Judicial Corruption

Judicial Corruption #

Corruption is not only immoral, but is a serious crime. It is often organized, betrays people and democracies. UN Secretary-General António Guterres

Broadly defined, corruption is the abuse of entrusted power for any ulterior reason. It can be classified as grand, petty or political, depending on its motivation. It becomes glaringly obvious when courts flagrantly flout community expected norms of a reliable and trusted justice system; instead gaming a flawed and toxic legal system by arbitrary decision making. Times change, but corruption is unfortunately a constant.

By another definition, corruption indicates a system that is broken or not fulfilling its founding purpose because of ulterior self-serving agendas.

“The possibility of corruption exists wherever a dishonest public official has power or authority…,and dishonesty is a common human flaw.” Tony Fitzgerald QC, - The Saturday Paper.

The most dangerous threat to Judicial stature is bad, lazy, unfounded decision making. The most dangerous threat to democracy is any form of unaccountability by any officials.

First, we should acknowledge that there are many very good, highly principled, legal practitioners about, but that systems are vulnerable to shysters, who can smear the image of the whole profession, placing the entire System into disrepute. Systemic failures occur when the received wisdom from Solon, Plato, John of Salisbury, Shakespeare, Dickens, Holmes or Michael Kirby is flouted by ignoring the fundamental, inherited and guiding principles in all judicial arbitrating; public office demands public trust for the public good. Public servants fail us when they shamelessly shrug off their vowed oaths of office. The good guys must stand up to the baddies.

Occasional golden ages shine through from time to time when as Hegel writes, “the owl of Minerva takes flight”.

Theodore Parker assured us in 1810,

“The arc of the moral universe is long, but it bends towards justice.”

Sometimes it appears interminably long, especially when the legal world intervenes.

It has become my perception that Canada’s once renowned Justice System is falling well short of what it claims to be, degenerating from providing a legitimate and much-needed service to the social well being of the people of Canada, to becoming a self-serving entity. Poor judicial decision making undermines public faith in the rule of law. With respect, a dominant regime of unaccountability prevails, fostering an endemic culture of complete Judicial immunity and impunity engendering an institutional bunker and siege mentality whenever evidence of declining standards or basic errors of fact come to light.

More due diligence, elementary regulatory oversight to maintain basic standards proves more effective. I gain the perception of a complete lack of accountability. The greater the power; the greater the need for transparency and independent oversight.

Whenever the Justice system fails us, society becomes diminished and citizens lose confidence in the political process, allowing populist leaders to win.

Each new generation seems to have to learn for themselves the limitations and ephemeral nature of their power. Some Judges feel that somehow they are exceptional; immune or resistant to core guiding principles of the past.

Politicians reflexively shrug off their oath of office to serve the greater public, to protect institutions or serve vested interests.

The Common Good #

Justice Oliver Wendell Holmes in 1881 in The Common Law 46 wrote: …

”The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong.”

Holmes was merely re-articulating what Solon, (circa) 700 BCE, Plato, 300 BCE, Justinian, 500 ACE, John of Salisbury, 1200, John Cooke, 1648, and many others had said before and since. Evan Whitton claims that rather than a Justice System, we have a Legal System “and ne’er the twain shall meet”. A Justice System works for the public good; to improve the net worth of social capital. We appear to fight for justice within a legal system determined to deny it.

A Legal System is self-serving, working for the good of the legal profession; as Richard Posner, a US economist and judge, admitted:

“lawyers and judges have always been ‘a cartel’ aiming ‘to secure a lustrous place in the financial and social status sun”.

Charles Dickens observed in 1852: “The one great principle of English law is to make business for itself.” Judge Rothwax: ‘ … we have a system that is run entirely by lawyers for their own interests and for their own benefit.’ Yale law professor Fred Rodell: ‘The legal trade is nothing but a high class racket.’ Apart from everything else, the rules for concealing and manipulating evidence enable lawyers and judges to engage in endless technical discussion on whether evidence can be admitted. When you get paid by the hour, why wouldn’t you?

Geoffrey Robertson insists no one should become a lawyer for pecuniary reasons. If you just want to make money, become a real estate agent, a hedge fund manager or a property developer. Lawyers and Judges should endeavor to serve the general good and enhance society.

Perhaps the most frightening warning about the tyrannical power of the law comes from Franz Kafka’s The Trial: Kafka’s 1924 novel, illustrates the banality of terror through the abuse of power and gave us the word “kafkaesque” to describe similar situations of powerlessness in today’s both totalitarian and democratic world.

The main character, Joseph K. struggles futilely against a secretive and tyrannical court system, only to be abruptly executed at the end with a knife to the heart.

Joseph manages to arouse the court’s anger by complaining about the absurdity of the proceedings and the accusation itself, if he could only understand them. The novel exposes the absurdity of life under unaccountable power systems out of control.

