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Justice and Power

The more authoritarian; the less authority.

“Justice and power must be brought together, so that whatever is just, may be powerful, and whatever is powerful, may be just.”   Blaise Pascal  

Solon, in 7th century  BCE wrestled power from the nobles and bequeathed it to the people through democratas –  the power that originates in every one of us. The best way to be human, is to be ordinary; reject hierarchies and tyranny by putting power into the hands of the people.

Governance entails bureaucrats, but Solon already realized that power corrupts, so officials who thought themselves too high and mighty were cut down by banishment or ostracism. 

In 55 BCE Cicero noted “…the arrogance of officialdom needs to be tempered and controlled,….” 

When the people fear authorities, tyranny rules; when the authorities fear the people, freedom reigns. 

Our social contract relies on Abraham Lincoln's aphorism: The government of the people, by the people and for the people.

All British Commonwealth nations inherited the Westminster system, where Parliament represents the will of the people and all Public servants are sworn to serve the public with Ministers responsible for their performance and the execution of laws.

Canada's  Brian Dickson P.C. acknowledged these guiding principles in an Ontario appeals decision:

"The Supreme Court is not a self-created body with original powers; it is not a benevolent autocrat with full powers to act as it should think fit; the court is an institution organized by the people through their representatives for the purpose of giving to those who apply to it their rights according to law, the law not being made by the Court but laid down for it by authority; the court has no right to give a decision in accord with its own views of equity and good conscience, as distinct from the rules laid down for it. The Court has no right to take power unto itself which is not conferred by the people." Scott v. Scott-Ontario Court of Appeal 1DLR53, 64OLR422

If you believe the above you are a hopeless romantic idealist and as delusional as I am.  The reality is just the opposite as revealed in the current Canadian thinking.  Since the mid 1990's, the Westminster system is no longer operational and the whole belief in democracy become a wild illusion.  Institutions meant to serve us, enslave us.

When Chief Justices change, the culture changes. It may be an unfashionable point that politics matter: that by their actions and words, leaders powerfully shape the culture of institutions they preside over.  Sometimes the difference is stark.

Conrad Black maintains the present Court, “ gave her war cry against the authority of Parliament and the provincial legislatures 14 years ago and no one noticed…. as McLachlin has emasculated the high court of Parliament and led a coup d’etat” (against democracy – the power of the people).

Judges were now emancipated from their previous duty to apply the law as written by the very legislators empowered by the electorate to make laws. Now, whatever the legislators did, judges were enabled and required to interpret the Charter as they wished and to decide if they judged the legislation adequate and acceptable. In doing so, judges should be guided by their own individual views, which would be laundered into objectivity by imagining how those views were best magnified by the Charter to apply to the issues before them. The result was still “the law, eternal, majestic.”

Black speculates whether it is down to the fact “that the spouse of the Judge is a vocational shop steward" that the CJC gives Judges seemingly untrammeled interpretive licence.

I don't always agree with Conrad Black, but in this instance he appears spot on. 

It is worthy of note that Black does not question McLachlin's credibility or integrity in jurispudence, merely the culture that developed under her watch. Her performance is exemplary and unimpeachable. However, though her conciliatory approach to dissenting views and unanimous judgments may appear laudable, they can easily morph into mono-think, a herd mentality and instead of collegiality an impregnable solidarity - a bunker mentality against the barbarians at the gates.

Disclaimer:  What follows is my impression of the difference between Canada's and Australia's governance over the past forty years.  It is a work in progress.  If you find any error of fact or perception, please inform the website @  nebo-lit1@usa.net.  Thank-you.

My main thesis is Hegelian in its pendulum swings between the continuing dialectic of a thesis, its antithesis, and a compromise to a dominant synthesis becoming the new thesis.  Today the pendulum appears to swing from one extreme pole to the other.  Sometimes the owl of Minerva takes flight, sometimes the dogs of Mars, other times the goat of Bacchus rules.  Complacency can lull us into the arms of Morpheus. 

Australia in the 1970's was emerging from the depths of stagnation while Canada enjoyed the status as a beacon of hope in the world.  Today, the situation appears antithetical - reversed.

