Bit Of History: Peter MacKay Shanks David Orchard In 2003 PC Leadership Race

(Peter Mackay pledges – in writing – no merger with Alliance if he wins)

(Peter MacKay sticking the knife in again?)

1. Important Links


CLICK HERE, for the Peter McKay/David Orchard alliance.
http://archive.is/DJ6M8
CLICK HERE, for CBC article on the broken deal.
http://archive.is/fAEgs
CLICK HERE, for ONSC denying Orchard’s application in full.
http://archive.is/niIKc
CLICK HERE, for an ONSC judge refusing costs for defamation.
http://archive.is/NgxG0
CLICK HERE, for Orchard’s ON Court of Appeal Factum.
http://archive.is/nsX0V/image
CLICK HERE, for ONCA dismissing appeal/cross appeal/motion.
http://archive.is/nBrOy
CLICK HERE, for Stevens v. CPC, Federal Court of Canada.
http://archive.is/iwCyI
CLICK HERE, for Stevens v. CPC, Federal Court of Appeal.
http://archive.is/6S6am

CLICK HERE, for a May 2019 article on replacing Scheer (before election).
http://archive.is/ZPFdF
CLICK HERE, for MacKay commenting on Scheer’s 2019 loss.
http://archive.is/SFvWr

2. Context For This Article


In 2003, the current Conservative Party of Canada did not exist. Instead, there was the Alliance Party, led by Stephen Harper, and the Progressive Conservative Party, undergoing a leadership race.

Two candidates in that race, David Orchard and Peter Mackay, struck a deal: Orchard would support MacKay’s leadership bid in return for a written pledge not to pursue a merger or deal with the Alliance. At that time, a merger had been seriously considered, as a way to form a united alternative to the Liberal Party. But MacKay promised — in writing — not to pursue this if he was supported for leader of the Progressive Conservative leadership.

The deal went ahead as planned (so it seemed), and MacKay became leader of the party. However, it appeared he had no intention of honouring his deal. Almost immediately, he pursued merger talks with the Alliance. The eventually merged, and the new party formed government from 2006 until 2015. MacKay’s deceptive and underhanded tactics had won in the long term.

Fast forward more than a decade from 2003, and another controversy. See section #9 for more on that.

3. Text Of McKay/Orchard Deal

May 31, 2003 Agreement between Peter MacKay and David Orchard
1) No merger, joint candidates w[ith] Alliance. Maintain 301.
2) Review of FTA/NAFTA – blue ribbon commission with D[avid] O[rchard] w[ith] choice of chair w[ith] P[eter] M[acKay’s] agreement. Rest of members to be jointly agreed upon.
3) Clean up of head office including change of national director in consultation (timing w[ithin] reasonable period in future, pre-election) and some of DO’s people working at head office.
4) Commitment to making environmental protection front and center incl[uding] sustainable agriculture, forestry, reducing pollution through rail.
[Signed by Peter MacKay and David Orchard]

Looks pretty straightforward.
No merger. Fix our party instead.

4. ON Court Challenge By Orchard, Others

Administrative law — Voluntary association — Political parties — Political parties registered under Canada Elections Act — Leaders of Progressive Conservative Party of Canada and Canadian Reform Conservative Alliance reaching agreement for merger of political parties — Common law principles regarding unregulated voluntary associations did not apply to political parties registered under Canada Elections Act — Canada Elections Act governing merger of registered political parties — Canada Elections Act, S.C. 2000, c. 9.

On October 15, 2003, Peter MacKay, leader of the Progressive Conservative Party of Canada (“PC Party”), reached an agreement in principle with Steven [page278] Harper, leader of the Canadian Reform Conservative Alliance (“Alliance”), for the establishment of the “Conservative Party of Canada”. PC Party members who were opposed to the agreement applied to the court for several declarations. The premise of these declarations was that the PC Party could not be dissolved or merged with another political party except with the unanimous consent of all its members. The applicants also sought a permanent injunction to prevent anyone from dealing with the party’s assets.

[4] The applicants are PC Party members who are opposed to the merger of the party with the Alliance. They request that the court make a number of declarations, which are all premised on their view that the PC Party cannot be dissolved or merged with another political party, except with the unanimous consent of all of its members. They also seek a permanent injunction to prevent anyone from otherwise dealing with the party’s assets.

[5] I note that several items of the relief set out in the Notice of Application are not pursued before me. Paragraph 1(j) requested a declaration that Mr. MacKay is in breach of his written agreement, dated June 1, 2003, with Mr. Orchard, and sought consequential relief. The request for this relief was withdrawn on the consent of counsel prior to the date set for the hearing. Paragraph 1(e) sought a declaration that the procedures set by the Management Committee of the PC Party for the special meeting scheduled for December 6, 2003 are contrary to the Party’s Constitution and by-laws. Counsel for the applicants indicated they [page280] were not seeking such relief and informed the court the applicants were making no attack on the specific procedures adopted by the Party respecting the special meeting. Counsel also informed the court that the applicants were not requesting the court to deal with the relief sought in para. 1(g) which sought a declaration that the Constitution of the PC Party prohibited its leader from agreeing with the leader of another political party that the PC Party will not nominate candidates in every federal constituency in Canada.

[6] Traditionally, the courts have been reluctant to get involved in supervising the internal affairs of voluntary associations. However, courts do recognize that membership in a voluntary association can give individuals important social rights that are worthy of some protection. Members may request the courts to require that the organization carry out its affairs honestly, in good faith and in accordance with its governing rules.

[7] In this case we are dealing with a political party. The social interest of members in ensuring that the organization’s affairs are conducted in accordance with its governing Constitution is apparent. Citizens exercise important rights in participating in political activity through membership in political parties. However, the court must be careful not to intrude into the political realm. There were submissions and evidence in this case that I considered to be political rhetoric. I have disregarded all such evidence and submissions.

[13] I am satisfied that the situation is sufficiently developed to give rise to an actual dispute between the parties. Both sides have important interests at stake. The leadership of the PC Party has embarked on a path to merge the party. The applicants are opposed to the course of action being taken. Counsel for both sides indicated to the court that it would be of assistance to have a decision before the vote is taken tomorrow. Given their national significance, there is good reason to determine the questions raised by this actual dispute, and I am satisfied that the court’s decision will be of practical effect in resolving the dispute.

[14] I have concluded that this dispute does not fall within the ambit of the internal dispute resolution in Article 13 of the PC Party’s Constitution. I regard the internal process as intended to deal with questions about whether the ongoing affairs of the party are being conducted in compliance with its Constitution and by-laws. This dispute arises in extraordinary circumstances not contemplated by its Constitution, concerns its continued existence, and as will be seen, is in large measure about the proper interpretation and effect of a public statute. In deciding not to defer to the internal arbitration process, I paid no heed to the applicants’ arguments that that process was flawed by relationship and institutional bias. I regard the applicant’s apprehension of bias to be without merit.

[40] In expressing this view, I should not be taken to be declaring the law. In this proceeding I was asked to make declarations that the PC Party cannot merge, transfer its assets, or dissolve without the unanimous consent of every one of its individual members. I have decided, based on the view I take of the law, that it is not appropriate to make such declarations.

[41] A further comment must be made about para. 1(h) of the application. Paragraph 1(h) seeks “a declaration that the resolution [before the December 6 special meeting] does not constitute the resolution required pursuant to s. 400(2)(b) of the Canada Elections Act in order for the PC Party to merge with another registered party under the Act”. Whether the resolution being acted upon tomorrow, or any other resolution, satisfies the requirements of the Act must, in the first instance, be decided by the Chief Electoral Officer. I refuse the relief requested in para. 1(h) on that basis.

[42] The application is dismissed in its entirety. Counsel may make an appointment through my secretary to address costs.
Application dismissed.

In short the Court ruled that the matter should be decided internally. The parties have governing documents (such as constitutions) which set out terms for various issues, including mergers.

One way to look at this would be the “sort out your own business” line of reasoning prevailed. And while members of an organization should expect leaders to behave in a good faith manner, the Court apparently isn’t always the place to demand such a resolution.

While the Judge “could” have intervened, the decision was made not to.

See the next section for the Elections Act (400-403)

5. Canada Elections Act

[34] I set out the provisions in full, underlining the particular phrases that I find helpful in interpreting the provisions. I discuss some of the particular phrases below.

400(1) Two or more registered parties may, at any time other than during the period beginning 30 days before the issue of a writ for an election and ending on polling day, apply to the Chief Electoral Officer to become a single registered party resulting from their merger.
(2) An application to merge two or more registered parties must
(a) be certified by the leaders of the merging parties;
(b) be accompanied by a resolution from each of the merging parties approving the proposed merger; and
(c) contain the information required from a party to be registered, except for the information referred to in paragraph 366(2)(i).

401(1) The Chief Electoral Officer shall amend the registry of parties by replacing the names of the merging parties with the name of the merged party if
(a) the application for the merger was not made in the period referred to in subsection 400(1); and
(b) the Chief Electoral Officer is satisfied that
(i) the merged party is eligible for registration as a political party under this Act, and
(ii) the merging parties have discharged their obligations under this Act, including their obligations to report on their financial transactions and their election expenses and to maintain valid and up-to-date information concerning their registration.
(2) The Chief Electoral Officer shall notify the officers of the merging parties in writing whether the registry of parties is to be amended under subsection (1).
(3) If the Chief Electoral Officer amends the registry of parties, he or she shall cause to be published in the Canada Gazette a notice that the names of the merging parties have been replaced in the registry with the name of the merged party.

402(1) A merger of registered parties takes effect on the day on which the Chief Electoral Officer amends the registry of parties under subsection 401(1).
(2) On the merger of two or more registered parties,
(a) the merged party is the successor of each merging party;
(b) the merged party becomes a registered party;
(c) the assets of each merging party belong to the merged party;
(d) the merged party is responsible for the liabilities of each merging party; [page287]
(e) the merged party is responsible for the obligations of each merging party to report on its financial transactions and election expenses for any period before the merger took effect;

(f) the merged party replaces a merging party in any proceedings, whether civil, penal or administrative, by or against the merging party; and
(g) any decision of a judicial or quasi-judicial nature involving a merging party may be enforced by or against the merged party.

