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Open letter to Justin Trudeau

I am reminded of the song "I fought the law and the law won".  However, I have no option but to continue to fight what appears a losing battle simply- to give sleep to our nights,

Who judges Judges?   When faced with a choice between guarding the prestige of their institution, and the interests of the wider Canadian public, where does the Canadian Judicial Council stand?  This is a question that needs to be investigated.  Who can do that?  Only Parliament can.  It would of course be better if the initiative came from upright Judges themselves.  It goes a long way to restoring confidence, credibility and trust in our most prestigious institution.

This raises serious questions about how out of touch with reality the courts are. How deeply and broadly and limitlessly their vanity clouds their assessments and judgments. How dangerous that is for all of us.  Legitimate concerns demand serious answers.

I don't know why, but I am still profoundly disturbed by a case contesting the Ogilvie Will  - not by itself but by the failure of the Canadian Judicial System to correct itself.  I feel it is symptomatic of declining standards of what we should expect from a former prestigious institution.

For six years I have been waiting for a sensible response from Judges, Politicians of all persuasions or the Canadian Judicial Council to no avail.  The CJC’s utterly callous display of unwarranted privilege and entitlement and without even a minimal sense of national responsibility or shame.  

The entire saga is so full of sheer POWER rather than sense, logic or proper procedures. Like Humpty Dumpty asserts to Alice: in matters of interpretation “the meaning of a word is simply determined by “who is to be master -, that is all” , following not Descartes’ “I think, therefore I am,” but Darwin’s  “survival of the fittest. Where might is right”.

If Canada has acquired a bullying culture, the reason may found in the courts openly posturing as the bully they wish to be perceived.  If Canada becomes more racist, it could be that the courts fail the first nation people.  If Canadians become more apathetic and dispirited, it could be because the courts and politicians fail to respond to our genuine concerns.

In 1971, Pierre Trudeau established The Canadian Judicial Council and a Law Commission to raise the standard of decision making and keep the Judiciary connected to community expectations.  For some twenty years they appeared to function, but now seem dysfunctional.

You, Justin Trudeau, too, have indicated plans to reform the Judicial system. Stephen Harper, who saved millions by abolishing Pierre Trudeau’s 1971 Law Reform Commission, was rewarded by having his legislation rejected by an increasing hubristic and activist Supreme Court of Canada.  While we may have applauded it at the time, this set a dangerous precedence since neither had a clear mandate. As Nietzsche noted, “the greatest risk of fighting monsters, is becoming a monster”.  Has the CJC become that monster?  Judicial defiance appears to have trickled down the hallowed hierarchies and lower ranking Judges fail to adjudicate in the spirit of statutes legislated by the people’s representatives.

We don't need new bodies to reform the system.  We have the structures in place to make the system work.  All we need is the political will and spine for Parliamentarians to enforce their own laws and coerce the Judicial System to do the job they are being paid for.  The CJC is mandated to deal with complaints in a transparent manner in order to ensure high standards of quality assurance.  It appears to have turned itself from a public watch dog, into a self interested institutional guard dog, simply white-washing any perceived malfeance. 

What is the point of mandating laws if future ineffective Parliamentarians fail to enforce them?

The solution is simple.  The full weight of Parliament - the representatives of the people - can be used to rein in the excesses of Judicial prerogatives. If the CJC appears unwilling or incapable of regulating rogue judges, then the Chief Justice should be called in to answer for its failures.

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 my opinion the Hoffman Heinrichs contest of a Will is an extraordinary 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, extended family dynamics or any understanding of the diagnosis and prognosis of schizophrenia. 

Culpably it failed to display any curiosity for factual evidence or any appetite for accuracy in reflecting reality.  Its apparent deliberately distorted assertions truly invited scorn, derision and contempt by those who knew the facts.

Throughout  2014, I provided the Canadian Judicial Council  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!  Despite many appeals - nothing!   This is unacceptable and should not be tolerated by a self respecting democracy.  Where are my inherent birth rights?

It does appear as if the CJC has shrouded itself in an obscure veil of Kafkaesque secrecy, attempting to instil a sense of Ozymandian impotence and despair in Canadian citizens.

