Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian Law. It was established in April 1875 and authorised by the Constitution Act of 1867. On November 25th, 2021 the Supreme Court of Canada committed its greatest aberration of its own previous decisions and work of two of decades.
The Supreme Court of Canada hears appeals from all over Canada, its roster of nine judges is led by the Right Honourable Richard Wagner, Chief Justice of Canada. Although applications for leave to appeal come from all over the country, the SCC only hears approximately 2% of those applying. Such low odds of approval for leave applications leave many Canadians shattered as the Supreme Court of Canada is the last and highest stage to attempt to redress 'judges' errors.
Prior to 1949, the Supreme Court did not constitute the court of last resort, litigants could appeal to the Judicial Committee of the Privy Council in London. Some cases could bypass the Supreme Court and go directly to the Judicial Committee from the provincial courts of appeal.
Criteria at the Supreme Court for the acceptance of a leave application is somewhat daunting. Most appeals are heard by the Court only if leave is first given. Leave to appeal is granted by the Court if, for example, the case involves a question of public importance or if it raises an important issue of law (or an issue of both law and fact) that warrants consideration by the Court. The Court's decision whether to grant leave to appeal is based on its assessment of the public importance of the legal issues raised in the case in question.
The majority of applications for leave to appeal are decided by the Court on the basis of written submissions filed by the parties. The Court considers an average of 800 applications for leave to appeal each year, and only approximately 2% are heard.
Canada's Supreme Court is led by the Chief Justice of Canada, and currently it is his Honourable Justice Richard Wagner who took office in December 2017. Justice Wagner was interviewed by Justice Michal Fairburn, of the Court of Appeal for Ontario on June 8, 2018 at the Advocates Society's annual End of Term dinner. At the informal Q&A by Justice Michal Fairburn, Wagner said that one of his first initiatives after being appointed Chief Justice of Canada in December was to release summaries of legal decisions written in lay people's language, along with full reasons in appeals. “We decided to find a way to communicate better... to allow people to understand decisions,” Wagner told Fairburn. ('New SCC chief justice speaks at Advocates' End of Term dinner by Elizabeth Raymer, Canadian Lawyer, June 8, 2018).
Quoting from the Supreme Court's scc-csc.ca, Role of the Court it states: “The importance of the Court's decisions for Canadian society is well recognised. The Court assures uniformity, consistency and correctness in the articulation, development and interpretation of legal principles throughout the Canadian judicial system.” These are the Court's own words as published on their official site for all to read. The Supreme Court assures us as Canadians “uniformity, consistency and correctness” and this assurance is put in writing, made public and not some hot rhetoric thrown about at a cocktail party. All this uniformity and so forth is assured as a part of the SCC's “articulation, development and interpretation of legal principles throughout the Canadian judicial system.”
So our Supreme Court of Canada assures, or guarantees us that it will articulate, develop and interpret legal principles with uniformity, consistency and correctness throughout the Canadian judicial system but what happens when it can be proven to be absolutely not true? What if the evidence and proof is undeniable, irrefutable and in the form its own documents and record? Who will remedy the situation? Will the Chief Justice of Canada, the Honourable Justice Wagner step forward? Our Supreme Court is the last port of call for justice yet injustice appears to be its captain. If injustice is proven beyond doubt, and assurances of uniformity, consistency and correctness exposed as empty hollow sounds, then should a remedy be immediate? A more alarming question comes forward when one tries to understand where does one turn to get a remedy when the evidence is undeniable? The Chief Justice of Canada, Honourable Justice Richard Wagner would be the natural, logical individual who would, or should investigate, but will he?
Our Supreme Court has led the way to reinterpret legal principles and develop a new set of principles. In cases such as Grant v Torstar and WIC Radio Ltd v Simpson, the law of Defamation was refined and new defence was articulated. Issues of Apprehension of Bias relating to decision makers had been discussed and standards of examination advanced in Weywakum Indian Band v Canada.
One question that has been brought before the Supreme Court is the issue of Adequacy of Reasoning. The importance of this question cannot be overstated. Just imagine presenting your case before a judge and that judge tells you that you are wrong or you did not win, but did not provide any reasons as to why your were wrong. The more serious an issue before the judge the more serious the lack of adequate reasoning becomes.
