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.
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.
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).
Another attempt has been made to
contact the Chief Justice of Canada, Justice Richard Wagner on June
6, 2022. To date of writing the only response has been an automated
acknowledgement of receipt and nothing else, then on July 13th
a letter from the Supreme Court arrived. Mind you it was only on
behalf of Chief Justice Wagner with an opening ... “This is further
to your letters to the Chief Justice of Canada of March 7, 2022 and
June 6, 2022.” This letter was signed by a Chantal Carbonneau a
registrar, not a senior registrar or a deputy but simply a registrar.
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