The Second Criminal Hearing

October 16th, 2017

Late last year, we had our first Court hearing, the Quamina hearing, on our filing of criminal proceedings against the Canadian Standards Association (CSA).  In May of this year we published the play-by-play of that hearing, in all its gopping glory. 

The absurdities of that hearing were seemingly boundless, most especially the Ruling that the bribing of public officials is no longer a crime.

In June, we presented our appeal of the Quamina Ruling.  What follows is what happened.

The Ontario Superior Court in downtown Toronto is an interesting building, the courtrooms therein are absolutely beautiful.  The builders had a penchant for high ceilings and wood paneling.  It’s quite lovely.

I took my seat on the Court’s wooden benches and waited.  And waited.  And waited.  There were several motions to be heard ahead of me and one of these was missing a key participant.  People were pausing, stretching their deliveries, hoping that through the elongation of the process the missing party would make their appearance.  Not so.  The motion was set aside by agreement of the other parties.  It was interesting, a bit, not a lot, and my waiting continued.

Next there was a self represented litigant who wasn’t terribly interesting either, but she was entertaining in the fullest sense.  She was in Court trying to sue a dozen or so members of the Provincial Police for, among other things, sexual harassment that she experienced by passing them in a hallway.  Adding to the spectacle, she was only partially fluent in English and had been granted a translator by Court.  She was only partially utilizing this service however, often misunderstanding the judge, not waiting for translation, and reacting enthusiastically to whatever slight she felt she’d just been subjected to.  Between the judge, the translator, the prosecutor, and the litigant, with everyone over-talking the other, all being translated, sort-of, and simultaneously, it was an entire festival of linguistic butchery.

Gong shows can be common in Court.  That’s unfortunate, because it tends to spread disrepute upon those who plod those same paths in more respectable causes.

Well, after the morning’s entertainment, our case began.  The first item on our agenda was a motion from the Crown prosecutor, a Mr. Sabat, to conceal his arguments from the public and seal the case entirely. 

Said the prosecutor;  “The Crown has filed an application in relation to asking the court to call the hearing in camera and asking the court to issue a sealing order.”
Court - “Why would I order this matter to be heard in camera?”
Crown - “Mr knight is alleging extremely serious offences against these individuals. [CSA leadership] were not parties to the proceedings [they were] not even notified that it takes place. […] the issue here is how extremely serious the allegations, that they can have obviously a damaging affect on reputation of these individuals just by the allegations themselves being published.”
Court - “Every courtroom in this building, Mr. Sabat, deals with serious allegations”
Crown - “Yes, but…”
Court - “…and they’re all open to the public”

Then there was a discussion between them on the impermissibility of a publication ban merely because it might inconvenience the high and mighty.  Mr. Sabat wanted something that the law did not allow.  In this, he was struggling to sound convincing.

Crown - “I thought about this matter.  I discussed it with senior counsel and the reason we ask for an in-camera hearing but not a publication ban is because [of] the positions of these people at the organization itself. […] and that is the main reason why we’re asking for two things.  We’re asking for an in camera hearing [because] it just makes sense…”
Court - “Except for the fact the criminal code doesn’t provide that.”

You may have heard of the phrase “respecter of persons”?  It’s rather dated, but it refers to the act of treating the rich and powerful differently than everybody else.  In law, it means that the rich and powerful are given procedural exemptions and other advantages.  And that’s what Mr. Sabat was arguing, because of the lofty positions of civil servants and their presumed status, as he said; “because of the positions of these people”.

Court - “Did you give notice of this motion to the media?”
Crown - “We did not give notice of this motion to the media because we’re not asking for a publication ban.”
Court - “Well, no, you’re asking for something thats even worse.  You’re asking for the proceeding to be held in camera so that the media wouldn’t even be able to sit here and watch it.”
Crown - “Yes”
Court - “…and failure to give notice to the media is fatal to your application”.
Crown - But “Mr. knight did post some of the transcripts and mentioned some of the proceedings on his website from the original proceeding, [therefore] we are asking for two things… one, that this hearing be held in camera, and two, that a sealing order, and I provided a copy of that sealing order at the end of my materials, the proposed sealing order be signed in the circumstances.”
Court - “Well… this matter’s going to proceed in open court as [is] normal within this court, within this country.”

Well, score one for the good guys.  It’s a rare thing, to win on procedure against a government.

I began my presentation.

“The whole case […] deals with the question of whether [electrical law] is actually the law. […] We’re operating on the Statutory Instruments Act and the three criteria that define the law as being the text that is [1] passed by legislature [2] is enforced on the people [and 3] that there are specific penalties for non-compliance”.

Then I reminded the Judge of CSA’s Accepted-as-Amended provisions and that the transfer of technical information is intrinsic to the amending of technical legislation, this latter point being central to the Sec.46 charge against CSA.

