Canadian Judicial Council

Update: 25/03/21: #

Disclaimer: Below you will find a series of emails, sent to the Canadian government over a period of some seven years, asserting my civil right for lawfully entitled information, regarding a 2014 formal complaint regarding apparent failings of the judiciary, to the Canadian Judicial Council. Defying a statutory Act of the Canadian Parliament, it has never received a meaningful response. I update it at will or whenever the spirit moves me. It is derivative; nothing original. Every word and phrase has been plagiarized from a variety of past readings. I do it mainly for therapy; my own mental health; it gives “sleep to my nights”. Also, I care about the fragility of democracy. No need to read to the end; it rambles with variations of recurring but consistent themes.

It remains my contention that the case above refers to demonstrable bias, resulting in questionable determinations, willfully ill informed; driven by spiteful small time politics, rather than balanced, unerring judgment. Critical evidence was blithely overlooked, purposefully skewed or deliberately and summarily dismissed. Five crucial, arbitrary determinations are not only glaringly insupportable, but directly contradicted by hard evidence before the court. The court’s arguments ranged from the implausible to the insulting. For a Family Court, little respect was evident to the witnesses or the truth.

The Hoffman Heinrichs' case should have a special place in Jurisprudence textbooks. You’ll never find a better (or worse) example of distortion of reality, abuse of process or perverting the course of justice.

Yet the CJC appears to condone these low bench marks as acceptable standards for Canadian Justice. Judges have a position of community trust; the CJC is responsible to maintain that trust.

Revolutions never start from the top. To protect democracy, it is each citizen’s sovereign duty to protest the unacceptable and insist on exercising our civil right. According to Jeannie Gersen, from Harvard, “If the Court’s decisions lose the public respect that undergirds its power, it may aggravate, or even generate, social conflict”.

Transparency and accountability are two of the fundamental criteria of good governance. “Publicity is the very soul of Justice”. (Bentham)

“In a democracy, “certain forms of truth do more than compel our minds’ assent; they compel us to act.”

To show they are serious about protecting people’s human rights, governments must ensure access to real remedies. Unenforceable rights struggle to be more than aspirational ideas. For people whose rights are violated, it’s critical that they can do something about it,

Instead, all we are offered is mind-numbingly empty slogans and hollow, clichéd, pre-packaged platitudes.

Canada is not immune to what’s happening in the U.S. The continuing populism of Trumpism should serve as a warning to all professed democratic governments of the very real dangers of stubborn non-responsive governance leading to a sharp decline in trust in governmental institutions which display a contempt towards ordinary citizens. Liberals have perfected the art of speaking well; but, risibly, not doing much - non-feasance; “a legal reform inactivist” – someone who talks the talk but walks the opposite way on meaningful action. Complacent responses disclose a weakness of political commitment.

The Anglocentric justice system suffers from a sclerotic culture emptied of its essential identity, its central purpose, its core values, its founding principles and its primary function of protecting the weak from the powerful in order to provide Justice for the common good. They simply have lost the plot, and in their blind folly have little chance of finding their true selves again.

Supreme Courts are our last pillbox of defence against any guise of tyranny, so when they align themselves with power and privilege, we are suckered.

One trend that has become more prevalent is the complete absence of consequence for poor public behavior and administration. We fight for justice within a legal system determined to deny it. Now more than ever we need consequences for malfeasance, we deserve consequences from an ideally responsible government. Turning a blind eye to questionable procedures, risks the impact of losing the public’s faith in justice, tarnishing the entire judiciary.

Christie Blatchford exposed many outrageous scandals and rorts in Canada’s Justice System that have piled up seemingly without any outrage or consequence as secrecy and brazen disregard for earlier norms have been ignored. The CJC has been spectacularly ineffective - misfeasance.

Joe Biden is only partially correct in claiming that a President’s words matter- by either inspiring or inciting. The past thirty years have indicated that we need more than just words that tell us truths,/ Win us with honest trifles to betray’s/ In deepest consequence”. Blair, Obama, Macron and Trudeau are adept at speech making, but delivering little for the people. Noam Chomsky feels that it was Obama’s turning his back on his grass roots support, that gave rise to Trump. Hilary Clinton’s Democratic Party vote in 2016 was considerably less than previous ones due to disillusionment turning into apathy.

Biden’s claim “we have to prove that democracy works” is a clarion call to all political leaders, and it starts by listening to your citizens. Canada’s “Deep State”; could easily be provincial elites 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. According to Ian Fitzgerald, “These ‘states within a state’, unfettered by legal norms and unworried by public opinion, are known as ‘deep states’. Manitoba also has its own faux aristocracy.

According to Kirkus Reviews, “The American Supreme Court, with its 6-3 Republican majority, is potentially the greatest threat to …liberal democracy… A cogent, timely warning about the fragility of all democracies.”

Insurgency has been, and is, a present threat to Canadian democracy because ignoring legitimate concerns of citizens risks the rise of extremists, manifest in Ontario and France. Democratic governments seem no longer inclined to represent those who elected them. Rather, they circle the wagons, close rank and defend the indefensible by protecting their failing institutions from those who monitor and question the center of power. Privilege doesn’t really like participatory democracy much.

If reliable information is the life blood of democracy, Canada’s is suffering asphyxiation, due to the inadequate oversight of Judges, imbued with the culture of impunity, resulting in the self-inflicted loss of trust in all officials. The practice of avoiding transparency and deliberately concealing information seems endemic in most increasingly authoritarian democracies.

There are many serious threats to our fragile democracy, but Canada’s could easily be an unelected, unaccountable Judiciary. The essential role for parliament, as the democratically elected representatives of the people, is to ensure monopolies of power with cultures of secrecy do not emerge or persist. Democracy is only as strong as its citizens are willing to continue to fight for it.

In a stark abrogation of its duties, in 2019, Parliament seems to have done a thorough job of eradicating any remaining shred of the accountability of Judges. Pierre Trudeau, in 1971, legislated curbs on the Judiciary; Justin Trudeau, in 2019, relaxed Parliament’s oversight. Effectively, the Legal industry is left to regulate itself.

Canada needs a strong court system which values truth and facts, able to discriminate between obvious self-serving, counter-factual disinformation and solid evidence. In the above case both courts managed to jettison every guiding principle of jurisprudence in reaching their unsupportable conclusions. It remains my considered opinion, both courts were not only calculating, but thoroughly dishonest.

We should not risk our cherished norms, traditions and institutions, just so Canadian Judges can enjoy immunity.

Instead of upholding proper standards, The Canadian Judicial Council seems trapped in mindset of engaging in gesture politics; shadow boxing with occasional knock-out blows. It appears more interested in keeping up appearances than censuring blindingly obvious bad judgements which actually cause real, self-inflicted, reputational loss of respect for the judiciary. Not only does it fail to see the forest because of the trees; it generally barks up the wrong trees.

Former Justice Lori Douglass, was investigated to pander to the gutter press for a personal matter totally irrelevant to her work. She felt her questioning took an unjustified prurient interest in investigating details of an event beyond her control.

Pierre Trudeau informed us that “the government has no business in people’s bedrooms”, or as Michael Frantic put it, “I don’t give a fuck who they screwing in private / I want to know who they screwing in public”. My take is that unaccountable institutions audaciously screw the public - in full public view.

Meanwhile in Australia, according to Sami Shah – The Saturday Paper – 27/03/2021, “Coalition staffers routinely swap explicit photos of themselves, have sex in the prayer room and film themselves while engaged in sex acts within Parliament House, often with sex workers. You’d think these people would be so occupied having sex they’d be too busy to fuck over the rest of the country, and yet”.

Back in Canada, after dispensing his verdict, Justice Graeme Mitchell, was investigated for visiting a Metis protester, Tristan Durocher, in his tepee, on Saskatchewan’s legislature grounds, drawing attention to the high rate of suicide among Indigenous people. Perhaps the Canadian Judicial Council prefers to perpetuate the oppressive frontier wars against Louis Riel’s descendants through outdated bigotry. What is wrong about Judges getting a grounded view of their cases?

Modern jurisprudence encourages Judges to visit alleged crime sites while forming their views.

In my opinion, it is not for Justice Mitchell to apologise; it is the CJC who should hang their heads in shame.

Justice Frank Newbould was investigated by the CJC for expressing a personal opinion outside the court, merely having the potential of affecting his performance, while real cases demonstrating declining standards of decision making, causing greater self-inflicted reputational damage to the profession are tacitly condoned. Public faith in the judiciary collapses because too many decision makers fail to follow the basic guiding principle of establishing the facts of a case on all substantial evidence. Lori Douglass resigned, leaving us, in my opinion, with the loss of a conscientious judge whose promising career was wantonly but needlessly destroyed.

Justice Simon Noel, in representing Justice Girouard, opined that “it is inconceivable that a single body, with no independent supervision (is) beyond the reach of all judicial review…

Even the country’s top judges, need to remember the rule of law: “Therefore, as per the fundamental principles of our democracy, all those who exercise public power, regardless of their status or the importance of their titles, must be subject to independent review and held accountable as appropriate. This also goes for the CJC and the chief justices who make up its membership.”

Displaying human traits, apparently is not tolerated by the CJC. History demonstrates repeatedly, monotonously and depressingly that the last thing we need is dehumanised or inhumane Judges. We need empathetic, intellectually independently thinking Judges with real life experience, who share our common humanity. Australian Judges exercise their rights to express their opinions by writing books on history or newspaper articles on current topics. We value their insights but don’t have to agree with them.

In another CJC investigation, according to co-founder of Democracy Watch, Duff Conacher, for Vic Toews, “To face no penalty at all, or sanction, is a questionable ruling.”. But then foxes investigating the presence of blood in the hen house are hardly likely to implicate one of their own.

You’d think that the CJC would have learned from the disaster of Justice Paul Cosgrove’s earlier nakedly partisan appointment.

This raises serious questions about — or, rather, confirms — how out of touch with reality the CJC is. How deeply and broadly and limitlessly their vanity clouds its assessments and judgments. How dangerous that is for all of us. In a mature, full democracy, no one gets a free pass, regardless of high and mighty you are. You get the same scrutiny as everyone else.

It is important that those who break the laws, set by the Canadian Parliament, are held to account, even if they are the very institutions commissioned to adjudicate and uphold these laws. Quis custodiet ipsos custodes? Or ‘Be ye ever so high, the law be above you'. Why do the courts or governments seem more to “contravene the very principles they force others to follow”? We are duty bound to hold them to the standards they have given a solemn oath to uphold.

Geoffrey Watson writes: It is often said that no-one is above the law, but it is just as important to understand that under the rule of law, no-one is below the law. The most important component of the rule of law is that it operates to protect the most vulnerable and underprivileged in our community.

Thucydides warned us that democracy collapses into “a state of unprecedented lawlessness, when no fear of god or law of man has a restraining influence on authorities.” Solon reserved ostracism for officials who deprived citizens of their rights. Chaucer depicts officials as self-absorbed, self- indulgent, decadent, with a dismal record of failed accountability.

Or as in Dicken’s times, the world today appears addicted to humbug. Almost everything is the opposite of what it pretends to be. Like the unctuous Uriah Heap or the witches in Macbeth, “That keep the word of promise to our ear/ And break it to our hope”. As the Economist writes, we have re-entered the “Age of Humbug”.

