For what appears to be the first time in Supreme Court history, dissenting judges have accused the majority of "Kafkaesque" justice after the court ordered a mother extradited to the United States to face child-abduction charges even though the children had run to her from their violent father.
The case involved a divorce in which the mother, because of her substance abuse, lost custody to the father, and had no visiting rights or contact, by order of a Georgia court. But on Oct. 30, 2010, the three children, then ages 9, 10 and 14, ran away from their father because of what they said was his abusive treatment and violence. For a week, they hid out in an abandoned house and with friends, then went to their mother. Their father reported the children missing, and the mother was found with them in a Quebec women's shelter. She could face up to 15 years in a Georgia prison.
Justice Rosalie Abella, writing for an all-female group of dissenters, made her feelings plain about sending the woman to face trial in Georgia. The state has no defence of "necessity" that would allow her to argue she had to protect the children from imminent harm.
"There is no dispute that the children should not be returned to their abusive father," Justice Abella wrote. "To surrender the mother for her conduct in protecting the children is to penalize them for reaching out to her by depriving them of the only parent who can look after them. Moreover, because the defence of rescuing children to protect them from imminent harm does not exist in Georgia, the mother will not be able to raise the defence she would have been able to raise had she been prosecuted in Canada. Surrender in these circumstances is, with respect, Kafkaesque."
A database on the Supreme Court judgments website shows the term "Kafkaesque" was used by judges on four previous occasions – in 1990, 1994, 2012 and 2013 – but never by the dissent to describe the court's majority ruling. (The database has all decisions since 1876.) Justices Suzanne Côté and Andromache Karakatsanis concurred in Justice Abella's ruling. Chief Justice Beverley McLachlin was the only female member of the court who sided with the majority in the 4-3 ruling.
The majority said the principle underlying extradition is that a person should be answerable to a country's laws while in that country; Canada may extradite a person if the act at issue would have been deemed a crime here. Justice Thomas Cromwell, writing for the majority, took issue with Justice Abella: "As I see it, my colleague's reasons propose to turn extradition hearings into trials." The hearings only need evidence capable of leading to a conviction, he said. He also said coercion is a defence available in Georgia.
One legal observer, who asked not to be named, said that, when the judges first sat down to discuss the case, Justice Abella may have been assigned to write the majority ruling, but that someone changed sides. The observer based this comment on how thoroughly Justice Abella set out the facts of the case, usually a job that falls to the majority.
Franz Kafka, a Czech writer who died in 1924, wrote a novel called The Trial, in which the main character is charged with an offence but never told what it is, making a defence impossible.