Chief Justice Beverley McLachlin #

Few figures in the pantheon of the Canadian judges’ trade union have a more formidable reputation than Beverley McLachlin - brilliance at the law, steadfast vocal adherence to legal principles, - perhaps not quite so keen on the noble virtues of truth or Justice, rising to dizzying heights in the service of the Judiciary.

My first introduction to former Supreme Court of Canada Chief Justice Beverley McLachlin were her comments at the Canadian Bar Association (CBA) annual meeting in Saskatoon in Aug 18, 2013. The meeting claimed the most pressing challenge facing the administration of justice in this country was ensuring that Canadians are able to access the system, calling for more federal funding for civil legal aid; not any internal issues of rogue Judges delivering implausible findings.

Astutely acknowledging the pain associated with legal procedures, McLachlin, misdiagnoses its causes, indifferently deflecting the blame to a lack of public funding, rather than to poor judicial processes and her creating and fostering a culture of arbitrary decision making. The question that lies at the heart of her incalculable impact, is whether she was a force for a better Canada or not?

Timothy Snyder’s book On Tyranny underlines the importance of professional ethics in all positions of power and privilege.

We should be concerned about a string of scandals relating to the conduct and ethics in regard to decision making of prominent, respectable judges, protected by highly-compensated professionals, ranging from executive secretaries, Chief Justices, politicians and ministers of justice.

These scandals have rarely affected the public reputations and careers of those involved, certainly not in any meaningful way. It’s as if these acts of malfeasance are relatively harmless. Yet they do irreparable self-inflicted harm to institutional respect and trust, leaving us open to demagogues to exploit.

A timeless norm, surely, is whether all judges were held to account for not following elementary processes of considering all available information, establishing the facts, by testing and discriminating conflicting assertions and by substantiating all determinations. To avoid a bizarre normalcy, obvious conscious failures need deterring consequences. It would be hard to overstate how inimical to their reputations, bad decisions become.

Judicial dispassion is only part of the solution; judicial incuriosity in establishing the truth and reflecting reality needs to be enforced. IOW: More disinterest, less uninterest.

To avoid the rising tide of judicial mediocrity, all judges need better training in the history and pursuit of justice.

Under McLachlin’s watch, the well being and welfare of Canadians was no longer the main objective; replaced by the security, status, and supremacy of the judiciary. Elite impunity is characteristic of auhoritarian regimes; not healthy, robust democracies.

Later, I found several puff interviews posted on the CBC website. It’s amazing what the fear of losing funding can do to tame a gelded public broadcaster. As a Judge she came across as personable, warm and intelligent.

I followed her career with personal interest from then.

After lodging a deeply disturbing complaint to the CJC. all I received in March 2015, was a short letter to the Judge concerned, thanking her profusely for her letters defending her unsubstantiated determinations.

Despite the fact that:

“The Canadian Judicial Council is mandated to review “any complaint or allegation” against a superior court judge and respond to all complainants.”

I have never received a meaningful response to my complaint. I do feel aggrieved.

I feel a form of moral betrayal of gross injustice due to a breach of trust, and systemic failure of properly overseeing the “compliance” scheme. I feel let down by this compromise of professional standards by our taxpayer funded commissioned authorities. A loss of civil liberty to one, is a loss to all.

This should raise serious questions about McLachlin’s attitude to governance, integrity and accountability.

Instead of a judicial watchdog empowered to enforce basic standards, we have a lap dog condoning shambolic processes, uncommitted to the full discovery or establishment of facts.

Errant judges need to be held accountable when they fail to meet realistic community expectations.

By failing to respond, Canada’s Chief Justice, failed to discharge her legal obligations; unilaterally revoking a mandatory statute of Canada’s Judges Act of 1971. This breach of obligation cynically debases the profession in pursuit of protecting institutional power.

This failure to meet such a fundamental responsibility remains an abdication of responsibility and a betrayal of a crucial trust. This failure to defend the integrity of the CJC should have rendered her position untenable. However complaints to our elected representatives are futile.

Doing nothing should not be an option.

Inaction, by parliamentarians, just damages our faith in them, the credibility of the Supreme Court, the reputation of our justice system and Canada’s international standing.

The 2008, GLOBAL INTEGRITY report gave Canada’s judicary a 30% mark, noting that:

“there is no accountability at all on the part of any judges in Canada because of a complaints’ process in which judges judge other judges. The Government accountability watchdog agencies have a weak enforcement record”.

The judicial watch dog regulator, in dismissing thousands of serious incident reports regarding deliberate mismanagement of evidence, without proper assessments, results in serious risk to judicial authority. Condoning judges brazenly perverting the delivery of justice means the CJC isn’t doing its job properly – and that is failing vulnerable people - everybody loses.

This hollows out the judicial stature.

Despite many international monitoring bodies recommending stronger regulatory enforcement, the Canadian government, walked away from any meaningful and effective action.

For the self funded Innocence Canada to expose more than ninety wrongful convictions under McLachlin’s watch, fails to impress. It remains ineluctable evidence of judicial failure. It appears an act that speaks, at best, of catastrophic negligence. How many more perverse court cases were ignored to the detriment of Canada’s image?

Wrongful convictions happened because of a political and media culture that punches down on voiceless people by dehumanizing people.

This is symptomatic of another broader sickness in our media and our political culture that the perpetrators of injustice can bank on their reputation being laundered while the victims are forced to come to terms with the impunity of the errant judges.

When the hunters are in full tally-ho mode pursuing rogue justices, finally flushing them out of their lairs, there could be a whole colony of rabbits quivering in the long grass, awaiting dogs picking up their scent.

Unfortunately, the hounds, like Sherlock Holmes’ dog that didn’t bark; let alone bite, come to mind.

No wonder Transparency International, in 2022 and 2023, continues to downgrade Canada’s position on its global index to highlight the need for countries to improve checks and balances through strong integrity institutions and to uphold people’s rights to hold those in power to account.

That puts the CJC at odds with overwhelming public expectations and the higher standards pursued by the Pierre Trudeau government.

