Category: Civil

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Can Plaintiffs/Defendants Testify As Expert Witnesses In Their Own Cases?

This piece is going to be a bit different. It’s an effort to answer a question: can interested parties also serve as experts in the same case? It will look at an example, using Ontario as a model.

The instinctive answer would be no, this is a serious conflict of interest. But let’s look a bit deeper. Remember, this is just for information, and there’s no need for anyone to overreact.

1. Important Links

Ontario Rules Of Civil Procedure
Ontario Law Society: Rule 3.4 (Conflicts Of Interest)
Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39
Vaccine Choice Canada Lawsuit, October 2019
Vaccine Choice Canada Lawsuit, July 2020

2. Ontario Rules Of Civil Procedure

RULE 4.1 DUTY OF EXPERT
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DUTY OF EXPERT
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4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
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(a) to provide opinion evidence that is fair, objective and non-partisan;
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(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
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(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.
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Duty Prevails
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(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

According to Rule 4.1.01(1) and (2), the answer likely is no. A person who is a Plaintiff or Defendant is by nature an interested party. If the person has a vested interest (financial or otherwise), then overcoming that conflict of interest would be difficult.

3. What Expert Reports Will Include (Ontario)

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
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1. The expert’s name, address and area of expertise.
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2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
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3. The instructions provided to the expert in relation to the proceeding.
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4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
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5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
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6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
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7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.

Rule 53.03 of Ontario Rules of Civil Procedure outlines what is expected by expert witness to submit in their reports to the Court, in advance of trial. It’s a pretty good outline for the contents.

4. OLS Rules Of Professional Conduct

SECTION 3.4 CONFLICTS
Duty to Avoid Conflicts of Interest
3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.

Commentary
[1] As defined in rule 1.1-1, a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. Rule 3.4-1 protects the duties owed by lawyers to their clients and the lawyer-client relationship from impairment as a result of a conflicting duty or interest. A client’s interests may be seriously prejudiced unless the lawyer’s judgment and freedom of action on the client’s behalf are as free as possible from conflicts of interest.

[2] In addition to the duty of representation arising from a retainer, the law imposes other duties on the lawyer, particularly the duty of loyalty. The duty of confidentiality, the duty of candour and the duty of commitment to the client’s cause are aspects of the duty of loyalty. This rule protects all of these duties from impairment by a conflicting duty or interest.

[7] A bright line rule has been developed by the courts to protect the representation of and loyalty to current clients. c.f. Canadian National Railway Co. v. McKercher LLP, [2013] 2 S.C.R. 649. The bright line rule holds that a lawyer cannot act directly adverse to the immediate legal interests of a current client, without the clients’ consent. The bright line rule applies even if the work done for the two clients is completely unrelated. The scope of the bright line rule is limited. It provides that a lawyer cannot act directly adverse to the immediate legal interests of a current client. Accordingly, the main area of application of the bright line rule is in civil and criminal proceedings. Exceptionally, the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that the client’s law firm will not act against the client in unrelated matters.

Consent
3.4-2 A lawyer shall not represent a client in a matter when there is a conflict of interest unless there is consent, which must be fully informed and voluntary after disclosure, from all affected clients and the lawyer reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.

Having an expert witness as a Plaintiff or Defendant is a conflict. It gets even trickier when there are other clients involved in the same case. The duty of the expert is to the court first and foremost. The Ontario Law Society, (a.k.a. Law Society of Upper Canada), has strict rules against members engaging in conflicts of interest.

5. Supreme Court: Bright Red Line Rule

Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39

Cases Cited
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Referred to: R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631; MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Cholmondeley v. Clinton (1815), 19 Ves. Jun. 261, 34 E.R. 515; Bricheno v. Thorp (1821), Jacob 300, 37 E.R. 864; Taylor v. Blacklow (1836), 3 Bing. (N.C.) 235, 132 E.R. 401; Rakusen v. Ellis, [1912] 1 Ch. 831; Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177; Bolkiah v. KPMG, [1999] 2 A.C. 222; Moffat v. Wetstein (1996), 1996 CanLII 8009 (ON SC), 29 O.R. (3d) 371; Canadian Pacific Railway v. Aikins, MacAulay & Thorvaldson (1998), 1998 CanLII 5073 (MB CA), 23 C.P.C. (4th) 55; De Beers Canada Inc. v. Shore Gold Inc., 2006 SKQB 101, 278 Sask. R. 171; Toddglen Construction Ltd. v. Concord Adex Developments Corp. (2004), 34 C.L.R. (3d) 111.

(f) The Bright Line Rule
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[27] In Neil, this Court (per Binnie J.) stated that a lawyer may not represent a client in one matter while representing that client’s adversary in another matter, unless both clients provide their informed consent. Binnie J. articulated the rule thus:

The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. [Emphasis in original; para. 29]

[28] The rule expressly applies to both related and unrelated matters. It is possible to argue that a blanket prohibition against concurrent representation is not warranted with respect to unrelated matters, where the concrete duties owed by the lawyer to each client may not actually enter into conflict. However, the rule provides a number of advantages. It is clear. It recognizes that it is difficult — often impossible — for a lawyer or law firm to neatly compartmentalize the interests of different clients when those interests are fundamentally adverse. Finally, it reflects the fact that the lawyer-client relationship is a relationship based on trust. The reality is that “the client’s faith in the lawyer’s loyalty to the client’s interests will be severely tried whenever the lawyer must be loyal to another client whose interests are materially adverse”: Restatement of the Law, Third: The Law Governing Lawyers (2000), vol. 2, § 128(2), at p. 339

The “bright red line” has been explicitly stated to lawyers who represent clients with opposing interests. However, the idea of representing an expert witness is an interesting twist.

Though the language differs across jurisdictions, experts are considered “Friends of the Court”, neutral people who can provide unbiased information and opinion for a Judge and/or Jury.

