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BEFORE THE COURT OF PUBLIC OPINION
Evaluation of the conduct of
Deputy Judge Marie Fortier,
Chief Justice of the Superior Court of Ontario
Heather Forster Smith
and
Chief Regional Justice of the Superior Court
James McNamara
Posted by Colin Alexander
Introduction
Without imputing motive, this web page invites consideration of what was done by Deputy Judge Marie Fortier, Chief Justice of the Superior Court of Ontario Heather Forster Smith and Chief Regional Justice of the Superior Court James McNamara. Put another way, this evaluation states the case that the facts and the law stand independently of motive. That’s so even as under other circumstances (such as prosecution for a hate crime) motive may be directly relevant.
Everything stated here is based on fact, and is believed to be true in its entirety. It comprises fair comment on the facts and publication is in the public interest. It may be apposite to quote Lord Chief Justice Russell in R v Grey:[1]
Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court.
In a more recent case of contempt of court, Lord Denning accepted this settled law, adding, “We must rely on our conduct itself to be its own vindication.”[2] But what if vindication is not justifiable? Lord Denning went on to say this:
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice.
Background
I was one of two unrepresented Ottawa homeowners in a four-block who contested a claim for some three thousand dollars. We were objecting to the bill for replacing our common water and sewer pipe to the City mains said to have been charged by fifty percent above the price quoted by contractors Bradley Kelly. Neighbour Michael Dagg took it upon himself to pay the bill in full without authorization. Then he wanted a prorated share of all he’d paid out. The next year he needed work for his personal benefit, and the same contractors discounted the price by an amount approximately equalling that overcharge!
Instead of going to Small Claims Court, with its filing fee of just $75, Dagg hired Keith A. MacLaren, lawyer at Perley Robertson & McDougall, to set arbitration in motion on the basis of an ostensible Agreement to Arbitrate signed by the previous property owners half a century earlier, in 1960. In order to secure his own evidently usurped appointment, arbitrator Neville repeated this assertion, which violated the applicable textbooks and case law. By extension, therefore, this Information states the case that it was criminally fraudulent to say that arbitration was obligatory.
Having been induced to believe the falsehood that we had no other option, we signed the contract for Neville’s services. He then demanded advance payment of $5,000 for his own fees. He said he would charge least ten grand to deliver a decision. In due course the make-work-and-gouging operation led to total costs of one hundred thousand dollars in legal fees.
In addition to the duty of honesty for salesmen set out in Ontario’s Consumer Protection Act, with its provisions for criminal prosecution of fraud, a Canadian template is Fletcher v. Manitoba Public Insurance Co.[3] That case was about the company failing to provide information necessary for the customer to make an informed decision as to what level of insurance to buy. The court ruled that reasonable reliance on information provided by someone selling goods or services can ground a duty of care in tort that binds the provider of the information. The Court said:
In many cases where a misrepresentation has been made to another person, particularly by a professional man acting in the course of his profession, the assumption of responsibility may be readily inferred.
Readers may find it helpful to consider what MacLaren and Neville did in the context of a civil case for fraud. In Small Claims Court, Deputy Judge Ivan Whitehall found fraud by a car dealer.[4] (Whitehall was also a protagonist, for case management, in the civil action against/Neville for fraud.) Without telling the buyer of prior damage, the dealer had sold a car as new that turned out to have needed serious repairs to make it look new: Whitehall said in his decision:
Silence and half-truths can amount to fraudulent misrepresentation. Mrs. Lefrançois was misled by the defendants’ failure to divulge the previous accident. The duty may be breached not only by positive misstatements but also by omissions, for they may be just as misleading.
The civil case in Small Claims Court against Neville for fraud died by attrition after it became evident that judges, even at the highest levels, would circle wagons around their fellow court officers. This web page evaluates their handling of the facts and the law.
What MacLaren and Neville wrote
Precontractual correspondence began with MacLaren’s initiating letter saying this:
According to the terms of the Co-Tenancy Agreement dated February 1st, 1960, which is registered on title and is therefore binding on the neighbours … The Co-Tenancy Agreement requires you to respond to this Notice Requiring Arbitration within ten (10) days. If you do not respond, our arbitrator may hear the arbitration and make an award under S. 50 of the Arbitration Act, which can be enforced as if it was a judgment of a court.
