"We typically associate criminal defamation with authoritarian governments. There are a lot of Latin American dictatorships with criminal defamation statutes," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Washington, D.C. -- in connection with a Kansas case | Washington Post editorial, Aug. 5, 2002
Stephen Osborne pulled no punches when he erected placards to protest against New Brunswick Judge Raymond Guerette's ruling against him in a custody battle.
"Reduce Child Abuse: Remove Guerette" said one of the signs, which graced courthouses from Halifax to Victoria during his 368-day campaign.
"Pettifogger Guerette Condones Perjury" said another.
"Guerette Quotes Perjury" said a third. "Children Abused Here"
Rushing to Judge Guerette's defence, the New Brunswick Crown laid exceedingly rare criminal charges of defamatory libel. Thus began a bizarre chain of events that is severely testing the province's justice system.
Mr. Osborne has opted for a show trial to highlight what he views as anti-male bias in the family court system. The defence of "justification" he intends to use will require him to show that his allegations against Judge Guerette were vital to the public good.
"By exposing what happened to my kids, it will expose what happens to kids everywhere in family court," Mr. Osborne said in an interview yesterday. "This is a national problem."
The saga began on May 7, 1999, when Judge Guerette awarded sole custody of Mr. Osborne's two children to his former spouse. She promptly vanished with them. "I have no idea where they are, or whether they are alive or dead," Mr. Osborne said.
Mr. Osborne's lawyer, Walter Fox, said that a psychologist who testified at the trial was professionally disciplined in the wake of a complaint from his client that she had given misleading evidence.
Mr. Fox said Judge Guerette dismissed the psychologist's misleading evidence as being inconsequential. He said Judge Guerette was similarly unconcerned about false evidence from Mr. Osborne's ex-wife.
Mr. Osborne then launched his campaign, stopping only after he became the seventh person charged with defamatory libel in the past 150 years, Mr. Fox noted.
In a pretrial motion, Mr. Osborne insisted that legal aid ought to pay for Mr. Fox -- a Toronto lawyer -- to represent him. "This is a very small province," Mr. Osborne said yesterday. "It is my understanding that there are 26 judges on the Court of Queen's Bench. Sooner or later, any lawyer acting for me is going to have to appear before a confrere of Judge Guerette, cap in hand, hoping for a positive ruling."
Mr. Osborne's application succeeded, but was overturned by the New Brunswick Court of Appeal. "I'm weighing whether to take this to the Supreme Court of Canada or damn the torpedoes, and go full speed ahead to trial," Mr. Osborne said.
Mr. Fox said the Crown ordinarily withdraws minor charges that have exploded into embarrassing public spectacles. In this case, he said, it cannot afford to do so because Mr. Osborne has successfully boxed it in.
"Mr. Osborne has made it absolutely clear to the Crown that: 'If you pull this charge, I'm back on the street picketing,' " Mr. Fox said.
Attached is the Notice of Constitutional Question filed in the case of R v Osborne, Saint John Police Department File # 01-7175, New Brunswick Provincial Court File # 0475430.
If you know of anyone that may be interested in intervening now is the time. Next scheduled court date is May 31, 2002, at 0930. At that time the court will hear arguments as to its jurisdiction over constitutional matters, and if it is determined to have jurisdiction the constitutional question will be heard immediately. If not then the file will be bumped upstairs to the Court of Queen's Bench.
Letter from Steve, Feb 18, 2002:
Activists, advocates and family law reformers all:
Today marked another appearance responding to the charges of defamatory libel I am now facing. The radio is reporting on today's maneuvering already, and there was a reporter from the paper on hand asking questions as well, so it seems likely there will be an article in the paper tomorrow.
Just minutes before the court was called into session I was approached by a member of the Saint John Police Department, and asked to confer in private. My lawyer was not available at the time, so I agreed to speak to the officer, one I have had extensive dealings with over the last couple of years and I trust to be on the level. This guy has added a note to every single incident report in the file that I have been cooperative and polite throughout, and gone out of my way to assist the police in all respects, and that's the only reason I agreed to talk to him.
I hope the prosecution calls him as a witness.
Surprise surprise-I was offered a deal. Sign a peace bond and this whole thing can go away. All you have to do is agree not to involve Mr. Justice Guerette in your picketing, that's all, and the matter will be concluded. Mr. Guerette will also be an advocate for change if you agree, and is most interested in bringing the recent Australian changes to Canada, making joint custody much more prevalent in Canada, blah blah blah.
My response was that the courts had the option to make joint custody decisions right now, under the current legislation, so it didn't much matter to me what changes Australia made, the problem was not one of legislation but rather one of court bias against fathers. And of course the willingness to overlook perjury in sworn testimony despite legislation making it illegal being in place-did I forget that?
Bottom line-thank you very much, but no deal, I'll take my chances in court.
