The State of the Canadian Constitution eh?

 

THE BEAUTY AND THE BEAST OF IT ALL

A century that began with children having virtually no rights, will likely end with children having its most powerful legal instrument--our Constitution--have virtually no effect at all as our Charter regulators are outsourced. Equality before the law will now cost you a pretty penny (oops)--or should we equate that to--ah pretty loonie? 

Most people are not aware that all our laws are based on Constitution Acts, 1867-1982.[1] The Bill of Rights was approved in 1960 and later expanded in 1977 to include the Charter. The Charter is there to protect our fundamental freedom and rights: democratic, legal, equality and protection from discrimination. Members of the Legislative Assembly (MLAs) are responsible for making laws in accordance with the Constitution for each province.

Remember when Manitoba Provincial Government's motto was "At Your Service": When you could speak to a civil servant and expect a response in regards to your rights and the law? A time when a live person could be held accountable to you -- you, a valued stakeholder. If appropriate, you could escalate an unresolved issue and that action had consequence.

 

Please be advised of new changes, already in effect.

Change 1: Work formerly done by civil servants under the direction of a Minister answerable to Parliament is delegated out to the Executive branch.

Change 2: Executive functions are now delegated to administrative tribunals: labour tribunals, pension boards, licencing boards, immigration appeal boards, and human rights (and more). These tribunals (independent oversight bodies) are not answerable to Parliament, or the oversight's body oversight body: The Provincial Ombudsman. (Confused? Let me explain.)

With the new changes in place, if you have a problem with the tribunals' action, or lack of action, you are required to take your complaint to court--bearing in mind, not everyone has the mental capacity, or the financial resources to fight a Charter Rights claim.

As the Chief Justice of Canada, Right Hon. Beverley McLachlan stated in a November 22, 2004 report [2]

It is not for me to say whether the present allocation of power and responsibilities between the Legislative and the Executive is the best one to meet the needs of Canadian democracy today. This is a matter best left to our elected representatives. But in this debate, it is essential that each branch of government continue to acknowledge the commitment of the other to act in accordance with the Constitution.



God keep our land glorious and free ...Protégera nos foyers et nos droits [3] 

 

VALUE LOST IN CONVERSION
Schmidt Happens!

Parliament requires the Minister of Justice, and Deputy Minister, ensures any proposed new legislation conforms to the Charter and Bill of Rights: To that end, they have federal lawyers to brief them accordingly.

Toronto Star's January 19, 2013 article, “Government Lawyer Edgar Schmidt Courageously Blows the Whistle"[4] tells the story of one man, a lawyer who has gone against the status quo in an attempt to persuade his superiors that what they were doing was not consistent with the law, and not in accordance with the Constitution. This article takes us to the root of the problem, the beginning of the end of democracy--the consequences already realized.

See related posting from: A Bullish Government Monkey with Rules--Get a Monkey on your back:Apr 11 2012:

One should question the effectiveness and integrity of such a Society who, without question or investigation, sides with the lawyer and firm of Thompson Dorfman Sweatman against Marielle whose mental disability required minimal accommodation in order to move on to new employment. The Law Society (and courts) by denying her an opportunity to correct the wrong is essentially blaming her for having a mental disability and treated her without any mercy, compassion or dignity. (read more)

Despite the risk to his reputation and livelihood, federal lawyer Edgar Schmidt spoke out against the Federal Government's practice over the past decade, passing bills that he believes violate the Charter of Rights and Freedoms. Frustrated about not being able to get anyone to listen, he decided to sue the government. This resulted in an immediate suspension from work without pay.

Excerpt from the Toronto Star article states as follows:

"Before a federal judge last week, Schmidt maintained that government lawyers are instructed to raise possible Charter conflicts only when the violations are unambiguous. Even if a bill is deemed to have a 95-per-cent probability of contravening the Charter, as long as some argument, however dubious, can be made in its defence, the minister is not to be notified."

The judge made the following comment in response to the disciplinary action against Schmidt in court:

"... the day after filing of the statement (by Mr. Schmidt) bang, you're suspended. It's unbelievable. Your client (Federal Government) has done everything it can to kill this thing...The court doesn't like that...We see that in different countries that we don't like. ...Canada is still a democracy."

