Category: Canadian Decisions

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Rickard/Harrison “Travel Mandates Challenge” Really Just A PRIVATE Suit For Damages

When people are being asked to donate to public cases, a.k.a. public interest litigation, they are entitled to be fully informed about the nature of the suit. As a consumer, honesty and transparency in advertising are obviously important. This applies regardless of industry.

Plaintiffs in a high profile lawsuit filed last year are asking for money. However, it appears they are not being forthcoming about what is really going on. This is, of course, the latest “travel mandates challenge” filed in Federal Court.

Upon reading the Statement of Claim, and the Amended Claim, it appears simply to be a suit requesting damages. There’s no relief sought that would benefit Canadians as a whole. Even if the lawsuit were successful, there’s nothing for the public listed.

It doesn’t look like there’s much of an ideological issue with the injection pass anyway. Starting on paragraph 32, they argue that the Feds were neglient and incompetent in how it was set up. They also try to argue “negligence” and “bad faith” at the same time, despite them being contradictory.

There’s no order being challenged, nor any request that would prevent injection mandates from returning in the future. There’s no money or justice being sought for the “unvaccinated” as a group.

Rickard and Harrison were asked about this, but have refused to provide any answer, other than some insults. It will be interesting to see what happens now.

Brief History On The Proceedings In Federal Courts


The story actually has quite the convoluted history. There were originally 4 Applications filed in Federal Court and heard together. See parts 1, 2, 3 and 4.

The Statement of Claim is the more well known way to start litigation. It typically involves requests for financial compensation, but other orders can be sought as well. By contrast, an Application for Judicial Review has to do with reviewing an existing order, and is meant to be streamlined.

JURISDICTION ACTION JUDICIAL REVIEW STEPS TAKEN
Federal Statement Of Claim Application Motion
Ontario Statement Of Claim Application Motion
British Columbia Notice Of Civil Claim Petition Application
  • December 2021: Rickard/Harrison (T-1991-21)
  • January 2022: Naoum (T-145-22)
  • January 2022: Peckford (T-168-22)
  • February 2022: Bernier (T-247-22)

The Applications were declared “moot” in 2022 by Justice Jocelyne Gagné, but with the caveat that remedies could still be pursued by way of an Action, with a Statement of Claim.

It turned out that none of the Applicants were actually asking for any sort of damages. They were just asking that the injection pass requirement disappear permanently.

[27] Of note, after the IOs/MO were repealed and the Respondent had given notice of its motion for mootness, the Applicants in file T-1991-21 filed a Notice of Motion seeking orders to amend their Notice of Application to assert damages and indicating that their Application would proceed as an Action. On August 3, 2022, Associate Judge Tabib denied the motion, noting “it appears that one of the goals of the proposed amendments is to attempt to insulate the Applicants from the potential consequences of the Respondent’s motion to declare this application moot.” She considered the implications of a dismissal of the motion for mootness and concluded that “I am, accordingly, not satisfied that the dismissal of this application for mootness, if it is ordered, would substantially prejudice the Applicant’s ability to pursue a claim for damages by way of action. More importantly, I am not satisfied that the possibility of a future dismissal, with the resulting costs and inefficiency, justifies, at this time, the extraordinary remedy sought by the Applicants.”

[41] As stated above, these proceedings will have no practical effect on the rights of the Applicants. They have obtained the full relief available to them and a decision of the remaining declaratory relief would provide them no practical utility. If they suffered damages as a result of these IOs/MO being in force, they would have to bring an action against the Crown and have their respective rights assessed in light of all the relevant facts.

[46] Additionally, the rail passenger vaccine mandate is also challenged for breaching sections 2(a), 7, 8 and 15 of the Charter in several actions in damages before this Court (files no. T-554-22 and T-533-22), and the air passenger vaccine mandate in the Alberta Court of King’s Bench (file no. 2203 09246). It is true that none of these proceedings will test the IOs/MO against section 6 of the Charter but, as indicated above, considering that they are no longer in force, the proper vehicle would be an action in damages if the Applicants suffered any damages as a result of these temporary measures. The Court would then have the proper factual background to assess the Applicants’ Charter rights.

The Government lifted the mandates shortly before filing a Motion to declare the cases moot. Yes, this was a cynical ploy, but it was success in obtaining dismissals. The Judge declined to hear the challenges anyway, but gave an alternative path forward.

For reasons that were never made clear, at least not publicly, the Applicants all appealed. They APPEALED a ruling when they could have simply REFILED as an Action. The Federal Court of Appeal threw it out, noting the lawyers didn’t even understand the Standard For Review. (See here)

TYPE OF ERROR STANDARD FOR REVIEW
Error of Fact Overriding, Palpable Error
Error of Pure Law Correctness
Mixed Fact & Law Spectrum, Leaning To Overriding, Palpable Error
Discretionary Orders Overriding, Palpable Error

Justice Gagné’s decision of “mootness” could be challenged by arguing “overriding palpable error”. Granted, this is often harder than “correctness”. But this is very basic, and it’s baffling that senior, experienced lawyers don’t know this.

Then again, why are they appealing at all? Justice Gagné ruled that they could refile as an Action (with a Statement of Claim) if anyone had suffered any damages.

This is “bad beyond argument” level stupid.

[8] Two of the four groups of appellants do not address the standard of review at all in their memoranda of fact and law. The other two argue that the standard of review in these appeals is correctness. However, in oral submissions, the appellants now acknowledge that this Court must follow the appellate standards of review described in the previous paragraph.

Bernier, Peckford and Naoum decided to APPEAL AGAIN, seeking Leave to file with the Supreme Court of Canada. Keep in mind, they still could have refiled their pleadings (as an Action) with the Federal Court. Quite predictably, all Leave Applications were denied.

To their credit, this time, Rickard and Harrison decided to file a Statement of Claim, as had been recommended earlier. However, their suit is so poorly drafted that it’s unlikely to ever go anywhere.

Now we get to the main point of this article.

Rickard/Harrison Claim Is A PRIVATE Lawsuit

1. The Plaintiffs claim the following:

a. Constitutional damages pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”), in the amount of $1,000,000, exclusive of interest and costs, for breach of the Plaintiffs’ Section 6, 7 and 15 rights and freedoms as guaranteed by the Charter as a result of government decision-making and action conduct that was rooted in negligence, bad faith and willfully blind to the lack absence of scientific evidence or disconfirming scientific evidence regarding the role, and, in particular, the unknown efficacy, of Covid-19 vaccination in reducing the risk of Covid-19 transmission and infection within the transportation sector;

b. Costs of this action in accordance with the Federal Court Rules, SOR/98-106; and,

c. Such further and other relief as counsel may advise and this Honorable Court deem just.

Both the Statement of Claim and the Amended Claim are available. This is important because it doesn’t match with what’s being claimed. The content of this is quite clearly a private lawsuit for damages. It seeks monetary awards for themselves.

(a) Damages, interest, costs recovered
(b) Costs of the proceeding

While the original Applications were a direct challenge to injectin travel mandates, this case does no such thing. It’s a private lawsuit for money. Even if they were successful, there would be no impact on society at large, as none is being sought.

And by arguing “negligence”, Rickard and Harrison are opening the door for the Government to propose so-called better safeguards.

If Rickard and Harrison wanted donations to finance a lawsuit for their retirements, they can ask. However, they need to be transparent about the nature of the case.

Requests For Donations For “Travel Mandates Challenge”

In his pinned tweet, Rickard promotes this case as “seeking justice for 6-7 million ‘unvaccinated’ Canadians”. However, this is not the case.

The Claim (both original and amended versions) do not ask for any kind of remedy that would aid the public as a whole. There’s no remedy being sought that would benefit 6 or 7 million people. Rickard and Harrison are asking for money for themselves.

True, the original Applications challenged mandates, but this case doesn’t.

Reading the case as a whole, Rickard and Harrison aren’t really even challenging the idea of a “vaccine passport”. Instead, they go on and on about how the Trudeau Government was “negligent” and “reckless” in how it was implemented.

Potentially, a Judge could issue guidance on how to better administer such a system.

Interestingly, Rickard often provides screenshots of the front page of his suit. However, a link to the full document is rarely (if ever) included. A possible reason is that reading the Claim reveals instantly that the “challenge” being described doesn’t exist.