403. Within six months after a merger
(a) each of the merging parties shall provide the Chief Electoral Officer with the documents referred to in subsection 424(1) for
(i) the portion of its current fiscal period that ends on the day before the day on which the merger takes effect, and
(ii) any earlier fiscal period for which those documents have not been provided; and
(b) the merged party shall provide the Chief Electoral Officer with
(i) a statement, prepared in accordance with generally accepted accounting principles, of its assets and liabilities, including any surplus or deficit, at the date of the merger,
(ii) an auditor’s report, submitted to the chief agent of the merged party, as to whether the statement presents fairly and in accordance with generally accepted accounting principles the information on which it was based, and
(iii) a declaration in the prescribed form by the chief agent of the merged party concerning the statement.

These sections of the Canada Elections Act are cited in both the Provincial and Federal Court rulings. As such, we should know what they actually say. In short, they quite clearly allow for party mergers. Broken promises and backroom deals don’t actually appear anywhere in the text.

6. ON Court Of Appeal (Orchard et al.)

[17] As a preliminary matter, the respondent moves to quash the appeal as now being moot. It argues that there is no longer a live issue affecting the rights of the parties because the merger has happened and the Conservative Party has been registered by the Chief Electoral Officer in place of the PC Party and the Alliance Party.

[18] In my view, the motion must be dismissed. There remains the same real legal issue between the parties that existed before December 6, 2003, namely, whether the PC Party can be dissolved or merged with another political party without the unanimous consent of all of its members. The only difference is that if [page134] they are successful, the appellants must now seek a remedial order undoing what has happened rather than an order to prevent it from occurring. The respondent has not shown that this would be impossible. The underlying legal issues still have an effect on the rights of the parties and hence mootness does not apply.

[19] On the appeal itself, the appellants’ fundamental contention is that the common law requires the PC Party to obtain the unanimous consent of all of its members to merge with the Alliance Party. In making this argument they place significant reliance on Astgen.

[45] By the terms of the constitution this decision is final and binding. Having had the opportunity to participate in that process the appellants are bound to accept it as final and binding, subject to judicial review which they have not sought. This is a corollary to the obligation of an organization like a trade union to give notice of an arbitration to a member whose rights will be affected because the decision of the arbitration board is final and binding. See, for example, Hoogendoorn v. Greening Metal Products and Screening Equipment Co. (1967), 1967 CanLII 20 (SCC), [1968] S.C.R. 30, 65 D.L.R. (2d) 641. It is not open to the appellants to seek a determination by the court that the resolution is of no legal effect because the PC Party failed to comply with the procedures required by its constitution. In this circumstance, that is a matter for the Arbitration Committee.

[46] In summary, therefore, the appellants’ arguments on appeal must be rejected.

[47] The respondent has cross-appealed from the decision of the application judge to award no costs because of the public importance of the issues raised. We did not call on the appellants to respond to the cross-appeal. In our view, it was an entirely appropriate exercise of discretion by the judge of first instance.

[48] As to the costs of the proceedings in this court, success has been divided. The appellants failed on the appeal. The respondent failed to establish mootness and failed on the cross-appeal. Together with the public importance of the questions raised, this makes it appropriate to order that there be no costs in this court. [page141]

[49] I would therefore dismiss the motion to quash and the appeal and the cross-appeal. No costs in this court.

Among other things, the Court of Appeals states that relief should have come in the form of an application for judicial review challenging the Elections Commission.

Beyond that, the Appeals Panel sidesteps the underhanded nature of MacKay’s duplicity. Instead, they point out that the Canada Elections Act explicitly allows for mergers except in very limited cases. Unanimity from all participants is not required.

To sum up, there is nothing new to add here, so appeal dismissed.

7. Stevens v. CPC (Federal Court)


This was not the only case that was launched. There was an Application for Judicial Review started in Federal Court to contest the ruling that allowed the merger.

[76] The Applicant argued that the decision of the Ontario Court of Appeal confirmed the opinion of the application judge that section 401(1)(b)(ii) of the Act vests the CEO not the Court, with the mandate of determining if the merger application met the statutory requirements. However, he also submits that the Court of Appeal recognized that section 400(2)(b) of the Act implicitly requires that a merger resolution be passed in accordance with the constitution of a merging party.

[77] Accordingly, the Applicant argues that this holding supports his contention that the CEO erred in law by rejecting the constitution of the PC Party as being relevant to his decision. The Applicant repeats and relies upon his earlier submissions that the constitution of that party specifically prohibits the merger application that was made.

[78] Further, the Applicant says that the judgment of the Ontario Court of Appeal does not address the argument that the common law rights of voluntary associations include the right to be heard when such association is a political party that is at risk of dissolution.

ii) The Respondent

[79] The Respondent disagrees with the Applicant’s interpretation of the Ontario Court of Appeal’s decision and argues that the Court rejected the arguments that the merger of the PC Party and the Alliance Party attracted application of the common law rule that the unanimous consent of each party member was required for the merger of those parties. Further, the Respondent submits that the Ontario Court of Appeal held that the Act did not require unanimous consent for such merger.

[80] In conclusion, the Respondent relies on the decision of the Ontario Court of Appeal as supporting its view that the decision of the CEO to amend the registry of parties on December 7, 2003, was correct.

<

p style=”padding: 2px 6px 4px 6px; color: #555555; background-color: #eeeeee; border: #dddddd 2px solid;”>

[114] A waiting period of sixty days applies when a political party initially applies for registration. In my view, it is reasonable that a waiting period, albeit a reduced one, will also apply when two registered parties apply for merger.

[115] It follows, then, that in my opinion, the CEO erred by amending the registry of parties on the same day that the merger application was made and without waiting for thirty days, to ensure that no election writ would be issued, thereby activating the commencement of the prohibited period.

[116] As noted earlier, the Applicant seeks an order quashing the decision of the CEO and reinstating the PC Party on the registry of parties. Alternatively, the Applicant seeks an order setting aside the decision of December 7, 2003 and referring the matter back to the CEO.

[117] In my opinion, the remedies sought by the Applicant should not be granted. Pursuant to section 18.1(3) of the Federal Courts Act, supra, the Court has discretion in the matter of granting relief upon an application for judicial review. On occasion, relief has been denied and in this regard, I refer to Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202.

[118] In the present case, I take judicial notice of the fact that no writ for an election was issued in the thirty days following December 7, 2003. In the result, the CEO’s action in immediately amending the registry of parties, although contrary to my interpretation of the Act, had no material effect. In the exercise of my discretion, I decline to grant the relief sought.

[119] The application for judicial review is dismissed. However, the Applicant has raised a valid point and is entitled to his assessed costs under Column III.

                                         <center>  ORDER</center>

IT IS HEREBY ORDERED AND ADJUDGED that:
.
The application for judicial review is dismissed, the Applicant to have his assessed costs under Column III

Much the same as with the Ontario Courts. The Court declines to intervene, and rules the merger allowed under the Canada Elections Act.

8. Stevens v. CPC (Federal Court of Appeal)

[49]I therefore find that the only interpretation that would give a concrete meaning to the texts in question is the one that requires the Chief Electoral Officer to let 30 days expire once the merger application is received before accepting it. If this was not Parliament’s intention, it is free to correct our vision with a more specific legislative text.

Exercising discretionary power for judicial review
[50]Justice Heneghan refused to grant the relief sought despite the fact that the Chief Electoral Officer, by not waiting 30 days before making his decision, violated the Canada Elections Act. Taking judicial notice of the fact that no writ ordering an election was issued in the 30 days following the merger application, she found, at paragraph 118 of her reasons:
In the result, the CEO’s action in immediately amending the registry of parties, although contrary to my interpretation of the Act, had no material effect. In the exercise of my discretion, I decline to grant the relief sought.

[51]Justice Heneghan, in my opinion, judiciously exercised the discretion inherent to the power for judicial review. The existence of this discretion is based both on the text of subsection 18.1(3) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act [R.S.C., 1985, c. F-7 , s. 1 (as am. by S.C. 2002, c. 8, s. 14)] under which the “Federal Court may” [emphasis added] quash the decision of a federal board, commission or tribunal, and on the principles associated with traditional prerogative writs. In this regard, it would be appropriate to return to this long excerpt from Justice Hugessen’s reasons in Schaaf v. Minister of Employment and Immigration, 1984 CanLII 3622 (FCA), [1984] 2 F.C. 334 (C.A.), at pages 342-344, which summarize the basis of this discretion best, with the adaptations required by the new, more explicit formulation of section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26]:

In my view, nothing in the words used makes them other than attributive of jurisdiction. They create the power in the Court to set aside decisions which offend in one of the stated ways but do not impose a duty to do so in every case.

More of the same. The Federal Court can use discretion and choose not to intervene.

9. Current CPC Leadership Antics

This is the follow-up to Section #2. Andrew Scheer becomes leader of the Conservative Party of Canada in May 2017, is a surprise (and contested) 13th ballot over Maxime Bernier. However, it soon becomes clear that many people did not want this, and Scheer is undermined within his own party.

Bernier leaves in August 2018 to start his own party, the bizarrely named “People’s Party of Canada”. He claims that the CPC is no longer conservative, and that he will form an alternative. He also starts adopting populist rhetoric, something he previously hadn’t shown. Interestingly, Bernier spends more time attacking Scheer than the Liberal Party, which is currently in government.

Curiously, the People’s Party is missing a lot:
(a) Bernier has never called a leadership campaign
(b) No policies have ever been voted on
(c) There is no party constitution
(d) There are no by-laws, or other governing documents
(e) There is no national council, or senior board
(f) The platform was recycled from Bernier’s 2016/17 leadership run

Critics claim it is a “temporary” party meant to keep the Conservatives from winning, and to get Scheer ejected. Strangely enough, Peter MacKay’s name gets floated as a possible successor should Scheer not become Prime Minister.

