Ontario's highest court is the Court of Appeal of Ontario, established in 1867. As the Court of Appeal it is the last chance for justice, granted one can appeal to the Supreme Court of Canada but only some 2% of applications are heard. The Chief Justice of Ontario, Honourable George R. Strathy is assisted by the Associate Chief Justice, the Honourable Michal Fairburn in running the COA with some 3o judges on its roster. What happens when questions of bias, even obstruction of justice arise? Who will investigate a judge who broke the law willingly? Justice Peter D. Lauwers, Justice David M. Paciocco, and Justice Julie Thorburn, are a part of the COA roster and each face serious questions on how they administer the rule of law.
The Court of Appeal for Ontario was established as the Appellate Court for Ontario, it is the last place to seek justice. Issues from around Ontario where possible errors of interpretation of law, even worse, transgressions, are brought to the COA for its judges to determine the fate of people's lives. Not one of the judges who sit on the bench for the Court of Appeal does so without an ego. Let's be frank, they are human beings and as human beings are fallible. Human fallibility in some degree is understandable but personal bias, protection of its own ilk or worse, intentional breach of law is reprehensible. Yet what can be done even when undeniable evidence is brought forward that a judge has crossed the line?
Yes, there is the Supreme Court of Canada, headed by the Chief Justice of Canada, the Honourable Richard Wagner, but out of all the applications for leave to appeal from around the whole of Canada only approximately two percent are heard. Then there is the Canadian Judicial Council, chaired by none other than the Chief Justice of Canada, the Honourable Richard Wagner, and its record far more discouraging than the SCC.
On the Canadian Judicial Council's website there are a number of statements explaining or trying to clarify its role in the justice system. One of these statements refers to “Upholding the highest ethical standards.” In this rhetoric it claims, “Judges are the link between Canadians and their justice system. To maintain this link of trust, judges must adopt and uphold the highest standards of personal and professional conduct. Staying informed, inclusive and free of prejudice is an ongoing process, that's why we have provided them with guidelines to help them better to understand the challenges faced by all and to make the right decisions.” At least this sounds comforting.
Further down the line of the list of goals of the CJC is “fostering public confidence through increased transparency.” Our whole court system claims to be built on transparency and impartiality so these words are not new, still they come from the Canadian Judicial Council and should stand for something. The CJC states, “Transparency is an essential ingredient to ensure public confidence in our legal system. By creating links between the justice system, judges and Canadians, we are proud of the transparency of the communications, processes and operation that are implemented. We also provide all judges with the guidelines, tools and the best practices to help guide their work.”
The Canadian Judicial Council has 41 members, composed of chief justices and associate chief justices, and is chaired by Justice Richard Wagner. Sitting on the Council is Justice George Strathy of the Court of Appeal for Ontario and Associate Chief Justice Michal Fairburn. This fact alone destroys any confidence in the CJC's claims of transparency or impartiality, then add the fact that in its 50 year history the CJC has only ordered 11 public inquiries and only twice recommended that a judge be removed from the bench.
Law professor Alice Wooley of the University of Calgary Faculty of Law has criticised the CJC for not clearly articulating what constitutes misconduct worthy of sanctions. The CJC itself said that misconduct should not guarantee the judge's removal, and the gravity of the misconduct must be determined. Is there any surprise in the attitude of the CJC, after all it is composed only of judges? In our over zealous clambering for judicial independence we have installed our judges as royalty with no possibility of consequence for their breaches of law. Maybe it is time for all the supporters of establishing a Canadian Republic to stop worrying about Liz in London and look at our own backyard and the true meaning of equality and justice.
It is difficult for even the most fair-minded individual to have high confidence in a council such as the Canadian Judicial Council comprised of only Judges investigating Judges. In addition to the potential obstacle of a lack of confidence there is also the question as to which judge in this situation should have to answer a formal complaint to the CJC. The most egregious breach of the Charter of Rights, the Courts of Justice Act and more appears to be by ACJO Michal Fairburn. Yet it all started with a motion being heard at the Superior Court of Justice in St. Catharines, Ontario and Justice Paul Sweeny presiding. Justice Sweeny decided to not disclose his past position as President of the Ontario Bar Association and his very public and overzealous defense of lawyers. Yet he was hearing a motion to strike a claim of malicious prosecution against a lawyer.
