Monday, February 29, 2016

CyberSmokeBlog to "Cowboy" John McCallum ..... "Nuts! Nuts! Nuts!"

Dear Cowboy:

With all due respect you and your sunny way, middle class Liberals are nuts! Here's why.

You are now on the public recording as saying Canada could receive a total of 35,000 to 50,000 Syrian refugees by the end of 2016. Lets look at the facts:

1. While Canada is viewed as a very generous nation, the 25,000 immigrants who've arrived to date are already stretching the system to the limit;

2. Both public and private agencies who help these people are already suggesting their resources are either maxed out or on the brink;

3. When will there be follow up to ascertain how the initial 25,000 people are fairing?

4. All this is happening at a time when the Canadian economy to say the least is very fragile with falling revenues and rising debt;

5. Is there a hidden, ulterior motive - each adult Syrian refugee represents a vote for the Liberals. At this rate how many new Canadian votes will the Grits be able to count by the time the next federal election rolls around?

Clare L. Pieuk
Liberals' revised goal met as 25,000th Syrian refugee arrives in Canada

Almost 100 flights have touched down since the first plane load arrived in Toronto on December 10, and the government hopes to resettle as many as 50,000 by the end of the year

By Michelle Zillo
Monday, March 1, 2016
Riad Al-Balkhi poses for a photo with his wife Nadia Alswedan, 44 at their Mississauga home which they have settled into with their five children. The family arrived in December. (Michelle Siu/The Globe and Mail)

The image of a three-year-old Syrian boy, Alan Kurdi, face down, dead on a Turkish beach, shocked the world last September. It hit especially close to home for Canadians, as the boy’s aunt, Tima Kurdi, who lives in Port Coquitlam, B.C., pleaded with Canada to open its doors to the desperate refugees.
The heartbreaking story came at a time when Canadians were preparing to elect a new federal government, bringing out the rarely seen emotional side of the party leaders and shifting the campaign’s focus as parties came under pressure to present a plan for Syrian refugee resettlement.

The Liberals’ pledge was clear – they had committed in their platform to accept 25,000 Syrian refugees through government sponsorship by the end of 2015 – but after winning a majority government in late October, they found it was one they could not keep. Though Prime Minister Justin Trudeau made Syrian refugee resettlement an early priority after the Liberals took power in early November, not even a month into their mandate, newly appointed Immigration, Refugees and Citizenship Minister John McCallum pushed back the original deadline by two months to the end of February, 2016. He also announced that the government would include privately sponsored refugees in the total goal of 25,000, as opposed to just government-sponsored refugees.

A plane carrying the 25,000th Syrian refugee arrived in Montreal Saturday night, meaning the government met its revised goal two days early.

Mr. McCallum said he expected pressure on immigration officials to ease once the deadline passed.

“I think they’ll breathe a sigh of relief because after we hit our 25,000 it’ll be not exactly back to normal, but more normal, so that the pace at which the refugees will arrive will be much diminished from what has been the case in the last couple of months,” he said last week.

The effort began with security screenings in Jordan, Lebanon and Turkey last November, and despite concerns along the way – a U.S. Senate committee even examined the process – no Syrian refugees were turned away for security reasons after arriving in Canada, according to Mr. McCallum.

The first government-sponsored flight landed on Dec. 10 in Toronto, where the arrivals were greeted by Mr. Trudeau, and almost 100 flights have touched down since then.

The Minister has previously said the government hopes to resettle a total of 35,000 to 50,000 Syrians by the end of 2016, of which 25,000 will be government-sponsored. The remaining spots will be filled by privately sponsored refugees or those arriving through the blended system. The exact targets will be determined in the government’s annual immigration report, expected before March 9.

The government is also on track to stay under its budget of $678-million over six years for the Syrian refugee resettlement plan, according to Mr. McCallum.

Amidst all the political chatter of budgets, targets and deadlines, Nicolas Moyer, Executive Director of the Humanitarian Coalition, an umbrella group for five major humanitarian groups in Canada, said it’s the intention that’s important.

“I would never put a deadline on generosity,” said Mr. Moyer. “These are efforts that are very worthwhile. We’re helping people.”
Al Rassoul,7, spends his first day at school on January 4. His family fled Holms, Syria five years ago and had been living in a refugee camp in Lebanon. (Fred Lum/The Globe and Mail)


Overseas operations for refugee evacuation launched last year are now winding down, as processing centres for security, health and identification checks in Turkey have closed, with Lebanon and Jordan expected to follow suit soon. At its peak, the crisis kept 400 staff working full-time in Canada, and 600 across the three countries overseas. Meanwhile, the government has spent more than $32-million on transporting refugees to Canada on charter flights, an average of about $1,500 a person (before they travel to their destination communities). Ottawa usually requires refugees to pay the cost of their travel to Canada – a transportation loan that can go up to $10,000 – but it has waived that for the Syrian refugees initiative.


Affordable housing for refugees has been one of the biggest challenges facing the provincial and federal governments. Immigration, Refugees and Citizenship Minister John McCallum said last week 48 per cent of refugees have not yet found permanent housing, and tenders have been issued for 650 more hotel rooms in Ontario and New Brunswick to accommodate those still in transition. Military bases remain on standby to house refugees, but Mr. McCallum has said he is “almost certain” they will not be used. Government-sponsored families get an initial one-time allowance of $900, plus about $620 of social assistance a month for rent, regardless of how many members they have. Many of these families have between seven to 12 members. Each adult gets about $240 a month for food and goods, while children get a $300 monthly tax benefit that can take months to come through. Many families end up using part of these additional funds to pay for rent.

Health care

A government report from early January found that, overall, the proportion of serious medical conditions among the Syrian refugee population is very low. But about 4.3 per cent of the refugees suffer from hypertension; 2.2 per cent have diabetes; and 1.5 per cent are visually or hearing impaired. Refugees are covered for up to a year under the Interim Federal Health Program (IFHP), which accounts for basic health-care needs until they are eligible for provincial health insurance – identical to services provided for welfare recipients. On February 18, the government announced a landmark decision to fully restore refugee health-care benefits to what they were before changes in 2012, with additional benefits rolling out over the next year. In addition, many clinics across the country are offering pro-bono services that may not be covered for certain people under IFHP, such as emergency dental care or eye exams, with Arabic interpreters on hand.