Ultimately, Justin Trudeau did win again, but this time a minority. Despite winning the popular vote and increasing the seat total, Scheer was pressured to resign from the CPC leadership.

Could MacKay be at it again? Is this another scheme to undermine the will of conservative party members and select the party’s leader? Was the PPC just a psy-op to get rid of Scheer and install another leader instead?

10. Politics Is Rotten To The Core


This current fiasco has relevance to the 2003 one for a simple reason: some of the same people are involved in both. Now, could Peter MacKay be up to his old tricks of deceit and backstabbing? Choosing who becomes leader?

Actually governing people always seems to take a backseat to the infighting, pettiness, and selfishness of the politicians involved. Public servants appear to be anything but.

Giving your word, even in writing, seems to mean little. Alliances will always give way to self interest.

S3CA Challenge: Hypocrisy In Federal Gov’t Filings, Toronto V.S. Vancouver

1. Quotes From Toronto Gov’t Filings

2. Previous Posts On Case

CLICK HERE, for abuse of Safe Third Country Agreement.
CLICK HERE, for Prothonotary strikes out Statement of Claim.
CLICK HERE, for Uppity Peasants on the moral arguments.
CLICK HERE, for arguments to appeal S3CA dismissal.
CLICK HERE, for reply submissions in S3CA appeal.

3. Context Of This Article

This case involves the joint application for judicial review. These cases (for which arguments were just heard in Toronto) involves applicants trying to strike down the Safe Third Country Agreement.

If you have been following this site at all, you will know that a challenge has been launched in BC to close the “loophole” in the agreement. This loophole, in effects, allows fake refugees to jump the queue by GOING AROUND official border ports.

4. Gov’t Defends S3CA (In Toronto)

The Canadian government on Friday denied that the rights of any refugees are threatened by a U.S.-Canada agreement that compels asylum seekers trying to cross the border into Canada to first apply for sanctuary in the United States.

Under the Safe Third Country Agreement between the two neighbours, asylum seekers at a formal border crossing traveling in either direction are turned back and told to apply for asylum in the country they first arrived in.

Lawyers for unnamed refugees who had been turned away at the Canadian border are challenging the agreement, saying the United States does not qualify as a “safe” country under U.S. President Donald Trump.

However, the Canadian government argued in its submission that its “continued reliance on the regime is lawful and meets its Charter and international law obligations.”

“There’s no rights at stake here,” government lawyer Lucian Gregory told the federal court.

The court challenge comes as Canada seeks to stem the human tide of asylum seekers that has flowed into the country over the past three years. Trump was elected in 2016 after promising in his campaign to crack down on illegal immigration.

That’s right. The Trudeau Government tells a Toronto Court that the Safe 3rd Country Agreement is necessary to protect its borders, and does not discriminate on any human rights grounds.

Also, that same Government is telling a Vancouver Court that the Plaintiff/Moving Party has no right to attempt to close the loophole in the agreement.

In case any real journalists would like to learn more about the cases, these are the names and court files of the people involved.

MOHAMMAD MAJD MAHER HOMSI ET AL v. MCI ET AL
Court File: #IMM-775-17

NEDIRA JEMAL MUSTEFAv. MIRC ET AL
Court File: #IMM-2229-17

THE CANADIAN COUNCIL FOR RFUGEES ET AL v. MIRC ET AL
Court File: #IMM-2977-17

5. Gov’t: Open Court Needed (Toronto)

An interesting development in the case: The Federal Government opposed efforts by these “refugee claimants” to have their names redacted. In that case, only their initials would have been posted. The Government — in this case — values having an open court system.

6. Gov’t: No Loophole In S3CA (Vancouver)

These quotes are from the Government’s Motion to Strike, filed on May 22, 2019. In short, the lawyer claimed that since I was not a refugee claimant, I had no real interest or stake in the matter. Furthermore, there apparently was no loophole, and this poor wording was written in intentionally.

7. Rule 221: Motions To Strike

Striking Out Pleadings
Marginal note:
Motion to strike
221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
(a) discloses no reasonable cause of action or defence, as the case may be,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court,

and may order the action be dismissed or judgment entered accordingly.
Marginal note:
Evidence
(2) No evidence shall be heard on a motion for an order under paragraph (1)(a).

From the Federal Court Rules. Now, I am no expert on the matter, but filing contradictory, or at least incoherent or illogical pleadings should be grounds to strike out a defense. We shall see how it goes.

8. Two Courts, Two Priorities

The above is only a snapshot of what is going on, but the point should be clear. The Government is telling the Toronto Court that the Safe Third Country Agreement is necessary to protect our borders, and that not anyone can just walk in.

By contrast, that same Government is telling a Vancouver Court that there is no loophole to worry about, and that private citizens have no right to demand they enforce our laws and borders.

2 cases, 2 completely different responses.

Reply Arguments In Appeal Of Dismissal To S3CA Challenge

1. Quotes From Gov’t Defense Of Dismissal

2. Previous Posts On Case

CLICK HERE, for abuse of Safe Third Country Agreement.
CLICK HERE, for Prothonotary strikes out Statement of Claim.
CLICK HERE, for Uppity Peasants on the moral arguments.
CLICK HERE, for arguments to appeal S3CA dismissal.

3, Text Of Plaintiff’s Reply

WRITTEN SUBMISSIONS

(1) To avoid rehashing the entire written submissions section in the original Motion Record, this will be limited to 5 follow up questions for the Court to consider.

ISSUES

  • Should “due diligence” be required before making rulings?
  • To what degree should court officials be able to decide what cases are important?
  • What role should Prothonotaries have in striking out documents?
  • Should the government be allowed to submit conflicting, or incoherent pleadings?
  • Does Canada owe an obligation (beyond S3CA) to protect its borders?

(2) The above questions are to aid the Court in determining whether the original ruling should be allowed to stand, and the bigger issues at stake here.

Should “due diligence” be required before making rulings?

(3) Part of the appeal is on the grounds that Prothonotary Milczynski made overriding palpable error in the findings that claims of mass illegal crossings were just “opinion” and “unsupported”. The defence suggests that there was no reason to have submitted the evidence affidavit in the motion record.

(4) Where was the opportunity to submit proof of this?
First: Evidence is not supposed to be submitted with the Statement of Claim.
Second: Evidence is not allowed in Rule 221 motions to strike.

(5) So where exactly was the opportunity to prove any of the allegations? Remember, the standard of review for findings of fact is “overriding palpable error”. Unless this can be demonstrated, the default position is to “give deference” to the lower court ruling.

(6) So yes, it was necessary to submit the evidence affidavit with the motion record. This was the first opportunity to have this evidence submitted, and it shows irrefutably that Prothonotary Milczynski was completely wrong about Roxham Road crossings. So yes, it is important to the course of justice.

(7) Fact is, illegals have been crossing the Canada/U.S. border for years, particularly at Roxham Road in Quebec. This is public information, and has been in the media fairly regularly. There is a “loophole” in the agreement, in that simply going around border ports allows entry into Canada.

(8) Prothonotary Milczynski seems not to have been at all aware of this, despite the media attention. Instead, the allegations in the Statement of Claim were labelled as “opinions” and “bald face assertions”. Even a minimal amount of research (even a Google search) would have immediately found a wealth of media, photographic and video evidence corroborating every assertion made in the Statement of Claim.

(9) The affidavit contained only a tiny piece of the evidence available to prove the Plaintiff’s claims. No one, with any seriousness, can deny the hordes of illegals crossing into Canada. Again, the loophole (not any intended outcome), was that it doesn’t apply BETWEEN official border ports.

(10) In my view, this falls far short of what should be considered acceptable by a Court official. If a Prothonotary or Judge is going to call a Plaintiff’s statements “opinion”, then some due diligence should be done. Prothonotary Milczynski committed overriding palpable error in those findings, and the affidavit should outweigh the default position to “give deference”.

(11) While it is true that Court Officers have a heavy workload, there must be some due diligence performed before declaring a Statement of Claim to be “opinion”. The information included in the SoC has been public knowledge for about 3 years now, and could have been easily verified. This falls far short of what should be acceptable from a Prothonotary.

To what degree should court officials be able to decide what case are important

(12) Admittedly there is a level of discretion for the Prothonotary or Judgeinvolved. There has to be some leeway to decide what cases are important.

(13) That being said, the discretion was improperly used. From the Vancouversex workers case the Defendant referred to earlier.

[1] This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at p. 631.The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.

[2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, at p. 253. The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” (p. 253).

(14) First, this case is not about some minor or trivial thing. Rather, it is about trying to close the Canadian border to illegals trying to enter Canada. The Government of Canada “should” be taking this seriously. In fact, providing a secure border is arguably the most important function a government should serve.

(15) It is asinine to suggest that a citizen does not have a legitimate interest in having secure borders, and asinine that society as a whole is not impacted by mass illegal entries. Protecting its borders and sovereignty is arguably the most important function a government has. Without borders to mark and enforce its territory, the nation dies.

(16) It is not enough to simply have signs saying “Welcome to Canada” or some such thing. Borders must be enforced by people, and they must have laws — laws with teeth — enforcing them.

(17) Second, on a personal level, it does impact the Plaintiff. She has to pay more in taxes, it cheapens her citizenship if anyone can simply enter Canada if they go AROUND the border crossings, and social service access is limited as more resources are used on illegals who have no right to be in the country. On a public level, the same issues apply. Tax dollars are spent when they shouldn’t be.

(18) Third, as for being a reasonable means of bringing the court hearing the case, what’s the alternative? If the Government won’t act in ways that are most conducive to the safety and well being of its people, then what options are there other than the court?

