May 9th, 2017
Last year, the Federal Court Ruled that laws are privately owned. It was a peculiar Ruling.
We wrote about the Ruling, marvelled at it and pondered it. We wondered how such a seemingly kangaroo Ruling could have been made. So we researched, and we found stuff. Interesting stuff.
First, some background. The case was between PS Knight Co, the owner of RestoreCSA, and the Canadian Standards Association (CSA). Some background is here.
In his Ruling, Justice Michael Manson wrote that “it would contrary to a purposive construction of the Copyright Act to strip the CSA of its rights in the [Code] simply because certain provinces have incorporated it into law.” Therefore, with all such legislation, “copyright does not belong to the Crown.”
The Ruling is ridiculous. The relevant law in Alberta reads as follows;
“Alberta Queen’s Printer permits any person to reproduce Alberta’s statutes and regulations without seeking permission and without charge, provided due diligence is exercised to ensure the accuracy of the materials produced, and Crown copyright is acknowledged in the following format: © Alberta Queen’s Printer, 20__.”
Note that attribution must conform to Alberta Queen’s Printer copyright. That’s the copyright that Justice Manson Ruled was illegitimate. Or, more bluntly, the copyright that “does not belong to the Crown” is claimed by the Crown as their copyright.
One should also note that the Government of Alberta is still using the copyright struck by Justice Manson. Same goes, incidentally, for every provincial, territorial and Federal Queen’s Printer copyright in Canada. Every government in Canada is ignoring Manson’s Ruling.
Governments are also ignoring the aspects of Manson’s Ruling that afforded the usual private property rights to the “owners” of laws. Regular readers will recall that PS Knight Co had registered a copyright over our contributions to Canadian electrical laws. According to the Ruling, and because we wrote some of those laws, those portions of law that we drafted are now our private property. On this basis, and for fourteen months now, we have been invoicing the governments of Canada for their use of what Manson Ruled were our laws. There have been no payments of course, as governments don’t regard the Manson Ruling as legitimate. Without exception, the governments of Canada are ignoring Justice Manson’s Ruling.
But consistency is only part of the problem. The public nature of law goes back to the Magna Carta, it’s a foundational principle of democratic society. The entire edifice of our judicial systems is based upon it. Persons are accountable before the law precisely because the law is publicly posted. Remove the public nature of law, and the universality, applicability, and legitimacy of law is removed in consequence.
So why would Justice Manson move to strike every Federal and Provincial Queen’s Printer law in Canada, upend the public nature of law, and overturn eight-hundred years of legal precedent, and all to protect CSA?
Well, we researched. We found that prior to his appointment to the Federal Court, Michael Manson spent his career at the law firm of Smart & Biggar, eventually presiding over the place as Managing Partner. He arrived there in 1982 and left for the Bench in 2012. That’s thirty years, folks. And that’s important, because Smart & Biggar has a longstanding relationship with CSA.
When CSA launched the Canadian Anti-Counterfeiting Network (CACN) in 2006, Smart & Biggar was a charter member. So was Thomas & Betts, the subsidiary of ABB Group, who employs Nathalie Pilon as their CEO, and as their representative on the Board of Directors at CSA. Note the circularity in these relationships?
When one researches CSA, one tends to find the same cast of characters featuring in every sordid tale. Thomas & Betts is only one, Smart & Biggar is another. Then there’s Kestenberg Siegal Lipkus (yet again), the Motion Picture Association, then ElectroFed, and so on. A seemingly incestuous circle surrounds the governmental authority of CSA, for that authority has value and influence, and both can be profitably leveraged.
The CACN is, in practice, a front for CSA and its allies, used to increase their lobbying strength in Ottawa. The CSA is the “driving force” at CACN, it funds the CACN, it staffs the CACN, it is the CACN. It only looks like it’s something else -kind of like counterfeiting.
Michael Manson’s law firm was a regular attendee at CSA events. For years. As recently as 2016 for instance, Smart & Biggar was an exhibitor at CSA’s “Reality Tour,” a sort of insiders’ conference. The “insider” part is emphasized, by the way. Of the twelve exhibitors, five were CSA and their allies.