Thousands of Syrian refugee children are being integrated into Canada’s schools, with challenges that range from learning English or French, to overcoming the trauma of war. In Toronto alone, about 327 Syrian newcomer children have registered at public and Catholic schools, with many more expected. The Ontario elementary teachers’ union has conducted six acculturation workshops in schools across the province, with at least eight more to come, educating instructors on how best to help children from refugee situations. Although officials say the intake has been seamless thus far, cuts to educational programs mean there may be a shortage of English-language learner programs.

Meanwhile, adults must undergo their own language instruction prior to integrating into the work force. The federally funded Language Instruction for Newcomers to Canada (LINC) program offers English instruction to refugees, but classes in many parts of the country are already at capacity, and waiting lists for basic literacy classes can extend up to a year. Instructors fear the worst of the influx is yet to come, as more people settle in their permanent housing.

Mahnoor Yawar

Family size

53: percentage of approved government-assisted refugees cases that had five to eight people on the application

7: percentage of approved privately sponsored refugees cases that had five to eight people on the application

14: percentage of approved government-assisted refugees cases that had one person on the application

52: percentage of approved privately sponsored refugees cases that had one person on the application


55: percentage of approved government-assisted refugees who are under 15

27: percentage of approved privately sponsored refugees who are under 15


40: percentage of government-assisted refugees under 14 who have no education

68: percentage of adult government-assisted refugees who have high school or less


67: percentage of approved government-assisted refugees who self-report no English or French language skills

37: percentage of approved privately sponsored refugees who self-report no English or French language skills

Sunday, February 28, 2016

Koch Brothers to Donald Trump: "Shut the .... up we own the Republican Party!" Donald Trump to Koch Brothers: "... off boys I own the Republican Party!"

Saturday, February 27, 2016

Do you know your Supreme Court of Canada Justices?

Good Day Readers:

CyberSmokeBlog would dare say if a random survey were done of the great unwashed masses (taxpayers) a significant majority would be hard pressed to name even 5 of the current 9 Justices. So why not borrow a page from the Americans to mass produce and distribute T-Shirts.

For example, here's one for Ruth Bader Ginsburg who's 83 and given to napping during Supreme Court hearings only to be nudged awake by her buddy the late Antonin Scalia.

Some enterprising entrepreneur could sure have a field day with that in Canada.

Clare L. Pieuk

Friday, February 26, 2016

And the Supreme Court of Canada next?

Dear Ms Legault:

You are to be applauded for recognizing one of several serious flaws in public access to federal government information:

While there are no Philadelphia lawyers at CyberSmokeBlog, it's very limited understanding is Paragraph 70(3)(a) of The Privacy Act governs what the Office of the federal Information Commissioner can and cannot do.

Said provision mandates after 20-years cabinet documents can no longer be excluded from application under the Access to Information Act. Problem is, of course, after 20-years those Ministers responsible for crafting the legislation are more than likely long gone spending their winters in Florida, Mexico or the Caribbean on their platinum-gilded taxpayer pensions. So where's the timeliness, accountability and transparency? There is none.

However, the problem is even larger than you've documented it's called the Supreme Court of Canada. Recently, the Washington Post ran an excellent/outstanding article documenting the outside, off the bench activities of the United States highest court Justices. Cf.:

The detailed findings of the article were only possible because the annual self-disclosure forms of the Justices are a matter of public record. Not so here. In fact, one of CSB's readers/contributors/researchers has complained in the past about the difficulty obtaining copies of speeches/addresses given by SCC Justices when requested from the Court's Executive Legal Officers. Even CyberSmokeBlog has experienced first hand on a couple occasions reasonable information requests simply being ignored.

Upon posting the aforementioned study, in a Postscript CSB concluded:

Much of the grist for the American article came from the Justices' annual financial disclosure forms, which report income earned from investments and other sources, spousal income, financial liabilities and reimbursements from outside groups for justices' food transportation, lodging and entertainment.

So the question for you, Ms Legault, becomes are similar self-disclosure forms for Supreme Court of Canada Justices exempt from Access to Information requests thus remaining hidden behind the high, cloistered walls of the Supreme Court of Canada? A quick online check seemed to suggest they indeed are - anyone know for sure?

Clare L. Pieuk


Federal Minister of Justice

William C. Brooks
Office of the Commissioner for Federal Judicial Affairs Canada

Canadian Judicial Council

Gib van Ert

Rocco Galati
Bring ministerial offices under access law to ensure accountability: watchdog

The Canadian Press in News, Politics | February 25th 2016

By Jim Bronskill
Suzanne Legault appears before parliamentary committee. Images from parliamentary website.

The offices of cabinet ministers must be brought under the Access to Information Act to ensure proper accountability, the federal information watchdog says.

Information commissioner Suzanne Legault told MPs the move is one of the "bold steps" needed to usher the access law into the 21st century.

"Having a modern access law would assist Canadians in exercising their right to know," Legault said Thursday. "It would also facilitate the creation of a government culture that is open by default."

The Access to Information Act, which allows people who pay a $5 fee to ask for federal records, has changed little since taking effect in 1983. In addition, many institutions — including ministerial offices — are not covered by the act.

A House of Commons committee is reviewing the law following the Liberal government's commitment to overhaul the system.

Last year, Legault tabled a special report with 85 recommendations to improve the law and how it is administered. She called for changes to ensure exceptions in the Act protect only what is strictly necessary as well as tighter timelines for the processing of requests.

Legault, an ombudsman for users of the law, said Thursday her office now spends 40 per cent of its time dealing with administrative complaints from the public about government delays in responding to requests.

Government agencies are supposed to answer requests within 30 days or provide valid reasons why more time is needed.

Legault pointed to one case in which she had to go all the way to the Federal Court of Appeal to obtain a decision that a 1,110-day extension was unreasonable.

Currently, she often goes to court because she lacks powers to order agencies to comply with the access law. Any rewrite of the law should give the information commissioner order-making authority to ensure more timely processing of requests, she said.

If she had possessed such powers, the matter of the 1,110-day extension "would have been settled within days," Legault said.

"It really solves a lot of those issues."