The most galling aspect was the manner in which our methodically, rigorously researched and meticulously documented family stories appeared to be purposefully misinterpreted or simply ignored to reach foregone or desired conclusions. Its bizarre findings cavalierly trampled on the recorded sacred memories of our honored forbear's enduring, devoted duty of care.

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 laws of the Canadian people?  I do feel aggrieved.  I feel as if my inherent birthright as a Canadian citizen and tax payer is being deliberately dismissed, treated with callous indifference and violated.  More importantly, most of my extended family have lost faith, confidence and trust in Canada's system of justice.  Does that not matter?

My further concerns center on THE COURT OF APPEAL OF MANITOBA,  Mr.Justices: Alan D. MacInnes, Marc M. Monnin, William J. Burnett.  Judgement delivered July 2, 2013  -  Applicant: Rudy Hoffman v Respondent: Warren Heinrichs.

A complaint was submitted to the Canadian Judicial Council in 2014 (File: 14-0393).  The CJC, in defiance of a Statutory  Act of the Canadian Parliament, has never meaningfully responded to my serious concerns about perceptions of a perversion of Justice. 

By sovereign birthright, I am entitled to a respectful, credible and substantive response.  Yet our politicians, of all persuasions appear to lack the collective will to enforce their own laws.

In my opinion, both the original and the Appeal Court are in blatant Jurisdictional Error.   

36 out of 46 surviving descendants challenged a Will due to perceived suspicious circumstances.  The first court case failed us crucially, by ignoring vital evidence. Our subsequent appeal questioned the original Judgment's grasp of the facts citing palpable and overriding inferential error as well as findings against substantive and ascertainable evidence.  Nobody bothered to check or consider the facts.  It appears they were prejudiced against the facts and reality.

The Appeals Court failed to undertake "reasonable efforts" to ensure that factual material was "supportable as being accurate".  More Judge Judy, than Sherlock Holmes. 

Instead of testing, verifying, validating disputed errors of fact, the Appeal court was content with posturing; merely stridently and stolidly compounding these errors in a vain attempt at establishing known misconceptions as irrefutable fact, by simply emphatically restating them.  This appears a stark abuse of privilege - an unforgivable abuse of vaunted power.  It also seems like consummate denialism.

Instances of perception management are further reinforced by the vehement tone and tenor of the Appeal Court.  Voicing its own threatened fears and inadequacies of procedure, it resorts to towering bluster, bombast and bravado betraying its insecurity, defensiveness and covering up its lack of factual foundations.  In my view this is a complete negation of empirical consideration of evidence.  It belies its professed oath of office.  

I remain astonished by extraordinary methods – a gross neglect of proper procedures.  How is this possible?  Utterly crucial evidence remains shockingly unexamined; vital disputations not tested. "It appears like a kangaroo court with a rubber stamp."

Where is the judicial oversight?

This is totally unacceptable in any mature democracy.  It should not be tolerated by our elected responsible representatives.  It needs to be re-examined.  Yet all we get is silence and inaction.

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 to protect their own?  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 purpose of upholding exacting Judicial standards 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 all 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 promising 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. 

Cases:

Lori Douglass

Pierre Trudeau proclaimed that the nation had no business in people's bedrooms.  This case should likely never have been pursued to the detriment of a promising and capable Judge.  Perhaps the titillation of salacious sexual politics was too seducing for the CJC to resist.

The following excerpt from the CJC website, responding testily to a complainant of its investigation to determine if the Judge can continue to hold office with the necessary public confidence to discharge the duties of that office, tends to reinforce my impressions of an apologist or even a protectionist society for Judges.

CJC Response to complaint regarding Honourable Lori Douglas of Manitoba’s Queen’s Bench on December 10, 2014

The partial transcript:

Ms Esther Mendelsohn

JD Candidate Osgoode Hall Law School

Dear Ms Mendelsohn,

………

I have been particularly troubled by your suggestion that Independent Counsel, Ms Suzanne Côté (now Justice Côté), acted in a “callous and gratuitous manner.” The mandate of Independent Cousel is to marshal all evidence, whether favourable or unfavourable to the judge. Independent Counsel who served in the Douglas Inquiry is someone with a strong reputation for outstanding legal skills. She discharged her duty, as she was required to do, in accordance with Council’s by-laws and policies. There is no basis to suggest she acted other than in the proper fulfilment of that mandate.