Donations To Be Funneled Through A “Charity”

Also in the pinned tweet, Rickard asks for money for this “historic and incredibly import lawsuit”, offering “charity receipts” to people donating. Now, this charity does exist, and can be found on the C.R.A. site.

Registration can also be found with Corporations Canada. Karl Harrison is listed as a director of the organization.

However, the concern comes in about what is being fundraised. Rickard and Harrison are pitching this lawsuit as public interest litigation, a challenge to the travel mandates.

In reality, it’s a private suit for money — for themselves.

Rickard whines (again, pinned tweet) that the mainstream press in Canada has effectively buried the story. Presumably, he’s not getting the money or attention because everyone’s in bed with Trudeau. It’s quite amusing to see.

Incidently, Rickard and Harrison were contacted about this. They were asked why they were only seeking money for themselves, if they were fundraising for a “travel mandates challenge”. Both have refused to answer.

If there is a legitimate explanation, it would be nice to know. However, it comes across as soliciting funds for a private case, disguised as public interest litigation.

They’re handing out tax receipts to cover donations to their private case, while telling prospective donors that it’s a challenge to injection travel mandates. Not a good look.

FEDERAL COURT APPLICATIONS STRUCK:
(1) https://www.canlii.org/en/ca/fct/doc/2022/2022fc1463/2022fc1463.html

FEDERAL COURT OF APPEAL RULING:
(1) https://www.canlii.org/en/ca/fca/doc/2023/2023fca219/2023fca219.html
(2) Travel Mandates Appeal Bernier Memorandum
(3) Travel Mandates Appeal Peckford Memorandum
(4) Travel Mandates Appeal Rickard-Harrison Memorandum
(5) Travel Mandates Appeal Respondents Memorandum

SUPREME COURT OF CANADA APPLICATIONS FOR LEAVE:
(1) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80713/2024canlii80713.html (Bernier)
(2) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80711/2024canlii80711.html (Peckford)
(3) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80702/2024canlii80702.html (Naoum)

RICKARD/HARRISON STATEMENT OF CLAIM:
(1) Rickard T-2536-23 Statement Of Claim
(2) Rickard T-2536-23 Notice Of Intent To Respond
(3) Rickard T-2536-23 Amended Statement Of Claim
(4) Rickard T-2536-23 Notice Of Motion
(5) Rickard T-2536-23 Motion Strike Statement Of Claim
(6) Rickard T-2536-23 Plaintiff Response To Motion To Strike
(7) Rickard T-2536-23 Motion To Further Amend Claim
(8) Rickard T-2536-23 Further Amended Statement Of Claim
(9) Rickard T-2536-23 Response To Plaintiff Motion To Amend
(10) https://x.com/ShaunRickard67/status/1840070389965128046
(11) https://www.freedomandjustice.ca/donate/
(12) CRA Page Of Institute For Freedom And Justice
(13) Corporations Canada Page

STANDARD OF REVIEW:
(1) https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(2) Housen (Highlighted)

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Rickard/Harrison Claim Seriously Defective, Will Never Get To Trial

The Federal Government has filed a Motion to Strike the 2023 lawsuit from Shaun Rickard and Karl Harrison.

See parts 1, 2 and 3 in the series so far.

For context, they previously filed an Application challenging the Interim Orders which mandated the injection pass to travel on trains or airplanes. 3 other Applications were filed with near exact circumstances, and for simplicity, were to be heard together. There was an impressive compilation of 23 Affidavits and 15 export reports included as evidence.

But before the cases could be heard, the Government brought a Motion to strike the 4 Applications for “mootness”. In essence, this is the idea that there is no longer a live issue to try. Since the travel mandates, weren’t in effect currently, the Government argued it was a waste of time and money. Apparently, no one was seeking damages.

Justice Jocelyne Gagné granted the Motion and threw the cases out, despite pleas to hear them anyway. Applicants were concerned that mandates could come back at a later time.

However, Justice Gagné did “throw a bone” to the Applicants. She stated in the ruling that if any of them had damages to recover, they could file a Claim and do so. Although not explicitly stated, presumably the ad hoc challenges to the mandates could still go on.

Instead of filing Claims and asking for damages, lawyers for all 4 Applications appealed. It was never made clear what possessed them to do it.

After screwing up at the Federal Court of Appeal — and this will be addressed later — most of the Applicants tried to go to the Supreme Court of Canada. They lost. Rickard and Harrison finally decided after the first Appeal to file a Claim. This is what the article will address.

The Rickard/Harrison suit is very poorly written, and likely to be struck for a series of procedural defects. It’s hard to believe they were represented by counsel.

A Necessary Disclaimer

To address the obvious: in no way, shape or form is this meant to excuse or justify “injection mandates”, whether for travel, or general livelihood. That being said, we need to be realistic about this case. It’s going nowhere.

While the original 4 Applications were struck as “moot”, this case has its own problems that will most likely see its demise.

Brief History On These Cases

December 2021: The Rickard/Harrison Application is filed. (T-1991-21)

January 2022: The Naoum Application is filed. (T-145-22)

January 2022: The Peckford Application is filed. (T-168-22)

February 2022: The Bernier Application is filed (T-247-22)

Eventually, the Court decides that all cases will be heard together, in order to save time and expense. This happens fairly often. Over the next several months, some 6,650 pages of evidence would be amassed. This would include 23 Affidavits and 15 expert reports.

Before the case can be heard, however, the Government brings Motions to strike the Applications on the basis of “mootness”. At this point, there were no mandates in effect, and no one had damages to claim. It’s a preemptive effort to derail the case.

October 2022: All 4 Applications are struck as “moot” by Justice Gagné.

November 2022: Notices of Appeal are filed against the striking of the Applications.

A-251-22 (Peckford)
A-252-22 (Rickard/Harrison)
A-253-22 (Bernier)
A-254-22 (Naoum)

November 2023: Federal Court of Appeal dismisses Appeals of all 4 Applications.

This is where Rickard/Harrison diverge from the others. They will file a Statement of Claim very shortly, while the others will attempt to get leave to go to the Supreme Court.

SCC File #41082 (Peckford)
SCC File #41081 (Bernier)
SCC File #41100 (Naoun)

November 2023: Rickard/Harrison filed Statement of Claim in Federal Court. (T-2536-23)

December 2023: The Government files Notice of Intent to Respond

June 2024: Rickard/Harrison file amended Statement of Claim.

July 2024: The Government files Notice of Motion against Rickard/Harrison, indicating they want the Claim struck. Despite its short length, there are many problems.

August 2024: Applications for Leave (permission) to go to Supreme Court of Canada are dismissed for Peckford, Bernier, Naoun

Rickard and Harrison decided to go their own way. What then are the issues with the Claim that they filed?

1. Claim Doesn’t Actually Challenge Mandates Themselves

The previous Applications from Rickard/Harrison, Bernier, Peckford and Naoun all challenged that mandates themselves, which required the “injection passport” in order to take a plane or a train. They asked for “Declaratory Relief”, which is a ruling from a Judge that something is illegal.

However, looking at the Statement of Claim, it demands: (a) $1,000,000 in damages; (b) costs of the lawsuit; and (c) “other such relief”. That’s it. They’re not asking the Court to make Declarations of any sort, or challenge the constitutionality of these Interim Orders.

So, what then is the purpose here?

Even assuming that a Judge finds that Charter damages are warranted, it doesn’t mean that the mandates themselves (or any part of it) will be prohibited from being reinstated later.

2. Failure To Plead Necessary Material Facts

Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.

This is from Section 174 of the Federal Court Rules.

In the November 2022 version of the Statement of Claim, the lawyer who drafted the case pleaded no facts whatsoever about the circumstances of Rickard and Harrison. There was no information provided on which to base a reply. From the perspective of due process, this is bad, as the Defendants are entitled to know what the allegations they must defend against.

To be fair, the Claim was amended in June 2023. It provided some, but not really enough information to reply to. Pretty pathetic that the case just sat in limbo for months.

3. Failure To Plead Necessary Particulars

Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.

This is also from the Federal Court Rules.

