The Federal Court of Canada refused a request to extend time to challenge a November decision. Because of Justice Manson’s ruling, this means that approximately 330 current and former military personnel most likely won’t get a hearing to determine whether their case was prematurely struck.
They’re also on the hook for another $1,080 in costs.
From earlier: The case was thrown out for a variety of reasons, including the poor quality of the pleadings themselves, and the lack of facts included. There was also the concern that the Court had no jurisdiction, given Section 29 of the National Defence Act, which mandates a grievance scheme. Their lawyer, Catherine Christensen, had received a similar ruling in late 2021.
From earlier: The Plaintiffs missed their deadline to appeal. Because of the nature of the Appeal, there was a 10 day time limit, not 30. Since it was an Associate Judge (and not a Judge) who struck the case, the Federal Rules require a Motion be filed to review. Christensen did eventually file a Motion requesting an extension of time, but it had all kinds of problems with it.
APPEAL RULING FROM
PROTHONOTARY
JUDGE
Appeal Goes Where
Federal Court
Federal Court Of Appeal
Appeal Ruling To
Single Judge (FC)
Panel of Justices (FCA)
Rules of Procedure
Rule 51
Rules 335 to 357
Time Limit For Notice
10 Days
30 Days
Initial Document
Notice Of Motion
Notice Of Appeal
Procedure
Motion
Appeal
New Evidence Allowed?
No
With Leave, Rule 351
Note: Prothonotary and Associate Judge are the same thing.
The original ruling came out on November 13th, 2024. Christensen filed a Motion requesting an extension of time on December 11th, some 29 days later. One has to wonder if she thought she had 30 days to appeal, and simply messed it up. The responding submissions outlined a comical array of errors.
While extensions of time do happen regularly in Court proceedings, this request was so poorly and incoherently done, it was outright refused. Christensen also never explained how such an Appeal would succeed even if the extension of time were granted. The ruling was pretty harsh.
Since the Court has refused an extension of time, this is most likely the end of the road, unless this is successfully challenged at the Federal Court of Appeal.
And if the Plaintiffs want to take this route, perhaps they should get a better lawyer.
Back in mid-November, this site covered the 2023 case of some 330 members of the Canadian Forces, which had been struck by Associate Judge Catherine Coughlan.
The case was full of serious problems, including: (a) Statement of Claim not pleaded properly; (b) Evidence not being properly pleaded; and (c) Section 29 of the National Defence Act, or N.D.A.
The N.D.A. specified a grievance process was to be used, as opposed to suing in Court. This is common in most unionized and Government workplaces in Canada. Even though the lawyer was trying to argue around that requirement, over 100 of her clients were concurrently trying to grieve.
Worse, the Plaintiff’s lawyer, Catherine Christensen, had been told by the Federal Court back in late 2021 that clients couldn’t bypass the N.D.A. She knew, or at least should have known, that this problem would come up again.
Since the pleading was struck by an Associate Judge, as opposed to a Judge, there is a Rule which allows a Motion to be filed to ask for a review of the decision. However, counsel’s handling of this was comically bad, and very negligent.
This “Lionel Hutz” episode would be funny, except for the real world consequences.
Christensen Missed The Deadline To File Notice Of Motion
The case notes on the Federal Court website list November 12th as the date of the ruling. CanLII gives it as November 13th. Here, it doesn’t really matter, since there was no notice for a month.
There are actually 2 different types of Appeals within the Federal Courts, and those are addressed below. The one that the Plaintiffs here wanted had a time limit of just 10 days. Counsel took 29 to respond. One has to wonder if she got them mixed up initially, and only realized the error later.
Had she sought an extension of time right away, this headache could have been avoided. Similarly, if a Notice of Motion (for the Appeal) was filed, followed by seeking an extension, it would be okay. But that’s not what ended up happening.
Granted, Courts often will allow for filings beyond the limitations period, if there are good reasons provided. However, this is far from counsel’s only error.
Appealing WITHIN Federal Courts V.S. Appealing BETWEEN Them
APPEAL RULING FROM
PROTHONOTARY
JUDGE
Appeal Goes Where
Federal Court
Federal Court Of Appeal
Appeal Ruling To
Single Judge (FC)
Panel of Justices (FCA)
Rules of Procedure
Rule 51
Rules 335 to 357
Time Limit For Notice
10 Days
30 Days
Initial Document
Notice Of Motion
Notice Of Appeal
Procedure
Motion
Appeal
New Evidence Allowed?
No
With Leave, Rule 351
Note: Prothonotary and Associate Judge are the same thing.
Many will find this nitpicky and boring. But procedurally, there are very different rules to follow depending on who one wants to appeal to. As stated, this would be a Rule 51 Appeal, and the time limit is just 10 days to serve and file a Notice of Motion.
Had the case been struck by a Judge initially, then going to the Federal Court of Appeal would have been the only recourse. Rule 51 doesn’t allow Judges to overturn each other.