(19) Although there is clearly discretion in whether or not to grant standing to hear such cases, it was inappropriately used here, especially when the Federal Court has the jurisdiction to hear it. (This is not a trivial or minor case). See the Federal Courts Act

Jurisdiction of Federal Court
Marginal note:
Relief against the Crown 17 (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.

Extraprovincial jurisdiction
25 The Federal Court has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

What role should Prothonotaries have in striking out documents?

(20) The Defendant makes a straw-man argument alleging I claim that Prothonotaries have no jurisdiction to hear motions to strike. That is weasly, and a misrepresentation.

(21) What was actually said (and cited by many cases) is that: (a) Amendments should be allowed prior to striking; (b) striking should be reserved to only when pleading is bad beyond argument; (c) Claims should not be struck out just because they are novel; (d) Prothonotaries should not strike on matters that are not fully settled before the courts. From the COMER case (Commission on Monetary and Economic Reform), submitted with motion record.

[30] The Plaintiffs remind the Court of the general principles to be applied on a motion to strike. The facts pleaded by the Plaintiffs must be taken as proven: Canada (Attorney General) v Inuit Tapirasat of Canada, 1980 CanLII 21 (SCC), [1980] 2 SCR 735; Nelles v Ontario (1989), DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle Inc., above; Hunt, above; Dumont v Canada (Attorney General), 1990 CanLII 131 (SCC), [1990] 1 SCR 279 [Dumont]; Trendsetter Developments Ltd v Ottawa Financial Corp. (1989), 32 OAC 327 (CA) [Trendsetter]; Nash v Ontario (1995), 1995 CanLII 2934 (ON CA), 27 OR (3d) 1 (Ont CA) [Nash]; Canada v Arsenault, 2009 FCA 242 (CanLII) [Arsenault]. A claim should be struck “only in plain and obvious cases where the pleading is bad beyond argument” (Nelles, above, at 627), or where it is “‘plain and obvious’ or ‘beyond doubt’” that the claim will not succeed (Dumont, above, at 280; Trendsetter, above). It is inappropriate to strike a claim simply because it raises an “arguable, difficult or important point of law” (Hunt, above, at 990-91), or because it is a novel claim: Nash, above; Hanson v Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 OR (3d) 142 (CA); AdamsSmith v Christian Horizons (1997), 14 CPC (4th) 78 (Ont Gen Div); Miller (Litigation Guardian of) v Wiwchairyk (1997), 1997 CanLII 12256 (ON SC), 34 OR (3d) 640 (Ont Gen Div). Indeed, in the law of torts in particular, this may make it critical that the claim proceed so that the law can evolve in response to modern needs (Hunt, above, at 991-92). Matters not fully settled by the jurisprudence should not be decided on a motion to strike: R.D. Belanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), 1991 CanLII 2731 (ON CA), 5 OR (3d) 778 (CA). The Plaintiffs say that, in order to succeed, the Defendants must produce a “decided case directly on point from the same jurisdiction demonstrating that the very same issue has been squarely dealt with and rejected”: Dalex Co v Schwartz Levitsky Feldman (1994), 1994 CanLII 7290 (ON SC), 19 OR (3d) 463 (Gen Div). Furthermore, the Court should be generous with respect to the drafting of the pleadings, permitting amendments before striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA); Toronto-Dominion Bank v Deloite Hoskins & Sells (1991), 1991 CanLII 7366 (ON SC), 5 OR (3d) 417 (Gen Div). Finally, the Claim has to be taken as pleaded by the Plaintiffs, not as reconfigured by the Defendants: Arsenault, above.

[31] The Plaintiffs say that the Prothonotary correctly stated the test on a motion to strike, but wholly misapplied it by determining substantive matters that should have been left for the trial judge, striking the Claim despite acknowledging that it was a “novel” and “complex” one, and making an erroneous ruling on the application of the Charter.

(22) As possible amendments, if certain statements were vague, or needed rewriting, that would certainly be possible to do. The option should have been given previously.

(23) With all of these principles in mind, striking with leave to amend (rewrite, clarify or otherwise fix) the Statement of Claim would have been the proper course rather than striking without leave. Here are a few proposed amendments if needed

  • Rewriting, redrafting the Statement of Claim, with more precise detail as seen fit.
  • Rewriting, redrafting the SoC, to make the legal arguments more clear
  • Modifying remedies sought, and just focusing on the law itself, not the fake refugees already here.

(24) If specific facts alleged should have clearer or more specific, that was — and still is — something that the Court can direct. Throwing the case out completely should not have been the first reaction.

Should the government be allowed to submit conflicting, or incoherent pleadings?

(25) The Defendant/Respondent has not disclosed that they have been fighting a case with a similar issue in Toronto since 2017. 3 “refugee claimants” are appealing the denial of their entry into Canada from the “warzone” that is the United States.

MOHAMMAD MAJD MAHER HOMSI ET AL v. MCI ET ALL
Court File: #IMM-775-17

NEDIRA JEMAL MUSTEFAv. MIRC ET AL
Court File: #IMM-2229-17

THE CANADIAN COUNCIL FOR RFUGEES ET AL v. MIRC ET AL
Court File: #IMM-2977-17

(26) The mental gymnastics are stunning. The Canadian Government tells the TORONTO Court that the Safe 3rd Country Agreement is necessary to protect Canadian borders from abuse. That same Government tells the VANCOUVER Court that an obvious loophole should not be closed, since the challenger is not a refugee claimant.

(27) That’s right. In Toronto, the Federal Government is telling the Court (and just had a 5 day hearing) that the Safe 3rd Country Agreement is vital. But in Vancouver, the Feds try to strike out a Claim attempting to close the loophole, which allows people to enter, just as long as they go around the actual border ports.

(28) In Toronto, border security is a critically important issue. In Vancouver, the case to secure the border from mass illegal entry is considered “busybody” work.

(29) Although the two cases are separate, and have separate parties, there is a palpable level of cognitive dissonance required in order for the Federal Government to argue both positions. As such, it should be considered arguing in bad faith, or being deliberately obfuscating.

Motion to strike
 221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it:
(a) discloses no reasonable cause of action or defence, as the case may be
(b) is immaterial or redundant
(c) is scandalous, frivolous or vexatious
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court
,

(30) Considering that the Toronto cases were started in 2017 — before this one — the defense in this case (the motion to strike) should actually not have been allowed to proceed. If not for contradictory pleadings, then for arguing in bad faith. 221(1)(e)

(31) In addition to the mental gymnastics of the 2 cases, the original motion to strike (filed by Aman Owais) was an abuse of the process of the court 221(1)(f)

(32) On top of that, take a look at the agreement itself. In the “understanding” portion of the Agreement, the following is written out.

EMPHASIZING that the United States and Canada offer generous systems of refugee protection, recalling both countries’ traditions of assistance to refugees and displaced persons abroad, consistent with the principles of international solidarity that underpin the international refugee protection system, and committed to the notion that cooperation and burden-sharing with respect to refugee status claimants can be enhanced;

DESIRING to uphold asylum as an indispensable instrument of the international protection of refugees, and resolved to strengthen the integrity of that institution and the public support on which it depends;

(33) In the original Motion to Strike, previous counsel Aman Owais argued that there was no loophole in the Safe 3rd Country Agreement, and that it was INTENDED to apply only to official border points (not the vast areas around them). This is utter nonsense and the Court should reject such arguments.

(34) The Agreement openly states that both Canada and the United States offer generous systems of refugee protection. It is therefore incoherent babble that people should be able to “asylum shop” simply by-passing official ports. This would reward people for breaking the law. The Government’s absurd claims like this are an abuse of the Court process in violation of Rule 221(1)(f), and the Motion should have been denied for that reason alone.

Does Canada owe an obligation (beyond S3CA) to protect its borders?

(35) Section 39, 40 of Immigration & Refugee Protection Act

39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made

40(1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresentations or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this act.

(36) Section 39 and 40 of the Act are not for the protection of foreigners coming into Canada. Rather, they are to protect Canadians from people who are unwilling to support themselves, or who lie in order to get into Canada.

(37) The United Nations Office of Drugs and Crime (UNODC) in their 2011 publication “Smuggling of Migrants”

(38) A Global Review and Annotated Bibliography of Recent Publications”, noted the connection between illegal entry (which they call “irregular migration”) and the smuggling of people.

2.1 Smuggling of migrants and the concepts of irregular migration and trafficking in persons 2.1.1 Irregular migration
.
The relationship between irregular migration and smuggling of migrants has been discussed in the literature, with most authors acknowledging the crucial role of smuggling of migrants in facilitating irregular migration. The legal definition of smuggling of migrants finds wide acceptance among the academiccommunity, which usually refers to articles 3 and 6 of the Smuggling of migrants Protocol.

Contrary to the concept of smuggling, the notion of irregular migration does not have a universally accepted definition; however, most academics and experts refer to the definition provided by IOM, which highlights that the most common forms of irregular migration are illegal entry, overstaying and unauthorized work. In looking at the relationship between the two concepts, Friedrich Heckmann stresses that smuggling of migrants plays a crucial role in facilitating irregular migration, as smugglers may provide a wide range of services, from physical transportation and illegal crossing of a border to the procurement of false documents

(39) By refusing to properly protect and enforce the Canada/U.S. border, is Canada not taking the risk of aiding and abetting in the possible human smuggling across international borders?

(40) Objective 10 of the UN Global Migration Compact (which this government signed) requires Canada to act in ways to prevent smuggling and trafficking ofpersons

OBJECTIVE 10: Prevent, combat and eradicate trafficking in persons in the context of international migration
.
To realize this commitment, we will draw from the following actions:
.
a) Promote, ratification, accession and implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (UNTOC)
.
b) Promote the implementation of the Global Plan of Action to Combat Trafficking in Persons and take into consideration relevant recommendations of the UNODC Toolkit to Combat Trafficking in Persons and other relevant UNODC documents when developing and implementing national and regional policies and measures relating to trafficking in persons

(41) Also, read article 11 of the UN Protocol to Prevent, Supress and Punish Trafficking In Persons, particularly woman and children, Supplementing the United Nations Convention Against Transnational Organized Crime. Canada ratified it in 2003, and is still a party to it.