The Statement of Claim (and the amended version) both make allegations of bad faith, abuse of office, and deceit. In these instances, there’s an additional requirement to plead particulars. This is also referred to as “particularizing a Claim”. What this means is that extra detail and information must be provided. There can be no doubt as to what Defendants are being accused of: who, what, where, when….

What’s been pleaded here seems to fall short.

For these kinds of cases, facts and particulars must be included. In Ontario, for example, pleading facts (s.25.06(1)) and particulars (s.25.06(8)) is outlined in their Rules of Civil Procedure. It’s similar everywhere.

4. Failure To Properly Plead s.6 (Mobility) Charter Breaches

Mobility of citizens
6 (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

This comes across as pedantic, but there are several errors with how this part of the Claim is written, and it’s addressed in the Notice of Motion.

First, Rickard and Harrison don’t actually plead that they are Canadian citizens. Apparently they are, but it needs to be included in the Claim. It wasn’t in either the original or amended version.

Second, Rickard and Harrison don’t plead that they were prevented from entering or leaving Canada. But to be fair, it becomes practically impossible to leave (outside the U.S.) without an airplane. This portion of the Claim needs to be explained better.

Third, Rickard and Harrison don’t plead that they were prevented either from residing in any province, or gaining a livelihood.

Fourth, since Rickard and Harrison only referenced air travel in their Statement of Claim, restrictions on trains wouldn’t be an issue for the Court to consider.

Theoretically, a breach of s.6(1) is doable in a challenge. While s.6(2) doesn’t seem to apply, they could argue that they had their only practical means of leaving the country removed, absent taking the shots.

5. Failure To Properly Plead s.7 (Security) Charter Breaches

Life, liberty and security of person
7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

This isn’t to justify the mandates, but Rickard and Harrison need to be realistic. S.7 challenges that dealt with this exact issue have been filed (and thrown out) across the country. They weren’t forced to take the injections, but had their ability to travel serious hampered.

Again, this isn’t to excuse the practice, but this challenge offers nothing new. Even if it did, the Claim is so poorly drafted that a Judge may not take it seriously.

6. Failure To Properly Plead s.15 (Equality) Charter Breaches

Equality before and under law and equal protection and benefit of law
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The areas that are specifically listed in Section 15(1) of the Charter are referred to as enumerated grounds. In addition, Courts have recognized others, known as analogous grounds.

Enumerated Grounds:

  • Race
  • National or ethnic origin
  • Colour
  • Religion
  • Sex
  • Age
  • Mental or Physical Disability

Analogous Grounds:

  • Sexual Orientation
  • Marital Status
  • Off-Reserve Aboriginal Status
  • Citizenship
  • Income

Many seem to think that Section 15 encompasses equality under and and all categories. It does not. In reality, it’s extremely limited. There’s nothing here which could be construed as “vaccination or medical status”. It isn’t even a new or novel challenge, and has been rejected countless times already.

Note: again, this isn’t in any way to defend the coercive injection mandates, but to point out that the Charter isn’t the solution people think it is. Rickard and Harrison appear to have been very poorly advised.

The End For Rickard/Harrison Challenge?

The Motion brought by the Government does concede that there may be a possible path forward with regards to the s.6 (mobility) challenge. Sections 7 and 15 are basically dead in the water, especially considering the litany of rulings on these exact issues.

However, the performance of their legal team has thus far been underwhelming.

Aside from those 3 provisions in the Charter, Rickard and Harrison don’t plead any other grounds. If these fail, then that’s the end.

Since they’re not even asking for declaratory relief anymore — challenging the travel restrictions in principle — then it’s unclear what purpose the 6,650 pages (Affidavits and expert reports) will serve.

To be honest though, the Plaintiffs may wish to retain more competent counsel.

After appealing Justice Gagné’s 2022 ruling, when the case could have simply been refiled as an Action, this is the result. We get a short, poorly written Claim that pleads very little of the necessary information. It’s amended later, but still falls far short of what’s needed.

While it would be nice to see a ruling that firmly condemns the “injection travel mandates”, it seems very unlikely that this is it.

Why Keep Covering The “Freedom Lawyers”?

All too often, these “freedom” challenges fail spectacularly. There are always theories about why this is happening: (a) the system is corrupt; (b) the Judge is bribed and/or threatened; (c) the lawyers are retarded; (d) the Charter is worthless, and so on.

However, a much less talked about concern is that the challenges brought forward are regularly complete trash. They’re filed too late, filed in the wrong court, or the wrong paperwork is done. There have been several cases of unionized workers who were advised to sue — as opposed to seeking arbitration — and predictably, those are thrown out for lack of jurisdiction. In countless other instances, the pleadings are drafted so poorly that there’s no prospect of advancing to Trial. There are many different excuses.

In these exact challenges, lawyers APPEALED a decision from Justice Gagné, when they could simply have REFILED the case as an Action. It’s Action4Canada all over again.

Aside from Rickard and Harrison, the other Applicants appealed for a second time (sought Leave at the Supreme Court of Canada) instead of refiling as a Claim.

Why does this continue to happen?

We’ve seen that Governments across Canada bribe the media to promote the “pandemic” narrative. This happens both with direct subsidies and advertising. Taxpayer money is used to finance and subsidize the “scientists” who call for more lockdown measures. Other subsidies are used to prop up businesses who implement mandates. Heck, Trudeau even gave bailout money (CEWS) to his political “opponents”. See above.

For reference: Conservative Fund is the fundraising branch of the Conservative Party of Canada. United Conservative Association is the similar arm of the Conservatives in Alberta. And yes, both the Federal Liberals and New Democrats also took the money.

There is a pretty obvious explanation of why these cases are handled so poorly. However, this site does not engage in kooky conspiracy theories.

FEDERAL COURT APPLICATIONS STRUCK:
(1) https://www.canlii.org/en/ca/fct/doc/2022/2022fc1463/2022fc1463.html

FEDERAL COURT OF APPEAL RULING:
(1) https://www.canlii.org/en/ca/fca/doc/2023/2023fca219/2023fca219.html
(2) Travel Mandates Appeal Bernier Memorandum
(3) Travel Mandates Appeal Peckford Memorandum
(4) Travel Mandates Appeal Rickard-Harrison Memorandum
(5) Travel Mandates Appeal Respondents Memorandum

SUPREME COURT OF CANADA APPLICATIONS FOR LEAVE:
(1) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80713/2024canlii80713.html (Bernier)
(2) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80711/2024canlii80711.html (Peckford)
(3) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80702/2024canlii80702.html (Naoum)

RICKARD/HARRISON STATEMENT OF CLAIM:
(1) Rickard T-2536-23 Statement Of Claim
(2) Rickard T-2536-23 Notice Of Intent To Respond
(3) Rickard T-2536-23 Amended Statement Of Claim
(4) Rickard T-2536-23 Notice Of Motion

STANDARD OF REVIEW:
(1) https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(2) Housen (Highlighted)

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Federal “Injection Travel Mandate” Cases: Why Appeal When They Could Have Been Fixed?

This is yet another instance of “alternative” media not telling the whole story.

Recently, the news broke that 3 Applications for Leave to the Supreme Court of Canada had been denied. These were attempts at secondary Appeals for Peckford, Bernier and Naoum, challenging the “travel mandates” and the requirement to take the shots in order to travel.

There was actually a 4th Application grouped together, but those litigants have since filed a Statement of Claim instead. The other 3 chose to take the above route.

For context, the 4 related Applications were filed in late 2021 and into 2022. Because they covered essentially the same subject matter, they would be heard together.

  • T-145-22: Nabil Ben Naoum
  • T-247-22: Maxime Bernier
  • T-1991-21: Shaun Rickard, Karl Harrison
  • T-168-22: Brian Peckford, Leesha Nikkanen, Ken Baigent, Drew Belobaba, Natalie Grcic, Aedan MacDonald

To make a very long story short: it didn’t have to be this way.

The Federal Court ruled in October 2022 that the 4 cases were “moot”, meaning there was no active issue to try. Since mandates were no longer in effect, all that was sought was declaratory relief. This was in spite of talk that injection mandates could return at some point.

Now the Applicants could have taken another path, and commenced Actions (and filed Claims). This was made clear to them.

