December 4th, 2017
“The Federal Courts are now being painted as kangaroo Courts, ready to jump as high as the Federal Government says.” Thus spake Paul Crampton, Chief Justice of the Federal Court of Canada in a speech to the Canadian Bar Association in 2014.
We quoted Crampton’s speech in our letter to Andrew Baumberg, an official in Crampton’s office, on May 2nd of this year. We had been trading emails with Baumberg regarding Paul Crampton’s role in the Manson Ruling, the one that struck the public nature of law in favour of the Canadian Standards Association (CSA).
“We have received documentation regarding Justice Manson demonstrating a multi-decade relationship with the [CSA], the Plaintiff in the T-646 case.” We reminded Baumberg that “Justice Manson’s relationship with CSA continued after his appointment in 2012. Further, he has been a spokesperson for CSA in several media articles and has been employed by CSA on counterfeiting enforcement committees.”
Then we pointed out that 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. In the run-up to the T-646 hearing, the RestoreCSA website ran a series of exposes on the counterfeiting operation.
That was awkward for Justice Manson because, as we reminded Baumberg, his “time in the employ of CSA in counterfeiting enforcement fully overlaps with CSA’s counterfeiting operation, [and] the RestoreCSA site may be seen as placing Justice Manson in personal legal jeopardy. In this, the verdict in favour of his former employer could be interpreted as a means of removing a personal threat.”
“We are aware that a number of senior civil servants at the Department of Justice, including an ADM [Assistant Deputy Minister], have been in the employ of CSA as recently as last fall. We are advised that Justice Manson was selected for the T-646 case because of his perceived vulnerabilities and thereby his reliability to Rule in favour of CSA. [emphasis in original]”
The substantive basis for that statement, the evidence a’plenty, which by this point Baumberg had already received and reviewed, was verifiably factual and voluminous. The Court had all the appearances of having cooked a hearing. In this, the Chief Justice’s office should’ve been very worried about that impression.
Later that day, Baumberg sent a two line response. We were told to pound sand, essentially. The Court “will not provide any comment.”
On May 9th, we checked-in with Baumberg and advised of our big Michael Manson article. Baumberg chose not to reply.
Again, on June 2nd we wrote; “As below, it has now been more than three weeks since the Manson / Crampton article. We will shortly be publishing a follow-up article detailing the corrective actions taken by the Court within the authority of Chief Justice Crampton. In this, and as the public website of the Court contains no advisories regarding Justice Manson, could you kindly advise what steps have been or are being taken on this matter?”
On June 4th, Baumberg sent a one line reply, that Justice Crampton “has no further comment on this matter.”
Note that we didn’t ask for a comment, we asked what “steps have been or are being taken” to correct the matter.
On Sept. 18th, we wrote again, this time so specifically as to preclude the Court’s favoured “no comment” response. It went like this;
“With regard to the ongoing matter of Justice Manson, and in preparation for a follow-up article on how the Court is handling the matter, I am inquiring for an update on Chief Justice Crampton’s corrective action(s) taken since our last inquiry in June of this year (as below). Note that I am not requesting comments from the Chief Justice, nor from his office on any of the particulars of this matter. Rather, I am inquiring of any reportable corrective actions taken by the Chief Justice on this file. [emphasis in original]”
The reality is that the attitudes and conduct of the Court on such matters speak to the integrity of the Court and its Chief Justice and his office. And we pointed that out too, saying;
“Kindly note that as these items are all publicly disclosable, and that the violation of Court rules and the violation and repudiation of Federal and provincial legislation is an extraordinarily weighty matter, for reporting purposes, the absence of any confirmation of corrective action from your office will be interpreted as quiescence and consent by the Chief Justice to the conduct of Justice Manson.”
We have received no reply in the more than two months since this inquiry. It appears therefore, that Chief Justice Paul Crampton is comfortable with the conduct of Justice Michael Manson.
As Baumberg admitted early in our correspondence, way back in April 2017, Justice Crampton “is responsible for […] the direction and supervision over court sittings and the assignment of judicial duties.”
In other words, Justice Crampton selected Justice Manson to judge between us and his former employer, the CSA. Given Crampton’s response to Manson’s conduct, more specifically his lack thereof, the Manson Ruling may well have been a foregone conclusion, the hearing itself may have been window dressing.
I have had occasion to deal with judges outside of Court, so I have at least a window on the culture of the judiciary. During personal research on the infamous Arpad Eross case for instance (BC 1969-73), I had a number of discussions with very senior judges in provincial Court. I also know at least one judge personally, from relationships years ago, having been to the judge’s house several times, gone hiking with them -that sort of thing.
