Custody protest earns man libel charge

By KIRK MAKIN, JUSTICE REPORTER

The Globe and Mail (Toronto)

December 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.

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