A recent contest of a Will, dealt a fatal blow to our family’s perception of basic democratic principles that Judicial decisions ought to be justifiably made, based on law, logic and facts, rather than spite or political vendettas; a mixture of overt political partisanship interlaced with some clever legalisms.

Stephen Colbert defines truthiness as the quality of seeming to be true according to one’s intuition, opinion, or perception without regard to logic, factual evidence, or the like: the growing trend of truthiness as opposed to truth. Truthiness is. This is a dangerous proposition, since demagogues like Trump assert this is where their logic stems from.

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 themselves with some atrocious decision making. The question is whether it is ineptitude, conscious ill-will or simply a hubristic powerplay.

Any Institution is only as strong as those entrusted to uphold its founding principles. The dance remains the same; only the dancers change. Respectable, prestigious institutions climb to great heights, but then incipiently, incestuously and insidiously the pathological rot complacently sets in. No one dares to question why?

Poor representation and negative portrayal of any profession becomes a quagmire; the threatened, dominant culture becomes defensive, where farcical small time politics and a self-serving idiocy play out, serving only to exacerbate media criticism and public disillusionment, creating a closed, unremittingly, self-perpetuating, toxic public image.

Someone needs to press the reset button and reboot the system to avoid the perception of unyielding corrupt behavior becoming the norm.

The British adversarial system spread throughout its empire, America, Canada, India, Australia and even South Africa as opposed to the inquisitorial system favored by European countries. Either can be corrupted by will. The British system was largely forced to transform during the 1980’s and 90’s.

Australian Justice seems to be lighting a beacon of hope, replacing Canada’s dimming. Robust criticism of the courts met with fierce opposition, but the right of people to criticise Judgments appears to have prevailed and the courts are much more aware of the limitations to their awesome bulwark discretionary power. The greatest danger facing Australian Judges today is the threat of being declared a National Treasure or nominated for Australian of the year.

An Open letter to: #

The Honorable Prime Minister of Canada, Justin Trudeau

Watching your excellent interview with Paul Wells of Maclean’s Magazine, I was generally impressed by your responses, “keep (ing) the word of promise to our ear/And break (ing) it to our hope.”

However, with respect, your obsequious deferential trust in our court system is unwarranted and misplaced. Parliament is the supreme body representing the sovereign will of the Canadian people - not Judges appointed to the Supreme Court. Judges are servants of the Law, not masters. They have sworn an oath to uphold the spirit and intent of statutes, that we the people have a chance to approve or disapprove.

Supreme Court Judges have no mandate, so are commissioned to interpret and to comply with the laws of the land, determined by our elected representatives. Lack of sincerity in interpreting the intent and purpose of statutory legislation should be seen as subverting the will of parliament and the people. It needs to be sharply censored by threat of impeachment of judges. In any other profession, it would result in serious consequences.

While we appreciate the independence of the Judiciary, the Westminster System requires Checks and Balances; that the three branches of governance must hold each other to account for systemic failures so that you can restore Canadian’s respect for all our institutions.

One of the clearest functions of any government is to ensure its citizens are afforded some degree of protection against the excesses of all institutions, corporations and criminals.

Democracies are fragile because they depend on competing parties accepting common norms. Norms are essential because without them, “constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be.” Steven Levitsky and Daniel Ziblatt. How Democracies Die.

With respect, the Canadian Judicial Council continues to breach its statutory obligations by violating my sovereign right to a meaningful response of a four year old complaint. (File: 14-0393).

That is an undeniable truth. The Statutory law of the Canadian Parliament clearly states that the CJC must inform a complainant if, when and why, a complaint is rejected. It has failed me and deprived me of an inviolable right. As Luther put it, “an injustice done to one, is an injustice done to all”.

Just a tad tardy! You will appreciate, I feel trapped in a surreal, Kafkaesque, bureaucratic time warp.

This isn’t merely a question of our due inheritance, but the credibility of the entire legal domain: it is also about the basic survival of trust in our institutions. Our faith in the Justice System is further corroded by unfounded, posturing certainties of a tendentious Appeals Court, which manifestly and demonstrably failed to validate contested, but untested, conclusions of the original court decisions. Discovering the truth may be difficult, but as Orwell put it, it is much easier if one is actually looking for it. We expected a conscientious court system to be capable of establishing the basic objective and empirical facts by due consideration of all available documentary evidence and testing conflicting claims. We were sadly disappointed. No one should be under any illusion of how far this Court went trying to suppress the obvious and prove the impossible.

Respectfully, your government has a legal and moral duty to enforce its own laws. If the CJC cannot uphold Judicial standards, requiring proper due diligence, then our representatives, the Canadian Parliament, must, coercively, hold them to account. With all due respect, a failure to act, creates an impression that the public interest is of little concern to your government. Flaunting defiance, by the Judicial System, of Canadian Parliamentary Statutes, should be of utmost concern; utterly unacceptable and should never be tolerated by any Canadian. Failure to act risks populism, on the rise around the world, with an insurgence coinciding with a crisis of confidence in our democracy. Canada is as much at risk as any other democracy.

