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Open letter to the Honorable Justin Trudeau, Prime Minister of Canada  

                                                                  Re: CJC File # 14-0393

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".   All politicians must address a crises in the lack of confidence and trust in our most prestigious institution - Canada's Supreme Court.  We are well aware, by looking south, how faith in Justice can drift into another reality, different to  the rest of Canada, undermining our trust.  Our courts also appear to be in defiance of clear mandatory requirements in responding to complaints.

And one thing psychologists know is that tyranny and atrocity thrive on bystanders. Passive, silent, submissive, obedient bystanders, without whom atrocity cannot survive. So if you care about Justice, free press, rule of law and tyranny, don’t be silent. Don’t be complicit. Speak up.   Dr. Lissa Johnson – New Matilda

As citizens, we deserve to have our questions answered.   Governments are charged with obligations to provide us with open, clear, irreproachable Justice.  Justice is our most precious right  At this stage I am astonished by what the Canadian Judicial Council thinks it can get away with.  It appears utterly non compliant with a Statute of the Canadian Parliament to respond to complaints. This defiance eats away at our foundations of trust.  This does not conform to core legal or Canadian values. 

Institutional corrosion begins, I suggest,  whenever judges see themselves, more the tool and the effect of power and privilege, rather than as public servants with a duty  to dispense Justice for all Canadian citizens.  When the projection of power appears more evident than the proper exercise of power.  When the Will to Power; an urge to control everything and everyone, becomes an irresistible Faustian force resulting in serious judicial malpractice creating a pattern of arbitrary decision making – so why does it take so long to stop it?   No institution can be trusted to set their own codes of conduct, instead, all require oversight by our responsible governments. 

Judicial logic, more narcissistic than syllogistic, appears to hold a view of the court’s privilege to determine the facts by cherry picking evidence, to suit their desired outcomes, rather than what can be verified.  In my opinion, a great majority of the claims were obviously falsehoods, which the courts then justified and validated by the selective and intentional misinterpretation of material evidence.

In my distinct perception, both the initial court and an Appeals displayed an infantile quality of invincible naivety that made any real understanding of the Heinrichs family’s so impossible. Both put creed before prudence, myth before science, ill-supported opinion before demonstrable fact.  Both were in deep denial about well established facts and sound evidence clearly presented before them. Both failed as bullshit detectors.   Both appear to harbor a small time political agenda of settling personal scores against our solicitor for leaving his powerful Law firm.

Both had voices so uniform, false agendas so clear, they destroyed our confidence in the impartiality of our legal industry, which is meant to dispense our most precious entitlement; Justice. The Appeals court seems like one of those animals that puffs itself up when predators come around, using illusory might to conceal intrinsic weakness of its command of facts.  Hannah Arendt pairs privilege with obliviousness; "obliviousness is privilege’s form of deprivation"

“The ideal subject of totalitarian rule is not the convinced Nazi or Communist, but people for whom the distinction between fact and fiction – reality of experience – and the distinction between right and wrong, true and false, no longer exist”.

It is my growing perception that the CJC, if not enabling and normalizing poor decision making in our court system, certainly condones it. What’s most frustrating, is to see the Appeals Court, tolerated by the CJC, to repeat false claims without seriously questioning them, particularly given that its primary purpose is to uphold high standards of Judicial probity.  The standards you walk by, are the standards you accept and deserve.

The recent SNL SNAFU illustrates how badly the entire Canadian Justice system needs rebooting. With respect, Judicial oversight appears inadequate and reform of the system urgently needed.  It does not seem that, the system is functioning to cater for individual failures.  Your motives may have been pragmatically worthy, but confirms that politics plays a crucial part in all Judicial systems.  There is a clear distinction between Judicial independence and Judicial accountability.  

Never waste a crisis.  You can redeem your legacy by real judicial reform.  All politicians enhance their reputations and legacies by insisting on Judicial probity and maintaining basic Judicial standards.  

We have repeatedly requested various governments of Canada to enforce a Statutory Law that requires the Canadian Judicial Council (CJC)  to indicate the basis on which a complaint was dismissed or concluded.  It is my understanding that this breach  is a culpable defiance of Parliament - the sovereign will of the peoples of Canada.  The question remains, who does the CJC answer to?  Do we have a fully functioning judicial system that is reliable, responsible, accountable and generating good outcomes for all Canadian citizens?   In my view, it’s almost an understatement to say whether the Justice system is “recklessly irresponsible” in maintaining acceptable community standards in fair and balanced judgments.