The CJC is supposed to keep judicial processes ‘fair, orderly and transparent’. It fails!

Government inaction on this issue is unconscionable.

Some judges believe in the divine right of judges; they have the God-given right to speak truth to power, but no-one is allowed to speak truth to them. Some believe in their omniscience and omnipotence.

Albert Einstein distinguished between “what is true and what is real”; truth is subjective and abstract while reality is objective and concrete. Failing to reflect reality suggests the courts appear out of touch with reality.

In the Real World, the World of Tabloid Journalism and the Legal Industry, truth is malleable and can be manipulated, distorted, selective and sacrificed for ulterior motives.

In the Western court system, there is no real truth; only legal truth – a presumptive determination based on limiting evidence, sometimes to the extent of blind decision making in a hermetically sealed vacuum tube.

If the court system wants to be respected, it must at least attempt to get to the truth reflected by reality.

Modern-day authoritarians don’t come to power through brute force. Instead, they advance slowly, one little step at a time. Authoritarian tactics are already at work in most democracies, from intolerance for dissent, and the tightening grip of arbitrary decision making of the courts as exemplified by the American Supreme Court.

Despite paying lip service to transparency, fine sentiments, in the abstract, McLachlin fostered an obsessive culture of silence and impunity, prioritising the protection of underperforming Justices, risking the reputation of the courts, or rights of citizens.

According to a quote by Deakin Law Review, attributed to Chief Justice McLachlin in 2003:

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. (Bentham) It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.

A banality of evil posturing, conducted without the slightest sense of irony. And they wonder why we are cynical and drowning in a sea of distrust, thoroughly disillusioned, bordering on despair.

Either you believe in transparency and holding the powerful to account, or you believe in secrecy and preventing the powerful from being held to account. “Erst he wroughte, and thanne he taughte.”

A predisposition to secrecy still handicaps integrity in Canadian legal circles. Only by naming and shaming integrity guardians, could they be compelled to do their duty.

Public disquiet over any alleged secrecy is often much greater than the anger at the actual offence itself.

Any loss of credibility, in judicial virtue, results in a loss of respect and authority.

Allegations of peer support within the Judiciary tell a powerful story of judicial mentalities, systemic power and privilege that still pervades all parts of the legal system. Judge’s commitment to equality or justice often remains in principle only, for when it comes to taking any meaningful steps to advocate for the ordinary citizen, they cave into vested power.

“Justice should Never Sleep”, But under McLachlin, it appeared to doze off from time to time.

What I find startling is how systems can fluctuate between extreme highs and lows. Healthy democratic systems appear to have internal resilience; the capacity to self-correct. We are patiently waiting for Canada’s to right itself.

The Judiciary must play its proportional role in reinvigorating public confidence in the institutions of democracy if western societies wish to retain the liberal values on which democracy is built.

The highest order of the judiciary is that they effectively mediate conflict in a fair and balanced manner, maintaining our respect.

Some judges are rendered insensible of absurdity and incapable of ordinary discrimination between truth and lies.

This results in the Court’s failure to properly govern itself; a demonstrated inability to preserve its own legitimate conduct, resulting in a loss of the community’s respect, trust and prestige.

The Winnipeg Free Press on 30/08/24, reprinted a Aug. 30, 1966 report:

“the president of the Canadian Bar Association told attendees of the organization’s annual meeting the country’s judges were often ill-equipped and should take a six-week university course before ascending the bench, and that the system showed “a gross lack of legal care” for the poor, the young and the friendless entering the lower courts.”

Could I suggest a year long weekly night course studying Literature and Justice based on the following curriculum:

https://nebo-lit.com/topic-areas/Justice/justice-and-literature.html

We are entitled to at least two kinds of adequacy ascribable to jurisprudence standards: documentary and procedural. Failure in either is inexcusable and intolerable, requiring redress.

McLachlin’s career highlights just how difficult it is to achieve accountability in the public service, when those responsible deliberately resist all attempts.

The CJC defiantly flicks the bird at our parliamentary representatives. Evil thrives in silence. Her failure to respond is an abrogation of duty; an unacceptable violation of my guaranteed civil right, contrary to the fundamental requirements of a 1971 Mandatory Statute of Parliament.

When judges purposely ignore a few details, they complicate the story upon which they base their determinations

Consistently failing to investigate legitimate complaints from the public about judges who rule on bogus evidence puts at risk judicial legitimacy, representing a continuing comprehensive and contemptible failure of the under-regulated system in Canada, indicative of a lack of public accountability.

It is in the dual moral and professional dimensions, that requires robust reformative leadership.

Ignoring decadent and morally degenerate judgements, replacing fair, just and honourable processes, ultimately damages the prestige of the entire judiciary. Culpable intransigence connives in its own destruction.

“Fish rot from the head down”. Self - serving institutional cultures begin at the top, and seep into every crevice. Under her watch the CJC abandoned standards of verifiability, neutrality, and transparency. It’s a study of limited individuals, immersed in a self - affirming legalistic mindset, evolving into an autistic culture.

McLachlin seems unable to distinguish between the judiciary’s interests and the country’s.

Cabalistic toxic cultures are formed through coalitions, consolidating internal power by taking collective action, demonstrating a quasi-orthodox approach to evidence based decision making, bolstered by disingenuous legalisms.

It remains my conviction that reining in erring judges allows good judges to shine their beacons of sound justice fostering greater respect for all good governance.

What leads judges to dispense and protect senseless judgements? Why are they able to deliberately misapprehend and misrepresent evidence?

When Judges are condoned for creating fictional settings for their fictions of baseless findings, then we too are livng in Trump’s fantasy land, utterly detached from reality.

Courts are finding more ingenious ways of excluding evidence, reverting to casual and indiscriminate use of arbitrary decision making; more and more legally privileged information joins prejudicial facts and Attorney-client privilege and confidentiality as inadmissible, leading to decision making in a hermetically sealed information bubble. What results can be unjustifiable, blinkered, grotesquely unrealistic views of reality. Soon blinkers will be superceded by the full blindfold. Blindman’s Bluff anyone?