The rules-based order that has evolved since responsible government was granted to Canada by Queen Victoria in 1837 appears under strain, even direct challenge by a rampant Supreme Court; an Institution, built for democracy, now, struggling to sustain its ideals. Governments are responsible for what they do, but also what they don’t do. What is the point of our Charter of Rights if politicians are unwilling to protect ours?

We should be keenly aware of the fragility of the rule of law if it is not carefully maintained, especially by those entrusted by the Canadian people to uphold it. It should be clear that things are falling apart – the center is not holding. Since the 1990’s, we have become increasingly concerned about the state of affairs, internationally and at home, and about the basic promises we make to our children to hand over a system that works and a country that we can be proud of.

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. Just when we thought they had hit rock bottom, they astound us by digging trenches. Their towering condescension towards the public, looks, to my mind, in this age of the universal education, rather nonsensical. Two hundred years ago they had a distinct advantage, but today they struggle to keep up with community expectations and standards.

The American Justice System routinely fails, as Ms. Murkowski, the lone Republican to break with her party in voting stated:

“we need to ensure fairness so our legislative and judicial branch can continue to be respected,”

The Canadian public needs to wake up from its complacent apathy and become restive over the increased Judicial licence in interpreting Parliamentary laws as they see fit. Together with other failures in safeguarding all democratic principles, we should not be surprised if this disquiet boils over into disengagement in all elections. Apathy comes back to bite us in the bum, in the form of populist leaders, as so many countries today illustrate.

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Based on what is apparent, we need the most powerful form of inquiry to investigate and uncover the comprehensive harm done to the perception of our Justice System behind their closed doors and veils of secrecy. What percentage of complaints to the CJC are adequately answered? Are they accountable to anyone? Evidence abounds that self-regulatory authorities continually fail the public interest test. We need fearless, effective, independent oversight.

Here is an opening for you to consolidate your legacy; to seize the opportunity to rise to the occasion in the interests of all Canadians who feel they have been let down by the wider legal/Judicial industry.

Our democracy, through clear clean Justice, is our most precious entitlement.

Respectfully,

Charles Klassen

Melbourne, Australia

………

My concerns 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 politicians, of all political persuasions appear to lack the will or spine to confront the courts and enforce our laws.

In my opinion, both the original and the Appeal Court are in blatant Jurisdictional Error. 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, displaying a contempt for facts, abandoning any pretense of perceived Judicial fairness. 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.

Once powerful people make up their minds on something, it develops a momentum of its own that is almost impervious to facts,reason or argument.

I question whether the court had any interest in dealing with the real complexity of the family, - it did not know enough and didn’t want to know. Like Keats’ “desire to get beyond any irritable reaching after fact and reason and soar like a comet”.

Tendentious Courts, simply rejecting hard evidence, doubling down, becoming more trenchant when faced with disputed facts.do not inspire respect, confidence or trust. Conclusions with political purposes, lack any real basis of fact.

The Appeals Court failed to undertake “reasonable efforts” to ensure that factual material was “supportable as being accurate”. More Judge Judy, than Sherlock Holmes. So on what grounds was the Court justified in passing judgment on matters about things the truth of which was not established? Despite warnings that most findings were unfounded, the Appeals Court remained wilfully blind to, and stolidly ignorant of, the facts and the truth, compounding our distress by bluster. Seriously, these appear to be solid grounds for considering an inquiry into impeachment.

I have formed a considered view that this is only one of many questionable decisions by Manitoba’s Court of Queen’s Bench. This is not aberrant, rather appears routine, systemic, endemic - even epidemic. I am not in a position to argue other dubious cases conclusively, but do contend this decision is an extraordinary case with many surprising, astonishing and disturbing aspects. The Heinrichs-Hoffman file appears emblematic of the surreal hallmarks of a rigged judgement; an outstanding case study of Systemic failure of unscrupulously resisting crucial facts, resulting in degraded standards of arbitrary decision making. It has become my distinct perception that most of its curious conclusions were determined by an obvious ulterior small time political agenda.

Judicial defiance doesn’t come much more brazen than this case.

What astounds me is the sheer audacity of Judges, who, like Putin or Trump, recklessly assert knowable falsehoods to audiences who have a firm grasp of the facts. They proclaim their ill informed, perfunctory conclusions with unwarranted posturing and certainty, treating well informed audiences with utter disdain - even undisguised contempt. By playing us as fools, they make fools of themselves. This is risible and insufferable in any mature democracy.