Today's wrangling also upped the ante considerably. The matter will now be heard by the Court of Queen's Bench of New Brunswick rather than the Provincial Court, and be decided by a jury of 12 Canadians good and true. Although the change of venue prevented me from entering a plea, my lawyer informed the court that I planned to plea both not guilty and not guilty by way of justification to all 3 counts against me.
The plea of justification must be made in writing, so we had the paperwork on hand just in case. It lays out quite clearly the cause of my actions, and quotes the particular comment I have focused on throughout my protest as part of why I am justified, as well as court bias, the court's failing to take into account the evidence presented and the court's abuse of my children as a result of all the above. And, of course, the public interest in my acting to expose the injustice meted out by the family court in my case.
The Crown prosecutor was not a happy camper, and afterwards forwarded the offer of the peace bond again-and again, and again. Sorry, not interested in the slightest.
We also scheduled a hearing to address the terms of the undertaking I signed, to have them removed as per my Charter rights-March 4, 2002, 1100 hours.
Preliminary inquiry into the criminal charges scheduled for April 18, 2002, at 0930 hours.
What a country.
On my way to the court yesterday morning I stopped at the Saint John Police Department to check on the progress of my perjury complaint. Although the police had no word on my complaint yet, they did have some interesting news for me regarding another one, this one laid by my favourite judge, believe it or not, against me.
The police have received a complaint of criminal libel, made by the judge himself. Apparently he feels I have crossed the line by naming names, his name, and he wants something done about it pronto.
My new signs read as follows: "REDUCE CHILD ABUSE-REMOVE GUERETTE" and "PETTIFOGGER GUERETTE CONDONES PERJURY." Mr. Guerette has called the police every Thursday since my new signs went up, usually before I even get there, according to the police "in anticipation of your arrival."
The police did their homework, and passed the complaint on to the Crown in Saint John, whose opinion was there is nothing they can do about it as I can prove he condones perjury and the crown feels they will lose any case against me on the abuse issue because of it.
Mr. Guerette isn't prepared to accept that decision, so he has filed another complaint with the N.B. Department of Justice, and with the Chief Justice of the Court of Queens Bench of New Brunswick. He wants me "charged with criminal libel, removed from the front of the building, and prevented from coming back."
Beautiful! A local lawyer has asked to be my attorney if charges are laid, pro bono. He is also quite aware I would love to see them try, as I will then be given the opportunity to face my accuser in a court of law. Imagine, a family court judge on the witness stand and forced to account for himself in sworn testimony! What a country!
I bet we'll find out just what a "big lie" is that day. Keep your fingers crossed- - I'll be trying harder next week. Steve O
Osborne was charged under Sec. 301 of the Criminal Code which was found to be unconstitutional in Saskatchewan in 1995. This charge violates the Charter because it does not require the Crown to prove its case.
Below are some more of Osborne's web postings.
Good day, I spent the day at the court again yesterday, and poked at Mr. Justice Guerette a bit harder. Got out an old sign to retry it, and it worked immediately: LSD AND ALCOHOL - "NURTURING" - RJ GUERETTE The other side said, GUERETTE PRINCIPLE OF JUSTICE: "NO BIG LIES."
One of the judges in the building that has been very supportive reacted strongly, telling me my LSD sign was was awful. I replied that I was appalled that a family court judge would describe a parent that admitted taking drugs (the mother) even though it was going to fry some of her brain cells that still she was as nurturing as well.
Apparently I missed something - so the issue was as the Judge says, Drugs are ok for mom, but don't dare to put that on a sign for the public to see. I guess its okay for mom be on LSD and drunk with 2 kids in her care as "nurturing", but not okay to point it out to the general public. Silly me - I should have known I guess.
Have a good day, Steve O
Family law litigation has now embraced and enhanced . . . innovations which develop their own character borne of the uniqueness of the domestic relationship.
In my opinion, the worst results are found in four areas:
1. abuse allegations
2. the ugly affidavit (see Wendy Maroon)
3. the winner-loser syndrome in custody cases
4. the use of delay for strategic advantage
Domestic violence is abhorrent. I have never found a judicial officer who treated physical cruelty with anything but the seriousness it deserves. However, the term "abuse" has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he or she was in an abusive relationship.
Abuse is a powerful term. But it is routinely used to describe shouting, badgering, voice raising, walking away when angry. Think for a minute about your< private relationship. So as not to raise a bald allegation, the particulars given of the marital discord become very detailed. This leads to the problem of the affidavit.
The nature of a family law case is that the interim motion is often the most important single event in the proceeding. In the last five years, the number of motions in family law has increased by 150 percent. (Ministry of the Attorney General) Evidence is presented by affidavit. Human nature is such that it is far easier to lie on paper than in the witness box.