Although not relevant for the core issue, it’s simply not true to say that registration on title, of itself, means anything at all. Supporting the assertion that arbitration was obligatory, Neville wrote this:
Those who purchased the units of the Original Parties are assignees of the Original Parties and “stand in the shoes” of the Original Parties: they are bound, in other words, by the election [of the 1960 Agreement] that Clause 8 created.
The foundational assertion here, for the reasons set out below, is that these representations were false and that they meet the criteria for prosecution under Section 380 of the Criminal Code:
(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person … of any … money … is guilty of an indictable offence …
Fortier’s exoneration of Neville
The following analysis of points from Fortier’s decision states the reasons why the ostensible 1960 Agreement to Arbitrate was invalid in law and, by extension, that MacLaren and Neville were lying in order to induce the contract for Neville’s services. (On the ancient principle of fraus omnia corrumpit—fraud negates all that follows—everything else is extraneous.)
At Point 4 Fortier wrote:
The defendant (Neville) was the arbitrator in a dispute between the plaintiff (Alexander) and neighbours relating to the payment of an invoice …
Analysis
The textbook Arbitration Law of Canada, by J. Brian Casey, contradicts this statement:
It must be remembered that the arbitral tribunal takes its power solely from the agreement between the parties. If it is shown that there is no agreement by reason [that] the agreement has ceased to exist, then there is no consensual basis for the arbitration. For consensus ad idem the arbitration agreement must be signed by the present parties. A tribunal has no jurisdiction to do anything until it is duly and properly constituted.
As set out in more detail below, the ostensible 1960 agreement had ceased to exist when the original signatories sold their respective properties, and it was not binding on subsequent owners. Casey makes the following points:
1. The essence of arbitration is that it is consensual.
2. Ordinary contract law applies to determine whether or not there is an arbitration agreement. There must be an offer and an acceptance in circumstances in which the parties are ad idem (all on the same page).
3. [T]he arbitration agreement is a contract between the parties and is governed by the ordinary principles of contract law.
4. An arbitral tribunal has no jurisdiction to do anything unless it is fully and properly constituted.
Proceeding then from Casey’s Point 3, in the textbook used by the Supreme Court of Canada, The Law of Contract,[5] G.H. Treitel says this about the requirements for a valid contract:
The doctrine of privity means that a contract, as a general rule, cannot confer rights or impose obligations arising under it on any person except the parties to it. The rule that no one except a party to a contract can be made liable under it is generally regarded as just and sensible.
Here’s an example of this point in practice. Under contract law and the principle of privity of contract, your neighbour can’t bind his son to paint your house without his son agreeing to do the job on terms he personally agrees to. Non-lawyers are unlikely know the significance of this term although every first-year law student leans about it in Contract Law 101. Casey says several times, with variations in wording, that to be enforceable an arbitration agreement must be signed by the present parties.
The law of covenants and easements
Covenants (agreements) registered on the land title come in two flavours—affirmative (positive) and negative. A negative covenant could, for example, forbid the blocking of a view or disturbance of a power line, and it carries forward to the next owners. An affirmative covenant binds only these who signed it. It can require, of those signatories only, some kind of expenditure, like maintaining a fence or, as in this case, submitting to arbitration. Property Law 101 covers covenants and easements for every law student.
A recent case before Ontario’s Court of Appeal, Amberwood,[6] addressed this issue. The future Supreme Court Justice Louise Charron carried forward this long-established principle of Law:
In Parkinson,[7] Cartwright J [in the Supreme Court of Canada] quoted Gale on Easements, 12th ed. at p. 77:
The [1848] rule in Tulk v. Moxhay does not extend to affirmative covenants requiring the expenditure of money or the doing of some act. Such covenants do not run with the land either at law or in equity.
In Sport Maska,[8] the Supreme Court’s Justice L’Heureux Dubé J had earlier confirmed the law stated by Casey and Justice Charron:
Two stages are therefore required: first, the parties promise to resort to arbitration if a dispute arises, and second, when the dispute does arise, they conclude a submission in the proper form.
Put another way, Justice L’Heureux Dubé explained that you can’t have a valid second step without already having the first one lawfully in place.
As a final clincher on this point, the Arbitration Act of Ontario says in its introduction: “This Act applies to an arbitration conducted under an arbitration agreement.” It follows that nothing falls within the purview of the Act without a lawful arbitration agreement in the first place.