The Canadian Judicial Council’s apparent ability to flout the law, while claiming to defend or personify it —appears the sole true measure of its prowess. By any objective measure, it plays by its own rules; no one else’s. They work to one principle, summed up by: “Do what thou wilt; shall be the whole of the law”. Regulatory inaction toward wayward judges is not some surprising anomaly; it is their new norm - a protection racket.

If the above were simply a case of using “low quality” research with “significant methodological concerns”, it could be excused, however I detect a high degree of insidious intent; purposeful contrivance in interpretations and a conscious tendentiousness in the selectivity of critical evidence. “what a sweet and soft and healthy pillow is ignorance and incuriosity, to rest a well-made head!” (Kathy Eden).

Judges, scientists as well as all professions are tasked with conducting investigations informed by facts and reality. The unsupported narratives discovered by both courts do not reflect the family records available to the court.

My main concern is that the Appeals Court judges spoke with an unearned air of authority. The lack of due diligence stretched their credibility beyond its breaking point.

This raises the question whether Canadian taxpayers get their monies worth from their court system? We pay good money for Judges’ salaries and entitlements, but do we get a good bang for our buck? If you appeal a bad judgment, you have to pay extra. It’s still a toss-up whether or not you’ll get justice. There’s no money back guarantee when they simply close ranks.

It is easy to make a credible case that both courts’ prime processes and determinations sacrificed reason to spiteful, petty politics and ulterior agendas. Accuracy in reflecting reality was not their prime objective. That alone should raise suspicions of perverting the course of justice and be cause for an investigation for possible impeachment. It becomes an absolute affront to anyone who believes in accountability in any democracy.

It is surprising how Superior Courts, in all democracies, brazenly take the ‘kamikaze’ option with suicidal consequences to their authority, simply to flaunt their privileged power. According to Professor Dershowitz: ‘The American criminal justice system is corrupt to its core … The corruption lies … in its processes …’

As Orwell cautioned: “Don’t let it happen to Canada”.

Riddle me this: what do you call a country that allows unelected unaccountable officials - the Supreme Court, unfettered supremacy? Hint: it’s not a democracy.

Canada’s sick Judicial system follows America’s.

The loss of respect for America’s core institutions, especially the court system has been evident for the past fifty plus years. The loss of credibility of the Warren Commission, a court system that for decades enforced a secular liberalism beyond the beliefs of much of its population, the hanging chads decision and the stacking of the present court have all eroded people’s trust. The January 6th attack on the Capitol remains a symptom of this loss of trust.

Canada’s court system was founded on a set of principles best articulated by the late Chief Justice, Brian Dickson:

“The Supreme Court is not a self-created body with original powers; it is not a benevolent autocrat with full powers to act as it should think fit; the court is an institution organized by the people through their representatives for the purpose of giving to those who apply to it their rights according to law, the law not being made by the Court but laid down for it by authority; the court has no right to give a decision in accord with its own views of equity and good conscience, as distinct from the rules laid down for it. The Court has no right to take power unto itself which is not conferred by the people.” Scott v. Scott-Ontario Court of Appeal 1DLR53, 64OLR422

Were these principles subverted by a subsequent Chief Justice, Beverly McLachlin? She appears to have emasculated the high court of Parliament and led a silent coup d’etat” (against democracy – the power of the people).

According to Conrad Black, Judges were now emancipated from their previous duty to apply the law as written by the very legislators empowered by the electorate to make laws. Now, whatever the legislators did, judges were enabled and required to interpret the Charter as they wished and to decide if they judged the legislation adequate and acceptable. In doing so, judges should be guided by their own individual views, which would be laundered into objectivity by imagining how those views were best magnified by the Charter to apply to the issues before them. The result was still “the law, eternal, majestic.”

Many Judges now feel they have the liberty of unlimited judicial discretion and have a free pass for subjective, arbitrary judgments.

Others concur:

Janet Albrechtsen, a visiting Australian journalist claims, “the real decision-maker in Canada is a judicial aristocracy, an unelected, unaccountable and unsackable body that treats elected parliaments with disdain, if not contempt”.

On assisted suicide, somewhat condescendingly the Supreme Court gave the Canadian parliament 12 months to draft a law complying with the court’s ruling.

The government had to go to court to grovel for an extension but eventually parliament did what the court ordered it to do.

Note that a single judge with no special expertise in relevant medical, social, or economic policy areas has widened the boundaries of a deeply complicated issue without access to all the analytic, expert and research resources of parliament, or the benefit of full, public consultation. And neither should courts have access to these resources. After all, they are not meant to be politicians.

Chris Selley of the National Post writes: “Parliament is indeed the proper place for the big decisions to be made; that justices are not infallible or above reproach; indeed, that they are fallible human beings who sometimes get things totally, bizarrely wrong, to the detriment of us all”.

Yet, Canada’s current Parliament has relaxed it oversight over the immunity and impunity of Judges. And nobody cares!

It’s time Parliament, in the interests of democracy, cracked a big whip over the hitherto sleepy judicial watchpuppies, (who fail to bark, let alone bite) re-asserting its supremacy by exercising its public duty over any unaccountable institutions. Otherwise, we too risk descending down a deep, dark lawless tunnel. It should be clear the entire system is broken, due to the shattering of norms, and all of us cannot deny or ignore our own complicity by not acting. Instead our government has relaxed its oversight over the Judiciary.

Politicians appear to be good at ignoring the trashing of many of our treasured values and institutions that they claim to hold dear. It’s not whether you do nothing, it’s how you do that nothing that counts. Ministers who specialise in glorious inaction pursue the dominant Steven Bradbury method of governance: do nothing, and wait for everyone else to fall over. But when things do go pear shaped, they end up with egg all over their legacy as all governments who fail to respond adequately to Covid 19. This pandemic should be a wake up call to all Ministers; the sooner you respond to any crises. the sooner you prevail.

The rule of law, the protection of our rights, and the procedures of clear, clean justice are not fixed foundations for current officials, rather constantly threatened, by pragmatism and habits, revealing a celebration of the unchecked power of the state and an actual disdain for open government with real freedom of information.

As in most illiberal democracies, the concept of “ministerial responsibility” is long since dead and buried. Absolute responsible government has been replaced by mere grandstanding, posing, posturing, photo ops, and a level of Newspeak that Orwell only imagined as fiction.

It is my considered understanding that the Canadian Judicial Council, by statutory laws, must in good faith, respond to all complaints. This appears more honored in the breach than the performance. In the above case it has had six years to do so and failed. Has it become a victim of regulatory capture? The CJC is a public trust; our custodian of judicial probity, charged with maintaining necessarily high standards of professionalism. How is this violation of my sovereign right not a contempt of the law? Thís lack of basic transparency certainly demonstrates a contempt for all Canadian citizens. A healthy democracy relies on reliably informed citizens. Softly softly approaches seldom achieve this.

Why should an objective observer not conclude that these court cases demonstrate a failure by the CJC in its duty under Section 12 of the Statue by the Canadian Parliament, to ensure that the gathering and interpretation of evidence by Judges is accurate and impartial according to recognised normal standards of objective jurisprudence?

The CJC, like the American system, appears to run an excessively forgiving judicial disciplinary system. The danger is that we habituate to low levels of tolerance for built-in bias. Take the case of Justice Paul Cosgrove, a political appointment like Vic Toews, while investigated, chose to resign with full entitlements including full access to all court facilities. (Christie Blatchford)

The Canadian public should be appalled at some of the lenient treatment judges get for substantial transgressions. It can only lead to social fragmentation and a further retreat of democracy. Sometimes it resembles a publicly funded protection racket. This shows just how brittle political conventions can become. Once those fixed values or core conventions shatter, they fuel a culture of impunity, the social legitimacy and trust of public institutions — including courts — can quickly evaporate. If you still have any lingering doubts, these should dissipate on watching the Trials of The Chicago 7 or many other instances of American legal injustices.

A robust democracy holds all institutions to account. It is time for Parliament to exercise its authority to enforce its own statutes on the CJC. A failure to act, can be viewed as a craven capitulation of our elected representatives to an unelected, unaccountable and unresponsive institution. In my opinion, our government has betrayed its citizens.

This failure of transparency and responsibility, suggests something is rotten in the state of Canada’s decaying Justice System, and leaders from every Canadian government are oblivious to the stench. The above case is just one of many exemplary cases demonstrating the need for enforcing higher standards of judicial competence and compliance within a declining justice system, meeting realistic community expectations. Instead, by abdicating their duty of care to the Canadian Public, Ministers appear too spineless to perform their sworn duties, displaying a general contempt for Canadian citizens. Their inaction appears to protect the privileges of public servants over the rights of sovereign citizens. Responsible leaders’ first obligation is to their constituents; not protecting under-performing legal regulators. Every nation gets the justice system they deserve. In order to protect ours, we need to protest every bad decision.

Anyone who has taken even a passing interesting in the cleaning up of the Judiciary over the past three decades will find eerily familiar lessons at the heart of the disgraceful conduct revealed by Christie Blatchford. The judiciary derives its power from the veiled threat of state sanctioned violence against any criticism. They find reasons to persecute the complainants; by any means to prosecute those who have the temerity to dissent, such as the Bernardo – Homolka trial where Stephen Williams, was purposely and relentlessly pursued by the state in an act of “administrative vengeance” for openly exposing the flaws in the legal system. In the end, Stephen said, “It’s very possible the government didn’t care if they won or lost, because they knew that the process alone was going to ruin us financially and psychologically.

Or Canadian Journalist and champion of free speech Ezra Levant, dragged into the police station and interrogated for hours, by veteran detectives who specialise in terrorism. His “Crime”? launching a book, during the Canadian elections, critical of the government and Justin Trudeau.

And we have the audacity to criticise China or Russia over human rights. Something about pots and kettles, or planks and beams in eyes.

If we cannot trust our most prestigious institution to abide by the rule of law, the foundations of democracy have crumbled. Evidence of sterility, fatigue and paralysis become manifest when we are expected to accept the futility of protesting the absurd. Decadence sets in when institutions lose their sense of direction and founding purpose - when the bizarre becomes normal, when procedures fall short of expected standards.

If you go by the above case, lack of information, lack of understanding and lack of due diligence, caused by willful incuriosity are the key criteria Canadian judges base their unsubstantiated decisions on - with total impunity. From their creative engagement with witnesses rather than relying on official records of our history, including archival photographs and primary sources, a truer account—more complex and more ethical—could have emerged through rigorous scientific investigations. Credulity of obviously bogus claims, risks the credibility and degradation of the entire court system. The purpose of all reputable human endeavour is to uncover the truth - not deliberately obscure and distort it. Courts shouldn’t accept claims, without making appropriate checks. This is an elementary, normally uncontroversial principle. I feel we have reasonable grounds for questioning both court’s core competencies. If this case is acceptable to the CJC, then corruption is now openly tolerated, like Trumpism, elevating opinion and self serving claims above hard evidence.

I question whether the judges' minds were sufficiently open; their methods reasonably in sync with the norms of public expectations? Was there an ulterior agenda? Did personal bias guide unfounded judicial determinations based on cast iron assumptions? Where did the wishful notion of a “close bond” originate? Was this a petty, punitive, proxy campaign viciously attacking our lawyer to settle a small time score? These outstanding issues are rightly asked of all jurists. For the CJC to ignore and deplore is simply unacceptable.