Public life routinely feature sensations, figures in whom people invest great expectations based on nothing more than a captivation with their radiant personas, like Macbeth, Mugabe, Tony Blair, Aung San Suu Kyi, ....who, promise much but deliver little, proving that suffering for the cause of freedom is no guarantee of wise governance, and that today’s victims are likely to be tomorrow’s persecutors.  

Leaders for whom “personal popularity” matters more than the fate of their own institution or country can become profoundly indifferent to judicial and moral principle. 

Beverley McLachlin's stellar career perhaps most closely mirrors that of Macbeth; early adulation and acclaim, then slowly sinking into an entrenched culture of lofty unaccountability.  There are many highly respected Judges, but under her watch, it became my impression that their authority became challenged and eroded by many questionable "Humpty Dumpty"decisions based on "who is to be master - and that is all!"

If Christie Blatchford’s writings,  (knowledgeable, incisive, authoritative, evidentiary and full of passion) prove anything, it is that social change can’t rely upon supportive governments or shameless but shameful perpetrators.  Journalist's expose corruption but little changes.  The public must give up waiting and force progress upon recalcitrant governments, public servants and the Supreme court.   It takes a concerted effort by all citizens.  If something is wrong, it’s wrong.  We have to call it out for what it is.  We  just have got to go on fighting.  Don’t ever give up.... 

It is my considered contention that the laws of the Canadian Parliament are not being respected or enforced.  Rona Ambrose’s bill to make sexual assault training for Judges mandatory was passed unanimously, but did not go far enough.  They appear to require training in a few other areas as well. A full cross party Parliamentary investigation to determine whether complaints to the CJC are given due and adequate consideration is necessary.  It would go a long way to restore our trust in our most prestigious institution.

The full weight of Parliament could be brought down on the Canadian Judicial Council to corral, bit harness and rein in a culture of routine inaction, inadequate judicial oversight and systematic impunity. It’s been an era of toxic egos ... Too many judges have put themselves and their institution first, and not the common good.  Hubris needs curbing.  Judges must be aware of the limitations of their inordinate discretionary powers.

As Tacitus put it ” misdeeds, once exposed, have no refuge but in audacity”.  

How does the Canadian Judicial Council respond to complaints?

It is a mandatory requirement by statute that the CJC must investigate if there is a reasonable perception that a judge has behaved in a way which constitutes a significant departure from accepted professional standards; and that such behaviour has placed the reputation and credibility of the entire court system at risk of harm.

The writer's personal experience warrants attention as it appears symptomatic of an endemic problem of Judges not ruling on the basis of ascertainable facts.  In a  cringe-worthy case that failed to exhibit basic legal procedures; elementary processes of determining or establishing the facts, displaying an astonishing lack of  awareness of the rules of evidence, family dynamics or any understanding of the diagnosis and prognosis of schizophrenia.

Despite providing the CJC detailed definitive and damaging concerns regarding a perceived perversion of justice in contesting a Will, after some 4 years, the only acknowledgement I received was; 

Private and Confidential correspondence addressed to the Judge concerned. 

Justice Shawn Greenberg

Thank-you very much for your letters concerning complaints made by Mr Charles Klassen.

I enclose for your information a copy of the letter I have today sent to Mr Klassen closing the Council’s file on this matter.

Signed

Yours sincerely,

Norman Sabourin

Executive Director and Senior General Council

That was it!  "No more to build on there".  Like Oliver I wanted more.  Despite many appeals - nothing!  

At least we can't accuse them of being overly transparent or giving away any trade secrets.  Not too much government time or ink was wasted on it.  

The most galling aspect was the manner in which our rigorously researched and meticulously documented family stories appeared to be purposefully misinterpreted or simply ignored to reach foregone or desired conclusions.

Article 12.1 of the CJC's Procedures is clear, explicit and unequivocal:   "The Executive Director must inform the complainant by letter when a matter is dismissed or concluded by the Chairperson, and indicate the basis on which it was dismissed or concluded".   

