The 2025 Nova Scotia Appeals

In some ways, Wilson J. was ahead of her time in proposing an addendum to Dickson J.'s necessity defense in Perka v. The Queen, [1984] 2 S.C.R. 232 (concurring).  She had acknowledged the possibility of non-immediate situations where reasonable legal options were precluded.

Perka v. The Queen, [1984] 2 S.C.R. 232  at pages 270 & 279;
"As Dickson J. points out, although the necessity defence has engendered a significant amount of judicial and scholarly debate, it remains a somewhat elusive concept.  It is, however, clear that justification and excuse are conceptually quite distinct and that any elucidation of a principled basis for the defence of necessity must be grounded in one or the other.  Turning first to the category of excuse, the concept of “normative involuntariness” stressed in the reasons of Dickson J. may, on one reading, be said to fit squarely within the framework of an individualized plea which Professor Fletcher indicates characterizes all claims of excusability.  The notional involuntariness of the action is assessed in the context of the accused’s particular situation.  The court must ask not only whether the offensive act accompanied by the requisite culpable mental state (i.e. intention, recklessness, etc.) has been established by the prosecution, but whether or not the accused acted so as to attract society’s moral outrage.  [...]  Where the defence of necessity is invoked as a justification the issue is simply whether the accused was right in pursuing the course of behaviour giving rise to the charge."
 

In my opinion, the same defense is applicable in scenarios involving institutional capture, such as this one.  There is no reasonable alternative available by means of the absence of impartiality (R. v. Curragh Inc., [1997] 1 S.C.R. 537 at paragraphs 6-7)

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The only threshold that was required in these appeals was the "arguable issue" threshold.  In other words, was there something to talk about? The record contains a staggering amount of probative evidence interlaced with applicable legal tests which indicate what a court is generally required to do with it.  Yet, it bounced off teflon.  

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The "arguable issue" standard is not demanding.  It does not require proving the appeal would succeed.  It requires only that reasonable minds could differ on whether error occurred.  When binding Supreme Court of Canada authority from 2015, 2019, and 2021 is cited, when Federal Court of Canada authority from 2024 is cited, when UN Human Rights Council warnings are presented, when documentary contradictions and arithmetic anomalies are documented, when systematic patterns across multiple proceedings are evidenced—how is there no arguable issue?
 

Unless: Arguable Issue has been redefined to mean, "issues we're willing to discuss" rather than, "issues reasonably open to argument". 
Unless: The standard is not whether the appellant has identified legitimate grounds, but whether the institution is prepared to examine them.
Unless: The threshold is not legal merit but institutional willingness.

If this record—with recent binding authority, international recognition, documentary anomalies, and systematic institutional patterns—does not raise "arguable issues," then the threshold has become a mechanism for foreclosure rather than a standard for access.  The question is not whether arguable issues existed.  The question is whether the Court was willing to acknowledge them.  The record suggests it was not.  The pattern suggests it could not.

​The case law is clear in that a miscarriage of justice is satisfied by way of appearance (R v. Wolkins, R v. Khasai), and that a judge is not required to make the finding.  In the same capacity, it would be foolish to assume a casual beachgoer could not aid a drowning victim because the lifeguard was asleep, or away from his/her post.   The common law is based on common sense, and when authority is weaponized, well-meaning Citizens rightly begin asking "what-if" questions concerning themselves and their loved ones.  The courts must self-correct 100% of the time when issues like this are raised, or they cannot maintain public trust.  After three years, the record has been repeatedly brought to the attention of court administration, police, the Ombudsman, and the Attorney General.  They are aware.  I will continue reinforcing that awareness.
 

The Question of Institutional Capture.

The "arguable issue" standard exists to protect against arbitrary denial of access to justice.  It sets a low threshold deliberately—it's not "will you win?", but, "is there something to discuss?".  When that threshold becomes insurmountable despite binding authority, documentary evidence, and international recognition of threats, it ceases to function as access mechanism and becomes gatekeeping tool.
 

