Ottawa Citizen
Saturday, September 28, 2002

Learning about courts the hard way

Dave Brown
The Ottawa Citizen

She's a Crown ward, just 13, and twice this summer ran from group homes. This week after two months on the loose, she was told by her lawyer she could live with her parents. She calls and we talk. She always has the same question. "Why?" Her real name can't be used.

Dear Polly:

To understand the answer to your why, you first have to understand the meaning of the word "zealot." That's a person who is carried away by his/her zeal, or support for a cause. When it comes to protecting children, all of us have a bit of the zealot in us.

Our forefathers knew that, so over hundreds of years developed laws and courts that would protect us from ourselves and our zealotry. In this country, we depended on the Criminal Code of Canada for that protection. It is designed to protect us from unfair prosecution, and there are rules of evidence that insist on fact. They resist trends that may be passing themselves off as sciences.

Some thirty years ago, we decided children, to be properly protected, had to have more rights than other people, so we started setting up new courts to get around the Criminal Code. They are called family courts. They accept evidence that wouldn't be allowed in a criminal court. They accept psychology as a science and believe people trained in that field can predict human behaviour. In 1693, in a place called Salem, 19 people were killed when a court accepted witch-hunting as a science.

I've followed your story closely since you were taken into protective custody in May 1997. I've met your parents and grandparents. I've met their friends and neighbours and the minister of your mom's church. In 2000, I spent a week in a courtroom watching a family court struggle for answers. The words "best interests of the child" were repeated over and over.

Your mom and dad were on trial. They didn't know it because they weren't charged with anything. There was no evidence of neglect or abuse and the court recognized love in your family. By then you had been held in limbo for three years waiting for a decision and would have to wait another four months for the judge's written ruling making you a Crown ward.

Through all that time, you had to experience the trauma of being torn away from them again. The whole protection system would have looked silly after so much time had it said: Oops.

In your case, the strongest evidence against your mom and dad was presented by a psychiatrist. Your mom's lawyer put him through a tough cross-examination for almost a full day. Among things learned was that many "observations" he based his opinions on were not his, but passed along to him by child protection workers.

In a traditional court that would be called hearsay evidence and wouldn't be allowed. Such courts also don't accept opinion. They demand fact. The tough cross-examination made the doctor appear less an expert witness and more a typist. He explained his role: "Accuracy is not as important as consistency."

Polly, I think that means if enough people say so, a person is a witch.

Your mom and dad lost you to state care mainly because they were found to be flawed. Factors included your dad's alcoholism and your mom's epilepsy. Would your mom be able to protect you from your dad should the need arise? Your mom said she loved your dad, but in the opinion of the expert witness that showed her to be "co-dependant." He believed her love put her in a position to be manipulated. Those of us who love know that's one point he got right.

You're still in limbo as we zealously try to figure out what is in your best interests.

Last week, a survey showed 90 per cent of Canadians admitted they knew very little about how our courts operate. Look at the bright side, kiddo. You're in the top 10 per cent.

© Copyright 2002 The Ottawa Citizen