True, experts are paid for their time by someone. That alone does not render them useless, as they do have a role to play. But what happens when the Expert has a vested interest in the outcome of the case?

While the Lawyer’s Clients (the Experts and non-Experts) could conceivably agree that this conflict of interest should be set aside, what about opposing Parties? Could it not result in an unfair Trial by stacking the deck against them?

Something seems off about this.

6. Such A Conflict In Ongoing Case?!?!

Pages 39-43 of the Statement of Claim spell out the qualifications and education of Denis Rancourt. And yes, it is quite impressive. However, no facts are pleaded to demonstrate that Rancourt has been harmed in any way by these restrictions, or that he has suffered any losses. He is clearly being introduced as an expert witness.

It’s not just that Rancourt is to be paid a fee for his time and trouble. That would be one thing. Here, he is a Plaintiff in an $11 million lawsuit — which he doubles as an Expert in. It stands to reason that he could make $1 to $2 million is the case is successful, which is a conflict of interest. Even if he is unbiased, this conflict will not be lost on the Court — or the other lawyers.

Is this normal? Are Experts typically interested Parties in the cases they participate in? Is there some exception or clause in the law that allows for this to happen? Is this a common practice that just isn’t discussed much? This appears to be the sort of thing that would jeopardize fair proceedings, but who knows?

Note: this is not an attempt to defend the nonsense that has gone on Federally, Provincially, Municipally and even in other countries. All of those people should be tried for crimes against humanity. The CV hoax is extensively outlined in this series. However, all problems need to be called out.

There are of course other issues, such as missing service addresses, and no defenses filed, but they have been addressed elsewhere.

The Statement of Claim was released publicly, but with most Plaintiff names redacted. Anyone who wants the unedited version can get a copy for free from the Ontario Superior Court (Civil Division) in Toronto.

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Challenge To Proposed UN Parliament: Calgary

(Topic Previously Covered by Canuck Law)

CLICK HERE, for a very interesting page on free speech in Canada (links included).

Here is a portion of what is going to the Federal Court of Canada:

REMEDY SOUGHT
(a) To issue a permanent, binding injunction against the Federal Government ever participating in such a United Nations Parliament or other ”World Government” scheme on the grounds it violates the laws cited above

(b) To find that any such actions in furtherance of this scheme are unconstitutional.

Alternatively an order that:
(c) To rule that any such measure would require the following forms of consent:
I/ Vote from the Federal House of Commons
II/ Vote from the Senate
III/ Signature of the Prime Minister
IV/ Royal Assent from the Governor General
V/ A nationwide referendum on this issue with 75% majority
VI/ 7 of 10 Provinces (with 50%+ population) affirming

Note, should that alternative be ordered, it is asked that the court also rule for (c), that any Province or Municipality that wishes to opt out may do so.

Written submissions For challenge to UN Parliament

Part I: Jurisdiction
Part II: Issues
Part III: Facts
Part IV: Law
Part V: Authorities
Part VI: Order Sought
Part I: Jurisdiction

Part I: Jurisdiction

  1. Under Section 18 of the Federal Courts Act, and Section 300/301 of Federal Court Rules, the Federal Court of Canada has jurisdiction to hear such an application.

  2. Federal Court also has jurisdiction to issue an injunction under Rule 18(1)(a) and 18(3) of Federal Courts Act ”
    18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal;

  3. Remedies to be obtained on application
    (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

  4. Rule 303(2) in Federal Court Rules states that in an application for judicial review (which an extension of time is sought here), where no person can be named, the Attorney General of Canada shall be named as a Respondent. Since there is no ”single person” who is responsible for this mess, the Attorney General of Canada shall be named as a Defendant

Part II: Issues

  1. Seven questions to consider

  2. First: Does the proposed UN Parliamentary Assembly (World Government), violate the 1867-1982 Constitution Act, which requires the Government of Canada to provide, “Peace, Order and Good Government” and makes no provision for abdication of that duty to supra-national bodies?

  3. Second: Does the proposed UN Parliamentary Assembly (World Government) violate the 1982 Constitution Act, which states that it is the supreme law of Canada, and that any laws that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

  4. Third: Considering that this would add a new layer of Government to Canada, would this violate Sections 91 and 92 of the Consitution, which separate Federal and Provincial Jurisdictions?

  5. Fourth: Does the proposed UN Parliamentary Assembly (World Government), require a constitutional amendment (Part V, Section 38 of the Constitution) that would require consent of:
    (a) The House of Commons
    (b) The Senate
    (c) 7 of 10 Provinces, consisting of 50%+ of the population

  6. Fifth: Does the proposed UN Parliamentary Assembly (World Government) violate Section 3 of the Canadian Charter of Rights and Freedoms, which ensure all Canadians the right to participate in their democracy?

  7. Sixth: Given some of the initiatives the UN proposes, such as internet regulation and free speech restrictions, would these violate Canadians’ fundamental freedoms, enshrined in Section 2 of the Canadian Charter of Rights and Freedoms, and explicitly affirmed in Section 32?

  8. Seventh: Would the proposed UN Parliamentary Assembly (World Government), violate Part II, Section 35 of the Constitution of Canada, which enshrines Aboriginal Rights?

Part III: Facts

  1. The United Nations (UN) is a globalist body which more and more is taking rights and sovereignty away from individual nation states

  2. Since 2007, there has been an initiative by high ranking politicians and former politicians of ”UN Countries” to form a United Nations Parliamentary Assembly (UNPA). Dozens of current Canadian MPs, including Liberal, NDP, PM Justin Trudeau, and Green Party Leader Elizabeth May have all endorsed such a World Gov’t (Exhibit B)

  3. As shown by screenshots (Exhibit A) from the website, the goal is explicitly to form LEGALLY BINDING decisions. This would in effect reduce nations to mere ”States” or ”Provinces” of the UN.

