in these disputes involving matrimony and custody. You suggest that
lawyers often encourage this inflammatory allegation, right?
[Original emphasis in the voice of Dave Rutherford]
SC: What I have said, my Bill speaks to the role of, of lawyers in it, and in
this [?false?] activity. My Bill essentially says, every person is guilty of an
indictable offence, and liable to imprisonment, etc., etc., who as counsel in any judicial
proceedings institutes or prosecutes proceedings that he or she knows are brought by
primarily for the purpose of intimidating or injuring another person.
What my Bill does is that is that it looks to the practice of the
law and it says, when a lawyer or a counsel acts in the way as described in the Bill, that
that, that individual shall be liable for criminal prosecution.
DR: In the transcript of the Debate on the 17th of the month, that line is in
there, “Lawyers often allow or encourage sometimes the most inflammatory of
allegations to be included in affidavits.” That comes from Dr. Brian Hindmarsh,
who is a psychologist, is that correct?
SC: That is exactly correct. What you are citing is his testimony before
the Joint Committee on Custody and Access, and Dr. Hindmarsh, as you know, is a
psychologist from your part of the world.
DR: Hmm, so we have this rampant and it seems to me, based
even on the evidence you gave, often at least, if not rampant, occurring
allegation.
SC: Yeah,
DR: Why, and I’m glad you’re doing something now, but why so long?
SC: Well, just let me finish off the Dr. Hindmarsh statement, he said, and I
quote it again for you, he says, “Parents continue to raise what are often the most
preposterous of sexual abuse allegations against their ex-spouses in sworn affidavits and
with the support of their solicitors.” Those were the words of Dr. Hindmarsh,
very profound words, I would think.
DR: Yes.
SC: You would say, “Why so long?” It is a very difficult
questions, now I’ve had this Bill -- it is now in it’s what I would call its
third incarnation -- and on the previous occasions that I’ve raised, that I brought
forward this bill, the Bill has died on the Order Paper because Parliament has been
dissolved or has been paroled, but one of the reasons -- I think -- that makes this issue
so difficult and so delicate is that, for the most part, people steer a wide berth around
lawyers, because we all have believed that lawyers, as officers of the court, have such a
high obligation to truth an integrity, that we have been disinclined to think otherwise.
DR: But do they not, though?
SC: [Laughs heartily] What I would say, what I would say,
DR: Right?
SC: Ah, what I would say to you, Mr. Rutherford, is this, that the criminal code
always speaks to those who break the law, and to those who violate justice, you see?
So, the criminal code speaks to those people who will be deviant.
The criminal code is about the outstanding majority of citizens who
are, who are fine citizens. The criminal; code always speaks to those who are being
deviant.
DR: I want to make clear, too, what this Bill covers. I asked about
perjury. This Bill covers unsworn court documents, as you’ve itemized;
pleadings, you said; statements of claim; defence statements; notices of motion, those
kinds of documents -- but, do they not require some, some swearing of truth by the person
filling it out at some point, Senator?
SC: Well, most of those documents are, are specially specialized legal
documents, and they are largely written by lawyers, you know? I would submit to you
that the average citizens of this land doesn’t have the ability to script a notice of
motion or a statement of defence, or statement of claim. Most of these documents are
actually written by the lawyers themselves. And what the entire system has relied on
is honour, so to speak., and the belief that because a person is an officer of the court,
that individual has a high obligation to honour.
DR: And even though there is a, obviously the lesser, the lesser burden of
proof, when you put that into a document, nobody is asking you to swear against that[1], it goes into the court documents, the judge reading it, I assume,
understands this could be inflammatory, this is not the truth, and although the lawyers
might read it that this is not the truth, however, it is a document that is in the court,
publicly available, that says: “Mr. XYZ is accused of sexually abusing his
children.” Right?
SC: Yes.
DR: It’s there for everybody to see!
SC: Yes, and what one has to be very mindful of, and that is why I use the word
“pernicious,” that these kinds of false allegations, just by the nature of being
raised at all,
DR: Right.
SC: immediately deliver a lot of damage.
DR: Yes.
SC: I mean, you have to, I mean, visualize for example that individual, that
poor father, who, who is tyrannized by these accusations. I mean, for any parent,
any father, but particularly any parent, to be accused of something so terrible, and so
repugnant to them is soul-destroying -- [pause] -- soul-destroying. [2]
DR: Senator stand by. We will come back.
