Peering Inside the Judicial Minds of the Federal Court System
April 19th, 2020
As you may have noticed, in the context of Corona a whole bunch of normally available things are unavailable now. A whole bunch. Toilet paper, for instance, cans of soup, hair stylists. And the Court system is also shut down.
Everything in Court is paused at least until May. Of course, that means our patient [sort-of] waiting for Prothonotary Tabib’s “hammer to fall,” the engineered Ruling in favour of her friends, is extended for a few more weeks.
It also means the other of the Canadian Standards Association’s (CSA’s) myriad of lawsuits against me are likewise paused. You thought Court was glacial before Corona? Well my friend, it’s not moving at all right now. What’s slower than glacial?
As we wait, it might be illuminating to discuss how the Court got so compromised in the first place. I mean, granted, the Court itself doesn’t think it’s crooked. Corruption rarely looks as bad to the people who profit from it as to the victims of it. That, and if one accepts the premise of the current Court, that judges are enlightened souls, knowing far better than the rest of us what’s good for us, then it follows that the law itself is of no concern. Rather, the judges will do what they think is best without regard to law. And that, my friends, is where we’re at, and that’s what looks reasonable to those on the inside of the crooked cauldron.
So, how did the Court get so contorted?
Well, the deviation from rule of law began with the replacement -or rather, displacement, of the body of civil rights which existed under the British North America Act (BNA) with those enumerated under the Charter of Rights and Freedoms. That is, the rot began with the first Trudeau.
And the rot was foreseen, and warned about. Supreme Court Justice Louis-Philippe Pigeon (1967-1980) sounded the alarm, noting that the changes drafted within the Charter “would mean a significant shift of power to the court with a lack of awareness of the consequences”. Why? Because the Charter was very deliberately worded so as to maximize the interpretational powers of the Court at the expense of Parliament. As it happened, a lot of power was transferred.
Warned Justice Pigeon at the time; “A constitutional bill of rights means a delegation of legislative power to a court to an extent that is undefinable. It doesn’t matter how it is worded, the actual extent will be what the court says it is.”
That is, the Court will be allowed to determine its own power and amend or enlarge that power to its own interests at its own convenience. All such power is taken by the Court at the expense of Parliament. And why would they want to transfer power from the people (Parliament) to an unelected, unaccountable body constituted of self-styled elites?
The answer’s in the question, really. They didn’t trust the people to make choices they’d agree with. Naturally then, the democratic authorities vested in the people needed to be transferred to their own colleagues.
Think I’m reading too much into this? Read on.
Former Chief Justice Beverley McLachlin, in 2001, made some jaw-dropping speeches about the role and power of the Court. Quoting from Landolt / Redmond / Alderson; “she exhorted judges to step fully into the new [post-BNA] role, claiming that the law-making role of judges has dramatically expanded, and now consisted of ‘invading the domain of social policy’. She claimed this was necessitated by ‘the inability or unwillingness of legislative social bodies to deal with pressing social issues’.” That is, Parliament didn’t change things as she and her colleagues wanted.
Freeing the Court to legislate by Ruling also freed them from the constraints of consistency. In other words, they could Rule one way today and the opposite tomorrow on the same issue without fretting the inconsistency of their conduct.
Consider that the Parliamentary statement in favour of CSA, as made by James Moore, Minister of Industry, was a central argument for CSA against us in Court, and an equally central cited basis for the Rulings of Manson and the Federal Court of Appeal against us. Yet, quoting Justice Antonio Lamer in 1985; “By allowing ambiguities in the statute to be resolved by statements in the legislature, ministers would be given power in effect to legislate indirectly by making such statements. Cabinets already have powers enough without having this added to them.”
And Justice Lamer again; “How can one say [that] the comments of a few federal civil servants can in any way be determinative?”
Yet they were determinative against us. The Court ignored its own Rulings because the situation had changed; whereas Justice Lamer disregarded Parliamentary statements because these were against his personal preferences, the CSA-backed Justices highly regarded Moore’s Parliamentary statements because these were in favour of their personal preferences.
This flouts the legal principle of Stare Decisis, which requires judges to be bound by previous judicial decisions when faced with similar or identical facts. But, if the Court is not constrained by law, then Stare Decisis is of no consequence.