Again, this time in 2013, Manson’s firm made presentations on “Battling Unsafe Counterfeit Electrical Products” at the ESFI conference. The Smart & Biggar contribution was made by Brian Isaac. He was then the Chairman of CACN. He co-presented with Terry Hunter, a Manager at CSA.
Regular readers will recall Brian Isaac, he oversaw the destruction of evidence at CACN in the wake of RestoreCSA articles on CSA counterfeiting. Brian Isaac was also the writing partner of Michael Manson. When one of these wrote an article, the other was the media contact for inquiries, and vice versa.
And where was this ESFI conference held? It was held at “5060 Spectrum Way, Mississauga ON.” That’s a CSA address. That’s right, the conference was held inside CSA’s own offices.
Along with CSA, Smart & Biggar was a presenting exhibitor at the International Law Enforcement IP Crime Conference. Both Michael Manson and Brian Isaac made presentations. Also in attendance was CACN, Kestenberg Siegal Lipkus (CSA contractor), the Motion Picture Association (on the Board of CACN), the International Anti-Counterfeiting Coalition (partnered with CACN), etc. Six of the thirty-one representatives at the conference were CSA and their allies. It may have been a different show, but the same cast of characters showed up.
In advertisements, both Michael Manson and Brian Isaac were listed together, beside the Smart & Biggar brand and blurb. Ironically, the blurb reads, in part; “Smart & Biggar’s […] relationships with law enforcement and investigators allow us to offer flexibility and novel approaches in combating counterfeiters and pirates wherever they operate in Canada.” That advertisement ran in June of 2007, at the height of CSA’s own 2002 - 2010 counterfeiting program.
Michael Manson and Brian Isaac worked together as co-counsel on cases, they co-authored articles, they presented together, attended the same CSA conferences, etc., etc.
The extent and duration of the relationship between Michael Manson, his law firm and CSA should have easily, and emphatically, precluded Manson from Judging the PS Knight v. CSA case. Manson’s relationship with CSA was, and remains, a massive conflict of interest. But it gets worse.
In 2013 and 2014, RestoreCSA began a series of reports on CSA’s counterfeiting activities. We explored the background of CACN as a CSA front organization. We asked why a leading “anti-counterfeiting” entity was being run by a leading counterfeiter. And we published extensive links to evidence of these relationships. And, here’s the key, whenever we published a new RestoreCSA article with damning detail, Brian Isaac at CACN oversaw that the evidence we quoted was deleted from CACN’s website. After one such article, containing a large number of such linkages, they deleted the entire CACN website. When it went back online again a week later, the site had been washed of anything incriminating.
The word “incriminating” is important here. You see, the CSA and its affiliates were authorized by the Federal Government during the Smart & Biggar tenure of Michael Manson to train Canada’s customs officers in identifying counterfeit certifications. We are advised that none of CSA’s own counterfeit certifications were identified by the officers trained by CSA.
Reporting on CSA’s counterfeiting activities puts a lot of people in legal jeopardy. Anyone with involvement could face prosecution.
The relationship between Michael Manson and Smart & Biggar was still going strong long after Manson was appointed to the Bench. At the 2014 Intellectual Property Owners Association conference, two years after Manson’s appointment, both Michael Manson and Brian Isaac were presenters on the same issues.
They were also signatories on the same letter to the Canadian Bar Association (CBA) in 2012. It was a complaint letter. The best part? There’s plenty of irony in their letter. For example;
Recent conduct, they said, “may have fallen short of the CBA’s well established standards for transparency, objectivity, balance, and avoidance of conflict.”
Or how about this one;
The CBA President was called “to ensure that the CBA’s reputation for integrity and even-handedness is not diminished by failing to take adequate precautions in a contentious policy debate.”
Et tu, Manson?
In 2008, Michael Manson was interviewed for an article featuring CSA’s CACN. Again, recall that CACN is an entity of CSA. Manson told the interviewer that “the Canadian government is not doing enough to protect businesses and consumers.” That is, he wanted more power to enforce CSA policy. Then he told them that, “the Canadian Anti-Counterfeiting Network was formed in 2005 to lobby the government for changes in laws.”
Also note that the changes in question, in part, would be the power to define what is or is not counterfeit and to train border guards to spot counterfeits on this basis. They succeeded, they were given that power. By 2012, the CACN was “training” 50 border guards per year, and they were starting to “train” the RCMP as well.
