Criminal Proceedings - First Hearing
May 1st, 2017
In 2015, in Ireland, five days after a soccer match between the national teams of England and Norway, the final moments of that game were replayed on orders of the European Football Association.
A referee of the original game made a bad call, “an obvious violation of a rule by the referee that had a decisive influence on the final result”. Hence the partial rematch.
We’re facing something similar. It’s a long article folks, but our readers tend to want detail, and this detail is quite interesting.
As reported last week, the first hearing on our criminal charges against the Canadian Standards Association (CSA) took place on December 16, 2016. Unfortunately, the hearing was a gong show, sufficiently surreal that Superior Court ordered a rematch for early June. Here’s what happened:
Criminal pre-enquete hearings begin at 9AM. So claims the Court. And so stated the Court schedule, and the filing docket, and the prosecutor’s advisory. Yet the two of us, myself and the prosecutor, sat in an empty Courtroom, on an empty floor, of Provincial Court in North York. The judge, Justice Odida Quamina, had yet to show in the building.
Upon Quamina’s arrival, an hour and ten minutes late, he took his seat behind the bench and asked the Clerk of the Court the purpose of the hearing. That’s right, he didn’t know what he was there to judge. Could’ve been a divorce hearing, a lawnmower theft, -anything really. He hadn’t reviewed the legal briefing, called an Information, to refresh his recollection of the particulars of the case prior to his arrival.
Then he announced that he had no files on the case. The Clerk shuffled some papers in his direction. Ah, got it.
Then it transpired that he hadn’t brought the Information briefing with him. I had to surrender my copy for the use of the Court. My copy, of course, contained my notes for delivery, for the balance of the day I was therefore working from memory.
For clarity, the Information briefing is the argumentation of the case and the evidences to support it, it is the case and subject of the proceedings. This briefing is what we referred to last week as a rather comprehensive document, saying; “The Court documents alone, just under five-hundred pages of them, took eight months of preparation. The evidence is overwhelming, and voluminous, hence the heft.”
Then the Judge announced that not only had he not brought his Information briefing, but he hadn’t bothered to read it at all.
So, eight months of preparation, roughly five-hundred pages of evidence, and the Judge didn’t bother to read it. The Judge didn’t think it was unusual; I thought it was astounding.
Justice Quamina then started flipping through the Information, familiarizing himself with the case. He paused; “I need a minute to go through this.” It’s five-hundred pages long. “Let me just go through….”
Once Quamina had read the particulars and evidences of the case, a feat accomplished in less than two minutes, I was sworn in and invited to take the stand.
Justice Quamina: “Ok, let’s begin when you’re ready, Sir.”
This was a challenge. As the Court had made no preparation at all, I was starting from square one, having to spontaneously walk the Judge through all of the charges, the history, and the evidence to support it, and all of that mostly from memory as my notes were now on Quamina’s desk.
Then things got weird. Read carefully;
Knight: “The Canadian Electrical Code is drafted by an organization called the Canadian Standards Association, or CSA.”
Quamina: “When you’re using these acronyms it would help, for the record, to indicate what they—what it means. So please tell the court what CFA [sic] or any such abbreviations that you might be using.”
Knight: “I will do so, sir. The Canadian Standards Association is CSA.”
Moments later, the Judge interrupted testimony on a procedural matter.
Quamina: “Could you, for the purpose of the record, please, be consistent with information, identify yourself officially as you appear on the document. I think that needs to be part of the official record.”
Knight: “Certainly, sir. My name is Gordon Knight.”
Knight: “My company is P.S. Knight Company Limited and I’m domiciled in Calgary, Alberta.”
Quamina: “And the name of your company, sir, is?”
Knight: “P.S. Knight Company Limited, sir.”
It continued in this vein. My delivery was adequate to the circumstances but heavily impaired by inaccessible notes and Justice Quamina’s lack of preparation. Thankfully however, the prosecutor, while impressively eloquent in delivery, definitely boobed it.
“I understand the potential risk as a result,” he said, “but that’s not what the test is.” He was referring to the Sec.46 charge, being treason against the Crown in sending confidential government information to foreign parties without authorization. “The test,” he continued, “is that the safety of Canada has been prejudiced.” In other words, the prosecutor set the standard as the presence of harm. But that isn’t the standard at law.
I pointed that out; “I happen to have that open in front of me right now Sir, and I notice the word ‘may’ is in that line.” The prosecutor went all silent for a moment, it was the sound of carpet being pulled out from under him. Straightly, the word ‘may’ is a qualifier and, in Sec. 46 of the Criminal Code, it sets the standard for conviction as the presence of risk, not the presence of harm.
For instance, most drunk drivers are convicted without having caused harm, rather that driving drunk “may” cause harm. It’s the specific risk of harm rather than the presence of harm that’s the crime.