“As you know, Sir,” I said, “in your role, you can hardly rule on something without having read the particulars behind it.  Likewise, they cannot amend legislation without knowing the technical details of that legislation.”

The Judge replied that “the JP [Quamina] gave careful consideration to your matter.  He gave very detailed reasons for why he didn’t allow the matter to proceed.  But chief among those reasons… was there was no evidence of the offences.”

Readers will recall that Justice Quamina was indeed presented with over 500 pages of evidence but he didn’t review it prior to the hearing, and refused to consider it during the hearing.  So the evidence was there alright, the Judge just refused to review it.  But that gave the prosecutor an opening.

He argued that because Quamina claimed there was no evidence presented, no evidence at all must exist.  The evidences referred to are therefore merely hearsay, second-hand inferences.

I told the Court; “You have what’s about 500 pages worth of information there in front of you, most of which -in the back particularly has advertisements from CSA advertising dollars for influence, specific votes for specific amounts of money.  To suggest that all of this is based on second-hand inference…”

I then recounted how PS Knight had received multiple offers from CSA of influence for money, and how these offers had been outlined before Quamina and how, as evidence goes, that’s hardly second-hand.

The prosecutor was arguing that there couldn’t be any private transfer of technical information to foreigners, being the basis for Sec.46 charges, because the whole of electrical law is public knowledge.  Note how the government changes its argument depending on what they want at any given time?  In Federal Court they claim that electrical law is private property because they want to profit from it; whereas in Provincial Court they claim that electrical law is public property because they want to duck criminal charges for transferring sensitive information related to it.

In response to this claim, I pointed out that the legislative process of amending electrical law isn’t public at all, and that transfers of sensitive information take place during this process.  I further reminded the Court that even the Federal 60-day public review law, which would normally give the public access to legislative amendment, is being ignored by CSA.  In sum then, the government claim that electrical law is within public knowledge during amendment is nonsensical.

Then we dealt with Quamina’s statement in his Ruling that the trading of dollars for votes isn’t necessarily a bribe, for it could instead be a payment to participate in “collective wisdom.” 

I addressed the Judge in my response;  “If I were to offer you a bribe, and then you ruled subsequently, we could logically infer that there was a connection between the offer of the bribe and the ruling that came out of it.  The idea that there is no connection [between the payment and what was paid for] doesn’t make a great deal of sense.”

Next, we dealt with the prosecutor’s argument that there could be no crime because the perpetrators were part of government.  More succinctly, he was arguing that governments cannot commit crimes because governments get to decide the definition of crimes.  Anything governments do therefore, is always legal.  It’s “respecter-of-persons” on steroids.

“You’ll notice,” I said, “that [the Prosecutor is] using this as a basis for saying that there was no crime, that they were […] working as government employees in a government capacity.  I’m merely pointing out that being on the payroll of the government does not give them license to violate the criminal code.”

Court - “No, but the presumption is that they were acting properly until you adduce evidence to show the contrary.”
Knight - “That’s correct Sir.  But then the context of this whole thing is the taking of money in trade for influence over the law.  So I’m running on the assumption right now that that is actually a crime and pointing out that being on the government payroll does not exempt them from those responsibilities under the Code not to do so.”
Court - “Where is the evidence that they did something improper?”
Knight - “That’s the Information that I believe is just at your left-hand, Sir.”  He was holding the Information in his left hand at the time.  “That’s the document with all of the advertisements in it with the various email correspondence in it…  The evidence is in the [submitted] Information, Sir.”
Court - “Where was the evidence in front of the JP [Quamnina]?”
Knight - “The JP did not read that evidence.  I endeavoured to give it to him.  He did not receive it and would not review it.”
Court - “He didn’t view that as evidence.”

One could ask how Justice Quamina could know if the Information was, or was not, evidence if he refused to look at it.  I reminded the Judge that Quamina didn’t review the Information at all.  At this point, the current Judge was still holding the Information in his left hand.  He didn’t open it, he just held it.  Then we continued.

Addressing the judge, I quoted the prosecutor from the Quamina hearing;  “‘There was no evidence that this matter was in any way connected to the administration of criminal law’.  He’s saying its not criminal in nature.  I would point out, Sir, that the nature of the subject is the payment of money for influence over legislation.  It would strike me that that is [fairly clearly] a matter of criminal law.”

And it went back and forth like this.

The prosecutor argued that “there was no evidence these four individuals were officials or employees of government.”  I replied by quoting the prosecutor from the Quamina hearing, that “the Canadian Standards Association is in fact a public entity” and that “it is an extension of the arm of the government of Canada” and that “all of its employees work for the Government of Canada” and that it was part of “the British government and its subsequent entity of the Government of Canada.”