The Inquiry has stayed its proceedings on the basis that it would not be in the public interest to proceed, given the judge’s decision to retire in May 2015, and given related Court actions would not be completed by then. Questions about the facts to be considered by the Inquiry will therefore remain unresolved. For that reason, no conclusions should be drawn about the allegations.

Yours sincerely, [Original signed by]

Norman Sabourin

Executive Director and Senior General Counsel

First, I congratulate the Canadian Judicial Council for posting this letter and other correspondence on its site.  It represents refreshing openness. 

However I do question some of the unwarranted presumptions and self-serving arguments.

What particularly disturbs me is its dismissive, high-handed and slap down tone, its total lack of professional detachment.  I derive a distinct holistic impression of a bunkered or siege mentality from the CJC.  It appears the CJC is more concerned about closing rank; protecting its members pecuniary interests, than inspiring public confidence and trust in the integrity of the judicial process. 

Further its towering superior tone is meant to warn a  prospective member of the legal fraternity that dissent will not be tolerated.

As in my case of complaints, where it offensively ignores key issues, the CJC acts imperiously without due respect for facts or the supplicants.

Canada appears to be squandering its social capital by a decline, decay or an erosion of social values, evidenced by a lack of respect for those who do not have advantage.  Factors include: an imperious attitude, rudeness, diminished personal respect and dignity, lack of empathy and verbal, psychological or emotional abuse –in a word - bullying.  Cordial manners are about empathy, self-respect and mutual respect. They are not about dominance and submission.  They are not adversarial, degrading or demeaning.  Civility is a sign of confidence, self - assertion and strength – not weakness.  Theodore Roosevelt put it as “Politeness is a sign of dignity, not subservience” while Goethe maintained “manners are the mirror of your portrait”.  The final word goes to Albert Einstein, “Let every man be respected as an individual and no man idolised”.

What relevance is his “particularly troubled” by any suggestion of slight?   The CJC officials do not have the luxury of taking personal umbrage and should leave egos outside the door.  They are there to judge in an impersonal disinterested manner on the basis of public perception; not appear threatened for their own privileged position or the judges under their charge.

There is a need for a more of a servant-mentality amongst court officials. This requires a levelling out of hierarchies. This does not mean getting rid of hierarchies - these have their proper functions - but rather ensuring hierarchies are focused on mutual respect, collaboration and equivalency; not power and status.

The argument that because someone has “a strong reputation for outstanding legal skills”  does not make one infallible or beyond legitimate robust questioning of accountability.  Has the Canadian Judicial Council transformed itself from a public watch dog into a self serving institutional guard dog?

The fact that the judge’s decision to resign provides a basis for the appeasing public interest is, in my opinion, utterly misconceived.   Has the CJC ever terminated a Judges"career? It merely provides a convenient celebratory excuse for the CJC to avoid its statutory responsibility.  Many of us would be more than happy to enjoy this privilege with full entitlements when we err. 

Judging by the internet, the Canadian Justice system appears to be in dire straits.  Based in Sydney Australia and trawling the internet for resources dealing with Justice, I keep coming across sites revealing disturbing accounts of grievances regarding Canadian Justice and the state of lawyers (A study show lawyer’s suicide rate is about 6 times higher than the general population [2]). Are there systemic failures?  If so, who is responsible for discovering the cause and looking for solutions to the problem?  As I keep reminding my siblings, when I left Canada in the early seventies, governance and regulatory processes were almost perfect; what happened? 

Any immune, unaccountable or indispensable institution, like the Catholic Church or the Legal Judicial Institution, that doesn’t criticise itself, that doesn’t update itself, that doesn’t seek to improve itself - becomes a sick body.

The more monolithic bureaucracies become, the more they are reinforced by their cloistered remoteness; their schizoid disconnection from grounded reality. Incestuous institutions like the Catholic Church or the legal judicial fraternity can become moribund due to calcification or entrenchment.  A self - serving careerist mind set develops that they exist for themselves rather than for the greater good of the public.  Some believe that their institution exists to provide them with a job; not the other way around. Subject to groupthink, they become reluctant to hear opposing views or to work with anyone perceived to be on the outside. Some live high up in an ivory tower; in a bubble world doubling as an echo chamber.  Only a seismic paradigm shift – vigilante action or race riots - can change encultured mind sets.  What we need is not just better individuals; also better systems to make up for individual flaws.

