Justice Shaw and Protecting Judicial Independence over the Public Interests

A failure in the rule of law throughout the Canadian legal system. Not once was the right thing to be done, done.

So many gems in this speech that Justice Duncan W. Shaw gave to his fellow judges to their loud applause.
In R v. Sharpe, Shaw declared the statute of Parliament, prohibiting possession of child pornography to be unconstitutional.

According to Shaw the decision prior to the sentence was appealed to BC Court of Appeal and then to the Supreme Court of Canada. Over 50 judicial conduct complaints were made to the Judicial Council which denied all of them including those from the RCMP. Shaw’s fitness as a judge was debated in Parliament with MP's condemning his judicial competency.

However their integrity and the protection of the public interest collapsed completely at the request of the Minister of Justice, Anne McLellan.

Despite almost universal condemnation of the judge’s conduct the Members of Parliament voted against his removal, to allow the judge to remain on the bench and the system of appeals to attempt to repair Canadians trust in the legal system.

In my letter of Feb 14, 2021 to Justin Trudeau I wrote,

“This matter is a failing from a matter of Judge Shaw’s fitness as a Judge that was put before Parliament on February 2nd, 1999.”

Parliament was determined at that time to respond however based on the pleas from the then Minister of Justice Anne McLellan they permitted the Justice system to resolve the matter internally however the consequence of that is reverberating still and will destroy the integrity of Canada’s Justice System unless immediate steps are taken to restore the integrity of the Charter of Rights, and that involves political leadership.

I submit the following quotes from Parliament from all sides of the political spectrum.

‘It is important for Parliament to reassert its intention both with respect to the Charter and with respect to ….the criminal code’

‘We have a duty to protect citizens.’

‘As legislators, we have an obligation to conduct ourselves in a manner that respects the rule of law. This is the highest court in the land.’

‘The people of Canada assume that the House of Commons is the supreme power in the country. Under this Justice Minister…..the government has allowed the courts to become the lawmakers’

‘the Charter of Rights and Freedoms is a legal instrument we have given ourselves to guarantee the fundamental rights and freedoms of everyone. This is an instrument we are proud of, and rightly so. It represents our core values.’

‘The Minister of Justice is not defending the Rule of Law. She is undermining it today by refusing to assert the sovereignty of this Parliament to defend innocent children.’

‘The whole issue of trusting the judicial process to address this tragic situation is wrong’

‘They place greater emphasis on the importance of the authority of judges as opposed to those of us who place greater emphasis on the importance of the authority of Parliament. It is a legitimate debate to have in a democracy.’

‘This is not a political issue. I suspect and hope there are members of all parties who will support this motion this evening.’

‘I call on my colleagues on all sides of the House to not impute motives to one another here but let us assert the sovereignty of this Parliament. We can act. The Constitution gives us the power to act and we must act. To do otherwise is to abdicate our fundamental democratic responsibility.’

‘I point out that what distinguishes our society from non-democratic societies is the rule of law. There is no question that no one in the House today has indicated anything but abhorrence for the decision”

‘Mr Speaker, I rise on a Point of Order. Based on an earlier decision of a vote in the House, may I recommend we close this place and let the Judges and Courts run this Country.’

Then during my divorce trial in Holsworth v Holsworth BCSC 2007, a local judge who had seized himself of the case due to suspicions of lawyer misconduct was replaced by Mr Duncan Shaw, who protected a lawyer committing fraud by calling the Plaintiff to the stand and asking her to refute the contents of my evidence, the transcript.

The transcript is the best evidence that any Canadian could provide to conclusively prove a court order false. The Canadian Judicial Council protected the judge claiming that Judges have a discretion in their acceptance of the transcript.

However discretion implies choice between two possible choices. If there is only one possible choice then it is a duty. The leading case precedent on fraud and corruption is Roncarelli v Dupleiss,

“The rule of law operates…to constrain the exercise of arbitrary authority…No public official has the authority to make a decision that is arbitraray, improper, or in bad faith.” and, “in public regulation of this sort there is no such thing as absolute and untrammeled discretion”.

The limits of discretion are bounded by duties.

Shaw does retire 6 months after my complaint but not before Justice Pigeon at the Judicial Council claimed that Judge Shaw’s conduct was within judicial discretion. They fail to examine the issue of judicial misconduct. The Judicial Council claimed that their involvement was over upon Judge Shaw’s retirement and refused to submit their decision to review by anyone claiming that was an abuse of process. That was a lie.

Their procedures dictated that complaints regarding the conduct of members of the council are to be sent to outside counsel for independent legal opinion. I had made a complaint about Justice Pigeon and they refused for his discretion to be checked.

A claim that their decision was above the law, not subject to review by anyone. Absolute and untrammeled discretion also known as absolute power. An affront to the rule of law and democracy.

The Public is left wondering What are the qualities required to be a judge?

There are two ways of protecting individual and institutional reputation.
1. By upholding professional standards, or
2. By prohibiting evidence of failures from being exposed.

That is why the Judiciary, Parliament and the Executive do not want to hear what I have to say. They know that their system of checking judicial conduct by listening to the advice of lawyers and judges does not work. YET they deny a problem. Lawyers, Judges, Public Servants, RCMP, Politicians. Even the public. We need a justice system so badly that we are even prepared to submit to a corrupt one, hoping for their favor.

