Canadian Decisions – Page 9

August 25, 2024March 15, 2025

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 FOIPOP (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”.

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
(5) Hategan Farber Fresh As Amended Statement Of Claim
(6) Hategan Farber Affidavit Motion To Dismiss
(7) Hategan Farber Responding Factum

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

July 28, 2024September 27, 2024

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:

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

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.

July 27, 2024September 27, 2024

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.

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

July 27, 2024September 27, 2024

Diagolon Gun Grab, Part 3: The Carmichael Testimony (Cont’d)

This continues the testimony of Detective Constable Ernest Carmichael. Both Day 1 and Day 2 of the hearings are available, along with the ruling itself.

Why does this matter? Because police were successful back in May 2024 for an Application to have Gary Schill’s firearms and licence suspended for 5 years. See Part 1 and Part 2 for more background information. It was largely (though not entirely) due to his association with Jeremy MacKenzie and Diagolon.

Schill had faced a charge of assault causing bodily harm against his then wife, Jennifer McNeil. She was also charged with a lesser count against him. Both were eventually dropped. Nonetheless, the police were still able to get a firearms suspension for Schill.

It’s immediately obvious that the standards for an Application to suspend or revoke a gun permit are far lower than when someone faces a criminal charge. Speculation and hearsay are permitted a lot more. Instead of “beyond a reasonable doubt”, the police must only demonstrate “on a balance of probabilities”. The Judge also has wide discretion to deem such a ban to be “in the public interest”.

Carmichael entered into evidence a document which he claims (or speculates) shows a plot to steal fuel during the trucker convoy. He says this is likely to circumvent the fuel shortages that had been intentionally imposed.

As for hearsay being admitted into the hearing, this is noteworthy:

Carmichael testifed that Jennifer McNeil, Schill’s wife at the time, provided other information to law enforcement during her victim statement. Specifically, she said that Schill was part of Diagolon, part of a militia, and targeting military and law enforcement members for recruitment.

Interestingly, McNeil herself didn’t testify at the hearing. Only Carmichael did. In a regular Court proceeding, her statements would have been considered “hearsay” and deemed inadmissible. The Judge allowed this in, and it doesn’t appear to have been challenged.

Carmichael continues (on page 8).

In the very beginning, we weren’t 100 percent sure. The Freedom Convoy was quite organic and it, it began in Western Canada and transitioned across the, the country to Ottawa. As we understood it, there was going to be a convergence of vehicles, large trucks, arriving in Ottawa. I was involved in the project team that monitored the number of vehicles who would be attending, what the dynamic of the crowd would be, and trying to get an intelligence assessment of what the Freedom Convoy would look like once it arrived in Ottawa. Of concern to us was the presence and interest of most of Diagolon. Most members, because our investigation actually started prior to the Freedom Convoy.

We had the benefit of, of monitoring a lot of the individuals we were interested in, leading up to the Freedom Convoy and, subsequently, their travel to Ottawa. Our concern was obviously Diagolon had made their ideology quite well-known, from our perspective. They were preparing for a civil war. They had an appetite to overthrow the government and force the government to change their policies relating to the COVID-19 response. So our concern was that what had the potential to be a peaceful protest in Ottawa could evolve into a violent confrontation because of the extremist elements we knew of that would also be attending.

We had, we had a lot of examples of conversations that was happening leading up to the Freedom Convoy. The organizers themselves stated that they intended to stay in Ottawa until the government changed their position on the COVID-19 response. MacKenzie himself has spoken of civil war and encouraged his members to prepare for it.

They use a phrase often, which is, “Gun or rope.” And this implies that when civil war occurs, it’s going to be a Diagolon versus everybody response. And Diagolon’s – the way they, they would treat their enemies during this uprising or civil war would be – they, they would be afforded the option to be executed by firing squad or hung. So that was what the, the, “Gun or rope,” phrase often referred to. So there was a lot of examples of, of rhetoric like that leading up to the Freedom Convoy that, that indicated to us that these individuals had an appetite to arm themselves, prepare themselves and had an appetite for violent confrontation. In fact, I, I believe I quoted yesterday, one of the Ticker Tape messages on Jeremy MacKenzie’s podcast where he says, “You want blood, come and get it,” and then it was the, “Fuck you, make me.”