  4. Other initiatives by the UN include
    A/ Internet governance (digital cooperation)
    B/ Global ban on blasphemy (criticism of Islam)
    C/ Gender language agenda
    D/ Global MIgration Compact (258M economic migrants)
    E/ Paris Accord (carbon taxes)
    F/ UN Global Citizenship Education
    G/ Encouraging repatriation of Islamic terrorists
    H/ Right to abortion (even for children)
    I/ Agenda 21 (June 1992)
    J/ Agenda 2030 (September 2015)
    K/ Urban Development Agenda

  5. This is only a partial list. But if this proposed UN Parliamentary Assembly (World Government) were ever to take place, all of these ”non-legally binding” initiatives will become ”legally-binding”.

  6. Canadians have never been asked to vote on such a matter, either at the Municipal, Provincial or Federal level. The Government of Canada (nor any Gov’t) has no legal or moral mandate to enact such a proposal.

  7. Canadians have never participated in any sort of national referendum to guage interest and approval of such an idea.

  8. Canadians have never had the sort of public debate necessary to give an informed and intelligent response to such a proposed World Government.

Part IV: Relevant Laws

  1. The proposed United Nations Parliamentary Assembly (World Government) should be rejected because it violates a number of Constitutional provisions. Here are some of them:

(a) Section 2 of Charter: Fundamental Freedoms
(b) Section 3 of Charter: Right to participate in democracy
(c) Section 32 of Charter: Applicability
(d) Part II, Section 35 of Constitution, Aboriginal rights
(e) Part V, Section 38 of Constitution, amending Constitution
(f) Part VII, Section 52 of Constitution, primacy of Constitution
(g) Part VI: Section 91 & 92 of Constitution, distribution of powers

FUNDAMENTAL FREEDOMS (S2)

  1. (a) Fundamental Freedoms
    Marginal note:
    Fundamental freedoms
  2. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    (c) freedom of peaceful assembly; and
    (d) freedom of association.

DEMOCRATIC RIGHTS (S3)

  1. Democratic Rights
    Marginal note:
    Democratic rights of citizens
  2. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

APPLICATION OF THE CHARTER (S32)

  1. Application of Charter
    Marginal note:
    Application of Charter
  2. (1) This Charter applies
    (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
    (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

ABORIGINAL RIGHTS (S35)

  1. RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
    Marginal note:
    Recognition of existing aboriginal and treaty rights
  2. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
    Definition of “aboriginal peoples of Canada”
    (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
    Marginal note:
    Land claims agreements
    (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

PROCEDURE FOR AMENDING CONSTITUTION (S38)

  1. PROCEDURE FOR AMENDING CONSTITUTION OF CANADA (101)
    Marginal note:
    General procedure for amending Constitution of Canada
  2. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
    (a) resolutions of the Senate and House of Commons; and
    (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.
    Marginal note:
    Majority of members
    (2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
    Marginal note:
    Expression of dissent
    (3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

PRIMACY OF CONSTITUTION (S52)

  1. Primacy of Constitution of Canada
  2. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
    Marginal note:
    Constitution of Canada
    (2) The Constitution of Canada includes
    (a) the Canada Act 1982, including this Act;
    (b) the Acts and orders referred to in the schedule; and
    (c) any amendment to any Act or order referred to in paragraph (a) or (b).
    Marginal note:
    Amendments to Constitution of Canada
    (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

DISTRIBUTION OF POWERS (S91/S92)

  1. VI. DISTRIBUTION OF LEGISLATIVE POWERS
    Powers of the Parliament
    Marginal note:
    Legislative Authority of Parliament of Canada
  2. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
  3. Repealed. (44)
    1A.
    The Public Debt and Property. (45)
  4. The Regulation of Trade and Commerce.
    2A.
    Unemployment insurance. (46)
  5. The raising of Money by any Mode or System of Taxation.
    And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (47)
    Exclusive Powers of Provincial Legislatures
    Marginal note:
    Subjects of exclusive Provincial Legislation
  6. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
  7. Repealed. (48)
  8. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
  9. The borrowing of Money on the sole Credit of the Province.
  10. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
  11. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
  12. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
  13. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
  14. Municipal Institutions in the Province.
  15. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
  16. Local Works and Undertakings other than such as are of the following Classes:
    (a)
    Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
    (b)
    Lines of Steam Ships between the Province and any British or Foreign Country:
    (c)
    Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
  17. The Incorporation of Companies with Provincial Objects.
  18. The Solemnization of Marriage in the Province.
  19. Property and Civil Rights in the Province.
  20. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
  21. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
  22. Generally all Matters of a merely local or private Nature in the Province.

  23. Sections 91 and 92 have no provision for any supra-national body to interfere with this distribution of powers.

  24. Note that ”Parliamentary Perogative” does not apply here, since the proposed Gobal Government is not a treaty BETWEEN governments. Rather, it would dissolve nations in favour of a supra-national body,

Part V: Authorities

Reference re Senate Reform, [2014] 1 SCR 704, 2014 SCC 32 (CanLII) (S38)
CLICK HERE, for full text of decision.

Sibbeston v. Canada (Attorney-General), 1988 CanLII 5673 (NWT CA) (S52)
CLICK HERE, for full text of decision.

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC) (S2)
CLICK HERE, for the full text of decision.

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 (S3)
CLICK HERE, for decision, view para 27, 30, 31.

2 cases on Aboriginal duty to consult:
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII) (S35)
(1) CLICK HERE, for full text of decision.

(2) Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74 (CanLII) (S35)
CLICK HERE, for full text of decision.

Reference re Senate Reform, [2014] 1 SCR 704, 2014 SCC 32 (CanLII) (S38)
CLICK HERE, for full text of decision.