Sixty-eight per cent of all countries that have implemented an access law in the last 10 years feature an order-making model, she noted. In Canada, British Columbia, Alberta, Ontario, Quebec and P.E.I. have those powers.

Another recommendation from Legault would require the government to ensure major decisions are documented with a record trail.

New Democrat MP Daniel Blaikie asked Legault how the changes could balance the need for transparency with the right of public officials to deliberate on issues and "think on paper."

"When I'm in a meeting, for instance, I want to make private notes," he said. "I may have things that I don't want on the record forever — they're fleeting ideas."

Legault noted there are protections in the law that shield sensitive information related to national security, legal advice and numerous other matters.

But the commissioner, whose own office is covered by the law, recalled how a doodle she made of a horse was released to a requester under the act.

"It's fine, it just gets disclosed. I don't mind," she said.

"People just have to grow into this culture of disclosure at a certain point."

Wednesday, February 24, 2016

Big Jungle Jim goes to Ottawa and gets a secret promotion!

Good Day Readers:

This is an excellent article by Marie-Danielle Smith which appeared recently in Embassy Magazine.
Marie-Danielle Smith

So your sunny ways, middle class Liberal federal government is more open, accountable and transparent eh? Ha!

Clare L. Pieuk

Carr replaces McKenna as Chair of powerful defence committee

A membership revealed, sources say shipbuilding scuffles promoted secrecy

Marie-Danielle Smith
Wednesday, February 24, 2016
Natural Resources Minister Jim Carr and Environment Minister Catherine McKenna. (Embassy and Hill Times file photos)

The Liberal government has finally revealed which ministers sit on a powerful cabinet committee that is vetting major defence procurement files like new fighter jets and frigates.
Until this week, the government wouldn’t even admit the committee existed, despite it holding meetings as early as December.
The revelation comes as Ottawa's shipbuilding saga heats up, with shipyards jockeying for position.
The defence committee “meets as required” and is mandated to “consider and co-ordinate major acquisitions of defence equipment,” according to a document posted online and dated February 22.
A well-positioned source tells Embassy the committee named a new Chair last week, replacing Environment Minister Catherine McKenna. The new Chair is Jim Carr, the Minister of Natural Resources. The Committee is Vice-Chaired by Treasury Board President Scott Brison.
Other members include Innovation Minister Navdeep Bains, Procurement Minister Judy Foote, Transport Minister Marc Garneau, Defence Minister Harjit Sajjan, Fisheries Minister Hunter Tootoo, and Science Minister Kirsty Duncan.
Ms McKenna doesn’t make the list, even though multiple sources confirmed that she was still chairing the committee’s meetings as of January.
She and her office recently told reporters she is not involved, but would only say so in the present tense.
Multiple calls to Ms McKenna’s office for clarification went unanswered, as did calls to the Prime Minister’s Office.
A member of Ms Foote’s office, one of the sources to originally confirm Ms McKenna as Chair, could not confirm what Ms McKenna’s status was or why she would have left the committee.
Shipbuilding expert hired
The government's refusal to reveal the committee's existence, mandate or membership was confusing to many in Canada’s defence community, as well as the Conservative opposition.
Sources say the committee has already devoted some time to looking at the replacement of CF-18 fighter jets, and the National Shipbuilding Procurement Strategy that will replace Canada's fleet of navy frigates as well as other ships.
Two meetings have occurred since the beginning of the year, Embassy has confirmed. One meeting on January 28 was attended by top military brass including Chief of Defence Staff General Jonathan Vance. His office would not confirm or deny the meeting.
Last week, on February 19, the Committee met to specifically discuss shipbuilding issues. A few days later, on February 22, the government announced it was going to hire an outside shipbuilding consultant.
The announcement was made jointly by four Committee Members: Ms Foote, Mr. Sajjan, Mr. Tootoo and Mr. Bains.
Steve Brunton, a retired Rear Admiral from the United Kingdom's Royal Navy, has “extensive experience in overseeing shipbuilding programs and naval acquisitions,” reads a government press release.
“He will provide Ministers and senior government officials with independent expert advice on multiple facets of the NSPS, including risk and program management, construction benchmarking and competitiveness and performance and operational improvements.”
Mr. Brunton is coming in on a one-year contract that can be renewed for up to 10 years. He’s not the only recent British import—two other British officials are reportedly on loan to help shape Canada’s upcoming defence policy review.
Davie never heard from government
Scuffles between competing shipyards have already caused some embarrassment to the Liberal government. That’s the reason this cabinet committee’s activities are so tightly controlled, multiple sources have suggested.
With the government actively reviewing shipbuilding, organizations such as the Shipbuilding Association of Canada have seen an opening for suggestions to reverse the controversial decisions by the previous government, including awarding Irving Shipbuilding a prime contracting role for navy combat vessels.
On the other side of the country, Seaspan’s Vancouver Shipyards is overseeing non-combat vessels.
Overall estimated costs for the NSPS have been skyrocketing, leading experts to conclude that the government has a lot of re-evaluating to do.
"Irving Shipbuilding is supportive of the government's intention to actively seek input from industry," Kevin McCoy, the president of Irving Shipbuilding, told Embassy in an emailed statement. "We will continue to work closely with the Government of Canada to ensure the right foundations for the Canadian Surface Combatant Program are in place."
Competitor Davie Shipbuilding, out of Quebec, lost out on the bulkier contracts of the NSPS, not least because it was insolvent at the time. 
But on November 30, the government approved a $700-million contract with Davie for an interim supply ship to be delivered in 2017. That will tide the navy over until new ships are built. The last two supply ships had had to be retired in 2014, and new ones won’t be available until 2020.
Other shipyards including Seaspan and Irving complained this was a sole-source contract.
Reports by former CBC reporter James Cudmore, who now works for Mr. Sajjan, emerged earlier in November that Irving had sent letters about that to several cabinet ministers, including Ms Foote and Mr. Sajjan.
A couple of days after letters were sent, reports allege that cabinet decided to put a 60-day hold on their decision. Cabinet ended up approving the contract on time.
“We never actually had any communications from the government that the contract was indeed in question,” a spokesperson for Davie said.
“We were working with senior department officials without interruption. We heard only in the press that two of the smaller shipyards had worked together to send a message to cabinet officials.”
Cabinet's shipbuilding program review is good news for Davie, the spokesperson suggested. “The new government appears to be taking great steps to rectify major flaws in the program created in the last government,” he said.
“We’re offering a series of value propositions which would save the government billions of dollars.”
FleishmanHillard, Davie end relationship 
Another new development recently emerged in the shipbuilders’ feud as the public relations and lobbying firm FleishmanHillard has stopped representing Davie.
The firm’s Kevin Macintosh stopped lobbying for Davie on the Hill as of January 11, according to the federal lobbying registry.
In a phone call with Embassy, he confirmed he no longer works with them, but couldn't offer a reason as to why the relationship ended. “You know, the assignment just came to an end,” he said.
A Davie spokesperson said that they are not aware of FleishmanHillard’s other clients, but the reason for the rift boiled down to the fact that their “top guy” at the firm left to go to another agency. The firm lost several others who were also the “key people on our file,” the spokesperson said.
“The last one standing was Kevin Macintosh,” he added.
Given that Mr. Macintosh is an “old friend and business acquaintance of [Conservative MP and former Defence Minister] Rob Nicholson,” that “doesn’t really help” Davie, the spokesperson said.
Government House Leader Dominic Leblanc recently came under scrutiny as his long-time friendship with the Irving family prompted the Office of the Conflict of Interest and Ethics Commissioner to order a “conflict of interest screen" to "avoid the perception of preferential treatment.”
A disclosure to the Ethics Commissioner dated January 27 states Mr. Leblanc must abstain from participating in any matters or decisions related to the group of companies.
Mr. Bains recently met with Mr. Irving in Moncton, New Brunswick. Mr. Leblanc was in Moncton too, but he denied any involvement in facilitating the meeting during Question Period February 16.
Irving representatives have also recently met with Trade Minister Chrystia Freeland and Mr. Tootoo, according to the Office of the Lobbying Commissioner.