Yet consistency, dependability and stability of the law is basis for civil society. Without these, we’ve lost the rule of law for rule by force.
In 2004, the Supreme Court summarized their understanding of law this way; the Constitution “is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
The Court then, can Rule as it wishes, “interpreting” situations rather than laws, without regard to those laws themselves. Or rather, they believe themselves to be laws unto themselves.
In this context, the laws governing the actions of the judges are anachronistic. The regulations they serve under can also be progressively interpreted, addressing the realities of the modern judiciary. And so they are.
Former Justice Minister John Crosbie filed a legal action against the Canadian Judicial Council in 2003. He was upset that the Council, the body mandated to regulate and discipline the judges, was run by the judges themselves as a sort of private club. As a result, the Council ignored its own regulations to protect the judges, giving them a sort of license to live above the law.
Said Crosbie; “The Canadian Judicial Council is a ‘black hole’ into which complaints about judges disappear never to be seen again.”
Crosbie continues; “Your present [Council] process is a Star Chamber process with a compliant disappearing into a black hole once received at the Council. […] The judiciary will be subjected to ridicule and contempt for the way in which our judges deal with complaints over their own conduct and the repute of the entire justice system will be significantly undermined as a result.”
When we found out about Justice Manson’s background, being a CSA employee, media rep, etc., we didn’t bother filing with the Judicial Council. Such a filing would’ve been pointless. Instead, as readers will recall, we filed directly with the Chief Justice of the Federal Court, Paul Crampton. Readers will also recall that in his response “Kangaroo Crampton” lived up to his nickname.
Minister Crosbie thought the Council was compromised and so do we. In example, Sec. 4 of the Council’s procedures document provides for “early screening” of reported judicial misconduct. In this, the Council’s Executive Director is only required to open an investigation when the report of misconduct “warrants consideration.” The only judge of what warrants consideration is the Executive Director, an un-elected, unaccountable bureaucrat reporting to the judges he / she is supposed to be policing.
Further, there is no provision in the Judges Act for an Executive Director to have this authority. But it doesn’t matter, because the Court decides for itself what powers it will legitimize after having been caught exercising them, as we’ve learned from bitter experience.
Not all limo drivers are drug dealers, not all civil servants are on the take, and not all judges are crooked. For instance, in 2018 Justice Simon Noel, an apparently clean judge, in a case dealing with the insiders’ club attitudes of the Judicial Council, noted within his Ruling that the Judicial Council regards itself as a “superior court” unto itself and considers its conduct beyond judicial review. Further, Ruled Noel;
“It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person’s fate on its own. Of course it is true that, in our society, the position of judge requires exemplary conduct, but is this a reason to render it subject to a single investigative body and to eliminate any possibility of recourse against the decision resulting from inquiry? In my opinion, it is not.”
You caught that, by the way? There is no recourse to the judicial decisions of the extra-legal Executive Director position set up by the judges to unlawfully prevent investigation of judicial misconduct.
What sort of misconduct? Well, my friend, feast on the following teaser examples…
In Chief Justice McLachlan’s famous 1991 speech, she gave her opinion, at length, on the subject of the rape shield law while at the time that same rape shield law was scheduled for hearing in her Court. In other words, she issued her legal opinion -in public- before she’d heard the legal arguments in Court. The case then, was cooked, the result was determined before the hearing was held. That’s judicial misconduct.
As noted by Landoldt / Redmond / Alderson, “in 2006, McLachlin gave [another] speech in New Zealand in which she asserted that judges may render their opinions based on ‘unwritten’ constitutional norms, even in the face of clearly enacted laws or hostile public opinion. She defined unwritten norms as those ‘essential to the nation’s history, identity, values and legal systems.’ McLachlin concluded such norms were properly understood and interpreted by the appointed judges who had been given a legitimate role in determining ‘unwritten’ laws because judges have a ‘judicial conscience’ which is founded on the judges’ ‘sworn commitment to uphold the rule of law’.”
Yet people’s consciences are based on their own personal preferences, not legal principles or the rule of law. Justice McLachlin was bragging about supplanting actual law with her own personal opinions.
Said Justice McLachlin in 2015, “My job is simply to listen to what the parties have to say […] to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgement”.