Remember all of those edgy podcast jokes and memes? Guess what? They’re being entered into evidence as legitimate threats to public safety. The police are actually doing it, and the Judge is taking it all seriously.

Here’s a thought: maybe rampant fed-posting wasn’t such a good idea.

Carmichael testifies that it wasn’t necessary to conduct direct surveillance on Diagolon itself during the trucker convoy. This was because so many people simply posted photos, videos and details online, police could simply monitor it.

He then references a video which he calls a “Diagolon meet up”, which include Schill, MacKenzie and several others.

Carmichael eventually gets into the arrests at Coutts, Alberta. One of them was Chris Lysak. It was apparently a joke that he was the “Head of Security for Diagolon”, given his size.

One of the ballistic vests seized apparently had 2 Diagolon flags on them.

Carmichael then goes on about the various meet-ups that had been arranged, and how the information was obtained by monitoring Telegram channels. Now this:

In preparation for this hearing, the Crown was required to provide disclosure to Schill. Specifically, Carmichael’s Affidavit was sent to him. For some reason, MacKenzie published portions of it on his Substack. This was used to help establish a direct connection.

Interestingly, Carmichael testifies that the authorities weren’t willing to pay for a subscription to MacKenzie’s Substack, which would have allowed them to view everything. They consider him a public threat, and spend large amounts of money monitoring Diagolon, but wouldn’t pay this nominal fee?

Carmichael also explains that police wanted to know exactly who was posting on Telegram — since most accounts were anonymous. Yes, the servers aren’t located within Canada. However, it doesn’t seem any real effort was put in to try. Or perhaps they did get in, but don’t want to disclose that.

Carmichael concedes that he doesn’t believe that everyone associated with Diagolon is a terrorist or an extremist. He says that there is a broad range of people who are attached in some way.

Carmichael then goes on to speculate at length about how he believes Diagolon has simply “gone underground” given the attention they’ve received. Without really providing evidence or support, he claims that it’s still a threat to the public.

On cross-examination from Schill’s Amicus Counsel (starting at page 25) Carmichael reiterates that he’s been monitoring the Telegram chats constantly. Even on his off days he often listens to podcasts. In his notes, he states that he has listened to at least 38 episodes.

Of course, this doesn’t include what other members of intelligence or law enforcement have been listening to.

It’s fascinating how such a bad spin is put on these things. “Get offline and find your friends” is a legitimate goal, in that the online world doesn’t reflect reality. However, it’s being construed to mean the formation of militias for the purpose of causing violence and civil unrest.

In some sense, Schill’s Amicus Counsel actually seems to have done more harm than good. He gets Carmichael to explain new things — such as cutting down towers to stop 5G — that weren’t previously testified to.

Carmichael then goes on about the risk that “fed posting” causes. He says that Diagolon members fear being entrapped by someone saying overtly illegal things. This, he concludes, has caused them to go offline a lot more, and to be more guarded in their speech.

Carmichael admits that there’s no reference to “military style shooting” in the chats he’s reviewed. This implies that it was simply his interpretation. Nonetheless, this sort of this was allowed into evidence.

Carmichael also concedes that Schill himself didn’t participate in the conversations about bush craft of firearms tactics. Moreover, he concludes that he didn’t have grounds to support the conclusion that Schill was involved with terrorism or sedition.

Carmichael concedes that there’s no evidence Schill ever went to a so-called “Diagolon meet up”. He admits that no surveillance on Schill’s residence concluded otherwise.

The topic of the arrest for domestic violence is discussed. Again, the charge was dropped at the time of this hearing.

The Crown briefly reexamines Carmichael, who testifies that they found ammunition at Schill’s residence that wasn’t compatible with any of his legally obtained firearms.