In Nadon, the Supreme Court confirmed the principle, so obvious it should not have to be said, that the absence of prerequisite credentials negates, from the outset, the appointment of a judge, or anyone else come to that.[9]
The conclusion on this point is clear that there never was a valid Agreement to Arbitrate and that MacLaren and Neville bamboozled unrepresented homeowners into believing the falsehood that arbitration was obligatory. Whatever the motive, the classic reasonable outsider may then conclude that Fortier did in fact use the power of the court to shield her fellow court officer from the consequences of fraud.
At Point 14 Fortier wrote:
An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in connection rule on objections to the existence or validity of the arbitration agreement.
Analysis
It should not even be necessary to say that a usurped arbitral tribunal (lacking the prerequisites) lacks jurisdiction to rule on its own jurisdiction, or on anything else. Consider this analogous situation. Do pregnancy and even subsequent marriage negate a preceding crime of assault and rape?
Now see what happened in a criminal case before the Supreme Court, R. v Rosario Lemire.[10] The defendant wanted a raise when there was a pay freeze for Quebec’s civil servants. So Attorney General (and also Premier) Maurice Duplessis, together with Lemire’s immediate boss, told him to submit fictitious expense claims until the payments could be approved retrospectively. Later, the provincial auditor set in motion Lemire’s criminal prosecution for defrauding the provincial treasury. His defence was that he was doing what he was authorized to do. The Supreme Court’s Justice Martland ridiculed the idea that retrospective ratification can exonerate a prior fraud:
[Lemire asserts] in other words, there is no intent to defraud within the requirement of s. 323(1) [of the Criminal Code] if the accused person, while deliberately committing an act which is clearly fraudulent, expects that that which he is doing may, at a later date, be validated. To me the very statement of this proposition establishes its error in law.
At Point 20 Fortier wrote:
Alexander could have sought an order under s. 48 of the Arbitration Act, seeking a declaration that the arbitration was invalid. …
The analysis of Point 4 negates this assertion. Fraud, by definition, requires consummation of the transaction induced by deceit. It follows as solid case law and in every textbook on contract law, such as G.H. Treitel’s The Law of Contract, that the right of recourse starts only upon discovery of the fraud. It would be ridiculous to expect the unsuspecting buyer of a ring ostensibly made of gold to act before finding out that it was actually look-alike pinchbeck.
At Point 34, Fortier wrote:
Alexander argues that Neville was wrong in his interpretation of the validity of the Putnam [sic passim] Agreement, thereby misrepresenting to him that arbitration was obligatory under the circumstances. This would appear to be an argument relating to Neville’s right to rule on his own jurisdiction. These matters are dealt with in Section 17 of the Arbitration Act which clearly states that an arbitral tribunal may rule on its own jurisdiction. Section 17 (1) states as follows:
17 (1) Arbitral tribunal nay rule on its own jurisdiction
An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in connection rule on objections to the existence or validity of the arbitration agreement.
Analysis
This is the same issue as Fortier’s Point 14 discussed above. Put another way, again, an arbitral tribunal can’t fall within the purview of the Arbitration Act unless it meets the Act’s inherent criteria. .
At Point 35 Fortier moves on to this non sequitur:
I am of the opinion that had Alexander objected to Neville’s jurisdiction, he should have sought relief pursuant to subsection 17 (3) and 17 (8) of the Arbitration Act and I agree with Neville’s reasoning found in Paragraph 19 above.
Yet again, nothing in this case came within the purview of the Arbitration Act.
At Point 27, Fortier wrote:
Is the scope of immunity granted to arbitrators broad enough to cover Neville’s decisions regarding jurisdiction and the interpretation of the Putnam Agreement prior to the signing of the Arbitration Agreement?
Analysis
Having failed to address the foundational issue on which all others depend, namely the validity of the 1960 Agreement to Arbitrate, Fortier’s statement of this proposition may be said, of itself, to imply her recognition of Neville’s guilt for the crime of fraud. The fact is that Fortier introduced this and other unsustainable make-weights in defence of her fellow court officer’s criminality.
At Point 29 Fortier wrote:
The law appears to be well established that arbitrators are not liable in tort or in contract except in situations involving fraud or bad faith. In relying on the Supreme Court decision in Sport Maska Inc. Wilson J in Flock held at para 17: “I am persuaded by LeBel J.A.’s legal analysis and in particular agree with him that “arbitral immunity” may be properly expressed as meaning - “In the absence of fraud or bad faith, an arbitrator enjoys immunity from civil liability.”