In another article about CACN, both Michael Manson and Brian Isaac gave interviews praising the CSA’s increasing power. “Two of the chronic problems with the current regime,” said Manson “are that the Trademarks Act is inadequate to deal with counterfeit issues and Customs officials lack the authority to target, detain, seize and destroy counterfeit goods. […] The result is that any enforcement at Customs is on an ad hoc basis and requires the intervention of the Royal Canadian Mounted Police in order for any detention and destruction to take place. The result is ineffectual enforcement, if any, at the Canadian borders.” The article closed the circle; “Customs’ powers are therefore central to the recommendations made by CACN”.
So Michael Manson is on record, and quite extensively, working with CSA personnel, praising CSA initiatives, and pushing through CACN for new and expanded powers for CSA. All of this activity was focussed on anti-counterfeiting powers for CSA during the same period that CSA was doing all of their counterfeiting.
In small matters, as in large ones, the relational closeness between Smart & Biggar and CSA is well evidenced. For instance, the exchange of staff between CSA and Manson’s firm is verifiable through LinkedIn profiles.
The CSA and Smart & Biggar even source the same Christmas cards.
Get the idea? The relationship isn’t between strangers, it’s between colleagues, partners, allies and fellow travellers.
And it gets worse.
Michael Manson was also employed by CSA. Not as a lawyer on contract, although that might’ve happened too. Rather, Michael Manson was directly employed by CSA.
In a June 25, 2007 interview with the Regina Leader-Post, Michael Manson admitted to serving on one of CSA’s counterfeiting committees. Specifically, an enforcement committee. And it was branded as a committee of a government Agency in the article. And the article contains more than one such admission regarding these committees. One of these admissions goes like this;
“Michael Manson works hard with Canada’s Anti-Counterfeiting and Enforcement Committee to raise alarms on safety issues.”
Said Mason; “Even CSA marks […] are being knocked off.”
But Manson goes further, giving CSA an advertisement for their services; “CSA marks […] mean that a product has been tested and meets the international standards for safety and / or performance”.
Then, like any good pitchman, he hammers the consequences of not using CSA marks; “You buy electronic goods, they don’t have the right copper wire, you plug it in, your child is playing downstairs and the house goes up in flames.” You see, if you don’t work with CSA you’ll lose your house and your child will die. How’s that for objectivity?
In Court, back in 2016, we found it odd that, in frustration, Manson went out of his way to declare CSA a private company. That’s the opposite of Government statements on the matter, and it defies CSA’s actual Government charter, and it had nothing to do with the subject of the Hearing. But Manson felt a need to make such a declaration. Why do you think he felt that?
In his Ruling, in addition to Manson’s bizarre conclusion that public law doesn’t exist, he declared the “conduct” of PS Knight Co to be “certainly questionable” and the contents of the RestoreCSA website to be “scornful and derisive.” Neither of these comments were relevant to the case, so why do you suppose he felt a need to insert his personal invectives into the Ruling? As one colleague put it, “by his comments it appears that [Manson] took the CSA case personally,” as though he had a personal stake in it.
Manson’s Ruling also featured a massive financial charge to PS Knight. In a Supplemental Judgement, Manson ordered PS Knight to pay six figures to CSA, in part because of PS Knight’s “novel and unusual defences.” We complied with Queen’s Printer laws. They’re neither novel nor unusual. But the Judgement had the capacity to destroy PS Knight Co.
If we were destroyed, RestoreCSA would be silenced.
If that happened, anyone complicit in CSA’s counterfeiting would be less vulnerable to prosecution.
With this in mind, we thought it prudent, or at least interesting, to ask Smart & Biggar for their views on the matter.
“It appears,” we said, “that [Smart & Biggar] has a longstanding, substantial and ongoing relationship with the Canadian Standards Association (CSA), the plaintiff in the T-646 litigation. […]
“Smart & Biggar has an interest in ensuring accountability for such conduct. Indeed, your firm recently characterized S&B staff as ‘maintaining integrity, professionalism, and high ethical and personal standards’.”