A major indicator of alignment was the failure to test conflicting assertions. Summarily accepting airy claims from benefitting parties over probative evidence does little to inspire trust. If someone says it’s raining and someone says it’s not; judges are obliged to look out the window to determine and establish all the facts of any claim. At least five critical premises in dispute are not adequately resolved; simply imprudently arbitrated.

What we witnessed in this alarming case was one of the greatest failures of elementary judicial process and basic responsible oversight in modern jurisprudence, channeling Medieval discretionary power.

The Appeals court was pantomime of posturing, potency and pretense of omniscience. I’ve no faith whatsoever they even attempted to gain any insights. Judicial oversight appears a prisoner of a preposterous belief that they must project indomitability and infallibility, despite a guarantee of falling tragically short of both, due to a failure of exercising some due diligence.

The case was an insult to our entire family, an indictment of the entire system and a ratification of Judicial impunity, showing just how far removed the courts can be from reasonable community expectations. Protective immunity always leads to mediocrity - and potential corruption.

It is further my distinct impression this is not a singular instance. Media reports indicate a collusive culture of congealed mindsets appear prevalent - perhaps endemic. It is past time for radical structural and systematic reform of the Appeals process.

Has the CJC become unfit for purpose, with its dismal track record in detecting and deterring neglect? As a regulator, it appears distant and ineffectual; its interests aligned with underperforming Judges.

And while we were sleeping, Canadian laws, guaranteeing transparency in judicial accountability have gone backwards, providing us with less protection against reckless, inept decision making. In a stark abrogation of its duties, Parliament seems to have done a thorough job of eradicating any remaining shred of the accountability of Judges. Effectively, the Legal Industry is left to regulate itself.

The timing is extraordinary: for the past few years, you, Justin Trudeau, promised reforms in Justice, elections, media. You even promised to listen – all to no avail. We are increasingly forced to place your reform credentials under closer scrutiny. Just because you tout liberal reforms - “that keep the word of promise to our ear/And break it to our hope”, we still become disillusioned that your use of progressive language does not always reflect your government’s actions. It is the failure of liberalism that fuels populist leaders like Trump.

Yet no one seems to care.

Let’s just move on until the next SNAFU or more appropriately FUBAR. But ultimately this sort of failure of Ministerial responsibility ends in the erosion of public trust and ultimately blood in the streets following the lead of American injustices. Injustices invariably lead to restive societies and inevitable vigilante responses. As the Bible warned: “without the shedding of blood, there can be no remission of sins”. Leviticus 17:11

Law reform can only happen with a concerted and consolidated effort by all; otherwise we court public discontent.

All Canadians need to insist on higher standards of legal decision making. Every country gets the standard of Justice it deserves.

Good governance requires responsibility, transparency and accountability. There is little of the former, and the only transparency is the self-interest of our de facto ruling class who seem to have forgotten that they are the final custodians of our sovereign democracy. There are many good Judges, but our confidence gets dragged down by the worst, due to a lack of accountability. The best Judges, of which there are many, simply “swallow their judicial pride” and serve the greater community.

Ministers of Justice, across the political spectrum, seem oblivious to their responsibilities of duty of care to the Canadian Public, appearing to perform their duties with general contempt for us, through incompetence or glorious inaction. Failed states around the world suffer from government inaction.

Despite overwhelming evidence to the contrary, the Judge in the above case arrived at a number of peremptory, dubious, unsubstantiated findings, without any attempt at deep or sharp understanding, leading to many unfounded conclusions. And we naively believed that courts were there to reliably establish the facts of a case. We gormlessly believed courts were evidence based. We are now a bit wiser, but more disillusioned. It remains my considered contention, the court failed its primary duty of gathering all the pertinent evidence, due diligence in drawing reasonable inferences, competence in weighing up the facts, and by reaching conclusions insupportable by any stretch of the imagination. The case can reliably be characterised as malign intent veiled by benign neglect.

These errors were compounded by an Appeals Court, switching off its critical faculties, relying on bulwark power to blithely accept the initial court’s adverse reasoning and determinations, by simply declaiming its false findings in a more blustering, bombastic and strident tone, stolid resistance to facts, and by egomaniac thrust - “Full of high sentence, but a bit obtuse”. And we wonder why Manitoba’s legal system has acquired the reputation of an incestuous bubble culture. Systematic and structural reform is long overdue.

This remains an epic fail. Both courts seem incapable of the most basic of steps of verifying conflicting evidence to ensure their determinations had any credibility whatsoever.

We expected The Appeals Court to check the veracity of the determinations as any proper court can be expected to do.

And why did they get away with it? Because they can! Their tenure grants them unlimited impunity, due to our government’s lack of spine to enforce their own laws. The CJC’s regulation appears extraordinarily passive.

Our public watch dog, the CJC, set up by Pierre Trudeau in 1971, appears to have turned itself into an institutional guard dog with the blessing, aid and complicity of our elected representatives. In 2019, your (Justin Trudeau’s) government weakened the mandatory Statutes of the Judges Act, by allowing for even less compulsory public disclosure, less transparency and less accountability.

Public confidence and trust be damned.

Like the three Billy Goats Gruff, each tier of governance protects the one below it.

A fact that seems to escape the main stream media is that Canadian politicians have become myrmidons to the high court. A visiting journalist, Janet Albrechtson, an Australian trained lawyer, observed: Canada has “a lovely sounding charter of rights and freedoms (that) has turned a vibrant people’s democracy into a guided democracy with the Supreme Court of Canada playing the part of Lee Kuan Yew. In this and other major policy areas the real decision-maker in Canada is a judicial aristocracy, an unelected, unaccountable and unsackable body that treats elected parliaments with disdain, if not contempt”.

it appears throughout the liberal democratic world, the upper echelons of the judiciary are staging a silent coup against the power of the people - “democratas”! The USA Supreme Court has little credibility left, as most of its decisions are aligned with the establishment - the amphibians still inhabiting the swamp. Australian and Canadian superior courts appear to be heading in the same direction.

All leaders today are shouldering burdens unmatched by previous leaders. Suddenly all officials are facing closer scrutiny and higher standards of transparency and accountability. The above Case File is symptomatic of a wider problem of affronts to justice that refuses to go away, diminishing the CJC’s credentials of proper oversight until properly resolved. If the CJC cannot uphold its mission as regulatory body maintaining adequate standards of decision making, then your government must compel it to do so by the threat of impeachment.

Impeachment, it should be noted, is not the sacking of a Judge, it is the act of committing a Judge to trial to answer questions. A Parliamentary sub - committee runs the trial. To convict the Judge in an impeachment, requires a two-thirds majority.

Pandemics bring out both the worst and best in people and governments. History shows that some result in the betterment of mankind, while others result in more unchecked executive power. Dodgy conventions that have become normalised suddenly become exposed, reinforcing democracy’s need for disclosure and accountability.

There are encouraging signs of profound seismic shifts in governments realising good governance is not about the preservation or protection of power, but the interrogation of it. All governments should be acutely aware of the CJC’s abject record of failure to uphold adequate standards but appear to have the nimbleness of a glacier.

To rebuild trust, we need public accountability and transparency. Behind such a dismal record of failed accountability, in America, there is by now a widespread sense that people power is non-existent and the only way of having our voices raised is to advocate violently. This should be a warning to Canadian leaders.

Without proper scrutiny, this won’t be the last alleged inadequate oversight of judges of its type, that we endure.

I am still patiently waiting your government’s response regarding the deafening silence, surrounding the CJC’s apparent breach of mandatory parliamentary protocols.

My questions regarding Canadian Judicial Council – (File: 14-0393) remain unanswered.

I would appreciate our government’s attention to this matter.

Yours respectfully,

Charles Klassen 04/03/2020

……….

Below are more of the same - earlier, futile, open letters to the Prime Minister.

Congratulations on your re-election last year. This is your opportunity to implement your original core promises to reform the electoral, media and Justice systems and consolidate a reputable legacy.

You rightly believe Iran’s government should hold its Military to account. With respect, I believe your government should hold its court system to account, for a perceived, self-inflicted loss of public esteem. You need to ensure your government holds all its officials to a higher level of accountability.

It should be of concern to your government that Canada has fallen from its coveted position in the Corruption Perception Index. Surely some of this is due to declining trust in our institutions, commissioned to uphold Judicial standards. Despite their overt failures, most Canadians still expect higher discretionary standards from our Judicial System.

Responsible governments appoint strong Cabinet ministers who are actually willing to fulfill their oath of office by responding to the concerns of the people of Canada and shouldering their responsibilities with effective enforcement.

One of the most formidable ministries would be Justice. Dealing with an institution, that for centuries has resisted any change encroaching on its bulwark power, requires steely resolve and unyielding will. This goes to the heart of the accountability of Judges and public confidence in their performance. In the same way that a few individuals can bring down the reputation of entire institutions, the malfeasance some Judges does the same for their industry. Politicians need to be wary of not committing misfeasance or nonfeasance.

Let’s be clear – where political corruption exists; regardless the level, it should be exposed and cleaned out. The people and the media have every right – in fact every obligation – to apply the utmost scrutiny to all governmental institutions, especially the unaccountable ones, those who feel they can act with utter impunity.

Previous responsible Canadian Governments have enacted laws to guide Judges in keeping their institutional reputations respectable and reputable, however, a failure by subsequent governments to enforce their own laws diminishes both. Our governments are not listening and the legal establishment is not interested in seeing change to its protective impunity. But that’s hardly surprising, given there’s no evidence of a notion of independence in the role of the three tiers of Canada’s Justice System.

Judges who willfully rule on what are called “Mistakes of Fact”, represent a powerful threat to the fundamental values of liberal democracy, so need to face serious consequences. All the judges in the above case appear to make several claims which they were unable to verify to any requisite standard of truth. Further, it is incumbent on all judges to test competing claims as to their validity. The Canadian Judicial Council appears to defy its mandated obligation to uphold standards and respond to complaints.

Canadians deserve the truth. When we have been denied justice, the CJC assures us, our cries will be heard. But there can be no justice without truth and transparency. And there can be no truth unless the CJC obeys the laws of the sovereign people of Canada. The CJC keeps hiding from the public. This is unacceptable. This is unaccountability. This fosters an age of impunity. We are all diminished by shoddy, arbitrary judgments. At the end of the day, we all get the Judicial system we deserve. Canadians deserve meaningful answers to serious complaints made to authorities and politicians.

If the former Chief Justice can flout the laws of the Canadian Parliament, why can’t we?

Consequences? In a world of actual consequences, apart from Judges being held accountable through investigation for possible impeachment, senior heads would roll. In the real world, the careers of the Judge and the three Appeals Court judges, in the above case, would simply be untenable.

As David Hume predicted: “The corruption of the best things gives rise to the worst.”

Plato’s ideal society is where justice reigns supreme, curing all evils. Justice is a ‘human virtue’ that makes a person self-consistent and good; socially, justice is a social consciousness that makes a society internally harmonious, cohesive and good. BLM protests throughout the liberal democracies indicate failed states all round.

It remains my impression, an Institution, the CJC, we treasured and trusted, has betrayed us to satisfy the venal, self- serving and power-crazed appetites of an unprincipled, unrestrained, vainglorious and cynical few. It appears to have abandoned the principle of open and transparent oversight of Judges.

It is difficult for me to think of anything more irresponsible than an institution, commissioned by the people of Canada, to maintain our respect for the law and then insouciantly flout the very law passed by our Canadian Parliament. It remains my impression that The CJC has abandoned all pretence of credibility by not complying with a mandatory Statute of Parliament in its failure to respond to complaints. This has serious consequences, diminishing our respect for what should be Canada’s most trustworthy institution.