Ultimately, Justice Robinson does grant the Application, and issues a 5 year prohibition for Schill. He refuses to allow any exemptions, including for a crossbow for hunting.

He cites the Public Emergency Order Commission (PEOC) Report from Paul Rouleau as well. It states that: “[l]aw enforcement and intelligence agencies view Diagolon as a militia-like extremist organization.”

Unfortunately, too many people post without having any understanding of what’s been going on. The Emergencies Act wasn’t invoked because of a meme, and the “Hate Gate” emails didn’t clear anyone. The PEOC Report was referenced in the decision to take Schill’s firearms and licence.

Even though Diagolon isn’t listed as a terrorist entity, and despite no evidence Schill was involved in terrorism or sedition, Schill’s firearms were taken away anyway. Yes, his assault charge had been dropped, but that wasn’t enough.

The standard for revoking or suspending firearms is actually quite low, and can be done for nearly any reason. This will be addressed in the next part.

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

July 26, 2024September 27, 2024

Diagolon Gun Grab, Part 2: The Carmichael Testimony

This continues the series on “Diagolon”, and the consequences that have resulted from this group. The last article focused on the ruling of Justice Robinson, who suspended Gary Schill’s firearms licence and weapons for a period of 5 years. Schill was a former administrator of the Diagolon podcast.

This doesn’t just automatically happen. A police officer brings an Application under Section 111 of the Criminal Code to ask a Judge to suspend someone’s rights. This isn’t as formal as a Trial, and the proof standards aren’t anywhere near as high.

Now, what was said during the hearing?

Fortunately, a redacted version of the Day 1 and Day 2 transcripts were published. The redactions appear to have been done to remove the name of Schill’s ex-wife. Yes, it’s from Antihate, but still worth a read.

Schill was represented by an Amicus Curiae. This is someone who isn’t a party, but is allowed to assist and make submissions for parties. Think of them as “duty-counsel”. They can be common for self-represented litigants and accused persons.

Ernest Carmichael is a detective constable with York Regional Police Service. He testified that he had been with the Tactical Intelligence Unit for 5 years. He went on to explain what had he and his group had been doing lately.

He testified that there had been a complaint that a member of the York Regional Police had publicly associated himself with Jeremy MacKenzie and Diagolon. That person is apparently no longer part of the force. It’s implied (though not explicitly stated) that the association cost him his position.

It paints a disturbing picture for many reasons.

First, the standard of proof needed to revoke a firearms licence is surprisingly low. Even though this is based in the Criminal Code, there’s no “proof beyond a reasonable doubt” needed. Far from it. “Balance of probabilities” is what’s important here.

Second, the rules of evidence are also much more lax, including hearsay evidence that should otherwise be prohibited. This included and Affidavit from Detective Constable Dimitri Kritsotakis, submitted, despite him not appearing. Carmichael is given wide latitude to speculate on matters.

Third, it’s explained here just how heavily surveilled podcasts and social media sites are. Without speaking to a single witness, this police officer was able to get a warrant to seize electronic devices.

Fourth, freedom of association — a protected right — seems meaningless when someone can lose their job because of who they interact with. Unfortunately, the circumstances here are not explained. The officer is not named, nor is his exact fate spelled out.

Fifth, it shows just how clueless and out-of-touch MacKenzie’s followers are with reality. They are oblivious to the basic facts. The Emergencies Act wasn’t declared because of a “meme”, and people weren’t exonerated due to some “Hate Gate emails”.

The above is from page 8. No actual interviews had to be conducted. The information obtained online was sufficient, which should really scare people.

Carmichael goes on to testify that he came across a video MacKenzie posted, just before receiving the formal complaint. He describes the “Raging Dissident persona” as this: He sells anger, really, on his podcast. He’s often vehemently anti-government, anti-authority. So by virtue of that, his following tends to be of the same vein.