But it appears that Justice Shaw ran interference for the legal system and they subsequently protected him returning the favor.

The public is left wondering what factors contribute to a decision if the facts don’t.

Fundamental Justice requires that a decision
"THEY know they lie. They know we know they lie. And they continue to lie"

House of Commons Feb 3, 1999
JUSTICE

Mr. Jason Kenney (Calgary Southeast, Ref.): Mr. Speaker, we heard the attorney general say that she wants the rule of law. We want the rule of law. Right now what we have in British Columbia is rule by judge and lawlessness when it comes to the possession of child pornography. We want the rule of law. The constitution of this land says that this parliament has the power and in fact the responsibility to override irresponsible decisions by the courts. Will this Minister of Justice give her members the right to vote their conscience this evening on this motion, yes or no?

“In the final analysis who is on the hook if a judge screws up? It is the Prime Minister and the Justice Minister”
Shaughnessy Cohen quoted by Mr. Paul Forseth

"Today we see the ultimate consequences of a completely unencumbered, unaccountable judiciary"
Mr. Jason Kenney

‘If we are ever going to send a message to the Judiciary that Parliamentary supremacy over legislation is meaningful, and if the public at large is going to receive that message as well, there is no better time to use this than at a time when something so offends the common sensibilities of people’

The failure of the Canadian Judicial Council to properly perform their duties led me to communicate with the PMO and the MOJ, who unfortunately made false and misleading statements as to his duties, in order to escape an uncomfortable task, calling judges to account.

But that left his duty on my shoulders to resolve so even though I knew the legal system would attempt to protect it’s own, I asked the Court for a writ of mandamus, an order from the Court for a Minister to do his duty. The decision was supposed to rendered on Feb 14, 2022 but on that day the judge did not show up and David Lametti enforced the Emergencies Act upon Canadians.

Emergencies Act
A Failure of Good Faith: Lametti & Trudeau
Request for Intervener status at Federal Court of Appeal https://ruleoflawcanada.substack.com/p/request-for-intervener-status-at
Federal Attorney General Response https://ruleoflawcanada.substack.com/p/response-from-ag-in-fca-re-emergencies
Legal argument for evidence to be admitted in public interest. https://ruleoflawcanada.substack.com/p/my-written-representations-to-the
This is the full pdf file of my evidence and argument https://fundamentaljustice.com/wp-content/uploads/2024/04/INTERVENER-MOTION-ACCEPTED-BY-REGISTRY-4-APRIL-2024.pdf

Senator Claude Carignon questioned the current MOJ Arif Virani,
"do you have something to hide? Provide the legal opinion to justify the decision to invoke the Emergency Act... Either its legal or it is unlawful...”

I had attempted on numerous occasions to communicate with Parliament through my MP, PMO, and various committees in order to address the problem through the official channels…

and now we are here. The Judiciary pretending that nothing is wrong. The Chief Justice of the Supreme Court on June 3rd 2024 admonishing Politicians not to criticize judges as it threatens democracy, when really proper administration of justice and the rule of law would protect democracy and corruption and claiming dictatorial powers weakens democracy but strengthens judicial rule.

‘I believe that in Canada we have a system where we have parliamentary supremacy.
That means we have a responsibility.
We cannot abdicate it and say that every question has to go to the Supreme Court.
We can act here in the House.’

But the law is clear and constitutional..

Section 99 Judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

The test created by Judges for the examination of their conduct

“Is the conduct alleged so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?”

and with this provision in mind,

”Judicial independence exists for the benefit of the judged, not the judges. It is, therefore, to be assessed from the perspective of the reasonable observer and in light of the public interests it is meant to serve.”

But “To know who you are ruled by, ask of whom you are not permitted to question.”

Chief Justice Wagner discussing the human need to access justice and the requirement that citizens can trust that they will be able to access fair and impartial decision makers in the tribunals.
1. Wagner is the head of the Canadian Judicial Council. He must know that the CJC claims they can ignore all the evidence that any Canadian could provide including the transcript. I guess protecting Judges comes before protecting Canadians. There is no judicial misconduct possible in Canada. Not even a breach of the rule of law, improperly protecting lawyers.
2. Wagner is the head of the Supreme Court of Canada. He must have been informed by the SCC Court Registry that an application was received for the constitutional right of habeas corpus as the BCCA had deemed my lived experience of a failure in the rule of law throughout the Canadian legal system and a request for a writ of mandamus on the MOJ was decided to be "irrelevant" by the BCSC and a "conspiracy theory. This does not reflect reality", when it does. https://ruleoflawcanada.substack.com/p/habeas-corpus

The continuing failure of the administration of justice in British Columbia
Registered letter to AG Niki Sharma. No response. https://ruleoflawcanada.substack.com/p/communication-with-bc-ag-niki-sharma Registered letter to Premier David Eby. No response. https://ruleoflawcanada.substack.com/p/foi-request-for-office-of-premier
The solution for democratic deficit is more democracy.
Transparency and Accountability Required.

How this represents a Constitutional Crisis for Canada

United Nations Charter of Human Rights

"Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,"

The purpose is to bring about a conversation about Corruption in Canada, the harms that are caused, the propaganda that is used, and ideas for improving our systems in the public interest. This is my suggestion for judicial conduct reform

Thanks for being informed.