“So,” I said, “the prosecution is agreeing that CSA is indeed an entity of the Government of Canada.”  And I went further, quoting the prosecutor again;

“The Canadian Standards Association is a public authority,” the CSA leadership are “public officials”, and that “these accused are probably an official as defined by the Criminal Code,” and identifying CSA leaders “as officials with the Government of Canada.”

All of these statements were made by the Crown prosecutor, representing the Government, and all are now part of the public record.

“This sampling is a pretty good indication,” I said, that “the prosecutor has already agreed that CSA is an Agency of the Government of Canada.”

I think I nailed that one.  The government practice of going back and forth on CSA’s legal status, as a Crown Agency one day, then a private company the next, becomes a weaker argument with every use of it.

Next we dealt with a matter of procedure.  You see, a filing of criminal process is made under Sec.504 of the Criminal Code, whereas the Court hearing that results is held under Sec.507 of the Criminal Code.  Under Sec.504, a “filing” assumes the “receipt” of what’s called the Information, being the body of evidence against the accused.  But, despite receipts verifying Court acceptance of the documents, Quamina claimed that he hadn’t received the Information, making the hearing illegitimate. 

The explanation was like this in Court; “A pre-enquete under Sec.507 can only take place under a Sec.504 filing,” I said, “and if I’m reading this correctly Sir, Justice Quamina, in not having actually received the Information, did not actually conduct a 507 under lawful authority because he did not have receipt of the Information upon which it was based.  Secondly Sir, […] the Information was not read by Justice Quamina for fairly obvious reasons; he did not have it.”  I then reminded the Judge that Justice Quamina had tried to read the 500 page Information in about a minute.  “But as the Information contains both argument and evidence for that argument, he really issued his Ruling without having reviewed the evidence for that.”

This was a big deal.  If Quamina had not received the Information, then the hearing was illegitimate; likewise, if Quamina had not reviewed the evidence within the Information, then his conclusion that there was no evidence was baseless. 

I told the current Judge of my efforts to invite Justice Quamina to actually read the evidence, I recounted asking Quamina to open the Information to certain pages therein, and I likewise invited the current Judge to those same pages.  In response, the judge took the Information in his left hand, held it there for a moment, then put it back down again. 

While the Judge wouldn’t open the Information containing the evidence, even when directed to specific pages therein, he maintained that I had not furnished the Court with any evidence to support the allegations.

Again, I invited the Judge to a specific page in the Information, the same page Quamina had also been directed to, which showed a screen capture of CSA’s own website advertising the sales of influence over legislation.  I argued to the Judge that one must “regard that as evidence of selling votes for dollars because, Sir, in black and white it says they were selling votes for dollars.”  The current Judge declined to review the page I was quoting from.

I pointed out that I would be arrested if I behaved similarly.  Surely the law should apply to CSA just as it applies to anyone else.  To me, that seemed reasonable.

As regards Quamina’s claim that no evidence had been furnished, I invited the current Judge to read the RestoreCSA summary of the Quamina hearing.  “If Your Honour has not had occasion to read that article yet,” I said, “I would very strongly encourage you to do so, even if that means a reserved Ruling.”

We then dealt with the prosecutor’s argument that there were no jurisdictional issues to worry about, that “there was no jurisdictional error committed” in Quamina’s decision.

I responded by quoting from Quamina’s Ruling, that; “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.”

I pointed out that “within his Ruling he’s declaring that he doesn’t have jurisdiction to rule on what he is ruling on.  It strikes me as a circular reference Sir, because he is ruling on Sec.46 items while at the same time declaring that he does not have authority or jurisdiction to rule on Sec.46 items.

In this, with Justice Quamina himself arguing that he lacked jurisdiction for the hearing, then surely there were jurisdictional issues to worry about.  Or, perhaps, there were judicial issues related to jurisdiction to worry about.

Well, after all that I was nearing the end of my argumentation.  Before I ceded the floor to the prosecution however, I wanted to give the Judge some context for the appeal of the Quamina Ruling.  It’s so easy for judges to uphold the status quo instead of risking a ruling unpopular with government.  I wanted him to know why we were there and what the stakes were judicially.

In this, I brought up Queen’s Printer law, being the government copyright on legislation, and how we have adhered to that law religiously.  I pointed out that we are being sued by the Federal Government for complying with their own Queen’s Printer law.  I argued that such absurdities make a mockery of law itself.

Next, I advised the Court that there is often a gap of several months between the release of an amendment to legislation and the actual passage of that amendment into law.  I further reminded the Court that CSA had long ago authorized us to reproduce their standards in that gap before governments pass them into laws.  I said, “we have written authorization from CSA to do exactly what they’re suing us for having done.”  In this, “I get the impression, and I mean no offence Sir, but I get the impression that the law in practice doesn’t really matter a great deal, that the law can be stretched and massaged to the benefit of whoever’s got the money to pay for it.”