Carmichael testifies that he had been monitoring “these channels” for the better part of 2 years. While it implies he refers to Diagolon channels, it could mean others as well. Then there’s this on page 14:

Yeah. The majority of the content was – especially considering the time, it was very anti-COVID, anti-vaccine, anti-government material. There was a lot of conspiracy theory material in that. There was a lot of what I would define as White nationalists, White supremacy ideology existing within that space. There was also a lot of what I would define as militia-type discussions. There was a lot of talk of acquiring weaponry, body armour, ammunition, planning meet-ups, organizing community events, and then also articulating the purpose of these events beyond simply….

This is getting to the heart of it. Carmichael alleges that there’s more than just racist and anti-authoritarian posting done here. Conversations also involved firearms, body armour and meet-ups.

“The Day Of The Rope” and “The Turner Diaries” are both cited as well.

Carmichael testifies that not only was he observing and documenting conversations about guns and meetings, but that meetings themselves were surveilled.

Carmichael does go on about the backstory of the name “Diagolon”. Specifically, that it was based on the idea of a fictional country made up of the more sane and stable Provinces and U.S. States. That detail is agreed on by everyone.

However, Carmichael states (or opines?) that it became more of a separatist movement.

Carmichael also explains how he identified Schill, and it’s pretty stupid. He used his real name, real photo, and dropped details about the region he was living in. From there, a simple background check from a prior arrest revealed everything else.

Yes. So Mr. Schill made a number of statements that caused concern for us. With these statements, he was also promoting the fact that he was a firearms fanatic; he was involved in reloading within his garage, which means taking – basically, building bullets himself rather than commercially purchasing them…

…and producing a large amount of ammunition in his private residence. So this, like, compounded with the rhetoric, plus what we already understood about Diagolon raised our concerns related to public safety.

So I’ll, I’ll expand on some of the conversation pieces that we observed, but as an example, for – some of the messaging that Jeremy MacKenzie provided his, his members, I can read some of the messaging that was included on his podcast that would have been re-shared in the Telegram channels. He stated – during a podcast, there was a ticker tape, similar to what you would see on maybe CP24 that would scroll across the screen. And the banner stated:

Mentally prepare yourself for the hardest decade of your life. Your children need you to reject the system in its entirety. It isn’t for you. It is for your enemy, and it seeks to subvert, subjugate, and destroy you. You either pro-human freedom or you are not. One of those choices makes you our mortal enemy. Death to Circulon. We all just wanted to be left alone. You want blood. We got what you want. Come and get it. Fuck you, make me.

So that was some of the rhetoric that Jeremy MacKenzie was, was pumping out to his followers, who would then re-share it on the Telegram channel. So on the heels of a statement like that his members would then begin organizing in-person meetings. They would discuss what the purpose of these meetings would be. It was almost always around planning. I can quote, “bush craft, survival training, firearms training.” In fact, I can recall a conversation that involved Mr. Schill where they were discussing shooting and firearm training, but then Mr. Schill had stated something to the effect of, “Well, I don’t want to just go shoot. I’d like smaller groups. And I want to shoot with a purpose.” I interpreted that to mean they didn’t want to just go target shooting on a range. They wanted to apply practical skills to their shooting, similar to what you’d see the military or law enforcement trained to do.

It would be interesting to know — though it’s not expanded on — is whether this is just conversations being recorded, or whether the police (or CSIS) have actually gone to these meets.

Carmichael goes on (page 29) about conversations that happened about body armour, and what some good choices were. This is largely opinion, but he implies that it was directed for non-civilian use.

Because when compounded with the information we’d already had, and now it was quite clear that they were starting to develop their in-person meetings to include shooting and what we had interpreted as militia-type training, our concern was strictly public safety and whether we had a private militia forming within the region.

Keep in mind, this is a hearing over a gun licence, not a criminal trial. While most of this testimony wouldn’t have been permitted in other settings, it is here.

Carmichael then gets into the topic of Schill’s arrest for assault causing bodily harm, along with the arrest of his (now) ex-wife. Electronic devices were seized during a search. Schill had 3 guns, all legally owned and safely stored. However, he had ammunition which didn’t appear to fit any of them.

The hearing continued the next day, and more on that.