Judges undermine their own credibility when they make meaning in situations where they disregard reliable evidence in favour of self-serving assertions. Abandoning evidence-based decision making is illogical (harmful) vacuous, nescient, posing a serious threat to judicial authority. This puts the whole judiciary into disrepute undermining our faith and confidence and eroding trust in our most valuable institution.

As John Carpay notes in his new book, Corrupted by Fear:

“fear corrupts those with the highest duty to protect our freedoms.”

The rot started when McLachlin’s view became the prevailing view infecting decisions at all levels. Unless it is excised, more scandals like the Manitoba’s are inevitable. It is not possible to create a self-serving culture inside any profession without these values spilling over into the misuse of discretionary power. If Parliament tolerates a self-interested system internally, it should not be surprised that self-interested individuals, end up behaving corruptly.

This indicates the depraved legal and regulatory system is simply no longer fit for purpose; serving the greater community.

We need a new model of leadership that improves co-ordination, consistency and clarity on how judges arrive at their conclusions to better serve the community, restoring our respect. New leaders face the same intractable problems as their predecessors. Will they rediscover its institutional purpose?

As Adam Serwer, of The Atlantic said of the American Supreme Court, They have too much power and can abuse it without fear of accountability or consequences.

It is their failure to distinguish Presidential limitations from an absolute king, which frames democratic constitutions, theatens the end-of-democracy in America. Since the nineties, more and more officials are claiming immunity from prosecution.

John Hewson expresses our age of impunity cogently:

Donald Trump, a convicted felon and alleged rapist, has been able to undermine the integrity of the judicial system by getting a decision of immunity for his actions out of a Supreme Court he had stacked. This decision was made despite the outstanding charges related to the Capitol insurrection, attempts to overturn the outcome of the last election, and various issues with the mishandling and falsification of documents.

Indeed, it is worse than this. He has basically been able to game the judicial system to his advantage and is committed, if you accept the thrust of Project 2025, to completely undermining it by reducing the power and status of the Department of Justice.

While the process of addressing Nixon’s abuse of the system and other failings was agonisingly slow, as it took time for Woodward and Bernstein and Deep Throat and the special prosecutor to do their jobs….

Governing is about priorities, and trust in our institutions is the highest order of the state. We should all be concerned about the increasing shamelessness of political inaction regarding the lack of standards of Judges. No one, especially a Chief Justice, is owed absolute power or unlimited immunity.

Governments don’t like transparency. They don’t like scrutiny. They don’t like people asking questions …. And they’re very reluctant to bring in reforms that diminish their unrestrained power.

Modern politicians have become increasing reliant on rhetoric and grand but unsubstantial denunciations of perceived wrongdoing.

Politicians, abandoning common sense and abandoning the pressing needs of their people, to instead reflexively support dodgy judges, is… two-parts craven, one-part irresponsible. Glorious inaction appears the default option.

Parliamentarians need to safeguard us against anti-democratic power grabs and regard the defence of democracy as their highest priority. We can ill afford to allow any institution impunity.

There are alarming signs of democratic decay in rising levels of distrust in our judicial system. This is particularly so among the young and less advantaged.

Pierre Trudeau’s 1971, attempted reform of the Judges Act worked for some 35 years, but foundered after some judges decided to hi-jack the agenda and rule by the seat of their prerogative pants.

The truth is, the reforms didn’t stick. Some of them are formally defunct; others were simply disregarded.

That craven politicians countenance this mindset, indicates a lack of spine to hold judges, on all benches, to acceptable consistent uniform standards, or to account for their brazen contumely, is in stark contrast to that of her predecessor, Brian Dickson.

Canada is either a country bound by the rule of law or we’re not. The CJC’s refusal to respond, attests, we’re not; rather one of judicial implacable privilege.

Chris Leafloor, writng in the Canadian Lawyer, Jun 2024, raises these urgent issues.

The veil of secrecy should be lifted as much as possible so that everyone involved, including the public, may have honest discussions about improving our justice system. Without improvements, the situation may continue to decline. Chris Leafloor

I recall sending Chief Justice Beverley McLachlin, many emails respectfully pleading with her for a response. I am just so happy now, I didn’t hold my breath!

Irresponsible parliamentarians fail us in not enforcing their own statutes, appearing unconcerned about the civic consequences of corruption in the ranks of those they are meant to oversee.

There appears a disturbing level of ineptitude in our judicial ranks. If good judges want our respect, they need to deal with the deliberately erring ones.

Canada’s gelded parliamentarians, at provincial and national levels offer a complete lack of accountability for judges’ mismanagement of evidence. Long live distortion, casuistry, chicanery - passion for incomprehensible language, - anything masquerading as judicial discretionary privilege, is unquestioningly supported by utter impunity.

However if you display any signs of being an actual human being, like, Justices Lori Douglas, Frank Newbould, Graeme Mitchell, or Russell Brown, the CJC will act adversely with alacrity. Vastly more important is what Judges do in the court room to maintain their legitimacy and our respect for the delivery of Justice.

Most liberal countries resemble an oligarchy, rather than a democracy. In an illusory democracy, our protests fall on deaf ears. Because of its elevated status, obvious failures of the judiciary are not widely acknowledged or corrected. Authoritarian officials seldom disavow democracy. They turn it into a charade. They preserve its forms while strangling its substance.

If only judges and our elected representatives were aware of how profoundly alienating their lack of due diligence affects the erosion of faith in the general populace.

My most difficult quandary is to determine which of Shakespeare’s tragic heroes McLachlin resembles – Macbeth or Julius Caesar. All three begin strongly with illustrous, stellar promise, but succumb to an insatiable lust for power and dominance, failing to comprehend any internal sense of limitation that real people have.

Actually she aligns with Lady Macbeth’s advice: “look like the innocent flower, but be the serpent under it” and the assertion:

“ What need we fear …., when none can call our power to account?

