University of Ottawa - L’Université d’Ottawa's first law dean was an unprincipled creep.
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| Rancourt's REPLY |
There are five constitutional questions being put to the Supreme Court:
i. Constitutionality of the common-law “Astley test”:
Is the common-law “Astley test” used in ordering permanent injunctions against unknown expression following findings of defamation constitutional and consistent with Canada’s obligations pursuant to the International Covenant on Civil and Political Rights, and was the applicant’s right of freedom of expression thereby violated by the permanent injunction?
ii. Rights infringed or denied by selecting trial evidence in barring defences:
Under what conditions, if any, can a judge disregard evidence on the trial record because one party did not “call” or “introduce” it, in deciding whether to put defences to the jury, and were the applicant’s Charter rights of a fair trial and of freedom of expression thereby infringed or denied by the lower courts themselves?
iii. Freedom of expression infringed or denied by costs of defamation trial:
Under what conditions are costs of trial ordered against a defendant in a defamation action unconstitutional and incompatible with Canada’s obligations pursuant to the International Covenant on Civil and Political Rights, and did the lower courts themselves violate the applicant’s right of freedom of expression with costs?
iv. Constitutionality of the Canadian common law of judicial bias:
Is the Canadian common law test for reasonable apprehension of bias (judicial bias) unconstitutional by virtue of being a violation of Article 14(1) of the International Covenant on Civil and Political Rights, and did the lower courts themselves thereby violate the applicant’s right to a fair trial?
v. French language Charter rights infringed or denied by the appellate court itself:
Did the appellate court itself violate the applicant’s equal-language Charter rights and privileges?
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| Denis Rancourt on filing his application |
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| Denis Rancourt at the Supreme Court entrance to the Registry, on September 28, 2015 |
SUMMARY -- The appellate court showed animus toward the applicant. ●The appellate court made a new repressive law that allows permanent gag orders against persons with limited financial means. ●The appellate court approved the trial judge’s decision to disregard all evidence in the applicant’s favour because it was introduced by the other side. ●The appellate court ignored the applicant’s constitutional ground against the large costs for trial. ●The appellate court decided that the trial judge’s financial and emotional ties with the other side did not give an appearance of bias, and failed to consider whether the trial judge’s in-court statements show bias. ●This occurred in an appeal where the applicant could not complete his submissions due to being interrupted many times because he chose to speak in French.
(i) Is the common-law “Astley test” used in ordering permanent injunctions against unknown expression following findings of defamation constitutional and consistent with Canada’s obligations pursuant to the International Covenant on Civil and Political Rights, and was the applicant’s right of freedom of expression thereby violated by the permanent injunction?
(ii) Under what conditions, if any, can a judge disregard evidence on the trial record because one party did not “call” or “introduce” it, in deciding whether to put defences to the jury, and were the applicant’s Charter rights of a fair trial and of freedom of expression thereby infringed or denied by the lower courts themselves?
(iii) Under what conditions are costs of trial ordered against a defendant in a defamation action unconstitutional and incompatible with Canada’s obligations pursuant to the International Covenant on Civil and Political Rights, and did the lower courts themselves violate the applicant’s right of freedom of expression with costs?
(iv) Is the Canadian common law test for reasonable apprehension of bias (judicial bias) unconstitutional by virtue of being a violation of Article 14(1) of the International Covenant on Civil and Political Rights, and did the lower courts themselves thereby violate the applicant’s right to a fair trial?
(v) Did the appellate court itself violate the applicant’s equal-language Charter rights and privileges?
Release: Supreme Court of Canada refuses to address judicial bias loophole
(OTTAWA, March 6, 2014) – The Supreme Court of Canada has refused today to close a loophole that allows judges to circumvent their duty to address complaints of bias made against them by litigants.
Three judges of the Court dismissed a leave to appeal regarding an egregious case of apparent bias. A judge of the Ontario Superior Court in Ottawa had a financial and emotional connection with a party in a lawsuit, and a family connection with the law firm representing that party. When the defendant in the lawsuit requested to bring a motion regarding the judge’s appearance of bias, the judge threatened him with contempt of court, then abruptly withdrew from the case. Previous decisions made by the judge still stand and have never been reviewed in light of the bias allegations.
The Ontario Civil Liberties Association (OCLA) intervened both by providing material witness evidence about the judge’s in-court conduct, and by seeking intervener status to address the national importance of the matter before the Supreme Court. Its motion for leave to intervene was denied, as was the applicant’s leave to appeal.
This opens a new era within the Canadian legal system, where judges can circumvent their duty to directly address bias accusations against them, making it possible for a complaint of bias to never be heard on its merits before a court of competent jurisdiction.