The reason for the entire Court system’s raft of error ridden misjudgments can be found in a time-honoured saying: pride comes before a fall or in other words, to learn something, you need to drop your vanity and arrogance first. Some judges fall into the philosopher John Rawls’s idea of considering all cases from behind a “veil of ignorance”. I find it difficult to work out whether the courts were actively malign or just completely clueless.

Ministers and Judges know that in Canada’s toothless system there are no real consequences for courts deliberately making unjust judgments and flouting the laws of the Canadian Parliament.

Albrechtsen maintains, The Canadian Parliament kow tows to the Supreme Court: “In the Carter case, somewhat condescendingly the Supreme Court gave the Canadian parliament 12 months to draft a law complying with the court’s ruling.

The government had to go to court to grovel for an extension but eventually parliament did what the court ordered it to do.

Note that a single judge with no special expertise in relevant medical, social, or economic policy areas has widened the boundaries of a deeply complicated issue without access to all the analytic, expert and research resources of parliament, or the benefit of full, public consultation. And neither should courts have access to these resources. After all, they are not meant to be politicians.

Yet Canadian courts run the country in key areas because they can. And parliaments must dance to their tune”.

All Canadians should find this unacceptable. Reform can only come when our Representatives shoulder their responsibility, re-assuming the power we the sovereign citizens have invested in them, to hold all Judges to their oath of office.

The courts belong to the people of Canada and we invested them with the power they represent. The spirit of the law is something tremendous, restraining itself by reason. They really do have to convince us; to exercise that power with credibility, to achieve legitimacy and real authority.

The Manitoba courts need to renounce denialism and denounce partisan approaches to legal judgments.

All highly developed civilisations rely on bureaucrats to administer and implement government policy, however when they accrue too much power (the tail wags the dog) they undermine the trust of the people and decline sets in, as demonstrated by the collapse of the Roman Empire, The Medici’s in 1737, the Bourbons in 1789 and the Romanovs in 1917. By 55 BC Cicero, already warned “the arrogance of officialdom needs to be tempered and controlled,” while Tacitus cautioned, “misdeeds, once exposed, have no refuge but in audacity”.

Here is your opportunity to rein in the untrammeled power of Judges.

Minority government can be a good thing. Canada’s best government ever - LBP - Pearson was a minority government with the NDP influencing a lot of his progressive policies. Pearson clearly had some control over the Liberal Party. Pierre Trudeau also faced minority government, but then he had already established his authority in his first term with a number of bold policy initiatives, especially a Law Reform Commission and the Canadian Judicial Council to regulate and oversee Judicial performance.

Hopefully , you Justin Trudeau, will take control and actually execute your core policies.

Canadians are just so lucky you don’t have a Murdoch or that Lynton Crosby didn’t interfere in your electoral process this time. All research indicates that if you want true representative government, it has to come from reliably and well informed electorates.

The life blood of a robust democracy is a fiercely independent free press, reliably informing its citizens. It is my distinct impression that Canada’s media is letting its people down. The main stream press are too cautious or timid to raise contentious issues, or concerned with trivial side shows, while the CBC is a mere shadow of its former staunch fearless questioning and holding power to account. It has been well and truly gelded, illustrated by the puff interviewing style, a craven deference to governmental authorities. This is not healthy for democracy.

With due respect, this is a continuing update of a series of emails I have written to you over the last four years. While your media unit promises a reply from former Ministers of Justice, this has not been forthcoming.
I appreciate that all governments increasingly find it difficult to defend the indefensible. Unfortunately, it appears leftist governments demonstrate the least will in holding institutions to account, raising an alarming level of despair about politics and democracy. People become discouraged, then disillusioned and finally alienated because of ineffective Ministers. I am astounded by the depth of hopelessness and cynicism across the community – like politics is something that’s been tried and failed and we’ve given up. But politics is for everyone, and we value our democracy enough to keep fighting for our inviolable rights. Our taxes pay the salaries of all Ministers and public servants so we have the right to know that they are all held to account.

My deeply disturbing concerns center on a clear failure of the CJC to comply with a Statute of the Canadian Parliament to response to all complaints. It remains my considered contention that this reckless indifference to the Judges law, constitutes a defiant affront towards all citizens of Canada.

Thucydides also warned democracy collapses into “a state of unprecedented lawlessness, when no fear of god or law of man has a restraining influence on authorities.”

All citizen’s right to know, should not only be a motherhood statement, but an enforced action, in any liberal democracy, but too much vested interest gets in the way. Most essentially, the pursuit of power – and the holding on to it – is the primal force distorting the way our authorities operate. Ideally those in power are there to serve the public interest; however, the nation’s most prestigious institution appears to treat citizens with contempt by hiding the very information, a statutory law, demands it disclose.

If you had any lingering doubts regarding a crisis of confidence in Canada’s Judicial System, these should have been dispelled by two events of the week; September, 23 - 27, 2019 followed by a third one when Canada dropped several positions in an international Corruption Perception Index in January 2020.

Two clear indicators, the Supreme Court’s welcomed acknowledgement of people’s lack of faith in the system by going on a publicity jaunt to Manitoba, and the launching of Beverley McLachlin’s memoirs, validate suspicions something is rotten in Canada’s Judicial System.

The former looks like long overdue measures to restore its diminished credibility, while the latter appears a desperate defensive attempt to compensate for an indolent culture of nonfeasance in the oversight of Judges. Any Judge or government official, not acting, when aware of structural and systemic abuse of power, becomes complicit; aiding and abetting that vanity.

Former leaders frequently suffer from ADD - attention deprivation disorder. McLachlin has good reason to attempt to justify her legacy, considering the amount of unfinished business she left for the new Chief Justice to clean up. Solon, Macbeth and Mussolini recognised the difficulty of coming down from the peak of power. As Junot Diaz discovered: “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”.

You only engage in crisis management, or write a book about yourself, if you are in damage control and are deeply insecure about your perceived performance, reputation or legacy. Though McLachlin’s stellar career is not in dispute, a permissive culture, leading to declining standards in the Canadian Judicial Council, under her demagogic watch could do with some major rebooting to restore some credibility, respectability, legitimacy and authority. The CJC’s image as a toothless watchdog, turning itself into an institutional guard dog, is pervasive. The Vic Toews white wash flicked the switch from farce to vaudeville.

The best illustration of the medieval depths we’ve sunk to on judicial standards is to contrast Beverley McLachlin’s tenure to Brian Dickson’s. It’s like a period from another era; the rational past.

For more on McLachlin see: http://nebo-lit.com/topic-areas/Justice/justice-and-power#topbar

Jody Wilson Raybould instinctively and reflexively resisted all attempts to make the CJC accountable, servilely abdicating her pledged responsibility of oversight. Most Ministers of Justice struggle to fulfill their oath of office to serve the citizens of Canada, rather preferring the easier option of protecting public servants. The Westminster System requires all parliamentarians to shoulder their responsibility of holding all public servants to their obligations of serving the greater community.

Real reform requires real deterring action against under performing Judges, addressing underlying causes, not merely white washing symptoms. Good Judges value their institute’s perceived image of authority and do something to rein in rogue Judges who sabotage its reputation. When court cases lack any legitimate attempt to follow basic bedrock principles, ascertain factual foundations, any pretense of fairness, or even the most elementary procedures in due process, faith in the system founders. In most occupations you would have a lot of explaining to do over professional lapses of that scale.

Respectable, reputable and responsible institutions do not need to resort to perception management to maintain their prestigious image. Eroding Judicial standards become conditioned, normalized, and deeply embedded within an institutional’s psyche. Endemic cultures or mindsets of infallibility, unaccountability and impunity are hard to shift but can do so with some coercive persuasion.

The Canadian Judicial Council is charged by the Canadian people with the mandate to “promote efficiency, uniformity, and accountability, and to improve quality of judicial service in the superior courts of Canada”. The Council is also mandated to review “any complaint or allegation” against a superior court judge and respond to all complainants.”

What word in: “Article 12.1 of the CJC’s Procedures: “The Executive Director must inform the complainant by letter when a matter is dismissed or concluded by the Chairperson, and indicate the basis on which it was dismissed or concluded” does the CJC find difficult to comprehend?

The CJC appears in clear defiance of a statutory mandate and a violation of rights. Despite many respectful appeals, McLachlin ignored all requests for a meaningful response to my complaints. Has the CJC become a law unto itself? The greatest threat to any democracy is a failure, by its institutions, to uphold a rules-based social contract. America’s system has broken down due to institutional dysfunction.

The CJC’s first area of concern is the performance of judges in court. Every decision, every word they say, every facial expression and physical gesture is open to scrutiny and review by the council. But the CJC is also the guardian of the ethical and moral viability of judges. In that regard too, the council has been remiss.

The CJC makes Canada look more like an authoritarian regime than an open liberal democracy. Keeping us in the dark is dangerous for all Canadians. Canadians should ask: What are they trying to hide from us? Why does the government not enforce its own statutes? Is the CJC too big to regulate?

What happens when the courts abuse the power, authority or trust that we, the voters, have invested in them? Do the laws of the Canadian Parliament apply to all, including the Supreme Court? What happens when the internal cozy mechanisms of accountability and transparency break down? Or when parliamentary representatives, our custodians, simply refuse to enforce their own laws? We have every right to expect full compliance from a value based institution. Justice is not just a word; it demands real action. Homer already noted that “words empty as the wind are best left unsaid”.

Despite a clear mandate to respond to complaints, I am informed less that 1% of all complaints to the Canadian Judicial Council are ever answered. The CJC is yet to forthrightly respond to my six year old complaint, persisting in simply refusing to abide by the most basic rules of law, ethics and probity. The court haven’t so much revoked normal standards as just let them slip away.

That is a serious assault on our right to know how justice can be flouted. It is a failure of holding wayward Judges to account. It appears the culture of secrecy is being used to protect the system from scrutiny; from uncomfortable truths. Secrecy hides incompetence and rewards conformity. It raises questions about ethics; about the extraordinary and outrageous lawlessness of the guardians of the law. The Legal system fails to understand how bad this looks for them as our confidence in the intellectual credibility and integrity of our Judicial system plummets. It directly threatens Canada’s standing as a first world country by inflicting damage on Canada’s past international standing. All power in a democracy is defined by limitations. No one is above the law - not even a former Chief Justice.

The overriding concern in any vibrant democracy is the Public’s right to know. Falling standards of oversight and a reticence to hold Judges to realistic community expectations create a deficit of trust. Officials prefer darkness over light and institutions migrate to an underlying culture of secrecy. Responsible governments need to exercise their authority, given to them by the people, to deal with blatant breaches by any branch of government.

Though there are many outstanding and highly revered Judges, they appear to become overshadowed by a minority of Judge’s grandiosity and penchant for self-aggrandisement. These are unfortunately frequently highlighted; sometimes acting as though they are above the law, conveying an impression of an arrogance beyond our reach.

Manitoba appears to have a Justice System that is failing to perform the basic functions of marshalling all the evidence, discriminating between hard evidence and self-serving assertions, and drawing reasonable inferences from expert opinions. Further it is my considered contention that an Appeals Court failed to make reasonable efforts to ensure that disputed facts, conflicting claims and unsupported determinations were tested as to their accuracy and reflection of reality. At least five findings were clearly at odds with grounded evidence.