Analysis
The assertion here is that Neville’s representations were false and constituted such bad faith as to be criminally fraudulent. Fortier ignored, again, the textbooks and case law indicating that Neville secured his usurped appointment by deceit (fraud and bad faith). Instead, she simply jumped over that prerequisite to the non sequitur of importing judicial immunity to exculpate her fellow court officer’s fraud.
Again, the fact is that Fortier introduced this unsustainable make-weight in defence of her fellow court officer’s criminality. Fortier ignored the representation made to her in court that it would be absurd to call sales (the precontractual exchanges soliciting the business, prior to getting it) a judicial function.
In Sirros[11] Lord Denning defined judicial function as follows: while he is "acting as a judge," or "doing a judicial act" or "acting judicially" or "in the execution of his office".
In Sport Maska, which Fortier had set before her, the Supreme Court’s Justice L’Heureux Dubé J said:
If respondents were not acting as arbitrators, they cannot enjoy any immunity and a decision as to the nature of the action brought by appellant would at this stage become moot.
Carrying forward Lord Denning’s observations on what constitutes a judicial function, in Sport Maska Justice L’Heureux Dubé uses the expression acting as arbitrators to arrive at the same place.
This may be another significant point from what Lord Denning said in Sirros:
Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts.
The Supreme Court on judicial misconduct
I proceed now from the presumptively established proposition that MacLaren’s and Neville’s representations do in fact meet the criteria for fraud under Section 380 of the Criminal Code. So what if the judges exculpated their fellow court officers? Motivation is irrelevant. It happened.
Responding in her regulatory capacity to a complaint about Fortier’s conduct, Forster Smith carried forward the foundational falsehood in Fortier’s decision. She wrote: “William L, Neville who was an arbitrator regarding a dispute … “ In writing that, she claimed the endorsement of McNamara.
I proceed now to the common law principle formerly applicable to all citizens but still applicable to all public servants. The old common law offence of misprision of a felony still requires all public servants to take appropriate action upon observing a crime. Though rarely invoked, a relatively recent case in England led to the conviction of police office Dytham for standing by when he could see a citizen beaten to death. This is what Lord Chief Justice Widgery said when delivering judgment:[12]
The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.
Dytham’s motive was not at issue. The issue at hand is also whether the judges’ conduct, of itself, withstands scrutiny.
Assuming then the actuality of the criminal fraud, this section of the Criminal Code may be applicable as it relates specifically to a holder of a judicial office:
119 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who
(a) being the holder of a judicial office … directly or indirectly, corruptly accepts, obtains … for … another person, any money, valuable consideration … respect of anything done or omitted or to be done or omitted by them in their official capacity …
Without intending to impute motive, an informed and reasonable outsider may nonetheless be excused for wondering whether there was an element of trade union solidarity in the judges’ vindication of Neville. Also potentially applicable is Section 23 (1) of the Criminal Code:
An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
A further charge, of obstruction of justice, is potentially applicable under Section 139 of the Criminal Code.
(2) Every person who intentionally attempts in any manner … to obstruct, pervert or defeat the course of justice is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years.
The Supreme Court’s ruling In R. v. Boulanger[13] may be said to apply to all the judges and regulators who exonerated MacLaren and Neville. In that case, the charge of breach of trust by a public officer was laid under Section 122 of the Criminal Code:
Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.
Chief Justice Beverley McLachlin said:
I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements:
1. The accused is an official;
2. The accused was acting in connection with the duties of his or her office;
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accuser’s position of public trust; and
5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.
6. corrupt, or oppressive purpose.
Points 1 to 4 hardly need discussion. Point 5 invites consideration of its two points separately:
1. Assuming the foundational fraud, did Fortier deliver a dishonest, partial, corrupt and oppressive act by endorsing its continuation by his officer of the courts?
2. Assuming an affirmative answer to the previous point, did the judges act with Intent?
The law of accomplice to crime may be helpful, so that potentially applicable is Section 23 (1) of the Criminal Code:
An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
On the issue of accountability as an accessory, the case in the Supreme Court of R. v. Briscoe[14] seems relevant. The issue was whether a young man present during the brutal rape and murder of a thirteen-year-old girl was an accessory to the crime. Finding that he was, Justice Charron said:
Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “willful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of willful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, willful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”.
