Wednesday, November 14, 2012

"Mr. Googles" goes to Australia to straighten them out!

"Ring! Ring! Ring! Hello, CyberSmokeBlog speaking ..... Oh, Ms McLachlin what a pleasant surprise! What you read Mr. Googles' article? ..... Ottawa we have a problem ....."
"Mr. Googles"
Dear Commission Members:

I recently discovered your discussion paper untitled, "Complaints Against Judiciary"

which includes an invitation to make submissions.

Though I am not a citizen of Australia (currently residing in British Columbia), I note your paper includes (on pages 69 to 72 of 107) a summary of the Canadian Judicial Council's complaints process, including an accompanying flowchart, I have personal experience as a complainant with the CJC's process, and I believe you will benefit from hearing about what is missing from this summary and from the flowchart.

As a complainant my perspective may be seen as a biased one, however, I can also claim that it is an informed one. I will suggest that the nature of the missing information, as well as, the fact it is missing reveals a highly consequential bias on the part of the CJC which, to put it bluntly, does not want the public to know how it really operates. By appreciating this point, perhaps you will be encouraged to avoid the same bias and lack of transparency in any process you design.

First as background, I would also like to draw your attention to a document publicly accessible on the Law Society of B.C.'s website:

This is principally the text of a speech given in Perth in 2009 by Gordon Turriff who was then the LSBC's President. The speech is preceded by a statement by the chief Justice of British Columbia. Lance Finch, and by an introductory note by Mr. Turriff. At the end of that note he states that in his view Australians do not enjoy the rule of law, though the way he had put it to his audience in Perth is demonstrated under his heading, "B. APPOLLOGIA."

I could offer a very thorough critique of this speech but I want to make special note of one important difference between the justice regimes in our respective countries that it does not mention. There is no "cab rank rule" or any similar principle in Canada. In fact, lawyers are encouraged to cultivate select clientelles and as a result entire classes of potential clients are routinely denied representation.

Those persons thus denied representation who then decide to proceed as self-represented litigants (SRL's) face another daunting reality of which few Canadians are cognizant, which is that there is no separation whatsoever between the bar and the bench (e.g. the membership of the Canadian Bar Association has a great many judges). Nor, in my view, is there any effective separation between the judicial and executive branches of government (a subject that warrants a separate and comprehensive exposition).

So, when Mr. Turriff says, as he did in his speech, "In Canada we believe very strongly that we can't be partners in lawyer regulation with an entity [the Crown] we are bound to challenge on behalf of clients to whom we owe a duty of undivided loyalty," that is cold comfort to someone like me who has been compelled repeatedly to proceed without counsel against politically powerful adversaries including the Attorney General of B.C. (a public office held at the time I challenged him in court, by a  former Justice of the British Columbia Court of Appeal. (emphasis ours)

All of that I hope you will appreciate as background to the point I wish to raise about the CJC complaints process.

The flowchart is missing a highly consequential step, which I learned about this year when my second complaint to the CJC (I had made one in 2010) was summarily dismissed, not by a member of the Council, but by an employee Executive Director and Senior General Counsel Norman Sabourin. I have posted the letter he sent to me online:

The flowchart on the CJC website:

is the same one that appears in your discussion paper. I too was not aware that Mr. Sabourin had the authority he claims until I received his letter for though my first complaint has been answered by a letter from him, in that instance he claimed merely to be relaying to me the decision of Judicial Conduct Committee Vice Chair Neil Wittman (emphasis ours):

Section 3.5 of the CJC's complaints process, that is footnoted in your paper, says that the Chairperson [of the Judicial Complaints Committee] may "close the file if he or she is of the view that the complaint is (1) trivial, vexatious, made for an improper purpose, manifestly without substance, or does not warrant further consideration." One would suppose that in the hands of a principled adjudicator this would suffice to screen out all but the clearly meritorious complaints.

Why then is this powerful screening process preceded by another one in section 2.2? The Chairperson won't need to decide whether or not to close a file if there is no file to close, and that decision is made by the Executive Director. What is the difference in meaning between the terms "clearly irrational" and "an obvious abuse of the complaints process" used in section 2.2 and the terms used in section 3.5? (Emphasis ours)

In 2012 I did not know (and the CJC did not inform me) that a decision of the CJC can be challenged by judicial review in Canada's Federal Court. I learned fairly recently and have filed a petition to challenge this latest decision. In doing so I asked for some information about the use of the rule that Mr. Sabouin has cited specifically  when was it first put in place and how many times has it been used to dismiss complaints. The CJC has refused to answer those questions. Also unexpected was that the response I received come from the Department of Justice citing a precedent that says I should have named the DoJ as the Respondent rather than the CJC. (emphasis ours)

This, in my view, reinforces my argument that the "independence of the judiciary" is an ideal that is not reflected by reality in Canada.