In addition to his past position at the OBA, Justice Paul Sweeny did not disclose his personal knowledge of counsel Michael Kestenberg of Kestenberg, Lipkus, Siegal LLP. Both Justice Sweeny and counsel Michael Kestenberg served on the boards of Fanconi Canada. This led to an appeal filed at the Court of Appeal on the grounds of Apprehension of Bias. Justice Michal Fairburn led the three panel of judges who heard the appeal. Fairburn dismissed the appeal and considering how serious the issue was, how much evidence was provided to prove the bias she provided no reasoning at all. Justice Fairburn basically said, you didn't prove bias, go away.
Naturally an application for leave to appeal was filed with the Supreme Court of Canada, the grounds for the appeal were: Adequacy of Reasoning and Non-Disclosure. In addition to reasoning Justice Sweeny had a personal connection to Justice Fairburn as well. One might think enough is enough but things only became more alarming. A motion to stay costs was filed until the Supreme Court was to complete their process. Any stay motion would require that the application for leave would be assessed. Justice Fairburn decided she would hear the stay motion. Justice Fairburn decided she would assess the application to appeal a decision she herself wrote. This was in breach of court law dating back to the seventeenth century, in breach of the Charter of Rights and Courts of Justice Act.
The actions taken by Justice Fairburn should raise serious alarms in judicial circles. Our Chief Justice of Canada, Justice Wagner speaks of transparency and connectivity of the judiciary. Former Chief Justice of Canada Justice Beverley McLachlin in February 2011, at the Faculty of Law's Access to Civil Justice for Middle Income Canadians Colloquium, said “Access to justice is an issue dear to my heart. It is a fundamental right, not an accessory.” Believing that these words actually mean something, anything at all, the whole set of circumstances were sent to the Ontario Chief Justice, Honourable George Strathy.
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Follow up Email to Honourable Chief Justice George Strathy, Ontario Court of Appeal |
In a search for justice a Panel Motion had been filed as an appeal against the decision by Justice Fairburn. Granted there was a great deal of skepticism as the panel of three judges were to be COA judges and Fairburn their ACJO. Still there was a semblance of belief that the rule of law has to be far more important than personal connections and associations or this mantra of I'll protect you simply because you wear a robe as well. Also there was a tiny degree of hope that someone like the CJO Honourable George Strathy had been informed of the situation then surely the rule of law will win out in the end.
According to the Canadian Superior Courts Judges Association (cscja.ca) describing 'The Role of the Judge' it states; “Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all judges are impartial decision-makers in the pursuit of justice. We have what is known as an adversarial system of justice – legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented. The judge, however, remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.” Later the CSCJA states, “The judge is the 'trier of facts' deciding whether the evidence is credible and which witnesses are telling the truth.”
This Association attempts to educate the public and what “they are entitled to expect from judges in Canadian Courts and covers principles fundamental to our Justice System; concepts such as Judicial Independence and the Role of Law.” One of the Association's teaching tools is a video titled 'Judges in Canada – What they do and how they do it.' According to the Association, “the video identifies the citizen's legal entitlement to a fair hearing according to the evidence and the law regardless of age, race, religion, sexual orientation, or cultural origin.”
The CSCJA has a heading on their web page titled, 'How Judges are Held Accountable and by Whom'. Here they claim; “Despite their independence, judges are accountable for their actions and decisions. Hearings, trials and rulings are open to public scrutiny, so justice is seen to be done and citizens and the media can discuss and criticize the work of the courts. A judge's ruling can be appealed to a higher court and, if an error has been made, a new trial will be ordered or the decision will be corrected.”
Once again words that sound good, even comforting and reassuring but reality raises a very different set of circumstances. When the CSCJA say “upon open to public scrutiny” how does that apply to the Court of Appeal of Ontario? Public scrutiny would require the provision of transcripts of all hearings yet the COA does not provide transcripts, not even to litigants. An individual can ask for, and pay a fee for an audio of the hearing but there is a catch. As a recipient of the recording you have to sign an agreement that you will not allow any part of the recording to be made public or duplicated, and a breach of that agreement can result in a prison sentence. Is that how public scrutiny works in the highest court in Ontario?