(a) The General Amending Procedure
[33] Section 38 of the Constitution Act, 1982 provides:
38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

(a) resolutions of the Senate and House of Commons; and

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).

(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

[34] The process set out in s. 38 is the general rule for amendments to the Constitution of Canada. It reflects the principle that substantial provincial consent must be obtained for constitutional change that engages provincial interests. Section 38 codifies what is colloquially referred to as the “7/50” procedure — amendments to the Constitution of Canada must be authorized by resolutions of the Senate, the House of Commons, and legislative assemblies of at least seven provinces whose population represents, in the aggregate, at least half of the current population of all the provinces. Additionally, it grants to the provinces the right to “opt out” of constitutional amendments that derogate from “the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province”.

  1. Sibbeston v. Canada (Attorney-General), 1988 CanLII 5673 (NWT CA) (S52)
    CLICK HERE, for full text of decision.

[6] The respondent’s amended petition cannot be pursued under principles of Canadian constitutional practice that must now be regarded as established. They include the political reality that it is the people of Canada, expressing their political will through the joint constitutional authority of the Parliament of Canada and the elected legislative assemblies of the provinces, who are sovereign in the delineation of federal-provincial power-sharing under the Constitution of Canada. Beyond that no segment of the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, is paramount to other segments, or indeed the balance, of the Constitution. The Constitution “as a whole” is Canada’s supreme law.

[7] Section 52 of the Constitution Act, 1982, provides:
52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
(2) The Constitution of Canada includes
(a) the Canada Act, 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

[8] Section 52 espouses the equality of its components including amendments. Charter scrutiny could not have been reserved by its drafters: Reference re an Act to Amend the Education Act (Ontario) (1987), 1987 CanLII 65 (SCC), 40 D.L.R. (4th) 18, [1987] 1 S.C.R. 1148, 77 N.R. 241.

[9] The Constitution Act, 1982, also provides:
Application of Charter
32(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

  1. Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC) (S2)
    CLICK HERE, for the full text of decision.

C.The Second Step: Was the Purpose or Effect of the Government Action to Restrict Freedom of Expression?

Having found that the plaintiff’s activity does fall within the scope of guaranteed free expression, it must next be determined whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity. The importance of focussing at this stage on the purpose and effect of the legislation is nowhere more clearly stated than in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at pp. 331-32 where Dickson J. (as he then was), speaking for the majority, observed:

In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation’s object and thus, its validity.

Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the legislature’s power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant’s need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation’s actual impact.

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 (S2)
CLICK HERE, for decision, view para 27.

27 An understanding of s. 3 that emphasizes the right of each citizen to play a meaningful role in the electoral process also is sensitive to the full range of reasons that individual participation in the electoral process is of such importance in a free and democratic society. As Dickson C.J. wrote in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

In this passage, Dickson C.J. was addressing s. 1 . Yet since reference to “a free and democratic society” is essential to an enriched understanding of s. 3 , this passage indicates that the best interpretation of s. 3 is one that advances the values and principles that embody a free and democratic state, including respect for a diversity of beliefs and opinions. Defining the purpose of s. 3 with reference to the right of each citizen to meaningful participation in the electoral process, best reflects the capacity of individual participation in the electoral process to enhance the quality of democracy in this country.

30 In the final analysis, I believe that the Court was correct in Haig, supra, to define s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process. Democracy, of course, is a form of government in which sovereign power resides in the people as a whole. In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives. The fundamental purpose of s. 3 , in my view, is to promote and protect the right of each citizen to play a meaningful role in the political life of the country. Absent such a right, ours would not be a true democracy.

31 For this reason, I cannot agree with LeBel J. that it is proper, at this stage of the analysis, to balance the right of each citizen to play a meaningful role in the electoral process against other democratic values, such as the aggregation of political preferences. Legislation that purports to encourage the aggregation of political preferences might advance certain collective interests, but it does not benefit all citizens, namely, those whose interests are not aggregated by the mainstream political parties. As a result, the proportionality analysis endorsed by LeBel J. clearly admits of the possibility that collective or group interests will be balanced against the right of each citizen to play a meaningful role in the electoral process at the infringement stage of the analysis. If the government is to interfere with the right of each citizen to play a meaningful role in the electoral process in order to advance other values, it must justify that infringement under s. 1 .

Also worth noting (need a residency to vote) persons who have recently arrived in a province or territory (Reference Re Yukon Election Residency Requirements (1986), 27 D.L.R. (4th) 146 (Y.T.C.A.); Storey v. Zazelenchuk (1984), 36 Sask.R. 103 (C.A.); Olson v. Ontario (1992), 12 C.R.R. (2d) 120 (Ont.Gen.Div.); Arnold v. Ontario (Attorney General) (1987), 43 D.L.R. 4th 94 (Ont.H.Ct.) — although 6 to 12 month minimum residency requirements were justified under section 1)

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII) (S35)
CLICK HERE, for full text of decision.

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74 (CanLII)
CLICK HERE, for full text of decision.

23 The Province argues that, before the determination of rights through litigation or conclusion of a treaty, it owes only a common law “duty of fair dealing” to Aboriginal peoples whose claims may be affected by government decisions. It argues that a duty to consult could arise after rights have been determined, through what it terms a “justificatory fiduciary duty”. Alternatively, it submits, a fiduciary duty may arise where the Crown has undertaken to act only in the best interests of an Aboriginal people. The Province submits that it owes the TRTFN no duty outside of these specific situations.

24 The Province’s submissions present an impoverished vision of the honour of the Crown and all that it implies. As discussed in the companion case of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).