OCLA is taking the necessary steps to make a complaint to the UN Human Rights Committee for violation of the International Covenant on Civil and Political Rights, which guarantees an impartial court to every litigant in signatory countries.
About the Ontario Civil Liberties Association
OCLA is an organization formed to defend civil liberties at a time when fundamental freedoms are subjected to systemic erosion in all spheres of social life. OCLA opposes institutional policies and decisions that remove from the individual his or her personal liberty or exclude the individual from participation in the democratic functions of society.
Background: An Ontario superior court judge had strong personal, family, emotional, and contractual financial ties to a party intervening for the plaintiff in the case, and also to the law firm representing the party in court, and did not disclose any of these ties. This party was also the employer of the plaintiff in the lawsuit, and funded the plaintiff’s litigation. The judge was tasked with determining the propriety of the party’s funding of the plaintiff, which was done with public money. The judge’s ties made it inconceivable that he would rule against the party. When the defendant discovered the judge’s ties and presented the evidence, the judge lost decorum, threatened the defendant with contempt of court, and recused himself, but refused to consider whether there was an appearance of bias, and continued to release decisions. The judge’s in-court reaction and walkout further confirmed his ties with the party in the lawsuit. The defendant raised the matter with six more judges, up to the court of appeal, but all of them refused to duly consider and properly apply the facts. As a result, all the decisions of the judge in the impugned motion to end the action stand to this day, even the decisions he released after recusing himself. [From: the application for leave to appeal to the Supreme Court of Canada of Dr. Denis Rancourt]
"It is submitted that any organization that subscribes to Founding Principles that support hate speech and expression about child pornography, genocide and slavery utterly fails to 'represent the broad interests of citizens' in Canada." [at paragraph 19 of St. Lewis's response]
“I am very pleased to learn of the Ontario Civil Liberties Association, and wish it the greatest success in its work, which could not be more timely and urgent as elementary civil rights, including freedom of speech, are under attack in much of the world, not excluding the more free and democratic societies.”
An Ontario superior court judge had strong personal, family, emotional, and contractual financial ties to a party intervening for the plaintiff in [the] case, and also to the law firm representing the party in court, and did not disclose any of these ties. This party was also the employer of the plaintiff in the lawsuit, and funded the plaintiff’s litigation. The judge was tasked with determining the propriety of the party’s funding of the plaintiff, which was done with public money. The judge’s ties made it inconceivable that he would rule against the party. When the defendant discovered the judge’s ties and presented the evidence, the judge lost decorum, threatened the defendant with contempt of court, and recused himself, but refused to consider whether there was an appearance of bias, and continued to release decisions. The judge’s in-court reaction and walkout further confirmed his ties with the party in the lawsuit. The defendant raised the matter with six more judges, up to the court of appeal [for Ontario], but all of them refused to duly consider and properly apply the facts. As a result, all the decisions of the judge in the lawsuit stand to this day, even the decisions he released after recusing himself.
The Universal Declaration of Human Rights
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
International Covenant on Civil and Political Rights
Article 14(1)
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.
An Ontario superior court judge had strong personal, family, emotional, and contractual financial ties to a party intervening for the plaintiff in [the] case, and also to the law firm representing the party in court, and did not disclose any of these ties. This party was also the employer of the plaintiff in the lawsuit, and funded the plaintiff’s litigation. The judge was tasked with determining the propriety of the party’s funding of the plaintiff, which was done with public money. The judge’s ties made it inconceivable that he would rule against the party. When the defendant discovered the judge’s ties and presented the evidence, the judge lost decorum, threatened the defendant with contempt of court, and recused himself, but refused to consider whether there was an appearance of bias, and continued to release decisions. The judge’s in-court reaction and walkout further confirmed his ties with the party in the lawsuit. The defendant raised the matter with six more judges, up to the court of appeal [for Ontario], but all of them refused to duly consider and properly apply the facts. As a result, all the decisions of the judge in the lawsuit stand to this day, even the decisions he released after recusing himself.
Thus, in the facts of this case, the applicant’s right to an impartial court has been infringed or denied in the courts below, such that s. 24 of the Charter can be satisfied, in application and principle, solely if the [Supreme] Court grants the instant leave to appeal. Without the Court’s intervention and express directives, the infringement or denial of the applicant’s right to an impartial court will stand without ever having been properly heard on merits, and the right to judicial impartiality will continue to be denied in Canada’s lower courts, by the same means as in the present case, and in other ways.
"We are particularly concerned by the Registrar shielding his own decision from review by not placing a motion pursuant to Rule 78 before a judge of the Court, but rather returning the motion record to the unrepresented party. Even if the Registrar is correct in stating that Rule 78 “is not applicable,” it was inappropriate for him to get involved with a matter seeking to review his own decision, and it creates an apprehension of bias."