It’s fair to conclude that the courts, in this instance, have been compromised by a political agenda that has corrupted their objectivity in assessing the accuracy of all assertions. Judges like this appear to scandalise their profession by debasing the very judicial standards they vowed to uphold.

Both courts show a disdain for facts by denying the value of forensic science, rigorous research, reliable recorded information, first hand knowledge and primary sources. Both display a wild lack of curiosity, a want of following probative evidence and complete disregard for their perceived standing and reputation.

My concerns, are for what passes as a legal process, lacking any sense of engaging with real evidence or grounded realism. Airy claims trumped hard primary, documentary and expert material evidence. Conflicting claims were never tested. It is hard to imagine any judge being so naive or gullible to privilege the claims of a benefitting party over expert, concrete evidence.

This constitutes a failure to meet acceptable and fundamental standards in determining the facts of any case.

It is the Appeals Court hollow bluff, in merely restating the original court’s findings I find deeply disturbingly lightweight. This needs to be called out as the community does have higher expectations for $60,000 worth of hot air. Just a tad of research could restore some credibility.

It is extremely upsetting to have to call the courts out on this, but the gravity of the situation appears endemic, widespread and entrenched so they’ve forced our hand with their apparent deceit and unfounded procedures.

What we need is oversight, and a lot of it. We need to figure out exactly what is broken — whether through malice or neglect or alignment or sheer incompetence — and start fixing it to preserve the reputation of the courts and the integrity of Canadian democracy.

There really is no situation where this sounds like an OK thing to do.

All noble human endeavor should be in pursuit of true Judgment. (T.S. Eliot)

It should come as no surprise to us that Canada’s discourse in the court system continues to be so impoverished. Judges, who soil the image of their own profession by debasing elementary judicial standards they vowed to uphold, need to be reined in. Instead of hunches, Judges should rely on evidence, forensic competence and procedural expertise. Public confidence lurches from one legal debacle to the next. When countries like Canada slip down an authoritarian path, they hurt not only their own citizens but give licence to other countries to follow suit.

Judicial decisions are always justified in some way, prosecuted by implausible arguments under an incoherent theory of Beverley McLachlin’s assertion that Judges can use full discretionary powers in interpreting statutes however they feel. This opens the floodgates of unexceptional and arguably normalised displays of Judicial impunity. We can readily count the days since last Judicial censure. Zero. Insisting on presenting unanimous decisions may be needed in political parties but undermines Judicial independence.

With all power comes the responsibility to be self critical and self corrective. There is little evidence of this within the CJC. The CJC appears to have an indolent culture of tolerating poor behavior. It failed to adequately investigate allegations of Judges not ruling on facts. It ignored reports of Judicial misrepresenting evidence. Is it merely a paper tiger?

When unfounded conclusions are so blatantly at odds with evidence, it suggests both courts were confident in their impunity.

There is a global movement to disrupt politics-as-usual. Civil disobedience and nonviolent resistance are now the most responsible course of action. Apathy is on the rise. Dissent is the only alternative.

Allegations by the public are not taken seriously enough. The concerns and expectations of the public take second place to unentitled judicial prerogatives. The CJC must understand that its primary duty is to the public, not to protect Judges.

………

Unless you are not convinced, there is no need to continue reading. The rest is just a detailed particulars of my serious concerns with a lot of repetition.

My complaint raised concerns of brazenly uninformed and purposefully misconceived untenable findings, which should cause greater concern among upright judges. Too many premises were based on unverified assertions. Noting this court’s complete lack of ability to distinguish between fact and fiction, warns of lasting damage to judicial credibility. It remains my continued perception that the conclusions were consciously, intentionally and purposely manipulated and distorted to serve an ulterior agenda. Our rigorously researched and diligently documented family narratives became collateral damage to reach desired determinations.

It also remains my perception that the logic was contorted, the facts, distorted and a $60,000 court fee extorted, for services not rendered.

It reflects poorly on the Appeals process and even more poorly on the CJC that they lack the self-awareness to recognise how damaging this is for its perceived image.

It is reasonable to condemn the Appeals process in the above case, as evidence of Judges parading their incompetence by merely restating the original courts findings, more emphatically and dogmatically, covering up for their ignorance and demonstrating towering contempt for due process, by not testing contentious facts, conflicting claims or providing any supporting evidence for determinations.

Its decisions seem justified by the selective and intentional misinterpretation of clearly documented evidence.

When the courts enmesh in descriptions of reality which are at variance with irrefutable evidence, they appear devoid of the powers of observation and critical discrimination. They attempt to convince the reader to believe narratives, even though both know they are fiction.

This mocks every basic legal/judicial principle and in my opinion should, in a responsible system, be just cause for an investigation towards possible impeachment.

I am reminded of the song “I fought the law and the law won”. However, I have no option but to continue to fight what appears a losing battle simply- “to give sleep to our nights”.

All politicians must address a crises in the lack of faith, confidence and trust in our most prestigious institution - Canada’s Supreme Court. We are well aware, by looking south, how faith in Justice can falter, undermining our trust. Our courts appear to be in defiance of clear mandatory requirements in responding to complaints regarding clear abuses of judicial power.

The Supreme court’s legitimacy, as Brian Dickson pointed out, comes not from its own power, but from the Canadian people through its representatives. We have charged them with trust to adjudicate in a fair and equitable manner. If the CJC is not big enough for a bit of scrutiny, then we must wonder what are they up to?

Justice is not about winners and losers, rather about resolving issues harmoniously with reciprocity and equity, instead of gaming the system.

In the above case file, the two Courts manage to do the life of Anne Ogilvie a disservice by going beyond mere perfunctory distortion of facts and narrative to become a sort of prestige negative and manipulative mauling that’s hostile in its mishandling of all source material.

The courts can be held to a higher standard of accuracy and impartiality both by legislation and by community expectations. However during the past years, it appears clearly evident that many court decisions do not meet those standards. Only Parliament can ensure these standards are upheld by enforcement. There’s a certain standard and respect that needs to re-engage. Otherwise we do end up with a move towards degrading a very important part of democracy and our trust in our system of Justice. We end up in a virtual totalitarian state.

All courts should be more conscientious in avoiding assertions purporting to be statements of fact that are purposely inaccurate and misleading to a material extent.

Court cases are always messy and passionate and contentious. But when it happens in the dark, beyond accountability and scrutiny, it can very easily jump the parameters of facts and truth leading to a sea of distrust. Most people are afraid of the dark, but the CJC appears afraid of the light.

The above case is littered with narrative inaccuracies, the question I ask: why do Judges get away with sloppy forensic investigations? The hallmark of any partisan decision is the denial of objective and verifiable truth. Lies, simply become alternative facts. When Appeals courts emanate a loyalty to colleagues that borders on the obsequious; the two court’s mindsets appear symbiotic.

And one thing psychologists know is that tyranny and atrocity thrive on bystanders. Passive, silent, submissive, obedient bystanders, without whom atrocity cannot survive. So if you care about Justice, free press, rule of law and tyranny, don’t be silent. Don’t be complicit. Speak up. Dr. Lissa Johnson – New Matilda

As citizens, we deserve to have our questions answered. Governments are charged with obligations to provide us with open, clear, irreproachable Justice. Justice is our most precious right At this stage I am astonished by what the Canadian Judicial Council thinks it can get away with. It appears utterly non compliant with a Statute of the Canadian Parliament to respond to complaints. This defiance eats away at the foundations of our trust. This does not conform to core legal or Canadian values.

Institutional corrosion begins, I suggest, whenever judges see themselves, more the tool and the effect of power and privilege, rather than as public servants with a clear civic duty to dispense clean Justice for all Canadian citizens. When the projection of power appears more evident than the proper exercise of power. When the Will to Power; an urge to control everything and everyone, becomes an irresistible Faustian force resulting in serious judicial malpractice creating a pattern of arbitrary decision making – so why does it take so long to stop it? No institution can be trusted to set their own codes of conduct, instead, all require oversight by our responsible governments. Has the CJC ever charged a judge with engaging in impeachable conduct? Only extreme naivety could assume it doesn’t exist.

Judicial logic, more narcissistic than syllogistic, appears to hold a view of the court’s privilege to determine the facts by cherry picking evidence, to suit their desired outcomes, rather than what can be verified. In my opinion, a great majority of the claims in the case File # 14-0393 were obviously falsehoods, which the courts then justified and validated by the selective and intentional misinterpretation of material evidence.

Court cases are not eisteddfods. Eloquence helps, but reputable judges do not hang on words. They are persuaded by material evidence. They read, watch and look everywhere.

In my distinct perception, both the initial court and an Appeals displayed an infantile quality of invincible naivety that made any real understanding of the Heinrichs family’s narrative so impossible. Both put creed before prudence, myth before science, ill-supported opinion before demonstrable fact. Both were in deep denial about well established facts and sound evidence clearly presented before them. Both failed as bullshit detectors. Both appear to harbor a small time political agenda of ferociously settling personal scores against our solicitor for leaving his powerful Law firm. In reality, both were shams; charades, charlatans, masquerading as lofty but hollow judgments - power struggles, devoid of principle.

Both had voices so uniform, false agendas so clear, they destroyed our confidence in the impartiality of our legal industry, which is meant to dispense our most precious entitlement; Justice. The Appeals court seems like one of those animals that puffs itself up when predators come around, using illusory might to conceal intrinsic weakness of its command of facts. Or an Ozymandian assertion, “Look upon my works, ye mighty and despair”.

Hannah Arendt pairs privilege with obliviousness; “obliviousness is privilege’s form of deprivation”. “The ideal subject of totalitarian rule is not the convinced Nazi or Communist, but people for whom the distinction between fact and fiction – reality of experience – and the distinction between right and wrong, true and false, no longer exist”.

It is my growing perception that the CJC, if not enabling and normalizing poor decision making in our court system, certainly condones it. What’s most frustrating, is to see the Appeals Court, tolerated by the CJC, to repeat false claims without seriously questioning them, particularly given that its primary purpose is to uphold high standards of Judicial probity. The standards you walk by, are the standards you accept and deserve.

The recent SNL SNAFU illustrates how badly the entire Canadian Justice system needs rebooting. With respect, Judicial oversight appears inadequate and reform of the system urgently needed. It does not seem that, the system is functioning to cater for individual failures. Your motives may have been pragmatically worthy, but confirms that politics plays a crucial part in all Judicial systems. There is a clear distinction between Judicial independence and Judicial accountability.

Never waste a crisis. You can redeem your legacy by real judicial reform. All politicians enhance their reputations and legacies by insisting on Judicial probity and maintaining basic Judicial standards.

We have repeatedly requested various governments of Canada to enforce a Statutory Law that requires the Canadian Judicial Council (CJC) to indicate the basis on which a complaint was dismissed or concluded. It is my understanding that this breach is a culpable defiance of Parliament - the sovereign will of the peoples of Canada. The question remains, who does the CJC answer to? Do we have a fully functioning judicial system that is reliable, responsible, accountable and generating good outcomes for all Canadian citizens? In my view, it’s almost an understatement to assert that the Justice system is “recklessly irresponsible” in maintaining acceptable community standards in fair, just and balanced judgments.