I wanted to verify that notwithstanding Crampton’s role in the Manson verdict, what specific disciplinary authorities does Crampton have to correct Justice Manson. So I contacted my judicial friend.
“It’s been a while,” I said, “I have a quick question for you. I have an interest in understanding the culture of the Federal judiciary, specifically with regard to questionable conduct and internal disciplinary processes with the judiciary. What is the typical role of the Chief Justice in internal disciplinary actions, for instance, and what options are available to the Chief Justice in this regard. As you know, internal actions are contemplated by the Judicial Conduct Principles, but the particulars of these actions are undefined.”
I also sent this judge a link to the Michael Manson article. This judge isn’t in the Federal system, so there aren’t any conflicts of interest, and I reiterated that my interest was confined to “the cultural, procedural, and management realities of the Federal judiciary.”
Indeed, in subsequent emails the importance of separation was mutually emphasized; “If you were close to the personalities or in the same Court, you’d be conflicted,” I said, but “A wealth of wisdom without baggage or compromise; that’s healthy. I’ll await your word. Thanks for your consideration [name], take care.”
Some emails later, and given that this judge was then out of town and unavailable for coffee, I sent a more detailed explanation of why I wanted “to know what internal disciplinary options are open to a Chief Justice and, secondly, [why] I’m seeking an understanding of the culture of the judiciary on such matters”. The relevant paragraphs are below;
“What I could [at that time] only hint at in the Manson article is that we have information that the Fed Court has been compromised on the CSA issue. I have a number of sources in Ottawa. I’m advised that DoJ or PMO (I don’t know which) arranged a quiet discussion with either the Chief Justice or his deputy (again, I don’t know which) to express the concerns of the government over destabilizing the CSA regulatory structure. The decision to assign Manson to the case was specific and deliberate, in that he is personally vulnerable given his longterm involvement in certain murky CSA activities. He was expected to Rule in favour of his own security and his former employer.
“Beyond this, plenty of civil servants have been transferring into, and out of, CSA for over twenty years, and they’ve been rising in the ranks of the service throughout these years. There are some very senior civil servants who are very exposed if there’s a CSA cleanup.
“We hired Sheila Copps to do some gov rel [government relations] for us in Ottawa. She met with lots of people, yet found that the PMO was roadblocking everything she did. Whenever Copps met someone, somehow the CSA found out and arranged their own meeting to undo the damage shortly thereafter. Eventually, she met with [Person], the number [redact] at PMO. [This Person] made commitments on the file, then stonewalled us for over a year. Copps couldn’t understand it, she was very frustrated ([Person] had worked for / with her for [redact] years, she knows him well). It now appears that [Person] had been running interference on behalf of CSA, ensuring that no investigation take place. Once the Manson Ruling was secured, [Person] left the PMO for a lucrative consulting job at CSA’s [affiliate]. It appears that [this affiliate] advised PMO that they would appreciate efforts to secure a favourable Ruling and, once the Ruling was delivered, the appreciation was delivered to [Person].
“[line redaction] [We have also been] threatened of their ‘connections’ in govt. It seems that defending myself is quite pointless if the legal system itself has been compromised in the benefit of govt.
“You also commented about the Judicial Council. Well [name], when I first found the documentation on CSA sales of influence over legislation I filed a complaint with the Law Society of Upper Canada regarding CSA’s general counsel, as it was his decision to authorize the influence sales. I submitted two dozen or so pages of argument, backed with about 300 pages of evidence, and was advised that there were 4 - 5 files in the queue ahead of me, but they’d get to my filing in the next week. One month later I was told that there were about a dozen files in the queue ahead of me and it would take a month or more to get to my filing. Half a year later I was told that there were 49 files ahead of me but, not to worry, they’re handled on a first come, first served basis. Another month, and I received a letter advising that the Law Society had agreed to a private meeting with the General Counsel’s lawyer and between them they agreed that the Law Society would do nothing. In this context, and after half a decade of trying to defend myself against an entire government, I have little faith that a corrupted system will correct itself.