A Louis XIVth Versaillesean rant; the gonzo logic of the Federal Appeal Court of Canada and the Big Smack Down!

Good Day Readers:

When you read the recent Appeal Court's written decision in Rocco Galati/Paul Slansky/Constitutional Rights Centre's attempt to collect for services rendered in successfully opposing the selection of Marc Nadon to the Supreme Court of Canada it's downright nasty and overkill. It's as though certain Judges are saying, "We're tired of your Constitutional/Charter challenges - Whack! ... Whack! ... Whack! ... Now don't come back ... ever!"
Rocco Galati
Paul Slansky

But here's the problem. The selection and appointment of federal Justices/Judges is done in a closed environment and handed to the great unwashed masses (taxpayers) with little or any outside layperson involvement - fait accompli as it were. So what are the masses to do when they disagree?

Take the case of Manitoba Court of Queen's Bench Bench Justice and former Minister of Public Safety Vic Toews. At the time of his appointment there was a real firestorm in the media suggesting for several reasons he was a bad, bad choice but what could taxpayers do?

What would have happened had a group of citizens documented his dalliances and out of court inappropriate activities and submitted a class action style complaint to the Canadian Judicial Council?
Would it have launched an investigation and public inquiry into his removal from the bench? Probably not. So where does that leave you? Dependent on individuals such as Messrs. Galati and Slansky to take the matter to court. So when they do what does the Federal Court of Appeal do? It dumps all over them.
Team Galati-Slansky at the Federal Court of Appeal

Postacript: And the combined salaries per hour of Judges Pelletier, Stratas and Gleason is .....?

Clare L. Pieuk
Galati seeking SCC Approval of Nadon costs

By Cristin Schmitz
February 26, 2016 Issue

Constitutional litigator Rocco Galati is taking the Nadon case back up to the Supreme Court of Canada — this time to challenge his latest smack down by the Federal Court of Appeal.

The Toronto immigration lawyer, famed for launching a constitutional challenge that ultimately led to Federal Court of Appeal Justice Marc Nadon’s Supreme Court appointment being invalidated by the Supreme Court in 2014, is seeking solicitor-client costs of $51,706 (inclusive of tax and disbursements) for his work on the case in Federal Court — i.e. 56 hours at $800 per hour.

The Federal Court refused last year — awarding Galati and the co-appellant Constitutional Rights Centre only $5,000 between them. The centre had requested $16,769, also based on $800 per hour for counsel Paul Slansky of Toronto.

That costs ruling was affirmed Feb. 8 by a clearly miffed Federal Court of Appeal panel, which slammed Galati’s suggestion in argument that if the pair are denied their solicitor-client costs, the federal courts would be, and be seen to be, “in bed” with the government: Galati v. Harper, [2016] FCA 39.

“It sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case,” said Justice Denis Pelletier, in a decision backed by Justices David Stratas and Mary Gleason.

“To be ‘in bed’ with someone is to collude with that person,” he explained. “I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don’t give the applicant its solicitor-client costs. The entire court system, it seems, must be alleged to be actually or potentially acting in bad faith in order to instill public confidence in the fairness and independence of the judiciary. This is reminiscent of the gonzo logic of the Vietnam War era in which entire villages had to be destroyed in order to save them from the enemy. The fact that this argument is made in support of an unjustified monetary claim leads to the question ‘Whose interest is being served here?’ Certainly not the administration of justice’s. This argument deserves to be condemned without reservation.”

The appeal panel went on to slap the appellants with $1,000 in costs. Justice Stratas noted he would have awarded more had the Crown asked.

“[A] constitutional right for lawyers acting as public interest litigants to collect pay and bonuses from the public purse in the amount of $800 an hour?” Justice Stratas queried. “I don’t see that in the text of the Constitution or by necessary implication from it. Nor does the Supreme Court see it,” he said, citing case law. “I also reject the appellants’ submission that some principle sitting invisibly alongside the visible text of our Constitution somehow springs up to entitle them to $800 an hour.”

Justice Stratas also admonished that “the informed, reasonable person viewing the matter realistically and practically would never think that judges are predisposed to the government just because the government pays them and does not pay others. This sort of submission can unfairly affect the legitimacy and public perception of the court. An officer of the court should never make such a submission.”