If there is one takeaway here, it’s that the police are arguing that Diagolon is more than just edgy podcasting, racism, and memes. Carmichael is trying to convince the Judge that it’s an actual group and a threat to the public. He’s trying to show that this is an extremist group with a violent agenda.

People reading this transcript may — reasonably — think that it’s full of speculation, innuendo and hearsay. And they’d be right. However, this isn’t a criminal charge, and the standard is much, MUCH lower.

The Public Emergency Order Commission (PEOC) Report and Mosley decision have laid the groundwork for what’s coming. Followers of “Diagolon” really have no clue what’s been going on. This case is the first of what will likely be many gun seizures.

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

June 10, 2024June 10, 2024

Federal Court Of Appeal Partially Overturns “Bad Beyond Argument” Injection Mandate Case

The Federal Court of Appeal partially overturned a 2023 ruling on injection mandates for over 600 Plaintiffs who had sued back in May 2022. This suit covered a broad range of employers, both part of the Government, and others regulated by Ottawa.

There were additional claims pleaded related to loss of mobility rights and freedom of travel. However, these seemed to be almost an afterthought. Primarily, this was a lawsuit over workers refusing to take the injections in the Fall of 2021.

Back in February 2023, Justice Fothergill struck the Claim for most (about 400) of the Plaintiffs without leave to amend. This meant that they wouldn’t be allowed to submit a new version. The other 200 or so saw their claims struck with permission to refile. A lump sum of $5,000 in costs was also awarded.

To explain this a little better: the Court created Schedules “A” and “B”, and lumped various employers into each. The “A” employers were part of the Federal Government. By contrast, The “B” employers weren’t part of the Government, but part of Federally regulated industries. The reason for this is that there’s a distinction in how their respective claims were to be handled.

Employees who fell into Group “A” were prohibited from going to Court at all over employment. The reason is that sections 208 and 236 of the Federal Public Sector Labour Relations Act allow the right to grieve, but not to sue.

Employees who fell into Group “B” were not necessarily restricted from going to going to Court. However, the pleadings were so horribly written that a new version would need to be created. The Court referred to it as “bad beyond argument”, and for “substantially the same reasons” as the Action4Canada case, it had to be struck. As with the Vaccine Choice Canada case, this one failed to follow the basics of civil procedure — once again.

That said, with this Appellate ruling, all Plaintiffs will be allowed to file something.

What this means is that everyone will be able to make claims for restrictions on their movements. That can still go ahead. However, the employment claims for all Schedule “A” litigants are still barred, with the possible exception of those employed by the RCMP. They’re governed by different provisions in the FPSLRA.

One of the problems with having so many Plaintiffs is that there’s no information pleaded about any of them specifically. Instead, generalizations are made, without reference to who it applies to. As for the travel restrictions, it’s unclear which litigants are alleging it.

Hopefully, these people will retain a competent lawyer this time.

Alternatively, maybe counsel will take a remedial refresher course on how to plead documents.