Mixing Up “Moving Parties” And “Applicants” Repeatedly
This may seem petty, but is worth mentioning:
Action: This is brought by filing a Statement of Claim. The people who initiate it are called the Plaintiffs, and the people who respond are the Defendants.
Application: This is brought by filing a Notice of Application, seeking Judicial Review of an Order or decision. The people who initiate it are called the Applicants, and the people who respond are called the Respondents.
Appeal: This is brought by filing a Notice of Appeal, seeking to challenge another Court decision. The people who initiate it are the Appellants, and the people who respond are the Respondents.
Motion: This is brought to by filing a Notice of Motion, to initiate steps within, or related to an Action, Application, or Appeal. The people who initiate them are the Moving Parties, and the people who respond are the Respondents.
Since Christensen filed a Motion seeking permission for an extension of time, her clients, at this point, would be considered MOVING PARTIES. But she repeatedly refers to them as “Applicants”, even though they never were. Even calling them “Plaintiffs” would be more accurate.
She also cites the “Federal Courts Act” at times when she really means the “Federal Court Rules”. Those are 2 completely different things. Still, the Court will know what the references are.
Motion Brought Under Wrong Rule (Should Be Rule 8, Not 51)
TAKE NOTICE THAT the Applicants will make a motion to the Court in writing under Rule 51(1) of the Federal Courts Rules.
Extension or abridgement
8(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
When motion may be brought
8(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.
This is already wrong. While the ultimate goal is to appeal the decision of Associate Judge Coughlan, first, an extension of time needs to be granted. In reality, this Motion should state Rule 8. True, the Court would still understand what she’s trying to do, but missing the deadline now means filing another Motion.
The written submissions make clear the extension is sought under Rule 8, but the Notice of Motion still needed to be fixed.
Christensen explains that the delay was caused by the difficulties of corresponding with over 300 clients. The Government responded that that the Notice of Motion could have been filed anyway, with the option to discontinue, or even just a Notice to ask for an extension. It would have cost just $20.
Motion Asks For Written Representations…. In Court Of Appeal?
leave for the Motion to be heard with written representations under Federal Courts Act Section 369.2(1);
Written representations only — Federal Court of Appeal
369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.
Christensen asks that the Judge determine the Motion with written representations, as opposed to having an oral hearing. This is common for simple Motions, and by itself, is not unreasonable.
However, Rule 369.2(1) applies to the Federal Court of Appeal. If she intends to appeal the decision of an Associate Judge, it remains within the Federal Court.
Unnecessarily Asking For Leave To Appeal?
2. leave for an extension of time to apply for Appeal of a prothonotary order;
3. leave to commence an application for Appeal under Federal Courts Act Section 51(1);
Appeals of Prothonotaries’ Orders
51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.
Service of appeal
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.
Items #2 and #3 don’t make any sense. Rule 51 is very short, and there’s no Leave (permission) needed to appeal a decision of a Prothonotary or Associate Judge. You just file a Notice of Motion. It’s also unclear what “apply for an appeal” means, but perhaps it’s a reference to Leave, which isn’t required.
And again, Christensen mixed up “Motion” with “Application”.
Christensen Improperly Swears Her Own Evidence
Use of solicitor’s affidavit
82 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
There’s a practice that lawyers aren’t suppose to argue their own evidence, as it tends to blur the lines between witness and counsel. Typically, an associate, clerk or client will swear it out. A Judge “may” allow it, but there are no guarantees.
Missing the deadline was bad enough. This is just a procedural Motion, seeking an extension of time, and it’s full of very basic mistakes.
Did Plaintiffs Always Intend To Appeal?
One thing the Government brought up is that the Motion says that the parties agreed to appeal, but not that they always intended to do so. This seemingly trivial choice in wording may sink the Motion, depending on how lenient the Judge is.
Motion Doesn’t Specify How Appeal May Be Successful
On paragraph 20 of their submissions, the Government lawyer states that the Plaintiffs offer no insight as to how an Appeal would theoretically be successful, assuming they were granted a time extension.
Paragraphs 7 through 16 of the Notice of Motion very broadly list a series of errors, but none of it is specified. Perhaps a better idea would have been to attach a draft version of the submissions they intended to use — except they weren’t done.
This could have been avoided if a request for a time extension had been filed right away. Seriously, it would have cost just $20, and their position would be a lot better.
Timeline Of Major Events In This Lawsuit
June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.
July 28th 2023 – Amended Statement of Claim is filed.
August 7th, 2023 – Notice of Intention to Respond is filed by the Government.
September 11th, 2023 – Statement of Defence is filed by the Government.
September 22nd, 2023 – Reply to the Statement of Defence is filed.
January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.
March 3rd, 2024 – Court orders case management for the lawsuit.
April 29th, 2024 – Court gives a schedule of events to unfold.
Defendants shall serve and file their motion to strike by July 12th, 2024.
The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.
