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.
 |
Follow up Email to Honourable Chief Justice George Strathy, Ontario Court of Appeal |
On
November 1, 2021 an email was sent to Justice George Strathy
detailing in full the breaches by his ACJO Justice Michal Fairburn.
There was no way to misunderstand what the email had said and
everything was supported by official court documentation attached
with the email. Not one word of acknowledgement came from Justice
George Strathy. As the Chief Justice, Honourable Justice George
Strathy was made aware of serious breaches of ethics and law. Justice
Strathy stayed silent. A follow-up email was sent to Justice Strathy
on January 4, 2022, to this date the Chief Justice of Ontario, George
Strathy has remained silent. The rule of law, our Charter of Rights
appear to have little bearing on the Chief Justice.
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!
 |
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.
*************
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
