Why did Regional Senior Judge Charles T. Hackland resign on May 8, 2014?

Charles Hackland

[CORRECTION made on June 7, 2014::: In court, on June 6, 2014, Justice Michel Charbonneau stated on the record, in his decision to order a permanent injunction against the defendant in the St. Lewis v. Rancourt lawsuit, that Justice Hackland had sated to those in his entourage in May 2013 that he would be resigning in May 2014. Therefore, it was known by other judges since May 2013 that Justice Hackland would be resigning his position and returning to the bench in May 2014. Consequently, the chronology of events described below cannot be taken as evidence supporting a link between Rancourt's request that Justice Charbonneau recuse himself, and Justice Hackland's resignation.]


By Denis G. Rancourt

How often does a Regional Senior Judge resign, without any explanation?

The media did not report this unusual event. A Department of Justice memo has the terse statement "He resigned from that position effective May 8, 2014."

This is the man who handled some of the most high-profile cases of the last several years. Gone.

He was replaced by Justice James E. McNamara on May 12, 2014, as per the same memo.

I'm going to boldly propose that this resignation-and-replacement was not a mere random event, and that it is related to the on-going defamation case St. Lewis v. Rancourt; that the thematic and chronological relations are not simply coincidences.

On May 6, 2014, I brought a Recusal Motion that was heard and decided by Justice Michel Z. Charbonneau on May 7, 2014. HERE are all the court-filed documents for that motion.

The motion asked Justice Charbonneau to recuse himself from the trial of the St. Lewis v. Rancourt case because the case is all about the University of Ottawa, because the plaintiff's legal fees are paid by the University of Ottawa, because all of Justice Charbonneau's university degrees are from the University of Ottawa, because Justice Charbonneau is a regular and annual donor to the university, because Justice Charbonneau was a law firm partner with the case management judge in the case (Justice Robert Smith, who is barred from being the trial judge), and because there is thus a mutual financial interest between the university and the trial judge (which I explicitly argued orally).

I also argued in my motion that Justice McNamara had set a precedent by recusing himself in a litigation in which the University of Ottawa was a party, because he has a degree from the university (see Justice McNamara's endorsement decision here), and that Justice McNamara had asked Justice Hackland to assign a judge that had no ties to the University of Ottawa in that case. The latter was doubly specified via a separate endorsement signed by Master Calum MacLeod (see here).

And, I showed that I had asked Justice Hackland, back in 2012, to assign a case judge that has no ties to the University of Ottawa, that he answered he would not and that if I had "legitimate" bias concerns to bring them in a motion (see Hackland letters here).

Justice Charbonneau decided the recusal motion the same day that it was heard. He decided to not recuse himself, he was silent on my shared-interests argument, and he stated that if a judge were to recuse himself for the mere reason that he had a degree from the University of Ottawa, that the said judge would be avoiding his duties.

The next day, May 8, Justice Hackland resigned, and on May 12, 2014, he was replaced by Justice McNamara (Justice Department memo).

And, it turns out from the memo, that Justice Hackland practiced with the Gowlings law firm prior to his appointment to the bench in 2003. The law firm representing the plaintiff in St. Lewis v. Rancourt is the Gowlings firm.

Would it not have been simple for Justice Hackland to assign a trial judge that has no ties to the University of Ottawa?

Is it reasonable for me to have a "reasonable apprehension of bias" (legal term meaning a good reason to seek a judge's recusal)?

Cynthia McKinney thinks so: LINK.

Why I walked out of the trial in which I am being sued

Media photo -- Ottawa Citizen

By Denis Rancourt

On May 16, 2014, at 10:00 AM, in courtroom #36 of the Ottawa Courthouse of the Ontario Superior Court of Justice I walked out from the trial in which I am being sued, and in which I was representing myself without a lawyer. The trial is continuing in my absence, before a Jury of my peers.

This is my translation from the French of what I said to the Court, to Justice Michel Z. Charbonneau, to explain my reasons for leaving the trial process:

Your Honour, the law foresees that I must be free to advance the very serious charge of “reasonable apprehension of bias”.

It is very difficult for me to make this intervention. Give me five minutes because I must present the new evidence.

During my motion of May 7, 2014, asking that Your Honour recuse himself, Your Honour’s decision was silent on the central point that I had made that Your Honour’s decisions in this action could affect the reputation of the University of Ottawa and affect the monetary value of its scholarships, to which Your Honour donates money regularly and annually.

Then, on the first day of trial, Monday May 12 of this week, we did a motion in the afternoon, a so-called “Voir Dire”, with detailed facta [see all court-filed documents for this motion HERE]. Mr. Dearden [plaintiff's lawyer] brought the motion with a factum of 32 pages served on May 9 and accompanied by a book of authorities of 347 pages. His motion was to eliminate my defence called “Litigation by proxy contrary to the Charter”.

I answered with a factum of May 9 containing 14 pages and accompanied by a book of authorities of 342 pages. I argued in detail that, in fact, my defense was a defence of abuse of process having three branches, with one branch being the “Jameel” defence based on a 2005 decision of the England and Wales Court of Appeal: Dow Jones Inc. v. Jameel, and I pointed to paragraphs 68 to 71 of my “Statement of Defence” as pleading this Jameel defence.

The decision of this Court [of Your Honour] was pronounced on May 14 regarding the said motion or Voir Dire: The paragraphs 61 to 67 of the Statement of Defence were struck. Paragraphs 68 to 71 remained intact, as did my Jameel  defence.

Then, on May 15, yesterday, during my Opening Statement, the Court allowed Mr. Dearden to interrupt me when I was explaining my Jameel defence to the Jury. And Your Honour, off the cuff, struck and forbade my Jameel defence despite my protest, and despite the fact of not having done so when Your Honour should have done so if you had had that intension.