Galati told The Lawyers Weekly he is seeking leave to appeal to the Supreme Court because the costs ruling raises an important constitutional principle. “I’m flabbergasted by the tenor, and assertions [by the panel], in that decision, such as the fact that the Nadon reference was not a case of public importance but was restricted in interest to certain legal circles,” he said. “The issue was whether or not a citizen who takes a successful constitutional challenge, without any personal benefit, is entitled to costs as a constitutional right. They dealt with issues all around that issue, and engaged in a Louis XIVth Versaillesean rant, but they didn’t deal with that issue.”

Galati and Slansky moved for solicitor-client costs on the basis that “where a private citizen brings a constitutional challenge to legislation and/or executive action, going to the ‘architecture of the Constitution,’ from which he/she derives no personal benefit, per se, and is successful on the constitutional challenge, that he/she is entitled to solicitor-client costs of those proceedings, as to deny those costs constitutes a breach of the constitutional right to a fair and independent judiciary.’’

Galati’s Federal Court challenge to the Nadon appointment was stayed within a month, on consent, after the federal government referred straight to the Supreme Court the same issue about the eligibility of judges of the federal courts for the high court’s Quebec seats. There the government of Quebec, Galati and others won the day, with the Supreme Court’s majority ruling that judges of the Federal Court, Federal Court of Appeal, Tax Court and Court Martial Appeal Court are ineligible, and moreover that the top court’s composition and very existence became “essential’’ to the “Constitution’s architecture” at least by 1949: Reference re Supreme Court Act, ss. 5 and 6, [2014] SCC 21.

On the costs matter, the Federal Court of Appeal agreed with the court below, that there is no established constitutional right to costs. Moreover the appellants did not “succeed” in Federal Court so as to entitle them to costs as their test case was supplanted by the Nadon Reference.

“The fact that their application apparently set in motion a series of events which led to the conclusion which they hoped to achieve in their application does not make them successful litigants,” Justice Pelletier explained. “It may make them successful politically or in the popular press, but that is a different matter. They can only claim costs in relation to the judicial treatment of the joint application [in Federal Court] which, as noted, was dismissed. To hold otherwise would be to create something in the nature of a finder’s fee for constitutional litigation.”

The appeal panel held that the Federal Court also did not err in refusing to exercise its discretionary power to award special costs under Rule 400 of the Federal Courts Rules. “There is no doubt that the issues raised were of significant importance, particularly to the members of the federal courts, but the interpretation of sections 5 and 6 of the [Supreme Court] Act did not have widespread societal impact,” Justice Pelletier wrote. “When the partisan political overlay is stripped away, this was a lawyer’s issue with very limited consequences beyond legal circles. It certainly did not go to the ‘architecture of the Constitution.’ ”

Tuesday, February 23, 2016

And the CyberSmokeBlog award for judicial misspeak of the day goes to .....

Manitoba Court of Queen's Bench Chief Justice Glenn Joyal!

For: Joyal said, "Judges are not like bloggers - they don't have a bias, they are informed and impartial."

These words were spoken in open court the other day in response to a request by Winnipeg lawyer Martin Glazer on behalf of his client accused letter bomber Guido Amsel that an out of province (or at least out of Winnipeg) Judge hear Mr. Amsel's motion for bail. Mr. Glazer went on to argue the province's legal establishment is like one big, happy incestious family (a CSB paraphrasing of his words) in that everyone knows each other.

So what's wrong with Chief Justice Joyal's words? Plenty. First it implies bloggers have biases, are misinformed and partial. While this may certainly be true in a lot of cases it's not true in all.

Second. It suggests Judges/Justices don't have biases, are always informed and impartial. If you read what some Judges say in open court both here and the United States this statement simply does not hold up.

Third. As a grade 10 English teacher once said, "Remove all the prejudices from a man and there's not much left." By today's standard he would have been besieged for not using the gender neutral "person." Judges boil their veggies in the same water as the rest of us and can only put on their pants one leg at a time. Therefore, by natural extension they must have foibles too.

Fourth. Judges/lawyers who use the social media (blogs, Facebook, Twitter) to message is certainly not uncommon.

Clare L. Pieuk

Saturday, February 20, 2016

Time for more public disclosure Supreme Court of Canada ..... eh?

Good Day Readers:

This is an excellent article (worthy of posting) because it documents in detail outside funding sources United States Supreme Court Justices may receive. Had a quick look at the unaudited annual financial statements of the Supreme Court of Canada for 2014-2015. Unless CyberSmokeBlog missed it (always a possibility) nowhere in the myriad of online information available could CSB find any specific financial information as to outside fees or honorariums SCC Justices have or are allowed to accept from who, where and when.

From Vancouver's Super Self-Rep and colossal pain in the ass to the legal establishment we have:
I just found this NP copy of a Washington Post article, so this is my off-the-cuff response.

I believe the issue is one that needs to be taken seriously. I don't give a damn how smart these people are, or I should say how smart they and their friends claim they are.

Do we have the same problem in Canada? The Supreme Court of Canada's Executive Legal Officer's have denied that the judges have an obligation to share with the public the speeches they give at private functions. So we don't know, and evidently have no right to know, what private functions they are attending. I have emails from two of the ELO's saying that.

And, what is Canada's Chief Justice doing on this list? Suppose that you, compelled to be self-represented, found yourself in court facing a party represented by a member of this "college" and on the bench, e.g. Alberta Court of Queen's Bench Justice Neil Wittmann (the last name on the list).

... cb

Chris Budgell's point is well taken. Whenever a Supreme Court Justice here is engaged in any activity outside and beyond their duties on the bench it should be publicly available because even if done on their own time someone has to pick up travel and other related expenses they may incur unless, of course, they do so out of their own pocket - highly unlikely. To protect the integrity of the system taxpayers should know how much and who even if privately funded. Sounds like in his past dealings with SCC Executive Legal Officers this may not always have been the case.

Perhaps it's worth keeping in mind ELOs are passing through and will return (with an enhanced employment resume) to their respective law firms once their stint with the Supreme Court is over. For some it's a stepping stone to a judicial appointment and beyond.

Clare L. Pieuk
Scalia died at a secluded Texas ranch. Here's where else the Supreme Court Justices go when they leave town

By Christopher Ingraham
Friday, February 19, 2016
Associated Press Photo Pablo Martinez Monsivais File.