The Supreme Court in its decision in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, recognises the level of importance of this at paragraph 4; “This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society.”
It has been more than two decades since the Supreme Court has grappled with the issue of procedural fairness as a legal obligation to provide reasons for a decision. In Baker v Canada (Minister for Citizenship and Immigration) 1999, 2 R.C.S. at paragraph 43 L'Heuruex-Dube J. writes: “In my opinion, it is now appropriate to recognise that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong argument demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is statutory right to appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in common law elsewhere. The circumstances at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of a decision to those affected, as with those at issue in Orlowski, Cunningham and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.”
These two quotes from two decisions of the Supreme Court some 20 years apart clearly point to the importance the Court places on issues of reasoning being provided for decisions. At least it seems that way.
The Supreme Court's work on the issue of providing reasons for a decision handed down had continued through over two decades. In another Supreme Court decision, Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Treasury Council) 2011 CSC 62 (2011) 3. R.C.S. 708, Abella J.A. wrote: “In Dunsmuir v New Brunswick 2008 CSC 9 (2008) I.R.C.S. 190 which transformed administrative law, this Court explained that the purpose of the reasons, in cases where it is to be set out, is to establish “the rationale for the decision (as well as) transparency and ... intelligibility of the decision-making process.” (paragraph 47).
Would it be difficult to understand for anyone, an ordinary citizen or someone from the legal profession, as to why reasons are required to be provided with a decision? In case the clarity of the Supreme Court's efforts on this issue are somehow missed, the Court in R v R.E.M. (2008) 3.5 C. R. at paragraph 11 provides three main functions for reasons:
“1. Reasons tell the parties affected by the decisions why the decision was made. As Lord Denning [Lord Denning was a judge who sat on the highest court in the U.K, the House of Lords] remarked on the desirability of giving reasons, “by so doing (the judge) gives proof that he has heard and considered the evidence and arguments that have been addressed before him on each side; and also that he has taken extraneous considerations into account.” The Road to Justice (1955) at paragraph 29.
2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus it has been said that the main object of a judgement, “is not only to do but to seem to do justice,” Lord Macmillan, The Writing of Judgements (1948) 26 Can Bar Rev. 491 at p. 491.
3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same inhibiting appeal courts from making factual determinations from the lifeless transcript of evidence, with the increased risk of factual error.” M. Taggart 'Should Canadian judges be legally required to give reasoned decisions in civil cases' (1983), 33 U.T.L.J. 1 at p.7”.
All these quotations and references to previous cases are important to note. Cases heard, decisions made by the Supreme Court become 'case law' for lower courts to follow, and one would expect for the Supreme Court itself to follow. The consistency, uniformity and correctness assured by this highest court in the country is in fact nothing more than hypocrisy and a myth. All these previous decisions quoted were in fact erased by the Court on November 25, 2021 in their decision for SCC case file #39748, and just as a final sale at Walmart there is no return or exchange.
An attempt has been made to reach out to the Chief Justice of Canada, the Honourable Richard Wagner regarding this issue, but little is expected regardless of the speeches on communication and transparency by Justice Wagner.
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Filing an Application for Leave to Appeal to the Supreme Court of Canada is not one full of confidence, with the success rate only at 2% of all applications. Yet with the Court's record on the issue of Adequate Reasoning we, my daughter and I, felt that our application would have to be heard. Our main ground for the appeal was the absolute lack of reasoning from a decision by the Court of Appeal for Ontario.
Application for Leave to Appeal - Supreme Court of Canada File No. 39748
Justice Michal Fairburn, ACJO of the COA wrote the decision, with Justice Katherine van Rensburg and Justice Grant Huscroft JJ.A signing in agreement. That decision read; “The appellants raise one ground of appeal. They are of the view that the dismissal of their claims involves a reasonable apprehension of bias. Although they correctly articulate the legal test for a reasonable apprehension of bias, in our view, there is no basis to support this very serious legal claim. Moreover, there is no basis to support the suggestion made by the appellants that any counsel on this matter behaved inappropriately.”
