Tcholatch v Canada, UN Human Rights Committee (2002) (excerpts)

Tcholatch v Canada, UN Human Rights Committee Communication 1052/2002 (excerpts)


8.9 With respect to the claim of undue delay under article 14, paragraph 1, the Committee recalls its jurisprudence that the right to a fair trial guaranteed by this provision includes the expeditious rendering of justice, without undue delay (17) , and that the very nature of custody proceedings or proceedings concerning access of a divorced parent to his or her children requires that the issues complained of be adjudicated expeditiously (18) . The Committee considers that this jurisprudence also applies to child protection proceedings, which relate to the removal of parental authority and access of a parent to his or her child. In examining this issue, the Committee must take into consideration the age of the child in question and the consequences that delayed proceedings may have on the child's well-being and the outcome of the court case.

8.10 In the present case, the child was four years old at the time of apprehension in August 1997, and seven years old at the time of the child protection trial in June 2000. As a consequence of the delayed proceedings, the child's psychologist warned that she was at risk of depression and of developing attachment disorder (19) and that she found herself in a "state of limbo" (20) , as she did not know where she belonged. Moreover, the judge partly based his finding on the fact that the child had formed very strong bonds with her foster parents, who wanted to adopt her, and that she wished to remain with them. The Committee notes that the child initially wanted to return to her mother's care, and that her wish only changed over time.

8.11 It further transpires from the file that the author changed lawyers various times and filed numerous court motions, which delayed the proceedings. She was also found to be a vexatious litigant who, by her numerous motions and appeals, was sabotaging the timetable of the trial. However, these were all motions aimed at reinstating access of the author to her child. The Committee considers that bringing a motion for access should not have as a necessary consequence the delaying of the main trial. In addition, the delay cannot be attributable only to the author. The Committee for example notes that it was on the CCAS' request that the PGT was appointed as the author's representative and that a consequence of this appointment was the postponement of the trial. The Committee finds that in view of the young age of the child, the delay of nearly three years between the placement of the child in CCAS' care and the trial on the child protection application, which cannot solely be imputed to the author, was undue and in violation of the author's and her daughter's rights to an expeditious trial, as guaranteed by article 14, paragraph 1.