As stated in an interview on CBC Radio's "As it Happens" Schmidt said he decided to take the matter to court after a recent trip to Egypt which impacted on him "how fragile democracy is and how much it needs care and tending."

 

Bear this in mind: As tough as it is on Mr. Schmidt for coming forward, this man is a senior lawyer with the Federal Government. Consider for a moment what would it take for you to be able to have your day in court?

 

Are you an able body up to the task? Because we seem to have an overabundance of applicants for the highly paid positions of:   EVERYBODY, SOMEBODY, ANYBODY, AND NOBODY.

 
There was an important job to be done and everybody

was sure that  Somebody would do it –

so no one followed up on the fact that those
 most vulnerable had no help. 

Anybody could have done, what they knew—
by law—had to be done: The facts and evidence 
were all there, but nobody did it.

I’m very sure that Somebody got angry about that
 because it was their job. Everybody thought anybody
could do it, but nobody realized that nobody cared

enough about ‘those people’ to do anything about it.

It ended up that everybody
blamed Somebody

when nobody was to blame

for what Somebody said

an independent body had done.[5]
 

 

---

1. Government of Canada Dept. of Justice Laws     
2. Supreme Court of Canada, Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada Conference on the Law and Parliament Ottawa, Ontario Monday, November 22, 2004.-  
3. "O Canada" -- A Canadian Heritage was proclaimed Canada's national anthem on July 1, 1980, 100 years after it was first sung on June 24, 1880.
4. See complete January 19, 2013 article on Toronto Star website “Government Lawyer Edgar Schmidt Courageously Blows the Whistle” 
5. Adapted from http://www.englishclub.com/grammar/pronouns-notmyjob.html

FINANCIAL AID FOR POOR POLITICIANS?

In Winnipeg Free Press December 29, 2012 article "Selinger's got game" Manitoba Premier Greg Selinger thinks it is appropriate to prioritize taxpayers' money  (despite the province facing the largest deficit in recorded provincial history) to support the financial hardship incurred by--egad,  politicians during elections. This epiphany came at the heels of the new Leader of the Opposition Party--Brian Pallister's purchase of a $2 million mansion in Winnipeg.

In the United States, democracy "has really become a club for millionaires and, in some cases, billionaires," ... Selinger went on to say, "I think that democracy needs to function in a way that average people have a chance to participate in it...and if that requires modest amounts of public investment to do that, I don't think that's inappropriate." 

POLITICS WITHOUT PRINCIPLES
Even dead fish can go with the flow.

Dear Reader,

Please do your part to remind Mr. Selinger that there are others, certainly more vulnerable (who cannot access the democratic process) than leaders of political parties whose own personal wealth could likely support a small country. Also, are the majority of politicians not in fact lawyers? What's next on your game plan--send a poor NHL player to camp? 

When you consider that the average income for an individual in Manitoba is $29,250 according to 2010 Stats Canada, and the average hourly rate for a lawyer is $250 to $600 an hour, it is safe to say, the average person is not being represented. It is well reported in my blog, and would appear to be the consensus of expert opinion that those that do try to represent themselves generally end up getting badly beaten and bruised as the court system does not encourage or support self-represented litigants.

Self-represented litigants ‘treated with contempt’ by many judges, study finds  as seen in FAIR article.

Jamie Ryan has been fighting for equal access to his young daughter since the day she was born nearly three years ago. When his ex-girlfriend announced she was moving to Toronto and taking their daughter with her, Ryan hired a lawyer and spent $30,000 trying to stop her. The judge ruled against him. “So that was a waste of money, really,” he says.

Since then, Ryan — who owns an Ottawa company called Executive Golf — has been representing himself in court. So far, he’s appeared before seven different judges. Despite some limited success, the experience has been deeply disillusioning. The judges, he says, treated him like a criminal...

Julie Macfarlane is a law professor at the University of Windsor and has interviewed about 280 self-represented litigants in Ontario, Alberta and BC as seen in FAIR article:

What has surprised me is how traumatized people are by the experiences they're having, how many lives are getting wrecked, how much anger and frustration is out there," says Macfarlane who plans to publish her findings this spring. "It makes you wonder, given that self-reps are now a majority in the legal system, how much longer the system can hang on.