The Catholic Church is not in trouble because a small percentage of officials abused young children, but because responsible officials failed to act.  Good priests become smeared by the actions of a few.

As Evan Whitton [3] points out: “Judges are not trained, on the facile but bizarre assumption that a competent lawyer will become a good judge!  Some Judges find the transformation from an adversarial mindset to Judicious disinterestedness and detachment, a seismic paradigm shift too difficult to negotiate.”

We all make mistakes from time to time, an individual or institution's credibility is enhanced, not diminished, by acknowledging the error, correcting it and apologising for the offence caused. 

Here is a rare insight from a former politician [4 ]:

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.”

Many percipient social commentators claim we are drowning in a sea of distrust. The question is, can public faith, confidence and trust be restored?  I know it can.  During the 1980’s in Australia, several fearless Judges took on established power bases, bringing down governments, at great personal cost to their own careers.[5] We desperately need someone to restore our absolute trust in Canada’s supposedly most prestigious public institution.

Noel Turnbull writes: It has been axiomatic that the first principle of issues management is always masterly inaction. (Sweep it under the carpet) Think before you act, seriously consider doing nothing because it might aggravate the situation, and remember that it is probably not as big an issue as you think it is.  

We no longer enjoy responsible government; rather suffer a culture of inaction.

Governments deflect responsibility and scrutiny by outsourcing into a nebulous mix of systems and separate decision-makers, leaving no one person or agency ultimately responsible. And the court system has long since become a Kafkaesque mix of arrogated presumptions of solipsistic vanity, mystical understanding, uncanny reasoning, evidenced by rhetorical theatre, institutionalised paranoia and irrational bureaucracy in which any semblance of logic is not merely dismissed but might even be considered folly.

This outsourcing of guardianship enables governments and politicians in particular to operate with complete plausible deniability. Ministers, who used to be considered responsible for what happened in their portfolios, can place their hands on their hearts and swear they know nothing, that they have sought advice but they too are powerless. They need to heed the advice of  Cicero 55 BC: 

“…the arrogance of officialdom needs to be tempered and controlled,” 

Meantime, lawyers, activists, gadflies... hell, let's call them what we are, troublemakers -- get ignored without anyone with any authority having to front up and accept responsibility. It's all part of the constant process of delegitimising dissent.  

Democracy is not a gift from above, rather a hard fought demand by the people.  Thousands of people died fighting for it in the English Civil War from 1640 – 1660, the French Revolution, 1789 – 1848, and various other struggles for freedom.  It is fragile and vulnerable.  Democracy can only be retained by constant vigilance and publically spirited endeavor. 

The greatest danger to democracy is a feeling of powerlessness or abject servility caused by fear, resulting in disconnection or apathy; a frozen form of coiled violence that can be thawed by any tipping point as Canadians see simply by looking in a southerly direction. 

To adapt the words of Benjamin Franklin, “if we fear the courts, we have tyranny; if the courts fear us, we have a robust, dynamic democracy”.

In the light of the Canadian Judicial Council’s failure to adequately investigate this and another complaint,  I call on the Canadian Government to establish an independent parliamentary inquiry to fully scrutinise how Justice is being perceived in Canada and whether we are getting our money’s worth. It is my impression that a first world country endures a third world justice system.

A full parliamentary inquiry into the CJC should have a majority of non-legal minds.  The legal world does not have a monopoly on evaluative and interpretive skills and as Einstein informs us, “we cannot expect to solve problems with the same kind of thinking that caused the problems”.