As stated in the Ontario Civil Justice Review, First Report, (p. 272) the single greatest complaint about lawyers by members of the public was with respect to the damage to family relationships caused by the allegations in these affidavits - where, it is widely acknowledged, perjury is rampant and, moreover, goes unpunished. As barristers, we worry lest an allegation go unanswered. We therefore respond in kind and this continues the snowball on its course down that treacherous hill.
Nowhere is the effect of the litigation process more devastating than in a custody dispute. As stated by Robert McWhinney, The terror, for parents of a court-ordered custody determination, is not the staggering fees, or the shame of one private intimacy or indiscretion after another being exposed in affidavits, or the confusing punishment of cross-examination; nor is it the fear of losing custody per-sa.
The real terror is that, in the possibility of losing the right toparent their own child, they might thereby ultimately, lose their relationship with their child: the experience of loving their child, of influencing and helping and knowing their child. The loss of custody relegates one parent to inferior status, diminishes the person's importance in the child's life.
Where men lose custody of their children, they are more inclined to drift away from the child. This is not necessarily out of mean-spirited motives but the result of the ongoing and irreversible hurt inflicted during the proceedings, proceedings in which the issue was: who is the better parent. What could possibly touch one's soul more? The custodial parent then often becomes, in effect, a single parent - most often working full time. So in the end, the child is the real loser. The effect of custody disputes on children is devastating. To again quote Mr. McWinney (p. 101): The majority of children regard the loss of a parent as the single most negative aspect of separation and divorce. Children also worry that if their parents can stop loving each other, they could surely stop loving them as well; and parental custody battles seldom persuade a child that he or she is greatly loved.
If one is concerned only with the narrow adversarial approach to family law, then it is fair to say that delay will, in most cases, benefit one party to the detriment of the other. Our system encourages this: orders for pre-judgment interest are not routine; retroactive orders are difficult to obtain; statusquo is an important feature in custody cases; the recipient of a low interim support order, who is frugal and foolish enoughnot to go into debt before trial will be met with the argument that she (as recipients are usually women) clearly does not need more.
Recently in motions court I heard a lawyer arguing that no interim child support should be ordered because then the wife would have no incentive to settle the case. I found this more appalling than did the Judge, which told me that it had probably been heard often before. Starving children for tactical gain not only earns us a bad reputation, it passes a legacy of hate throughout the family. There is also the emotional strain and increased legal costs which are suffered by the whole family. Remember that money is never "awarded" but merely re-distributed within the family. Thus, by definition, the family can never be better off after divorce.
We have a responsibility to restructure the system to afford an opportunity to give the public what it wants - an early, fair settlement. All the statistical studies of our courts confirm that less than 3 percent of cases actually proceed to trial.
Why, then, are we operating a system that caters to that 3 percent and not to the 97 percent? There are over 600 rules and subrules we practice by, three deal with settlement, the rest deal with getting to trial. The emphasis in family law should be reversed. Efforts should be directed to the timing of the settlement, education of the litigants, and early intervention and resolution. But there remains the problem of tactics. As long as these tactics work even once in a while, they will continue to be used. We have an ethical imperative to change our tactics.
We in the Advocates' Society strive to be leaders in the profession. So it is up to us. We change ourselves and then by example, others will follow. Especially if we enlist the help of the judiciary with our convincing arguments that these tactics cannot be rewarded. Also, I have always believed that the most effective tool to implement behavioural change is the order for costs. Not because of the money, but because of the message.
Our system must promote negotiated settlements by enforcing them. It is of criticalimportance, where compliance with future arrangements is necessary, that parties themselves design the parameters of the regime. Those who practice in the area offamily mediation have know this for years. The law does not necessarily reward those who negotiate co-operative settlements. Recently, the Supreme Court of Canada (L.G. v. G.B., Supreme Court of Canada, SCJ. No. 72) dealt a blow to the sanctity of separation agreements by holding that, on a variation application, an agreement is only one factor - albeit an important one - but only one to be considered.
Furthermore, the ability of parties to negotiate on their own without counsel is all but discouraged. It is much easier to set aside an agreement where one party was not represented. The paternalistic view is that no one who signs away a right without calling in a lawyer could possibly have understood what he or she was doing. The public infers from this that our legal system is organized to encourage the use of its own service.
In summary, we must provide the public - not just our clients, but our friends and families - with a model for the civilized, cooperative reorganization of the family unit and finances on relationship breakdown. It is not good enough to say, "this is not my job, my job is to achieve the best result for my client, not to achieve a fair result. "We are part of a system on which good, decent people rely. We are the custodians of their trust. We must make available dignified, civilized ways to have family disputes resolved. We must, in short, provide a new model for divorce. We cannot be part of the destruction of the social framework and deny responsibility for the social problems that result. We may not leave the situation better than we found it, but at least we will not leave it worse.