Further, scandalous failures don’t come much more spectacular than this court’s uncanny processing and vacuous findings. It flagrantly plucks evidence out of thin air, fabricating it, ensuring that real facts do not intrude to unduly influence its desired determinations.

Depreciating and smothering solid material evidence by amplifying airy assertions of beneficiaries appears consciously credulous and willfully naive.

Culpably ignoring crucial evidence does not inspire confidence.

Discernment is more than a simple judgement call.

I became frustrated with the endless parade of poorly informed witnesses attempting to establish a false narrative, readily accepted by the court, even though their versions contradicted hard evidence and historical records.

I allege that this, by definition, constitutes corrupt conduct. Corrupt conduct needs to be investigated, interrogated and if demonstrable, censured. The devil is in the detail.

Bias #

Bias is in the eye of the beholder; it is easier to demonstrate that the conduct of an arbiter ‘gave rise to an apprehension of bias’. ‘Bias’, according to Michael Bradley, is an incredibly incendiary word for lawyers to say, especially when directed at a judge. Accusations of bias are difficult to prove. Partisanship or alignment are more easily identified.

It is my distinct and considered contention that the Appeals Court was guilty of professional misconduct, failing to check disputed facts and conduct a proper investigation.

In a case like this, the thing that always worries people, and that includes me, is how someone who is working in an Appeals Court, where there is supervision, how Judges can engage in shoddy conduct over a period of time without it coming to the attention of people further up the tree. Any unsatisfactory professional conduct should trigger internal concerns that the quality of decision making is determined by facts that can be validated. This needs to be interrogated, checked and remedied.

Further I contend that it is fraudulent for the court to charge outrageous court costs for services they did not, in good faith, provide. The case in point refers to conflicting claims made by witnesses that were never tested, but summarily, arbitrarily and vacuously determined in favor of the beneficiary. All in all, it became my impression the Appeals court had no interest in accuracy or appetite for substantial facts.

The philosopher Raimond Gaita has written of the need for wrongdoers to be drawn to “a serious, lucid responsiveness to the moral significance” of what they have done - or not done.

Generally we should not criticise Judges or judgments because they have a difficult job and can not publicly respond, however in this unusual case, since it has been referred to the Canadian Judicial Council without sufficient response, I feel fully justified in doing so.

If the system is wrong, it is the sovereign duty of all responsible citizens to attempt to correct it. Orwell urges a moral effort; an urgency, even an imperative to fight injustice and tyranny. To do less would be unpatriotic.

Camus urges us to pull back from the brink of despair.

A broad definition of Judicial Corruption goes beyond mere pecuniary motives. Any abuse or betrayal of publicly entrusted power and privilege, any decision that deliberately fails to discover all available evidence, reflecting factual reality, can be considered professionally negligent and by definition, construed as corrupt behavior. Truth-seeking has become burdensome, optional or even redundant, however when courts manifestly appear to do their best to corrupt information and knowledge for ulterior purposes we know something is seriously amiss. If justice is not founded on the absolute primacy of truth, then it becomes a mere whim of the legal industry.

What we cannot continue to do is excuse a court that edges toward bias and embraces outright alignment. Yes, one is better than the other, but then haemorrhoids are better than skin cancer. One seeks removal of both.

Plato maintained that Judges merely be capable of discriminating between good and evil. I would be happy enough if they could tell the difference between fact and opinion, between reality and seductive and obviously devious lies. Any distorted decision that does not work in the interest of the common good, is a questionable decision.

Three hundred years after Solon’s reforms, Plato realised the system was broken because the rich and powerful had learned the tricks needed to speciously win arguments over the weak and powerless.

By definition, corruption occurs whenever a system is broken. It becomes broken when it no longer fulfills its founding purpose as an instrument of just equity and fairness; its original function of protecting the disadvantaged and powerless. Its symptoms usually manifest themselves through an erosion of ethical norms at the highest levels of power.

Courts display a disturbing inability to distinguish between established fact and subjective opinion, when Judges fail to apply scientific, forensic and systemic procedures to investigations. A recent Manitoba court, above, appeared to have no interest in testing reality, seemingly engaging in crude falsification of evidence, demonstrating a callous contempt for the truth or reality. As James Clapper put it,

“a democracy can not last long on lies”.

The habit of lying is not nearly so extraordinary as the court’s readiness to believe them. It is indeed because of human credulity that lies flourish. Evidence in some courts does not have to be credible for it to be believed.

Revelations of Judicial over reach are regrettably and devastatingly unremarkable. Declining standards in decision making do happen inside the courts, just as they happen inside most institutions. What is remarkable, however, is that the CJC and the governments so egregiously failed — and continue to fail — to properly respond to allegations of judicial negligence, when they fail to meet realistic community expectations of simple guiding principles.