It has been more than three years that I have been fighting for procedural justice in this action — and my “Statement of Claim” is struck, cut into pieces, before my eyes during my Opening Statement, in contradiction with the considered decision of May 14 of Your Honour.

This would give nightmares to Kafka himself.

To my eyes, we are no longer in Canada — and we can no longer claim to have a system of justice in this action before you Your Honour.

I am outraged by this gag order imposed in a manner that is apparently arbitrary, which does not allow me to be heard and to “have my day in court”.

I have pleaded “abuse of process” at every step and now, at trial itself, I don’t even have the right to say that the University of Ottawa is entirely financing the plaintiff or the right to use the Jameel defense that applies to situations where the defendant advances a lack of actual damage to reputation, that’s “actual” damage, and to “reputation”, not some other kind of damage.

I was very disturbed by these incomprehensible events, and I have been deeply perturbed all day yesterday; confused also, as a self-represented litigant. This morning I inform the Court that I can no longer participate in such a process.

Therefore, I’m leaving this unjust process. You will take the decisions in my absence. It’s over for me: I’m leaving.

[Followed by an intervention by Mr. Richard Dearden (plaintiff's lawyer) addressed directly to me, my statement to the Court about appropriateness of the said intervention, and my departure from the courtroom.]

Background links:
Ontario Civil Liberties Association public campaign page
All (many) court documents in the case

On May 21, 2014, Cynthia McKinney launched a petition asking for a new trial with a judge that has no ties with the University of Ottawa: SEE PETITION AND NEWS HERE.

Un ex-professeur de l’Université d’Ottawa fait appel aux Nations unies -- Ici.Radio-Canada

Un ex-professeur de l’Université d’Ottawa fait appel aux Nations unies (LINK)

Supreme Court of Canada refuses to address judicial bias -- Complaint to UN Human Rights Committee to follow

In a judgement released today, three judges of the Supreme Court of Canada joined seven judges from two lower courts, in refusing to address an evidence-based complaint of apparent bias of a judge in the Ontario Superior Court of Justice.

As a result, the bias complaint was never heard on merits in a court of competent jurisdiction and the allegedly tainted rulings stand, even the rulings made by the judge after he recused himself for actual bias moving forward.

The Ontario Civil Liberties Association released THIS response:

Release: Supreme Court of Canada refuses to address judicial bias loophole

Posted on March 6, 2014 by admin

(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]

Supreme Court of Canada now has all documents in hand to fix Rancourt's unresolved judicial bias complaint

 

AN EARLIER POST describes Denis Rancourt's recent filing of an application for leave to appeal to the Supreme Court of Canada, to fix a complaint of judicial bias.

The application gave rise to responses from the respondent Joanne St. Lewis and from the responding party University of Ottawa. Rancourt filed his replies to these responses today (February 3, 2014). The file is now nominally complete for a determination by a panel of three supreme court judges.

The St. Lewis response is posted HERE, or PDF.
The University of Ottawa response is posted HERE, or PDF.
Rancourt's replies are posted HERE, or PDF.

Rancourt essentially argues that if the Supreme Court of Canada refuses to grant an appeal, then Canada will have violated its international obligations to provide an impartial court in civil matters, pursuant to two international agreements:

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. ...

Rancourt also argues that the Canadian Charter of Rights and Freedoms itself requires that the appeal on the basis of the judicial bias complaint must be heard, because, he argues, access to an impartial court is a Charter right of every individual by virtue of s. 15(1):

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.

Rancourt points out that the French text of the Charter (s. 15(1)) is unambiguous on the guarantee of access to an impartial court:

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.

Court documents in the overall action and its appeals are HERE.

Rancourt files application to Supreme Court to obtain his right to an impartial court

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.

--Summary, Memorandum of Argument, Application Book, page-34


Denis Rancourt has filed and served an application for leave to appeal to the Supreme Court of Canada, for leave to appeal from the dismissal of his appeal at the Court of Appeal for Ontario, appealing from the lower court dismissal of his champerty motion to end the defamation action funded by the University of Ottawa with public money.

The full application book (with arguments and evidence), dated January 6, 2014, is posted HERE, and alternatively HERE.

The whole matter is very disturbing. The judge recused himself for real bias moving forward, while refusing to make a judicial determination of an apparent bias that would have negated all his past decisions, then continued releasing findings from the bench and written decisions after the events said to have caused his real bias. And seven judges have refused to make a proper consideration on merits of the complaint.

Rancourt is arguing that the Supreme Court of Canada has a Charter obligation to grant leave to appeal:

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.

--Paragraph 41, Memorandum of Argument, Application Book, page-48


The Executive Director of the Ontario Civil Liberties Association (OCLA) has provided an affidavit in support of the application: See Application Book, starting at page-290.

OCLA also heads a campaign against the public funding of the defamation lawsuit, entitled: "Public Money is Not for Silencing Critics: University of Ottawa must end its financing of a private defamation lawsuit".

If an egregious and documented case of apparent bias of a judge cannot be properly heard on merits in any court, then there is something wrong in Canada. It would mean that we do not have the legal system that many imagine and hope that we have. 

Given the egregious and factual nature of this case, it would mean that circumventing complaints of judicial bias is a systemic problem in Canadian courts: If there is even only one Mack Truck in the living room then this necessarily implies that there is an entrance to the living room large enough to accommodate the truck's drive-in.

Court documents in the action and its appeals are HERE.

SCC denies former Ottawa U prof’s judicial bias appeal (media article)

SCC denies former Ottawa U prof’s judicial bias appeal (LINK)

by Heather Gardiner, Legal Feeds, July 4, 2013

Chronology and background documents are HERE.
SCC = Supreme Court of Canada.