All three judges, Fairburn, van Rensburg and Huscroft agreed that this was a “very serious legal claim” that was put before them. Yet their decision defied every concept of logic and stood in arrogant opposition to two decades of work by the Supreme Court. Our application for leave was allocated a file number and confidence grew that the Supreme Court would not, could not allow this to pass without a full appeal to be heard.
The appeal that the COA dismissed without providing any reasoning, without acknowledging the concrete undeniable evidence was based on apprehension of bias. It was based on a motion, in fact five motions, heard by Justice Paul Sweeny of the Superior Court in St. Catharines. Justice Sweeny did not disclose his past position as president of the OBA, (Ontario Bar Association) nor did Justice Sweeny disclose his personal association to counsel Michael Kestenberg. Counsel Michael Kestenberg did not disclose his personal association with Justice Sweeny, nor did counsel Kestenberg disclose his knowledge of Justice Sweeny's position with the OBA. A fair-minded individual, given all the details of the situation may easily see this, in colloquial terms, as a fixed court hearing. Could anyone excuse it as a judge's error? On the other hand could any Canadian believe that such a thing could happen in a Canadian court?
Whatever confidence we may have had with a file number allocated, case laws that we studied and filed with our leave application and trust we had in Canada's Supreme Court, all of it was wiped away. On November 25, 2021 the Supreme Court simply dismissed our leave application. Naturally this was done in secret and we cannot know which of the nine judges chose to make this decision, nor were we given any reasoning.
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Supreme Court of Canada Notice of Dismissal
The Supreme Court itself wrote in Canada (Minister of Citizenship and Immigration) v Vavilov (2019), at paragraph 19; “On this point, we recall the observations of Gibbs J, in Queensland v Commonwealth (1977) 139 C.L.R. 585 (H.C.A) which this Court endorsed in Craig, at para 26. No justice is to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgement as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effort to his own opinions in preference to an earlier decision of the Court.”
This quote from the Supreme Court decision in Vavilov came in 2019, and it was an agreed joint reasoning for judgement, from paragraphs 1 to 197 by Justices; Richard Wagner, Michael Moldaver, Clement Gascon, Suzanne Cote, Russell Brown, Malcolm Rowe, and Sheilah Martin. Two other judges, Justice Rosalie Abella and Justice Andromache Karakatsanis also wrote a joint concurring reasoning spanning paragraphs 198 to 343.
In the concurring reasoning Justices Abella and Karakatsanis dealt with the issues of Stare Decisis, precedents or prior decisions, in greater depth. At paragraph 256; “Apex courts in several jurisdictions outside Canada have similarly stressed the need for caution and compelling justification before departing from precedent. The United States Supreme Court refrains from overruling its past decisions absent a “special justification,” which must be over and above the belief that a prior case was wrongly decided.
Paragraph 257; “Similarly, the House of Lords “require[d] much more than doubts as to the correctness of [a past decision] to justify departing form it.” Then Paragraph 258: “New Zealand's Supreme Court views “caution, often considerable caution” as the “touchstone” of its approach to horizontal stare decisis, and has emphasized that it will not depart from precedent “merely because, if the matter were being decided a fresh, the Court might take a different view.”
Paragraph 259; “Restraint and respect for precedent also guide the High Court of Australia and South Africa's Constitutional Court when applying stare decisis.”
Paragraph 260; “The virtues of horizontal stare decisis are widely recognized. This doctrine “promotes the even handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” (Kimble, at p. 2409, citing Payne v Tennesee, 501 U.S. 808 (1991). This Court has stressed the importance of stare decisis for “[c]ertainty in the law.” Other courts have described stare decisis as a “foundation stone of the rule of law.”
Stare Decisis is a Latin term meaning “to stand by things decided,” and a court doctrine not only in Canada but in the United Kingdom, United States of America, Australia, New Zealand and South Africa. It has been a guide for judges for decades building uniformity in the rule of law and has become a foundation stone of the rule of law. To ignore it is to overturn all the work of the Court and open the flood gates to questioning previous decisions.