Then we asked some questions;
“1. Does [Smart & Biggar] wish to state a position with respect to the apparent conduct of their former Partners, either Michael Manson, or Brian Isaac, or both?”
They did not respond to this question.
“2. What was the extent of Michael Manson’s involvement with Canada Customs during his […] tenure on CSA’s Enforcement Committee?”
They did not respond to this question.
“3. What is the current relationship between [Smart & Biggar] and CSA / its affiliates?”
They did not respond to this question.
“4. What CSA contracts did Michael Manson secure for [Smart & Biggar]?”
They did not respond to this question.
“5. What current relationships, professional or personal, exist between [Smart & Biggar] personnel and Justice Manson?”
They did not respond to this question.
The other party with an interest in Justice Manson’s conflicts is the Court itself. Moreover, the Chief Justice of the Federal Court, Justice Paul Crampton, has recently been outspoken on the integrity of the Court system, expressing concern that the Court might be seen as a “kangaroo court” or a “government court,” doing Ottawa’s rubber stamping.
We wrote to the office of the Chief Justice, saying, in part;
We “note that Chief Justice Crampton has in the past furnished commentary on reputational issues associated with the Federal Court. [We] specifically note his comments to the Canadian Bar Association conference in 2014, in which he lamented that “the Federal Courts are now being painted as kangaroo Courts, ready to jump as high as the Federal Government says.” […]
We then advised that we had received documentation regarding Justice Manson, demonstrating a substantial and longstanding relationship with the CSA, the Plaintiff in the T646 case.
“As you may be aware,” we said, “the CSA was outed by the CBC in 2010 for running an eight-year long counterfeiting operation, selling fake safety certifications to US companies to facilitate import into Canada.” We noted the RestoreCSA reporting on the matter. Then we noted that Justice Manson’s relationship with CSA fully overlapped with CSA counterfeiting operation. We pointed out that reasonable, fair minded and informed persons could potentially see the RestoreCSA site “as placing Justice Manson in personal legal jeopardy.” In this, we said, “the verdict in favour of his former employer could be interpreted as a means of removing a personal threat.”
That’s a really big statement, and not without basis. We noted the CSA connectivity in Ottawa, that “we are aware that a number of senior civil servants at the Department of Justice, including an ADM, have been in the employ of CSA as recently as last fall.”
We noted the chatting in Ottawa, the rumours that Michael Manson was selected for the case “because of his perceived vulnerabilities and thereby his reliability to Rule in favour of CSA.”
As expected, Justice Crampton’s office declined comment, though his comments weren’t expected. Our letter was more an advisory to the Court.
You see, according to the Courts Administration Service Act, the Chief Justice is responsible for selecting Judges for cases. We even had a friendly back-and-forth with Justice Crampton’s office last week on the matter. “The Chief Justice is responsible,” said his office, “for […] the assignment of judicial duties.” In other words, Justice Crampton decided, or had responsibility for the decision, that Justice Manson was assigned the case.
And what are the criteria for judicial assignments?
“The first qualification of a judge is the ability to make independent and impartial decisions”
That’s from the regulations governing Federal Judges, called the Judicial Conduct Principles. They’re not shy about stating their principles. Consider how Justice Manson aligns with these principles;
“Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict between a judge’s personal interest […] and a judge’s duty.”
“Judges should make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded and informed persons.”
“Public acceptance of and support for court decisions depends upon public confidence in the integrity and independence of the bench.”
And, to hammer it, they then cite the familiar words that “justice must not only be done, but manifestly be seen to have been done.”
It’s likely that Justice Crampton won’t be pleased with this outlay of information. Indeed, he has spoken out against criticism of Justices. The media “need to understand,” he said, “that personal attacks are really inappropriate.” Our challenge is that complaining within the judicial system, when the system itself is conflicted, avails us nothing.
So why advise Justice Crampton’s Office?
Well, according to the Judicial Conduct Principles; “If a judge is aware of evidence which […] is reliable and indicates a strong likelihood of unprofessional conduct by another judge, serious consideration should be given as to how best to ensure that appropriate action is taken having regard to the public interest in the due administration of justice.”
With the detail above and the documentation on offer to his office, Justice Crampton now has everything he needs to address the problem.
Now he knows about it; let’s see what he does about it.