The questions worth pursuing – given the dangerous state of the world, given the general assault on liberal democratic values by faux strongmen and charlatans, given the disdain for facts and evidence, given the ubiquity of stupid - aren’t just process questions, they are more substantive – have our institutions lost their sense of purpose? Are we asking too much for a competent, committed judiciary focused on serving the broader community? I’m not sure what’s worse: the banality of it or the rank self-indulgence of judicial overreach. Imagine ignoring all real evidence as a conscious choice; imagine being that feckless.

It becomes impossible to serve the national interest due to internal political games, powerbroking law firms who bear vindictive, mean-spirited grudges intent on settling their personal scores in our court cases.

Canada enjoys the fundamentals, to ride out the world’s madness.

Lurching into full-blown legal madness in Canada remains a choice, not an inevitability.

That’s why I’ve spent much of the last six years angry about the ubiquity of stupid in our Judicial system. I feel powerless to give up.

The question is who, in Canadian politics, is actually up to the task?

Who understands the fight liberal democracies are in, and who is capable of rising to the challenges of the moment?

Who still believes enough in the integrity of Judicial privilege to want to rescue it from rancid partisanship, malignancies inside the system. - from ignominy?

Who cares enough, who respects the voters enough, to make a difference? Yes, it’s always an abuse of the power of office. And perpetrators wonder why we respect them less.

Tribalism is corrosive; a retreat into fractious enclaves, where people declined to engage substantively with facts or people of opposing views.

All of these reflections, in different ways, suggest the absence in the system isn’t self-awareness. The absence is a conscientious mindset. As Einstein maintained:

“we cannot hope to solve problems with the same kind of thinking that created the problems”.

It has become my perception that Canada’s once renowned Justice System is falling well short of what it claims to be, degenerating from providing a legitimate and much-needed service to the social well being of all the people of Canada, to becoming a self-serving entity; an instrument of control rather than justice. Poor judicial decision making undermines public faith in the rule of law. Since the courts claim a monopoly in final decision making, any dubious decision can lead to vigilante justice; a break down of social order. American Justice seems to have gone down that path. 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”.

Whenever the Justice system fails us, society becomes diminished and all Canadians lose confidence in the political process, allowing populist leaders to win. As Martin Luther put it:

“Injustice anywhere; is injustice everywhere.”

In Canada today, because the courts appear to have abandoned their primary purpose of fairness and equity, bullying, racism and injustice appear to be on the rise.

With respect, a dominant regime of unaccountability appears to prevail, fostering an endemic culture of complete immunity and impunity, engendering an institutional bunker and siege mentality whenever evidence of declining standards or basic errors of fact and procedure come to light. This erodes public confidence.

More due diligence, elementary regulatory oversight to maintain basic standards could prove more effective. I gain the perception of a complete lack of accountability. The greater the discretionary power; the greater the need for transparency and independent oversight. We know from research and history that impunity can cause profound harm.”The traditional Westminster model of accountability, transparency and responsibility seems abandoned and trashed.

We must lay the blame for the acceptance and tolerance of judicial abuse on Judicial overseers: Chief Justices, the CJC, Ministers of Justice, who are aware of the failure and say or do nothing. If that sounds harsh, remember this is a problem known in the Legal industry for decades. Drastic action is needed.

Each new generation seems to have to learn for themselves the limitations and ephemeral nature of their power. Some Judges, assuming false entitlements, feel that somehow they are exceptional; immune or resistant to core guiding principles of the past, or to current community expectations. All judicial prerogatives have limits.

Those who reflexively shrug off their oath of office, swearing to serve the greater public, but serving vested interests, must be held to account. Canada has acquired a reputation of weak and ineffective enforcement of its laws, especially in countering official corruption. Anaemic politicians of all political persuasions are too craven to take on big players, the public service, especially the courts.

If you are looking for a smoking gun, a recent contest of a Will dealt a fatal blow to our family’s perception of basic democratic principles that Judicial decisions ought to be justifiably made, based on law and fact, rather than gut feelings, spite or political vendettas. Facts are more important than opinions. Extraordinary conclusions demand extraordinary scrutiny.

Justice Mary Gaudron, highly regarded and respected, the youngest woman appointed to the High Court of Australia, writes:

“A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided, or misunderstands the nature of the opinion which he or she is to form.”

Hannah Arendt gave us an insight into the totalitarian mindset in all its glory;

“the banality of evil was the inability to hear another voice, the inability to have a dialogue either with oneself or the imagination to have a dialogue with the world, the moral world.”

Arendt pairs privilege with obliviousness; obliviousness is privilege’s form of deprivation.

“When you don’t hear others, you don’t imagine them, they become unreal, and you are left in the wasteland of a world with only yourself in it, and that surely makes you starving”.

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

Any Institution is only as strong as those entrusted to uphold its founding principles. The dance remains the same; only the dancers change. Respectable, prestigious institutions climb to great heights, but then incipiently, incestuously and insidiously the pathological rot of complacency sets in. No one dares to question why?