June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.
July 11th, 2024 – Government files Motion to Strike the case.
August 12th, 2024 – Court contacted to request permission to file materials.
August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.
August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs
August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.
September 19th, 2024 – Motion to Strike heard in Court.
November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.
December 12th, 2024 – Plaintiffs serve Notice Of Motion to extend time limits
December 17th, 2024 – Government responds, saying time extension shouldn’t be granted.
Now, the Court may very well grant an extension to file the Rule 51 Motion papers. There has been a longstanding aim of not using procedural rules unjustly to hinder litigation.
That being said, the Plaintiffs are far from guaranteed any success with this Appeal, even if it were heard. The Statement of Claim had many defects, as outlined in the last article. It’s unclear how any of it could be fixed.
For just a $20 fee, Christensen could have asked for an extension right away. She could have explained that some clients wanted to appeal, while others had not yet responded. Such a request would have been difficult to refuse.
Recently, Associate Judge Coughlan of the Federal Court of Canada struck a lawsuit brought by over 300 current and former members of the military. This case had to do with the injection requirements that came into effect in late 2021. This is yet another one that would never be heard on its merits.
To be fair, the Statement of Claim does plead some facts and background information about each Plaintiff, including position, rank, length of service, and duties. It also listed who took the shots, and who tried to get exemptions. Information about family situations are given, and each Plaintiff states whether or not they’re still with the military.
Many cases don’t even give this data, so it’s a step up.
A variety of Charter violations are alleged, including:
Section 2(a) – Freedom of Religion
Section 2(d) – Freedom of Association
Section 7 – Security of the Person
Section 8 – Privacy, Search and Seizure
Section 15(1) – Equality
Problem is, while a variety of Charter violations are listed, none of them are properly pleaded. The requirements for each are very specific, but it doesn’t seem to have happened — for ANY Plaintiff.
The Judge also took issue with material being filed late, and some Affidavits being sworn before the proceedings commenced.
However, the most damning problem was that counsel filed the case in the wrong venue. The military is governed by the National Defence Act, or NDA, which covers legal affairs within the Canadian Armed Forces. The process for grieving is outlined in Section 29. Notably, it gives everyone the right to grieve, but not the right to sue.
Even worse, counsel Catherine M. Christensen had been warned about all of this previously.
National Defence Act, S.29: Grievance The Required Option
Like so many “vaccine passport” lawsuits covered on this site, jurisdiction is a serious issue. Why here? It’s because Section 29 of the National Defence Act specifies that there is a grievance process that members of the Canadian Armed Forces are expected to follow. There’s nothing listed that allows for a lawsuit to be filed.
Right to grieve
29(1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.
No penalty for grievance
29(4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance
Authorities for determination of grievances
29.1 (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.
Final authority
29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.
Decision is final
29.15 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
In fairness, s.29.15 does allow for a Judicial Review to be filed if the grievance process is unsatisfactory. This would be analogous to appealing. But it’s not the same thing as filing a Statement of Claim.
Why is this important? It’s because Christensen, counsel for the Plaintiffs, didn’t follow the National Defence Act. She filed a lawsuit, instead of using the pathway available. And it’s not the first time the Federal Court has had to explain it to her.
Previous Case Saw Interlocutory Injunction Application Denied
An Application filed in late 2021 sought to prevent several members of the Canadian Armed Forces from facing consequences for refusing the injections. An Interlocutory Injunction was sought, with the plan to get a permanent one later.
November 29th, 2021 – Notice of Application is filed in Federal Court.
December 1st, 2021 – Notice of Appearance is filed by the Government.
December 6th, 2021 – Motion is filed for Interlocutory (temporary) Injunction to prevent members of the Armed Forces from having to take the injections.
December 12, 2021 – Federal Court books hearing on the 15th.
December 15th, 2021 – Court has hearing on the Application.
December 16th, 2021 – Court denies the Application for Injunction, but does so without costs.
January 9th, 2022 – Case is discontinued altogether.
In the reasons released on December 17th, Justice Fuhrer outlines the reasons the Application was denied. He notes that this wasn’t the proper forum to bring the challenge anyway.
[40] Under the NDA s 29(1) and chapter 7 of the Queen’s Regulations and Orders Volume 1 – Administration [QR&O], a CAF member can grieve the denial of an accommodation request, the initiation of a remedial measure or a release decision resulting from the application of the CAF Vaccination Policy, among other decisions, acts or omissions in the administration of the affairs of the CAF. According to the affidavit of Gordon Prieur, a senior policy analyst with DND, the grievance must be submitted within three months after the day when the grievor knew or reasonably ought to have known of the decision, act or omission for which the grievance is submitted. Grievances submitted after this period nonetheless may be considered if it is in the interests of justice to do so.