SCHEDULE “A”: PLAINTIFFS WHO ARE MEMBERS OF THE CORE PUBLIC ADMINISTRATION

Canada Opportunities Agency
Canada Border Services Agency
Canada Revenue Agency
Canada School of Public Service
Canadian Coast Guard (Department of Fisheries and Oceans)
Canadian Food Inspection Agency*
Canadian Forestry Service (Department of Natural Resources)
Canadian Institutes of Health Research*
Canadian Nuclear Safety Commission*
Canadian Radio-television and Telecommunications Commission
Canada Revenue Agency*
Canadian Security Intelligence Service*
Core Public Service
Canadian Space Agency
Correctional Service of Canada
Courts Administration Service
Department of Agriculture and Agri-Food
Department of Canadian Heritage
Department of Employment and Social Development
Department of Fisheries and Oceans
Department of Justice
Department of National Defence
Department of Natural Resources
Department of Transport
Department of Veterans Affairs
Elections Canada (“Office of the Chief Electoral Officer” and “The portion of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 of the Canada Elections Act occupy their positions”)
Environment and Climate Change Canada (Department of the Environment)
Federal Economic Development Agency for Southern Ontario
Global Affairs Canada (Department of Foreign Affairs, Trade and Development)
Government of Canada
Immigration, Refugees and Citizenship Canada (Department of Citizenship and Immigration)
Indigenous and Northern Affairs Canada (Department of Crown-Indigenous Relations and Northern Affairs)
Indigenous Services Canada (Department of Indigenous Services)
Innovation, Science and Economic Development Canada
National Film Board of Canada (National Film Board)*
National Research Council Canada*
National Security and Intelligence Review Agency (National Security and Intelligence Review Agency Secretariat)*
Office of the Auditor General of Canada*
Parks Canada*
Polar Knowledge Canada (Canadian High Arctic Research Station)*
Public Health Agency of Canada
Public Safety Canada (Department of Public Safety and Emergency Preparedness)
Public Services and Procurement Canada
Royal Canadian Mounted Police**
Service Canada (Department of Employment and Social Development)
Shared Services Canada
Staff of the Supreme Court
Statistics Canada
Treasury Board

NOTES:

All organizations are part of the core public administration as defined at s 11(1) of the Financial Administration Act (Schedules I and IV), except as noted.

Organizations that are portions of the federal public administration listed in Schedule V (Separate Agencies of the Financial Administration Act, whose employees have rights to grieve under the Federal Public Sector Labour Relations Act).

** The RCMP is part of the core public administration and is listed in Schedule IV of the Financial Administration Act; RCMP members have limited rights to grieve under s 238.24 the Federal Public Sector Labour Relations Act, but have other grievance rights under the Royal Canadian Mounted Police Act.

SCHEDULE “B”: PLAINTIFFS WHO ARE NOT MEMBERS OF THE CORE PUBLIC ADMINISTRATION

Air Canada
Air Canada Jazz
Air Inuit
Bank of Canada
Bank of Montreal
BC Coast Pilots Ltd
BC Ferries
British Columbia Maritime Employers Association
Brookfield Global Integrated Solutions
Canada Mortgage and Housing Corporation
Canada Pension Plan
Canada Post
Canadian National Railway
Canadian Pacific Railway
City of Ottawa Garage Fed Regulated
DP World
Export Development Canada
Farm Credit Canada
G4S Airport Screening
Garda Security Screening Inc
Geotech Aviation
Global Container Terminals Canada
Greater Toronto Airports Authority
House of Commons
Human Resources Branch, Innovation
Kelowna Airport Fire Fighters
National Arts Centre
NAV Canada
Ontario Northland Transportation Commission
Ontario Power Generation
Pacific Pilotage Authority
Parliamentary Protection Service
Public Sector Pension Investment Board
Purolator Inc
Questral Helicopters
RBC Royal Bank
Rise Air
Rogers Communications Inc
Royal Canadian Mint
Sasktel
Scotiabank
Seaspan Victoria Docks
Shaw
Skynorth Air Ltd
Telesat Canada
Via Rail Canada
Wasaya Airways
Waterfront Employers of British Columbia
Westjet
Westshore Terminals

Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA?
Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions?
Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons?
Did the Federal Court err in finding certain other claims to be non-justiciable?
Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts?

1. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA? YES

[42] On the first issue, I conclude that the Federal Court erred in finding that the bar in section 236 of the FPSLRA applies to the plaintiffs who were members of the RCMP.

[43] It will be recalled that subsection 236(1) of the FPSLRA provides that the “right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute”.

[44] To recall, the relevant definition of what constitutes a grievance is set out in subsection 206(1) of the FPSLRA. That section states that a grievance is one that may be filed under either section 208 or 238.4 of the FPSLRA. Thus, the bar in section 236 applies only to those who could seek redress via a grievance under section 208 or 238.4 of the FPSLRA.