Really? She’s not judging the parties against the rule of law, but against a nebulous “what’s best for Canadian society”. And who is McLachlin to overrule Parliament in the name of what’s best for society? Democratic Parliament is the will of society. So McLachlin is claiming to know better what is in society’s interest than society itself. Amazing, isn’t it?
But McLachlin’s opinions on the matter are the norm in Court.
For example, current Chief Justice Richard Wagner declared in 2018 that the body of Canadian law “is ‘a living tree’ and its interpretation [is] not limited to the original meaning of its text. […] The constitution must be interpreted in the context of societal, technological and other changes, while incorporating factors such as unwritten legal or constitutional principles […] depending on the evolution of society, [etc.] and the evolution equally of the moral values that link most Canadians.”
So the will of the public, as expressed democratically through Parliament, is subservient to the Court?
Why yes, said the Court. Quoting Supreme Court Justice Rosalie Abella, in 2000; “The judiciary has a different relationship with the public. It is accountable less to the public’s opinions and more to the public interest.”
Can you just feel the arrogance of this woman? Who is she to decide the public interest? Are we not a democracy? Even as a practical matter, how could this one judge determine the public interest more accurately than the public itself?
Care to see what this looks like in practice? Alright, try this on for size…
Supreme Court Justice L’Heureux-Dube in 1999 declared that; “The democratic process had not adequately taken into account the needs of gays and lesbians”
Who decided that Parliament hadn’t “adequately” dealt with this issue? Why, L’Heureux-Dube, of course.
What you or I may think of this issue isn’t the issue; it’s that as we’re citizens it’s supposed to be our collective will that rules the day. Justice L’Heureux-Dube thinks otherwise and acts accordingly.
L’Heureux-Dube continues; “Courts are taking the lead in changing society’s attitudes to same-sex partnerships. Despite these developments however, there is much work to be done.”
And again, in 1999 (different speech, same year); “Yet most people would agree that it is appropriate for judges to make changes in the common law and the interpretation of legislation or the constitution when necessary, particularly to adapt it to contemporary values.”
And again, in 2003; “Courts have been at the forefront of this [same-sex] evolution, not to say revolution. It’s fascinating that the courts played a unique role.”
One could debate what Parliament would have done differently on this issue, how quickly they would have moved, or not moved, etc. What is beyond debate is that Parliament was bypassed by the Courts, and that the Courts are actually proud of usurping the democratic will of the citizens of Canada. They unilaterally changed laws to their liking and they’re proud of it.
Does that clarify how Manson’s Law is possible in a democracy? Does this explain how it was possible for Prothonotary Tabib’s Ruling to deny the right of defence in Court? Does that explain why Tabib Ruled that she “is not bound by the finding […] made by another Court, at another time, and on a different matter”? Does that explain how the original 1178 case, the first of the civil service’s many duplicate litigations on the matter, is still outstanding nine years later and, by Tabib’s decision, will be foreclosed in a few weeks in favour of CSA without so much as a trip to a Courtroom?
Yes folks, the descent of the Canadian courts, from highly respected institutions of law to lowly regarded unaccountable institutions of self-interest, explains a lot of the surreal and frankly disgraceful conduct of the Court in recent years.
The late Robert Martin, a retired law professor, summed the situation better than I could, so I’ll quote his explanation in closing;
“Supreme Court of Canada decisions have become systemically unprincipled. This is the result of two tendencies. First, some of the judges tend to see themselves as delegates or representatives of a particular section of the community and haver therefore largely abandoned the effort to be impartial. Second, and even more important, has been the tendency to adopt the so-called contextual approach, created by Justice Wilson and eagerly embraced by Justice L’Heureux-Dube. A judge following this approach asks, first, whether she likes a party before the court and, second, whether she approves of what that party is doing. If the answer to both questions is ‘yes’, the judge decides in favour of that party. In sum, Supreme Court judgements are no longer reasoned attempts to apply legal principles to a particular dispute. On the contrary, they reveal themselves as exercises in justifying a decision already reached for other, which is to say, political, reasons.”
I am indebted to the writings of Gwendolyn Landolt, Patrick Redmond, and Douglas Alderson in their book From Democracy to Judicial Dictatorship in Canada, from which many of the above references originated. While no publication is perfectly aligned with anyone’s views, I am impressed with the research within this book and recommend it for anyone wishing to understand our dysfunctional judiciary.