Rather than do this, they all chose to appeal the mootness ruling.

They appealed, instead of taking the easier path to fix their case.

Basically, this is Action4Canada 2.0

Action4Canada Case V.S. Travel Mandates Case

Consider 2 high profile cases in recent years.

(Case #1) Back in August 2022, the Action4Canada case (filed in Vancouver) was struck as “bad beyond argument“. This 391 page monster failed to follow even the basics of Civil Procedure. It was incoherent, and asked for all kinds of remedies outside the jurisdiction of a Civil Court. However, Justice Alan Ross did allow an amended Notice of Civil Claim to be filed.

Instead of filing a proper Claim, the ruling was appealed instead. They lost.

(Case #2) Back in October 2022, the Federal Court struck 4 Applications to Federal injection mandates for travel for “mootness”. Justice Jocelyne Gagné made a discretionary finding that there was no live issue to try, since the mandates were no longer in effect. However, Justice Gagné, and Associate Justice Tabib, had remarked that if there were damages, then these cases could proceed as Actions. Of course, this would involve filing Statements of Claim.

Instead of filing Actions, ALL of the Applicants appealed.

Following this, they (other than Rickard and Harrison) attempted to appeal again.

The Action4Canada and travel mandate cases share a common thread. Although the circumstances differed, all were given the option to correct the flaws in their pleadings. Instead, each of them chose to appeal.

Filing Actions V.S. Filing Judicial Reviews

JURISDICTION ACTION JUDICIAL REVIEW STEPS TAKEN
Federal Statement Of Claim Application Motion
Ontario Statement Of Claim Application Motion
British Columbia Notice Of Civil Claim Petition Application

Although the names vary somewhat, there are normally a few different ways to commence legal action.

The most common way is with an Action, and it involves filing a Statement of Claim, or some similar document. These can be very simple cases, or they can be very complex and tedious.

A lesser known and understood method is by Judicial Review. In essence, it’s the challenging of some sort of decision or order made by some Government official. Despite how it’s often used, the idea is to challenge simple rulings, such as licences being denied, or funding not being received. It’s typically a much more streamlined process than Actions.

There is overlap between them, and the circumstances of each case determines which would be appropriate.

Why does this matter? Because the Federal Court left open the possibility for these litigants to refile their grievances as Actions, and ask for damages. Instead, they appealed, because …. reasons.

Rickard and Harrison were quite aware of this, as their 2022 Motion indicates. So when the Applications were struck, they could have refiled, but as Actions. They appealed, because …. reasons.

Justices Tabib & Gagné Stated That Case Could Proceed As An Action

True, at an earlier Motion, Associate Justice Tabib did dismiss a Motion that would have allowed the Rickard/Harrison Application to be converted into an Action. Yes, the original pleading wasn’t permitted to be amended to include damages.

Yes, Justice Gagné did strike the Applications as being “moot”. Since no one (apparently) sought damages in their Application, and the travel mandates were lifted, there apparently wasn’t a “live” issue to try.

However, consider what was actually written in the October 2022 decision.

[41] As stated above, these proceedings will have no practical effect on the rights of the Applicants. They have obtained the full relief available to them and a decision of the remaining declaratory relief would provide them no practical utility. If they suffered damages as a result of these IOs/MO being in force, they would have to bring an action against the Crown and have their respective rights assessed in light of all the relevant facts.

This is from the ruling, and is pretty clear. If there were damages suffered, then the case should be brought as an Action, not an Application.

Standard For Review: Housen v. Nikolaisen, 2002 SCC 33

After the 4 Applications were declared “moot” in the Fall of 2022, the Applicants could have converted them into Actions, and filed Statement of Claim for each (or one for everyone). Appealing made no sense, especially when looking at the “Standard of Review“. See highlighted version.

What this means is that different standards are applied, depending on whether someone is challenging a: (a) finding of fact; (b) application of or findings of the law; or (c) a discretionary act by a Judge.

Findings of fact: standard of review is “overriding palpable error”
Findings of law: standard of review is correctness
Exercises of discretion: standard of review is “overriding palpable error”

The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. The reasons for deferring to a trial judge’s findings of fact can be grouped into three basic principles. First, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce. The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard. Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

A. Standard of Review for Questions of Law
.
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: Kerans, supra, at p. 90.

There are at least two underlying reasons for employing a correctness standard to matters of law. First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations. The importance of this principle was recognized by this Court in Woods Manufacturing Co. v. The King, [1951] S.C.R. 504, at p. 515:

Justice Gagné “exercised her discretion” to find that the 4 Applications were moot. In other words, she simply decided that the cases weren’t worth hearing. Now, why does it matter that she used her discretion?

As it turned out, the Appellants argued the wrong test. 2 of them thought it was “correctness”, and the other 2 didn’t specify what they wanted.

Appealing a “discretionary” order is damn near impossible. It’s not enough to say that someone can come to a different conclusion. It must be demonstrated that the Judge’s use of that discretion contained outright error. It’s a much higher standard than correctness.

The Appellants also tried arguing the merits of their cases. However, the only issue to be decided was whether Justice Gagné committed “overriding palpable error” by finding the cases to be moot. It seems that the lawyers don’t understand the purpose of appealing.

Considering that the Applicants could have simply refiled their cases as Actions, it’s baffling why they would do this.

Bernier, Peckford, Naoum Launch SECOND Appeal

The majority of these litigants apparently weren’t satisfied losing once in Appellate Court. They decided to try again with the Supreme Court of Canada. Remember, the goal here was to get the finding of “mootness” overturned. They (still) could have filed Actions — as they were advised — but appealed again, because …. reasons.

Not even “Mr. Bad Beyond Argument” attempted a second Appeal with Action4Canada.

“Applying for Leave” is a term that means asking for permission. The SCC doesn’t hear cases from all interested parties. Instead, it picks and chooses what it finds to be important. In fact, most Applications are denied.

Rickard and Harrison, to their credit, did finally make the right choice. However, their Claim has serious issues that will be addressed in a bit.

Bernier, Peckford, Naoum Likely Time Barred At This Point

Even if the above litigants wanted to refile their cases as Actions, it’s likely too late. For most things, the Statute of Limitations is 2 years. As we are now at the end of August 2024, it’s very unlikely that there would be any recent damages they could claim.

To sound like a broken record: they could have done this back in October 2022.

Rickard/Harrison Claim Not Properly Pleaded

Even though Rickard and Harrison are pursuing a Claim, they aren’t out of the woods yet. The pleading is Galati-level bad in terms of its quality.

The Claim is very bare-bones in terms of detail. A Judge might find that there aren’t sufficient facts pleaded. In fairness, the amended version fixes some of it.

Considering that there are allegations of “bad faith”, there’s a requirement to give full particulars, which hasn’t been done.

The Claim pleads breaches of s.6 (mobility), s.7 (security) and s.15 (equality) Charter Rights. However, none of them are properly pleaded. They don’t even specify that the Plaintiffs are Canadian citizens, which is required for the s.6 breach to have teeth. The Notice of Motion is actually quite a good reference point.

What Kind Of Idiot Appeals Instead Of Fixing Their Case?

Allison Pejovic, one of the lawyers involved in the SCC Leave Applications, released a video describing what had happened. She sounds very compelling and passionate. Taken at face value, there’s no reason to doubt anything she says.

However, what she fails to mention is that the Applicants (in all 4 cases) were able to proceed with the cases (as Actions) if there had been damages as a result. From the 2022 ruling:

[40] It is true that the parties, and to some extent the Court, have already invested financial and human resources in these files. However, most of the Court resources are yet to come with a five-day judicial review hearing and extensive writing time (these files comprise 23 affidavits and 15 expert reports totaling approximately 6,650 pages). That is without considering potential appeals to the Federal Court of Appeal and to the Supreme Court of Canada.

There were apparently: (a) 23 Affidavits; and (b) 15 expert reports, which totaled over 6,600 pages. Cross-examinations of witnesses also took place. And unlike with Action4Canada, these piles of documents actually exist. But because these lawyers appealed instead of refiling, these will never get to Trial.

And the way the Rickard/Harrison case is proceeding, it will go nowhere either.