(42) To state the obvious, how exactly does allowing fake refugees to come in BETWEEN official border ports?

(43) These are the 5 questions being asked in this reply

  • Should “due diligence” be required before making rulings?
  • To what degree should court officials be able to decide what cases are important?
  • What role should Prothonotaries have in striking out documents?
  • Should the government be allowed to submit conflicting, or incoherent pleadings?
  • Does Canada owe an obligation (beyond S3CA) to protect its borders?

(44) If the Court thinks it proper, I am willing to make necessary changes to fix whatever problems may exist in the original Statement of Claim. Here are a few ideas to consider:
(a) Rewriting, redrafting the Statement of Claim, with more precise detail as seen fit.
(b) Rewriting, redrafting the Statement of Claim, to make the legal arguments more clear
(c) Modifying remedies sought, and just focusing on the law itself, not the fake refugees
already here.

4. Authorities Cited

[1] Canada/US Safe Third Country Agreement
[2] UN Protocol to Prevent, Supress and Punish Trafficking In Persons, particularly woman and children, Supplementing the United Nations Convention Against Transnational Organized Crime
[3] Federal Courts Act
[4] UN Global Migration Compact
[5] Immigration and Refugee Protection Act
[6] UN Office Of Drugs and Crime (UN Site down)
https://www.unodc.org/documents/human-trafficking/Migrant
Smuggling/Smuggling_of_Migrants_A_Global_Review.pdf

5. Order Sought

The Plaintiff, Moving Party requests:
(a) The decision of Prothonotary Milczynski be overturned and
 The Claim be allowed to proceed, or
 Necessary amendments be allowed to be made
(b) Costs for the appeal (revoking the earlier waiver)

Prothonotary Strikes Out Challenge To S3CA Loophole

1. Quotes From Prothonotary’s Dismissal

2. Some Comments

There is more to the ruling, but here are the main points:

(a) No private standing to bring matter
(b) No public standing to bring matter
(c) It’s largely personal opinion
(d) Court has no power to do anything.

Apparently citizens have no right to demand that governments actually enforce border laws. What then is the point of having them?

Mass legal immigration, which is currently over 1M/year at this point, is in many ways a much worse problem then the illegal kind. However, everyone “should” be against illegal entry.

Canada Pension Plan (CPP) #3: Where Is The Money Going?

1. Important Links

CLICK HERE, for CPPIB Investing $2B In Mumbai, India.
CLICK HERE, for earlier piece on Canada Pension Plan.
CLICK HERE, for 2000 audit. $443B shortfall (Page 113)
CLICK HERE, for 2006 audit. $620B shortfall (Page 73). $67.9B added as of 2009.
CLICK HERE, for 2012 audit. $830B shortfall (Page 48)
CLICK HERE, for 2015 audit. $884B shortfall (Page 48)
CLICK HERE, for the 2019 CPPIB Annual Report.”

CLICK HERE, for getting your statement of earnings.
CLICK HERE, for CPP benefits for 2019 year.
CLICK HERE, for a generic investment calculator.

CLICK HERE, for a 2017 UN report on leveraging African pension funds for financing infrastructure development.
CLICK HERE, for 2019 report on development financing.
CLICK HERE, for closing infrastructure funding gap.

2. Obtain Your Statement Of Contributions

Any Service Canada should be able to help you apply for a copy of your statement of contributions. One tip is to do it after a tax assessment to get the most up to date information. You will need your social insurance number.

Also, you can request your statement by mail.
Contributor Client Services
Canada Pension Plan
Service Canada
PO Box 818 Station Main
Winnipeg MB R3C 2N4

Once you have received it, you will get a lot of new information you didn’t have before. Yes, I have mine from 2018, and am ordering a 2019 statement.

3. Information From Statement Of Contributions

A quote from the 2018 statement:

You and your employer each paid 4.95% of your earnings between the minimum of $3,500 and the maximum of $55,900 for 2018. These are called “pensionable earnings. Self employed individuals paid contributions of 9.9% on these amounts.
The maximum retirement pension at age 65 this year is $1,134.17 per month.

A few things to point out here:

You and your employer “both” paid 4.95% of your earnings between the minimum and maximum amounts. So if you made $25,000 then $21,500 of it would be taxable. Both you and your employer would have contributed $1,064.25 towards it. Combined is $2128.50.

Suppose you made over $55,900. Then $52,400 of it would have been taxable, and both you and the employer would have paid $2,593.80 into it. Combined is $5187.60.

Let address the elephant in the room. How much: (a) will CPP actually pay out for you; and (b) what would you make if you invested the CPP contributions yourself?

4. How Much Will CPP Pay Out For You?

Assuming retirement at age 65, and average life expectancy is 82. That gives 17 years, (204 months) of receiving pension contributions.

For the 2019 year, the maximum is listed as $1,154.58, and the average is $679.16. None of this covers Old Age Security (OAS) or Guaranteed Income Supplement (GIS). Those are separate and fall outside of CPP.

The average earner:
($679.16/month)X(17 year)X(12 month/year) = $138,540

The top earner:
($1,154.58/month)X(17 year)X(12 month/year) = $235,534

For simplicity, inflation is ignored, as is indexing of contributions.

5. Invest Your Own CPP Contributions

Yes, contributions and interest rates vary, but for simplicity, let’s keep them consistent.

For the top earner, let’s do this scenario:
(a) Worked for 40 years
(b) Contributed full amounts
(c) Invested at 8% annually.

Yes, the interest is absurd, but CPPIB claims that is what it is getting. In fact, CPPIB states that it gets 6.6-18% interest on its fun each year.

Over $1.3 million. That is what you would have after 40 years, making full contributions, assuming those contributions (both yours and the employer’s) were fully invested. A far cry from the $235,000 that you would make from 17 years of CPP payouts. Over a million more in fact.

Even just a 3% return — which is very doable — would net you $390,000 over those 4 years. Almost double what CPP would be paying out.

For an average earner, let’s try different numbers:
(a) Worked for 30 years
(b) Earned ~$30,000 annually contributed $2,970
(c) Invested at 6% annually.

$235,000 the person would have earned. This is about $100,000 more than simply taking the average payouts from Canada Pension Plan.

Why the different numbers? Perhaps the person took several years off for childcare. Perhaps there were years with low earnings. And 6% is a more realistic return, although good luck getting that from a bank. To repeat, CPPIB claims 6-18% returns (after costs) annually.

To be fair, people who go decades without working are unlikely to ever be able to save and invest the equivalent of what CPP is paying out.

For example, my own statement of contributions estimates if I were magically 65 today. With only a decade of work, I would be getting $317/month. Over the next 17 years that would pay out about $65,000, far more than I would have put in.

But long term and steadily employed workers get screwed.

6. Performance CPPIB Claims In Investments

This was addressed in the previous piece. In the CPPIB Annual Reports, the Board claims to have staggering growth year after year. Of the years listed, the interest ranges from 6% to 18%.

Year Value of Fund Inv Income Rate of Return
2010 $127.6B $22.1B 14.9%
2011 $148.2B $20.6B 11.9%
2012 $161.6B $9.9B 6.6%
2013 $183.3B $16.7B 10.1%
2014 $219.1B $30.1B 16.5%
2015 $264.6B $40.6B 18.3%
2016 $278.9B $9.1 6.8%
2017 $316.7B $33.5B 11.8%
2018 $356.B $36.7B 11.6%
2019 $392B $32B 8.9%

Also, as outlined in the last article, the accounting method used also changes how your pension plan comes across. You can select your data, and paint a rosy picture. Or you can take ALL assets and liabilities into account.

When the Canada Pension Plan was properly audited in 2016, it was found to have $884.2 billion in unfunded liabilities. The 2019 Annual report lists $392 billion as the value of the fund. However, with over a trillion dollars in liabilities, that illusion came crashing down.

$239 billion in growth over the last decade, an 11% annual increase. But in spite of that, CPP is not paying out retirees anywhere near what they have put in.

Why? Where is the money going?

7. CPP Unfunded Liabilities Swept Under Rug

Here are quotes from some of the actuarial reports. Interesting how they go out of their way to gloss over the truth about the CPP. In 2 of the reports, the total unfunded liabilities are reduced to a mere footnote.


Page 113 in 2000 audit. Actuarial liability 486,682M Actuarial value of assets 43,715 or 9%, Unfunded liability 442,967M or 91% of total. That’s right, ten times as many liabilities as assets.


Page 73 in 2006 audit report. $619.9B in unfunded liabilities. Updated in 2009 to reflect another $67.9B on the interest (just the interest) of those unfunded liabilities.


Footnote from 2012 audit. When the “closed-group approach” is used to audit the program, the assets are $175.1 billion, actuarial liability of the Plan is equal to $1,004.9 billion, and the assets shortfall is equal to $829.8 billion


Footnote from 2015 audit. Using “closed-group approach” to audit, the actuarial liability of the Plan is equal to $1,169.5 billion, the assets are $285.4 billion, and the assets shortfall is equal to $884.2 billion

Despite the glowing reviews our politicians give, the Canada Pension Plan is not doing well. In fact, it has close to a trillion dollars in unfunded liabilities. This is not sustainable in the slightest.

Younger workers will be paying into a system they have no realistic hope of ever collecting on. Not a good social safety net.

By now you are probably wondering these things:
The CPP, for most people, will never actually pay out anywhere near the amount that the person contributes over their lifetime. This is on top of the nearly 1 trillion shortfall that the plan has. So if the plan won’t pay out fully, and yet is so broke, where is the money going?

Who is running the show?

