Allan’s bodgy anecdote

Queensland Professor  of Law and Charter opponent, James Allan, tells readers of The Australian about the latest alleged Charter-induced outrage from his native Canada:

EACH year when I return from our family’s short mid-year trip to our native Canada, I come stocked with over-the-top examples of what the unelected judiciary can do with a bill of rights. This year’s is the most amazing one of all. You might even wonder if the judge was sane, or had overdosed on a steady diet of Boston Legal television viewing.

Here are the essential facts. A divorced father had custody of his 12-year-old daughter. The daughter accesses sites on the internet that the dad thought were inappropriate. So he tells her those sites are forbidden and, in particular, that she is not to post photos of herself on an online dating website. The daughter ignores her dad so he punishes her. He doesn’t smack her or ground her for a year. He forbids her attending the upcoming school year-end camping trip (which in Australian terms, is a fun end-of-year weekend trip run by the school).

What does the daughter do? She calls a lawyer. The lawyer goes to a judge and, relying on the bill of rights, challenges the girl’s punishment in court. Most readers, I’m pretty sure, will be thinking that if a child going on to inappropriate websites is not a solid ground for punishing the child, then it’s hard to see what is. But the judge – and a superior court judge at that – ruled that the father’s punishment was too harsh. It infringed the girl’s fundamental rights.

Quelle horreur! (It’s a Quebec case.) Also, quelle merde.

An internet search reveals that this case did the rounds of the media a month ago (including Australia) and sparked a wave of internet vitriol at the judge, Suzanne Tessier, not to mention the (‘slut’) girl at the centre of the case. Even though it’s anonymised, it didn’t take much effort for me to locate a copy of the judgment on Canlii: Droit de la famille — 081485 [2008] QCCS 2709. Even someone with no French can see that this is a family law case and that ought to raise some alarm bells about the real story here. Moreover, if you peruse the judgment, you’ll see nary a mention of la Charte canadienne des droits et libertés or la Charte Quebecois des droits et libertés de la personne.

Fortunately, Google can produce what looks to be a quite passable machine translation of the judgment. It seems that Allan’s ‘essential facts’ omitted a couple of interesting points. First, at the time of the case, the girl was in ‘de facto custody’ of her mother, who wanted her child to go the camp. The case only arose because the school required the signature of both parents and dad (who had shared parental responsibility for her) refused.  Second, dad gave two reasons for opposing the school camp trip: (a) the ‘disciplinary measure’ he imposed on her; alas, the judgment doesn’t explain what that was about, so we’ll have to trust Allan on that (reluctantly, given the reliability of the rest of his column); and (b) concern about the ‘safety’ of the 12 year-old during the trip. That second claim would spark worries in anyone who’s had any contact with family law.  The case has all the hallmarks of a bitter parental dispute, with a child caught in the middle. Third, the girl took the unusual step of making her own claim to override her dad’s parental responsibility on this issue – supported by Quebec’s Civil Code – only at the request of her court-appointed lawyer. The mother said she would have brought the claim herself otherwise.

Allan writes that if the judge had ‘a brain in his or her head’, she should have ‘laughed this thing out of court’. But you don’t have to trust him on this claim. If your French is patchy, here’s what google says that Judge Tessier said:

The Tribunal is not insensitive to the fact that children must respect their father and mother, but at the dawn of adolescence, relations are sometimes conflicting, especially in the context of blended families. The father objected to the request for two reasons; one hand regarding the child’s safety during the trip to Quebec and the other regarding the disciplinary measure imposed on the child. The Tribunal can not accept the reasons for the safety of travel for the following reasons: the journey is organised by the School Board, supervised by teachers and besides, according to the testimony of the mother, it accompanies her daughter during that trip. The second reason is the disciplinary measure imposed by the father to the child.

We must put everything in context. The custody of the child is the subject of a legal debate. Parents do not always agree on discipline to be enforced and the penalties imposed. All decisions relating to children must be taken in their best interest. I understand, sir, that the message you want to convey to your child’s compliance with its commitments to you and if not, it must suffer the consequences. However, the Court finds that the father has already imposed a sanction to X. The child was deprived of participation in year-end show while his sisters were part of it. However, the child no longer lives with the father and the mother who now takes over as regards the child’s upbringing. The Tribunal can not endorse the decision of the father. In this case, the school planned activity is organized by the School Board for students in his class. The child doing well in school and there is no reason for nature education to exclude X of this activity. Y, his twin brother, on this trip organized and the mother agrees. Reject this request would only serve to isolate the child from his peers.

The Tribunal operates on an exceptional basis to enable the child to an activity within a school supervised by the teachers. This tour is an educational activity, and the Tribunal allows the child to participate in this activity. This trip is compatible with the best interests of the child and exclude it would be against it.

So James,do you still reckon Judge Tessier is a moron? Or a rights-crazed judicial dictator? Do you even think this is a human rights case at all? Or have you just fallen for a beat-up, presumably by an understandably emotional dad and an outrage-hungry press? And taken the editors and readers of the Australian along for the ride?

Kids are too often torn apart by the dueling parents. What a pity that James Allan wants to drag young X into a legal policy debate in Australia.  And what a pity that the worthy issue of whether or not to enact more human rights statutes continues to be plagued by poorly researched, misdescribed and scare-mongering anecdotes. If the case against a human rights statute is so strong, why do you need to bolster it with internet claptrap?

And, yes, I’ve sent a letter to the editor of the Australian. We’ll see if they publish it this time…

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