As Abraham Lincoln said:

“If you want to test someone’s character; give them power.”

I believe democracy fails, when authorities fail that character test. Democracy’s foundational values assume we are all equal and that it favors the many instead of the few.

Correspondence to Beverley McLachlin #

An abridged version of my last appeal before she retired:

November, 14th 2017 The Honourable Beverly McLachlin

With due respect, I feel my submissions to the CJC have all been treated with callous disregard.

As a result, my faith in the Canadian Justice system is being severely tested

High handed decision making ultimately diminishes our faith, confidence and trust in officialdom, undermining the very credibility, authority and legitimacy of the entire system by a denial of mutual respect.

Other cases have also caused me deep concern about the independence and integrity of Manitoba’s Queen’s Bench.

The Hoffman Heinrichs was case adjudicated by Justice Greenberg in 2012. It appears to have been determined by an ulterior non-factual agenda based on mystical subjective and summary conclusions. Reasons for decisions should be evidenced, including indicating where they are based on questionable inferential judgments.

Not only did the six day court case find against all the solid evidence, the subsequent Appeal compounded the miscarriage of justice with Ozymandian claims based on four factually unfounded premises. That is quite an achievement!

To appropriate Oscar Wilde, to get one finding wrong may be unfortunate, two - careless, three – negligent, but all four appears perverse.

Yet all attempts to have these decisions held to account failed. The Canadian Judicial Council displays its Kafkaesque power by simply ignoring my inherent rights as a Canadian citizen and taxpayer to a meaningful response.

Norman Sabourin’s most practiced skill appears to be an alacrity in closing files.

File: 14-0393 does need further attention, lest it prove damaging to your otherwise exemplary legacy.

It would be a shame for Beverly McLachlin to have to suffer with Macbeth’s;

my way of life
Is fall’n into the sear, the yellow leaf;
And that which should accompany old age,
As honour, love, obedience, troops of friends,
I must not look to have; but, in their stead,
Curses, not loud but deep, mouth-honour,..

Before you retire could you please reconsider re-opening File: 14-0393
I would appreciate a personal response with cogent reasons if not.

With respect,

Charles Klassen 885/22 Jane Bell Lane, Melbourne, Vic. 3000 Australia

Copies to:

The Honourable Prime Minister Justin Trudeau
The Honourable Jody Wilson -Raybould
The Honourable Justice Minister Heather Stefanson

One could expect the courtesy of a reply - but only if one were politically naive. As a serial plaintiff of authorities, who I believe are derelict in their public duty, in most cases, I generally do receive courteous, if perfunctory, replies. I believe as a Canadian citizen and taxpayer, I am worthy of my legal entitlement.

Perhaps this is what I should have written:

With apologies to black abolitionist Frederich Douglas in Rochester, New York, who wrote on July 5, 1852: (adapted)

“Your court system is a sham. Your posturing greatness, swelling vanity. Your claims of impartiality; brass-fronted impudence. Your boasts of fairness openess and equality; hollow mockery. Your rituals and ceremonies, with all your pompous robes and theatre; mere bombast, fraud, deception, impiety and hypocrisy - a thin veil to cover legal perversities would disgrace a nation of savages…”

There can be no doubt about McLachlin’s pre-eminent status as an exemplary Justice, however my fundamental concerns remain that as Chief Justice, she had a higher calling to maintain consistency and uniformity in the delivery of justice on her watch. The Chief Justice seems unable to distinguish between her profession’s and the public interest. Due to lack of enforcement, some judges abused inferential privilege with impuniy, with the CJC becoming a toothless tiger.

It defies common sense to think that someone of McLachlin’s evident legal calibre was ignorant of her basic duty of providing transparency through truth and response. Any unlawful shirking of duty is a breach of trust. The fairness and transparency of our justice system underpins our whole democratic society. McLachlin displays an arrogance and selfishness that foreshadowed creeping authoritarianism now apparent in America with Donald Trump and Trumpism. As the Washington Post’s logo reads: “Democracy dies in darkness.”

Some feel as if the ability to flout the law, while claiming to defend or personify it, is the sole true measure of their prowess. What I don’t hear is anybody calling it for what it appears … a defiant breach of the CJC’s charter, constituting an abuse of privilege and power. Her silence contitutes dereliction of duty, by refusing to acknowledge the truth, and fufil her official duty to the Canadian public.

It should be patently clear to all, that Canada has become a judicially flawed system; a threat to social cohesion.

In my experience every once and awhile we hear something that seems too bonkers to have come from an official and are left trying to piece together a story as if it came from a normal person. This is called “bias toward coherence,” and leads to careful circumlocutions instead of credible rational justifications.

Judges, like Greenberg, are expected to act in a respectful manner and refrain from making decisions based on unchallenged and unfounded evidence that discredits, undermines or compromises the integrity of the entire judicial system. Her forensic skills appear of almost unparalleled shallowness. Greenberg relied on stereotypes, assumptions and assertions that were immediately demonstrably false.

Her judgements seem a pattern of misguided presumptions, open to fantastical interpretation, aberrant decision making, which magically transformed our well documented family narratives into paranoiac conspiracy theories.

Then we were expected to accept The Appeals Court’s wooden proclamations, in which the real and the unreal become hopelessly intertwined.

Both courts made dubious deductions from dogmatic assertions, unfounded premises leading to concocted conclusions; too self-blinded to see, and too willful to understand.

This case casts doubt on whether the justice system can deliver real truth.

Consequentially the CJC’s inaction on this case emboldened Greenberg to inflict more damage on the flawed Canadian judiciary’s repute in at least two more cases, Jason Hyra 2016, and Frank Owstroski, 2018. Yet our hapless parliamentarians stand by unperplexed.

Jonathan Kroft, challenging a Manitoba Appeals Court decision claims:

“The public right to learn about its justice system has long been recognized as a key element of the democratic system in Canada and a core element of freedom of expression, but unfortunately, ambiguities in our rules of procedure and appeal rights have made it difficult or cost-prohibitive for the public to actually enforce their rights.”