FAIR Newsletter - posted January 1, 2013 

Those that are self-represented generally find themselves fighting a David and Goliath battle where justice is not weighed on evidence, but on the fact those with deep pockets (like government, big business, and members of The Law Society) have unlimited resources and nothing but time on its side.  
See related posting: Legal Costs Laughing Matter to Ombudsman

Being self-represented is disadvantage enough, but if you also happen to be a person with a mental disability, you will likely find NO advocacy or accommodation, particularly if the complaint is against the Province or its government services.  

We need to be mindful as to why legislation came up with the concept of tribunals, such as the Human Rights Commission and Labour Board in the first place. These were established (and hoards of tax dollars spent) and rationalized as follows:

• as an alternative to the court system for those most vulnerable;
• for those that could not access the court system
• due to disability or
• because they did not have the financial means to hire a lawyer.

And yet, when I tried to access these government services, I was verbally assaulted, reproached by a board member/lawyer for crossing the line --"delving into a lawyers' world!"  

See related posting:

A Bullish Government: Electronic signatures, rubber stamping ...

Oct 26, 2011

And it seemed to really anger him that Marielle was way over her head delving into a lawyers' world. "This (Labour Board) is not an investigation. It's a trial by paper and you blew it by not going to a lawyer!" In anticipation of ...

http://rowan4u.blogspot.com/

Not until we have a government that actually does fight for the average person, and one that actually encourages and yes--demands civil behaviour of politicians and provincial gatekeepers; will we be able to ensure civil rights for everyone and ensure that we can access our rights to justice as equals in a democratic society.

Age of Information...Yet Wisdom in Short Supply

 

In protest to Manitoba Government's lack of support for persons with mental illness, I have decided to stop taking my medication for bipolar disorder which to date has enabled me to maintain and sustain recovery (give or take a few slips) for the past 21 years.

 

Imagine if government blamed you for having cancer?

Growing up on a farm outside of Winnipeg, life was simple: If you wanted cookies – you baked them--you planted grain and had a garden for vegetables. On Sundays everyone went to church and prayed. When there was a threat of tornado or flood–we prayed. When we were grateful for what we had... we prayed. Even when things happened that couldn't be fixed, prayers helped because those things were just part of God's plan--as much comfort as that can bring when you see your dad take the rifle behind the barn with your sick pet--but for the most part, there were civilized codes of conduct--rules.


I used to believe that bullies and thugs were not of my world. However, the sad reality is--it is the bullies and thugs that rule the world. Through no fault of my own, I feel I am trapped in some biblical crisis of God vs. the devil. Power is distributed according to wealth, not wisdom or compassion. Manitoba Justice has weaponized language and its bullet is its slanted "decisions", aimed to objectify, de-personalize and de-humanize those who can't fight back.


It is no accident that Justice did not factor mental illness in its call for action from the beginning going back all the way to 2008. It obviously did not want the rules for civilized and decent behaviour to get in the way. Although disability was always known and confirmed, there is only a nuance as to a 'claim' of mental illness as mentioned in Master Berthaudin's decision.

 

The moral test of Government is how that Government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped. - Hubert H. Humphrey

 

As indicated in the Canadian Lawyers Insurance Association "Safe and Effective Practice" (aka "How to Screw the Public out of their Rights: Law 101) the following excerpt is quite telling:

 

"The lawyer who has been negligent (emphasis added) should not try to be the one who repairs the situation....But it is important to realize that if the Law Society makes use of able and imaginative lawyers from the earliest possible moment ... the number of ways in which this may be done are infinite... It is very instructive to see what can sometimes be done in what is usually assumed to be the most hopeless of cases..."

 

To that end The Law Society hired Aikins MacAulay Thorvaldson's, Ted E. Bock and Thomas K. Reimer. And then there are the defendants themselves, the law firm of Thompson Dorfman Sweatman who as recently as September 5, 2012 continued to play hard ball... having no interest to discuss, or inquire as to what a 'mutually satisfactory / reasonable resolution' was in my mind.