Our leave application was dismissed by a panel or maybe a single judge of the Supreme Court and no one will identify the judge or judges. This secret from the highest court in Canada further exposes the hypocrisy of our justice system. Whether it is the current Chief Justice of Canada, Justice Wagner or our past Chief Justice, Justice Beverley McLachlin, rhetoric of transparency appears to be based on matters of convenience. Not only are the decision makers shrouded in a cloak but the decision is camouflaged by the fact that no reason is provided. The decision to dismiss our application for leave to appeal by the judges of the Supreme Court was an affront to the Court doctrine of Star Decisis. Our leave application was based on the question of Adequacy of Reasoning, in fact the complete absence of reason in a decision written by Justice Fairburn, ACJO of the COA. Ample case law, precedent, was filed in the form of a Book of Authorities. Cases such as R v Sheppard, Clifford v The Attorney General of Ontario and Canada (Minister of Citizenship and Immigration) v Vavilov.
Before the COA on appeal was an extremely serious question on the Apprehension of Bias against a judge of the Superior Court in St. Catharines, Justice Paul Sweeny. Our appeal was based on absolute fact and undeniable evidence of the facts of the matter, all were provided with the filing. The decision written by Justice Fairburn did not acknowledge the damning evidence in any form. Of equal importance is that Justice Fairburn completely ignored the issue of Non- Disclosure by both Justice Sweeny and Counsel Michael Kestenberg.
Justice Fairburn in her written decision stated that we made only one ground of appeal – the apprehension of bias. It is hard to understand such an error by a judge who read the Factum, the filed evidence and listened to my oral submission. The issue of non-disclosure was equally as important and was highlighted in the Factum and in the oral submission. As evidence a transcript was filed to ensure no denial was possible. A fully informed and fair-minded individual upon examining all the evidence may come to the conclusion that the deliberate decision made by Justice Sweeny and Counsel Michael Kestenberg of their association, and of Sweeny's past position might be an attempt to remove the impartiality from the court hearing for personal gain. Was the non-disclosure decided on because we are self-represented litigants?
Since Justice Fairburn 'erroneously' stated in her written decision that we raised only one ground of appeal, then can her fourth and final sentence be explained? She wrote; “Moreover, there is no basis to support the suggestion made by the appellants that any counsel on this matter behaved inappropriately.”
We did not make any 'suggestion'. The Oxford Dictionary describes suggestion as “an idea or plan put forward for consideration.” We stated in our Factum and oral submission that Counsel Michael Kestenberg had not disclosed his association with Justice Sweeny nor did Michael Kestenberg as counsel for Rachel Goerz disclose Justice Sweeny's association with the Ontario Bar Association. It was a clear fact not an “idea” supported with evidence in the form of a transcript of the hearing. At the same time neither of the other two counsels disclosed anything, both Kristen Bailey and Scott Crocco remained silent.
The Supreme Court had before them what could be called an open and shut case. It fell within the parameters of all the precedent setting cases the Supreme Court had ruled on. Case law was filed in the form of a Book of Authorities. If the Court's own decisions were not enough than a COA decision Clifford v The Attorney General of Ontario et al. at its opening page states; “Procedural fairness imposed a legal obligation on the Tribunal to give reasons for its decisions. The standard of review of the obligation to give reasons is correctness. The sufficiency of reasons must be assessed functionally. In the context of administrative law, reasons must be sufficient to fulfill the purpose required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review.”
What more did the Court need? Stare Decisis would have expected, even demanded that leave application be approved and such miscarriage of justice remedied. Justices Abella and Karakatsanis had clearly and succinctly put the Court's position on stare decisis publicly. It is the foundation of the Rule of Law. So why did the Court dismiss our application for leave to appeal? Why has the country's chief justice refused to respond as the Honourable Justice Robert Wagner has?
A more alarming and disturbing question, when one examines the facts further our application was dismissed on November 25, 2021 and the Vavilov judgement was rendered on December 19, 2019. That is a little more than 18 months apart. All nine judges of the Supreme Court: Chief Justice Wagner, and Justices Abella, Moldaver, Karakatsanis, Gascon, Cote, Brown, Rowe and Martin agreed jointly on the Vavilov judgement, including the additional reasoning by Justices Abella and Karakatsanis. When the application for leave was dismissed two of the originating justices who signed the Vavilov judgement had resigned. Justice Abella and Justice Gascon were replaced by Justice Nicholas Kasirer and Justice Mahmud Jamal.