8. Open-Group v.s. Closed-Group Valuation

The difference is this:
Open-group valuation principles mean that a pension is solvent and in good shape as long as it’s current assets and payouts are able to keep up with the demands of retirees at the moment. It doesn’t require that the pension plan be fully funded. The reasoning is there is a “social contract”, and that the Government can raise more money (tax more) to cover the shortfalls.

Closed-group valuation principles require that “all” liabilities be taken into account. The is a far more accurate method, as payments from all workers are considered, if those who won’t retire for decades. The rationale is that private companies could go bankrupt at any time, and need to take the actual amounts into account.

9. CPPIB Board Members Well Connected

Heather Munroe-Blum

  • Principal and Vice Chancellor (President), McGill University
  • Current Director of the Royal Bank of Canada
  • Hydro One (Ontario)
  • Trilateral Commission

Ashleigh Everett

  • Former Director of The Bank of Nova Scotia
  • Premier’s Enterprise Team for the Province of Manitoba

William ‘Mark’ Evans

  • Former member of the Management Committee at Goldman Sachs
  • Co-founded TrustBridge Partners in China (2006)
  • Kindred Capital in Europe (2016)

Mary Phibbs

  • Standard Chartered Bank plc
  • ANZ Banking Group
  • National Australia Bank
  • Commonwealth Bank of Australia
  • Allied Irish Banks plc
  • Morgan Stanley Bank International Ltd
  • The Charity Bank Ltd

Tahira Hassan
Kathleen Taylor

  • Chair of the Board of the Royal Bank of Canada
  • Director of Air Canada since May 2016
  • Chair since April 2019 of Altas Partners

Karen Sheriff

  • United Airlines
  • Director of WestJet Airlines

Jo Mark Zurel

Not proof of any wrongdoing, but the board is certainly connected to other institutions.

10. CPPIB Holdings (Foreign & Domestic)

Here are CPPIB’s Canadian holdings.
Here are CPPIB’s foreign holdings.

$44M in from Power Corporation (Desmarais)
$17M in Hydro One Ltd (Heather Munroe-Blum is former board member)
$555M in RBC (Heather Munroe-Blum is board member)
$292M in Scotia Bank (Sylvia Chrominska is former chair)

In fairness, there are hundreds of companies CPPIB invests in. But always keeping an eye out for potential conflicts of interest.

But having all of these assets (both within Canada and abroad), doesn’t really explain the trillion dollar shortfall. There has to be something else that the CPPIB is wasting Canadian pensioners’ retirement savings on.

11. Pensions Sent For UN Development Projects?

Yes, this sounds absurd, but consider this report from the UN about using pensions to leverage development projects. True, this report refers to African pension funds. But it is entirely possible that Canada could get involved (or already be involved) in some similar scheme.

III. PENSION FUNDS DIRECT INVESTMENT IN INFRASTRUCTURE
International experience At 36.6 percent of GDP, assets of the pension funds in OECD countries are relatively large. As of end-2013, pension-fund assets were even in excess of 100 percent in countries such as the Netherlands, Iceland, Switzerland, Australia, and the United Kingdom (Figure 1). In absolute terms, pension funds in OECD countries held $10.4 trillion of assets.25 While large pension funds (LPFs) held about $3.9 trillion of assets, assets in public and private sector and public pension reserves (PPRFs) stood at $6.5 trillion.

Individual pension funds can be relatively large in some countries such as the Netherlands (ABP at $445.3 billion and PFZW at $189.0 billion) and the U.S. (CalPERS at $238.5 billion, CalSTRS at $166.3 billion, and the New York City Combined Retirement System at $150.9 billion). Similarly, PPRFs are relatively large in the U.S. (United States Social Security Trust Fund at $2.8 trillion) and Japan (Government Pension Investment Fund at $1.2 trillion). Among emerging markets, South Africa (Government Employees Pension Fund (GEPF) at $133.4 billion) and Brazil (Previ at $72 billion) have the largest funds in Africa and Latin America, respectively.

Pension funds can dedicate a share of their assets specifically to infrastructure. Such direct investment in infrastructure is implemented through equity investment in unlisted infrastructure projects (through direct investment in the project or through a private equity fund). Such investment can also take the form of debt investment in project and infrastructure bonds or asset-backed security. In contrast, pension funds can allocate a share of their funds indirectly to infrastructure through investment in market-traded equity and bonds. Listed equity investment can take the form of shares issued by corporations and infrastructure project funds while debt investment is often in the form of corporate market-traded bonds.

As is plain from the text, (Page 10), the UN views pensions as a potential investment vehicle for their agendas. And is clear from the pages in the reports, the UN has been sizing up pension funds from all over the world.

This is more than just an academic exercise

IV. OBSTACLES TO PENSION FUNDS INVESTMENT IN INFRASTRUCTURE
The extent to which pension funds can invest in infrastructure depends on the availability of assets in the pension system. Asset availability, in turn, is driven by a number of factors including the pension system’s environment, design, and performance. Even in a well-performing pension system with ample assets available for investments, the governance, regulation, and supervision of pension funds can restrict those funds’ ability to actually invest in infrastructure. If such constraints are lifted, then pension funds need to consider the risks of infrastructure projects and demand a fair, transparent, clear, and predictable policy framework to invest in infrastructure assets. Once this hurdle is overcome, pension funds will need adequate financial and capital market instruments to implement their investment decisions.

Simple enough (page 13). Lift the regulations, and the pension money will be free to flow to UN development projects. And after all, who knows better about spending other people’s money?

The endless foreign aid gestures that our government engages in: is that really our pension money being sent abroad?

We can see from Table 2 (Page 16) that the UN has been sizing up:

  1. Canada Pension Plan ($173B in assets)
  2. Ontario Municipal Employees ($62B in assets)
  3. Ontario Teachers’ Pension Plan ($128B in assets)
  4. Quebec Pension Plan ($39B in assets)

The recent OECD policy guidance for investment in clean energy, which is based on the PFI illustrates how policymakers can identify ways to mobilize private investment in infrastructure (OECD, 2015c). The policy guidance focuses on electricity generation from renewable energy sources and improved energy efficiency in the electricity sector, and provides a list of issues and questions on five areas of the PFI (investment policy, investment promotion and facilitation, competition policy, financial market policy, and public governance).

(Page 31) Clearly the UN is pushing its enviro agenda and suggesting that public pensions be used to finance at least part of it.

12. So Why Is CPP So Underfunded?

A number of factors most likely.

(A) Most pension plans are ponzi-style. In order to stay funded, it requires an ever growing number of contributors in order to pay off older contributors. Rather than having members who can sustain themselves, this is dependent on infinite growth.

(B) Although a person contributing to a pension in their career would “theoretically” be self-sufficient, it is clear the interest and gains are not what CPPIB pretends. If the fund was growing at 10%+ year over year, it would be different. We are not getting the full story.

(C) Public sector pensions are not sustainable either. So, very likely that some CPP money is being diverted to help cover the shortfalls.

(D) Due to political pressure, the powers that be find it more convenient to downplay the serious shortfalls rather than meaningfully address it. No political will to ask the hard questions.

(E) There has to be money going to outside projects, such as the UN plot to use pensions to fund their development agenda. The UN is a money pit, and the waste is probably enormous.

To repeat from the last post:
We are screwed.

Defense Motion To Stike: Safe 3rd Country Agreement Loophole

On Thursday, the Federal Government filed a motion to strike out (throw out) challenge to closing the loophole in the Canada/US Safe 3rd Country Agreement.

Here are the main points:

(1) I’m not a lawyer, so it is a waste of the court’s time to hear from someone who isn’t professionally trained.

That is irrelevant. Self-reps are allowed to do their own work, and the Court must give them fair consideration as per the Supreme Court ruling (Pintea v. Johns, 2017)

(2) I have no standing, either privately or publicly, to challenge this matter.

Sure, protecting the integrity of your borders and immigration systems are not at all a public or private interest.

(3) I have no genuine interest in the matter.

Obviously not, I just filed the case for fun (sarcasm).

(4) Challenge would be better off coming from someone directly effected by the S3CA loophole, such as an actual refugee claimant.

Even if this were true, it would be a huge conflict of interest. Why would a refugee claimant file a challenge to make rules harder for him/herself?

(5) Hearing this case is a waste of court resources

No, letting tens of thousands of illegals in at taxpayer expense is a waste of resources. This is just to stop it.

(6) Federal Court not the place to bring challenges to immigration law

Immigration is a Federal jurisdiction. The Federal Court has jurisdiction to hear applications for judicial review (when immigration and refugee claims are denied). They should also have the ability to decide what is proper procedure.

(7) This would involve making a ruling that would impact other “refugee claimants'” hearings and claims.

That is the point.

(8) Orginal document not worded clearly or specificly enough.

Thank you for the head’s up.

Of course, this is an overly simplified response. The real one will be coming soon enough.

A Case For Tort Reform: Free-Speech “Grifters” Want $5M

(Peterson interview after suing)

(Peterson announcing lawsuit to follow Shepherd)

(Pedantic Shepherd, YouTube is beside the point)

(Shepherd sues, then complains about being sued)

IMPORTANT LINKS


CLICK HERE, for a prior review on Jordan Peterson.
CLICK HERE, for a prior review on Bill C-16 (gender identity)
CLICK HERE, for Louder With Crowder interview.
(See 49:00 and 50:20 for Peterson comments on OHRC policies)
CLICK HERE, for Peterson & Cathy Newman (cringe)
CLICK HERE, and HERE, for Peterson’s cognitive dissonance deplatforming Faith Goldy at free speech event.
CLICK HERE, for Shepherd’s site: identitygrifting.ca.
CLICK HERE, for Peterson announcing $1.5M lawsuit and Wilfrid Laurier University and 3 employees.
CLICK HERE, for Peterson interview on lawsuit (2:55)
CLICK HERE, for National Post article on WLU 3rd party defence.
CLICK HERE, for the Ontario Human Rights Code.
CLICK HERE, for Ontario Court forms index.
CLICK HERE, for Ontario Rules of Civil Procedure.
CLICK HERE, for Ontario Libel and Slander Act.
CLICK HERE, for Hill v. Church of Scientology, 1995.
CLICK HERE, for Ontario Bill 52, protecting expression in matters of public interest.