Is the CJC in contempt of Parliament?  Is it flouting the law of Parliament?  I do feel aggrieved.  I feel as if my inherent birthright as a Canadian citizen and tax payer have been trampled on.  More importantly most of my extended family have lost faith, confidence and trust in Canada's system of justice.

Does the CJC take its publically funded obligation seriously or merely appear to excel in offending, intimidating and dismissing all complaints in an attempt to delegitimise dissent.  Perhaps they could do with training in simple manners.  It could start with being true to its mandatory requirement of response and the proclaimed values of Justice, adhering to its vestigial principles by showing the moral courage necessary to see complaints as opportunities for improvement and to admit failures as a badge of honour.

Instead of upholding proper standards, The Canadian Judicial Council seems to engage in shadow boxing with occasional knock-out blows.

Lori Douglas, Frank Newbould and Michel Girouard have been investigated by the CJC for personal matters that merely had the potential of affecting their performance, while real cases demonstrating declining standards of decision making, causing greater self-inflicted reputational damage to the profession are tacitly condoned.  The first two have resigned leaving us, in my opinion, with the loss of two good judges whose careers were wantonly but needlessly destroyed.

Each displayed human traits, apparently not tolerated by the CJC.  History demonstrates repeatedly, monotonously and depressingly that the last thing we need is dehumanised or inhumane Judges. We need empathetic Judges who share our common humanity.

In the most recent CJC investigation, according to  co-founder of Democracy Watch, Duff Conacher, for Vic Toews,  "To face no penalty at all, or sanction, is a questionable ruling.".  But then foxes investigating the presence of blood in the hen house are hardly likely to implicate one of their own.  

Canadian public servants appear to be taken up with their awesome, bulwark and coercive power to peremptorily and majestically close files. In another case over an application for a new Canadian Passport, Sydney bureaucrats were determined to put every impediment in the way and kept threatening to close my file unless I produced an airline ticket.  Thankfully a responsible immigration Minister, THE HONOURABLE AHMED HUSSEN intervened and the bureaucrats grudgingly complied. 

It didn't used to be that way; in the 1970's Australian governance was at a low with the entire legal system in disrepute, the public servants renown for being rude, impersonal and unaccountable while the Canadian authorities were highly regarded and the Canadian Consulate a pleasure to deal with.  Today, due to quality assurance incentives and key performance indicators, Australian bureaucrats fall over themselves in an effort to assist and court us for favourable reviews while Canadian authorities appear to luxuriate in their new found unchecked power.

Just when does a wave of revelations become a tsunami?  To shift metaphors, it may not be a case of a few bad apples, but an entire orchard blighted with pestilence.  Camus wrote in his great novel, The Plague, “on this earth there are pestilences and there are victims – and as far as possible one must refuse to be on the side of the pestilence.”


What are the tipping points for systemic abuse to be acknowledged and addressed?  The Harvey Weinstein culture of abuse was graciously accepted for at least 80 years.  Pedophilia in the Catholic Church was evident for at least 900 years, yet met with dignified silence until recently.  What triggers reform? 

Credibility and respect for the court is seriously strained by courts overruling jury decisions with arrogated presumptions of solipsistic vanity, as suggested by Justice Karen Simonsen in the Candace Derksen Case.  Most Juries are capable and take their duties seriously.  Since universal education, the general public is much more cluey than in Medieval times. A strong perception of Judicial disdain for the Jury decisions implies superior appraisals by Appeals Judges. These may not reflect reality.

Recently in a similar Australian case, where a jury found the defendant guilty of murder, an appeal court arbitrarily downgraded it to one of manslaughter demonstrating a towering condescension towards ordinary Australians.  Australians were so enraged, thousands marched on the street and the High court reinstated the original Jury decision.  It is also uplifting when other Judicial systems display a capacity and willingness to self - correct as the recent South African court did in the Oscar Pestorios case.

Australia does not have a Bill of Rights or an official watchdog on Judges, neither does it have a Supreme Court,  yet its officials appear to be held to a greater standard of accountability, by its people, than Canadian Judges.  

