The Federal Court & OPSIC

The best way to describe the experience in FCC T-541-24 is one of mimicry and solidarity.  The Application judge had allowed herself to be led by the characterizations of OPSIC and their counsel in the Application, which was transitioned in the style of cause to the Attorney General of Canada.  There was no critical analysis of the constellation of facts and law that are expected to inform what the judge can lawfully decide.  
 

An exact case law analogue is promulgated in R. v. S. (R.D.), [1997] 3 SCR 484 at paragraphs 106, 107, and 111 concerning bias and partiality;

Paragraph 106:  “In common usage bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result.  In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction.  Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.  See also R. v. Stark, [1994] O.J. No. 406 (Gen. Div.), at para. 64; Gushman, supra, at para. 29.”

         
Paragraph 107:  “Doherty J.A. in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), leave to appeal denied, [1994] 1 S.C.R. x, held that partiality and bias are in fact not the same thing.  In addressing the question of potential partiality or bias of jurors, he noted at p. 336 that:  Partiality has both an attitudinal and behavioural component.  It refers to one who has certain preconceived biases, and who will allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases.  In demonstrating partiality, it is therefore not enough to show that a particular juror has certain beliefs, opinions or even biases.  It must be demonstrated that those beliefs, opinions or biases prevent the juror (or, I would add, any other decision-maker) from setting aside any preconceptions and coming to a decision on the basis of the evidence: Parks, supra, at pp. 336-37."

Paragraph 111:  “The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:  The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. [The] test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude.”
 

At Stake:  Did the Application Judge Address any of the Errors in the OPSIC Decision?

No.  The problems in the OPSIC decision, outlined in the previous section, are clear and uncontroverted errors.  The Application judge does not address these errors, and in fact, at paragraph 58 of her decision, denies that I had raised them in the Application.  Procedural fairness requires a right to be heard (Vavilov, Supra, at paragraph 127).  A number of specific characteristics of the T-541-24 decision are worth noting.

Per the Figure 1 visual below, the Application Judge asserts that her review will be limited to the OPSIC disclosure, but does not reference the website contents brought before OPSIC in the January 2nd, 2024 email as shown earlier in the page.  At paragraph 22, the judge quotes the OPSIC Analyst, who neglects to reference the evidentiary web pages in that same email, but references two peripheral web pages which contain information exhibits (not evidence exhibits pertinent to the complaint).  The paper submissions featuring RCMP records were likewise omitted from mention.  The entirety of the complaint could have in fact been predicated on the QA web page alone, which gave a step-by-step explanation of the chronology alongside visual exhibits, including the RCMP report that proved the police agency had not acted in accordance with its mandate.  A December 9th, 2023 archive of that page can be found here:  https://archive.ph/ZcKKY.  The page goes on to detail the impacts this had, the characteristics of the crimes at stake, and the public implications in refusing to address it.  In summary, OPSIC did not acknowledge the evidence, and the Application judge had aligned with their position and had blocked access to justice.

Per the Figure 2 visual below, the Application Judge is correct in that a number of other agencies cited in the Application do not fall under OPSIC jurisdiction; a fact I had likewise made clear when preparing the submissions.  The merit in referencing other agencies such as Halifax Regional Police (here) is that their conduct has consistently aligned with the agencies under OPSIC jurisdiction.  An example is shown earlier in the page, featuring an audio transcript.  Readers should likewise review the civil litigation page (here).  These are important data points, in that they suggest the customary distinctions between the agencies involved appear to be immaterial as it pertains to the evidence-based matter that was brought before the Commissioner.  Dr. Colin Crouch's comments in Post-Democracy (here) is likewise a useful analogue to consider.

Per the Figure 3 visual below, the Application Judge provides compelling evidence of a compromised bench.  At paragraph 44, the Application judge echoes the Commissioner's first and second errors concerning police jurisdiction and the public impact of negligent policing.  She then mischaracterizes the modest disclosure put before OPSIC as excessively onerous.  Thus the same paragraph presents an overlapping effort to mask the nature of a real problem which is easily discernible.  The remainder of paragraphs in Figure 3 attempt to excuse OPSIC negligence in positioning the disclosure as confusing and voluminous.  I again point to the January 2nd, 2024 submission cited earlier, where I had in fact made follow-up attempts in encouraging OPSIC to limit their review to just three web pages that would require ten minutes of reading time.

Per the Figure 4 visual below, the Application Judge attacks the merit of the Application in suggesting the complaint its not evidence-based, and in suggesting that the volume of the volume of the complaint is a waste of Canadian taxpayer money.  The RCMP records are what they are, I am not an online content creator, nor would I be disposed to drive across Canada in mid-winter in response to ongoing physical and cyber mischief, which may have in fact been facilitated in part by RCMP operators, as is explored in a 2022 Affidavit.  OPSIC was guided to view a limited record footprint that shows an actionable crime was brought before the RCMP, who had consistently refused to respond in accordance with their mandate and the applicable tests for reasonable grounds.  She goes on to assert at paragraph 56 that other unspecified efforts to seek corrective recourse are likewise a waste of time, and asserts that a cover-up is an act of procedural fairness at paragraph 59.  In this decision, the Federal Court has informed the criminal community that when aligned with the right interests, they have an ally in Canadian public institutions.  Conversely, other victims of similar crimes are informed that they can expect to fend for themselves, and can expect to be pejoratively characterized and punished for attempting to fix their problem and regain control of their lives.  Neither the OPSIC analysts, the Commissioner, nor the Application Judge had appeared to concern themselves with the moral gravitas at stake.  ​

Per Colburne v. Frank, 1995 NSCA 110 at paragraph 9;  

"...Under these headings of wrong principles of law and patent injustice an Appeal Court will override a discretionary order in a number of well‑recognized situations.  The simplest cases involve an obvious legal error.  As well, there are cases where no weight or insufficient weight has been given to relevant circumstances, where all the facts are not brought to the attention of the judge or where the judge has misapprehended the facts.  The importance and gravity of the matter and the consequences of the order, as where an Interlocutory application results in the final disposition of a case, are always underlying considerations.  

Per R. v. Tayo Tompouba, 2024 SCC 16 at paragraph 73;

“Courts have found a miscarriage of justice in a wide range of circumstances (see A. Stylios, J. Casgrain and M.‑É. O’Brien, Procédure pénale (2023), at paras. 18‑87 to 18‑81).  Examples of a miscarriage of justice include the ineffective assistance of counsel (see White), a breach of solicitor‑client privilege by defence counsel (Kahsai, at para. 69, citing R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143) and a misapprehension of the evidence that, though not making the verdict unreasonable, nonetheless constitutes a denial of justice (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1; Coughlan, at pp. 576‑77).  Unfairness resulting from the exercise of a “highly discretionary” power, related to proceedings leading to a conviction and attributable to a judge will also generally be analyzed under the miscarriage of justice framework (Fanjoy, at pp. 238‑39; Kahsai, at paras. 72 and 74).”

Per R. v Wolkins, 2005 NSCA 2 at paragraph 89;

"..there can be no “strict formula to determine whether a miscarriage of justice has occurred”:  R. v. Khan, 2001 SCC 86 (CanLII), [2001] 3 S.C.R. 823 per LeBel, J. at para. 74  [...]   A miscarriage of justice may be found where anything happens, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice: R. v. Cameron (1991), 1991 CanLII 7182 (ON CA), 64 C.C.C. (3d) 96 (Ont. C.A.) at 102; leave to appeal ref’d [1991] 3 S.C.R. x."

The astute reader will recognize and agree that when the effects of a scandal survive in the wake of court proceedings that were intended to address them, something is wrong.