25 As discussed in Haida, what the honour of the Crown requires varies with the circumstances. It may require the Crown to consult with and accommodate Aboriginal peoples prior to taking decisions: R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1119; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013; R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168. The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify infringement. That understanding of consultation would deny the significance of the historical roots of the honour of the Crown, and deprive it of its role in the reconciliation process. Although determining the required extent of consultation and accommodation before a final settlement is challenging, it is essential to the process mandated by s. 35(1). The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.

Part VI: Order Sought

  1. (a) To issue a permanent, binding injunction against the Federal Government ever participating in such a United Nations Parliament or other ”World Government” scheme on the grounds it violates the laws cited above

(b) To find that any such actions in furtherance of this scheme are unconstitutional.

Alternatively an order that:

(c) To rule that any such measure would require the following forms of consent:
I/ Vote from the Federal House of Commons
II/ Vote from the Senate
III/ Signature of the Prime Minister
IV/ Royal Assent from the Governor General
V/ A nationwide referendum on this issue with 75% majority
VI/ 7 of 10 Provinces (with 50%+ population) affirming

Note, should that alternative be ordered, it is asked that the court also rule for (c), that any Province or Municipality that wishes to opt out may do so.

Sincerely,

Me

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Representing Yourself in Court (Review)

(How to Win Your Own Case, by Devlin Farmer)

This is basically an instructional book written in 2015 for those wishing to represent themselves in court.

Unlike An Advocacy Primer, covered in September, the Farmer book contains much more basic information, and is much more simplified. It assumes that the readers have little to no knowledge about how the court proceedings work, and is a lot more reader friendly.

An interesting Supreme Court ruling, Pintea v. Johns, came out in 2017. It codified the obligations of Justices, Judges, Masters, and Deputy Judges to ensure that self-represented litigants are getting fair treatment in court. In fairness to the author, it was 2 years after the book was published.

A Brief Outline of The Book
Part 1: Alternatives to court
Part 2: Learning the law
Part 3: Filing
Part 4: Lawyers
Part 5: Discovery
Part 6: Motions and temporary orders
Part 7: Pre-trial prep
Part 8: Trial proceedings
Part 9: Witnesses
Part 10: Exhibits
Part 11: Closing arguments
Part 12: Intro to appeals

By no means does the book actually prepare someone for the court. However, by explaining what is happening and why, the self-rep is able to prepare him/herself and more thoroughly understand the process.

The book is written a very basic level, yet contains a wealth of information necessary for a potential self-represented litigant to face the court. It also avoid legalese and jargon. As such, it is very readable to anyone with adult reading skills.

This book stays away from specific forms and names, which in this case is a blessing. Better to understand the process more than to be bogged down with memorization.

The book is published by “Self-Counsel Press”, which releases many self-help and how-to books on a range of topics. Overall, they are very readable. They are not tedious or intimidating at all. This publisher releases some very good content.

If you are facing (or initiating) a court case, this book will do well to helping the average reader understand what is happening. At a minimum, if you do choose to get legal counsel at some point, reading this book beforehand will enable you to make better choices. Also, you are less likely to be gouged for fees.

Overall, this is a highly recommended read for anyone with any interest in court procedures.

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Kevin O’Leary Sues Elections Canada Over Fundraising Limits

(Kevin O’Leary, former candidate for CPC, to replace Stephen Harper)

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CBC published an article announcing that former Conservative Party leadership candidate, Kevin O’Leary, is suing Elections Canada over ruling relating to how he can pay back campaign debt. During the election campaign, O’Leary accumulated about $2,000,000 in debt. Approximately $400,000 is still outstanding.

Kevin-O-Leary

A quote from the article states that:

In his claim, O’Leary said that it is proving too difficult to raise the necessary funds in the three-year timeframe set by Elections Canada laws because people are understandably “uninterested” in contributing to a failed campaign that is long over.

He has a good point. No one would be interested in contributing to a political campaign that has long since ended. So it does posse serious challenges for him to do so.

Further, the article raises an interesting question:

“If you’re out of the race, and you’re not a politician any more and you owe money to a fellow citizen, where is it right that the law protects you from ever paying it back? That’s un-Canadian. That’s unconstitutional. That’s simply wrong,”

Again, this is valid. O’Leary’s brief political career is finished. He claims to never wish to run for office again, so what is the issue with him simply paying the debts and moving on with his life? O’Leary states that he has the funds available to do so, but is prohibited from doing so under the Canada Elections Act.

The claim filed is available here, and let’s go through some of the better arguments.

Regarding the applicable laws, the claim states:

1. A declaration that subsections 367(1)(d), (6) and (7), 478.756), and 500(1) of the Canada Elections Act, SC. 2000, c. 9 (the ?Act?) (collectively referred to herein as the impugned provisions) infringe on and deny the rights and freedoms guaranteed by sections 3 and 7 of the Canadian Charter of Rights and Freedoms (the Charter)

and are not saved by section 1 thereof;

2. A declaration that, insofar as the impugned provisions infringe on and deny the rights and freedoms guaranteed by sections 3 and/or 7 of the Charter and cannot be justified under section 1 of the Charter, those provisions are invalid and of no force and effect, to

the extent of the inconsistency;
3. In addition, or in the alternative:

a. A declaration that the impugned provisions violate the constitutional principle of the rule of law, which requires that laws be written and interpreted according to an intelligible legal standard that gives individuals fair notice of the conduct that will

attract imprisonment by the state;

b. A declaration that, insofar as the impugned provisions fail to meet the constitutional standard of legislative precision required by the rule of law, these provisions are invalid and of no force and effect or, in the alternative, must be read down so as to

satisfy this standard;

Okay, let’s dissect this word salad. O’Leary claims that portions of the Canada Elections Act, violate several provisions of the Canadian Charter. The “reasonable limitation is the Charter (section 1) would not apply and justify the C.E.A. Further, he implies that the C.E.A. is written in a too confusing standard to be followed.