One really has to wonder how all of the “freedom lawyers” can be so clueless and incompetent in pursuing cases against the Government.

FEDERAL COURT APPLICATIONS STRUCK:
(1) https://www.canlii.org/en/ca/fct/doc/2022/2022fc1463/2022fc1463.html

FEDERAL COURT OF APPEAL RULING:
(1) https://www.canlii.org/en/ca/fca/doc/2023/2023fca219/2023fca219.html
(2) Travel Mandates Appeal Bernier Memorandum
(3) Travel Mandates Appeal Peckford Memorandum
(4) Travel Mandates Appeal Rickard-Harrison Memorandum
(5) Travel Mandates Appeal Respondents Memorandum

SUPREME COURT OF CANADA APPLICATIONS FOR LEAVE:
(1) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80713/2024canlii80713.html (Bernier)
(2) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80711/2024canlii80711.html (Peckford)
(3) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80702/2024canlii80702.html (Naoum)

RICKARD/HARRISON STATEMENT OF CLAIM:
(1) Rickard T-2536-23 Statement Of Claim
(2) Rickard T-2536-23 Notice Of Intent To Respond
(3) Rickard T-2536-23 Amended Statement Of Claim
(4) Rickard T-2536-23 Notice Of Motion

STANDARD OF REVIEW:
(1) https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(2) Housen (Highlighted)

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HateGate, Part 2: Settling The Score With Bernie Farber

This continues the series on “Diagolon”. This is a so-called “meme” organization that shows the signs of being a honeypot run by either law enforcement or intelligence.

Parts 1, 2, 3, 4 and 5 of the Schill gun grab are here.
Part 1 of the HateGate Scam is available as well.

There’s a lot more to get into, all of it ignored by so-called “alternative” media.

In the last piece, we covered Elisa Hategan’s history with “Heritage Front”. This so-called white supremacist group turned out to be (at least in part) a CSIS operation. It was co-founded by Grant Bristow, who was a CSIS agent at the time.

As she co-authored the infamous “HateGate report” with Caryma Sa’d, it was strange to omit the possibility that Jeremy MacKenzie and “Diagolon” may be the next iteration. If the Government would manufacture at least one such group, what’s to stop them from doing it again? While this coincidence alone is not definitive proof, it’s not something that can be ignored either.

Now, we come across something which completely stands things on its head. Hategan went after Bernie Farber and Elizabeth Frederiksen (who still uses her maiden name, Moore) a few years ago. She lost.

Both Hategan and Moore/Frederiksen were part of Heritage Front, and both played a role in bringing down the group. As is noted by Justice Ferguson, both women’s stories have many similarities. However, their futures diverged greatly afterwards.

Farber and Moore/Frederiksen went on to lead the Canadian Anti-Hate Network, while Hategan was left in relative obscurity. Reading through the decision, it appears that she didn’t get the glory and recognition she felt was owed to her. Being able to share her story wasn’t enough, as she didn’t want others to have that same right.

Hategan went as far as to buy up many domain names with very similar names to Elizabeth Moore, so that they couldn’t be used. This behaviour is downright creepy.

Farber chose his “pet”, and it wasn’t Hategan, so she lashed out.

It’s baffling why Hategan would write the HateGate report — which is 85 pages long, and full of citations. She claims to be the main researcher and writer of the document. MacKenzie and his crew used it to claim “vindication” over Government overreach, and the invoking of the Emergencies Act. Considering Hategan now proudly shares her identity as Jewish and a lesbian, allying with them would make no sense. Ideologically, she has far more in common with Farber and Moore/Frederiksen.

However, it makes sense once the history between these people is revealed.

Put into context, the HateGate paper comes across as an act of revenge.

One has to wonder if this is why the “honeypot” narrative of Diagolon was glossed over. Sure, it would do damage to MacKenzie, Harrison and Vriend to reveal it, but not to Farber or CAHN.

Ironically, Hategan also feels sidelined by Caryma Sa’d, who has received the bulk of the publicity for the HateGate paper.

Timeline Of Major Events In Hategan Lawsuit

September 2017: Farber goes on “The Agenda”, and talks about Hategan and Frederiksen as “heroes” who helped take out the group, Heritage Front.

December 2018: Hategan files Statement of Claim against Moore/Frederiksen. It includes torts for (a) injurious falsehood; (b) civil conspiracy; (c) wrongful appropriation; (d) unlawful interference; and (e) negligence. None of it was pleaded properly, and one may say it was “bad beyond argument”.

January 2019: Statement of Defence (and a Counter-Claim) are filed by Frederiksen. She sued for (a) defamation; (b) invasion of privacy; (c) appropriation of likeness; and (d) interference with economic relations.

April 2019: Statement of Claim is amended, and Bernie Farber added as a Defendant.

July 2019: Farber filed a Statement of Defence, and also brought a Motion to Dismiss for Summary Judgement.

December 2020: Justice Ferguson hears Motions for Summary Judgement brought by Farber and Frederiksen. The decision is reserved, which is typical in these types of cases.

February, 2021: Justice Ferguson throws out Hategan’s Claim on a Summary Judgement Motion, and Frederiksen’s Counter-Claim is granted. Hategan was ordered to pay:

  • $100,000 for general damages;
  • $50,000 for aggravated damages;
  • $50,000 for punitive damages

March 2021: Hategan serves Notice of Appeal on Frederiksen and Farber.

March 2021: Justice Ferguson confirmed the cost award against Hategan. Also the permanent injunction for her to stop publishing content about Frederiksen, remove existing content, release all domain names, and refrain from using identifiers of her likeness.

April 2021: The Registrar gave notice to Hategan that her Appeal would be dismissed for delay since she had missed the 30 day deadline to file her paperwork. Hategan thought there was 60 days, however, that didn’t apply since there was no transcript.

May 2021: Hategan retains another lawyer, who asks for consent for an extension to file the Appeal documents. The request is denied.

July 2021: The Registrar dismisses the Appeal for delay.

August 2021: Hategan’s counsel advises that there will be a Motion brought to challenge the administrative delay. There were procedural headaches after this. January 2022 is set as a date, but delayed again.

February 2022: Justice Pardu of the Court of Appeal for Ontario hears a Motion to set aside (invalidate) the Registrar’s dismissal of the Appeal for delay. It’s held via video conference.

March 2022: Justice Pardu dismisses Motion to set aside the Registrar’s dismissal for delay. Among the reasons given is that there is — on the surface — little or no merit to the Appeal. Frederiksen had agreed to waive costs if the Motion was dismissed, while Farber got the $5,000 he asked for.

July 2022: Justice Simmons orders Hategan to pay security for costs to Farber.

October 2022: Justices Lauwers, Roberts and Trotter dismissed a Review Motion (of Justice Simmons) requiring Hategan to pay security for costs.

January 2023: Court of Appeal hears a Review Motion from Hategan. She’s contesting the decision of the Registrar to dismiss her Appeal for unnecessary delay.

January 2023: Hategan’s Review Motion (at the Court of Appeal) is dismissed. Given her delay, prejudice to the Respondents, and the lack of merit to the Appeal, Justices Nordheimer, Miller and van Rensburg decided not to give her another chance. She was ordered to pay Frederiksen $7,500, and Farber another $5,000.

Hategan v. Farber, 2021 ONSC 874 (CanLII)
Hategan v. Frederiksen, 2022 ONCA 217 (CanLII)
Hategan v. Frederiksen, 2022 ONCA 715 (CanLII)
Hategan v. Frederiksen, 2023 ONCA 57 (CanLII)

Hategan Stalked, Doxed, Harassed And Impersonated Her Rival

Ms. Hategan has invaded Ms. Moore’s privacy

[138] Ms. Moore submits that Ms. Hategan’s actions amount to the tort of public disclosure of embarrassing private facts. The information about Ms. Moore’s former extra-marital affair was conveyed to Ms. Hategan under strict promises of confidentiality. By publishing statements about these sexual relations, and falsely claiming that this was done to advance Ms. Moore’s career, Ms. Hategan has clearly given publicity to a matter concerning the private life of Ms. Moore. Ms. Moore submits that this publication is (i) highly offensive to a reasonable person; and (ii) is not of legitimate concern to the public. Ontario courts have particularly noted the private nature of sexual relations and family quarrels, among others.