Senator Anne Cools is my guest, speaking for Bill S-9, and I quote
it from some debate in the Senate of the 17th of February, from the Senator, the most
recent. We find out from the Senator where the Bill is and where it will end up --
and of course you phone calls to Senator Anne Cools, right after this.
[Commercial break [3]]
DR: Hi, welcome back. I’m Dave Rutherford, speaking with Senator Anne
Cools about a piece of legislation before the Senate, which the Senator hope would punish
those who make false allegations in some of these unsworn documents -- hurling these
abusive, horribly abusive allegations against the other spouse, usually from the mother,
usually custodial parent to the non-custodial, which is usually the father.
So, Senator, the ramifications then of this, what would the Bill do
to proof that the allegations are false. What’s the burden of proof for the
Bill, and what would the punishment be?
SC: Well, the burden of proof would be the criminal standard, because while the
problem with these kinds of allegations is that they are frequently made within civil
proceedings, being, ah, you know, custody and access proceedings and so on, and quite
often many of these allegations are even avoided, strenuously avoided being subjected to
the higher burden of proof, the higher standard of proof of a criminal court proceeding,
so what this Bill will do is create a new offence, where previously there was none, and
essentially say that any counsel who willfully deceives or knowingly participates in
deceiving the tribunal --O.K.? -- or, if that counsel willfully presents or knowingly
relies on upon a false, deceptive, exaggerated or inflammatory document -- whether or not
under oath -- that counsel will be subject to a criminal prosecution that carries a prison
term not exceeding two years. [4]
DR: So, it is not then to punish the person making the allegations, it’s to
punish the purveyor of it, the lawyer.
SC: Oh yes. My Bill speaks to the, to the question of sharp practice.
DR: [minor guffaw] O. K., so, two years...
SC: In other words, my Bill speaks to the offence of employment of judicial
proceedings and the abusive process itself....What I’m saying, it is an abuse of the
process.
DR: Lawyers or officers of the court, right?
SC: Precisely, and they have a very high, a very high responsibility. Now
at the same time, as I said before in my speech, I recognize that there is no new standard
being created here for any counsel to adhere to.
DR: Right,
SC: These are the standards that are currently, that currently exist. As a
matter of fact, all I’m doing, I’m taking that standard and giving it the force
of law. I’m also mindful that this bill will not touch the majority of
lawyers. The majority of lawyers are outstanding professionals. This will
speak to those who will violate the principles,
DR: O.K., is there not, are you duplicating what might be in place in various
provincial regulators that regulate lawyers? Do they not have codes of conduct,
codes of ethics, rules of professional conduct in law societies?
SC: They have, ah, rules of conduct. This, however, is raising those rules
to a higher standard.
DR: You say, the ancient standard of honour, integrity and ethics.
SC: That’s right, but this is raising the standard much higher and to such
a high level that we have created or are attempting to create a criminal offence, so, its
violation, its proven violation could result in a criminal conviction.
DR: How do you prove it, Senator?
SC: Well, How do I prove it?
DR: Is the burden of proof on the lawyer to disprove or to...
SC: I would submit to you that the mere fact that the standard of the burden of
proof will be a criminal one will be no simple matter, but all I’m trying to say is
that I’m moving it from a question of just, of a professional duty to a space where
its violation is a criminal offence.
DR: So, would in fact the burden of proof though, is it reversed though, that a
lawyer have to prove it is true, or is the burden on the State to prove otherwise?
SC: No. This, in any criminal, in any criminal procedure, the system would
kick in a standard way.
DR: O.K.
SC: So, you know, the presumption would be a standard of innocence.
SC: So, what I’m proposing though is an amendment to the criminal code.
DR: Right.
SC: So all these standards and the very high principles and the high burden of
proof that we have will automatically kick in.
DR: Senator, stand by for phone calls from our audience. Joanne go ahead:
Joanne: Yes, I was wondering. If I called the police and said I was being
held up for incidents and they found I hadn’t, I could be charged with
mischief. Why could they not have, why do we need another law?
DR: O.K., why not mischief?
SC: Because there are already in existence provisions which deal to the question
of mischief.
What my amendment is doing is to augment those provision, because,
you see, whenever a proceeding goes forward within the court, the documents operate under
what we call privilege, so, quite often many of those documents are sheltered from
liabilities.
DR: So you are saying that because there is a privilege involved, we
couldn’t, that we couldn’t apply mischief provisions, as Joanne says, against
these documents?