Here is the Canada Elections Act.

Contribution limits
367 (1) Subject to subsection 373(4), no individual shall make contributions that exceed

(a) $1,500 in total in any calendar year to a particular registered party;
(b) $1,500 in total in any calendar year to the registered associations, nomination contestants and candidates of a particular registered party;
(c) $1,500 in total to a candidate for a particular election who is not the candidate of a registered party; and
(d) $1,500 in total in any calendar year to the leadership contestants in a particular leadership contest.

Contributions — candidates and leadership contestants
(6) Subject to subsection (7), no candidate in a particular election and no leadership contestant in a particular leadership contest shall make a contribution out of their own funds to their own campaign.
Marginal note:

Exception — certain contributions to own campaign
(7) The following contributions are permitted:
(a) contributions that do not exceed $5,000 in total by a candidate for a particular election out of their own funds to their own campaign; and
(b) contributions that do not exceed $25,000 in total by a leadership contestant in a particular leadership contest out of their own funds to their own campaign.

Okay, 367(1)(d) has to do with individuals making contributions being limited to $1,500 per year to any leadership contestant. Sections (6) and (7) have to do with overall individual limits. It is definitely reasonable that there should be contribution limits, in order to avoid having candidates “BOUGHT AND PAID FOR”. However, should that apply to former candidates who have since moved on.

3 potential counter arguments against O’Leary though:
(a) What if a person “hasn’t” moved on, and intends to use this relief for future campaigns?
(b) Would removing this cap be an end-run around spending limits?
(c) Would this restriction be necessary to ensure “smaller candidates” get a fair shot?

There is no 478.756 in the Canada Elections Act. It appears to be a type in the claim. However, this is the provision that I believe O’Leary was referring to. That is 478.75.

Payment within three years
478.75 (1) If a claim for a leadership campaign expense is evidenced by an invoice or other document that has been sent under section 478.74, or if a claim for repayment of a loan is made to the leadership contestant under section 373, the claim shall be paid within three years after the day on which the leadership contest ends.

Once more this seems to make a good point. The C.E.A requires repayment within 3 years. However, if former candidates must: (I) pay in 3 years or less; (II) are not actually able to raise more donations because they are not running; and (III) have strict limits as to how much of their personal wealth they can use, then there seem to be few, if any options.

Now, for section 500 of the C.E.A.:

Marginal note:
Punishment — strict liability offences
500 (1) Every person who is guilty of an offence under any of subsections 484(1), 486(1), 489(1), 491(1), 492(1), 495(1), 495.1(1), 495.2(1), 496(1), 497(1), 497.1(1), 497.2(1), 497.3(1), 497.4(1), 497.5(1) and 499(1) is liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a term of not more than three months, or to both.

I’m not going to quote the entirety of Section 500. The point is that O’Leary is correct, the C.E.A. does in fact threaten jail time as a punishment for failing to comply.

One the surface, Kevin O’Leary’s claim seems to be valid, given the strict rules the C.E.A. sets out. But let’s now check out the Canadian Charter of Rights and Freedoms which the lawsuit references as relief.

Democratic rights of citizens
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

O’Leary makes the argument that fairly large campaigns are necessary to be elected as part of a legislative assembly. Without debating the merits of “big money”, it is a fact. Campaigns and elections are expensive to run.

Section 7 has to do with punishments, which Section 500 of the C.E.A. establishes can be up to 90 days in prison for violating provisions of the act.

Section 1 is often invoked as a “reasonable justification” for restricting Charter rights. Obviously, in order to restrict, there must be some societal overall good. While Elections Canada will obviously argue differently, O’Leary is attempting to preempt the defence by stating there is none.

Thoughts And Conclusions
Obviously, this is only beginning. The claim has been filed, but no response or defence has yet been made.

On the surface, the claim makes valid points. O’Leary, like all Canadian citizens, is allowed to run for any legislative assembly or body he wishes to. Today’s reality is that campaigns are long, expensive, and a financial drain to run. However, candidates may find themselves hamstrung by campaign finance rules, which seem overly complex and tedious.

As stated earlier, I see a few possible defences for Elections Canada
(a) What if a person “hasn’t” moved on, and intends to use this relief for future campaigns?
(b) Would removing this cap be an end-run around spending limits?
(c) Would this restriction be necessary to ensure “smaller candidates” get a fair shot?

Politicians (and aspiring politicians) across the country will likely be tracking this case, as it will have real impact on future elections and party leadership races.

As a side note: CBC published the article a month after the case was filed. Not that it is relevant to the case, but did they not know about it until then?

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Supreme Court Will Hear Woman Arrested for Not Holding Handrail

(Bela Kosoian, taking legal action to S.C.C.)

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The Supreme Court of Canada has agreed to hear Bela Kosoian, a woman detained in Laval, Quebec, for refusing to hold a hand rail.

(1) Backstory of the Case
This is a a bizarre story, starting in 2009, of a woman in a Laval, QC, subway station, refused instructions from transit officers to hold a handrail while on an escalator.

When transit officers attempted to write her a ticket for the refusal to obey, she refused to identify herself. Identity is rather important in enforcing tickets. This led to her being detained for about a half hour, after which point she did reveal her name.

Kosoian was issued 2 tickets from that incident, one for $100, and one for $320. She contested both, and they were eventually thrown out.

Since then, she has taken legal action against the city, the STM, and a staff member. After a series of legal twists, it will now be heard by the Supreme Court of Canada.

(2) Quebec Court of Justice — Trial Court
Kosoian took legal action against: (a) the City of Laval; (b) Fabio Camacho — one of the officers; and (c) the Transportation Company of Montreal — aka the STM. She sought $24,000 for moral damages, pain, suffering, inconvenience and exemplary damages, and another $45,000 for moral and punitive damages for the fault committed by its agent.