The Bembridge case
In Boulanger, the Chief Justice carried forward from Bembridge Lord Mansfield’s landmark consolidation of the principles of accountability and command responsibility for a public officer. Given its significance, here follow in full the available comments on that case, with directly reported quotations from the Decision:[15]
Lord Mansfield said ‘Here there are two principles applicable: first, that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomsoever and in whatsoever way the officer is appointed . . secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country’.
In 1783 Charles Bembridge, an accountant, was accused of concealing the embezzlement of £48,000 by the former paymaster of the army, Henry Fox afterwards Lord Holland. Bembridge well knew that divers sums of money were misplaced, but his defence was that it was not in his place to turn a spy against his former boss and friend.
Lord Mansfield clarified the boundaries of public office so as to exclude the defence of collegiality: “If a man accepts an office of trust and confidence concerning the public, he is answerable to the king for the execution of that office. He continued with this:
“I take the principle to be this, which appears to be recognized in cases without number, that is, that wherever a man’s business has a public aspect, and an improper conduct in it injures not A, B, or C but the community in general that that in itself is indictable by the common law; I take that to be a principle laid down over and over. … Where an officer neglects a duty incumbent on him, either by common law or statute, he is, for his default, indictable. … If we were to look in any commonplace book, under the head of non-feazance in any public officer, we should find there a common set of principles; that where a man misbehaves, does that which he ought not to do, or omits that which he ought to do in any public station, the proper remedy is by indictment or information.
“In
2 Lutwyche 1523, Wilkes versus Kirby, it is said that, even if a man has a port
belonging to him, and if he didn’t not repair it, that he may be indicted for
not doing it, because it concerns the public ...
“Some of the most important offices in the kingdom—some that are now, that
always were, and are like to continue places during pleasure, during the
pleasure of the crown, at least; if anyone ever hear that a judge was not
impeachable or punishable for misbehaviour, before the statute of King William
gave him tenure in his office? Or that it altered, in any degree, his
responsibility to the public for that which was improper conduct? Can anyone
contend that there is any difference in that situation now and what it was
then; or in the situation in the office I unworthily hold, that if I misbehave
in my office, because I am removable at pleasure, that I am not responsible?
“Is the great criminal jurisdiction of this country, that resides and exists in this court, to sit still and see such a fraud committed? The gentlemen seem to me to have totally forgotten all that relates to fraud; a private mischief is done, a private loss is sustained, but the fraud is the crime …
“As to the motion that this is in arrest of judgment, the objection is that this is a civil injury, and not indictable and there is no precedent. The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases. Here there are two principles applicable: first, that a man accepting of an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and by whatever way the officer is appointed …
“He was arraigned for not acting honestly for that which was in his power to do. He was to take all necessary pains to inform himself and, being informed, as an honest man, he was bound to debit that paymaster with every just charge, and give him credit for every just allowance …”
The court sentenced Bembridge to six months’ imprisonment and a fine of £2,650—his total gross emoluments and equivalent to several million dollars today.
Note Lord Mansfield’s point that even he as Lord Chief Justice could be held accountable in the criminal courts. Paraphrasing his decision, Were the judges for the case at hand to stand by and see their fellow officer of the court’s fraud committed?
To recap, Lord Mansfield wrapped up with this:
He [Bembridge] was arraigned for not acting honestly for that which was in his power to do. … He was to take all necessary pains to inform himself and, being informed, as an honest man, he was bound to debit that paymaster with every just charge, and give him credit for every just allowance …”
The case may then be stated that Fortier, along with the senior judges in their regulatory capacity, had all they needed in front of them in order to act on what was in their power to do.
Fortier as ADR practitioner
For the case at hand, one may note that Fortier had been a practitioner of alternative dispute resolution (ADR). She also had the case law in Sport Maska, quoted above, set before her. It follows that the classic reasonable outsider may believe that she knew full well the prerequisites for legitimate arbitration. Further, every one of these three judges must be held to have learned in law school the requirements for a valid contract as well as the law of criminal fraud.
Both J.O. Wilson, author of A Book for Judges, and Beverley G. Smith, author of Professional Conduct for Lawyers and Judges endorse Lord Hewart’s age-old principle: in the dictum of the Lord Chief Justice in Sussex Justices:[16]
[A] long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. …
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.
Given the foregoing requirements, the classic reasonable outsider may conclude that the judges all rode roughshod over their own duty of honesty and trust.
Conclusion
Reduced to basics, there are these questions:
1. Do you find that MacLaren’s and Neville’s representations, that arbitration was obligatory, meet the criteria of Section 380 of the Criminal Code?