[41] The CAF grievance process consists of two levels of authority, the Initial Authority [IA] and the Final Authority [FA]. The IA can be the grievor’s commanding officer or next superior officer, while the FA is the CDS, who can delegate this role in certain circumstances. In addition, certain grievances are to be referred to the Military Grievance External Review Committee [MGERC], an independent, arm’s-length entity that reviews grievances and makes recommendations to the CDS. The CDS is not bound, however, by MGERC’s recommendations but he must provide reasons if he does not act on them.
[42] As noted above, Charter claims can be considered in the grievance process.
While the Interlocutory Injunction Application had been denied, litigants could (in theory) go ahead trying to get a permanent one. But they decided not to. The fact that this should have been grieved in the first place likely influenced this decision.
There were also concerns that counsel didn’t plead the case properly.
This 2021 ruling is important because Christensen makes the same mistakes again, but with a much larger case. Her next one would involve over 300 Plaintiffs.
Current Lawsuit Thrown Out Over Jurisdiction, Pleadings
This case was an Action, which is initiated by filing a Statement of Claim. The procedures are different than those for filing an Application, but the same problems came up.
June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.
July 28th 2023 – Amended Statement of Claim is filed.
August 7th, 2023 – Notice of Intention to Respond is filed by the Government.
September 11th, 2023 – Statement of Defence is filed by the Government.
September 22nd, 2023 – Reply to the Statement of Defence is filed.
January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.
March 3rd, 2024 – Court orders case management for the lawsuit.
April 29th, 2024 – Court gives a schedule of events to unfold.
Defendants shall serve and file their motion to strike by July 12th, 2024.
The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.
June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.
July 11th, 2024 – Government files Motion to Strike the case.
August 12th, 2024 – Court contacted to request permission to file materials.
August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.
August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs
August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.
September 19th, 2024 – Motion to Strike heard in Court.
November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.
The initial filing was covered by the National Post, but it doesn’t appear that there was any follow up done afterward.
Anyhow, the ruling was pretty brutal. It cited a variety of errors, including: (a) failure to properly plead Charter violations; (b) failing to comply with rules when submitting evidence; and (c) lack of jurisdiction, given the grievance scheme available.
[58] Given my conclusion that the action should be struck without leave to amend, there is no need for me to consider whether the Court should exercise its discretion to take jurisdiction over the proceeding. However, for the sake of completeness, I will address that issue briefly.
[59] In support of its motion, Canada filed the affidavit of Ann-Marie De Araujo Viana (the “Viana affidavit”), Manager Professional Policies–Grievances, Canadian Armed Forces Grievance Authority. The Viana affidavit sets out the statutory and regulatory framework for the CAF grievance process established by sections 29-29.15 of the National Defence Act [NDA] and regulations. That framework is supplemented by the DAOD, specifically, DAOD 2017-0 Military Grievances and DAOD 2017-1 Military Grievance Process.
[60] Pursuant to subsection 29 of the NDA, CAF members who are aggrieved by any decision, act, or omission in the administration of the affairs of the CAF, for which no other process for redress is provided under the NDA, may submit a grievance. As set out in the Viana affidavit, the CAF grievance process has two levels of authority, the Initial Authority [IA] and the Final Authority [FA]. The CDS is the FA. In some circumstances there may be an independent review of the grievance by the Military Grievance External Review Committee [MGERC]. However, the CDS remains the final authority and is not bound by any findings or recommendation of the MGERC.
[61] Following a decision of the FA, dissatisfied CAF members may seek judicial review of the decision in this Court, including any appeal rights deriving therefrom.
[62] As this Court has noted on a number of occasions, the grievance process available under the NDA is broadly worded and comprehensive, capturing a wide range of issues and allowing members to seek redress for virtually any issues arising during the course of their service: Jones v Canada, (1994) 87 FTR 190 at paras 9-10 (TD); Fortin v Canada (Attorney General), 2021 FC 1061 at paras 25-26; Jones v Canada (Chief of Defence Staff), 2022 FC 1106 at para 21.
Christensen had been warned by the Federal Court about exactly this issue, just a few years ago. But she filed this lawsuit anyway.
The Court noted that she hadn’t come anywhere close to convincing that the grievance scheme was corrupted or unworkable. And it would be a very tough sell indeed.
The Judge noted at paragraph 67 that over 100 of the Plaintiffs had filed grievances anyway. This is yet another problem that would derail this case. Parallel or simultaneous proceedings are not allowed. Considering the grieving was the correct option, this lawsuit would have been stayed.
The Statement of Claim had other serious errors. Specifically, none of the Charter violations were pleaded sufficiently. It’s not enough to simply list the different sections. Paragraphs 18 to 41 outlined exactly what was wrong.
Serious question: While it’s nice to see people standing up for their rights, what good is it when counsel can’t follow basic directions on how to proceed? If they can’t understand grievance rights, or how to plead a claim, how does this help anyone?
Of course, Christensen still probably got paid for her “work”.
No matter how much, or how often, a lawyer screws up a case, it’s the clients who pay.
Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.