Now comes the question, of the nine originating justices seven were left at the time of the dismissal of our leave application. Which of the justices who agreed upon and signed the Vavilov decision and its lengthy reasoning, then some 18 months later overturn that reasoning? Which of the same justices decided to discard “clarity and certainty in the law”? (paragraph 263 from Vavilov).
Aharon Barak described by Princeton Press as, “one of the world's foremost judges and legal theorists,” is a lawyer, former President of the Supreme Court of Israel, (1995-2006) a justice of the Supreme Court of Israel (1978-1995), a professor of law who taught at Yale Law School, Georgetown University Law Centre and the University of Toronto Faculty of Law, published in the Israel Law Review Journal 'Overruling Precedent' (1986). At page 275 he states; “overruling precedent damages the public's conception of the judicial role, and undermines the respect in which the public holds the courts and its faith in them. Precedent should not resemble a ticket valid only for the day of purchase.”
To return to Vavilov again at paragraph 261; “Respect for precedent also safeguards this Court's institutional legitimacy. The precedential value of a judgement of this Court does not expire with the tenure of the particular panel of judges that decided it.” In this case the same judges who provided these words overturned the very words they had provided! In paragraph 263; “The majority's reasons, in our view, disregard the high threshold required to overturn one of this Court's decisions.” What was the threshold reached in dismissing our application for leave and overturning the Court's own precedent developed over years of deliberation?
Precedents were set by the Supreme Court of Canada on the issue of providing adequate reasons for decisions. Which of these past decisions did this panel disagree with? Was it R v R.E.M. Or Dunsmuir v New Brunswick, or was it Newfoundland & Labrador Nurses Union v Newfoundland & Labrador Treasury Council, or maybe Baker v Canada (Minister for Citizenship & Immigration?
Back to Vavilov and these judges' own words in paragraph 266; “Overruling these judgements flouts stare decisis principles, which prohibit courts from overturning past decisions which “simply represent a preferred choice with which the current bench does not agree.” (Couch at para 105). Did the current bench not like who was at the centre of the application for leave to appeal? “The entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance.”
What was the basis for the decision to dismiss? How was the application seen not to fall completely and succinctly into the form of precedents already dealt with by the Court? Who made the decision to dismiss and why is the process for decision making so sensitive? Stare Decisis as a revered court practice had been wiped from existence by this dismissal and hypocrisy put in its place.
Reading these quotes delivered by learned men and women of our judiciary, justices who shape our democratic rule of law and its interpretation, then examining the dismissal of SCC file #39748 and one is left aghast. Justice Rosalie Abella is quoted saying, “The good faith in Canada's judges, the wisdom and intelligence is extraordinary. I don't have a slight hesitation [in] their ability to deliver justice to the Canadian public.” ('Examinations 2022 – Changing a Course Through Challenging Appellate Terrain, Lerners.ca, March 9, 2022).
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There is no way of knowing who wrote the letter but one fact is true, it is bedazzled with empty hollow words that do not answer either of the letters to the Chief Justice of Canada Wagner. Ms. Carbonneau again explains how many applications are received by the Supreme Court and how many are granted. She then states that the court does not reconsider decisions “unless there are exceedingly rare circumstances in the case that warrant consideration by the court.”
The Chief Justice of Canada Richard Wagner was asked how was it possible that he and his judges decided to breach stare decisis with such disregard to their own, very own words. He as the Chief Justice of this country had been given direct evidence of a senior judge who decided to with premeditation to break the law. The response was something that left a logical mind numb with disbelief. Justice Wagner's mouthpiece said, “As for your concerns pertaining to the practices of a judge, the Court is only empowered to consider matters that have arisen on appeal from the decisions of the highest courts of final resort of the provinces.” These matters did arise on appeal from the highest court in Ontario and were committed by the second highest judge in the province!
In the end, one can decide for themselves if this reply was better received or not. Justice Wagner's multitude of public statements on better communication, transparency and accountability are shown for what they really are.
Part One - Self-Represent, Self Destruct
Part Two - The Dark Face of Canada's Justice
Part Three - Judicial Cloak of Protection
Part Five - What is the Measure of a Judge
Part Six - Are there consequences for a Judge's Breach of Law