When a complaint is made about political machinations, vindictive, small time private score settling, regarding a verdict, short on real narratives but long on tactical persuasive gimmicks, then we feel it our public duty to demand accountability. When serious concerns are raised about an appeals process that is demonstrably negligent in its duty to verify and validate evidence, then these issues need to be answered. If a recalcitrant CJC fails to act - to fulfill its mandate, then Parliament has no option but to call in the Chief Justice.

It remains my perception that two courts, in the Heinrichs Hoffman (CJC File # 14-0393) case were reckless in failing to establish the truth or falsity of the imputations of presented evidence. Both failed to properly inquire into the facts. Both walked away from well established facts. In my opinion, both were recklessly irresponsible in reaching conclusions on threadbare oral assertions that simply had no foundations and so did not stack up. The most elementary or basic requirement of any investigation is to determine and establish the facts through procedural empirical testing. As Daniel Patrick Moynihan maintained: “Everyone is entitled to his own opinion, but not their own facts.”

The courts appear too disoriented to establish the facts of this case. Not only did two courts not know enough to make conclusive judgments, - they had no interest in the facts or getting to the truth of the matter. In every instance, the judge unquestioningly preferred the respondent’s airy evidence to solid material evidence. That, in my view, is professional negligence, needing investigation for possible impeachment.

It is my considered contention that the CJC’s utterly callous display of unwarranted privilege and entitlement, without even a minimal sense of national responsibility or shame has fostered skewed and unrealistic perceptions of the discretionary roles of Judges in a democratic society. We must avoid the perception of the Canadian Justice system becoming a legal museum. It retains a complex system of medieval presumptions and privilege which most of the common law world has abandoned. These outmoded privileges, guarded jealously, by the Legal fraternity, have no place in any first world democracy.

‏The three layers of justice can be compared to the Three Billy Goats Gruff, each level protected by the one above. This may make us the Troll, protecting the bridge - preventing the courts trampling and stomping on our sense of Justice; on our rigorously researched and well documented sacred narratives of family and ancestors. We need to exercise our agency as activists or advocates, because our cause is just. A responsible government enforces its own statutes.

Remaining constructive, legitimate and respectful, we are open to stand corrected on any errors of fact or perception.

By any view, the manner in which the Heinrichs Hoffman challenge of a Will was conducted at every level was breathtakingly arrogant. The judgment does not adequately explore the alienation of the twins. There was no explicit judicial recognition of the close relationships between the twins and their older siblings, or the friendliness of the respondent’s main witnesses, aspects that should have been considered and carefully weighed. At least five critical conclusions are seriously flawed. The brazenness of it processes and unfounded findings were staggeringly indicative of a false sense of authority and power, reflecting a towering contempt for the good citizens of Canada and of our parliamentary laws and representatives.

There can be no doubt that the CJC is lurching from one self-inflicted crisis to another, The CJC seems to preside over a diminished Judicial system that appears up for tender for entirely intentional political agendas. Having barely emerged from multiple inept investigations of Lori Douglas, Frank Newbould and Vic Toews, the CJC appears to enjoy exploring the farthest reaches of illogicality undermining every principle of professionalism. The Vic Toews whitewash is a clear example of the enablers; the CJC obscenely flipping the bird at all Canadians - we do it because we can! No one can hold us to account!

‏With due respect, for the CJC to discipline any Judge, in any meaningful way, it would have to admit that its own culture and managerial structures were responsible for the legal world’s own low public perception. But it cannot escape its own creation of judicial hauteur and impunity.

If the courts can not be held to conducting fair trials, then the entire structure of democracy becomes a limbeck, a fume, a false dream. Only if professions view extreme credulity as an asset, do some court decisions make sense. Courts need to be rooted in facts with a progressive perspective of doing what is best for the broader community. Anything else is self serving and thus corrupt.

Who judges Judges? When faced with a choice between guarding the prestige of their institution, and the interests of the wider Canadian public, where does the Canadian Judicial Council stand? The question that needs to be investigated is how effective is the CJC as a regulatory body of oversight to ensure high standards. Who can do that? Only Parliament can. It would of course be better if the initiative came from upright Judges themselves. It would go a long way to restoring confidence, credibility and trust in our most prestigious institution. There appears to be a hidden, but powerful, culture of manipulating outcomes for ulterior agendas. We must all work at holding the powerful to account. A government that does not enforce the laws of Parliament is not a responsible government.

In 1971, Pierre Trudeau established The Canadian Judicial Council and a Law Reform Commission to raise the standard of decision making and keep the judiciary connected to community expectations. For some twenty years they appeared to function, but now seem dysfunctional. In my view, it appears guilty of gross maladministration and negligence. The CJC appears to have shown itself to be unwilling or incapable of acting lawfully. This collapses our confidence in an institution of government that requires an urgent restoration of trust. We need assurance that the CJC is up to the task of overseeing and maintaining quality standards in restoring our faith in the perception of Justice.

It is better not having self regulating agencies, than having ineffective ones. Since it has been established, I am not aware of any Judge actually held to account. it is the sovereign duty of Parliament to oversee the CJC and enforce its statutes. It is my considered contention that the oversight of Canadian Judges falls disastrously short of public expectations. Perhaps it is now time to look to Australia which does not have a Bill of Rights nor a body of Judicial oversight, but where Judges are on a much tighter leash by its citizens.

Justin Trudeau has indicated plans to reform the Judicial system. Stephen Harper, who saved millions by abolishing Pierre Trudeau’s 1971 Law Reform Commission, was rewarded by having his legislation rejected by an increasing hubristic and activist Supreme Court of Canada. While we may have applauded it at the time, this set a dangerous precedence since neither had a clear mandate. As Nietzsche noted, “the greatest risk of fighting monsters, is becoming a monster”. Has the CJC become that monster? Judicial defiance appears to have trickled down the hallowed hierarchies and lower ranking Judges fail to adjudicate in the spirit of statutes legislated by the people’s representatives. The CJC appears to have degenerated from a public watch dog to an institutional guard dog, a protection racket to protect wayward judges; a compliant enabler of increasingly lower standards of judgments. It also appears to openly thumb its nose at its Statutory obligations in an obvious display of lawlessness.

Unfortunately Trudeau enshrines “independence” of the courts at the expense of “interdependence” of the three arms of government charged with proper transparency and accountability in the public duty of serving the wider public interest. The Westminster System assumes limitations of power through checks and balances; through reciprocal oversight. Now is the time for Judges to check their privileges. If they refuse to do it, then Parliament must question their competence and fitness for office.

We don’t need new bodies to reform the system. We have the structures in place to make the system work. All we need is the political will and spine for Parliamentarians to enforce their own laws and coerce the Judicial System to do the job they are being paid for by our money and laws. The CJC is mandated to deal with complaints in a transparent manner in order to ensure high standards of quality assurance.

What is the point of mandating laws if future ineffective Parliamentarians fail to enforce them?

The solution is simple. Only the full weight of Parliament - the representatives of the people - can be used to rein in the excesses of Judicial prerogatives. If the CJC appears unwilling or incapable of regulating rogue judges, then the Chief Justice should be called in to answer for its failures.

What is increasingly seen as the Ottawa bubble, referring to Canadians’ growing belief that the political system doesn’t work for them but for special interests is the ultimate example of a the CJC trapped inside a mindset, disconnected from reality. It may be time to clean the Augean Stables, but not by diverting rivers through it, into the Rideau Canal, merely upsetting all the environmentalists.

The recent changes in the role of the Supreme Court, represents a sharp contrast with its historical role. What was once a court cognizant of its subordinate position to the people’s parliament has become one obsessed with its own discretionary prerogatives and privilege. In light of the growing unease (and disgust) over the abuse of unentitled power by our institutions, it is crucial for Canada’s soul and continued status as a beacon to the world, that this abuse be curbed.

The gross failings of the CJC, of flouting the law, which appears to rely on the grounds of prosecutorial immunity, raises a fundamental question of supremacy; Parliamentary Statutes or The Supreme Court? Every failing of the system has dire consequences on our trust.

The writer’s personal experience warrants attention as it appears symptomatic of an endemic problem of Judges not ruling on the basis of ascertainable facts. In my opinion the Hoffman Heinrichs contest of a Will is an extraordinary case that failed to exhibit basic legal procedures of due process; elementary processes of determining or establishing the facts, displaying an astonishing lack of awareness of the rules of evidence, extended family dynamics or any understanding of the diagnosis and prognosis of schizophrenia. Courts which, baldly but boldly, assert known falsehoods, to well informed audiences, do not command respect. Culpably both courts, including the Appeals Court, failed to display any curiosity for factual evidence or any appetite for accuracy in reflecting reality. This, like most determinations, seems a fantastical disconnect with solid evidence before the court. Its apparent deliberately distorted assertions truly invited scorn, derision and contempt by those who knew the facts. Throughout 2014, I provided the Canadian Judicial Council detailed, definitive and damaging concerns regarding a perceived perversion of justice in contesting a Will, after some 5 years, the only acknowledgement I received was:

Private and Confidential correspondence addressed to the Judge concerned.

Justice Shawn Greenberg

Thank-you very much for your letters concerning complaints made by Mr Charles Klassen.

I enclose for your information a copy of the letter I have today sent to Mr Klassen closing the Council’s file on this matter.

Signed

Yours sincerely,

Norman Sabourin

Executive Director and Senior General Council


That was it! Despite many appeals - nothing! This is unacceptable and should not be tolerated by any self respecting democracy. Where are my inherent birth rights? What is the purpose of having an unenforceable Charter of Rights? This is a direct affront to open justice, freedom of information and the family’s and community’s right to know what is happening in the courts.

It does appear as if the CJC has shrouded itself in an obscure veil of Kafkaesque secrecy, attempting to instil, by brazen non-compliance, a sense of Ozymandian impotence and despair in all Canadian citizens.

The most galling aspect was the manner in which our methodically, rigorously researched and meticulously documented family stories appeared to be consciously, brazenly and purposefully misinterpreted or simply ignored to reach foregone or desired conclusions. Its bizarre findings cavalierly trampled on the recorded sacred memories of our honored forbear’s enduring, devoted duty of care.

Article 12.1 of the CJC’s Procedures is clear, explicit and unequivocal:

“The Executive Director must inform the complainant by letter when a matter is dismissed or concluded by the Chairperson, and indicate the basis on which it was dismissed or concluded”.

Is the CJC in contempt of Parliament? Is it flouting the laws of the Canadian people? I do feel aggrieved. I feel as if my inviolable birthright as a Canadian citizen and tax payer is being deliberately dismissed, treated with callous indifference and violated. More importantly, most of my extended family have lost faith, confidence and trust in Canada’s system of justice. Does that not matter?

Institutions are usually more interested in saving face than facing truth. The price of vaunted power is that it cannot admit any weakness — which means, intellectually, that it can never admit any fault, any error, any mistake, no matter how small. Is this why, the CJC refuses to investigate real complaints?

My critical concerns also center on THE COURT OF APPEAL OF MANITOBA, Mr.Justices: Alan D. MacInnes, Marc M. Monnin, William J. Burnett. Judgement delivered July 2, 2013 - Applicant: Rudy Hoffman v Respondent: Warren Heinrichs.

A complaint was submitted to the Canadian Judicial Council in 2014 (File: 14-0393). The CJC, in defiance of a Statutory Act of the Canadian Parliament, has never meaningfully responded to my serious concerns about perceptions of a perversion of Justice.

By sovereign birthright, I am entitled to a respectful, credible and substantive response. Yet our politicians, of all persuasions appear to lack the collective will to enforce their own laws.