The death of Supreme Court Justice Antonin Scalia at a lavish Texas resort last weekend has raised questions about who paid for Scalia's trip and the justice's relationship with the businessman who owns the resort. The resort owner also had a business involved in a case that the court declined to hear last year. And, as The Washington Post's Mark Berman noted, had the justice not died there it's possible the public would have never learned about the trip at all.

There's no indication of wrongdoing or ethical impropriety here. But Scalia's death on the road is a reminder that the justices travel, lecture and have lives beyond the high court's cloistered walls - and that quite often those trips are paid for by outside organizations. You can get some sense of this by reading the justices' annual financial disclosure forms, which report income earned from investments and other sources, spousal income, financial liabilities and reimbursements from outside groups for justices' food transportation, lodging and entertainment.

The top elected official in the Texas county where Antonin Scalia was found dead says the U.S. Supreme Court Justice died of natural causes. (AP)
[Everything you need to know about who pays when Supreme Court justices travel]
From 2011 to 2014, for instance, justices took at least 365 trips where outside groups picked up all or some of the tab. (2011 is the first full year all the current justices sat on the court.)

The top elected official in the Texas county where Antonin Scalia was found dead says the U.S. Supreme Court Justice died of natural causes. (AP)

Scalia was the court's most prolific recent traveler, being reimbursed for expenses by outside groups 23 times in 2014, and nearly 100 times since 2011. By contrast, Chief Justice John Roberts received only five reimbursements since 2011. The other seven justices fall somewhere in between.

Many of these trips and outside engagements are fairly prosaic. More than half of them were paid for by colleges and universities for justices' teaching and speaking engagements. For instance, in 2014, Scalia received reimbursements for teaching and lecturing from 12 universities as far-flung as the Universities of Hawaii and Zurich.

But plenty of other groups are happy to pick up justices' travel bills, too. Roughly 17 percent of justices' reimbursed travel was to events sponsored by bar associations and other legal groups -- not exactly surprising. But nearly one-third of the trips were paid for by a variety of other groups and organizations, including think tanks, museums, media organizations and even a few individuals.

Nearly 6 in 10 of Justice Anthony Kennedy's and Justice Stephen Breyer's trips were paid for by non-legal and non-university organizations. In 2011, for instance, Breyer took no fewer than 10 trips promoting his book "Making Democracy Work." These trips were funded by his publisher, various presidential libraries and other locations where he held book events.

Kennedy has taken eight trips to Colonial Williamsburg paid for by that organization, where he is a member of the board of trustees.

Scalia was a frequent guest of several organizations with a more ideological bent. He traveled at the behest of the conservative Federalist Society at least 10 times between 2011 and 2014, the disclosures show. The relationship between Scalia and the Federalist Society was somewhat unique: No other organization, legal, educational or otherwise, appeared as often in a single justice's disclosures.

[Why it's time to get serious about Supreme Court term limits]

In 2013, Scalia gave a reimbursed speech at the conservative Gatestone Institute run by former UN Ambassador John Boulton. He also gave a speech to The Friends of Abe a private group of Hollywood conservatives.

While the court's more liberal justices have been reimbursed by ideological groups, as well, it occurred far less frequently. Justice Ruth Bader Ginsburg spoke before the International Women's Health Coalition, a group that advocates for reproductive rights, in 2014. Justice Sonia Sotomayor attended an event sponsored by the Just The Beginning Foundation, a group that promotes diversity in the legal profession. In 2012 Breyer attended one event each at the center-left Brookings Institution and Annenberg Foundation.

The disclosures also reveal that Scalia was something of a globe-trotter: He took at least 17 international trips that were reimbursed by outside organizations from 2011 to 2014, more than any other justice.

Globetrotting Justices

A number of times outside groups paid for Supreme Court Justices' international travel, food, entertainment or lodging, 2011-2014.

Scalia's reimbursed travels took him to Cambridge, Rome, Switzerland (twice), Australia and Canada for teaching, lectures and speeches -- and that was in 2011 alone. In 2012, he spent 10 days teaching in Innsbruck, Austria. In 2014 he spent 10 days in Galway, Ireland, at the behest of the New England School of Law.

Breyer has done plenty of reimbursed international travel, too -- 16 trips since 2011. Other justices travel abroad less often. Justice Elena Kagan has taken three trips overseas, Justice Clarence Thomas, only two.

The disclosure forms also reveal other aspects of the justices' lives. In 2013, for instance, financier David Rubenstein flew Breyer out to a late-summer wedding in Nantucket -- the disclosure doesn't specify who was getting married. In 2012, Justice Samuel Alito received a free trip to New Jersey to be inducted into the National Italian-American Hall of Fame. Also in 2012, Ginsburg traveled to New York to accept Glamour Magazine's Woman of the Year award, which came with a gift bag valued at $2,500, per her disclosure form.

There are few reports of personal gifts on the forms. One went to Sotomayor,who in 2011 reported a $1,400 gift of fine china from "the Butler family" and a $6,000 "translucent composite print" from one Robert Weingarten. In other years, Sotomayor added a note to the "Additional Information" section of the form explaining that "many people sent me gifts of books, art, jewelry and trinkets. I have no reason to believe that any of those items exceeded the [reporting] limit. If I should learn otherwise, I will amend this form."

Sotomayor and Scalia are unique among the justices in reporting liabilities on her disclosure forms. For several years, Sotomayor listed up to four credit card debts below $15,000 (Discover, Visa, Mastercard and Amex, in case you were wondering). She also reports a mortgage on a rental property in New York valued at between $250,001 and $500,000.

In all four years, Scalia reported a liability of a loan on a life insurance policy valued at less than $15,000.

Read more from Wonkblog:

The lines that made Justice Scalia the king of Supreme Court sarcasm

Could President Obama one day join the Supreme Court?

The most significant Supreme Court case that could be immediately affected by Scalia’s death
Christopher Ingraham writes about politics, drug policy and all things data. He previously worked at the Brookings Institution and the Pew Research Center.

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Postscript: Much of the grist for the American study came from the Justices' annual financial disclosure forms, which report income earned from investments and other sources, spousal income, financial liabilities and reimbursements from outside groups for justices' food transportation, lodging and entertainment.

So the question becomes are similar disclosures for Supreme Court of Canada Justices exempt from Access to Information requests thus remaining hidden behind the high, cloistered walls of the Supreme Court of Canada? A quick online check seemed to suggest they indeed are - anyone know for sure?

