Wednesday, November 28, 2012

Mr. Googles writes Justice Roadkill .....

Mr. Googles 
Justice Roadkill
Good Day Readers:

Well, Mr. Googles legal researcher extraordinaire is up to it again he's written to Justice RoadKill. By way of background, Justice RoadKill is former Supreme Court of Canada Justice William C. Binnie who wrote the 2008 decision in the defamation case Simpson versus Mair WIC in which he said in part referring to Ms Kari D. Simpson:

"..... But when what they say is highly damaging to a particular individual, can you really say, we're sorry, you are road kill in this debate, but it is an important debate?"

Since then Kari Simpson has blossomed.
She began by founding web-based RoadKill Radio which has recently launched a Print Edition.
Then there's Drive For Justice perhaps best epitomized by the following cartoon showing former Justice Binnie and colleagues hanging on for dear life while desperately trying to balance the scales of justice against an overwhelming preponderance of evidence supporting Kari Simpson. The 2,000 pound bull at the bottom is lead by Chief Justice Beverley McLachlin.
Drive For Justice is a series of 23 online videos, the most recently released a couple days ago, narrated by by former Vancouver Sun reporter Ron Gray replete in a smoking jacket.
And you thought the Douglas Inquiry was fascinating. Wait until you familiarize yourself with Simpson versus Mair &WIC and federally appointed British Columbia Supreme Court Justice Mary Marvyn Konesberg and her role in the case. You will scratch your head wondering about the Canadian Judicial Council's ability to discipline Judges.
If Ms Simpson is able to successfully lobby, and she's one tough lady, for a Parliamentary Inquiry into the conduct of Justice Koenigsberg it has the potential to make the Douglas Inquiry look like a piker. The potential exists to blow the socks/nylons off just about everyone in British Columbia's legal establishment who "touched" this file.
It's no accident around CyberSmokeBlog Kari Simpson is known as Ms Balls of Steel or simply Ms Cojones for short.

Now back to Mr. Googles. Here's an e-mail he sent CyberSmokeBlog the other day.

Sincerely,
Clare L. Pieuk

Dear Mr. Binnie:

I have just learned that you are an ICJ Commissioner (http://www.icj.org/commission/commissioners-from-the-americas/). In that capacity I hope you well be receptive from a Canadian citizen though it is one you will find troubling.

I have also just read an article about you published in the Globe and Mail during April (http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/the-supreme-courts-retired-but-hardly-retiring-ian-binnie/article4099999/) that suggests to me that you will have no difficulty appreciating my perspective.

I am appending an e-mail I sent yesterday to a former President of the Canadian Bar Association and with that two earlier emails the first of which is a submission I made recently to a Law Reform Commission in Australia.

The knowledge I have acquired over some thirteen years of testing the legal system as my own advocate pales compared to what I don't know, but nevertheless I believe the perspective I have developed is an objective and very valuable one.

For example, I would suggest that the impact of the Charter on the Canadian legal regime will prove to be insignificant compared to the impact of the internet on the legal regime globally. A true realization of the rule of law in practice requires that no privileged community stand in the way of access to the laws and legal process, unless of course, that community is able to offer its services without bias to every person whenever they are needed.

If, as I suspect, such universal service is impractical, then the monopoly itself is an impediment to realizing the rule of law.

Sincerely,
Chris Budgell
Vancouver, British Columbia

From: Chris Budgell (cjbudgell@gmail.com)
Date: Sunday, November 25, 2012
Subject: Why the Monopoly is Unconstitutional
To: Barry Gorlick (bgorlick@monkgoodwin.com)

Dear Mr. Gorlick:

Today I received an e-mail that included a link to a National Post article (http://business.financialpost.com/2012/08/14/justice-minister-wont-close-door-on-applicants-for-judicial-appointments/) in which you were mentioned. I commend you for raising that question with the federal Minister of Justice.

I want to share with you my perspective on this issues because I have considerable experience as a self-represented litigant and had long ago concluded that, as such, and facing counsel representing powerful clients including members of the legal establishment, had no real prospect of receiving a fair hearing in any forum.