In my opinion, both the original and the Appeal Court are in blatant Jurisdictional Error. Five crucial findings are based on unfounded speculations that are ill-informed and groundless. Appeals Courts have a duty to validate disputed facts. It failed to even make a serious attempt.

36 out of 46 surviving descendants challenged a Will due to perceived suspicious circumstances. The first court case failed us crucially, by ignoring vital evidence. Our subsequent appeal questioned the original Judgment’s grasp of the facts citing palpable and overriding inferential error as well as findings against substantive and ascertainable evidence. Nobody bothered to check or consider the facts. It appears they were prejudiced against the facts and reality.

The Appeals Court failed to undertake “reasonable efforts” to ensure that factual material was “supportable as being accurate”. More Judge Judy, than Sherlock Holmes. The Appeals court baldly proclaimed at least five, unfounded conclusions due to its reliance on clearly disputed evidence, it never bothered to test.

Instead of verifying or validating disputed errors of fact, the Appeal court was content with posturing - projecting its bulwark power; by stridently and stolidly compounding these errors of judgment in a vain attempt at establishing known misconceptions as irrefutable fact, by bombast and bluster - simply emphatically restating them. This betrays a deep sense of insecurity.

This raises serious questions about how out of touch with reality the courts are? How deeply and broadly and limitlessly their vanity clouds their assessments and judgments? How dangerous that is for all of us? Legitimate concerns demand serious investigations and answers.

It can be argued that the courts today are once again losing ground as arbiters of Justice as they become untethered from reality and slaves to legal rhetoric and theatrics. Former Australian Justice, Michael Kirby, advocates that ‘‘A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will”. Kirby, according to Greg Barnes, “has always unambiguously stood for the proposition that justice is about more than technical interpretation and slavish following of precedent – and is in fact about ensuring humanity is enhanced´.

It is time to revisit Judicial reform, including how Judges are appointed and how they are trained. What are prerequisite qualifications? We don’t want a court system filled with Judges who haven’t mastered the skills and knowledge essential to their jobs. Do you? All Family court Judges should have grounded knowledge of how a variety of family dynamics differ. All Judges should have well founded awareness of mental disorders and how they can be diagnosed and treated. The danger is that Judges become perceived as dubious authorities “who assert their knowledge of a subject without having any real understanding of it.”

Above all, Judges need to be trained in how to access and assess evidence and evaluate sources, being aware of intent and motive. Due process demands basic standards: conscientious discovery, determination and establishment of facts, above board assessments or evaluations of evidence, sound inferences, balanced, reasonable weightings, supported conclusions.

Further, to avoid the perception of incestuous bias, all Judges should be prepared to move at least two provinces away from where they practiced as a lawyer.

I don’t know why, but I am still profoundly disturbed by a case contesting the Ogilvie Will - not by itself but by the failure of the Canadian Judicial System to correct itself. I feel it is symptomatic of declining standards of what we should expect from a former prestigious institution. Basic investigative procedures were lacking. We could well be forgiven for wondering just how did the Canadian Court System manage to be in such a mire, given the competency bar for arbitration appears to be so low?

For six years I have been waiting for a sensible response from Judges, Politicians of all persuasions or the Canadian Judicial Council to no avail. The CJC’s utterly callous display of unwarranted privilege and entitlement and without even a minimal sense of national responsibility or shame, fails to inspire confidence. This inaction has violated a reasonable expectation of transparency.

The entire saga is so full of sheer POWER rather than sense, logic or proper procedures. It seems about their infamous display of “libido dominandi”, their insatiable lust for power in settling a small time score. There appear to be many examples, inconsistent with standard judicial procedure. Its premises are ill-informed or naive; generally both. Like Humpty Dumpty asserts to Alice: in matters of interpretation “the meaning of a word is simply determined by “who is to be master -, that is all” , following not Descartes’ “I think, therefore I am,” but Darwin’s “survival of the fittest. Where might is right”.

How does the Canadian Judicial Council respond to complaints?

It is a mandatory requirement by statute that the CJC must investigate if there is a reasonable perception that a judge has behaved in a way which constitutes a significant departure from accepted professional standards; and that such behaviour has placed the reputation and credibility of the entire court system at risk of harm. Like Hamlet’s catalogue of the law’s ills: For who would bear the whips and scorns of time, /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, This appears a stark abuse of privilege - an unforgivable abuse of vaunted power. It also seems like consummate denialism.

Instances of perception management are further reinforced by the vehement tone and tenor of the Appeal Court. Voicing its own threatened fears, lack of knowledge and inadequacies of procedure, it resorts to towering bluster, bombast and bravado betraying its insecurity, defensiveness and covering up its deficiencies. In my view this is a complete negation of empirical consideration of evidence. It belies its professed oath of office. With consummate skill, it managed to get five facts wrong. The court didn’t err by chance or inadequate effort; on the contrary every effort was made to get a desired outcome. It was as close to the responders as lips and teeth.

I remain astonished by extraordinary methods – a gross neglect of proper procedures. How is this possible? Utterly crucial evidence remains shockingly unexamined; vital disputations not tested. “It appears like a kangaroo court with a rubber stamp.”

Where is the judicial oversight? We feel our stories have been being pushed around by courts too smug with power, or too frightened of losing it, to critically assess their judicial overreach.

Greg Barnes writes:

“All too often judges are criticised for being pompous and out of touch with the community. While this accusation is grossly unfair, it is understandable. Of course, if we insist on calling judges Your Honour and using ridiculously quaint expressions such as “If Your Honour pleases” in addressing a court, it’s no wonder that the deification of the judiciary is alive and well in Australia today.”

Emma Thompson writing about The Children Act concedes Judges can become somewhat self-important. How could it hardly be otherwise? it’s very, very difficult to avoid”. “The system of the law is designed to make Judges feel like a god. First of all, you sit above everyone, you sit in judgment and it’s an immense responsibility. Then, when people come to you, they are very, very respectful. Backstage, there is a red carpet and only judges and their clerks are allowed to walk on it. Really! If you are treated in that way it’s very difficult not to ingest some of that sense of importance.”

What’s wrong with our systems of power. Although the women I met actually inhabit those systems of power with a great deal more humility and adaptability and emotional intelligence. And a lot of the judges I met, male and female, had a fantastic quality, a kind of breadth of thinking, somehow, because of course they see so much.” Pain, mostly. “A constant liturgy of pain, these people going in and out all day – pain, loss, fury, suffering, particularly of children. “

This may explain, if Canada has acquired a bullying culture, the reason may found in the courts openly posturing as the bully they wish to be perceived. If Canada becomes more racist, it could be that the courts fail the first nation people. If Canadians become more apathetic and dispirited, it could be because the courts and politicians fail to respond to our genuine concerns. Perhaps the courts may need to re-connect with the grounded expectations of the people of Canada.

This is totally unacceptable in any mature democracy. It should not be tolerated by our elected responsible representatives. It needs to be re-examined. Yet all we get is silence and inaction.

Does the CJC take its publically funded obligation seriously or merely appear to excel in offending, intimidating and dismissing all complaints in an attempt to delegitimise dissent to protect their own? Perhaps they could do with training in simple manners. It could start with being true to its mandatory requirement of response and the proclaimed values of Justice, adhering to its vestigial purpose of upholding exacting Judicial standards by showing the moral courage necessary to see complaints as opportunities for improvement and to admit failures as a badge of honour.

Instead of upholding proper standards, The Canadian Judicial Council seems to engage in shadow boxing with occasional knock-out blows.

Lori Douglas, Frank Newbould and Michel Girouard have all been investigated by the CJC for personal matters that merely had the potential of affecting their performance, while real cases demonstrating declining standards of decision making, causing greater self-inflicted reputational damage to the profession are tacitly condoned. The first two have resigned leaving us, in my opinion, with the loss of two good judges whose promising careers were wantonly but needlessly destroyed.

Each displayed human traits, apparently not tolerated by the CJC. History demonstrates repeatedly, monotonously and depressingly that the last thing we need is dehumanised or inhumane Judges. We need empathetic Judges who share our common humanity.

In another recent CJC investigation, according to co-founder of Democracy Watch, Duff Conacher, for Vic Toews, “To face no penalty at all, or sanction, is a questionable ruling.”. But then foxes investigating the presence of blood in the hen house are hardly likely to implicate one of their own.

Cases: Lori Douglass

Pierre Trudeau proclaimed that the nation had no business in people’s bedrooms. This case should likely never have been pursued to the detriment of a promising and capable Judge. Perhaps the titillation of salacious sexual politics was too seducing for the CJC to resist.

The following excerpt from the CJC website, responding testily to a complainant of its investigation to determine if the Judge can continue to hold office with the necessary public confidence to discharge the duties of that office, tends to reinforce my impressions of an apologist or even a protectionist society for Judges.

CJC Response to complaint regarding Honourable Lori Douglas of Manitoba’s Queen’s Bench on December 10, 2014

The partial transcript:

Ms Esther Mendelsohn

JD Candidate Osgoode Hall Law School

Dear Ms Mendelsohn,

………

I have been particularly troubled by your suggestion that Independent Counsel, Ms Suzanne Côté (now Justice Côté), acted in a “callous and gratuitous manner.” The mandate of Independent Cousel is to marshal all evidence, whether favourable or unfavourable to the judge. Independent Counsel who served in the Douglas Inquiry is someone with a strong reputation for outstanding legal skills. She discharged her duty, as she was required to do, in accordance with Council’s by-laws and policies. There is no basis to suggest she acted other than in the proper fulfilment of that mandate.

The Inquiry has stayed its proceedings on the basis that it would not be in the public interest to proceed, given the judge’s decision to retire in May 2015, and given related Court actions would not be completed by then. Questions about the facts to be considered by the Inquiry will therefore remain unresolved. For that reason, no conclusions should be drawn about the allegations.

Yours sincerely, [Original signed by]

Norman Sabourin

Executive Director and Senior General Counsel

First, I congratulate the Canadian Judicial Council for posting this letter and other correspondence on its site. It represents refreshing openness.

However I do question some of the unwarranted presumptions and self-serving arguments.

What particularly disturbs me is its dismissive, high-handed and slap down tone, its total lack of professional detachment. I derive a distinct holistic impression of a bunkered or siege mentality from the CJC. It appears the CJC is more concerned about closing rank; protecting its members pecuniary interests, than inspiring public confidence and trust in the integrity of the judicial process.

Further its towering superior tone is meant to warn a prospective member of the legal fraternity to tow the line; that dissent will not be tolerated.

As in my case of complaints, where it offensively ignores key issues, the CJC acts imperiously without due respect for facts or the supplicants.

Canada appears to be squandering its social capital by a decline, decay or an erosion of social values, evidenced by a lack of respect for disfavored views; those who do not have advantage. Factors include: an imperious attitude, rudeness, diminished personal respect and dignity, lack of empathy and verbal, psychological or emotional abuse –in a word - bullying. Cordial manners are about empathy, self-respect and mutual respect. They are not about dominance and submission. They are not adversarial, degrading or demeaning. Civility is a sign of confidence, self - assertion and strength – not weakness. Theodore Roosevelt put it as “Politeness is a sign of dignity, not subservience” while Goethe maintained “manners are the mirror of your portrait”. The final word goes to Albert Einstein, “Let every man be respected as an individual and no man idolised”.