Someone needs to press the reset button and reboot the system to avoid the perception of unyielding corrupt behavior becoming the norm. What is required is a paradigm shift in the national psyche refusing to accept and tolerate declining standards in deplorable decision making.

The British adversarial system spread throughout its empire, America, Canada, India, Australia and even South Africa as opposed to the inquisitorial system favored by European countries. Either can be corrupted by will or sloth. The British system was largely forced to transform during the 1980’s and 90’s.

Evan Whitton claims that rather than a Justice System, we have a Legal System “and ne’er the twain shall meet”. A Justice System works for the public good; to improve the net worth of social capital.

Broadly defined, corruption is the abuse of entrusted power for any ulterior reason. It can be classified as grand, petty or political, depending on its motivation. It becomes glaringly obvious when courts flagrantly flout community expected norms of a reliable and trusted justice system; instead they game a flawed and toxic legal system by arbitrary decision making. Times change, but corruption is unfortunately a constant.

First we should acknowledge that there are many very good, highly principled, legal practitioners about, but that systems are vulnerable to shysters, who can smear the image of the whole profession, placing the entire System into disrepute. Systemic failures occur when the received wisdom from Solon, Plato, Shakespeare, Dickens or Michael Kirby is flouted by ignoring the fundamental, inherited and guiding principles in all judicial arbitrating; public office demands public trust for the public good. Public servants fail us when they shamelessly shrug off their vowed oaths of office. The good guys must stand up to the baddies.

Occasional golden ages shine through from time to time when as Hegel writes, “the owl of Minerva takes flight”. Theodore Parker assured us in 1810, “The arc of the moral universe is long, but it bends towards justice.”

Sometimes it appears interminably long, especially when the legal world intervenes.

Australian Justice seems to be lighting a beacon of hope, offsetting Canada’s dimming. Robust criticism of the courts met with fierce opposition, but the right of people to criticise Judgments appears to have prevailed and the courts are much more aware of the limitations to their awesome bulwark discretionary power. The greatest danger facing Australian Judges today is the threat of being declared a National Treasure or nominated for Australian of the year.

Mike Carlton claims:

“authorities have an infinite capacity to distort and to lie to protect themselves from the consequences of their, or the mistakes of their subordinates. The more cosmic the mistake, the more elaborate and persistent the lie.”

It has also become my impression that the CJC lacks the capacity or the will for adequate Judicial oversight and regulatory deterrents. Realistic community expectations demand certain levels of professional standards be upheld. It is my considered view that the CJC has turned itself from a public watch dog, into an institutional guard dog, with a self-interest in protecting wayward judges from public scrutiny. This fosters an endemic culture of unaccountability, immunity and impunity. Faith, confidence and trust in the Legal System founders. We expect more exacting standards of decision making. For Judicial Reform, there is only the forlorn hope of more effective corrective regulatory influence. They appear totally disconnected from community concerns.

By another definition, corruption indicates a system that is broken or not fulfilling its founding purpose because of ulterior self-serving agendas.

“The possibility of corruption exists wherever a dishonest public official has power or authority …, and dishonesty is a common human flaw.” Tony Fitzgerald QC, - The Saturday Paper.

I invite readers to consider the facts and respond to any errors of perception.

Stephen Colbert defines truthiness as the quality of seeming to be true according to one’s intuition, opinion, or perception without regard to logic, factual evidence, or the like: the growing trend of truthiness as opposed to truth. Truthiness is “truth that comes from the gut, not books,” .

Instead of testing, verifying, validating disputed errors of fact, the Appeal court was content with posturing; merely stridently and stolidly compounding these errors in a vain attempt at establishing known misconceptions as irrefutable fact, by simply emphatically restating them. This appears a stark, undisguised abuse of privilege - an unforgivable abuse of vaunted power. It also seems like consummate denialism. Only Donald Trump trumps it. Blind arrogance, rampant charlantry and willful remarkable ignorance go hand in hand. But then it is difficult to defend the indefensible.

Although courts retain discretionary powers, there is no sound reason for most findings. The facts are beyond reasonable doubt.

Instances of perception management is further reinforced by the intimidating shrill tone and vehement tenor of the Appeal Court. Voicing its own threatened fears and inadequacies of procedure, it resorts to towering bluster, bombast and bravado betraying its insecurity, defensiveness and covering up its lack of factual foundations. In my view i is a complete negation of empirical consideration of evidence. It belies its professed oath of office. No one is above the law.

Do these not offend your sensibilities? It surprises me, does it not amaze you? Its shameful tactics were executed shamelessly. We should be astonished by extraordinary methods – a gross neglect of proper procedures. How is this possible? Utterly crucial evidence remains shockingly unexamined; vital disputations not tested. Where is the judicial oversight?

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.