[139] Ms. Moore further submits that Ms. Hategan’s actions amount to the tort of breach of confidence. The information about Ms. Moore’s extra-marital affair was confidential, in that it was conveyed to Ms. Hategan under strict promises of confidentiality, and Ms. Hategan’s publication of that information was unauthorized and was to Ms. Moore’s detriment. This confidential and highly intimate information was used to denigrate Ms. Moore’s personal and professional reputation, imputing that Ms. Moore received professional benefits from this and other sexual relationships. Damages, sufficient to mark the wrong that has been done, are warranted.

[140] I agree that this tort has been made out. The information about Ms. Moore’s extra‑marital affair was conveyed to Ms. Hategan in confidentiality. I agree that this information is highly offensive to a reasonable person and is not a legitimate concern to the public.

Ms. Hategan appropriated Ms. Moore’s personality and likeness

[141] Ms. Moore submits that Ms. Hategan appropriated Ms. Moore’s likeness by registering multiple websites and social media handles (the “domains”) in Ms. Moore’s name. Ms. Hategan inked many of the domains directly to her own website, so that when a person searched for Ms. Moore, they were redirected to Ms. Hategan’s information. In doing so, Ms. Hategan took advantage of the name, reputation and likeness of Ms. Moore’s personality. Ms. Hategan did this for commercial purposes and to boost her own professional reputation. As a direct result, Ms. Moore cannot register many of the domains that would naturally be used for her business – including variations of her name. Instead of using her own name, Ms. Moore has to use a fictional phrase – “one moore liz” – to promote herself online.

[142] I agree with the defendant that these actions constitute an appropriation of Ms. Moore’s personality and likeness.

Interference with Ms. Moore’s economic relations

[143] On at least two separate occasions, Ms. Hategan threatened to sue Ms. Moore’s professional colleagues in an attempt to interfere with Ms. Moore’s economic relations. Ms. Moore alleges that this amounts to the tort of intimidation, and is an actionable wrong committed against a third party. In at least one instance, as admitted by Ms. Hategan, these threats led to a speaking engagement being cancelled. As a result of these actions, Ms. Moore has suffered economic harm and loss. Ms. Moore does not know how many other opportunities she may have lost out on, because Ms. Hategan has refused to produce relevant communications with third parties. Ms. Moore submits that an adverse inference should be drawn.

[144] Again, I agree with these submissions. Ms. Hategan has caused interference with Ms. Moore’s economic relation.

All of this comes from Justice Ferguson’s ruling in 2021. Hategan meddled in the business of Moore/Frederiksen to a significant degree, and damages were awarded.

Worth noting: Justice Ferguson also concluded that none of Hategan’s torts had any merit whatsoever. It was a baseless and frivolous lawsuit.

Rather than accepting the loss, Hategan managed to tie up the matter in Appellate Court for another 2 years. No Appeal was ever actually heard for Justice Ferguson’s 2021 decision.

Why Does Any Of This Matter In HateGate Report?

In a turn of events that should surprise no one, Hategan threatened to sue Derek Harrison earlier this year. She wasn’t happy with the entry in his (sarcastic?) book called “Meme Kampf”. She was apparently also arrested in December 2023 for criminal harassment. Again, not surprising.

Justice Ferguson found (among other things) that Hategan had been buying up various domain names so that Frederiksen would be unable to do business. This goes far beyond petty bullying. All things considered, she comes across as being unhinged.

If people are going to be claiming that there’s a complete failure of law enforcement and intelligence agencies in Canada, then the context of their writing is important. The FOIPIP (linked below) doesn’t really support their conclusions.

Again, Hategan claims to be the primary author of the report.

Hategan apparently had no problems being part of the “anti-hate industry”. The animosity only started after she didn’t get the credit and attention she believed she deserved. For better or worse, Farber chose Frederiksen, and gave her accolades for her work.

True, people should have their work judged on its merits. However, this case changes everything. It’s not some ancient D.U.I. from 20 years ago, but reflects directly on what’s happening now.

One final point: this isn’t to be construed that the people at CAHN are the “good guys”. They aren’t, and they’ve done considerable damage to people. In no way should this be seen as endorsing their “work”.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

CARMICHAEL ASSAULTING A PRISONER:
(1) Ernest Carmichael Disciplinary Hearing Penalty Decision 25.07.2014
(2) https://toronto.ctvnews.ca/siu-lays-assault-charge-against-york-region-police-officer-1.1392108
(3) https://www.thestar.com/news/gta/york-police-officer-charged-with-assault/article_d1b43f97-a077-59b4-8603-747a94b76170.html

HERITAGE FRONT/CSIS:
(1) https://www.youtube.com/watch?v=d8CQ6pjKaJ8
(2) https://www.youtube.com/watch?v=gy7U8AOXhuw
(3) https://www.youtube.com/watch?v=A1cBOmr3pWg
(4) https://crier.co/the-hategate-affair-unmasking-canadas-hate-industry/
(5) Full Text Of HateGate Report (85 Pages)
(6) https://www.amazon.com/Race-Traitor-Canadian-Intelligence-Services-ebook/dp/B00JA05FYM
(7) https://open.canada.ca/en/search/ati
(8) https://open.canada.ca/en/search/ati/reference/0deb7fad4bfd4546cfd5e016c1667454
(9) https://x.com/elisahategan/status/1709587192715124829
(10) https://x.com/elisahategan/status/1757851798147117192
(11) https://x.com/elisahategan/status/1758258494740832409
(12) https://x.com/elisahategan/status/1762255316429803597/
(13) https://x.com/elisahategan/status/1798395395887997146
(14) https://x.com/elisahategan/status/1797682910516195560
(15) https://x.com/elisahategan/status/1734060656960090558
(16) https://x.com/elisahategan/status/1783193060005818703

HATEGAN STALKING CIVIL CASE:
(1) https://www.canlii.org/en/on/onsc/doc/2021/2021onsc874/2021onsc874.html
(2) https://www.canlii.org/en/on/onca/doc/2022/2022onca217/2022onca217.html
(3) https://www.canlii.org/en/on/onca/doc/2022/2022onca715/2022onca715.html
(4) https://www.canlii.org/en/on/onca/doc/2023/2023onca57/2023onca57.html

HATEGATE FOIPIP PACKAGE (FULL RELEASE):
(0) Previously Published Documents
(1) A-2022-06987 Release Package Part 1
(2) A-2022-06987 Release Package Part 2
(3) A-2022-06987 Release Package Part 3
(4) A-2022-06987 Release Package Part 4
(5) A-2022-06987 Release Package Part 5
(6) A-2022-06987 Release package Part 6
(7) A-2022-06987 Release Package Part 7
(8) A-2022-06987 Release Package Part 8
(9) A-2022-06987 Release Package Part 9
(10) A-2022-06987 Release Package Part 10
(11) A-2022-06987 Release Package Part 11
(12) A-2022-06987 Release Package Part 12
(13) A-2022-06987 Release Package Part 13
(14) A-2022-06987 Release package Part 14
(15) A-2022-06987 Release Package Part 15
(16) A-2022-06987 Release Package Part 16
(17) A-2022-06987 Release Package Part 17
(18) A-2022-06987 Release Package Part 18
(19) A-2022-06987 Release Package Part 19
(20) A-2022-06987 Release Package Part 20
(21) A-2022-06987 Release package Part 21

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Diagolon Gun Grab, Part 5: Carmichael’s 2013 Incident Of Assaulting A Prisoner

The recent focus on this site has been the Gary Schill case, dubbed the “Diagolon Gun Grab”. However, some information about the officer involved, Ernest Carmichael, needs to be shared as well. Back in 2013, the Special Investigations Unit was called over allegations of a police officer committing assault.

On the criminal end of things, Carmichael pleaded guilty to assault and received a conditional discharge. He was placed on probation for a year, meaning that he won’t have a record afterwrds.

As for the administrative side, Carmichael faced a count of “unnecessary force against a prisoner”. Now, this was an internal complaint within the police itself. This means that despite the guilty plea, he didn’t even lose his job. He admitted to kicking a prisoner in the head “2 or 3 times”, but wasn’t fired.

