(originally published at rabble.ca)
By Matthew Behrens
When
Justice Minister Peter MacKay announced he was leaving politics to spend more
time with his top priority – a family he began with his spouse, Nazanin Afshin-Jam, who advocates for an end to violence against women and
children – he missed the opportunity to
protect a Canadian family of four who are all survivors of brutal violence
inflicted by a U.S.-based father/ex-husband.
Now,
that family – all Canadian citizens – lives in daily fear of being torn apart
as a result of Canada’s woefully unfair Extradition Act, under which the U.S.
is seeking the mother for an alleged violation of a highly problematic custody
order. She faces up to 33 years behind bars because she and her children had
had enough of the violence they experienced while living stateside and chose,
instead, to live, by coming to Canada.
MacKay’s
exit date is October, so he still has the power to rescind his extradition
order against MM, a mother and survivor of male violence who cannot be
identified due to a publication ban. MM had survived years at the hands of an
abuser who’d broken her ribs and teeth, kicked her while she was pregnant,
raped and threatened to kill her, and beat and terrorized their three children.
It’s a complex story that spans almost two decades, replicating the well-known
patterns of male violence against women and kids, as well as the use of courts
and police as further tools of control over a woman who wanted only to be free
of violence.
Following the 2001 breakup of her marriage, custody of MM’s three
children bounced back and forth between her and the ex-husband due to a number
of aggravating circumstances. In 2008, a judge imposed a draconian custody
order in MM’s absence that prevented her
from having any contact with her children. MM was subsequently arrested for
violations of the order on numerous occasions, usually because the children
were desperate to be in contact with her.
Kids Run Away From Abusive Father
In November, 2010, while MM was trying to regain access to her
kids, the children (then aged 14, 11 and 9) escaped from their abusive father
and lived a week in an abandoned house, sleeping on a concrete garage floor.
Afterwards, they couch-surfed from house to house, all the while begging MM to
take them in. She refused, noting she could go to jail if she had any contact
with them. Given the desperate circumstances of the children, who continued
couch-surfing in an effort to avoid being returned to their abusive father – and the increasing levels of violence and
threats made against MM by her ex – she turned to an adult daughter from a
previous marriage, who packed a distressed MM and the kids in a car and drove
them to Canada (where MM was born).
The U.S. then sought to have MM brought back through an
extradition request based only on the
father’s “suspicions” that MM had taken the children from him. The RCMP found the family in a women’s shelter by
tracing the internet log-in passwords of the children. MM was arrested and
jailed two days before Christmas (she would remain behind bars awaiting bail for
six months), and her children assigned to foster care. At the time of the
arrest, a Mountie acknowledged that the children “expressed their fear of the
father.”
The first two weeks in jail, a devastated MM cried incessantly,
and was eventually given anti-depressants, the first pills she had ever taken
in her life. Her main concern was preventing the children from being returned
to their abusive U.S. father. “From a
jailhouse with zero resources, I pulled from any place I could to make sure
those children were not sent back to their abuser, and even the children said,
‘we’re not going back, we’ll take foster care here.’”
In a 2011 Canadian court hearing, MM testified that back in the
U.S., the father had called police after the children ran away, alleging MM had
taken the kids intentionally. MM did not know they had run off and was frantic
not knowing where they were. Police searched her house on numerous occasions
but the children were not there.
Speaking
of her decision to come to Canada, MM said, “I made the decision that I had to
protect myself, he was gonna kill me, he threatened to kill me, he threatened
to kill the kids, and he beat me and I said, ‘that’s it.’ My daughter said:
‘Enough is enough. Mom, let’s go.’ She’s twenty-nine (29) years old. So we
drove to Canada and I crossed the border and went immediately into a women’s
shelter.”
Asked why she went to a women’s shelter, she replied, “Because I
had been beaten by him for the last final time.”
Case Found “Defective and Unreliable”
In August, 2011, a provincial court judge rejected extradition,
noting the only evidence proffered by the US was the ex-husband’s “suspicions”
that MM had taken the kids, a rationale which was found “so defective and
unreliable that it is not worthy of consideration.” The judge pointed out that
“the children were not abducted but rather ran away from their father, who was physically
and mentally abusing them. The children only contacted their mother more than a
week later, and she refused to have them stay at her house knowing she was
bound by the 2008 custody order; instead, she filed a motion for custody of the
children” in the U.S.
“We are in the presence of children running away from an abusive
father without the knowledge or assistance of their mother, living in an
abandoned home and finally begging their mother to take them away, so that
their father couldn’t hurt them again,” the judge noted.
The judge also referenced a concept familiar to the extradition
process known as double criminality, whose purpose, as defined by the Supreme Court
of Canada, is to “safeguard the liberty of an individual whose extradition is
sought by ensuring that he or she is not surrendered to face prosecution in another
country for conduct that would not amount to a criminal offence in the country
of refuge.” The provincial court found that under Section 285 of the Criminal
Code (which provides a defence for those charged with “abduction
in contravention of custody order”), no
one shall be found guilty of an offence if the act of receiving or harbouring a
young person was “necessary to protect the young person from imminent harm or
if the person charged with the offence was escaping from danger of imminent harm.”