A cross party parliamentary investigation is an appropriate way to reassure the public in these starkly divided and cynical times whether judges are answerable to a higher authority.

Displaying classic symptoms of what is known as the “backfire effect”, the court is impervious to facts or reality. It defies both logic and reason. Counter-evidence, far from changing its views, actually strengthens them. A study by Brendan Nyhan of the University of Michigan and Jason Reifler of Georgia State University concluded:

“Results indicate that corrections frequently fail to reduce misperceptions ….corrections actually increase misperceptions among the groups in question.”

The backfire effect is a kind of self-protection mechanism. When you are confronted with data that threatens your convictions, your mind works overtime to defend you. It reorganizes information and re-establishes arguments allowing you to continue believing what you already believed.

It seems that most of us do not let the facts get in the way of a strong belief; no one is immune to the buried power of self-deception and the backfire effect.

A fundamental guiding principle of all decision making is that a lawyer or Judge cannot make assertions or findings that do not have reasonable, substantial, factual foundations. The two courts manage to recklessly commit at least five breaches of this code.

Here are some dubious findings of the courts proclaimed with unwarranted certitude:

That Anne and her twin brother, Jake, had a close relationship throughout their lives. (No one avers this and it is contrary to the primary evidence of Uncle Jake’s account.)
That Anne did not have a close relationship with her other siblings.
(Perhaps the most insulting and offensive of unfounded claims, displaying the most willful and utmost ignorance of the family narrative. Any close reading of the evidence makes this a nonsence). This is a serious claim to make about any member of a caring family, and one that is utterly and demonstrably false.
That Anne’s land had been farmed by Jake until 1982. (Her closest brother, Ben, managed it for her the first 10 years, followed by her sister, Helen Hoffman’s family the next ten.)
That when her husband died, Anne went immediately to live with Jake and his family. (Family records clearly refute this. Two witnesses make contradictory claims that are never tested - the most serious negligence of a court).*
That Anne’s Schizophrenia had no impact on her testamentary capacity as it was treated by medication. (*The court fudged all probative evidence and found that Anne was merely eccentric, and accused all and sundry of “embellishing her eccentricities”. These are simply untenable findings at variance with hard evidence - an unambiguous psychiatric *report and all other professional ones.

This appears indicative that the courts prefer myth to science.

Failing to verify any of the five appears an extraordinary feat.

Getting all five facts wrong was only accomplished with supreme studious and strenuous effort; a coordinated calculated, contrived and concerted effort to overlook, duck, dodge, weave around crucial material evidence. Inconvenient evidence was even suppressed. This is a complete negation of the duty and obligations of conscientious forensic appraisals. Not to test conflicting claims appears professionally negligent. Should a doctor, scientist, architect, or pilot, recklessly disregard vital evidence, instant dismissal, would result.

With apologies to Oscar Wilde, for the court to get one wrong might be regarded unfortunate, two appears careless, three, considered inept, four suggests professionally negligence but all five seems purposefully perverse.

As a brother Ernst claims, “truth may be free but spin, obfuscation, commands increasingly higher premiums”.

Our erstwhile, assiduous talented and conscientious lawyer’s work was cavalierly disregarded.

Instead of landing a windfall, together with us, he was made to pay exorbitant court costs for what I consider a crock of codswallop.

Because they are not sourced, and conflict with solid material evidence, the five findings lack credibility, seriously inviting scorn, derision and contempt of court. To see actual sourced, substantial and sustainable evidence available to the court, click [here.]

Appeal courts, which rubber stamp poor decisions, do no one any favors. Respectable Systems should be designed to self-correct. This case contributes to profoundly diminishing the credibility, authority and the very legitimacy of the entire judicial system. Its clueless conclusions invite derision but demand interrogation because they produced no findings that would warrant faith in the system.

I derive the distinct impression the courts clearly had another agenda that required each to reach such a desired but questionable result. The time honored adage “my mind is made up, don’t confuse the issue with the facts”, prevails

My speculative theory centers around both court’s sheer determination that our lawyer was not to win his case. It had nothing to do with his rigorously researched presentations of substantial evidence or our well documented family facts; we were merely cannon fodder in a proxy war; collateral damage, caught in the terrifying cross fire on “no man’s land” of petty politics. Fortunately none of us suffered any major casualties, except of course shell shock, horror and grievances regarding the calumny toward our honorable ancestors, but it does not bode well for any lawyer, not protected by powerful law firms.

Our lawyer left his law firm a month before the case and took his file with him. I do not know what the correct protocol in such cases should be, but to use a civil family case to “get him” does not seem appropriate. It appears like not only ill-will, but an actual vendetta; malice aforethought. It seems like the entire judgement was a torpedo targeting our lawyer - singular and thoughtless in its path.
If you need to settle private scores, do it somewhere else.