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. Even if the members themselves aren’t connected directly, they function as “useful idiots” for the Government.
Parts 1, 2, 3, 4 and 5 of the Schill gun grab are here.
Parts 1 and 2 of the HateGate Scam are available as well.
Back in the Fall of 2023, this 85 page document was written by Caryma Sa’d and Elisa Hategan, and released by Crier Media. It supposedly proved the Emergencies Act had been invoked because of shoddy intelligence and poor research. Authorities engaged in a clownish series of acts and panicked over an edgy podcast.
This is in no way an attempt to justify the loss of freedoms that had been going on since 2020. That said, there are questions to ask about this report.
The strongest evidence is said to be the 1,802 page FOIPIP document. It’s comprised of emails, letters and memos between Government officials and law enforcement.
Interestingly, the massive FOIPIP released from the RCMP is quoted, but never linked. Nor was it included by any of the “media” outlets who covered the expose. Was was this receipt left out?
Here are just a few points to consider:
What Data Did FOIPIP Request Actually Ask For?
Any and All records, files (etc), documents, memos, e-mails, communication records, and reports on the subject of “Diagolon” or in relation or reference to the subject of Diagolon. Search term: Diagolon Also referred to as the Diagolon Network or Diagolon Militia.
Timeframe: January 01 2021 to August 15 2022
From this, Sa’d and Hategan went on to draw the conclusion that police are taking their information primarily from the media. After that, the police would feed this data — primarily from the Canadian Anti-Hate Network — to politicians, who (among other things) invoked the Emergencies Act. They apparently all fed off of each other, which was referred to many times as the “circle jerk”.
However, Sa’d and Hategan — in their FOIPIP request — didn’t ask for all “records, files (etc), documents, memos, e-mails, communication records, and reports” that resulted in the EA being invoked. Instead, the request was specific to the group, Diagolon. They then decided that these records were sufficient. It’s worth noting that the FOIPIP didn’t inquire about any other (alleged) extremists.
Nor did the FOIPIP request to obtain any “records, files (etc), documents, memos, e-mails, communication records, and reports” about how so-called violent extremists groups are defined, surveilled and dealt with.
Nor did the FOIPIP request to obtain any “records, files (etc), documents, memos, e-mails, communication records, and reports” about what information and evidence had been gathered on Diagolon. They didn’t ask to see anything from law enforcement directly. Granted, this would likely have been withheld, if investigations were ongoing.
The documents included here do have significant redactions, so there’s a lot of information that’s being withheld. Nonetheless, Sa’d and Hategan can apparently still piece together what was going on.
Point is, a lot of conclusions were drawn on a very incomplete record.
Authors Interviewed No Witnesses To Draw Conclusions
Pages 57 to 62 of the HateGate report quote some emails between various law enforcement and Government. From this, the authors conclude that the RCMP was working blindly to fulfill demands to dig up dirt on various extremist groups.
Problem is: going through their report, it doesn’t look like they interviewed a single witness, or even attempted to. Since the FOIPIP only asked about “Diagolon”, most likely there are many other emails not included. Given the gaps in the record (see previous section), one would think they would try to contact at least a few of the officers involved. After all, their email addresses were listed.
This isn’t to justify — in any way — the heavy handed approach that was used on peaceful protesters. Far from it. But these are very serious allegations to make, and it’s very speculative.
RCMP Expressed Doubt About Reliability Of CAHN Articles
Pages 16 through 26 of the 2nd FOIPIP package are worth a read. The RCMP does discuss Diagolon at length, and admits that a lot of the information they get came from CAHN. However, they also admit that it’s almost impossible to verify any of it, and that it’s unclear how CAHN can make these assertions with any level of confidence.
The RCMP also expresses doubts about a University of New Brunswick Professor named David Hofmann. They don’t know how he can state that Diagolon is an “American-style militia movement”.
They conclude that “operational information” would be needed to build any profile, since none of the open source claims can be verified.
Is this self serving? Maybe, but these are the same FOIPIP documents that are being used to make them look incompetent and dishonest. Yes, the RCMP does monitor the content CAHN puts out — that’s obvious — but they have doubts about its reliability.
MacKenzie’s Stream From February 15th, 2022
Starting at page 47 of the 6th FOIPIP package, MacKenzie’s video is mentioned, along with several quotes. He refers to himself (presumably sarcastically) as the Neo-Nazi Militia Commander. He mentions the patches that were found in Coutts, but suggests they were planted. He also goes on about the “country” being a meme.
It’s baffling to understand what kind of idiot would post a video with such a title. If authorities aren’t understanding what’s satire v.s. reality, why give them this kind of bait? And it’s hardly the first time he’s done something like this.
MacKenzie either doesn’t know — or pretends not to know — that posting this content can have serious consequences. Hard to claim he’s being smeared by CAHN when this is how he describes himself.
There are also remarks in various streams about “hunting circs”, which police take to mean “hunting circulons”, or people who subscribe to different ideologies. While this is likely in jest, authorities take them at their word.