Michel Foucault's "institutional capture" observation, as expressed through normalized practices, is the polite academic explanation.  Other political scientists such as Dr. Colin Crouch have published similar writings.  It allows us to describe systematic dysfunction without accusing anyone of deliberate wrongdoing.  Courts cite prior decisions, comity prevents examination, institutional solidarity operates naturally, sealing prevents verification—no conspiracy required, just structural incentives producing convergent outcomes.  This framework is useful when patterns can be explained by bureaucratic inertia, path dependence, or the natural tendency of institutions to protect themselves.
 

But there comes a point where the academic language becomes a euphemism that obscures rather than illuminates.  When every threshold designed to prevent abuse is breached simultaneously, when every safeguard fails in unison, when every oversight mechanism declines in lockstep, when timing becomes too precise and coordination too complete—attributing this to "normalized practices" strains credulity past the breaking point.
 

Consider what actually occurred: Twenty-plus judicial officers across two provinces, multiple court levels, spanning three years, reached identical conclusions that systematically violated binding Supreme Court authority while producing outlier results between 40 and 89x established benchmarks.  Every single decision favored the same party.  Every procedural inflection point foreclosed examination rather than enabling it.  Every appeal was dismissed conclusorily.  Every oversight body—RCMP across multiple detachments, two provincial law societies, federal tax authorities, court administration, major media, parliamentary offices—declined to investigate documentary evidence within their respective mandates.  This was not bureaucratic drift—it was precision coordination.
 

Permanent sealing without Sherman Estate analysis—not once as isolated error, but repeatedly as pattern.  Costs certified at 9,000% above tariff without arithmetic scrutiny.  Security orders 40x benchmarks.  Discovery explicitly ordered by one judge, and systematically prevented by subsequent decisions without explanation.  Central Securities Registers showing zero shareholders versus sworn testimony claiming 70—objective documentary contradiction left unexamined.  Sealed content appearing in external posts within hours of confidential filings.  Police audio recordings showing different content than official FOIPOP summaries of the same interactions.
 

Each individual anomaly might be explainable.  The cumulative pattern is not.  When probability calculations show coincidence is mathematically impossible, when every supposed "independent" actor reaches the same conclusion despite different mandates and institutional structures, when the precision of coordination exceeds what unconscious institutional dynamics could produce—Occam's Razor demands the simpler explanation: someone was directing traffic.
 

The Foucauldian framework serves a purpose for the institution: it allows systematic compromise to be discussed in language that doesn't require acknowledging coordination.  Institutional "capture through normalized practices" sounds academic, theoretical, blameless.  It suggests correction through education and procedural reform rather than investigation and accountability.  It protects the individuals involved by attributing outcomes to structural forces beyond their control or awareness.
 

But when judges seal without Sherman Estate analysis after that framework was just established in 2021, they're not following normalized practices predating the precedent—they're ignoring a recent, clear, mandatory framework.  When they provide three-line dismissals after Vavilov revolutionized reason-giving requirements in 2019, they're not exhibiting institutional inertia—they're actively rejecting current standards.  When they certify costs 83 times comparable matters, they're not applying discretion within normal ranges—they're facilitating what can only be characterized as systematic looting.
 

This level of coordination, maintained over three years across multiple independent actors in different provinces, requires either: (A) the most statistically improbable sequence of coincidental convergent decisions in Canadian legal history, or (B) an overarching stakeholder with capacity to influence outcomes across multiple courts, jurisdictions, and oversight bodies simultaneously.
 

The evidence supports (B).  The timing correlations alone—sealed filings followed within hours by external content demonstrating awareness of confidential details—establish real-time monitoring capability.  The systematic institutional non-engagement—every oversight body declining despite documentary evidence—establishes influence extending beyond the judiciary to law enforcement, professional regulators, tax authorities, media organizations.  The behavioral evidence—February 2021 categorical reversals in decision-making consistent with neurotechnology literature—establishes capability to affect individual cognitive processes.
 