What ultimately happened to him was a 9 month demotion from 1st Class Constable to 2nd Class Constable, and 100 hours of community service.

This demonstrates that Carmichael has shown very poor judgement, but was allowed to keep his job which is considered a “position of trust”. Yes, it was a long time ago, but worth mentioning.

The case doesn’t seem to be cited on CanLII, but the decision is available nonetheless.

The agreed set of facts:

  1. Constable Ernest Carmichael #1950 has been a member of the York Regional Police since April of 2009. He has held the rank of First Class Constable since August of 2012.
  2. On April 21, 2013 at approximately 9:45 p.m., members of York Regional Police attended the public complainant’s residence to investigate an impaired driving complaint regarding her son. Her son had pulled into the driveway a few minutes earlier.
  3. The public complainant’s husband went to his front door and saw two uniformed police officers talking to his son. Mr. Horsak stepped outside and told the officers he wanted them off his property, as he believed they did not have cause to be there.
  4. The officers told Mr. Horsak that his son was under arrest and was going to be charged with impaired driving. Mr. Horsak replied that his son had just come home and was not impaired, and again told the officers to get off his property.
  5. While this conversation was taking place, the son ran inside the house. The two officers followed the public complainant’s son inside the home. The son then ran upstairs and locked himself inside a bathroom. The officers remained just inside the entrance of the house.
  6. Mr. Horsak told the officers to get out of his house and again to get off his property. The police did not leave the home and instead used their portable radios to request the attendance of more officers at the scene.
  7. Four more police officers, including PC Carmichael, arrived at the home a short while later and also entered the residence. Mr. Horsak pushed one of the officers, not PC Carmichael, on the chest to try to keep him from moving further into the house. A struggle ensued and two officers, PC Ron Peever #696 and PC Mark Kowalchuk #1823, took Mr. Horsak to the floor.
  8. Mr. Horsak ended up face-down on the floor in a prone position. One officer attempted to gain control of Mr. Horsak’s left arm while another officer attempted to gain control of his right arm, which were both under his body, in an attempt to handcuff him. According to Mr. Horsak, his arms are chronically susceptible to being dislocated, and he was trying to prevent this from occurring. However, he did not tell this to the police officers.
  9. While the two officers were attempting to subdue Mr. Horsak on the floor, PC Carmichael approached him and kicked him in the head two or three times. The officers were eventually able to place Mr. Horsak in handcuffs, then escorted him out of the house and placed him in the back of a police cruiser.
  10. On May, 20 2014, PC Carmichael appeared before the Honourable Justice Armstrong in the Ontario Court of Justice (Criminal Court). At that time, he entered a plea of guilty to the charge of assault contrary to section 255 of the Criminal Code of Canada. PC Carmichael received a conditional discharge and was placed on probation for a period of 12 months subject to terms, including.

(a) That he not associate or communicate directly or indirectly with Mr. Horsak except as may be required in the course of his duties as a police officer; and
(b) That he perform 100 hours of community service by April 15, 2015

The terms of Carmichael’s probation still allowed him to associate with the victim as long as it was “required in the course of his duties as a police officer”.

Disposition:
.
In light of the seriousness of these allegations and bearing in mind all the evidence placed before me, Constable Ernest Carmichael #1950 will be demoted from his position of First Class Constable to Second Class Constable immediately for a period of nine (9) months and will return to First Class Constable upon the completion of the nine months at the Second Class Constable level pursuant to Section 85 (1) (c) of the Police Services Act.

Further, you will receive remedial training with the Policies of the York Regional Police Service as it relates to Use of Force and any other Policies as required and deemed necessary by your immediate supervisor in consultation with Senior Command of the York Regional Police Service.

In reading through the submissions on sentencing, it appears that these sort of complaints often bring fairly lax consequences.

I have considered the five (5) cases presented to me by Counsel. As I communicated earlier in this disposition the cases presented to me are not on point, however they were instructive for disposition considerations.

In Schofield vs. Metro Toronto Police (1994) the Commission stated:

“Consistency in the discipline process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with in earlier occasions. “

It’s rather disturbing to see the Adjudicator go on and on about the public needing to have confidence in law enforcement. But this decision, and the overall pattern, seem to do anything but inspire confidence.

Despite not being convicted of a crime, Carmichael was able to have Schill’s firearms taken away for things he posted online, homemade ammunition crafting, and largely speculative claims about a “militia”. Meanwhile, Carmichael admits to assaulting a prisoner, and gets to keep his service revolver (a restricted weapon), and his job (a position of trust). Interesting standards.

Final fun fact: Carmichael was successful in the Application to get Schill’s gun licence suspended (in large part) because of his association with Jeremy MacKenzie. At his hearing for excessive force, Carmichael’s Defence Counsel was named William MacKenzie. Small world, it seems.

Parts 1, 2, 3 and 4 of the series are available as well.

Thank you to the reader who forwarded this decision. It does give some much needed balance and context for what’s been going on.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

CARMICHAEL ASSAULTING A PRISONER:
(1) Ernest Carmichael Disciplinary Hearing Penalty Decision 25.07.2014
(2) https://toronto.ctvnews.ca/siu-lays-assault-charge-against-york-region-police-officer-1.1392108
(3) https://www.thestar.com/news/gta/york-police-officer-charged-with-assault/article_d1b43f97-a077-59b4-8603-747a94b76170.html

POEC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) POEC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) POEC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) POEC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) POEC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) POEC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

CASELAW ON REVOKING FIREARMS PERMITS:
(1) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.J. No. 50, at para 12, 16, 17, 18
(2) British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para 25.
(3) R. v. Christiansen, 2006 BCCA 189, at para 7.
(4) R. v. Bokhari, 2009 ONCJ 691, at para 10, relying on R. v. Day, [2006] O.J. No. 3187 (S.C.J.) and R. v. Morgan, [1995] O.J. No. 18 (Ont.Ct.(Prov.Div.)).
(5) R. v. Peacock-McDonald, 2007 ONCA 128, at para 40
(6) R. v. Douglas, 2013 ONCJ 649, at paras 45, 57.
(7) R. v. Mourtzis, 2015 ONCJ 74, at para 25.
(8) R. v. Roman, 2018 ONCJ 344, at para 89.
(9) R. v. Hurrell, 2002 CanLII 45007 (ON CA), [2002] O.J. No. 2819, at para 48.
(10) R. v. Christiansen, supra, at para 7.
(11) Fahlman, supra, at para 25.
(12) R. v. Peacock-Macdonald, supra, at para 40.
(13) R. v. Roman, supra, at para 89.
(14) R. v. Wiles, 2005 SCC 84, at para 9.

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Diagolon Gun Grab, Part 4: Caselaw Makes It Surprisingly Easy To Do

This continues the series on the “meme group” Diagolon, and the threat that it poses to gun ownership in Canada. Part 1 focused on the ruling of Gary Schill, which saw his privileges suspended for 5 years. Part 2 and Part 3 covered the testimony given by Detective Constable Ernest Carmichael.

The short version is that an Ontario Judge decided it was in the public interest to suspend Schill’s licence because of what he might do. This wasn’t because of a criminal conviction, or ties to terrorism or sedition. He was an administrator of the Diagolon Telegrams, and his posting came to police attention.

Yes, he was arrested for assault, and it was dropped. But it was the content he had posted online, his associations, his views, and making ammunition at home which led to the ban.

The hearsay evidence of his then-wife was also considered at the hearing, despite her not testifying at all. She had told police that a militia was being formed.

Now, how easy is it to suspend or revoke gun rights (or privileges) in Canada? Looking at the cases cited in the Schill decision, it’s actually pretty straightforward. Cases cited are listed at the bottom of the article, although not all are available on CanLII.

Starting with the Supreme Court of Canada:

(1) R. v. Wiles, 2005 SCC 84 (CanLII), [2005] 3 SCR 895

[9] I agree with the Court of Appeal. Mr. Wiles has not established that the imposition of the mandatory weapons prohibition orders constitutes cruel and unusual punishment. As noted by the Court of Appeal, the prohibition has a legitimate connection to s. 7 offences. The mandatory prohibition relates to a recognized sentencing goal — the protection of the public, and in particular, the protection of police officers engaged in the enforcement of drug offences. The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one. In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so. It is sufficient that Mr. Wiles falls within a category of offenders targeted for the risk that they may pose. The sentencing judge’s insistence upon specific violence, actual or apprehended, in relation to the particular offence and the individual offender takes too narrow a view of the rationale underlying the mandatory weapons prohibition orders.