That brought me to the infamous Manson Ruling. “I’m not here to rubbish anybody in Court,” I said, but “it does transpire that Michael Manson has had a longstanding relationship with CSA.  He was actually employed by them fairly recently [and] he’s continued that relationship after [his appointment to the bench].  So there appears to be some fairly massive… conflicts of interest. […] From an outsiders’ perspective it appears -it appears dirty.  I’m saying this Sir, because it kind of starts to fit a pattern in my limited experience in the Court.  I don’t have any money or power, but CSA does, and so the law seems to be bended for their benefit.”

I was being respectful, not spiteful, in my delivery.  These points are incredibly serious and Judges need to hear how Rulings made casually or flippantly are experienced by those who have to live by them.

“I’m trying to get across Sir, that we tried to follow the law and have done so up until this point for 47 years […] of our company’s history.  We respected the law, yet we’re being destroyed here because the law doesn’t seem to matter.  [Manson also] dealt with our contract.  [Transcripts don’t] record gestures.  And I can inform you, being in the room, [that] he waved his hand like a dismissal thing when it came to our contract, declaring that our contract had no value.  [He dismissed it out of hand] with a wave of his hand.  Sir, that contract had been the basis of our business… for 45 years.  It had been kept in a safety deposit box because it was the core of our business.  What I’m trying to get across here Sir, is that Contract Law doesn’t seem to matter.  How can we depend upon a contract if it can be dismissed with the proverbial snap of the fingers?”

Indeed.  More than merely depending on contract law, how can one comply with law without knowing what it means?

Then I brought up CSA’s duplicate legal actions against us, specifically focussing on their Ontario action.  I pointed out that we had argued in Provincial Court that it is unlawful to sue the same opponent on the same issues multiple times in multiple courts within the same jurisdiction.  Well, I said, “the judge agreed that it really can’t proceed… but he said it could be interesting to continue anyway. […] I get the impression again Sir, that the law doesn’t seem to really matter a great deal.  We’re a small operator, CSA’s enormous, and if you’ve got the money you can get what you want, is the impression I’ve got.”

Are you sensing a theme here?

Then I brought up Quamina’s treatment of inconvenient evidence, the overtness of that evidence, the blunt admissions by CSA contained with that evidence, their open offers of influence for money.  I argued that evidence such as this makes the case open-and-shut. “It seems fairly straightforward,” I said, “but you’ll notice it was ruled that [pay-to-play] is legal conduct by Quamina.  My impression then, is that influence peddling laws aren’t really mattering a great deal.  If you’re noticing a trend here Sir, the impression I get is that the law doesn’t matter.”

However impressive the 500 pages of evidence may be, we could have had assembled even more but were denied by the Federal Government.  “We filed a number of ATIP [Access to Information] requests… with the Federal Government.  I can tell you [that] I received on one occasion thirty pieces of blank paper from the Federal Government.  That’s not an exaggeration Sir, it was completely blank.  There were no headings; I had blank paper.”  Next, I pointed out our ATIP requests for emails and that the Government “advised me that an email search, just email, which I can do on an iPhone by search text in the space of 10, 15 seconds, would take them just short of nine years and cost of a quarter of a million dollars.”  The ATIP law is explicit with regard to citizen’s rights.  Yet, I said, it seems that “the ATIP law doesn’t matter.”

“You know Sir, I can tell you [that] when I first received the filing against me back in 2012, I mean, I can see it as I stand here in my mind’s eye, driving home after receiving this from the postal box and I can honestly tell you that I was irritated by it… but I wasn’t intimidated by it, because I’d never been in Court before and I naturally assumed that if I’ve done nothing wrong [then] I’ve got nothing to fear from Court.”  That was horridly naive, I now know.  As I said to the Judge, in practice the law will not protect you “if you don’t have money or power.”

Then I closed, hammering my points as I went. 

“The law must mean what it says it means.”  That’s obvious to most people, but it’s not as obvious to courts.  “If we say that there is a problem with providing technical information to foreigners, then that must be a problem, and there’s no shortage of evidence.”  Likewise, “if we say you cannot sell influence over legislation, it ought to mean that you cannot sell that influence.  The law must mean what it says.”  Consider speed signs, I said.  “When I see a speed sign that says maximum 60, I assume that means the maximum is 60.  But if we say the law doesn’t matter, it could be 60 or it could be mach 6 -it could be anything. […] If the law can mean anything; then it means nothing.”

That was my close.  It was the best performance that I was capable of, on the most basic of legal concepts out there. The law must mean what it says it means, it must be respected completely and enforced entirely, the law must matter. 

Then there was a recess, and then the Judge returned, saying;

“It won’t be necessary to hear from you, Mr. Sabat [prosecutor].  Mr. Knight, [has not] convinced me that the Justice of the Peace made any error”.

Alas, we’ll have to start over in January.