Thus, the judge concluded, MM “could not be found guilty in Canada…if her
intent was to protect the children from danger of imminent harm at the hands of
their father and this, even if she did have the specific intent of depriving
[him] of possession of the children as well.” No jury reasonably instructed in
Canada would convict her, the judge concluded.
In addition, such a defence against charges of custody
interference and abduction does not exist in the U.S. jurisdiction to which MM
might be sent.
Suddenly free to get on with her life, MM’s sense of relief did
not last long. The Harper government appealed on behalf of the U.S. and the
abusive father, who in interviews with child protection workers never referred
to his children by name, and also admitted to hitting them with his belt buckle.
(Indeed, the father had made no request to contact the children or for custody
in Canada, claiming it would be too long a trip to come and get them. As one
child protection worker wrote, “He did not express that he loved the children
and wanted them to return to the home.” A social worker assigned to the case
noted that American children’s services “cannot confirm that the children will
be safe from abuse if taken back.”
A provincial court of appeal reversed the decision to quash the
extradition, and the case found its way to the Supreme Court of Canada this
past spring. The children sat close to their mother that day and, in what was
likely a first for that staid institution, once the judges left at hearing’s
end, the kids sang a beautiful song of hope they had composed. Clearly moved by
the emotional place from which the kids were singing, guards did not seek to
have them leave the hallowed chambers until the song was complete.
If Canada’s top court rules in MM’s favour, the case will go back
to the Justice Minister (Peter MacKay) for further consideration (still no
guarantee of safety for MM, given that such decisions are political). If not,
MM will be arrested and transferred to the U.S., her kids delivered into foster
care, and her elderly mother (for whom MM cares) will be forced to enter a
nursing home.
Living in Fear
With school out for the summer, the kids remain frazzled because that
life-altering Supreme Court decision could come any day.
According to one of MM’s two youngest children, “We want to stay
here [in Canada] where we feel protected and safe. Our mom did not kidnap us.
It was us who ran away from our dad. The day we left our dad he was coming to
hit us again because when we lived with our dad he would always hit us all the
time. He would beat us and always threaten us with bad things and that he would
find us if we ever left.”
In
the same way MM divorced her husband because she had had enough of the endless
cycle of emotional, psychological, and physical violence, her children ran away
because they, too, had had enough.
“I didn’t wanna be hit anymore so I decided to run and I ran
outside and he told me to go back inside [but I knew] he was going to hit me
again and I didn’t want to be hit anymore because I was so tired of being hit,”
said one of the children. “He didn’t want us to see our mother because he was
always mad at her after she divorced him. One day he caught us trying to walk
to her house and he ordered us to get into the car and he drove us back.
Whenever he went to my room he started hitting me with the belt so hard, it
would be so often that he hit us that it wouldn’t even hurt anymore, and then
he would go to my sister’s room and hit her and tell her to stop crying when he
hit her.”
According to MM’s youngest child, “He would always tell me to stop
crying and that I need to be tough. He was always afraid that the neighbours
would hear.” The middle child concurs, noting, “He told us never to tell
anybody and that anytime someone would come over we would say everything was OK
because we would always be so scared that he would hit us again.”
MM’s middle child says “since we’ve been in Canada, we feel safe
here with our Mom, but we’re always scared that our dad might come back while
we’re sleeping and pick us up again. We always have nightmares or are afraid
that the police might show up while we’re having dinner and just take us.”
The
children’s worst fears were realized four years after they escaped to Canada. Last
November, while they were at school, their abusive father showed up
unannounced at their Canadian home,
inviting himself into the house when the only one home, MM’s elderly mother
(who has Alzheimer’s), did not recognize him. Coming home from school, the
children recognized the U.S. licence plates on his car in their driveway and
ran off. They eventually reunited with their mother in a women’s shelter, where
they spent two weeks until they were sure the father had left Canada. The
children, who wanted to remain in the shelter, returned home reluctantly and
fearfully only when MM promised to dispose of the chair in which the father had
been sitting waiting for them.
As
they await a court decision, they try and get on as a family, juggling school,
soccer practice, and a mom who has to sign in with the authorities on a weekly
basis and adhere, five years later, to very strict bail conditions.
Push-pull factors of an Abusive Relationship
What
was MM’s second marriage in 1995 was disastrous from the start. Living in a
Caribbean nation, she suffered physical, mental, emotional abuse from the
beginning, and after the birth of a first child, came to Canada to escape the
father. “I married him without thinking,” she says, but adds, “I felt bad and
felt like everything was my fault, so I went back to [the Caribbean] and got a
visitor visa for him to come to the U.S. [MM is a dual citizen].” Pregnant with
a second child, things went downhill again, and she received a temporary
protective order preventing him from coming near her or the first-born. She
returned to Canada with their first- and second-born children, and he followed
her here, during which time he whipped and raped her before leaving again for
the U.S.
MM
says she suffered the push-pull factors of an abusive relationship, and that
after getting the “baby blues” following the third birth, she visited the
father once again in the Caribbean nation. After a short while there, though,
he abandoned them when he got his residency papers for the U.S., leaving them
without any of their documents. Meanwhile, MM was also battling an alcohol
problem.