Part of the reason authorities had such difficulty understanding what Diagolon was likely had to do with the endless mixed messages. MacKenzie and his friends routinely said things that would be considered fed-posting, only to follow it up with “it’s all just a joke”. Comments about “gun or rope” and the like are also just jokes.
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….
Going back to the Schill gun grab of May 2024, Carmichael testified that there were meet-ups in person. There were also conversations around weapons, ammnition, and body armour.
He also testified that the in-person meetings were surveilled.
One has to wonder how long this has been going on for. How extensive it the information that has been gathered? This is another reason to think that more information should have been asked for with the FOIPIP request.
Are MacKenzie, Harrison, Vriend and the others completely oblivious to what’s being set in motion? All of this talk about being a militia, going shooting, etc… is being taken at face value. And now with the hard anti-immigration push, it looks even worse.
RCMP Has Their “Talking Points” Available For The Media
Back in April 2022, the RCMP had their “talking points” ready for media inquiries. This is from the beginning of the 1st FOIPIP package. In essence, there were scripts already prepared, including what to say if pressed further.
Page 31 of the 9th FOIPIP package has a similar script, dated February 20th, 2022. No specifics can be given, but there’s a “trust us” response.
Far from being unique, it seems likely that most (or all) press conferences are structured this way. There’s the set script, and then the “extra information” to be released if there’s any pushback.
Diagolon is mentioned in the context that body armour from Coutts, AB had their markings on it. Yes, it is labelled a “militia” in this memo. Can’t figure out why.
Authors Insert Themselves Greatly Into Report
The HateGate report is 85 pages, or less, if covers, table of contents, etc… are removed. Pages 10 and 11 are about Caryma Sa’d, and 31 to 44 are about Elisa Hategan. 16 pages, or approximately 20% of the report’s content is information on the authors and their experiences. There’s about as much detail on them as there is on MacKenzie. And that leads to another concern….
Other Agendas From The Authors?
As an aside, it’s comical how the “independent” media who broke HateGate never bothered to do the slightest bit of due diligence into the people writing the report.
Part 1 of this series covered Elisa Hategan, one of the co-authors. She had been involved with a group called Heritage Front back in the 1990’s. She later acted as an “asset” for the Ontario Provincial Police, helping to bring them down. Hategan’s story is widely available, and she even published a book titled: “Race Traitor”.
Heritage Front turned out to be a CSIS operation, quite literally. It was co-founded by Grant Bristow, who was at one point the second-in-command of the group. This means the group was created, at least in part, by CSIS. Who’s to say that Diagolon isn’t the next iteration?
Part 2 covered Hategan’s lawfare against Bernie Farber, and Elizabeth (Moore) Frederiksen. Justice Ferguson found that Hategan had engaged in doxing, stalking, harassment, and invading privacy. Not content to lose in Court, she kept it going in Appellate Court for another 2 years.
Hategan’s involvement in writing the HateGate report is suspicious because: (a) she glosses over the “honeypot” possibility; and (b) given her recent history with Farber, this looks like revenge.
Thoughts On The FOIPIP And HateGate Report?
The claim has been going around since September 2023 that this was “proof” that an intelligence failure around Diagolon and MacKenzie led to the EA being invoked. But the request only asks for information on Diagolon, and is structured in a way that ensures such proof won’t be included. It would have been far more productive to request all records related to the declaration of emergency in the first place.
Alternatively, multiple FOIPIP requests could have been made, even if there would be overlap in the disclosure.
While the FOIPIP package is over 1,000 pages, there’s very little in there. Many of the emails are chains, so the same content keeps coming up. A lot of pages have little to no content on them.
Sa’d and Hategan fill in the blanks with their own assumptions. Without talking to witnesses, they speculate and give their views about what was going on. If this was clearly explained to be opinion, that would be one thing, but people interpret this as fact.
Taking the FOIPIP documents at face value, it’s clear that the RCMP (and presumably CSIS too) do in fact monitor the news in general. They also have looked at what CAHN has said about others, including Diagolon. However, while these articles are quoted, and shared, there’s no hard proof that it led to anything, let alone the invocation of the Emergencies Act.
Yes, other countries (such as New Zealand) have been contacted about Diagolon. However, given the kinds of comments MacKenzie and his followers routinely make, this doesn’t seem outrageous.
The HateGate report comes across much more as an advocacy piece that something objective. MacKenzie’s take on things is always given deference. People like Bernie Farber are always pushing ideological agendas. The authors (in particular Hategan) use their own experiences as material and for reference points.
Overall, this is nowhere near the “breaking story” that had been portrayed.
It’s interesting, but that’s about it.
Again, this is in no way to justify the declaration of emergency, or the crackdown on protesters, or the freezing of bank accounts. None of that was called for.
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 series relate to the Schill gun grab. There’s a lot more to get into, all of it ignored by so-called “alternative” media.
