Wednesday, April 30, 2014

The Canadian Judicial Council: No waiting! Off With their heads! ..... No last minute reprieves!

Mr. Super Self-Rep

Versus


'Stormin' Norman Sabourin The Human Gatekeeping Device

Dear Council Members,

In the invitation dated March 26 you indicated that the special website would remain active until the end of April. As that seems to be a rather short window, I hope that the CJC will remain receptive to any submissions it receives subsequently.

I am choosing not to use that website but to make my submission via this email.

I have had the benefit of some experience with the CJC's complaints process, having filed two complaints - one in 2010 and another in 2012. Both were summarily dismissed, though curiously using different mechanisms. I was very surprised when I received the second letter from Mr. Sabourin in which he cited section 2.2 of the Complaints Procedures and used the word "duty" to describe a very powerful discretion - in fact a judicial discretion.

It took me some time to comprehend what the CJC had done in creating this device. At the time I received the letter I'm not sure if I had any awareness of the sub-delegation issue, but I did have the benefit of having done some reading years ago on statutory drafting and interpretation. Fortuitously, I then found on a British Columbia government website a copy of an article that had been written by a lawyer employed by Justice Canada and published in 2007. It would appear that the intended audience was the public.

A brief discussion of the topics of sub-delegation, duties, and discretionary powers begins on page three. That the article was intended for the general public was confirmed for me when I discovered the legal Latin term it neglects to mention: delegatus non potest delegare. Having found that term I was able to do some further reading on the subject, which led to the conclusion that the CJC went beyond its mandate when it created this very powerful mechanism and handed it to the Executive Director. My assertion is that it is ultra vires The Judges Act and I would not believe a claim that the Council did not understand that at the time it was created.

In due course I was able to find a sufficient record in the documents on the CJC's website to explain when and how this section 2.2 discretion was created.

The 2001-2002 annual report includes the final extant copy of what had been until then a single set of bylaws. The 2002-2003 annual report includes copies of the rewritten bylaws in two distinct sets, one now called the Complaints Procedures and including for the first time the section 2.2 that remains in place today. In my view it is clear that sections 2.1 and 2.2 were drafted in bad faith, with the intention of deceiving the public. It is this language to which the Executive Director was referring in his letter to me when he used the word "duty."

The CJC wants the public to believe that the act of determining that a complaint is "clearly irrational or an obvious abuse of the complaints process" and then on that basis refusing to forward the complaint to the Council is an administrative duty when it is quite obviously a judicial discretion. Some insight into why the Council chose to do this at this time can be found in the 2002 report, The Way Forward, and in particular what it has to say about the role of the Executive Director. I note that the then Executive Director, Jeannie Thomas, was succeeded by Norman Sabourin at the beginning of 2004.

What the CJC created is what I call a "gatekeeper device", and as crude a one as I have yet found. I also note, for the record, that the initial "screening process" that was the responsibility of a Council member prior to the rewriting of the bylaws remains in place in section 3.5. In practice I would say it is just as problematic, but I am not claiming that it is ultra vires The Judges Act. The CJC should understand that I will be sharing this submission with the public.

Sincerely,

Chris Budgell
Vancouver, British Columbia

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