In examining the relevant sections - "Part II" - of the Judges Act ( I can find nothing to suggest that Parliament contemplated an initial screening, or what I'm calling a "gatekeeper function" to be conducted by someone who is not a Council member. The CJC (or the DoJ) may claim that there is nothing in The Act that it specifically contravenes, however, I don't think that will prove to be an argument sufficient to save it if, as I believe, it contravenes a principle such as the duty of procedural fairness.

And that still leaves the question of why the CJC makes no note of this rule in the material you included in your paper and on which the public ought to be able to rely. Clearly, this was not an inadvertent omission.

I will add that long before my pursuit of justice reached this stage I had come to expect this sort of behaviour from every tribunal or court I might approach. The word "crisis" has been in common use now for many years in Canada to describe the state of the justice system. I do not, of course, presume that Canada is necessarily unique in that respect.

One very specific lesson, however, that I hope will ultimately be drawn from the case I have assembled is that the legal establishment has made a strategic mistake of the greatest consequence by creating and relying upon various "gatekeeper" devices in a matter that I say offends the rule of law. I have had repeated experience with these gatekeeper devices beginning with a complaint before a provincial tribunal that I made more than a decade ago. That is why I am able to recognize in the redundancy between the two sections of the CCJ's procedure the clear evidence of a bad faith agenda. (emphasis ours)

This I suggest is something you want to avoid. If you want to earn and retain the public trust then I recommend that you ensure the use of anything that looks like a gatekeeper device is strictly policed so that no complainant will conclude what I have concluded about the CJC's agenda. As you may be aware, the public reputation of that agency is already in serious peril as a result of the processes triggered by a complaint filed in July 2010.

An unprecedented inquiry, that finally commenced earlier this year, has been interrupted, while multiple applications for judicial review are being heard by the Federal Court. It is my view that the Canadian judiciary have brought this trouble upon themselves by refusing to develop a concept of due process accessible to all. (Emphasis ours)

Chris Budgell
Vancouver, British Columbia

Postscript: Who and what is the Law Reform Commission of Western Australia

Law Reform Commission of Western Australia
Level 3, BGC Centre
28 The Esplanade
Perth, Western Australia 6000
Telephone: (011) + (61) + (8) 9321-4833
Facsimile: (011) + (61) + (8) 9321-5833
Mr. Richard Douglas (Chair)

Richard Douglas is a barrister at Francis Bart Chamber. He obtained a Bachelor of Arts and a Bachelor of Laws from the Australian National University. Prior to joining the bar in Western Australia, he practiced as a solicitor at Blake Swawon in Perth and as an attorney with Simpson Thacher & Bartlett in New York.
Mr. Alan Sefton

Alan Sefton joined the Commission in August of 2011. He is an Advisor employed in the State Solicitor's Office, where he has worked in various capacities since 1992. He provides advice and acts as counsel for the State government and its agencies in relation to a range of matters, principally in the areas of administrative law, land compensation, discrimination law, tax law and commercial litigation. He is a graduate the Australian National University (Bachelor Commerce, LLB Honours).
Dr. Augusto Zimmermann

Dr. Augusto Zimmermann LLB, LLM (PUC - Rio), PhD (Monash University is a Senior Lecturer and Associate Dean for Research and Postgraduate Studies Director at Murdoch University School of Law. He is the Founder and President of the Western Australian Legal Theory Association, a Vice-President of the Australian Society of Legal Philosophy and Editor of the Western Australian Jurist, a law journal published by Murdoch Law School. Dr. Zimmermann was awarded the 2012 Vice-Chancellor's Award for Excellence in Research and Faculty Research Awards in 2012 and 2011.

The Commission currently has three part-time members appointed by the Governor of Western Australia, although the Commission may consist of up to five members (two full-time and three part-time). Of the part-time members, one is to be a private legal practitioner with not less than eight years' experience; one is to be a person engaged in the teaching of law at a university in the State; and one must be an Officer of the State Solicitors Office.

Stephen Harper, Prime Minister of Canada

Beverley McLachlin
Chief Justice, Supreme Court of Canada

Rob Nicholson
Federal Minister of Justice

Norman Sabourin
Executive Director/Senior General Counsel

Law Reform Commission of Western Australia


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