To state the obvious: the above case dealt with a mandatory prohibition following a criminal conviction, whereas Schill had his charge dropped. So there is a difference.

Nonetheless, there are strong parallels in the reasoning. The Supreme Court ruled that owning firearms is not a right, but a privilege. There’s a valid principle of public safety at stake, and Parliament has the right to regulate firearm use and possession. Now, many people would take issue with this, but that is what was said.

By stating the firearm ownership is a privilege and not a right, it means there will always be the possibility of having them seized.

(2) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378

A police officer made application in provincial court, pursuant to s. 98(4) of the Criminal Code, for an order prohibiting respondent from possessing any firearms or ammunition or explosive substances. Prior to the calling of any evidence, counsel for the respondent requested a general ruling as to the admission of hearsay evidence. The “custom” in Manitoba provincial courts had been to permit hearsay testimony at hearings on applications for a firearm prohibition. When the judge ruled that evidence at a firearm prohibition hearing was to be limited to what would be admissible at a criminal trial, counsel for the Crown, who had intended to rely on hearsay evidence as to threats made by respondent, called no evidence and the application was dismissed. The ruling as to admissibility was upheld on appeal by the Crown, first by the Court of Queen’s Bench, and then by a majority of the Court of Appeal.

However, the Supreme Court would decide otherwise and allow the Appeal.

Hearsay evidence is admissible at a firearm prohibition hearing under s. 98(6) unless such a result is precluded by the words “all relevant evidence”. The provincial court judge’s role in such hearings is to confirm the existence of the reasonable grounds which led the peace officer to launch the application, as proved on a balance of probabilities. It was not intended that the provincial court judge strictly apply the rules of evidence.

The expression “all relevant evidence” means all facts which are logically probative of the issue. The rules of evidence as to admissibility signify that the fact is relevant and that it satisfies auxiliary tests and extrinsic policies. Parliament, by using the phrase “all relevant evidence”, required only that the evidence at the firearm prohibition hearing be relevant; it did not address the question of exclusionary rules. The effect of the exclusionary rules is left to the provincial court judge as part of the whole body of evidence on which the provincial court judge determines whether reasonable grounds exist. Frailties in the evidence are a matter of weight.

When an Application is filed to revoke someone’s guns and licence, the standards are nowhere near as stringent as in a criminal trial. Yes, the basis for the Application is based on the Criminal Code of Canada, but it follows different rules.

Specifically, the standard of “proof beyond a reasonable doubt” has been replaced by “on the balance of probabilities”, which would be the civil test. Additionally, hearsay evidence which would typically be excluded in criminal cases is permitted here, but with the Judge typically giving less weight to it.

This is a 1989 case, so it’s been around for a very long time.

(3) B.C. (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343 (CanLII)

[25] I read s. 5 differently. Section 5(1) creates a broad safety standard for eligibility to hold a firearms licence or to continue to hold one following a revocation inquiry. Section 5(2) requires a firearms officer or a Provincial Court judge on a reference to “have regard to” certain conduct by the applicant or licence holder. I do not read s. 5(2) as being exhaustive of the matters to be considered as affecting safety concerns under s. 5(1). There are many other things a firearms officer or a judge might consider that do not fit into s. 5(2) and that might logically and reasonably give rise to valid safety concerns. I agree with the appellant’s submission that there is no statutory obligation to decide the safety issue in favour of the applicant or licence holder when none of the criteria in s. 5(2) is present; and that there is no obligation to refuse a licence or order a revocation if one or more of those criteria are present. A plain reading of the section by itself evinces no such intention by Parliament. The firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holder that is relevant to public safety.

The Court of Appeal for British Columbia had held that the Firearms Officer and the Judge are allowed to consider anything about the licence holder. The only question is whether their decisions are seen as “reasonable”.

(4) R. v. Christiansen, 2006 BCCA 189 (CanLII)

[7] After reviewing these statutory provisions and the authorities cited on this appeal (other than Fahlman, which supports his reasoning and conclusion), the appeal court judge found (at paras. 35 – 37) that s. 111 of the Code does not “exclusively deal with behaviour that could be characterized as involving criminal conduct or acts of violence against others.” Nor do the three criteria set out in the Firearms Act operate as “exhaustive criteria” for the application of s. 5 of that Act. Thus, a provincial court judge conducting a hearing under s. 111 of the Code is not confined to a determination of whether the three criteria set out in s. 5(2) of the Firearms Act are met in order to impose a prohibition. He concluded that the provincial court judge had made no error “in holding that there can be a firearms prohibition without criminal conduct, a history of real or threatened violent behaviour or a documented mental disorder that leads to violence.”

This is also from the Court of Appeal for British Columbia. Firearms prohibitions can happen even without a history of violent behaviour or a documented mental disorder. It’s very subjective.

(5) R. v. Hurrell, 2002 CanLII 45007 (ON CA)

[48] Applying that reasoning to this case, I am satisfied that when the words “not desirable”, which in my view simply mean “not advisable”, are read in context, they can hardly be described as so subjective, vague and amorphous that they fail to provide an adequate basis for legal debate. The fact that language may be open to judicial interpretation does not render it impermissibly vague. Flexibility and vagueness are not synonymous: see Reference re Criminal Code, Sections 193 & 195.1(1)(c), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123 at p. 1156, 56 C.C.C. (3d) 65 at p. 89 and French Estate v. Ontario (Attorney General) (1998), 1998 CanLII 1771 (ON CA), 38 O.R. (3d) 347 at p. 361, 157 D.L.R. (4th) 144 (C.A.); application for leave to appeal dismissed, [1998] S.C.C.A. No. 139). Moreover, because s. 117.04(1) is procedural and does not carry with it the threat of a criminal record or imprisonment, the need for precision is diminished: see French, supra, at p. 363 O.R. Finally, to the extent that the police or the issuing justice need a framework within which to assess the “non-desirability/public interest” component of s. 117.04(1), Parliament itself has provided guidance in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39. These provisions deal with the eligibility for holding a firearms licence and read as follows:

The Court of Appeal for Ontario ruled that the language used was not unconstitutionally vague. The Court does go on to explain what examples are provided, but they are not exhaustive.

These are just a few of the cases that were used as a basis to have Schill’s guns taken away. The list is provided below, though some rulings aren’t published online. The short version of this is that it can happen for nearly any reason, hearsay evidence may be used, and it’s a low burden of proof.

Schill may be the first person to have his firearms taken away because of his “association” with Jeremy MacKenzie and Diagolon. But he won’t be the last.

Next up: the Public Emergency Order Commission (PEOC) hearings.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

POEC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) POEC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) POEC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) POEC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) POEC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) POEC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

CASELAW ON REVOKING FIREARMS PERMITS:
(1) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.J. No. 50, at para 12, 16, 17, 18
(2) British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para 25.
(3) R. v. Christiansen, 2006 BCCA 189, at para 7.
(4) R. v. Bokhari, 2009 ONCJ 691, at para 10, relying on R. v. Day, [2006] O.J. No. 3187 (S.C.J.) and R. v. Morgan, [1995] O.J. No. 18 (Ont.Ct.(Prov.Div.)).
(5) R. v. Peacock-McDonald, 2007 ONCA 128, at para 40
(6) R. v. Douglas, 2013 ONCJ 649, at paras 45, 57.
(7) R. v. Mourtzis, 2015 ONCJ 74, at para 25.
(8) R. v. Roman, 2018 ONCJ 344, at para 89.
(9) R. v. Hurrell, 2002 CanLII 45007 (ON CA), [2002] O.J. No. 2819, at para 48.
(10) R. v. Christiansen, supra, at para 7.
(11) Fahlman, supra, at para 25.
(12) R. v. Peacock-Macdonald, supra, at para 40.
(13) R. v. Roman, supra, at para 89.
(14) R. v. Wiles, 2005 SCC 84, at para 9.