“It’s a vicious cycle and this is a way a person self-medicates to
continue in an abusive relationship, and so in my case it was alcohol and cannabis,”
MM says. While alone with seven children (including the elder four children
from her first marriage), she returned to the U.S. and her home renovation
business, but the father would not leave them alone. In MM’s words, it
continued to be “abuse, abuse, abuse in every possible way anybody can imagine,
and he said he would kill me or destroy me by imprisoning me forever.” She
eventually had him charged, but the case resulted only in a sentence of anger
management classes.
Following a 2001 divorce, she received custody of the children,
with the father receiving visiting rights.
He was granted temporary custody in 2005 when MM went for three months
of rehabilitation. Fearful for the safety of herself and her children, MM at
one point took the children out of state for six months. It was during this
time that the father went to court and got the 2008 order for sole custody, no
contact with the children, and an end to his alimony payments. MM says she was
never served notice of the hearing, and had no chance to present her side of
the story. The kids believed he got custody because he lied to the judge about
the mother abusing them and that, according to a child welfare report, “He put
the blame of his own actions onto the mother’s back.”
Set-up for Arrest
All during these years, MM says everywhere she turned, she faced
possible violations of the court orders and probation. “One January, he had me
arrested when he gave me permission to take the kids to my house for a holiday
and then he called the police on me for interference of custody,” MM recalls.
“He then said he didn’t give me permission. He was setting me up to be
arrested.”
When the courts granted temporary custody to her ex-husband in
2005, MM says sadly, “My kids went to him for custody. I gave him the house,
the swimming pool, the toys, everything. I walked out of my own house, with
only a suitcase.” At that point, she entered rehab, after which the temporary
custody order expired and she took the children out of state (which led to the
full-custody, no-contact order imposed against MM by the court in her absence).
The three children, however, were desperate for their mother, and
kept trying to be in touch with her. At a very young age, the father left them alone
five nights a week while he was out working. Other times, MM says they would be
locked in the basement or forbidden from seeing friends. “They weren’t being
fed or bathed or hair-brushed,” MM recalled. “What was I supposed to do?”
Unable to say no to the cries of her children (a social worker’s evaluation
stated that MM had “always taken good care” of the kids), she would be
subsequently arrested numerous times for violating the custody and no-contact
order when the kids went to her house.
In submissions to Canada’s Justice Minister, MM’s lawyers noted,
“While it is true that [MM] did not always respect the conditions imposed on
her by United States court orders, it should be understood that she has always
done so for the good of her children. …When she fled to Canada with the
children…[MM] felt that she didn’t have a choice, as the children begged her to
take care of them and help them to run away from the danger that the custody of
their father represents to them.” They
went on, “it is clear from the evidence that there was a danger of imminent
harm to the children…there were no reasonable legal alternatives” available to
her.
In
addition to such details, a critical factor was addressed before the Supreme
Court on behalf of the Criminal Lawyers’ Association (Ontario) by lawyer John
Norris, who has handled many an extradition case. He reminded the justices that
under the Extradition Act, the Justice Minister has to consider if surrender
would be “unjust or oppressive having regard to all the relevant
circumstances.” In noting that the U.S. has confirmed MM would not have the
same defence stateside as she would in Canada, he declared: “As a matter of
fundamental justice, criminal liability cannot be imposed on someone when
realistically he or she had no choice but to commit the otherwise wrongful
act.” Under Section 285 of Canada’s Criminal Code, if certain actions are
justified, “then they are not wrongful at all and it would be contrary to the
principles of fundamental justice to impose a criminal sanction in the absence
of any blameworthy conduct.” Further,
“surrender to a legal system which does not provide for a defence that is
required by the principles of fundamental justice would be unjust and
oppressive. It would violate the principles of fundamental justice. It would
shock the conscience and be simply unacceptable. It would, in short, not be
lawful under Canadian law.”
Next Steps
As she tries to deal with the cloud hanging over her head, MM is
studying to become a paralegal, and advocates for women behind bars while
sitting on the board of a women’s shelter.
She says many of the women she met in prison were abuse survivors like
herself.
MM is proud that she has been clean for four years, and continues
to attend counseling individually and with her family. In other words, things
are going fairly well, a result that could all come undone depending on the
Supreme Court decision and what Justice Minister Peter MacKay (or his eventual
successor) decides.
Homes not Bombs, which runs a campaign called Women Who Choose to Live, is organizing political and financial support for MM, from a
letter-writing campaign to Justice Minister Peter MacKay to establishing a
trust fund for MM’s kids (with the goal of raising $10,000). Details on support
are below.
|
3. Contribute to the MM Trust Fund. You can send an email money
transfer to tasc@web.ca
or cheques can be made out to Homes not Bombs and mailed to PO Box 2121, 57
Foster Street, Perth, ON K7H 1R0 (put MM in subject line). There is
absolutely zero overhead for this: all funds will go directly to support MM’s
children.
4. Send a personal letter of support to MM and the children c/o Homes
not Bombs at PO Box 2121, 57 Foster Street, Perth, ON K7H 1R0
|
|