 



 

 

You will find no mention in the Master's decision, Rowan v. Thompson Dorfman Sweatman that on March 15, 2012 paramedics were called and hospital attention was required. That it was stated in the Claim that I found 'dealing with the defendants "too much" and wanted to die.

 

Common sense would tell you that a pendulum swings just as far to the left, as it does to the right. And what goes down must come UP. Considering all the odds were against me, a person of sober judgment would have concluded that going up against the likes of the powers that be, would be insane but instead, much like Daniel in the Lion's Den I threw all caution to the wind and put my faith in God.

Too bad one has to die before someone cares.

 

 

How low can lawyers get? Along with a sympathy card from a senior lawyer at Aikins Law on the occasion of my father's death from cancer, on that same day I received from Aikins Law, a Bill of Costs claiming I owed them $3500. It is hard to tell whether the cost of the sympathy card and postage was included in the Bill of Costs but I would certainly not put that past them. In any event $3500 to not be allowed a trial is ludicrous!!

 

 

Costs are not meant to be punitive, nor should it be used as a deterrent from keeping people like me, with a valid complaint from coming forward. And then, for whatever trumped up reason, particularly in my case where I am unrepresented and vulnerable due to a mental disability, gets 'out-played' by having a provincial civil servant strike out a claim that could and would make the Province come across as looking bullish.

 

 

Justice was not done --- nor was it seen to be done.

 

 

Electronic signatures, rubber stamping - "Good Grief"

In the Spring of 2010, rather than risk the matter going to an open public hearing, the MHRC Executive Director Dianna Scarth, MHRC Investigator Nancy Flintoft and MHRC Board member, *Elliott Leven breached their fiduciary duties (without recourse from the Ombudsman) by allowing Leven to take part in the HRC panel despite assurances by both parties that he would not participate, resulting in further delays and difficulties. They did say "sorry". GABS

• August 31, 2009 through a reference from Workers Organization Resource, in a free telephone consult with legal counsel, Elliot Leven, I had briefly described the situation, naming all the parties involved after time (ten to fifteen minutes into the conversation) Leven then informed me that he was one of MGEU's legal counsel in the matter of the OSD-CSC union exclusion. "The Union has every right to be mad at CSC," Leven declared due to years of uncollected union dues. "But that had nothing to do with you. It's not retroactive." Furthermore, he expressed open annoyance with me: "now because of our conversation" he would have to recuse himself from the MHRC panel once my complaint came forward for review." And it seemed to really anger him that I was way over my head delving into a lawyers' world. "This (Labour Board) is not an investigation. It's a trial by paper and you blew it by not going to a lawyer!"   

In anticipation of moving forward with this complaint, I sent a memo of a complete and accurate account of my lawyer-client consultation with Leven and accordingly--as member of the HRC Board of Commissioners--he would need to recuse himself from participating in any deliberation of my complaint.. Email was sent February 26, 2010 to Executive Director Scarth with copy to Investigator Flintoft.

Scarth replied the same day stating, "you may be assured that he (Leven) will not participate in any aspects of the Board processes pertaining to your complaint...the nature of which may create a reasonable apprehension of bias."

The Board met on April 7, 2010 and to everyone's [sic] surprise - Leven was in attendance. He later claimed not to remember his telephone consultation with me. And both Scarth and Flintoft said they forgot that Leven should not have been in attendance. Because of the "foul play," the decision was made to go with an independent  Commission outside of Manitoba. Three months later, delegation was made to The Yukon Human Rights Commission. 

YHRC's website has a Corner Gas feel to it. The website addresses issues of being short staffed, over-worked, frustrated, underpaid considering most times they're doing multiple jobs. The Executive Director works part time and not likely to be working the summer, or over a long weekend. 

• A Canadian favourite, Corner Gas is a show about people living in Dog River; a great big place full of nothin' but space, who hang around the one and only town's gas station/restaurant.
• Yukon has its own unique challenges in its diversity of meeting the needs of 8 First Nations groupings and 14 tribes/clans where needs go beyond available resources.