Viewers of my last video weren’t too happy. Included were various video clips, along with references to the Zaugg and Schill incidents. Apparently, that wasn’t enough, and it was necessary to research HateGate to have an informed opinion.
The gist of it was (supposedly) that Diagolon and Jeremy MacKenzie (a.k.a. Raging Dissident) were being wrongfully smeared by the hate industry in Canada. The allegations were all baseless, and all founded on distortions of a podcast-based community. The investigative reporting had cleared them of any wrongdoing — beyond being loud, crude and obnoxious.
A quick search led to an article on Crier Media, with an 85 page report attached. It was co-authored by Caryma Sa’d and Elisa Hategan. To be fair, the report itself is quite interesting, and is heavily sourced. This isn’t merely rambling on their part, but the result of considerable work.
But a few things immediately stood out.
Quotes From HateGate Report
Taking Down the Heritage Front
In the early 90s, sixteen-year-old Romanian immigrant Elisa Hategan (then Elisse) was held up as the innocent young face of an Ontario neo-Nazi, white supremacist group known as the Heritage Front. With over 200 members, including violent skinheads with convictions for aggravated assault, kidnapping and attempted murder, and implicated in firebombings, it was considered the most dangerous white supremacist group in modern Canadian history. Elisa was groomed as a media spokesperson to soften the image of violent skinheads, even appearing on The Montel Williams Show at age seventeen to repeat scripted talking points that concealed the group’s hateful ideology.
It was a cynical, yet effective strategy. But the adult puppeteers failed to account for personal agency, nor for Elisa’s identity as a closeted lesbian with Jewish roots, later confirmed through DNA tests. Elisa began to secretly provide information to anti-racist activists, at great personal risk, revealing details about illegal weapons and the identity of a Toronto police officer who was a group member. At age eighteen, she defected from the group, stealing part of Holocaust denier Ernst Zundel’s membership list. Months later, her courtroom testimony was instrumental in securing the convictions of three Heritage Front leaders—a fatal blow that triggered the group’s decline and eventual demise.
While the leaders were serving jail time, co-founder and second-in-command leader Grant Bristow was exposed as an undercover CSIS operative by Toronto Sun reporter Bill Dunphy, in part due to scrutiny that arose after Hategan’s affidavits and testimony pointed to Bristow being an agent provocateur who directed criminal activity such as the It Campaign, a brutal harassment campaign directing Indigenous community leaders and anti-racist activists.
Despite having incurred serious death threats, including being questioned at knifepoint by Front members the day before her defection, Elisa was inexplicably denied entry into the RCMP’s Witness Protection Program. Grant Bristow, however, was promptly relocated to Alberta, given a home, cars and a generous monthly paycheck for years afterwards, despite the fact that his five years of work in Operation Governor had not led to the arrest and conviction of a single Canadian neo-Nazi.
Forced to live in hiding across Canada for more than two years, relying on kind strangers, homeless shelters, and dumpster-diving to survive, Elisa, a ninth-grade high-school dropout with a history of familial abuse and foster care, managed to earn a Nova Scotia GED and was accepted into the University of Ottawa’s prestigious criminology program.
Motivated to understand how extremists target youth for radicalization, Elisa made the best of her second chance, engaging in volunteer work inside prison and youth detention centres, while working two jobs and relying on student loans to stay afloat. In 1999, aged 25, she graduated magna cum laude with a double major in criminology and psychology.
Starting on page 31, the report talks about Hategan’s backstory, including how she had been groomed as a “spokesperson” for Heritage Front, a white supremacist gang. It turned out that Grant Bristow, a co-founder of the group, was in fact a CSIS agent. Of course, this raises the obvious question of whether (and to what degree) the group was created at the behest of authorities in Canada.
Granted, the 1980’s and early 90’s didn’t have internet culture, so it’s not the same as today. But there are many things to be asked.
Hategan isn’t shy about her involvement with Heritage Front. She has a video on her YouTube channel, which is still accessible today. She also has a book for sale called Race Traitor.
All of this said, the HateGate report seems to avoid addressing the elephant in the room: was CSIS doing the same thing with Diagolon that they were with Heritage Front? Could MacKenzie, Harrison and/or Vriend really be working for the Government? Could they (alternatively) be considered assets?
Hategan Counselled To Commit Crimes — As A Minor
Critics who distrust CAHN’s claim of expertise on far-right extremism will cite a noticeable double standard—the penchant to reserve the brunt of condemnations for political opponents, while overlooking and even forgiving misconduct by peers and members of their devoted fanbase. They point to situations where CAHN implies they are selective when choosing who gets publicly denounced as a bigot or extremist, and who is ignored.
For instance, relative unknowns get spotlighted and called heroes, even when there is no evidence to suggest they did anything to earn the accolades. To our knowledge, none of the former white supremacists promotes by CAHN has provided evidence of assistance to law enforcement organizations while still inside their hate groups. None testified against former comrades to help secure convictions.