Kosoian submitted a VERY LENGTHY list and description of physical and psychological trauma suffered as a resukt of being detained for about half an hour. On the surface, it seems like malingering.

Section 49 of the Canadian Charter was invoked, which states:

CHAPTER V
SPECIAL AND INTERPRETATIVE PROVISIONS

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

For it’s part, the STM Referenced By-Law R-036

” BY-LAW R-036

“REGULATIONS RESPECTING THE SAFETY AND BEHAVIOR STANDARDS OF PERSONS IN ROAD EQUIPMENT AND BUILDINGS OPERATED BY OR FOR THE MONTREAL TRANSPORTATION CORPORATION”

[…]

SECTION III – GENERAL PROVISIONS

3. Subject to the law and regulations, any person has the right to use the public transportation system of the Company in comfort and safety.

Subsection I – Citizenship

4. In or on a building or rolling stock, no person shall

(a) impede or hinder the free movement of persons, including standing still, lurking, strolling, laying down or carrying a bag, container or other object;

(b) endanger the safety of persons or rolling stock, in particular by depositing or carrying a bag, container or other object;

[…]

e) to disobey a directive or pictogram posted by the Society;

[…]

h) to delay or interfere with the work of a servant of the Corporation; “

But according to the STM staff, it is not the potential safety infraction that led to Bela Kosoian being arrested. Rather, it was her refusal to identity herself when being written a ticket.

In August 2015, a Quebec Court rejected the claim. It stated that the officers acted reasonably, and that the situation was largely self-inflicted

(3) Motion for Leave, Quebec Court of Appeal
Kosoian sought leave to go to the Quebec Court of Appeal.

On December 2015, in an extremely brief ruling, the Quebec Court of Appeal allowed the appeal to proceed, dismissing a motion from the Respondents.

(4) Appeal, Quebec Court of Appeal
In a 2-1 split decision, Kosoian lost her appeal at the Quebec Court of Appeals. 2 Justices ruled that the STM and its staff had acted reasonably. In dissent, the other Justice says he would have set aside the Trial ruling, and ordered $15,000 in damages.

[ 1 ] The appellant appeals against a judgment rendered on August 11, 2015, by the Court of Quebec, District of Laval (the Honorable Denis Le Reste), dismissing the appellant’s motion to institute damages for damages .
[ 2 ] For the reasons of Dutil and Vauclair JJ., THE COURT :
[ 3 ] REJECTS the appeal with court costs.
[ 4 ] For other reasons, Schrager JA would have allowed the appeal, set aside the judgment at trial, granted the motion to institute proceedings, ordered the respondents, jointly and severally, to pay the appellant the sum of 15,000 $ with interest and the additional indemnity since the summons at first instance, as well as legal costs at first instance and on appeal, and stated that between the respondents, the Montreal Transit Corporation will have to assume the entire conviction.

(5) Supreme Court of Canada
This leads things to where they are today. Once again, the Supreme Court granting leave to appeal just now.

The motion for an extension of time and the application for leave to appeal is granted. The application for leave to appeal to the judgment of theCourt of Appeal of Quebec (Montreal), Number 500-09-025644-154, 2017 QCCA 1919 (CanLII) , date December 5, 2017, is awarded with costs in the case. The schedule for serving and filing materials will be set by the Registrar .

An interesting split so far in the courts. In Kosoian’s favour:
-Supreme Court of Canada, leave to appeal
-Quebec Court of appeal, dissenting opinion
-Quebec Court of Appeal, motion for leave

And against Kosoian:
-Quebec Court of Appeal, majority opinion
-Quebec Trial Court
-Laval ruling which dismissed the original tickets.

Personally, I see blame on both sides here. While ticketing her for refusing to hold a handrail does seem excessive, the escalation of the problems resulted from Kosoian herself. She did refuse to identify herself when being ticketed, which for the STM was a legitimate demand. Also, her claims of emotional and psychological damages seem grossly exaggerated, and manipulated to seek a huge damages amount.

The Supreme Court Appeal Panel will now decide the case.

Posted on

CNN Sues White House Over Banned ”Journalist” Jim Acosta

(CNN announces legal action, after correspondent Jim Acosta banned)

CNN’s White House Correspondent, Jim Acosta had his press access to the White House revoked on November 8th. Now his network, CNN, is suing President Donald Trump and several aides.

However, Acosta is arguably not a journalist, but an activist. People are supposed to be there to cover the news and the White House, not to be antagonistic and grandstand. Here are some examples:

(Jim Acosta compilation)

(Acosta, on August 2, 2017)

(Acosta, July 1, 2018)

(Acosta, on October 29, 2018)

(November 6, 2018, which was Acosta’s last day)

The lawsuit claims that by revoking Acosta’s media access, his 1st and 5th Amendments (freedom of the press, and due process), were violated.

Here is the 1st Amendment:

Freedom of Religion, Speech, and the Press

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

Here is the 5th Amendment:

Protection of Rights to Life, Liberty, and Property

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

CNN released the full text of the lawsuit, shown here. But let’s go through some of the more interesting sections. (Quotes in bold, comments in italics)

2. But on November 7, 2018, Defendants revoked Acosta’s White House credentials because, in the President’s own words, Acosta failed to “treat the White House with respect” at a White House press briefing.

Except if you watch that November 6 video, he wasn’t being respectful. He was being antagonistic.

4. And the revocation of Acosta’s credentials is only the beginning; as the President explained, there “could be others also” who get their credentials revoked.

The slippery-slope argument except it is unwarranted here. There aren’t other journalists in the press core who act the way Acosta does. Blatant fearmongering.