We can’t simply shrug about a province with a sordid history of political corruption, condoned by a national justice system that seems inured to actual scandal.

It would take some serious compelling arguments to convince me that this defiance to the rule of law by the Canadian Chief Justice does not constitute a shameful affront to all Canadians. McLachlin failed to uphold the judges, under her watch, to traditional legal imperatives of sound reasoning based on founded evidence. This caused significant reputational damage to, what should be our most prestigious institution, which should be of concern to all politicians, who need to recognise that judicial accountability is the highest priority required to restore trust.

If this doesn’t alarm you, then presumably nothing will. This demonstrates how the judiciary is allowed to debauch the Canadian Judicial system in a way that surpasses even the excesses of Trumps’s grab for power.

New appointees, inheriting cumulative unresolved problems, must actively undo harms done by their predessesors. In this case, the former Chief Justice failed to uphold the law, legislated by parliament. In my opinion, this is extreme professional negligence, left for someone else to deal with.

The blatantly obvious hostility to transparency in the way the CJC uses its power to fob off complaints about evidentiary mismanagement leaves unanswered questions about whether it is going hard enough against deliberately erring judges. How Judges perform in their court rooms is much more important than their activities in their private time, yet in the cases of Justices Lori Douglass, Frank Newbould, Graeme Mitchell, or Russell Brown, the CJC acted on appearance rather than reality. The courts appear not about justice or truth so much as a chilling lesson in untrammelled power: who wields it, to what end and, not least, at whose expense.

McLachlin’s refusal to respond indicates a defiant lack of transparency, and above all, accountability.

It is essential, for democracy, to hold the powerful and influential to account.

There is mounting evidence that McLachlin took Canada’s court system in much the same direction as the American one, resulting in a collapse of social trust, due to some justices recklessly contributing to the growing disrespect for the Court as an institution. That disrespect stems in part from ethical scandals but in part, too, from the vast gulf between this Court’s substantive understanding of the delicate checks and balances required by the Westminster System, as well as its approach to the task of judging from evidence, and the vision of values shared by the great majority of its citizens. (Laurence H Tribe)

Hannah Arendt’s The Origins of Totalitarianism argues that thoughtlessness, indifference and apathy are characteristics of modern evil. The epitome of the “banality of evil” is mediocrity and thoughtlessness.

people for whom the distinction between fact and fiction (i.e, the reality of experience) and the distinction between true and false, no longer exist.

In our post-truth age, some judges are “positively keen for deceit”. Arendt maintained that our very sense of reality, our “common sense”, depends on our good will and curiosity, our adventurous enjoyment of robustly testing our opinions and perspectives against those of others. to Arendt’s attempts to make sense of our common experiences without fear or favour: “Now pay attention and get on with the work pursuing the truth.

Those genuinely concerned with the truth and addressing institutional integrity, are acutely aware of how vital evidentiary management is to trust, and to the reputation of the entire Judicial System. All parliamentarians are morally and ethically culpable, due to their failure to enforce their own laws.

When judges become purposeful gulls of the extraordinary webs of lies of serial liars and fabricators of evidence spun by witnesses, it turns the court into a willing lie-laundering institute. Airy claims and baseless assertions should not lead reasonable people to unfounded conclusions, flying the in face of contrary primary material evidence.

It is a basic moral tenet and enduring concept in legal systems that what a judge does on the bench with evidence, is the most critical factor in assessing their performance, affecting our faith, confidence and respect for the institution.

All government authorities are charged with the collective responsibility of maintaining the integrity, credibility and authority of the Justice System.

I wonder how a Judicial system can have strayed so far from its original values and purpose.

We need to reclaim our inherent, inalienable, and inviolable right to an equitable and honourable court system conducted with procedural fairness to regain the trust of the people.

The modern idea of a national conscience is tied to our self - image. Canada reigns supreme in many areas, however this image is fragile and in danger by any and all self-serving institutions who value their own interests above that of the public interest. Each nation faces an urgent need for the government of the day to demonstrate the will and spine to corral and rein in its irresponsible bureaucrats. Tyranny lurks just under the veneer of decency.

As Jeannie Suk Gersen writes;

“rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time.”

There appears a phenomenon that some Judges have become so a stratospherically entitled - so remotely removed from their formative roots that they are wholly innocent of any knowledge of what Justice is all about.

Do Judicial officials have to abide by the laws of parliament? In Canada, obviously not.

Legally speaking, requiring public servants to comply with statutary laws, sounds like a fairly modest exercise of that authority.

Under her watch the CJC flagrantly violated its mandatory statutes on open Justice with a number of secrecy offences due to failures of full disclosure in the public interest. Enforcing the law is harder than it might seem, when those commissioned to enforce it, display contempt for it.

Yet all governments seem so bereft of statutory enforcement; whose spinelessness tolerated this decline in judicial standards.

As Noam Chomsky tells us:

There is no point in speaking truth to power; it already knows the truth and is busy concealing it. Therefore, it is more important to speak to the oppressed.

Perhaps that is why right wing politicians get their traction.

Beverley McLachlin’s failure to respond represents just one more instance of abject systemic failures of accountability. It’s a stark illustration of how power works in Canada. All attempts, through at least five Ministers of Justice, the Premier and the Prime Minister, failed to hold anyone to account. Under the Westminster System, holding all parts of the Justice System to account is the responsibility of Parliament.

Human rights for every individual, is a nuisance to those in power.

John le Carré writes,

“Secrecy keeps mistakes secret, secrecy is a disease. It causes a hardening of the arteries of the mind.”

Self-awareness in short supply when Judges defy Parliament’s statutory mandates with utter impunity.

Aeschylus and his Greek contemporaries believed that the gods begrudged human greatness and sent infatuation on us at the height of our success, thus bringing us to disaster. Mankind’s infatuated act was frequently one of impiety or pride (hubris), for which their downfall could be seen as a just punishment.