[45] Yet, section 238.4 of the FPSLRA applies only to grievances arising under a collective agreement applicable to RCMP members who meet the statutory definition of “employee” in the FPSLRA. Based on the materials that were before the Federal Court and that are now before this Court, it is impossible to ascertain whether any collective agreement has been negotiated for RCMP members. The National Police Federation was certified as the bargaining agent for RCMP members in 2019 by the FPSLREB in National Police Federation v. Treasury Board, 2019 FPSLREB 74. However, it is unclear if a collective agreement has been achieved and, if so, whether a challenge to the TB Policy could be the subject of a grievance under any such agreement. Given this lack of information, it is not plain and obvious that the plaintiffs who were members of the RCMP possessed rights to grieve the TB Policy under a grievance to which section 238.24 of the FPSLRA pertains.

The RCMP Plaintiffs may still have their employment claims struck at some point. However, with the information available on this Motion, they couldn’t be now.

2. Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions? YES

[53] The Federal Court therefore erred in finding that the plaintiffs’ claims related to the Interim Order and other travel-related measures could have been grieved or were subject to section 236 of the FPSLRA. While these claims suffer from the lack of proper pleadings and a failure to plead the necessary material facts that characterize the Statement of Claim generally, they should not have been struck without leave to amend. If properly pleaded, it may perhaps be possible for the plaintiffs to raise a claim that could come within the jurisdiction of the Federal Court. Without seeing an amended pleading, however, it is impossible to discern whether or not a valid claim might be advanced. The plaintiffs therefore should have been granted leave to amend the claims related to the Interim Order and other travel-related measures on the same basis as the Federal Court allowed other claims to be amended.

All Plaintiffs should be given the right to have their travel-related claims heard.

In fairness to Justice Fothergill, it was unclear who exactly was pleading that their travel related rights were infringed. The Statement of Claim was so lacking in detail that it was impossible to tell.

3. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons? NO

[54] On the third issue, I conclude that the Federal Court did not err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons, other than the RCMP. However, the Federal Court erred in striking the claims of RCMP members related to the TB Policy.

[55] It is not disputed that the plaintiffs who were employed by organizations other than the RCMP could have filed grievances under section 208 of the FPSLRA challenging the TB Policy or its application to them. As noted, the TB Policy was a term and condition of employment and thus subject to grievance under section 208 of the FPSLRA, which allows the employees of the organizations listed in Schedule “A” to the Federal Court’s Reasons other than the RCMP to file grievances relating to their terms and conditions of employment. That said, the FPSLREB recently held in Rehibi v. Deputy Head (Department of Employment and Social Development, 2024 FPSLREB 47, that a grievance challenging the application of the TB Policy could not be referred to adjudication due to the fact that only a subset of matters that may be grieved under the FPSLRA may be referred to adjudication under subsection 209(1) of the FPSLRA.

[64] Since the defendants sought to strike the Statement of Claim based on the fact that a grievance process was available, it was incumbent on the defendants to establish that the TB Policy could have been grieved by RCMP members. However, no evidence was tendered on this issue and the statutory scheme is not sufficiently clear to definitively establish that the TB Policy could have been grieved by RCMP members. I therefore conclude that the Federal Court erred in striking the claims of RCMP members related to the TB Policy without leave to amend. The plaintiffs who were members of the RCMP should have been granted leave to amend their claims related to the TB Policy on the same basis as the plaintiffs who were employed by organizations other than those listed in Schedule “A” to the Federal Court’s Reasons were granted leave to amend.

Since the RCMP are governed by a different part of the FPSLRA, the Federal Court of Appeal concluded that their employment claims shouldn’t have been struck under s.236. That’s not to say that it may not happen anyway. That said, all other Schedule “A” Plaintiffs are out of luck.

This is a pattern that’s become more obvious: lawyers bringing cases to Court that involve Government and/or union workers. There’s almost always some legislation or collective bargaining agreement that gets these thrown out.

See below, under the “precedents” section. Since the 2023 decision, 5 more cases have been thrown out (4 in Federal Court, and 1 in B.C. Supreme Court) citing this Adelberg ruling as precedent.