When a complaint is made about political machinations, vindictive, small time private score settling, regarding a verdict, short on real narratives but long on tactical persuasive gimmicks, then we feel it our public duty to demand accountability.  When serious concerns are raised about an appeals process that is demonstrably negligent in its duty to verify and validate evidence, then these issues need to be answered.  If a recalcitrant CJC fails to act - to fulfill its mandate, then Parliament has no option but to call in the Chief Justice.

It remains my perception that two courts, in the Heinrichs Hoffman (CJC File # 14-0393)  case were reckless in failing to establish the truth or falsity of the imputations of presented evidence.  Both failed to properly inquire into the facts. Both walked away from well established facts.  In my opinion, both were recklessly irresponsible in reaching conclusions on threadbare oral assertions that simply had no foundations and so did not stack up.  The most elementary or basic requirement of any investigation is to determine and establish the facts through procedural empirical testing.  As Daniel Patrick Moynihan maintained: “Everyone is entitled to his own opinion, but not their own facts.”

The courts appear too disoriented to establish the facts of this case.  Not only did two courts not know enough to make conclusive judgments, - they had no interest in the facts or getting to the truth of the matter. In every instance, the judge unquestioningly preferred the respondent’s airy evidence to solid material evidence.  That, in my view, is professional negligence, needing investigation for possible impeachment.

It is my considered contention that the CJC’s utterly callous display of unwarranted privilege and entitlement,  without even a minimal sense of national responsibility or shame has fostered skewed and unrealistic perceptions of the discretionary roles of Judges in a democratic society.   We must avoid the perception of the Canadian Justice system becoming a legal museum.  It retains a complex system of medieval presumptions and privilege which most of the common law world has abandoned.  These outmoded privileges, guarded jealously, by the Legal fraternity, have no place in any first world democracy. 

The three layers of justice can be compared to the Three Billy Goats Gruff, each level protected by the one above.   This may make us the Troll, protecting the bridge - preventing the courts trampling and stomping on our sense of Justice;  on our rigorously researched and well documented sacred narratives of family and ancestors.  We need to exercise our agency as activists or advocates, because our cause is just.  A responsible government enforces its own statutes.

Remaining constructive, legitimate and respectful, we are open to stand corrected on any errors of fact or perception.

By any view, the manner in which the Heinrichs Hoffman challenge of a Will was conducted at every level was breathtakingly arrogant.  The judgment does not adequately explore the alienation of the twins. There was no explicit judicial recognition of the close relationships between the twins and their older siblings, or the friendliness of the respondent's main witnesses, aspects that should have been considered and carefully weighed.  At least five critical conclusions are seriously flawed.

The brazenness of it processes and unfounded findings were staggeringly indicative of a false sense of authority and power, reflecting a towering contempt for the good citizens of Canada and of our parliamentary laws and representatives. 

There can be no doubt that the CJC is lurching from one self-inflicted crisis to another, The CJC seems to preside over a diminished Judicial system that appears up for tender for entirely intentional political agendas.   Having barely emerged from multiple inept investigations of Lori Douglas, Frank Newbould and Vic Toews, the CJC appears to enjoy exploring the farthest reaches of illogicality undermining every principle of professionalism.  The Vic Toews whitewash is a clear example of the enablers; the CJC obscenely flipping the bird at all Canadians - we do it because we can!  No one can hold us to account!

‏With due respect, for the CJC to discipline any Judge, in any meaningful way, it would have to admit that its own culture and managerial structures were responsible for the legal world's own low public perception.  But it cannot escape its own creation of judicial hauteur and impunity.

If the courts can not be held to conducting fair trials, then the entire structure of democracy becomes a limbeck, a fume, a false dream.  Only if professions view extreme credulity as an asset, do some court decisions make sense.  Courts need to be rooted in facts with a progressive perspective of doing what is best for the broader community.  Anything else is self serving and thus corrupt.

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?  The question that needs to be investigated is how effective is the CJC as a regulatory body of oversight to ensure high standards. Who can do that?  Only Parliament can.  It would of course be better if the initiative came from upright Judges themselves.  It would go a long way to restoring confidence, credibility and trust in our most prestigious institution.  There appears to be a hidden, but powerful, culture of manipulating outcomes for ulterior agendas.   We must all work at holding the powerful to account.  A government that does not enforce the laws of Parliament is not a responsible government.