Respectfully yours,

Charles Klassen

References:

1  https://www.cjc ccm.gc.ca/cmslib/general/Douglas_Docs/CJC%20letter%20to%20Ms%20Mendelsohn%202014-12-10.pdf

2  The following site http://www.shouldyoubealawyer.com/TermsOfService.htm has some interesting observations

Depression:  Lawyers are more likely to suffer serious depression, have more car crashes or suicides than the general population.  A 1997 study compared the suicide incidence for Canadian lawyers with the general population using death and insurance records. The suicide rate among general population was 10 to 14 deaths per 100,000 people. Among attorneys it was 69.3 suicides per 100,000 people, about 6 times higher.  Suicide was the 3rd highest cause of death for Canadian lawyers, claiming 10.8% of lawyer deaths, just behind cancer and heart attacks.

Recently in Australia, the NSW Director of Public Prosecutions, in response to the suicides of prominent lawyers, circulated a memo to all Crown prosecutors and solicitors warning them to stop bullying one another or face disciplinary action. 

3  Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies.

Evan Whitton has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for "courage and innovation" in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au

4 Hon Hassell, B., AM, “The State of the Law’, 2004, Dinner Address, Proceedings of the Sixteenth Conference of The Samuel Griffith Society, Perth. 

5  A number of Senior Judges have stood out as outstanding paragons of virtue either in exemplary dissenting decisions, speaking out or as the heads of Investigating Bodies. In most cases these have been at great personal cost to their individual and professional lives. Many comment on what an isolating experience it becomes.

Those instrumental in conducting fearless corruption inquiries include: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, and many others. At least two cabinet ministers have been jailed as a result of these official inquiries; Rex Jackson in NSW for accepting bribes in an early release of prisoners and Police commissioner Terry Lewis in Queensland.

Writing twenty five years later, Tony Fitzgerald, credited with bringing down a Queensland Government, reflects on the hazards of speaking out:

The pressure on Mr Fitzgerald and his team at the inquiry was relentless. "We couldn't stop, it was 24/7," he said. Asked about the impact at home, he agreed there had been "consequences", but even now he won't go into detail about what his family went through, explaining that they had all moved on from that fraught time.

"Can you rewrite history? No you can't," Mr Fitzgerald said. "In a sense, I think that anyone who does an unpopular task puts themselves at risk, whether it be physical or professional risk or critical risk. That's a consequence.

It's always out there."

Mr Fitzgerald said ultimately he realised that it would be impossible for him to stay or work in Brisbane. In 1998, he and his wife moved to Sydney, where he became a judge of the appeals division of the NSW Supreme Court.

He is scathing of the legal bar in Brisbane, of which he was once a prominent member, branding it fearful of change. "Up there in the legal profession I'm a square peg in a round hole," he said. "There . . . are always character assassins, there are always the envious. Up there . . . to me, conformity is an absolute way of life."

JAMIE WALKER, THE AUSTRALIAN SEPTEMBER 21, 2013

6 Noel Turnbull, adjunct professor of media and communications at RMIT University

Many countries have looked to Canada as their guiding beacon in terms of social justice:   

"The meaning of the Rule of Law is very simple and well known to us all: the law must stand supreme as the source and fabric of all social organization. It is the law which provides the framework for relations among individuals as well as between the individual and the state: the law delineates the scope of each person's liberties and responsibilities and defines the powers and duties of government. All obligations imposed on the individual and all restrictions upon his or her liberty must be justified by law. This is the most fundamental guarantee of equality and freedom we have achieved as a society. The Rule of Law protects individuals from arbitrary and capricious treatment at the hands of government and fosters confidence in each of us that the power of government to interfere with our lives is finite and accountable. It allows us to live together in freedom and harmony and provides the common ground for social progress and prosperity."

The Right Honourable Brian Dickson P.C. (from a speech to the Canadian Bar Association)

He also quotes this guiding principle from 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

It is my distinct impression that the court effectively conspired to pervert the course of justice by consciously and wilfully ignoring hard evidence inconvenient with its preconceived mindset.  Yet they appear immune to prosecution. In Canada it appears there is one rule of law for our court officials and another for the rest of us.

Accuracy and credibility are important values that enhance the reputations, image and authority of self- respecting institutions.  Responsible Institutions prize their reputations because they underpin their legitimacy. With due respect, any reputational damage is entirely self-inflicted; they appear capable of disgracing themseves with some atrocious decision making.  The question is whether it is ineptitude, conscious ill-will or simply a hubristic powerplay.


 [CK1]


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