Well, from then onward, the prosecutor didn’t have much to say on the Sec. 46 charges. I felt good, chalk one up for the rookie.
Then the Judge weighed in, saying he had some questions. “And I’m doing that so,” he said “with all due respect to that fact, I have no [sic] had an opportunity or the benefit of perusing the document and the package that both yourself and the Crown have had access to.” For the record, and on the transcript, the Court was indeed furnished with a copy for the Judge, we were issued a receipt by the Court to prove it. Regardless….
Court: “Did you every [sic] apply for or were you ever denied [CSA] membership?”
Knight: “No, Sir.”
The Judge was referring to CSA’s money demands as “membership fees.” I had just testified to CSA’s offers to PS Knight Co to give us influence over legislation if we gave them some money.
Knight: “We were approached by CSA. We did not approach CSA. They offered; we declined.”
Quamina: “But were you then eligible for membership if you had so decided to pursue membership?”
Knight: “Yes, sir, anybody can get a membership if they pay.”
Quamina: “So then you were not denied membership, so to speak. You choose not to take membership.”
Knight: “That’s correct, sir. We have no interest in membership.”
Quamina: “Good. And the parties who took membership, would they have got any benefits that you were denied as in a member?”
Knight: “Yes, sir.”
Quamina: “But that’s the purpose of the membership. I guess the membership, you know, extends some benefits and privileges, is that correct?”
Knight: “Yes, Sir, that’s the problem, Sir.”
He wasn’t connecting. The Judge seemed to regard the pay-to-play charges as a civil rights issue. He was looking for discrimination, not influence peddling.
Quamina: “So we were not then denied membership. It was a public offering.”
Knight: “Yes, sir.” […]
Quamina: “And you, too, would have been part of that discussion, that conversation.”
Justice Quamina started wagging his finger at me, as though I was the problem. If only I had paid a bribe, I too could have influenced legislation.
Next, we dealt with the five-hundred pages of evidence.
Quamina: “The question that the Crown asked you, do you have any evidence what in terms of the discussions, whatever it is, and the result of that. Is there any evidence as to bribery, directly now, that anyone might have exerted undue influence or otherwise—you know?” […]
Knight: “[There is] a great deal of evidence in the briefing, which I understand Your Honour has only recently received. I have also….”
Quamina: “So you don’t have it in front of me, then.”
Knight: “I’m sorry, sir?”
Quamina: “You said you provided a great deal of information. Is that before the court today?”
Knight: “It is the evidence binder that was submitted.”
Quamina: “Is it here?”
Knight: “That’s the one you’ve got in your hands, Sir, yes.”
Quamina: “I cannot adjourn this, Sir, for you to go and get evidence. You, Sir, are giving the court something close about 500 pages of more documents. Tell me what you have, Sir.”
Nobody asked to adjourn for any reason, or to “go and get evidence.” That came out of thin air. Rather, the Judge was demanding the specific evidence contained in the evidence binder but was not willing to review it in that binder. I picked an easy proof and did my best…
Knight: “If you can open up your 500 page brief Sir, the last page of that brief, the very last one, this is a screen shot from CSA’s website. You’ll notice the three levels of membership. You’ll notice each one requires a fee, so you cannot actually influence law unless you’ve paid them money. So there’s a direct connection, then, between specific dollar amounts and specific influence over law.”
I walked the Judge through several pages of similar evidence in the Information brief, then pointed out the significance of the demonstrated conduct.
Knight: “[…] if that is indeed legal conduct, it would allow any member of parliament to demand $6,000.00 for testimony at a committee, or to trade their votes for that sum, […and] that would be a major breach of law, specifically those laws that I have highlighted in this case.”
Quamina seemed jarringly unfamiliar with the law. For instance;
Quamina: “And even in those jurisdictions where it’s automatically passed by law, the governor general still—the lieutenant governor in those provinces still has to sign it.”
Knight: “Actually, sir, I believe, no. According to the [legislation], the original law that contains the accepted as amended position was signed but it was signed quite a few code cycles ago and I don’t believe it has been signed since. So, in actuality, those code committees are drafting law directly in those jurisdictions.”
We had been over this ground several times already, I had testified on the Amended-as-Accepted provisions earlier in the hearing. These are provisions within law allowing CSA to amend legislation without Parliamentary review.
Quamina: “Well, they’d be regulations, then. They would be regulations, then, wouldn’t they, Mr. Knight?”
Knight: “Well, under the Statutory Instruments Act, no, Sir, they would be laws. They cannot, on the one hand, be binding on the population for which specific penalties apply while at the same time not being laws.”
That is the definition of a law, and the Judge wasn’t familiar with it. Then…
Quamina: “[…] you are asking the parties that you are making this allegation against to be brought to the court to prove their innocence. Is that what you’re asking the court to do today?”