What relevance is his “particularly troubled” by any suggestion of slight? The CJC officials do not have the luxury of taking personal umbrage and should leave egos outside the door. They are there to judge in an impersonal disinterested manner on the basis of public perception; not appear threatened for their own privileged position or the judges under their charge.

There is a need for a more of a servant-mentality amongst court officials. This requires a levelling out of hierarchies. This does not mean getting rid of hierarchies - these have their proper functions - but rather ensuring hierarchies are focused on mutual respect, collaboration and equivalency; not power and status.

The argument that because someone has “a strong reputation for outstanding legal skills” does not make one infallible or beyond legitimate robust questioning of accountability.

The fact that the judge’s decision to resign provides a basis for the appeasing public interest is, in my opinion, utterly misconceived. Has the CJC ever terminated a Judge’s career? It merely provides a convenient celebratory excuse for the CJC to avoid its statutory responsibility. Many of us would be more than happy to enjoy this privilege with full entitlements when we err.

Judging by the internet, the Canadian Justice system appears to be in dire straits. Based in Sydney Australia and trawling the internet for resources dealing with Justice, I keep coming across sites revealing disturbing accounts of grievances regarding Canadian Justice and the state of lawyers (A study show lawyer’s suicide rate is about 6 times higher than the general population [2]). Are there systemic failures? If so, who is responsible for discovering the cause and looking for solutions to the problem? As I keep reminding my siblings, when I left Canada in the early seventies, governance and regulatory processes were almost perfect; what happened?

Any immune, unaccountable or indispensable institution, like the Catholic Church or the Legal Judicial Institution, that doesn’t criticise itself, that doesn’t update itself, that doesn’t seek to improve itself - becomes a sick body.

The more monolithic bureaucracies become, the more they are reinforced by their cloistered remoteness; their schizoid disconnection from grounded reality. Incestuous institutions like the Catholic Church or the legal judicial fraternity can become moribund due to calcification or entrenchment. A self - serving careerist mind set develops that they exist for themselves rather than for the greater good of the public. Some believe that their institution exists to provide them with a job; not the other way around. Subject to groupthink, they become reluctant to hear opposing views or to work with anyone perceived to be on the outside. Some live high up in an ivory tower; in a bubble world doubling as an echo chamber. Only a seismic paradigm shift – vigilante action or race riots - can change encultured mind sets. What we need is not just better individuals; also better systems to make up for individual flaws.

The Catholic Church is not in trouble because a small percentage of officials abused young children, but because responsible officials failed to act. Good priests become smeared by the actions of a few.

As Evan Whitton [3] points out: “Judges are not trained, on the facile but bizarre assumption that a competent lawyer will become a good judge! Some Judges find the transformation from an adversarial mindset to Judicious disinterestedness and detachment, a seismic paradigm shift too difficult to negotiate.”

We all make mistakes from time to time, an individual or institution’s credibility is enhanced, not diminished, by acknowledging the error, correcting it and apologising for the offence caused.

Here is a rare insight from a former politician [4 ]:

The danger from straying judges is very real, as ultimately their activities are undemocratic, and undermine the pivotal place of the law in civilised society. They invite disrespect of the law and its expositors, the judges themselves, and thereby contribute to a lessening of the authority of law as the final and accepted final arbiter of process, constitutionalism and conflict—the very characteristics that distinguish our society from the banana republics of the Zimbabwe variety.”

Many percipient social commentators claim we are drowning in a sea of distrust. The question is, can public faith, confidence and trust be restored? I know it can. During the 1980’s in Australia, several fearless Judges took on established power bases, bringing down governments, at great personal cost to their own careers.[5] We desperately need someone to restore our absolute trust in Canada’s supposedly most prestigious public institution.

Noel Turnbull writes: It has been axiomatic that the first principle of issues management is always masterly inaction. (Sweep it under the carpet) Think before you act, seriously consider doing nothing because it might aggravate the situation, and remember that it is probably not as big an issue as you think it is.

We no longer enjoy responsible government; rather suffer a culture of inaction.

Governments deflect responsibility and scrutiny by outsourcing into a nebulous mix of systems and separate decision-makers, leaving no one person or agency ultimately responsible. And the court system has long since become a Kafkaesque mix of arrogated presumptions of solipsistic vanity, mystical understanding, uncanny reasoning, evidenced by rhetorical theatre, institutionalised paranoia and irrational bureaucracy in which any semblance of logic is not merely dismissed but might even be considered folly.

This outsourcing of guardianship enables governments and politicians in particular to operate with complete plausible deniability. Ministers, who used to be considered responsible for what happened in their portfolios, can place their hands on their hearts and swear they know nothing, that they have sought advice but they too are powerless. They need to heed the advice of Cicero 55 BC:

“…the arrogance of officialdom needs to be tempered and controlled,”

Meantime, lawyers, activists, gadflies… hell, let’s call them what we are, troublemakers – get ignored without anyone with any authority having to front up and accept responsibility. It’s all part of the constant process of delegitimising dissent.

Democracy is not a gift from above, rather a hard fought demand by the people. Thousands of people died fighting for it in the English Civil War from 1640 – 1660, the French Revolution, 1789 – 1848, and various other struggles for freedom. It is fragile and vulnerable. Democracy can only be retained by constant vigilance and publically spirited endeavor. Unfortunately “the tree of liberty needs to be replenished by the blood of tyrants and patriots”. Paine

The greatest danger to democracy is a feeling of powerlessness or abject servility caused by fear, resulting in disconnection or apathy; a frozen form of coiled violence that can be thawed by any tipping point as Canadians see simply by looking in a southerly direction.

To adapt the words of Benjamin Franklin, “if we fear the courts, we have tyranny; if the courts fear us, we have a robust, dynamic democracy”.

In the light of the Canadian Judicial Council’s failure to adequately investigate this and another complaint, I call on the Canadian Government to establish an independent parliamentary inquiry to fully scrutinise how Justice is being perceived in Canada and whether we are getting our money’s worth. It is my impression that a first world country endures a third world justice system.

A full parliamentary inquiry into the CJC should have a majority of non-legal minds. The legal world does not have a monopoly on evaluative and interpretive skills and as Einstein informs us, “we cannot expect to solve problems with the same kind of thinking that caused the problems”.

Respectfully yours,

Charles Klassen

References:

1 https://www.cjc ccm.gc.ca/cmslib/general/Douglas_Docs/CJC%20letter%20to%20Ms%20Mendelsohn%202014-12-10.pdf

2 The following site http://www.shouldyoubealawyer.com/TermsOfService.htm has some interesting observations

Depression: Lawyers are more likely to suffer serious depression, have more car crashes or suicides than the general population. A 1997 study compared the suicide incidence for Canadian lawyers with the general population using death and insurance records. The suicide rate among general population was 10 to 14 deaths per 100,000 people. Among attorneys it was 69.3 suicides per 100,000 people, about 6 times higher. Suicide was the 3rd highest cause of death for Canadian lawyers, claiming 10.8% of lawyer deaths, just behind cancer and heart attacks.

Recently in Australia, the NSW Director of Public Prosecutions, in response to the suicides of prominent lawyers, circulated a memo to all Crown prosecutors and solicitors warning them to stop bullying one another or face disciplinary action.

3 Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies.

Evan Whitton has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for “courage and innovation” in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He was a columnist on the online legal journal Justinian www.justinian.com.au Evan passed away in 2018.

4 Hon Hassell, B., AM, “The State of the Law’, 2004, Dinner Address, Proceedings of the Sixteenth Conference of The Samuel Griffith Society, Perth.

5 A number of Senior Judges have stood out as outstanding paragons of virtue either in exemplary dissenting decisions, speaking out or as the heads of Investigating Bodies. In most cases these have been at great personal cost to their individual and professional lives. Many comment on what an isolating experience it becomes.

Those instrumental in conducting fearless corruption inquiries include: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, and many others. At least two cabinet ministers have been jailed as a result of these official inquiries; Rex Jackson in NSW for accepting bribes in an early release of prisoners and Police commissioner Terry Lewis in Queensland.

Writing twenty five years later, Tony Fitzgerald, credited with bringing down a Queensland Government, reflects on the hazards of speaking out:

The pressure on Mr Fitzgerald and his team at the inquiry was relentless. “We couldn’t stop, it was 24/7,” he said. Asked about the impact at home, he agreed there had been “consequences”, but even now he won’t go into detail about what his family went through, explaining that they had all moved on from that fraught time.

“Can you rewrite history? No you can’t,” Mr Fitzgerald said. “In a sense, I think that anyone who does an unpopular task puts themselves at risk, whether it be physical or professional risk or critical risk. That’s a consequence.

It’s always out there.”

Mr Fitzgerald said ultimately he realised that it would be impossible for him to stay or work in Brisbane. In 1998, he and his wife moved to Sydney, where he became a judge of the appeals division of the NSW Supreme Court.

He is scathing of the legal bar in Brisbane, of which he was once a prominent member, branding it fearful of change. “Up there in the legal profession I’m a square peg in a round hole,” he said. “There . . . are always character assassins, there are always the envious. Up there . . . to me, conformity is an absolute way of life.”

JAMIE WALKER, THE AUSTRALIAN SEPTEMBER 21, 2013

6 Noel Turnbull, adjunct professor of media and communications at RMIT University

7 Many countries have looked to Canada as their guiding beacon in terms of social justice:

“The meaning of the Rule of Law is very simple and well known to us all: the law must stand supreme as the source and fabric of all social organization. It is the law which provides the framework for relations among individuals as well as between the individual and the state: the law delineates the scope of each person’s liberties and responsibilities and defines the powers and duties of government. All obligations imposed on the individual and all restrictions upon his or her liberty must be justified by law. This is the most fundamental guarantee of equality and freedom we have achieved as a society. The Rule of Law protects individuals from arbitrary and capricious treatment at the hands of government and fosters confidence in each of us that the power of government to interfere with our lives is finite and accountable. It allows us to live together in freedom and harmony and provides the common ground for social progress and prosperity.” The Right Honourable Brian Dickson P.C. (from a speech to the Canadian Bar Association)

He also quotes this guiding principle from an Ontario appeals decision:

“The Supreme Court is not a self-created body with original powers; it is not a benevolent autocrat with full powers to act as it should think fit; the court is an institution organized by the people through their representatives for the purpose of giving to those who apply to it their rights according to law, the law not being made by the Court but laid down for it by authority; the court has no right to give a decision in accord with its own views of equity and good conscience, as distinct from the rules laid down for it. The Court has no right to take power unto itself which is not conferred by the people.” Scott v. Scott-Ontario Court of Appeal 1DLR53, 64OLR422

It is my distinct impression that the court effectively conspired to pervert the course of justice by consciously and wilfully ignoring hard evidence inconvenient with its preconceived mindset. Its motive appears to be a score settling vendetta against our lawyer, who left his powerful law firm a month before our case. There are legitimate procedures to negotiate such issues. Yet Judges appear immune to prosecution. In Canada it appears there is one rule of law for our court officials and another for the rest of us.

Accuracy and credibility are important values that enhance the reputations, image and authority of self- respecting institutions. Responsible Institutions prize their reputations because they underpin their legitimacy. With due respect, any reputational damage is entirely self-inflicted; they appear capable of disgracing themseves with some atrocious decision making. The question remains; is it ineptitude, conscious ill-will or simply a hubristic powerplay?

[CK1]

Crime fiction, also called thrillers are popular