There is arguably no better example to underscore concerns over CAHN’s personal biases affecting what is purported to be expert research, than the enduring friendship between Bernie Farber and Grant Bristow, the undisputed co-founder and self-appointed “Intelligence Chief” of the Heritage Front.
Prior to her defection from the Heritage Front, Elisa Hategan submitted approximately 30 affidavits to the Ontario Provincial Police. Several involved situations where Bristow purportedly counseled Elisa—initially still a minor—to engage in criminal activity, such as giving her instructions on how to anonymously harass and intimidate left-wing activists, hack into answering machines to collect data, and spy on the Irish Freedom Association of Toronto.
She, along with scores of neo-Nazi skinheads and white supremacists, were given names, addresses and telephone numbers and taught how to use voter registry information to gather details about individuals on the target list, such as the names of everyone residing at that domicile.
Bristow also boasted about his intention to drive a lesbian Anti-Racist Action (ARA) activist to mental breakdown and suicide. “I want to pound Ruth’s head in. I want to give her a facial massage with a sledgehammer,” he is described as saying in one of Elisa’s 1994 affidavits. He enlisted Elisa specifically because he needed a woman’s voice for that particular job—to record messages on adult personal ads while passing as Ruth, and give out her address and telephone number.
Beginning on page 48, Hategan outlines how she had been pushed to commit crimes, while still being a minor. She describes conduct that can best be described as harassment, stalking and doxxing. She mentions her extensive cooperation with the Ontario Provincial Police.
She also claims that Bernie Farber — the infamous head of CAHN, the Canadian Anti-Hate Network — had a long lasting friendship with Bristow. If this is true, then groups like Heritage Front are presumably in bed with the “anti-hate” and “anti-fascist” organizations that oppose them.
With this knowledge in mind, it again raises the obvious question: why didn’t the HateGate report seem to explore the possibility that Diagolon was a Government front? Hategan, more than nearly anyone, should have been aware of this.
Why Get Involved With These People At All?
Looking through Hategan’s many online postings, she quite proudly boasts of her Jewish heritage, and of being a lesbian.
That being said, the streams of “Raging Dissident” are filled with endless insults and comments about “the Jews”, and “faggots”. It’s baffling that Hategan would put in the work to try to clear them. Of course, this could just be an idealistic take on free speech.
Taking a look through her Twitter feed, it seems that relations between Hategan and Diagolon have collapsed. She’s even threatened lawsuits based on the content of Harrison’s book: Meme Kampf. Gee, who could foreseen such a possibility?
Most people are likely unaware of this, but when someone makes a freedom of information request, there’s an archive generated. From the Government’s perspective, it prevents duplication, in the event that someone else asks for the same (or similar) data. It wasn’t hard to find this specific one.
It’s unclear why the full summaries weren’t released along with the other citations. None of the media outlets that covered the story did either. Therefore, this site contacted the RCMP and requested a copy of the results.
This will be covered in a future article, but the results of the FOIPIP request don’t really support the conclusions that are drawn. Yes, there are accurate quotes pulled. However, the package — when read in full — leads toward other findings.
Probably the biggest misconception is that authorities panicked jumped to conclusions to justify invoking the Emergencies Act. The “Diagolon” group promotes this narrative non-stop. That isn’t justified though.
Is Diagolon An Intelligence Gathering Operation?
The recent “Road Rage Terror Tour” has concluded, with this group coming to towns across Canada. But it’s worth asking what exactly was the point? Was selling merchandise the goal? Or was it to gather names, photos and contact information of people to monitor?
Recently, the so-called Queen of Diagolon posted this tweet. Who makes comments — even as a joke — about recording people’s licence plates? Keep in mind, one of the things Hategan did for police was take down plate numbers.
Considering the content of these streams, doxxing is a legitimate concern.
Given that a few “Diagolon” patches found in Coutts was allegedly a smoking gun connection of a murder conspiracy, why the push to keep selling merch? Is it about extra money? Ego? Or is the goal to spread enough of it around that a connection can always be found?
Regular people would have been charged for saying a fraction of the things that are common on these livestreams. For some reason, Government goes out of its way to signal boost, rather than get it shut down. Remember:
There is arguably no better example to underscore concerns over CAHN’s personal biases affecting what is purported to be expert research, than the enduring friendship between Bernie Farber and Grant Bristow, the undisputed co-founder and self-appointed “Intelligence Chief” of the Heritage Front. (HateGate, Page 48)
This is directly from their text. According to the HateGate report, Bernie Farber and Grant Bristow were able to remain friends despite them being ideological enemies. It suggests the entire conflict was manufactured. Fast forward to today, could something similar happen again?
Could Evan Balgord and Alex Vriend secretly be friends? Is Diagolon really just Heritage Front 2.0?
As they say, history doesn’t repeat itself, but it does often rhyme.
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.