The UN Human Rights Council didn't issue warnings about "normalized institutional practices".  They warned about sophisticated technologies that can influence decision-making without awareness, about psychological operations that can coordinate responses without communication, about threats to judicial independence that operate through mechanisms leaving no conventional traces.  They warned about exactly what this record documents.
 

Who and/or what is the overarching stakeholder?  The evidence suggests state-adjacent actors, and the smoking gun is precision.  Normalized institutional practices produce fuzzy boundaries, inconsistent application, and random variation.  They don't produce synchronization measured in hours.  They don't produce universal non-engagement across structurally independent oversight bodies.  They don't produce arithmetic outliers at 83x benchmarks, maintained consistently across a dozen decisions.  They don't produce permanent sealing orders without hearings, and they don't seal court files prior to service (as was the case with S-229680 in BC).  That kind of precision requires coordination.  Coordination at this scale, across these actors, over this duration, requires capability beyond what conventional corruption could achieve.  The systematic failures aren't bugs—they're features.  The pattern isn't emergent—it's designed.  The outcomes aren't coincidental—they're directed.
 

The reason every mechanism for correction has failed is because the correction mechanisms themselves are compromised.  You cannot appeal judicial compromise to other compromised judges (R. v Curragh, p. 6).  You cannot report judicial compromise to compromised law societies. You cannot investigate institutional compromise through compromised police.  You cannot expose systematic dysfunction through compromised media.  The system becomes self-protecting not through "normalized practices" but through systematic neutralization of every accountability pathway.
 

This is why the evidence matters beyond individual case outcomes.  If an overarching stakeholder has demonstrated capacity to coordinate judicial outcomes across two provinces, neutralize every oversight mechanism, deploy psychological operations synchronized with sealed proceedings, and potentially affect decision-making through neurotechnology—then no litigant appearing before Canadian courts can trust that their proceedings are independent, their evidence will be examined, or their rights will be protected.  One compelling outlier case is all it takes.
 

The Foucauldian language about "institutional capture" allows a system to acknowledge dysfunction exists while avoiding the implications.  It frames the problem as structural rather than criminal, systemic rather than coordinated, inadvertent rather than deliberate.  This framing protects the guilty by suggesting no one is guilty—just institutions following their nature.  But when courts systematically violate binding Supreme Court authority established years earlier, when arithmetic anomalies approaching ten thousand percent inflation go unexamined, when documentary contradictions remain unresolved, when sealed content appears externally within hours, when every oversight mechanism fails simultaneously—the academic euphemisms collapse under the weight of what they're being asked to obscure.
 

The record points to a state-adjacent apparatus—one with the capacity to shape judicial outcomes across courts and jurisdictions, to monitor sealed proceedings in real or near-real time, to sideline law enforcement, professional regulators, and the press, and to sustain that pattern for three years without credible leaks.  The issue is no longer whether courts were compromised; the pattern shows they were.  The live questions are which actors had the capability and motive, and whether any accountability mechanism remains sufficiently independent to investigate.
 

Every litigant relying on judicial independence should be concerned.  If this playbook can run end-to-end once—sealing without Sherman Estate, dismissals without Vavilov-quality reasons, costs at 83× benchmarks, unresolved documentary conflicts, with no accountability—then it can run again.  The evidence does not describe institutional failure; it describes institutional capture in the very literal sense: deliberate coordination producing directed outcomes.
 

The academic language makes the situation discussable.  The evidentiary pattern makes it actionable.  The remaining test is institutional: whether any oversight body will examine what the record shows.  Thus far, none have.  If and when comprehensive documentation of coordinated interference meets the same [suppress / defer / fortify] pattern as it has again here (and throughout the past three years), it does not prove that the system is "broken".  It instead evidences a new system operating within its design parameters.