McLachlin appears to embody in stark and indefensible terms, incremental unentitled privilege of unconsciously power-hungry people in high office. As Nietzche illustrated, the urge for ascendancy and supremacy of the Will to Power incipiently and insidiously seduces us. True, sapient, leadership is about earning respect; not subjectively and arbitrarily wielding unchecked authority. Maintaining public confidence through judicial integrity is the highest order of the state.

Powerful and sensitive weapons need to be handled with extreme care if they are not to harm the user as well as the intended victim. Judicial prerogatives are powerful and sensitive weapons.

In any democratic system, the courts must always be the trusted ultimate arbiters, which is why they hold such an eminent position in society. Once they betray that trust, they shred their own authority, respect and legitimacy.

Trust detriment, through poor decision making, reflects organisational cultures that do not focus on public interests. Such cultures promote short-term, small time power assertions, over longer-term public faith. Senior leaders, lacking willingness to tackle endemic cultural and systemic problems, undermine public faith, contributing to a lack of public confidence and trust in the entire system.

This represents a systemic, co-ordinated evasion of accountability. We need to be aware of creeping authoritarianism, to ensure democratic freedoms apply to everyone. If they don’t, they’ll soon apply to no one.

How do we force our leaders to lead and shoulder the responsibility that comes with high office? Letters, emails, requests for meetings, all are ignored or palmed off by staffers who see their role as gatekeepers, rather than facilitators of democratic debate. Lobbyists and special interest groups have exclusive access, but the public has none.

Trump connects with those who feel that the political elite and the mainstream media are ignoring their concerns. Canadian protestors had a similar message.

There is increasing evidence of judicial power grabs, usurping our democracy. Michael Lesage, writing for the 09 Aug 2024 issue of Canadian Lawyer, claims that despite Ontario’s Auditor General advice that:

“The courts are public assets, supported and financed by the people of Ontario, and the administration of justice is a public good, … we nevertheless believe that it is within our mandate to review information that would be needed to assess the effectiveness of court operations and the efficient use of resources, given that taxpayer monies support court operations.”

Lesage is concerned that Ontario’s Court of Appeal has broadened the Canadian version of judicial independence, turning it into a complete shield against judicial accountability and frustrating the ability of the public and press to learn very basic information about the function, or dysfunction of the court.

Did no one forsee the fact that McLachlin’s 1992 marriage to Frank McArdle, a lawyer and executive director of the Canadian Superior Courts Judges Association, could constitute an impossible conflict of interest? Was this a factor in what appears a conscious decision by judicial officials to not comply with a parliamentary statute?

Is this the reason for the CJC’s desultory, timid and ineffectual modus operandi?

The time honoured phrase that “Justice should be not only be done but seen to be done” needs constant repetition to remind Judges to discharge their duty to the community by fair and honourable means.

Dean Rostow’s conception of the judge’s role. The law,

“is the central institution of a changing society”; “the proponent and protector of values which are premises, goals, needs, and ambitions of our culture, as they have been expressed in our living constitution.”

However, in order for the courts to be respected, they are instituted to protect us from dangerous people for the common good and to resolve family disputes fairly and equitably to avoid future strife. In this they appear to be manifestly and demonstrably failing.

Brendan Behan claimed:

“There is no situation so bad, the intervention of the law cannot make it worse”

Prolonged disasters occur in authoritarian systems that lack institutional capacities to self-correct.

In a free society any person is entitled to criticise the conduct of the courts or of a judge. The courts cannot be and are not immune from criticism which may extend to robust observations of a particular decision or how it was determined.

Linda Greenhouse of the New York Review questions how should we think about the Court today—its extraordinary power, the agenda of its new conservative supermajority, its place in a democracy suddenly turned fragile?

Canada previously enjoyed a high reputational jurisdictional status, due in part, to the illustrious career of Brian Dickson who recognised judicial limits.

Dickson’s essence was his sense of limits and equilibrium; McLachlin’s was the absence of measure and rejection of judicial restraint. Dickson acknowledged the court’s duty to serve, while McLachlin asserted its supremacy over servile Parliamentarians.

In effect, McLachlin enabled judges to impose arbitrary views through absolute discretionary privilege. Under her watch, judicial independence, devolved into a complete shield against judicial accountability.

The reputational status of the talismanic Brian Dickson remains secure, while McLachlin’s is likely to fade into global disgrace.

However, wrong doing by authorities, must be called out for what they are, a contempt of democracy. All Public Servants are there to serve the public; not flaunt their awesome bulwark power.

McLachlin could listen to 17th century British historian, Thomas Fuller, whose commentary ‘Be ye ever so high, the law is above you’ Disregarding clearly mandated statutary laws erodes respect.

Junot Diaz noted: “Eventually the past finds you. As for so many in positions of power, the moment to reckon with the consequences of past behaviour eventually arrives”.

Consider the legacy of Beverley McLachlin. It is my considered view that under her watch, a sclerotic culture, emptied of its essential identity, its central idea, its core purpose, slowly evolved, perhaps unintentionally. Her motto of “Conscious Objectivity” morphed into a sacred creed of a unanimous front of arbitrary, subjective and collegial decision making.

Albert Camus admires intelligence, but distinguishes between “intelligent intelligence” and “stupid intelligence”.

Intelligence is stupid when it is uses eristic or legalistic tricks. Intelligent intelligence is ethically serious – but not necessarily earnest.

Justice Greenberg represents a paradigm shift, insidiously detrimental to society; sophisms - subtle, tricky, superficially plausible, but generally fallacious methods of reasoning, became tacitly accepted and publically defended. Among the many anomalies of her decision making reveal a move toward unfounded but discretionary, arbitrary findings, contrary to solid primary material evidence.

The concentrated power invested into caprice, whimsical decision making and intentionally warring against the facts, spells hubris, fomenting skewed judgments. When determinations are based on complete falsehoods, wilful misunderstandings, and deliberate misconceptulations, disregarding material evidence, leading to incompetent and naive assumptions, they inflict irreparable reputational damage, infecting the entire institution.