Wednesday, February 17, 2016

Oh WTF it's only your hard earned tax dollars!

Saturday, February 13, 2016

Why the Office of the Federal Ethics Commissioner is a useless, toothless tiger!

Good Day Readers:

There can be no doubt Mary Dawson is an honourable, well-intentioned lady. Problem is, does she really believe the Raybould's will voluntarily build a China Wall around their overlapping activities at the dinner table or in the privacy of their bedroom?
Look what the Canadian Senate did to the honour system!

Clare L. Pieuk
Jody-Wilson-Raybould taking all steps to dodge conflict over husband's lobbying
By Kady O'Malley
Thursday, February 11, 2016
Minister of Justice Jody Wilson-Raybould. (Justin Tang/The Canadian Press)
Well, that’s one topic crossed off the list of appropriate dinnertime discussions at the Wilson-Raybould household.
Late last month, British Columbia Public Policy Consultant Tim Raybould — whose wife of eight years now serves as Justin Trudeau’s Justice Minister — filed the necessary paperwork to help two First Nations organizations in their future dealings with the federal government.

According to his filings, Raybould will represent the First Nations Finance Authority and the Westbank First Nation on a variety of fiscal and financial issues, including transfer arrangements, fiscal management and, in the case of the FNFA, the expansion of an existing credit enhancement fund.

He’ll be focusing his efforts on two key departments — Finance Canada and Indigenous and Northern Affairs — but will not be engaging with Justice, or any other entity that falls under his wife’s ministerial responsibilities.

As long as he keeps well away from her portfolio, there’s no law that forbids him from working as a registered lobbyist.

Even so, the Minister has already discussed the matter with the federal ethics watchdog to make sure both she and her husband are operating well within the letter and spirit of the law.

“I take my ethical obligations very seriously and am taking all steps to avoid any conflicts of interest and more importantly prevent the perception of one,” she told the Ottawa Citizen in a written statement.

“That’s why my husband and I met with the Conflict of Interest and Ethics Commissioner to ensure we are fully in compliance with our obligations under the rules.”

Under the Conflict of Interest Act, Raybould may be required to file a public declaration of recusal from discussions that could touch on those specific areas — although that and any other possible compliance measures will be ultimately be decided based on the recommendation of the Ethics Commissioner.

If she does, the details will be posted to the public registry along with the rest of the Minister’s disclosure filings.

Tim Raybould — who holds a PhD from the University of Cambridge — acted as chief negotiator for the Westbank First Nation for 12 years before hanging out his shingle as President of the Kalona Group in 1998, according to his profile on the LinkedIn business networking site.

Between 2010 and 2011, he was registered to lobby on behalf of several First Nations, including Westbank, Tsawwassen and the Beaverlake Cree Nation, as well as the First Nations Finance Authority, which was then in the process of setting up the credit fund that he will now be urging the government to increase.

He currently offers a wide range of services to First Nation governments, institutions “and other 
organizations related to public administration and policy development,” including “research, training,
 facilitation and mediation, negotiation support and intergovernmental relations.”

Lobbying and ethics commissioners should merge: Dawson

Elizabeth Thompson
Thursday, February 18, 2016

Ethics Commissioner Mary Dawson is calling for the merger of the ethics and lobbying commissioner’s offices, saying it will lead to more coherent oversight of the relationship between lobbyists and members of Parliament.

“I think it might help if the two offices were together,” Dawson told members of the Procedure and House Affairs committee. “But that’s for the future. It’s one solution.”

Dawson appeared before the Procedure and House Affairs committee Thursday to discuss her office and the conflict of ethics rules that govern MPs and public office holders.

Currently, there is an overlap between two separate bodies dealing with the interaction between lobbyists and MPs or public office holders, she said.

“One of the problems is that we are dealing with different groups – we’re not dealing with the same group of people…The only person that the lobbyist commissioner is concerned with is lobbyists. I’m concerned with a much larger group of people – stakeholders.”

Merging the two positions could also resolve some of the confusion between the two regimes, Dawson said. For example, the Lobbying Act and the Conflict of Interest Act and the Code sometimes use the same terminology but the same terms have different definitions.

“In the Lobbying Act the term public office holder is used and it means a whole bunch more people, including Members….In my act a public office holder is a minister, a parliamentary secretary, a governor in council appointee or ministerial staff.”

Dawson pointed out that the registration of lobbyists used to be covered under the conflict of interest system.

If Parliament wants to merge the two positions, the opportunity could be coming up. The appointments of Dawson and Lobbying Commissioner Karen Shepherd are both scheduled to expire within two weeks of each other this summer.

Dawson’s suggestion appeared to be well received.

“In one way it makes a lot of sense,” responded NDP MP David Christopherson. “If there are problems with overlapping, let’s get it all into one document where the language and the references are meant to be constant.”

The hearing was dominated by the question of gifts and the people who offer them – often government-relations professionals and stakeholders who are lobbying or seeking to influence MPs.

Dawson said gifts prompt the most confusion among MPs.

“It’s gifts, gifts, gifts, constantly gifts,” Dawson replied when asked by Liberal MP David Graham which part of the Conflict of Interest Code is the most misunderstood.

“It is just such a problematic area….It is just so overwhelmingly at the forefront of problems.”

While MPs are now supposed to report gifts worth more than $200 – which was reduced last June from $500 – Dawson said she’s not even sure all MPs are reporting everything they should.

“I have no idea the extent to which gifts are being reported to me. All I can use as my guidelines are the ones that are reported.”

Among the trickiest areas are dinners and the receptions that are ubiquitous on and around Parliament Hill, said Dawson. She considers dinners and receptions as gifts – particularly if the group organizing them is seeking to influence the MPs or cabinet ministers who attend.

“Generally speaking for Members, they are probably okay. You’re walking by and have a glass of wine or something. I’m not going to complain about that. What I do have problems with is a significant spread being put out and targeting the people.”

Dawson said she is planning to issue an opinion when it comes to gifts – clarifying what does – or does not – pose a problem.

“I have had letters coming in from lobbyists and I have promised them that I am going to get out an advisory…around some of these gifts.”