SC: Well, sometimes it can’t. Sometimes, if the documents are
absolutely privileged, it’s hard to get at them. What I’m trying to say to
you is that there is a gap in the system. It is very difficult to get at these, at
these statements, even to prove that they are false, because many of them are not even
adjudicated.
Joanne: But I also understand that the
SC: But you see, you are, you are
Joanne: [unintelligible] thing behind it, because, in a way, because I was a
foster parent to three little children
SC: Oh yeah.
Joanne: who were taken out of their home, and it took six months to prove
that that they has not been abused.
DR: Yes.
SC: Oh well, you have experience. You have experience first-hand.
Joanne: That’s right.
SC: Yes and well then you know the tragedy, and, well, a terrible tragedy it is,
Joanne: Oh it is, and hardest on the children.
DR: Joanne, thank you for that.
SC: Because, O.K., if I could just add to that, Mr. Rutherford, many, quite
often, too, if we were to look at some of the psychology and the trauma of this condition,
many of those children who are the, who are the object and the subjects of these
accusations, you will find quite often that these poor little children are dragged after
from one examination after the other, you know, and these poor children go through just a
terrible, terrible time.
DR: Thanks Joanne. How many, how many cases do you know Senator, that are
correct, that are true? Do we know?[7]
SC: Oh, I, as I said before, I know countless, hundreds of cases, where
accusations have been made, but last week on the floor of the Chamber I was able to name
and itemize, one by one, 49 cases, where the accusations were found to be false.
DR: But do we know of any that have been found to be true?[7]
SC: Well, I have not, but I’m not concerned with that. My question
here is the abusive process.
DR: Yes.
SC: O.K., so where these accusations are being employed, the abusive process.
DR: But O.K., let’s look then at a scenario, just briefly. If, in
fact, the lawyers does put forward in an affidavit, in a document, in a statement of claim
of some kind that there is an allegation of abuse, and then somebody is called on it and
you are questioned, somebody has to prove it to be true.
SC: Yes, and as far I’m concerned, you know, if anybody believes that such
a terrible thing is going on, I think that person should call the police, that person
should call the child welfare agencies [5] and begin an investigation
forthwith, because as far as I’m concerned, we have to protect children absolutely,
absolutely.
Oh, my bill is not concerned with credible or real cases of
accusations. My Bill is speaking to the abuse.
DR: Of process.
SC: Of process.
DR: Brian, go ahead.
Brian: Ah yeah, I just wanted to, ah, ask a couple of questions here. Why
hasn’t this been thought of sooner? I’m sure this problem has been going
on.
DR: Well, we sort of addressed that earlier, the Senator doesn’t know why,
but here we are.
I think there’s a new climate though. There is a new
awareness of everybody in these disputes, Brian, that in fact there’s an imbalance,
that the system. has been so skewed against men, skewed against non-custodial parents,
which primarily are men. I think there’s more and more awareness of that, and
finally I sense, with the Senator’s help, because she believes this too, there’s
finally a bit of a weight on the other end of the teeter totter. I sense that’s
happening.
Brian: Good.
DR: Yeah, you’re right it’s good, but it’s taken a long time to
get there.
SC: Yes, I think, Mr. Rutherford, you are absolutely correct. Women have
been assumed to be towers of truth in every circumstance, and of course, men are assumed
to be liars.
DR: And [women are] assumed to be the best parent, too.
SC: Oh, that too, that too, but, you know, part of my position, and I’m
sure you know this, is that we must have balance, and we must have fairness, and we must
an administration of justice wherein men and women are treated equally. In other
words, we cannot have systems that operate on the premise, for example, that women are
morally superior to men, or that women are more virtuous than men -- you know, all virtue
is women and all vice is men. So I think, as Mr. Rutherford says, you know the
pendulum, while we’ve been pushing it back, but the pendulum has been swinging, and
you’ll be seeing, I’m convinced, that within the next many years, much more
equilibrium much more balance.
DR: Brian, go ahead with your next question.
Brian: Ah, I’m just going to make a statement here, man or woman, once
these statement are made about someone. you can’t just turn your pencil around and
erase it.
DR: Oh no. Oh we all know. The sting of that, Brian, is within the
community -- for a long, long time.[6]
Brian: That’s right. [Unintelligible] people are still gonna look
down on you: this guy is a sex offender, you know, this guy has assaulted his kid.
DR: Unless the allegation is proven to be false, publicly and visibly, and if in
fact the perpetrator of this, if it’s a lawyers or whatever, is clearly and openly
and publicly admonished,, and punished, then Brian you can say: “I didn’t do
it!”[6]
Brian: That’s right.