In 1971, Pierre Trudeau established The Canadian Judicial Council and a Law Reform 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. In my view, it appears guilty of gross maladministration and negligence. The CJC appears to have shown itself to be unwilling or incapable of acting lawfully.  This collapses our confidence in an institution of government that requires an urgent restoration of trust.  We need assurance that the CJC is up to the task of overseeing and maintaining quality standards in restoring our faith in the perception of Justice.

It is better not having self regulating agencies, than having ineffective ones.  Since it has been established, I am not aware of any Judge actually held to account.  it is the sovereign duty of Parliament to oversee the CJC and enforce its statutes.  It is my considered contention that the oversight of Canadian Judges falls disastrously short of public expectations.  Perhaps it is now time to look to Australia which does not have a Bill of Rights nor a body of Judicial oversight, but where Judges are on a much tighter leash by its citizens.

Justin Trudeau has 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.  The CJC appears to have degenerated from a public watch dog to an institutional guard dog, a protection racket to protect wayward judges; a compliant enabler of increasingly lower standards of judgments.  It also appears to openly thumb its nose at its Statutory obligations in an obvious display of lawlessness.

Unfortunately Trudeau enshrines "independence" of the courts at the expense of  "interdependence"  of the three arms of government charged with proper transparency and accountability in the public duty of serving the wider public interest.  The Westminster System assumes limitations of power through checks and balances; through reciprocal oversight.  Now is the time for Judges to check their privileges.  If they refuse to do it, then Parliament must question their competence and fitness for office.

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 by our money and laws.  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 an institutional guard dog; an apologist for judges, simply white-washing any perceived malfeasance. 

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

The solution is simple.  Only 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.

What is increasingly seen as the Ottawa bubble, referring to Canadians’ growing belief that the political system doesn’t work for them but for special interests is the ultimate example of a the CJC trapped inside a mindset, disconnected from reality.  It may be time to clean the Augean Stables, but not by diverting rivers through it, into the Rideau Canal, merely upsetting all the environmentalists.

The recent changes in the role of the Supreme Court, represents a sharp contrast with its historical role. What was once a court cognizant of its subordinate position to the people’s parliament has become one obsessed with its own discretionary prerogatives and privilege.  In light of the growing unease (and disgust) over the abuse of unentitled power by our institutions, it is crucial for Canada’s  soul and continued status as a beacon to the world, that this abuse be curbed.

The gross failings of the CJC, of flouting the law, which appears to rely on the grounds of prosecutorial immunity, raises a fundamental question of supremacy; Parliamentary Statutes or The Supreme Court?  Every failing of the system has dire consequences on our trust.  

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 of due process; 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. Courts which, baldly but boldly, assert known falsehoods, to well informed audiences, do not command respect.

Culpably both courts, including the Appeals Court, failed to display any curiosity for factual evidence or any appetite for accuracy in reflecting reality. This, like most determinations, seems a fantastical disconnect with solid evidence before the court.  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 5 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 any self respecting democracy.  Where are my inherent birth rights?  What is the purpose of having an unenforceable Charter of Rights?  This is a direct affront to open justice, freedom of information and the family’s and community’s right to know what is happening in the courts.

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

The most galling aspect was the manner in which our methodically, rigorously researched and meticulously documented family stories appeared to be consciously, brazenly and 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 inviolable 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?

Institutions are usually more interested in saving face than facing truth. The price of vaunted power is that it cannot admit any weakness — which means, intellectually, that it can never admit any fault, any error, any mistake, no matter how small. Is this why, the CJC refuses to investigate real complaints?

My critical concerns also 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.   Five crucial findings are based on unfounded speculations that are ill-informed and groundless.   Appeals Courts have a duty to validate disputed facts.  It failed to even make a serious attempt.

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.  The Appeals court baldly proclaimed at least five, unfounded conclusions due to its reliance on clearly disputed evidence, it never bothered to test.

Instead of verifying or validating disputed errors of fact, the Appeal court was content with posturing - projecting its bulwark power; by stridently and stolidly compounding these errors of judgment in a vain attempt at establishing known misconceptions as irrefutable fact, by bombast and bluster - simply emphatically restating them. 

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 investigations and answers.

It can be argued that the courts today are once again losing ground as arbiters of Justice as they become untethered from reality and slaves to legal rhetoric and theatrics. Former Australian Justice, Michael Kirby, advocates that ''A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will”.  Kirby, according to  Greg Barnes, “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´.

