KIMBER: The crime of being a pain

The crime of being a pain
By Stephen Kimber
Halifax Daily News
September 19, 2004

So is Canada’s judicial system now punishing Carline VandenElsen for the high crime of being a legal pain in the ass?

Last week, an Ontario judge turned down VandenElsen’s request to delay until next March her upcoming retrial on charges that, during an ugly custody battle with her ex-husband in 2000, she grabbed her triplets and took off to Mexico.

On the face of it, her request hardly seems unreasonable, or unusual.

Anyone who has spent any time inside a Canadian courtroom will know just how much valuable court time is sucked up as lawyers and judges sweat over their Daytimers and Palm Pilots trying to find a date, any date, often months in the future, when they’ll finally all be in the same place at the same time — and there’ll be an unoccupied court room available for them to use — so they can attend to whatever are the pressing legal matters at hand.

One could argue that it takes way too long to get justice in Canada, but that is another issue and another column.

The simple fact is that delays are the way the system works.

And VandenElsen had good cause to ask for a delay.

Her case in Ontario is set of begin with a pre-trial hearing on Tuesday. But on Friday, VandenElsen was supposed to be here in Halifax in Family Court for the continuation of a hearing to review the status of a temporary custody order involving her baby daughter. That hearing was expected to last into this coming week (although the judge has since ruled, without VandenElsen present, that her baby will, in fact, remain in temporary foster care).

Even with custody off the table, VandenElsen still has plenty of other legal matters on her plate to keep her fully occupied in Halifax. For starters, of course, she and her husband must prepare their defence against a blizzard of criminal charges — and legal counter-claims — relating to a three-day standoff in late May when police arrived at their home in the middle of the night with a battering ram and machine guns to enforce a court order taking their baby away from them.

That case is supposed to go to trial in January.

The charges are serious, and VandenElsen doesn’t have a lawyer. Rocky Jones, who represented her at her preliminary hearing this summer, withdrew from the case because he said provincial Legal Aid doesn’t pay lawyers enough to handle complex criminal matters.

Before her life became an escalating series of legal battles with the established order, it’s worth noting that VandenElsen was a middle-class mother of three, a teacher, a homeowner, someone “who could afford a glass of wine when I wanted one.”

Today she is living rent-free in her late mother-in-law’s home on Shirley Street, barely surviving on the $175 a month she gets from welfare and the supplementary support of friends. She can’t afford a lawyer, can’t even afford a phone, and she gets around — mostly from court house to court house — on a borrowed bicycle.
So how is she supposed to be able to afford to fly back and forth to Ontario for her upcoming retrial and legal hearings in Halifax? (She managed to make last week’s court date in Ontario only because her sister bought the ticket.)

Judge Bonne Wein didn’t answer that when she ordered VandenElsen to be back in court in Stratford this week.

Just as she didn’t explain exactly what it was about this particular case that made it so pressing it had to go forward immediately.

VandenElsen has already been tried once. She was acquitted when a jury bought her argument she was not guilty by reason of necessity, forced to abduct her own children to prevent the courts from denying her permanent access to them. The Ontario Court of Appeal overturned the jury’s verdict, ruling the judge had made a mistake in letting her make the necessity argument in the first place, and ordered a new trial.

So VandenElsen must faces those charges again, but there is no urgency about the matter. Since her original trial, another court awarded permanent custody of the children to her ex-husband. She hasn’t seen them since Sept. 2003.

Even the Crown, in a June letter, said it believed the more serious “Nova Scotia matters should be concluded” before her retrial.

So why the urgency?

Could it be that VandenElsen ruffles too many legal feathers? Last week, she angrily called a Nova Scotia Children’s Aid Society lawyer a bitch and loudly informed the judge in her Ontario hearing she wouldn’t be back for the court-ordered jury selection.


Over the past decade, it’s fair to say VandenElsen has become so embittered by her experiences with Canada’s legal system she fails to show the due deference our courts believe they’re entitled to.

But since when has it been a crime to be a pain in the ass.

Stephen Kimber