I replied that the phrasing of his question was “loaded,” and I was being diplomatic. In democratic societies one does not have to prove one’s innocence in Court, one is innocent until proven guilty, not the other way around. But then the Judge went back to memberships again.
Quamina: “Let me follow up on this a little bit, Mr. Knight. What is your position, and it’s not here in the book that you provided, what is your reason in terms of your company being a family owned business operated for 58 odd years? What is your reason, sir, for not becoming, given the interest you have in this matter, what is your reason, sir, before the court, if you could provide that, as to why you and/or your company, have not sought or otherwise become—seek membership or to participate in the—in this CSA?”
Knight: “[…] I refused it on a matter of principle, that this is a legislative process, and I’m pretty sure, Sir, that if I tried to offer six grand to my MLA to influence the law I’d be arrested for it.”
Knight: “Well, sir, the bottom line is that you can’t actually help draft the law unless you’ve paid the money, so there is a direct connection between the payment of the money and the writing of the law.”
It was frustrating. For all the evidence before him, the Judge kept returning to civil rights issues, the presence or absence of discrimination in access to membership. One cannot be rude in Court, but it was getting difficult.
Quamina: “But is it fair to say, Sir, that membership is voluntary?”
Knight: “Yes, sir, and you focused on that, but my issue is not on membership; I have no interest in membership. It’s a question of influence.”
Quamina: “If I am a member, then I get to use the service. If I am not, I am not part of that. Is that clear?”
Knight: “That’s clear, and that’s really not my concern actually.”
Then Quamina went back to the evidence that he hadn’t read and wasn’t keen on reviewing in Court.
“Tell me, then, what is your evidence,” he said. And I did. Again. Then the Judge, again; “Do you know what […] evidence is in fact putting the country at risk?” Now we were back to the presence of risk vs. presence of harm issue, already dealt with earlier in the hearing.
I tried a new approach. To demonstrate the presence of risk, I opened my copy of the Canadian Electrical Code and turned to Section 18. “It’s entitled Hazardous Locations,” I said. “We have dozens of pages here just in Section 18 on Dangerous Spaces as Effecting the Canadian Population….” Then the Judge interrupted to ask for the title of the book, dates of publication, etc., all of which had already been dealt with earlier that morning. Returning to my answer, I highlighted the particulars of Section 18, the various installations affected throughout Canada, etc., pointing out that each of these entailed risk of harm and control over Canadian citizens.
After my presentation and prosecutor’s cross-examination we came to the submissions. These are basically summary arguments made by each side. Mostly it was expected material, minus the prosecutor’s Sec. 46 boob, but it also featured some interesting, and surprising, admissions.
For instance, recall that CSA is adamant in public statements that it is a private, not-for-profit corporation, and recall further that governments have been just as adamant that they have no responsibilities for CSA conduct because CSA isn’t part of government. Well, the Government prosecutor, Mr. Hobson, had this to say;
Hobson: “[CSA] is in fact a public entity. It is an extension of the arm of the government of Canada. All of its employees work for the government of Canada. Its processes are pursuant to the government of Canada.”
Hobson: ”[…] pursuant to its creation by either the previous entity, the British government and its subsequent entity of the Government of Canada.”
Hobson: “so my friend is arguing that these people are public officers, which they are…”
Hobson: “[CSA] is a public authority”
Get the idea? Note how CSA is one thing, then the opposite, depending on who’s asking the question? We’ve covered this extensively over the years.
Then the prosecutor admitted the ethical problems at CSA. For instance;
Hobson: “Members of the public may not agree with how that is being done. They may find it to be unsavoury”
And a moment later, regarding specific CSA conduct;
Hobson: “It may be unsavoury.”
Hobson: “Some may find it unethical. Some may find it to be problematic. Some may find it to be improper policy.”
Then I had my go. My response dealt with the prosecutor’s points and reiterated that the evidence quoted from and referenced during testimony contradicted certain of the prosecutor’s claims. That brought the Judge back to the evidence problem;
Quamina: “You understand Sir, and Mr. Crown, please correct me, that you’re introducing information of evidence now that was not provided by you when you took the stand so the Crown would have had an opportunity to cross-examine you on that.
Knight: “Actually, I’m quoting from the book that was introduced.”
Quamina: “It’s in the book?”
Knight: “Yes, Sir, it is.”
Then, finally, the Ruling arrived. It wasn’t a reserved Ruling, Quamina Ruled from the bench. And it was an interesting experience.
Quamina: “In brief, you are saying, I don’t like this. This is unethical. This is unsavoury. This is wrong. But after becoming a member, albeit voluntarily, you are now turning back and saying to this court that we now must find that the people who are getting this money, that you at some point did give in, did benefit from this personally and directly in addition to and above their salary, which is set by the government.”