DR: You know, when the Court says, I didn’t do it, and If you
haven’t got that you’re just tilting at windmills out there. Brian,
thanks for that Enough of my soap box, Senator, I know you‘ve got your own to
worry about.
SC: [Laughs] Well, I think you are pretty good on yours.
DR: All right, Senator, stand by. I’ll take another break here.
Senator Anne Cools is my guest. We are talking about a Bill
she has before the Senate, that is making its way through the Senate, to punish people who
make false allegations, especially in matters of custody and access. She
participated in a Joint Committee discussion on that, and some very good legislation has
come from her earlier work on that. She is now concentrating on this effort.
We’ll come back with your phone calls, right after this.
[Break for commercials, news and weather]
Note: I'll be transcribing and posting the rest of the program when I have more
time. —WHS
________________
Notes:
1) That may well be most often the case, but there are at least some
lawyers who ask their clients to swear before a Commissioner of Oath (legal firms often
have their own) that any statement of theirs that makes it into an affidavit is the truth
and nothing but the truth.
2) So much so that many fathers commit suicide in the aftermath of the
allegations, or worse.
3) One of the commercials was to raise funds for battered women’s
shelters, through the White Ribbon Campaign “As I see it, there are two kinds of men,
those who commit violence against women and those who wanna stop it. If you’re
like me, you wanna stop it...”
Nothing was said in the commercial about the fact that men and women
commit violence at about equal rates against one another, nor was anything said about the
fact that the largest single group of domestic violence victims is comprised of children
who became victims at the hands of their biological mothers. Most of all, nothing
was said about the fact that although there are about 40 shelters for battered women in
Alberta, there isn’t a single one for battered men. The only shelters available
to battered men are the local jails.
Alberta's battered women’s shelters currently receive close to $9
million dollars annually in funding from the provincial government. There is no
funding for battered men’s shelters. Why should there be funding for what
doesn’t exist, right?
4) As far as I know, that is the current maximum term for perjury of
any other kind.
5) Yes, most certainly, and many people do, anonymously. They
don’t have to give their name to the accused. Nevertheless, Social Services
have such extra-ordinary powers that they’ll move immediately to take the children
out of the allegedly “abusive” home -- without due process of the law, and
without any involvement by any lawyers at all. Let’s hope that the children
will be placed into foster homes with loving and caring foster parents like Joanne at
least, but in 40 percent of the cases the children will never see their birth parents
again. A fight to regain the children can well and easily exhaust far more than the
family assets. It’s exactly the kind of fight that Reverend Dorian Baxter had
to face. It cost him, his relatives and friends more than $300,000 and took many
years.
How will somebody who’s not a Reverend or extremely wealthy weather a
fight like that? Such a man has virtually no chance.
6) More accurately, within the files of Social Services. Once a
man is listed with them as an offender of any kind, chances are that he’ll be listed
with them until well after his death. It wouldn’t surprise me at all if
Reverend Dorian Baxter were still listed with Child Welfare in Ontario. To boot,
only a tiny fraction of his legal costs were reimbursed to him. He still has to cope
with another $300,000, unless another appeal will be launched against him, then it’ll
cost him more yet.
7) A partial answer to the question Dave Rutherford was seeking
by repeatedly asking what proportion of abuse allegations is in fact false is given to
some extent in a TV program that was aired February 17, 2000, by WCVB TV
(Massachusetts). In that program, it was stated:
ATTORNEY SHEARA FRIEND
ESTIMATES ABOUT A THIRD OF ALL
RESTRAINING ORDERS FILED IN
DIVORCE CASES ARE
BOGUS--TACTICAL WEAPONS IN
NASTY CUSTODY BATTLES.
| Mary 2.9.59-11 |
You see this in your own practice? |
Sheara
|
I see it in my practice constantly. I see lawyers who'll come to me and say 'Look! If
you give me the financial deal I'm looking for, we will vacate the restraining order.' |
| Mary 2.10.23-28 |
So it's almost a form of blackmail? |
| Sheara |
Yeah. It's extortion. I think it's extortion. |
SIXTY THOUSAND RESTRAINING
ORDERS, OR 209a's, ARE ISSUED EACH
YEAR IN MASSACHUSETTS. AND A
RECENT COURT STUDY SHOWED LESS
THAN HALF CONTAINED
ALLEGATIONS OF PHYSICAL ABUSE.
More Evidence of Abuse of Restraining Orders |
|
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