An Act to amend the Criminal Code

SUMMARY - Bill S-9 (abuse of process)

This enactment creates three new offences in the Criminal Code making it an offence for counsel in judicial proceedings to

(a) make public statements outside the tribunal that are known by counsel to be false or that counsel failed to take reasonable measures to ascertain were false;

(b) institute or proceed with proceedings known by counsel to be brought primarily to intimidate or injure another person; or

(c) knowingly to deceive or participate in deceiving the tribunal or to rely on false, deceptive, exaggerated or inflammatory documents.

WHEREAS the pervasive, intrusive and instantaneous nature of modern media news coverage increases the pressure on counsel in judicial proceedings to participate publicly in news events in the interests of their clients or in other ways extend their activities as counsel to include conduct considered unethical under the rules of their profession;

AND WHEREAS it is in the public interest that conduct of that kind be made criminal and not merely unethical in order to prevent the administration of justice being adversely affected;

1. The Criminal Code is amended by adding immediately after section 134 the following:

Public statements by counsel

135. (1) Every person who, while acting or purporting to act as counsel in respect of any anticipated, current or completed judicial proceedings, makes any public statement of facts in relation to the judicial proceedings out of the presence of the tribunal or body authorized by law to conduct the proceedings
(a) knowing that some or all of the facts asserted in the statement are not true,
(b) having no reasonable grounds for believing that the facts asserted in the statement are true, or
(c) having failed to take reasonable measures before making the statement to ascertain the truth of the facts asserted in the statement,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Statement includes court documents

(2) For the purpose of subsection (1), a statement of facts in relation to the judicial proceedings includes a reading from or an express reference to documents
(a) deposited or filed with or intended to be deposited or filed with the tribunal or body authorized by law to conduct the proceedings, or
(b) deposited or filed in any other judicial proceedings.

Abuse of process

135.1 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years who, as counsel in any judicial proceedings, institutes or prosecutes proceedings that he or she knows are brought primarily for the purpose of intimidating or injuring another person.

Idem

(2) Every person is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years who, as counsel in any judicial proceedings,
(a) wilfully deceives or knowingly participates in deceiving the tribunal or other body legally authorized to conduct the proceedings, or
(b) wilfully presents or knowingly relies upon a false, deceptive, exaggerated or inflammatory document, whether or not under oath.

See Published Bill Here

Background and Context: Bill S-9, An Act to amend the Criminal Code (abuse of process), was a Senate public bill introduced by Senator Anne C. Cools in the 2nd Session of the 36th Parliament (1999–2000). The bill sought to criminalize the willful use of false allegations in judicial proceedings, particularly false accusations of child abuse made during divorce and child custody cases. Senator Cools, drawing on years of research and committee testimony, argued that such malicious false claims had become a “weapon of choice” in custody battles – a “terrible and pernicious heart of darkness” in the justice system. She had championed this issue in previous Parliaments: earlier versions of the bill (Bill S-4 in 1996 and Bill S-12 in 1998) had each passed second reading unanimously and gone to committee, but died on the Order Paper due to a dissolution in 1997 and a prorogation in 1999.

February 8, 2000 (Initial Second Reading): Senator Cools moved second reading of Bill S-9 and briefly outlined its purpose, “to address the issue of the use of false allegations of child sexual abuse, largely within custodial disputes and within judicial proceedings.” Due to the late hour, she did not give her full speech that day, instead moving to adjourn the debate to the next sitting. The Senate agreed, and the second reading debate was stood over to be continued at a later date.

February 17, 2000 (Debate Resumed): The second reading debate on Bill S-9 resumed (listed on the Order Paper as “Second Reading—Debate Continued.” Senator Cools then delivered an extensive address in the Senate, providing context, examples, and the rationale for the bill. In her speech, she described how in acrimonious custody disputes, one parent (often the mother) would “falsely [accuse] the other party, usually fathers, of the sexual abuse of their own children,” sometimes with the complicity of lawyers. These false allegations, she warned, were “a lethal weapon in the business of parental alienation” used to secure sole custody and “create fatherlessness.” Such tactics, she said, were “diabolical… the Devil’s own work” and inflicted immense emotional, legal, and financial harm on the accused parents and children. 