5. The Framers of our Constitution embraced a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964). The President lacks the authority to quash “[t]he sort of robust political debate encouraged by the First Amendment”— debate that is “bound to produce speech that is critical of those who hold public office.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988). That is why the D.C. Circuit has been clear that “the protection afforded newsgathering under the first amendment guarantee of freedom of the press requires that . . . access [to White House press facilities] not be denied arbitrarily or for less than compelling reasons.” Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977). And “notice . . . of the factual bases for denial [of access to White House press facilities] with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is . . . [not] based onarbitrary or less than compelling reasons.” Id. at 131.

This conflates a number of things: First, the press is there to cover the White House, not to DEBATE. Second, the 1st Amendment is to enshrine public talks and even unpleasant sharp attacks, but it doesn’t say that public figures MUST engage with you. Third, given Acosta’s frequent behaviour, it would be easy to rebut ”arbitrary or less than compelling reasons quite easily. Fourth, the 1st Amendment doesn’t guarantee access to the White House.

Jim Acosta seems to want a blank cheque to confront and badger White House staff at will.

27. The President dislikes CNN’s and Acosta’s coverage of him and his administration, and has made that clear since before he took office. At a news conference on January 11, 2017, for example, then-President-elect Trump told Acosta, “your organization is terrible.” Acosta responded: “You’re attacking us. Can you give us a question?” The President replied: “Don’t be rude. No, I’m not going to give you a question . . . . You are fake news.”

While these claims are true, Acosta’s frequent behaviour does make it clear he is there to agitate, rather than report on the news. But since CNN raised the issue of the 1st Amendment, would this not be going against TRUMP’S right to free speech?

33. Speaking through a hand-held microphone, as did all the White House journalists who asked questions, Acosta asked a question about one of President Trump’s statements during the midterm campaign—namely, whether a caravan making its way to the United States from Central America constitutes “an invasion” of the country, a significant feature of the President’s messaging during the just-ended campaign. The President declined to respond, instead remarking: “You know what? I think you should . . . I think you should let me run the country. You run CNN. And if you did it well, your ratings would be much better.”

  1. When Acosta attempted to ask a follow-up question, President Trump refused to take it. A White House staffer then approached Acosta and attempted to grab the microphone. The staffer reached all the way across Acosta’s body, successfully latched onto the microphone, and physically attempted to remove it from Acosta’s right hand. Acosta held onto the microphone, stated “Pardon me, ma’am,” and continued to ask his question.

This is a distortion of the truth. Acosta attempted to ask several questions, and was argumentative the entire time. Footage available refutes these assertions.

39. Hours after the press conference concluded, Press Secretary Sanders issued an official statement announcing that “the White House is suspending the hard pass of [Acosta] until further notice.” The Press Secretary accused Acosta of “placing his hands” on the White House staffer who attempted to take the microphone from Acosta during the press conference. The Press Secretary added that the alleged conduct “is absolutely unacceptable” and stated “[w]e will not tolerate this inappropriate behavior.” The White House’s statement indicated that this alleged “incident” was the basis of its decision to revoke Acosta’s credentials.

Whether this was deliberate or not is up for debate in the video. However, it was clear that Acosta was making a nuisance of himself.

FIRST AMENDMENT ARGUMENT

57. Defendants have deprived Plaintiffs of their right to access the White House grounds by revoking Acosta’s White House credentials. Without those credentials, Acosta cannot access the White House and cannot effectively serve as a White House correspondent, thus depriving Plaintiff CNN of its chief White House correspondent.

CNN is not prohibited from covering White House press briefings, only Acosta is. Do they not have anyone else on staff who could do it?

59. Defendants’ justifications for impeding Plaintiffs’ First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs’ exercise of protected First Amendment activity.

Except Acosta wasn’t banned for his views. He was banned for regularly disturbing press conferences.

FIFTH AMENDMENT ARGUMENT

65. Acosta received no direct notice from the White House that his credentials had been revoked, let alone any notice prior to the revocation. Instead, the White House announced the revocation itself via Twitter after Defendants already decided to effectively ban Acosta from the White House grounds.

  1. Defendants did not provide Plaintiffs a written explanation, nor any explanation at all, before revoking Acosta’s press credentials. The only written explanation was a short statement posted on Twitter that Acosta was suspended because he “plac[ed] his hands” on a White House staffer. Even if this tweet were accurate—and it is not, as the reportedly doctored video Defendant Sanders posted would later show—it would not suffice to demonstrate prior notice of the revocation.

Okay, giving him notice would have been courteous, but is not grounds for suing. Nor is oral notification over written notification

Some Thoughts
While many media heads are supporting Acosta’s reinstatement, I believe this claim to be completely bogus.

(1) Acosta has been repeatedly rude and antagonistic to the White House staff. He is clearly being an activist, not a journalist. This is seen again and again on tape. No one else behaves this way, and it is surprising that his behaviour has been tolerated for so long.

(2) Acosta is not banned or restricted from exercising free speech at home or in public. He is just not allowed into White House briefings

(3) CNN is not banned from covering the White House. They just need a new correspondent.

(4) Not being given notice is rude, but not a constitutional violation.

The judgement is expected any day, and a followup will be provided.

Update to the Story
On Friday, November 16, a DC Judge ordered the press credentials to be temporarily returned to Jim Acosta while the matter is formally resolved. Personally, this was a surprise.

From CNN’s reporting on the story:

Trump said the same thing during a Q&A with reporters in the Oval Office.

“People have to behave,” he said, when asked about the administration’s defeat in court.
“If they,” meaning reporters like Acosta, “don’t listen to the rules and regulations, we’ll end up back in court and we’ll win. But more importantly, we’ll just leave,” meaning, stop taking questions from the press. “And then you won’t be very happy. Because we do get good ratings.”

While Acosta seems to be allowed back in, there is nothing to stop the White House from: (a) simply refusing to call on Acosta; (b) cancelling press conferences; or (c) throwing Acosta out for the day.

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