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Steve Osborne
| "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 | See our Defamation 2002
page |
Custody protest earns man libel
charge
By KIRK MAKIN, JUSTICE
REPORTER, Dec. 18, 2003
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.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
Steve Osborne:
Subject of more abuse of CCC Sec. 301
April 22, 2002
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.
1| 2 | 3 | 4 |
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.
Perfect!
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.
New
Brunswick father's rights activist has the judge all stirred
up
This material has been taken
from everyman
and Father's
Rights' Activist page. More information is posted here.
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.
"Drugs ok, but don't let
the public know"
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
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
ALLEGATIONS
OF ABUSE
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 UGLY
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.
WINNER-LOSER
SYNDROME
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 to
parent 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.
DELAY
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; status
quo is an important feature in custody cases;
the recipient of a low
interim support order, who is frugal and foolish enough not 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.
WHERE WE
GO
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 critical importance,
where compliance with future arrangements is necessary, that
parties themselves
design the parameters of the regime. Those who practice in the
area of
family 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.
SUMMARY
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.
|
Truth can never be told so as to be understood,
and not be believ'd. William
Blake, The
Proverbs of Hell