Travel sponsored by groups or foreign countries is another area that prompts questions but Parliament made an exception to the gift receiving rules for MPs, said Dawson-

“Do parliamentarians really want to give up these goodies?” she asked.

Some gifts are easier to deal with, Dawson said, pointing to a group that sent MPs marijuana around Christmas, along with a call to act quickly to legalize it.

“That was bad on two fronts. First of all, they were considering making marijuana legal and the letter that covered it said here’s some marijuana, make our bill legal. The second thing that was wrong was it was illegal, for heavens sake.”

One way to simplify the system would be to ban all gifts, Dawson pointed out.

“The obvious easy answer is that you can receive no gifts – but I don’t think you want to go there.”

Friday, February 12, 2016

The gonzo logic of the Federal Court of Appeal!

Good Day Readers:

Every so often a court ruling comes along that's just plain stupid this is one of them.

CyberSmokeBlog would show you the pictures of The Honourable Judges J. D. Denis Pelletier and David W. Stratas save for they are not available on the internet even though they're taxpayer funded public servants. Are they hiding out in the Witness Protection Program?

"When the partisan political is stripped away, this is a lawyer's issue with very limited consequences beyond legal circles," Pelletier wrote for the panel. "It certainly did not go to the architecture of the constitution.' " 

CSB: Huh, WTF? Are you to believe when a turkey of a federally appointed Justice such as Manitoba Court of Queen's Bench "gem" Vic Toews is selected it has no impact on those who might have the unfortunate experience of having to appear before him? Besides, if individuals such as Messrs. Galati and Slansky don't challenge these closed door (no layperson involvement) fait accompli appointments who will? Perhaps Judge Pelletier you'd like to step down from your cushy 6-figure salary and benefits package that won't quit to do so.

The fact that their application apparently set in motion a series of events which lead to the conclusion which they hoped to achieve in their application does not make them successful litigants," Pelletier said.

CSB: Again huh? So what would you call them Judge Pelletier unsuccessful litigants/losers?

"A self-represented litigant by definition, has no counsel and therefore no out-of-pocket expenses for which full indemnity is appropriate. Judge Pelletier

CSB: Another big WTF? Are you to believe self-reps cannot incur photocopying, travel and an array of other related costs such as fees for filing court documents, etc., etc., etc. preparing for a court appearance? Besides, is it not a tad arrogant to suggest a pro se's time and effort in getting ready for court has no value? Obviously, Judge Pelletier is unaware of the work of Dr. Julie Macfarland and her National Self-Representative Litigants Program at the University of Windsor. Inform thyself - fast - Judge Pelletier.

Clare L. Pieuk
Lawyers who challenged Harper's choice of Marc Nadon for Supreme Court denied costs

Rocco Galati asked top court award him $800 an hour for his work

Colin Perkel
Tuesday, January 9, 2016
Toronto lawyer Rocco Galati's request to be awarded court costs of $800 an hour associated with is challenge of Marc Nadon's appointment to the Supreme Court of Canada was denied in a scathing rebuke by the high court. (Trevor Hagan - The Canadian Press)

Two lawyers who challenged the Harper government's ultimately aborted appointment of Marc Nadon to the Supreme Court of Canada have been handed a judicial spanking for trying to collect tens of thousands of dollars for their efforts.

In a sharply worded decision released Tuesday, the Federal Court of Appeal denounced the claims put forward by Rocco Galati and Paul Slansky as misguided and excessive.

Spat between Harper, chief justice McLachlin called 'disturbing'

Marc Nadon's failed journey to the Supreme Court

Marc Nadon appointment rejected by Supreme Court

The judges were especially scornful of Galati's assertion that denying him full legal costs would effectively mean the court was "in bed" with the government.

"I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don't give the applicant its solicitor-client costs," Judge Denis Pelletier wrote for the court.

"This is reminiscent of the gonzo logic of the Vietnam War era in which entire villages had to be destroyed in order to save them from the enemy."
Justice Marc Nadon`s appointment to the Supreme Court of Canada Justice was challenged by Toronto lawyer Rocco Galati. (Sean Kilpatrick - The Canadian Press)

In 2013, then-prime minister Stephen Harper appointed Nadon to the country's top court. Galati challenged the eligibility of the Federal Court of Appeal judge to fill one of three seats reserved for Quebec. He put his challenge on hold when the government referred the issue to the Supreme Court, which then scuttled Nadon's appointment.

Galati asked for $51,706.54 — based on a charge of $800 an hour he said was reasonable for a lawyer with his experience. Slansky, acting for the Constitutional Rights Centre, wanted $16,769.20 for helping Galati. In December 2014, Federal Court awarded them a combined $5,000 in a nod to the work they had done.

The lawyers appealed. They argued they had a constitutional right to their full legal costs on the grounds they had derived no personal benefit from the Nadon challenge, which they said went to the "architecture of the Constitution."

The Federal Court of Appeal was having none of it.

'Not successful litigants'

"When the partisan political overlay is stripped away, this was a lawyer's issue with very limited consequences beyond legal circles," Pelletier wrote for the panel. "It certainly did not go to the 'architecture of the Constitution'."

He also rejected their claim that the challenge had been successful given that Nadon's appointment did not go through.

"The fact that their application apparently set in motion a series of events which led to the conclusion which they hoped to achieve in their application does not make them successful litigants," Pelletier said.

"It may make them successful politically or in the popular press, but that is a different matter."

The Appeal Court called it surprising the lawyers would claim $800 an hour — more than they normally charge their clients — saying the amount was excessive.

While Galati maintained nothing prevents a self-represented litigant from claiming legal costs, Pelletier called the concept an "oxymoron."

"A self-represented litigant, by definition, has no counsel and therefore no out-of-pocket expenses for which full indemnity is appropriate."

'No judicial bias'

Judge David Stratas also took issue with Galati's assertion that because the government pays judges, their failure to order the government to pay private-sector lawyers would indicate judicial bias.

"An officer of the court should never make such a submission," Stratas said in separate comments.

"There are many cases where judges, paid by government, have condemned government misconduct and have ordered government to do something against its will."

The court ordered the lawyers to pay $1,000 in costs, with Stratas saying he would have awarded more if the government had asked for more.

Neither Galati nor Slansky responded immediately to a request for comment.

"Dushahi Sribavan"  
"Julie Macfarlane"