SOME BACKGROUND


The details of the Wilfrid Laurier University scandal (Lindsay Shepherd, the 3 staff members, and Jordan Peterson), is old news at this point. The article just focuses on the lawsuits brought against WLU and its staff by Peterson and Shepherd.

It is the opinion here that although the facts alleged are basically true, the claims are fraudulent. They are combined seeking 5 million dollars (Shepherd $3.6, Peterson $1.5M). This is an abuse of the court system, and a way to unjustly enrich themselves.

Keep in mind, Peterson’s only claim to damages was that the tape defamed him (comparing him to Hitler, and other comments). His critics were vilified by the media. He suffered no actual damage, other than being named in a tape that Shepherd released.

Shepherd claims that not only was this 42 minute meeting difficult (surely it was), but that she was never treated the same way again. She cites a few examples, but nothing that would lead a reasonable person to think this would be worth millions in damages. Shepherd claims to be unemployable in academia, but her new love for media probably helped that.

Did WLU staff act like d*****bags? YES
Were inappropriate things said? YES
Was a tape of this leaked to the media? YES
Does any of this amount to millions in damages? NO

TOTAL HYPOCRISY


During the Louder With Crowder interview, Peterson (at 50:20) criticizes the Ontario Human Rights Code for automatically making employers vicariously liable for things employees say. However, he has no issue with USING vicarious liability in order to name the University in his lawsuit.

Peterson claimed that it was libel for Rambukkana to compare him to Hitler, yet Peterson compares trans activists to Communists, who have caused the deaths of millions of people.

Peterson has come to fame claiming to be a free speech champion, but has no issue deplatforming speakers he doesn’t agree with. Faith Goldy is a particularly bad example.

Shepherd and Peterson both claim to be free speech champions, but then sue over words they don’t like.

KARMA IS A B****


In 2018, Shepherd launched a $3.6 million lawsuit against Wilfrid Laurier University and 3 of its staff (Nathan Rambukkana, Herbert Pimlott, and Adria Joel). Although the infamous meeting was cited, there were other problems occurring later which were cited in the statement of defense.

Jordan Peterson filed a $1.5 million lawsuit of his own, claiming that Laurier hadn’t learned its lesson. Peterson claimed that the infamous tape had damaged his reputation.

Regarding Peterson’s claim, the WLU filed a 3rd party claim (Form 29A). It stated that if Peterson actually had suffered damages, he should be suing Lindsay Shepherd, as she made the tape secretly and released it.

Shepherd was outraged. After filing a lawsuit against her university, she is shocked that they would use her as a defence in a related lawsuit. She brought this on herself.

WLU should consider Rule 2.1.01

Rule 2.1 General Powers to Stay or Dismiss if Vexatious, etc.

Stay, Dismissal of frivolous, vexatious, abusive Proceeding
Order to Stay, Dismiss Proceeding
2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. O. Reg. 43/14, s. 1

Although litigation tends to drag on a long time, something like this should be used. The litigation (particularly Peterson’s) is an abuse of process.

From the Ontario Libel & Slander Act:

Definitions
1 (1) In this Act,
“broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,

(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or
(b) cables, wires, fibre-optic linkages or laser beams,
and “broadcast” has a corresponding meaning; (“radiodiffusion ou télédiffusion”, “radiodiffuser ou télédiffuser”)
“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year. (“journal”) R.S.O. 1990, c. L.12, s. 1 (1).

Wilfrid Laurier and its 3 staff members did not do this. Shepherd did. She released the recording to the media, with the intent of making it widely distributed. So Rambukkana and Pimlott have a valid point. If Peterson did suffer damages, it was caused by Lindsay Shepherd.

Yes, Rambukkana and Pimlott were unprofessional for making the comments in the first place. However, it is clear they never meant to be recorded.

There is also some ambiguity as to the Statute of Limitations, whether it would be 3 months, or 2 years. If it is 3 months, then it has already lapsed.

SOME CANADIAN CASES


Here is Hill v Church of Scientology of Toronto (1995), which dropped “actual malice” as a requirement.

Here is Grant v Torstar (2009), which created an exception for responsible journalism.

Here is Crookes v Newton (2011), which ruled that linking, or hyperlinking stories does not count as publishing.

However, all of this may be irrelevant, since it was Shepherd who SECRETLY recorded the meeting, and then chose to publish it WITHOUT THE KNOWLEDGE OR CONSENT of the other parties.

ONTARIO’S BILL 52 (2015)


Not sure if this would be relied on in the proceedings, but in 2015, the Ontario Government passed Bill 52 on this subject. Interesting is section 137.1

Dismissal of proceeding that limits debate
Purposes
Rejet d’une instance limitant les débats
Objets
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

FINAL THOUGHTS


The topic of tort reform is a popular one in recent years, particularly in the United States. Putting a cap on maximum damages, or making it harder to collect on bogus claims is a goal worth pursuing.

Any google or online search of “tort reform” will lead to an almost endless number of matches.

This is not at all to say that a person should “never” go to civil court. If an employer doesn’t pay your wages, or your property is damaged, or bills are not paid, then litigation can be a very valid path. Admittedly, “reasonable” is very subjective. However, most people can agree that one must suffer actual damages to go to court.

However, Shepherd and Peterson have both laid million dollar lawsuits because people said mean things to them. (Shepherd’s claim cites more detail). And hypocritically, both think nothing of mocking their detractors.

These 2 are not the free speech champions they pretend to be. Rather, they support free speech when it is convenient to do so. They are “free-speech grifters”.

Hard to feel sorry for her anymore.

Motion to Strike Challenge to UN Parliament


Check toolbar on right for globalism links (under counter). Also view the MASTERLIST.

All personal court appearances are under “BLOG
Fed Court cases are addressed on right under “Canadian Media”.


QUOTES FROM MOTION TO STRIKE

10. An endorsement to a proposed organization, like the UNPA, or even a decision to participate in the UNPA, is not a decision of a “federal board, commission or other tribunal” within the meaning of sections 2 and 18.1 of the Federal Courts Act. Accordingly, this application must fail.

14. There has been no decision of a federal board, commission or tribunal, therefore, this application is completely without merit. Regardless, Canada’s actions in signing or endorsing an international body do not give rise a decision that can be judicially reviewed.

15. This application bears some similarities to Turp v Canada (Justice).10 In that case, the Applicant filed an application for judicial review of Canada’s decision to withdraw from the Kyoto Protocol. The Federal Court held that in the absence of a Charter challenge, a decision pertaining to such matters is not justiciable.

16. The matter at bar is also distinguishable from Turp. The Government of Canada has taken no action to participate in the proposed UNPA, therefore, there is no decision to judicially review. In Turp there was a decision to withdraw from the Kyoto protocol.

17. Regardless, it is well-established that under the royal prerogative, the conduct of foreign affairs and international relations, including the decision to conclude or withdraw from a treaty, falls exclusively under the executive branch of government

18. In Turp c. Canada, the Federal Trial Court followed the Ontario Court of Appeal’s holding in Black v Canada that the exercise of the prerogative is justiciable only when the subject matter affects the rights or legitimate expectations of an individual.

19. Even if there was a “decision” in this matter, Canada is exercising its prerogative powers under foreign affairs when participating or endorsing any international body like the UNPA.

20. In the Applicant’s material, she enumerates seven grounds for her application:
a) First, that the proposed UNPA violates “Peace Order and Good Government” pursuant to section 91 of the Constitution Act, 1867;
b) Second, that the UNPA violates section 52 of the Constitution Act, 1982;
c) Third, that the UNPA violates sections 91 and 92 of the Constitution Act, 1867;
d) Fourth, that the UNPA requires a constitutional amendment, pursuant to section 38 of the Constitution Act, 1982
e) Fifth, that the UNPA violates section 3 of the Charter;
f) Sixth, that the UNPA violates section 2 of the Charter;
g) Seventh, that the UNPA violates section 35 of the Constitution Act, 1982

21. Although the Applicant has raised several constitutional issues, she has failed to articulate how endorsements of a proposed international body like the UNPA violates any of the ground listed. Likewise, she has failed to articulate how it affects her rights.

22. The UNPA does not affect the Applicant’s rights or legitimate expectations because it has no legal personhood, domestically or internationally, and therefore has no ability to affect the Applicant. The application is both premature and meritless.

23. In summary, there are obvious and fatal flaws with this application. Canada therefore requests that the application be dismissed on the basis that the application is so clearly improper as to be bereft of any possibility of success.

A number of problems cited:

  1. Application for Judicial Review is wrong format
  2. Endorsements are not sufficient
  3. Matter brought to court prematurely
  4. “Prerogative Power” allows such a “treaty”
  5. Court has no basis to interfere

Admittedly, a lot to take on. But a response is coming.

Different Approach On Fixing S3CA Loophole


Check toolbar on right for globalism links (under counter). Also view the MASTERLIST.

PETITION E-1906 (UN Global Migration Compact): CLICK HERE
PETITION E-2012 (UN Global Parliament) CLICK HERE

All personal court appearances are under “BLOG
Fed Court cases are addressed on right under “Canadian Media”.


IMPORTANT LINKS


CLICK HERE, for trying to use Notice of Application.
CLICK HERE, for trying to get a motion to extend time for A.J.R.
CLICK HERE, for background on the loophole.
CLICK HERE, for abuse of loophole in S3CA.

CLICK HERE, for the Canada/US Safe 3rd Country Agreement.
CLICK HERE, for the Immigration and Refugee Protection Act.

BACKGROUND INFO


The Federal Court has shot down multiple attempts to use application for judicial review (Section 18 of Federal Courts Act) to correct this problem. So, now the next approach taken: ask for straight-up enforcement of how the agreement was “intended” to be.