Consider the following:  a well-staffed, rich in resources, MB Government took two years to just get started on a preliminary investigation. Meanwhile, the people of Yukon gathered, seemingly overnight, to review a very large complex file consisting of:

1. A 52-page MHRC Investigator's Assessment report "Assessment" (normally maximum of ten pages)
2. MHRC Complaint plus attachments;
3. Government's MHRC Reply plus attachments;
4. My Rebuttal to the Government's Reply plus attachments;
5. Gov't Rebuttal to my Rebuttal to the Gov't Reply -  plus any attachments
6. My Comments to the Assessment (MHRC restricted Comments to 10 pages-included -not in addition to - any attachments) to the 52 page Assessment.

Flintoft in the Assessment stated there was no real documented evidence which fairly reflects that submitted by Government defence lawyer, Robert Olson. However, the real evidence submitted by me of actual Government documents, letters and emails were either given no weight, given no reference, buried -- even deleted (as can be shown). GABS 

A hearing was clearly needed to cross-examine the evidence and witnesses, including but not limited to deponent, Olson who personally signed off on the MHRC Reply in the complaint against the Government but NOT as legal counsel to the Government. Generally when a lawyer signs on behalf of its client, it would state "Rob Olson Per: Thompson Dorfman Sweatman, legal counsel for Government of MB." GABS

MHRC accepted a third party's testimony as if he had personal knowledge of the facts and information submitted in the Reply which he was giving second and third hand. Furthermore, shown through FIPPA requests to be false information. What's more, Olson does not have government signing authority. Can John Smith sign on the Government's behalf? GABS

The Likely Legal Strategy:  Better that one man execute the fabricated response (while the Government had his back) than for the Government to potentially expose itself to perjury in stating the polar opposite to that said in the LRA Reply. Brilliant considering private firms and individuals are not bothered by such nuisances like FIPPA, accountability, transparency, and so on. The only trouble though with stretching the truth (so way way out) however is that it usually comes right back at ya with a -- SNAP!!

The standard practice in an HRC investigation now is to have all evidence sent out to each panel member to see if there is enough evidence to warrant going to hearing. This is not to be a decision on the complaint - just a determination on the information presented. Two weeks is the standard amount of time required to review, interpret, and sift through the most critical and relevant issues. Notes are taken in preparation of the day's session(s).

In addition, the parties need to be given notice of, and mutually agree upon a date, time, and location. Dietary restrictions and food preferences ("Traditional", "Aboriginal", "Yukon / First Nations" or "Champagne-Aishihik") need to be respectfully considered. 

And then, one day ... at band camp...

The Yukon accepted delegation on Wednesday, July 28, 2010 and somehow managed to take care of all of the above, and have the dictated notes transcribed, typed up, scanned, emailed and mailed out to me on Tuesday August 3, 2010;  the first day back to work after the long weekend. GABS

So incredible, that I brought this (along with other issues of procedural wrongdoings to Ombudsman Investigator, Kris Ramchandar saying "What? Did they decide to get together over a case of beer over the long weekend to see who gets to use the rubber stamp?" Ramchandar laughed.

 

The Yukon decision was signed by a secretary (she did apologize for not knowing how to insert the Executive Director's electronic signature into the letter). As to the basis as to why the complaint was dismissed, it was basically, 'ditto--what the MHRC said".  GABS

After a two year stonewalling job, this was not acceptable. At the very least, I wanted to know by what authority the secretary had, to sign such an important document beyond what was given, "she has the authority". I insisted that YHRC Executive Director send a properly signed letter with the reasons for dismissal. My email was returned 'blocked' by YHRC. Instead, a response of "Good Grief!" came by way of YHRC legal counsel, advising that "since the Yukon was outside MB, the YHRC was under no obligation to respond". GABS

Although the conduct of the MHRC and YHRC has been brought forward in a formal complaint personally handed to Ombudsman Irene Hamilton on October 4, 2010 at the legislative office, and in the presence of MLA Dr. Jon Gerrard; and the Ombudsman is mandated to respond within 90 days, communications with the Ombudsman Office stopped March 2011. As to further assistance from Dr. Gerrard, other than when he called asking for my support days prior to the election, she has heard nothing further from her MLA. 

Tip to Government:  When you take a leave of your senses don't leave a forwarding address.