In many parts of the world there is a widespread acceptance of the small time corruption made to protect self -serving institutions or its members. People know it’s corruption, of course, but it’s just a part of life and nothing can be done about it. This is defeatism, giving in to despair. Canadians can ill afford for our Judicial system to become so easily corrupted.

The Canadian Justice system seems finally to be careering towards the logical extension of the disastrous American system where might is right; Judges prize their unyielding privilege over their sworn duty to the public.

Another feature of corruption becomes evident whenever everyone in the organisation begins to think alike. Collegiality becomes conformist (perhaps even collusive and conspiratorial?) and a team mentality stifles, stultifies and stupefies independent thinking, evolving into an incestuous bubble world, doubling as an echo chamber with no one daring to raise divergent views. Group think or mono think is rewarded. You are expected to protect your institution at all costs. Resistance, dissidence or independent thinking results in demotions or even exclusion. In this case the perception persists that the entire system is designed to close ranks against the barbarian hordes - us, the great unwashed.

In the Appeal case above, it it obvious the main Judge makes all the running and the two remaining appear to be a herd of sheep mindlessly going in the same direction, merely slavishly signing the last page by ticking a box to indicate their compliance. Not too inspiring of independent thinking!

Retired Australian High Court (Canadian born) Judge Dyson Heydon fired a parting salvo at his fellow High Court judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence.

In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled The enemy within, published in the Law Quarterly Review.

‘‘Stronger judicial personalities tend to push the weaker into submission,’’

‘‘They stare out from their judgments with the superb elegance of noblemen in Renaissance portraits - utterly confident of their own ability, pretty sure that no other judge has yet grasped the key points and that some may never do so, certain that the parties have not, glorifying in their self-perceived terribilita.’’

Another highly esteemed, Retired High Court Justice Michael Kirby recommended that protocols be developed to deal with judges who bully counsel or witnesses.

In serious and repeated cases, bullying by judicial officers should be recognised as an abuse of public office warranting commencement of proceedings for the removal of the offender from judicial office,’’.

‘‘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.

‘‘They have to be held to that, in my opinion, because if they’re not, they’re going to go on [bullying others].’’

The rudeness of judges trickles down to junior lawyers in a cycle of bullying and stress that is rife within the legal profession.

While it was difficult for bullying victims - particularly junior lawyers - to take action, Justice Kirby said that bad behaviour should not be tolerated.

“It is a truth wearily demonstrated by history that acts of tyranny condoned against some will finally become a tyranny visited on all.” Richard Flanagan

“When the people fear their government, (courts) there is tyranny; when the government (court) fears the people, there is liberty. Thomas Jefferson

Contempt of Court #

According to Richard Ackland writing in The Guardian, precise definition of “Contempt of Court” in a robust democracy is a complex matter. Ideally it should not exist. In practice it should only apply to defiance or non-compliance of an enforceable direction of a court or to a matter sub judice. To merely express an opinion on a court decision is a birth right of anyone living in a fully democratic society. To suggest that a member of the public could be guilty of causing reputational damage, placing the court in disrepute or scandalising the court is absurd. Any reputational damage is generally totally self – inflicted by the professionals themselves and any input from us amateurs is incidental.

In matters under the court’s consideration that are still sub judice, therefore prohibited from public discussion should only apply when juries are in place.

While the courts should not bow to public pressure, they do have to reflect public values and meet realistic community expectations. They are public servants – not masters.

Some Judge believe their power should not be questioned. Tyrants utter such a statements and strike fear into those beneath them, because they have instilled enough fear.

All my attempts at holding Canadian courts accountable, have so far, spectacularly failed; but then liberty demands eternal vigilance and activism. Invertebrate politicians of all political persuasions, appear too craven to take on the seemingly invincible court system. If only they could appreciate how arrogant, but ignorant they look. They scuttle their own honor. They become the real reason we look for false populist leaders like Trump.

There’s a certain level of Ozymandian arrogance at play, together with its “sneer of cold command”, a boastful, “look on my works /judgments, ye mighty and despair,” while nothing remains – arguments “Told by an idiot, Full of sound and fury, signifying nothing”. We should not succumb to their thinly veiled threat to our freedoms, our power and despair. The courts need to earn our respect and win back our trust.

We should fight them on the beaches, on the prairies, in the mountains, in the public domain, on social media, in the courts; we should never surrender.

No one appears to wear the consequences of questionable judicial procedures. Although courts retain discretion, when the facts are beyond reasonable doubt, there appear no sound reasons for most of its findings.

[Justice and Power]https://nebo-lit.com/topic-areas/Justice/justice-and-power.html
Canadian Judicial Council
[Heinrichs of Halbstadt]https://nebo-lit.com/topic-areas/case-studies/heinrichs-of-halbstadt.html
[Institutional Responses to Sexual Abuse]https://nebo-lit.com/topic-areas/case-studies/responses-to-sexual-abuse.html