“This is why I appealed to Chief Justice Crampton. I don’t want to knock the man if he’s clean and just taking a while to make his correction. On the other hand, I’m trying to work with opposition MPs and folks in the US on this file and evidence of a crooked Chief Justice is powerful information. According to the Judicial Conduct Principles, he has authority to act in such matters. But what specific actions does he have power to take? I don’t know if he’s in on the Manson assignment or not, I don’t know if Crampton is clean or not. If I assume that he’s clean, then presumably he’d be seriously offended at breaches on this scale and would indeed make corrections. But then what options does he have to correct it? What do they look like in public, how could I spot them? How long would they take to show? Can he suspend Manson? Can he investigate Manson? Culturally, and notwithstanding the seriousness of any breaches, is he likely to circle-the-wagons and protect a fellow judge? So how much of a club mentality usually exists on the bench?
“Right now I don’t have the knowledge of Crampton’s options or the judicial culture within which he may act on those options. Because I lack this understanding, I cannot easily discern by his actions or his inactions if he’s crooked or clean. Hence the inquiry.”
I cannot disclose what insight I received or didn’t receive from my judicial friend, only that standing for the right is risky when the stand is against the powerful. There are very real limits on what even a provincial judge can publicly do in these contexts.
Thanks to Crampton, Manson’s got power. After the private law Ruling, Justice Crampton chose Michael Manson to be his point person on judicial reform of the Federal Court. Indeed, on Jan 19th of this year, Manson was chosen to deliver a long lecture at the Law Society on reforms to Court operations, (a wide range of reforms such as “amending / simplifying the Federal Courts Rules” which should be ominous coming from Manson, or new “case management guidelines” featuring changes to handing “bills of costs”, limiting expert testimony, etc.).
And whom was Manson working with in this process? Why some CSA friends, of course. One of CSA’s legal contracts, Smart & Biggar, was a fellow presenter, as was Ms Mandy Aylen, a Prothonotary of the Federal Court, also a direct report to Justice Crampton. Another of Manson’s co-presenters was Ms Georgina Danzig, of the CSA contracted firm Kestenberg Siegal Lipkus. These firms have featured on RestoreCSA due to their close, and sometimes incestuous, relationship with CSA. And it goes on like this. The same players, playing together for their mutual benefit.
And Crampton approved it. All of it.
That’s a big problem for us on the CSA file. If the pattern holds, then this legal process is already decided, the Rulings therein pre-arranged. It’s not that we shouldn’t win; but that we aren’t allowed to win.
What are we to do? How can we defend if the law itself doesn’t matter? How can we comply with law if what the law says it means can be the opposite of what it really means? And if we have no way of knowing what meaning the Courts will decide on law until we’re charged under it, then how can we avoid violating the law? And what’s the point of defending one’s self in Court if their Rulings can be pre-arranged? In practice then, the citizen has no recourse in Court. And that is what’s called a kangaroo Court.
Given recent Court history, we need to consider that calls between Ottawa and the Federal Court, like those that appear to have arranged the Manson Ruling, may also be underway in advance of our Injunctive Hearing, scheduled for Dec 15th.
“He’s making us look bad,” they’ll say, or words to that affect, between government and Court, and quietly. “It’s unfair. The Court can’t look bad. It’s clearly in the national interest to protect the reputation of the Court. Obviously then, the Ruling must protect the Court, its allies and friends”
The oddity is that these people are unlikely to perceive it that way, as one colleague said; “They wouldn’t recognize their actions if they saw them in a mirror.” To them, it’s natural that they have power and that they can define that power however they like. It’s the natural order of things. Consider the Law Society’s attempt to control people’s thoughts and then compel them to express agreement with the Society’s thoughts. That’s unrestrained power, ugly and terrifying. But it’s their power, and they feel enlightened, are exempted and therefore feel justified in legitimizing whatever conduct they wish to engage in. Just like Crampton’s Courts. And just like CSA.
If the Court has already cooked our injunctive, then we can expect a Ruling designed to legitimize CSA’s continued violation of law while protecting the Court from criticism of kangaroo conduct. If the pattern holds then, the Court will either Rule for CSA in defiance of law or will punt the issue giving CSA a win by default.
That brings us back to Crampton’s speech in 2014, the one that started this article, the one where he lamented that Courts were seen as “kangaroo Courts”. You see, shortly after Manson’s Ruling, we heard that Crampton’s 2014 speech was the subject of some ridicule in Ottawa. It seems that civil servants in the know on judicial matters knew too much to take Crampton seriously. It seems that these civil servants are comfortable with Crampton, in particular because they know he’s “ready to jump as high as the Federal Government says.”
The rumour in certain of the civil service, is that shortly after his “kangaroo Courts” speech, Justice Paul Crampton was given the nickname of “Kangaroo Crampton.” It seems he’s earned it.