It is time to revisit Judicial reform, including how Judges are appointed and how they are trained.  What are prerequisite qualifications?  We don’t want a court system filled with Judges who haven’t mastered the skills and knowledge essential to their jobs. Do you?  All Family court Judges should have grounded knowledge of how a variety of family dynamics differ.  All Judges should have well founded awareness of mental disorders and how they can be diagnosed and treated.  The danger is that Judges become perceived as dubious authorities "who assert their knowledge of a subject without having any real understanding of it.”  

Above all, Judges need to be trained in how to access and assess evidence and evaluate sources, being aware of intent and motive.  Due process demands basic standards: conscientious discovery, determination and establishment of facts, above board assessments or evaluations of evidence, sound inferences, balanced, reasonable weightings, supported conclusions.

Further, to avoid the perception of incestuous bias, all Judges should be prepared to move at least two provinces away from where they practiced as a lawyer.  

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.  Basic investigative procedures were lacking.   We could well be forgiven for wondering just how did the Canadian Court System manage to be in such a mire, given the competency bar for arbitration appears to be so low?

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, fails to inspire confidence.  This inaction has violated a reasonable expectation of transparency.

The entire saga is so full of sheer POWER rather than sense, logic or proper procedures.  It seems about their infamous display of "libido dominandi", their insatiable lust for power in settling a small time score.  There appear to be many examples, inconsistent with standard judicial procedure. Its premises are ill-informed or naive; generally both.   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”.

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.

Like Hamlet’s catalogue of the law’s ills: For who would bear the whips and scorns of time, /The oppressor's wrong, the proud man's contumely,/…., the law's delay,/The insolence of office and the spurns/That patient merit of the unworthy takes, 

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, lack of knowledge and inadequacies of procedure, it resorts to towering bluster, bombast and bravado betraying its insecurity, defensiveness and covering up its deficiencies.  In my view this is a complete negation of empirical consideration of evidence.  It belies its professed oath of office.  With consummate skill, it managed to get five facts wrong. The court  didn’t err by chance or inadequate effort; on the contrary every effort was made to get a desired outcome.  It was as close to the responders as lips and teeth.

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?  
We feel our stories have been being pushed around by courts too smug with power, or too frightened of losing it, to critically assess their judicial overreach.

Greg Barnes writes:

“All too often judges are criticised for being pompous and out of touch with the community. While this accusation is grossly unfair, it is understandable.   Of course, if we insist on calling judges Your Honour and using ridiculously quaint expressions such as "If Your Honour pleases" in addressing a court, it's no wonder that the deification of the judiciary is alive and well in Australia today.”

Emma Thompson writing about The Children Act concedes Judges can become somewhat self-important. How could it hardly be otherwise?  it’s very, very difficult to avoid”.  “The system of the law is designed to make Judges feel like a god. First of all, you sit above everyone, you sit in judgment and it’s an immense responsibility.  Then, when people come to you, they are very, very respectful. Backstage, there is a red carpet and only judges and their clerks are allowed to walk on it. Really! If you are treated in that way it’s very difficult not to ingest some of that sense of importance.”

What’s wrong with our systems of power. Although the women I met actually inhabit those systems of power with a great deal more humility and adaptability and emotional intelligence. And a lot of the judges I met, male and female, had a fantastic quality, a kind of breadth of thinking, somehow, because of course they see so much.” Pain, mostly. “A constant liturgy of pain, these people going in and out all day – pain, loss, fury, suffering, particularly of children. “  

This may explain, 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.  Perhaps the courts may need to re-connect with the grounded expectations of the people of Canada.

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 another 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 to tow the line; 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 disfavored views; 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 Judge's 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 was a columnist on the online legal journal Justinian www.justinian.com.au   Evan passed away in 2018.

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.  Its motive appears to be a score settling vendetta against our lawyer, who left his powerful law firm a month before our case.  There are legitimate procedures to negotiate such issues.  Yet Judges 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 remains; is it ineptitude, conscious ill-will or simply a hubristic powerplay?


 [CK1]

Crime fiction, also called thrillers are popular because they represent an escapist moral fantasy.  They posit a world where, like fairy tales, good conquers evil.  If only it were so in the real world.  Evil is punished and the good guys win after pursuing the truth.  This does not happen in most legal systems, committed, merely, to adversarial outcomes th

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