Specifically, it was never meant that anyone could bypass the S3CA simply by going around official checkpoints.

NEW ATTEMPT: CLAIM FOR ENFORCEMENT

Facts Alleged

  1. The Safe Third Country Agreement (S3CA) was signed between Canada and the United States on December 5, 2002, under then Prime Minister Jean Chretien.

  2. The Safe Third Country Agreement (S3CA) came into effect on December 29, 2004, under then Prime Minister Paul Martin.

  3. The intention behind this agreement is to recognize that both countries are “safe” countries, and that “asylum seekers”, shouldn’t be “shopping around” for a better country to arrive at.

  4. The Safe Third Country Agreement (S3CA) remains in effect legally, the only issue is of enforcing it properly.

  5. Recently, however, more than 40,000 economic migrants (fake refugees) have come into Canada from the United States. This poses security and financial burdens.

  6. Instead of deporting these illegal, economic migrants (fake refugees), the Federal Government has decided instead to take them in, at great expense to taxpayers.

  7. By far the most common location is Roxham Road, in Quebec, which shares a border with New York State.

  8. A loophole in the S3CA means this only covers “official ports of entry”, or official land border crossings. This means the law can be circumvented merely by going AROUND any official border crossings.

  9. While the wording in the official agreement may be poor, the intent was to avoid “asylum shopping”.

  10. No reasonable person could interpret the agreement to mean that the agreement could be
    bypassed by ignoring official checkpoints. That would reward lawbreakers.

  11. This is even more outrageous when considered that the US gets tens of thousands of asylum applications annually. Hardly a dangerous place.

Law On The Subject

(12) As specified on the Canadian Government’s own website, the point of the Safe Third Country Agreement (S3CA) is to prevent abuse. Here is a quote:

The Safe Third Country Agreement between Canada and the United States (U.S.) is part of the U.S.–Canada Smart Border Action Plan. Under the Agreement, refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement.

The Agreement helps both governments better manage access to the refugee system in each country for people crossing the Canada–U.S. land border. The two countries signed the Agreement on December 5, 2002, and it came into effect on December 29, 2004.

To date, the U.S. is the only country that is designated as a safe third country by Canada under the Immigration and Refugee Protection Act. The Agreement does not apply to U.S. citizens or habitual residents of the U.S. who are not citizens of any country (“stateless persons”).

(13) There is nothing vague or arguable about the intent of the agreement. People seeking asylum are required to apply for asylum in the first safe country they arrive at.

(14) Canada recognises the United States as a safe country. Period.

(15) It is further codified later on the Government website

Section 102 of the Immigration and Refugee Protection Act (IRPA) permits the designation of safe third countries for the purpose of sharing the responsibility for refugee claims. Only countries that respect human rights and offer a high degree
of protection to asylum seekers may be designated as safe third countries. To date, the United States is the only designated safe third country.

(16) And from reading Section 102 of the Immigration and Refugee Protection Act, we gain this information.

Regulations
102 (1) The regulations may govern matters relating to the application of sections
100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;
(b) making a list of those countries and amending it as necessary; and
(c) respecting the circumstances and criteria for the application of paragraph
101(1)(e).

Marginal note:Factors
(2) The following factors are to be considered in designating a country under
paragraph (1)(a):
(a) whether the country is a party to the Refugee Convention and to the
Convention Against Torture;
(b) its policies and practices with respect to claims under the Refugee Convention
and with respect to obligations under the Convention Against Torture;
(c) its human rights record; and
(d) whether it is party to an agreement with the Government of Canada for the
purpose of sharing responsibility with respect to claims for refugee protection.
Source: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-19.html#h-56

(17) The United States, being the only officially designated “safe country” certainly means that people are safe there.

(18) To reiterate, it is the complete flaunting of a legitimate international agreement that is the issue. The S3CA was NEVER meant to mean anyone can claim asylum in Canada if they merely bypass official checkpoints.

(19) Under 101(1)(e) of the Immigration and Refugee Protection Act, so called “asylum seekers” who enter Canada illegally via the US would be inadmissible anyways, even without the S3CA.

101(1)(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

(20) Again, clearly this would make these illegal economic migrants ineligible.

(21) And to beat a dead horse, these illegal, economic migrants (fake refugees) would be ineligible under 34(1)(1.b) of the Immigration and Refugee Protection Act. This is on the grounds that it would be subversion against an institution or process.
34(1)(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(22) Also, allowing these illegal economic migrants (fake refugees), into Canada from the United States arguably violates AMERICAN law. Consider Section 101(a)(42) of the Immigration and Naturalization Act.

(42) The term “refugee” means
(A) any person who is outside any country of such
person’s
 nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in
a particular social group,or political opinion, or
 (B) in such special circumstances as the President after appropriate
consultation (as defined in section 1157(e) of this title) may specify, any
person who is within the country of such person’s

Here is the source.

(23) Please note: the Canadian Federal Court is not being asked to rule on the validity of US refugee laws. This is added to acknowledge that the US does offer refugee status to approved asylum applicants. Again, this is not an attempt to amend or alter US law.

(24) Allowing this to happen is not saved by Perogative Powers. True, the Executive Branch of the Federal Government has the power to make treaties, and has legitimate purpose.

(25) However this is a treaty signed by a previous administration, that of Jean Chretien in December 2002. The treaty is valid, binding, and to this date, has never been rescinded. The current federal government must respect that.

(26) If the current administration has no interest in enforcing the S3CA as it was intended, then perhaps they should leave the agreement entirely.

Public Interest

(27) As should be obvious from the content of the Statement of Claim, this case is not about money, or getting rich from it. It is about enforcing the integrity of existing border security laws.

(28) The Federal Government has an obligation to the public to enforce agreements in good faith, and to not allow loopholes to undermine public policy.

Remedies Sought

(a) To declare the entire Canada/US border an “official port of entry” or an “official border crossing” to close the loophole in the S3CA.
(b) To deport automatically illegal economic migrants (fake refugees) attempting to cross in the future.
(c) To retroactively void/deny or invalidate any existing or previous claims (where these illegal crossings happen) on grounds that it takes advantage of the loophole

Loophole in Canada/US Safe 3rd Country Agreement: Notice of Application


Check toolbar on right for globalism links (under counter). Also view the MASTERLIST.

PETITION E-1906 (UN Global Migration Compact): CLICK HERE
PETITION E-2012 (UN Global Parliament) CLICK HERE

All personal court appearances are under “BLOG

Fed Court cases are addressed on right under “Canadian Media”.


CLICK HERE, for the final text of S3CA.
CLICK HERE, for article which explains what the loophole in the S3CA is.
CLICK HERE, for previous article, on closing the loophole.

Note: Service had been attempted a few weeks back via a “Notice of Motion” to extend time to file a challenge to the Canada/US Safe 3rd Country Agreement. However, the Department of Justice refused (yes refused) to accept it. So after some thought, this is how it will be done: Not seek to modify the agreement itself, but ask to get it enforced as it should have been. Different tactic, same end goal.

TO THE RESPONDENT:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Calgary Federal Court.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

APPLICATION

This is an application for judicial review in respect of Approximately 40,000 economic migrants (fake refugees), have crossed the border into Canada claiming asylum. They are taking advantage of a loophole in the Canada/US Safe 3rd Country Agreement, which only covers official ports of entry. However, no one could REASONABLY believe that this is how the agreement was intended when it was drafted.

The applicant makes application for:

(a) To issue a permanent, binding injunction against the Federal Government letting economic migrants (fake refugees) who enter Canada from the United States (via Roxham Rd. and elsewhere), make asylum claims in Canada.

(b) To find that the S3CA “meant” that refugees couldn’t land in one country and hop to the other, that they have to file for asylum in the first country they arrive in. The agreement means Canada and the US view each other as “safe countries”.

(c) To find that the agreement should apply across the ENTIRE Canada/US border, and that “Official Port of Entry” limitation is just poor wording.

(d) To find that not honouring the spirit and principles of the Canada/US Safe 3rd Country violates the intent of that Agreement.

Alternatively an order that:

(e) If the Government of Canada chooses not to participate in good faith in the Safe 3rd Country Agreement, that an act of parliament is required to withdraw from it.

(f) If the Government of Canada chooses to alter the terms of the Safe 3rd Country Agreement, that it must renegotiate with the United States.

The grounds for the application are:

  1. First: Does allowing illegal economic migrants entering from the US to claim asylum violate the spirit and principle of the Canada/US Safe Third Country Agreement, provided they circumvent official border checkpoints? This treaty was signed in 2002 by bth parties. Should it be honoured as it was reasonably intended to be?

  2. Second: Does allowing illegal economic migrants (fake refugees), into Canada end up violating US immigration regulations? These migrants would be travelling to the US on tourist visas, with the intention of coming to Canada to claim asylum. Bear in mind, the Court is not being asked to make a ruling that would impact US laws.

  3. Third: Does allowing large numbers of unscreened, unvetted, illegal economic migrants (fake refugees), into Canada under false pretenses violate Section 7 of the Charter, which guarantees security of the person?

  4. Fourth: Does allowing illegal economic migrants (fake refugees) to come across the Canada/US border violate Sections 91 and 92 of the Constitution, considering that most social services are Provincial jurisdiction?

5. Fifth: Does allowing illegal economic migrants (fake refugees) to come across the Canada/US border violate Sections 5/6 of the Canadian Human Rights Code, since they get priority of social services over citizens and legal residents?

6. Sixth: Does allowing illegal economic migrants (fake refugees) to come across the Canada/US border violate Immigration and Refugee Protection Act: Sections 3(2)(a) since they aren’t refugees, and 3(2)(e), since doing so would not maintain the integrity of the system, and 10.1(4) since the application would be based on misrepresentation?

This application will be supported by the following material:

    Copy of Canada/US Safe 3rd Country Agreement
    Information from both Canada/US Immigration websites
    Documentation showing mass illegal migration across border
    Other documentation as needed