Also the Canadian Superior Courts Judges Association claim that “citizens and media can discuss and criticize the work of the courts.” How true is this? Is the truth true only part of the time, or is truth only considered to be truth all the time? Now there is a question for a panel of judges to mull over, and the reason for this jesting is this; an article in the National Post by J. Brean dated August 16, 2019 titled 'Ruling tossed after Ontario judge signed off on it without hearing the evidence.' In the article it states: “On Wednesday, the Post asked to see the court's file, but was not given access until Thursday, by which time the file has been purged of several documents, including anything else that might explain what had gone wrong or why.”
Is this what the CSCJA mean by public scrutiny or media discussion? Among all the scrutiny and discussion the CSCJA also say that “a judge's ruling can be appealed to a higher court and if an error has been made the decision will be corrected.” Then will the CSCJA call Justice Paul Sweeny intentionally not disclosing vital facts to self-represented litigants just an error? Those self-represented litigants appealed to a higher court, the Court of Appeal where Justice Fairburn, who has a personal history with Justice Sweeny, dismissed the appeal without providing any reasoning.
Reality versus placating empty words and the reality is truly alarming. The Court of Appeal in its procedures provides for an appeal to be filed to a Panel Motion in order to strike a decision by a single judge. After Justice Fairburn's obscenity in deciding to hear the stay motion there was no choice but to hang on to a belief that justice in Canada indeed can provide impartiality. That all these words by all these judges do in actuality mean something. Our appeal motion was heard by a panel of three judges on December 8, 2021. Justice Lauwers was the lead or president of the panel with Justice Paciocco and Justice Thorburn assisting.
Justice Peter Lauwers was appointed to the Court of Appeal for Ontario on December 13, 2012 after serving on the Superior Court since July 2008. Before being appointed Justice Lauwers was a partner at Miller Thomson LLP where he practised in all areas on civil litigation, constitutional law, human rights, and more. He has lectured in his areas of expertise to the Canadian Bar Association, Ontario Bar Association, the Centre for Cultural Renewal, McGill University, and as a judge has spoken to the Ontario Human Rights Commission, the National Judicial Institute, among others.
Justice David Paciocco was appointed to the Court of Appeal for Ontario on April 7, 2017. Justice Paciocco has authored a number of books on criminal law and is considered one of Canada's foremost experts on the law of evidence. His book 'Getting Away with Murder: The Canadian Criminal Justice System' discusses the Canadian criminal justice system intended for the public rather than for those who delve into inside theories. In 2010 a Toronto Star investigation surrounding Andre Marin revealed that since becoming Ombudsman he had apparently awarded Paciocco over $250,000 in untendered government contracts. Both Marin and Paciocco complained to the Ontario Press Council that the implications were unfounded, and the Council upheld the complaint.
Justice Julie Thorburn was appointed to the Ontario Court of Appeal September 2, 2019. She has been a sessional lecturer on Civil Procedure Workshops at Osgoode Hall Law School and served on a number of charitable organisations as director. She co-authored The Law of Confidential Business Information and was contributing author of Digital Democracy, Policy and Politics in the Wired World.
After hearing all the rhetoric of judges like Chief Justice Wagner, former Chief Justice Beverley McLachlin, or the Judicial Council and its guidelines for judges, one might have some confidence in our courts. In addition to these lofty sentiments we have the Charter of Rights and court law such as the Courts of Justice Act, surely we are in a secure frame of mind, armed with such promise.
The Panel hearing was December 8, 2021 and Justices Lauwers, Paciocco and Thorburn showed what Canadian justice really meant. A transcript cannot be obtained and the audio recording carries serious threat on how it can be used, so what is provided here is a form of 'transcript' from notes and corrections from the recording. There may be some 'ahs' missing but there is a lack of desire to peer at the world through COA enforced bars, so they stay missing.