I am appending two fairly recent emails from me to members of the legal establishment in Canada and to a Law Reform Commission in Australia. From these you will be able to understand the case I am still pursuing.

Additionally, I believe that given the lack of separation between the Bar and the Bench, together with the legal profession's very substantial control of the Executive Branch of every province and the federal government, there is a compelling argument that the statutory monopolies granted to Law Societies are unconstitutional. That is another action I want to pursue.  

I note that you served a term as President of the Canadian Bar Association. After I discovered on the CBA's website the Judges Forum Page, the link to the Vox Judica had been removed. I then found the links to the previous editions and have posted online a complete list of those links

http://enmasse.ca/forums/viewtopic.php?t=13542&start=127.

The Forum declined to provide me with a list of its members. I can accept that because it confirms that the CBA is an Association that represents exclusively the interests of its members, and not, as is often claimed, the public interest.

Sincerely,
Chris Budgell
Vancouver, British Columbia

From: Chris Budgell (cjbudgell@gmail.com)
Date: Wednesday, November 14, 2012
Subject: A Submission to the Law Reform Commission of Western Australia
To: Gordon Turiff (gturriff@stikeman.com)
Cc: Leonard Doust ldoust@mccarthy.ca; Bruce LeRose brucel@tlb.bc.ca; Robert C. Brun rbrun@harrisbrun.comMichelle Fuerst Michelle.Fuerst@scj-csj.ca; Ian Mulgrew imulgrew@vancouversun.com; Kirk Makin kmakin@globeandmail.com

Dear Mr. Turriff:

Yesterday I sent the appended e-mail to LRCWA in response to the invitation on their website and in their discussion paper. I included a comment about the speech you gave in Perth, Australia during  2009. There is, of course, a great deal more I could say about these matters but I note that when I offered you an opportunity to engage in a meaningful dialogue with me, your response was simply that we would have to agree to disagree.

Sincerely,
Chris Budgell

From: Chris Budgell ( cjbudgell@gmail.com)
Date: Tuesday, November 13, 2012
Subject: A Submission to the Law Reform Commission of Western Australia's Invitation Complaints Against Judiciary
To: LRCWA Chair Richard Douglas richard.douglas@francisburt.com.au
Members Alan Sefton a.sefton@sso.wa.gov.au; Member Augusto Zimmerman A.Zimmermann@murdoch.edu.au; LRSWA lrcwa@justice.wa.gov.au
Cc: Gonzalo Guzman, International Bar Association gonzalo.guzman@int-bar.org 

Dear Commission Members:

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

http://www.lrc.justice.wa.gov.au/4_submission.html

which includes an invitation to make submissions.

Though I am not a citizen of Australia but of Canada (currently residing in British Columbia), I note that 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 like to draw your attention to a document publicly accessible on the Law Society of British Columbia's website

http://www.lawsociety.bc.ca/docs/publications/reports/turriff-speech.pdf.

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 British Columbia Chief Justice 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. APOLLOGIA."

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 clienteles 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 includes 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 B.C. Court of Appeal).

All of that, I hope, you will appreciate as background to the point I wish to raise about the CJC's 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 2012) 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

http://www.unchartered.ca/images/users/ssigurdur/
20120803_letter_from_cjc.pdf

The flowchart on the CJC's website

http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_complaintprocedure_en.asp.

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 had 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 Wittmann.

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 (i) 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?

In 2010 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 that 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. Sabourin 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 came from the federal Department of Justice, citing a precedent that says I should have named the DoJ as the respondent rather than the CJC.

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 http://laws-lois.justice.gc.ca/eng/acts/J-1/ 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 manner 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 CJC's procedure the clear evidence of a bad faith agenda.

This, I suggest, is something you want to avoid.  If you want to earn and retain the public's trust then I recommend that you ensure that 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.

Sincerely,
Chris Budgell
Vancouver, British Columbia

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