It is worthy noting that Australia's not having a Supreme Court, is tacit acknowledgement that the highest court in the land is the court of public opinion through its representatives in Parliament.  

Since 1971, the establishment of the CJC, few Canadian Judges have been found culpable, yet  in the mid 1980's, several Australian Judges had to front Parliamentary inquiries. At least two went to jail. This appeared to focus Judicial attention on getting the facts right.  Is there an implication of higher Canadian rectitude or probity?

According to Australia's Robert French, “The judicial process is the ultimate determinant of interpretation of disputes”, giving the Courts the power of the final say.  It is imperative that the confidence, faith and trust in this process be justified.  High handed decision making ultimately diminishes our faith, confidence and trust in officialdom, undermining the very credibility, authority and legitimacy of the entire system by a denial of mutual respect.

A rare insight from a politician:
“I want to… add my voice to those who see danger in judges who have forgotten the traditional and safe role of the judiciary in our society, and in legal developments which are wholly out of step with community needs and expectations.The danger from straying judges is very real, as ultimately their activities are undemocratic, and undermine the pivotal place of the law in civilised society. They invite disrespect of the law and its expositors, the judges themselves, and thereby contribute to a lessening of the authority of law as the final and accepted final arbiter of process, constitutionalism and conflict—the very characteristics that distinguish our society from the banana republics of the Zimbabwe variety.”Hon Hassell, B., AM, “The State of the Law’, 2004, Dinner Address, Proceedings of the Sixteenth Conference of The Samuel Griffith Society, Perth.  

The greatest danger is that some Judges no longer see themselves as arbiters between right and wrong, but as mere adjudicators of debating skills, or critics of theatrical rhetoric between skilled highly paid advocates. Judges should not be easy prey for eristic arguments, dark legal arts or the finery of the law.  Whatever you do you should do well; but it is even more important to do some good.

Richard Ackland claims that Michael Kirby is celebrated as one of Australia's most distinguished Justices, with tributes, including honorary degrees from 24 Australian and overseas universities, and has nine medals and honours ranging from a Companion of the Order of Australia to National Trust Australian Living Treasure.  But for most of his career he was a solitary and isolated member of the High Court. 

Greg Barns writes: "Michael Kirby has always unambiguously stood for the proposition that justice is about more than technical interpretation and slavish following of precedent -- and is in fact about ensuring humanity is enhanced."  

These founding principles underpin the primary purpose of the court system noted by all original architects including, Solon, King Richard I, Edward III, Richard III and Napoleon.  They are there to tame wild justice that was tearing apart early civilizations and prevent families feuding.

Today I could mention several Australian Judges held in high esteem. Many are widely acclaimed for their noble missions.   Peter McClellan, The chief commissioner of Institutional Child Abuse is highly revered.  Many others are celebrated for their significant contributions to improving Society; William Dean, Mary  Gaudry... Judges instrumental in conducting fearless corruption inquiries include: The Honourable Justices: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood.  These have gone a long way to restoring Australian's faith and confidence in a vital institution.

I would be happy to learn about corresponding Canadian Justices.  We need to acknowledge and celebrate the good ones and shame the bad ones.

Justice is achieved when citizens live in an environment in which all citizens are treated equally and accorded dignity and mutual respect. Power, in a liberal democracy is controlled by efforts made to define and limit power, often by means of checks and balances.

Mutual respect, equality and equivalency (one = one) are the hallmarks of an authentic democratic society.  


Justice is achieved when citizens live in an environment in which all citizens are treated equally and accorded dignity and mutual respect.

Power, in a liberal democracy is controlled by efforts made to define and limit power, often by means of checks and balances.

The word ‘democracy’ has its origins in the Greek language. It combines two shorter words: ‘demos’ meaning whole citizen and ‘kratos’ meaning power or rule of the people. Mutual respect, equality and equivalency (one = one) are the hallmarks of an authentic democratic society.  


Justice is achieved when citizens live in an environment in which all citizens are treated equally and accorded dignity and mutual respect.

Power, in a liberal democracy is controlled by efforts made to define and limit power, often by means of checks and balances.



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