o Bill Provisions: Senator Cools explained that Bill S-9 would treat deliberate false accusations in civil proceedings as an offence against the administration of justice. The bill proposed to add new sections 135 and 135.1 to the Criminal Code (under “Misleading Justice”), creating criminal offences for legal counsel who abuse the court process. In particular, it would make it illegal for a lawyer in a proceeding to knowingly make false statements outside the court, to initiate proceedings primarily to harass or intimidate, or to knowingly deceive the court or present false or inflammatory documents as evidence. These measures, she argued, would reinforce lawyers’ duty of honesty by codifying existing ethical standards into law.

o Evidence and Examples: Over the course of the debate, Senator Cools bolstered her  case with extensive evidence. She cited testimony from a 1998 joint parliamentary committee on child custody and access – for example, a Children’s Aid Society director noted that in roughly “of every five cases” investigated in custody disputes, “two are found to be unsubstantiated” allegations. Cools also read into the record numerous court judgments (nearly 50 cases across Canada) where judges had found accusations of abuse to be false. By cataloguing these cases and quoting judges’ rebukes of false claims, she aimed to show the scope of the “crisis in civil justice” caused by malicious allegations. “Parliament must not ignore this terrible travesty,” Cools urged, emphasizing that the intent of her bill was to punish only the “deliberate and wilful” deception of courts, not honest advocacy.

o Exchange with Senator Nolin: During the debate, Senator Pierre Claude Nolin (PC/Quebec), a lawyer by profession, raised a pointed question to clarify the bill’s scope. He noted that “every day lawyers write all kinds of allegations” in civil pleadings which judges ultimately weigh. Senator Nolin asked whether Cools’ proposed Criminal Code amendment would “address all statements made by lawyers, including those made in writing” in civil court – implying concern that Bill S-9 might criminalize routine advocacy if a lawyer’s allegations later proved unfounded. In response, Senator Cools stressed that her “precise intent” was not to ensnare every incorrect statement, but to target intentional deceit. The bill was aimed at “the deliberate and wilful attempt to deceive the courts for the purpose of injuring another person,” what she termed the evil “mischief” the legislation sought to remedy. She reassured that honest lawyers had “nothing to fear” – only those who knowingly perpetrate hoaxes on the court would be subject to sanction. If colleagues found a better way to draft the provision to clarify that intent, she invited their amendments in committee. 

o Continuation and Adjournment: Given the breadth of her presentation, Senator Cools spoke past the normal 15-minute time limit, and the Senate gave unanimous consent to let her continue speaking. After her remarks and the question-and-answer exchange, Senator Noël Kinsella (then Deputy Leader of the Opposition) rose to commend Senator Cools’ work. He noted that their colleague had “done a great deal of research” and brought forward “a lot of interesting data” on an important issue. Senator Kinsella suggested that members would want to study the day’s Hansard transcript and consider the proposal in depth. He then moved to adjourn the debate once more, to allow further examination of Bill S-9 at a subsequent sitting. The motion to adjourn was adopted, officially ending the February 17 session’s debate on the bill.

Subsequent Developments: The continued second reading debate on Bill S-9 spanned at least these two sittings in February 2000, and other senators would later have opportunities to speak before a vote was taken. (For instance, Senator Noël Kinsella himself spoke to the bill on May 2, 2000. Ultimately, the Senate approved Bill S-9 at second reading, and it was referred to committee for further scrutiny in the spring of 2000. However, as with Senator Cools’ earlier attempts, the bill did not complete the legislative process before events overtook it. Parliament was dissolved later that year for the November 2000 general election, causing Senator Cools’ Bill S-9 (Criminal Code – abuse of process) to die on the Order Paper. It ultimately did not become law.

2nd Session, 36th Parliament, Volume 138, Issue 29

Thursday, February 17, 2000 Bill to Amend-Second Reading-Debate Continued

Sources: The above information is drawn from official Debates of the Senate (Hansard) transcripts and records. The primary source is the Senate debate transcript for February 17, 2000 (36th Parliament, Volume 138, Issue 29), which contains the continued second reading debate on Bill S-9. (sencanada.ca)

These official records are publicly available on the Parliament of Canada’s website and through the Government of Canada publications archive. The citations provided refer to specific lines in the published Senate Debates, ensuring an accurate account of the debate and statements made.  See Citations Here