As a recidivist - a serial offender, Justice Greenberg has caused a maelstrom of deep pain and suffering to many hapless victims that needs greater scrutiny. The Jason Hyra and Frank Ostrowski deliberately wrongly adjudicated cases are two, of what could be many others, providing grounds for investigations into possible impeachment.

The greatest damage Beverley McLachlin’s legacy perpetrated, secured intellectual autonomy for Judges. This attempt to legitimise capricious judgments become increasingly justified by personal subjective interpretations, eroding respect for all judges, corroding and corrupting our democracy.

Has the McLachlin era’s legacy of unaccountability utterly dissolved judge’s capacity to separate truth from unreality? Did it so lower standards of judicial integrity — so erode public expectations of truth and transparency — that it breached that unholy point of no return, consigning us, unfathomably, to an eternity in McLachlin’s depraved new world?

Perhaps not all the blame for Canada’s current crises of disrespect of authorities can be apportioned to Beverley McLachlin, but her attack on the high court of Parliament led a judicial coup d’etat” (against democracy – the power of the people).

McLachlin opened the sluice gates of evidentiary mismanagement, licencing Judges to apply the law as they see fit, guided by their soloistic views, which would be laundered into objectivity by imagining how those views were best magnified by the Charter. The result was still “the law, eternal, majestic.” (1)

As Schopenhauer puts it —

“every generation mistakes the limits of its own field of vision for the limits of the world”.

But what McLachlin fails to see is that she merely took us back to times when Judges were fully entitled to rely on subjective inferences with judicial prerogatives of arbitrary decision-making. The problem is that the general population has moved on, expecting rational, logical processes, based on palpable, rigorously tested, evidence.

Due to self interest she used her personal capital to assert moral exemption for the judiciary, condoning dubious judicial independence, morphing into impunity.

Leaders who suffer from ADD - attention deprivation disorder, have good reason to attempt to justify their legacies, considering the amount of compromises they make to gain and maintain power. McLachlin may be intellectually brilliant but appears completely self-regarding; a narcissist’s craving for recognition and outward success. Some attempt to curate their baneful reputations by writing books or opinion pieces for the media. It appears a lot of effort is being expended on polishing a burnished image.

Her media appearances can be seen as pieces of hypocritical peacockery, a visible demonstration of an inability to distinguish between narcissistic ramblings and authentic memoir. McLachlan has invested a lot of time and money curating her perceived stature, with some spectacular self-promotion.

Leaders only engage in crisis management, or write books about themselve, if they are in damage control and are deeply insecure about their perceived performance, reputation or legacy.

Paul Keating contends: “Anyone who’s any good never writes about themselves.”

We should be wary of idealized images of any self- promoting officials.

Our capacity for self-deception can be revealed by glamourized memoirs. Joan Didion claims we can have difficulty distinguishing between what happened and what merely might have happened.

Even Supreme Court Judges can take themselves a bit too seriously.

Unfortunately contamination from her radioactive term spread far and wide to lower ranks, adversely affecting her attempts to secure her legacy.

Increased public disrepect of all officials is obvious in various protests, attacks on politicians of all political persuasion, the police and even judges. Rectification, can only happen with restored humility and integrity.

Unchecked self-aggrandizement can lead to the point of reckless irresponsibility.

More @: https://nebo-lit.com/topic-areas/Justice/justice-and-power.html

For The Toronto Globe and Mail, recently to risk its credibility and reputation, featuring a condescending, smug complacent opinion piece from the former Chief Justice of Canada, expressing her negative opinion of the protestors, appears contemptuous of public expression, further endangering the chance of objective court cases.

But McLachlin has her cheer leaders from Canada’s “Deep State”; provincial power brokers such as “the Laurentian elite”, the well-connected upper-middle classes from Toronto up the St Lawrence River to Montreal and Quebec, who beneath the outward appearance of legitimate government and accountable officials, often lurk hidden agendas, institutions seeking to seize control of the nation for their own ends. Unfettered by legal norms and unworried by public opinion, they answer to no one.

I do wonder if the effusive, fawning, obsessive hagiographies written by serious analysts will seem a bit embarrassing when her perfunctory oversight of fellow judges become more evident.

John Ralston Saul described her as “the most beautiful disguise for a steel trap mind that he’d ever seen.”

Could I respectfully suggest that during her stouches with Harper, that steel trap mind snapped shut, and no one has be able to prise it open since?

Adrienne Clarkson reveals that she is the only Chief Justice who knows how to deliver a calf in Pincher Creek - impressive, but hardly the attributes required of a Chief Justice to keep a phalanx of precious prickly judges, protective of their liberal discretionary privilege in line. Bias, perceptions of bias, deviant judges veering from orthodox legal method, ignoring the fundamental, inherent guiding principles in all judicial arbitrating; public office demands public trust for the public good. Just because McLachlin was a brilliant lawyer and Judge, was she an effective Chief Justice?

A measure is surely the need for mushrooming crowd funded organisations advocating for justice, indicating that the CJC has failed its primary and fundamental duty to the profession, and ethical responsibility to the community, to foster our respect for justice.

Any court’s legal adventurism imposes horrendous costs on the country, not just by eroding trust, but people deciding to engage in covert vigilantism. Some decisions are, to use a nonlegal term, simply nuts.

Dyson Heydon acknowledges the threat of “the enemy within”. Judges who advocate or choose the course of concealment, rather than revelation, constitute the most insidious of threats to judicial independence,

It remains my considered contention that under McLachlin’s rule, revealing patterns, visible only in the long view, resulted in serious damage to the public’s perception of our justice system. Her failure to curb discretionary abuse of evidence and arbitrary decision making were gravely unorthodox, concerning impartiality. It marked a clear deviation from former Chief Justice Brian Dickson’s creed of following the rule of the law of statutes.

Instead McLachlin drove a sense of tribal singularity, self-focus. isolation, and immune exceptionalism.

In not responding to complaints, clearly not all humans were, in MacLachlin’s view, entitled to basic rights. Some are more equal than others.