Hard to know how to commentate this one, there’s so much flat wrong in there. It was pointed out repeatedly that day that I was not a member and never had been, never did “give in,” and never did pay to influence the law, yet that didn’t filter through with Quamina. Next was Sec. 46;
Quamina: “There is also the allegation of treasons [sic]. Well, we don’t know to what extent information that come out of these discussions was used, in fact, in any way to hurt or otherwise create injury to Canada.”
Again, Quamina didn’t catch the difference between presence of risk vs presence of harm, a basic legal principle if there ever was one. He also seemed to confuse the unrelated charge of high treason with Sec.46.2, being the transfer of government information. Then;
Quamina: “And I do not believe nor accept your submissions that this court has the jurisdiction to say to the government, no, you should not be doing that. I do not accept that as a position that I have jurisdiction and authority to do.”
That’s a first, and a funny. Courts across the land Rule against governments all the time. In this instance, it may have been inconvenient for a Crown Justice to rule against the government, but that it wasn’t possible is laughable.
On the whole, Quamina Ruled that 1) actions conducted in public cannot be a crime; crimes must be secretly carried out, and; 2) if participation is voluntary, then it cannot be a crime; crimes must be discriminatory against somebody. By Quamina’s standard, just about every crime in the country would be suddenly legalized.
Then, the best part of the whole ruling, entertainment-wise. Read carefully;
Quamina: “I am satisfied, based on all that I’ve said above, that these allegations are supported by the evidence provided here today. I, therefore, then do not so order that this matter proceed, and for the purpose of what we do today, I conclude. This court stands adjourned.”
Caught that? These allegations “are supported by the evidence,” therefore the prosecution should not proceed. Well. Ok, then.
Some keen readers will likely point out that Quamina’s statement may contain a misprint. I should inform them that sending this Ruling to Superior Court for review necessitated approval of the transcript by Quamina, who corrected the misprints he found therein, and who took two weeks to do so. Justice Quamina signed off this document as accurately recording his words and his Ruling.
It turns out that Justice Odida Quamina isn’t actually a Judge, he’s a Justice of the Peace (JP). In Ontario, a JP can preside over certain trials. In Quamina’s case, it gets even more interesting. Odida Quamina isn’t even a lawyer. In fact, he has no legal training whatsoever. Prior to his appointment in 2006, Quamina had been a part-time faculty at a community college and a sometime ombudsperson at another community college.
Quamina’s antics have made the news before. Christie Blatchford wrote of him late last year, that Quamina did as he pleased without regard to the law, “seemingly at will and in defiance of the law.” One lawyer was bold before Quamina, telling him bluntly; “I see laughter and chuckles. This is a serious matter,” he said, apparently in response to Quamina’s laughing at his insistence on legality. “You’ve disregarded the law too.” Said Blatchford, “justices of the peace […] are supposed to guard the law, not disregard it.”
That was what we told Superior Court on April 3rd. They agreed, the Superior Court ordered a review of Quamina’s Ruling for June of this year, essentially a rematch of the December hearing.
Will the prosecutions actually happen? They might, or they might be quashed.
You see, if the Court upholds the Quamina Ruling, then it becomes legal to bribe public officials. If however, the Court overturns the Ruling and orders a trial, the prosecutor has the power to quash the proceedings without Court sanction. Same goes for the Attorney General, by the way. Either office of the government can quash the proceedings. So, the viability of the process is a function of the composition of the civil service.
The CSA has very deep connections in governments across the land, but I’m sure that’s coincidental. The civil service has been transferring staff into, and out of, the CSA for ninety years, but I’m sure that’s unrelated. Deputy Ministers have retired from the government, only to land weeks later in the offices of CSA. Wendy Telford, Ontario’s Uber Governmentress and former Deputy Minister of Government Services, is currently on CSA’s Board of Directors. Going the other way, France Pegeot was Deputy Minister in the Federal Department of Justice, the Department responsible for Federal Courts. Until last year, she was on the Board of Directors at CSA.
People talk to each other in the civil service. It is highly likely that informal suggestions have been made, backgrounders have been quietly sent, in order to give those parties with responsibility a more thorough understanding of the issues in play. These are merely guidelines, and there’s nothing wrong with guidelines, they’re impartial, objective. Quoting from British Parliament however, “railway trains are impartial too, but if you lay down the lines for them, that’s the way they go.”
We’re pressing for prosecution but we’re aware that vested interests, vested with governmental authority, will likely protect CSA from legal accountability. Every move we make however, every article on this website and every filing that we submit, enters evidence into the public record, accessible and researchable by anyone. In the course of time, and through efforts like these, we are building a compendium of CSA’s conduct and a critical mass of evidence to prove it.
And that is the pathway to recovery.