As court hearings stand the Panel Motion came across more like a modern version of Abbott and Costello's 'Who's on First'. All three judges before sitting down had to have read the filed material. Our Factum was clear in its coverage of the very serious issue at hand. Filed Authorities also had to be reviewed by all three judges, and two of the Authorities were Bow Street Metropolitan Stipendiary Magistrate v Pinochet and the COA's own Benedict v Ontario stood out as most relevant. An oral submission would simply expand on the important points of the Factum which these judges 'supposedly' had reviewed.
That being said, one stands before these judges thinking they know why you are there, what you need of them and now one only needs to make the final oral appeal. As I began my oral submission Justice Lauwers interrupts with; “Mr. Davidoff there is a problem with your case and I just wanted you to address that if you would.” Justice Lauwers then says, “Your motion was before Justice Fairburn to get a stay of costs order.”
Under no circumstances was that true, not in the literal nor fundamental sense. I had filed a motion to stay costs pending our leave to appeal application and Justice Fairburn chose to hear that motion in breach of the Courts of Justice Act, the Charter of Rights and of court law. Justice Fairburn chose to break the law, as an ACJO she has to know court law. Then Lauwers says that our motion to stay costs till the leave application was decided, and that was correct. He then said that the Supreme Court had dismissed our leave application, and that was correct. Yet Justice Lauwers decided to omit crucial facts.
Justice Lauwers omitted the fact that Justice Fairburn heard the motion in August 2021. He omitted to state that the Supreme Court decision was in late November 2021. Why did Justice Lauwers omit those facts? He also said that our appeal panel motion was so they decided on the “issue in front of us whether her decision was right or not.” The issue in front of the panel was that Justice Fairburn had illegally heard the motion. Our factum was clear on that and if Justice Lauwers would allow me to make my oral submission I would have emphasised that fact further.
So Justice Lauwers finishes by saying, “explain to us why are we hear today.” I begin again admitting the Supreme Court dismissed the leave application, and then raise the Courts of Justice Act s.132. Justice Lauwers interrupts again saying this time; “I am sorry I am not understanding what that has to do with what's in front of us, your appeal is for her refusing a stay, you have to pay the cost orders.” I tried to respond that I am not here to argue costs when Justice Lauwers interrupts again with, “So what are we doing here.” I respond with the fact that the motion shouldn't have been heard, and before I could continue Justice Lauwers interrupts again.
This time Lauwers says, “Your argument is she shouldn't of heard the motion and the costs of that motion you shouldn't have to pay. It's all about the costs before Justice Fairburn, is that it?” I tried to stay calm and responded, “It's not the judge who wrote the decision under appeal, she shouldn't be assessing that appeal which is part of the courts of justice.” My grammar was somewhat shaken but it didn't matter anyhow because Justice Lauwers interrupted again with, “So the only thing at issue here is, I just want to pin it down is that you don't want to have to pay the costs of the motion before Justice Fairburn, she shouldn't of heard the motion is that what it comes down to.”
I tried to respond with, “She shouldn't have heard the motion, that's correct.” Justice Lauwers interrupts again, “But the only consequence of that is that are the costs, have I got that right.” Again I try and respond, “Because of the fact,” and Lauwers again interrupts saying, “Anything else, Mr. Kestenberg, I assume Miss Bailey.” That was it for me and Michael Kestenberg, counsel for lawyer Rachel Goerz begins.
Now Kestenberg has been a lawyer for quite a few years passing the bar in 1976. He is the founding partner of his law firm Kestenberg Siegal Lipkus LLP and is called the “lawyers lawyer.” So Michael Kestenberg has been 'lawyering' (Mater's word from Pixar's movie, Cars) for over 40 years, it may be expected he would know or be aware of court law that's been in place since the seventeenth century? That being said Michael Kestenberg states, “She applied the correct principles, she did it. This motion is to tilt at windmills. The appeal was denied, there was no impropriety by Justice Fairburn to hear the motion notwithstanding that she was on the panel that dismissed the substantive appeal. Unless you have any question.”
It would appear from this statement by Michael Kestenberg that the Courts of Justice Act does not seem relevant, especially section 132. In section 132 the 'principle' is clear that a judge who is party to the decision under appeal cannot assess that appeal. Yet it was the actions of Michael Kestenberg and Justice Paul Sweeny that set all of this in motion. As Kestenberg finished Justice Lauwers asked, “Miss Bailey any submissions?” It is very important to highlight her reply, remember Kristen Bailey assistant counsel for the Paderewski Society Home (Niagara) was only an observer, she had not filed any material for the motion. Bailey answered, “No submissions your honour.” Lauwers then gave me the right to reply.