2. If so, how do you find the conduct of one or all of Fortier, Forster Smith and McNamara with respect to the criminal common law and the cited sections of the Criminal Code set out above?
Postscript
In response to allegations of criminal conduct set before Chief Justice Richard Wagner, in his capacity as head of the Canadian Judicial Council, he responded with the evident non sequitur that an aggrieved litigant’s recourse is to further litigation. It’s not a matter for the Council over which he presides, let alone for the police and the criminal courts.
At his investiture in December 2017 as Chief Justice, Wagner said, with no indications of action since then:
It has become increasingly evident that our procedures for dealing with serious judicial conduct complaints are outmoded, slow, and opaque. Furthermore, while Canadians expect transparency and accountability, we continue to operate under 1970s models of judicial administration.
Given the response from Fortier Smith, McNamara and Wagner, there seemed to be no prospect of a reasonable evaluation, on the basis of the facts and the law, at any appellate level, of the case against Neville (or MacLaren).
Finally, here’s a piece of black humour. In a September 2018 speech posted on the Internet, Forster Smith said this: “Public confidence in the courts is a cornerstone of our justice system. It is fundamental to the rule of law. If lost, it would be very difficult to regain.”
Appendix:
A judge’s duty
Under the heading, The Qualities Required of a Judge,
the Canadian Superior Court Judges Association says this:
The judge is "the pillar of our entire justice system," the Supreme Court of Canada has said, and the public has a right to demand "virtually irreproachable conduct from anyone performing a judicial function." Judges must strive for the highest standards of integrity in both their professional and personal lives. They should be knowledgeable about the law, willing to undertake in-depth legal research, and able to write decisions that are clear and cogent. Their judgment should be sound and they should be able to make informed decisions that will stand up to close scrutiny. Judges should be fair and open-minded, and should appear to be fair and open-minded. They should be good listeners but should be able, when required, to ask questions that get to the heart of the issue before the court. They should be courteous in the courtroom but firm when it is necessary to rein in a rambling lawyer, a disrespectful litigant or an unruly spectator.
The Ontario Judicial Council makes these further observations:
Judges must be impartial and objective in the discharge of their judicial duties.
Judges have a duty to maintain their professional competence in the law.
Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not.
Judges should make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded and informed persons.
The Canadian Judicial Council has taken special note of the position of self-representing litigants. Their Statement of Principles on Self-represented Litigants and Accused Persons has these comments:
Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
Access to justice for those who represent themselves requires that all aspects of the court process be open, transparent, clearly defined, simple, convenient and accommodating.
Judges and court administrators should meet the needs of self-represented persons for information, referral, simplicity and assistance.
The Canadian Judicial Council said this in Ethical Principles for Judges (1998):
Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed criticism, or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary. Another factor which is capable of undermining public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality, and good judgment.
The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of their fellow citizens. This is eloquently expressed by Professor Y.-M. Morissette:
[translation] [T]he vulnerability of judges is clearly greater than that of the mass of humanity or of “elites” in general: it is rather as if his or her function, which is to judge others, imposed a requirement that he or she remain beyond the judgment of others.
In her speeches, former Chief Justice McLachlin constantly repeated this general principle:
The ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.
[1] R. v. Gray, [1900] 2 Q.B. 36
[2] (2) See [1968] 1 All E.R. 767.
[3] Fletcher v. Manitoba Public Insurance Co. [1990] 3 SCR 191
[4] Ottawa Citizen, Dec. 19, 2016
[5] The Law of Contract, 9th. Ed, 1995
[6] Durham Condominium Corporation No. 123 v. Amberwood Investments Limited, 2002 CanLII 44913 (ON CA)
[7] Parkinson et al. v. Reid [1966] SCR 162
[8] Sport Maska Inc. v. Zittrer [1988] 1 S.C.R.
[9] Reference re Supreme Court Act, ss. 5 and 6 [2014] 1 SCR 433
[10] The Queen v. Lemire, [1965] SCR 174,
1964 CanLII 52 (SCC)
[11] Sirros -v- Moore; CA 1974 [1975] QB 118, [1974] 3 All ER 776
[12] R v Dytham [1979] QB 722
[13] R. v. Boulanger [2006] 2 SCR 49
[14] R. v. Briscoe [2010] 1 SCR 411
[15] The King v. Charles Bembridge Caldecott, 387
[16] R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)