4. Did the Federal Court err in finding certain other claims to be non-justiciable? NO

[65] I see no error in the Federal Court’s determination that allegations of criminal behaviour, broad declarations respecting the current state of medical and scientific knowledge, and a declaration that administering medical treatment without informed consent is a crime against humanity, are not justiciable in a civil action.

[66] As for the validity of the TB Policy and the Interim Order, it would appear that those issues may now well be moot. In addition, while it might have been possible to argue that the policies at issue were invalid in the context of a justiciable claim for relief on some other basis in accordance with the decision of the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Federal Court did not err in holding that an order setting aside the TB Policy and the Interim Order could only be obtained by way of an application for judicial review.

[67] I accordingly see no basis for setting aside any of the foregoing rulings made by the Federal Court.

This is comical and goofy. Experienced lawyers should know what Courts can and cannot adjudicate over. It reeks of incompetence that this keeps happening over and over again.

Bad beyond argument.

5. Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts? NO

[68] Finally, I see no error in the Federal Court’s finding that the Statement of Claim was improperly pleaded and lacked the necessary material facts. As noted in Mancuso v. Canada (National Health and Welfare) 2015 FCA 227, [2015] F.C.J. No. 1245 at para. 16, a plaintiff must plead, in summary form, but with sufficient detail, the constituent facts to support the relief sought. As the Federal Court rightly noted in this case, for the claims in respect of which leave to amend is granted, the plaintiffs must set out with sufficient particularity the facts they rely on in support of their claim, including details of how they were specifically impacted by the policies they impugn and the bases for and all material facts necessary to ground the claims advanced. The Statement of Claim, as drafted, is entirely devoid of these necessary material facts.

[69] I therefore see no reviewable error in the decision to strike the Statement of Claim in its entirety. However, leave to amend it should be granted to all the plaintiffs in accordance with these reasons.

This is common sense, or at least it should be. If you want to sue someone, you have to spell out the allegations with enough specific detail that they can respond to it.

Here’s he TL, DR (too long, didn’t read) version of things:

(1) Members and former members of the RCMP may still be able to bring employment related claims around their refusal to take the injections.

(2) All Plaintiffs — both Schedules “A” and “B” — can make travel related claims

(3) Other than RCMP, all other Schedule “A” Plaintiffs have their employment claims barred

(4) The Statement of Claim is filled with issues a Civil Court can’t preside over

(5) The Statement of Claim fails to comply with the Rules of Civil Procedure, and doesn’t plead the facts necessary to be properly responded to.

(6) The $5,000 cost award is set aside, and no costs were awarded here.

The “bad beyond argument” findings of Justice Fothergill (here), and Justice Ross (Action4Canada) have been upheld. Neither case was pleaded in a coherent manner. And both needed to be redone. It’s still mind boggling that veteran lawyers don’t understand how to draft documents.

While all Plaintiffs can now go ahead with something, a few questions:

(a) Since the Schedule “A” employment claims are still prohibited, will there be an attempt to appeal to the Supreme Court of Canada? That was promised after all.

(b) Since so much time has passed, will any new allegations be barred by the Statute of Limitations? For most things, there’s a 2 year time limit.

(c) Will any more of the litigants discontinue their case? Will others try to proceed, but with more “effective” counsel?

(d) Considering that Action4Canada never bothered to file an amended Notice of Civil Claim, even 4 months after “winning” their Appeal, will this happen here too? Will these Plaintiffs call their critics “paid agitators“?

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

PRECEDENTS CREATED
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html#par85
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html#par17
(3) https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1701/2023bcsc1701.html#par30
(4) https://www.canlii.org/en/ca/fct/doc/2023/2023fc1752/2023fc1752.html#par24
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc137/2024fc137.html#par44

MONEY
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(6) https://www.web.archive.org/web/20220526170932/https://www.constitutionalrightscentre.ca/
(7) Federal Workers Retainer Agreement
(8) Ontario First Responders Retainer Agreement
(9) Donate To Public Citizens Inquiry
(10) Donations For Supposed B.C. Doctors Action

Category: Canadian Decisions

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

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

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

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

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

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

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