I knew I could not be interrupted making a reply to Kestenberg's submissions. So I tried to bring as much forward as I could. I raised the Courts of Justice Act s.132, the Charter of Rights s.11(d), I referenced two of the most relevant authorities on this issue, but I was wrong. Justice Paciocco interrupted. Justice Paciocco sat as a mute until now, he spoke to Michael Kestenberg not to me, even though I was making my reply.
Justice Paciocco said, “Excuse me Mr. Kestenberg there are areas of law, so you were seeking the principle you state is an important one given the nature is a decision she was asked to make it was not clear that she's wrong, today it doesn't matter if she was wrong or right.” This is a judge saying that it doesn't matter “if she was wrong or right.” A judge who wrote a book titled 'Getting Away with Murder: The Canadian Criminal Justice System,' and he truly helped with the murder of law and justice. Paciocco continued, “There's no point in us hearing it, we don't hear appeals that don't matter. And although a decision can be wrong it can become unimportant because of later events, it doesn't matter that an error occurred that's what Mr. Kestenberg said, do you understand?”
Justice Paciocco said, “a decision can be wrong, it can become unimportant because of later events.” So if an individual is convicted of murder and sentenced to life, but years later proof is brought forward he was innocent do we say it's become unimportant. Can we leave that individual to remain in jail? How does a judge say “it doesn't matter that an error occurred.” These words came from a judge, that the law doesn't matter. A judge, we are supposed to trust and respect, one who is paid several hundred thousand dollars a year, to this judge the law didn't matter.
All three judges left and upon their return Justice Lauwers dismissed the appeal and asked for submissions for costs. I made mine, then Michael Kestenberg and then a shock, Kristen Bailey. It is important to remember that Bailey had not made any submissions, she had not filed any materials for this appeal motion, nor did she oppose the appeal motion. Bailey had passed the bar only in 2017, and is an associate at Agro Zaffiro LLP. So, when cost submissions by Kestenberg and myself were made, Justice Lauwers asked Kristen Bailey for costs even though he was aware that Bailey was only an observer. Then Kristen Bailey asked for $200! She was an observer when Justice Fairburn heard the stay motion and did not speak or put her hand out. Does this 'associate' know what an observer is? How did she think she had the right to be awarded costs for not being part of the appeal? Now many questions arise. Was Kristen Bailey or Vanda Santini, (her superior) aware of Kestenberg's connection to Justice Sweeny? How much has Kristen Bailey or Vanda Santini been aware of the whole situation from the beginning? For a licensed lawyer who is an observer to an action before a court and not a part of the action to ask for costs is simply astounding!
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| Decision of the Panel Motion Hearing, heard by Justice Lauwers, Justice Paciocco, Justice Thorburn |
As members of society we are led to believe that judges should be respected without question. There is often great debate in democratic government to ensure the complete independence of the judiciary. Impartiality of judges is paramount to real justice, justice in its appearance and justice in its practice. Yet these are hollow ideals, our Prime Minister Justin Trudeau proved that if an apparent need arises then pressure on a Federal Minister of Justice was acceptable. Case after case is on record appealing the bias of presiding judges. When these cases are heard and bias identified it is simply referred to as error made by a judge.
In our rush to ensure independence and impartiality we as a society have allowed the actors who strut the stage of justice to do so as peacocks. They are free of any consequence regardless of any possible transgressions. Change is needed and true equality brought to what we are led to believe is justice.
I have waited for several months for an Order of the decision by Justices Lauwers, Paciocco and Thorburn to be provided. As of date of publishing no order has been delivered. An application for Leave to Appeal to the Supreme Court has been filed.
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Part 1 - Self Represent, Self Destruct
Part 2 - The Dark Face of Canada's Justice
Part 4 - Supreme Court of Canada commits highest aberration of its own law
Part 5 - What is a Measure of a Judge
Part 6 - Are there consequences for a Judge's Breach of Law