Judicial incompetence is more often a product of personality characteristics than of intellectual shortcomings. A test of character is to give someone POWER. A lttle bit just whetting its appetite for a bigger feast. This must, as they say in court, go to character - or lack thereof. The American Supreme Court is presently engaged in flexing its muscle, simply to demonstrate no one can stop them.

The authoritarian structure of the judicial bubble culture makes it prone to particular types of personality characteristics; a need for collegial approval, being deaf to unwelcome information, an inclination to internal codes of acceptable behaviour, an insatiable desire for peer admiration, an egomaniacal fixation on power, with its equally devouring urge for unaccountable power and positions of dominance through legalistic chicanery and delusional, narcissistic, charlatanism, rather than public interest Justice.

You could say much the same for most professions where the great danger to democracy in the 21st century, is the work of men and women who have no sense of shame, decency or public duty. The higher-ups rarely checked judicial malpractice. Instead, over and again, they gave it the full force of law — sustaining more injustice still.

As the American Supreme Court repeatedly shows, some Judges are anti-democratic. Most of its decisions are appropriately cringe-worthy indications of a system long tainted by ideological, self-protective, pack, dynamics.

Public servants fail us when they shamelessly shrug off their vowed oaths of office. The good guys must stand up to the baddies to protect the reputation of the entire profession. In this, I believe McLachlin spectacularly failed the citizens of Canada. But then we are increasingly living in an “age of impunity”. Without deterring consequences, we can not expect to rebuild respect for what should be our most prestigious institution.

Why are Canadians so apathetic about the denial of Justice to vulnerable people due to institutional failings? Why are our politicians so unambitious? Why does true Justice have to be self-funded?

The growing public awareness of declining judicial standards, leaves a deepening stain on Canada’s image around the world.

Margaret Atwood is conscious of the infinite slipperiness of historical truth, the flawed and partial and frequently misleading nature of what the world calls “evidence.” Atwood advocates that all of us have a voice to be used to call out injustices.

Just because something is, doesn’t mean it should always be.

What’s indefensible is a political class that believes nothing better is possible — a class that benefits from enmity without realizing that the damage from it is corrosive, and possibly irreversible. Michael Ignatieff, a former leader of the Liberal Party of Canada.

Has Canada given up living up to its ideals?

We need leaders willing to act decisively with decency and integrity — and in the absence of entitlement.

Clarkson further contends that McLachlin is known to everyone in Pincer Creek, indicating she is one of us.

She may have been, but as Brutus so ably points out regarding Caesar:

The abuse of greatness is, when it disjoins
Remorse from power:
………………….But ’tis a common proof,
That lowliness is young ambition’s ladder,
Whereto the climber-upward turns his face;
But when he once attains the upmost round.
He then unto the ladder turns his back,
Looks in the clouds, scorning the base degrees
By which he did ascend.

Perhaps more apt is the sentiment echoed by Isabella in Measure for Measure:

‘Oh it is excellent
To have a giant’s strength, but it is tyrannous
To use it like a giant.’

A more prosaic version goes: “The working class can kiss my ass, I’ve got a government job at last.”

Mark Twain too, felt that no one was too grand to be satirized.

“Irreverence, is the champion of liberty and its only sure defence.” Even if this led to the newspapers laughing “one good king to death,” it was a small price to pay if they also “laugh a thousand cruel and infamous shams and superstitions into the grave.”

That’s what insatiable power can do to us; make us hapless pawns, manipulated by egomaniacal narcissistic seduction; a primordial, parasitic power some find difficult to resist. All institutions gravitate to dystrophy, without strong moral leadership.

Shakespeare obviously suffered an obsessive compulsive condition as most of his plays are fixated on order, subverted by the folly of pompous pretentions of vaunted powermongers. Without the benefit of modern sedation, he just couldn’t stop ranting.

Hamlet too, rails against; “The oppressor’s wrong, the proud man’s contumely, the law’s delay, The insolence of office and the spurns That patient merit of the unworthy takes, …

We, underlings, are dispensable and just expected to patiently and fawningly bow and scrap and stoically accept our miserable unworthy lot.

Shakespeare’s patterns of advocacy of Good Governance; what constituted good order, and the consequences of bad leadership, was illustrated by articulate dialogue and good theatre. Good leaders, like Henry V, display quiet self assurance, firm decisive and resolute action, balanced by humility. Canada’s equivalents were undoubtedly, Lester B. Pearson and Brian Dickson.

Has Beverley McLachlin, in a desperate Faustian pact, agreed to serve the CCP as a Court of Appeals judge in Hong Kong, giving it the imprimatur of respectability, tacitly legitimising Xi Jinping’s crushing of democracy?

The Australian representative, NSW’s former Chief Justice, Jim Spigelman, left Hong Kong after one year. He claimed “What matters most are the facts”, recognising that the public want a legal system “dedicated to the search for truth”.

No wonder she doesn’t support protesters.

Protesters only risk their lives when all other forms of appeals fail. Without protesters, Canada would still be a colonial outpost of Britain, instead of replicating America.

(1) adapted from Conrad Black.

Update, August 2024.

After announcing she was stepping down from her position in Hong Kong for family reasons, it was revealed that McLachlin was taking up a position in Singapore for three years. Does she have a preference for authoritarian states?

Could I respectfully suggest, if she were seriously concerned about salvaging some of her legacy, a return to Canada offering dutiful pro bono services to clean up the mess left behind might restore some level of respect for the judiciary.

Tackling more than 100 cases of wrongful convictions would be a good start. All complaints to the CJC should be re-opened, by external audits.

Her responses to Global Integrity’s 2008 concerns of weak regulatory enforcement were insufficient, and ineffective.

Due to her assertions of judicial independence through entitled personal views, the courts have eroded their own trustworthiness.

Rigorous and deterrent investigations of all judges accused of deliberately, purposely, intentionally and falsely skewing and distorting evidence to form aberrant determinations, would end an era of neglect, and go a long way to regain our trust in the system.

Most of the victims of her lack of due diligence in regulatory oversight, would appreciate some justice, sooner rather than years later.