Next year will be the 800th anniversary of the Magna Carta. While the significance of this document is no longer taught in schools, we should all take a moment and recall some of the reasons for its being. And while I am no historian or legal expert (my training is in science, not law), I have learned a bit about our heritage as the Children of the Magna Carta.
One of the many reasons why this Great Charter is so important is that it ensures that the ‘King’s justice’ will be available to all the citizens, not just the select few who are rich or high born. For this purpose, the Charter establishes local courts where individual citizens can have their grievances heard and ruled on, thus truly bringing the rule of law to all of the citizenry.
I cannot stress the importance of this: it is one of the foundational principles of our civilization.
In a real sense, it establishes the governance through which individuals, regardless of their means or position in society, can seek legal redress for their grievances. In other words, in establishes the means through which every citizen can be a true equal in the eyes of the law.
Having grown up on the wrong side of the Iron Curtain, I have lived in a society where all kinds of laws to protect human rights exist, but there are no means in the system for ordinary citizens to attain them. The necessary result of this kind of system is tyranny: if you have no means of legally seeking a remedy to wrongs, the laws that assure you of your rights are meaningless.
This is why, in Canada (as in other Magna Carta descended societies), there is a system of governance in place for simple citizens who are unable to afford fancy lawyers to seek justice through our courts. And THAT is how all citizens are equals before the law.
And so it is – in theory.
In reality, it has become exceedingly difficult and prohibitively expensive for one of us, ‘the unwashed masses’, those of us not living privileged lives, to seek legal redress of wrongs through our legal system, be it criminal or civil. Lawyers, as well as court costs and all the accompanying bits (transcripts necessary to ‘move things forward’ and so on) are not cheap.
Like, really, really not cheap.
In other words, the financial burden severely limits regular citizens’ access to legal remedies for wrongs suffered.
So, what is a Concerned Citizen (CC) to do when there is an appearance (real or imagined) collusion between various politicians and, what’s worse, between different levels of government which results in very real costs, exerted from said Concerned Citizen through increasing his tax burden?
Well, this particular CC has decided to try to reduce his legal costs while seeking justice for the damage of unnecessarily increased taxation by trying to bring lawsuits against the politicians and/or bureaucrats in the centre of this perceived financial wrongdoing by self-representing. He is, after all, the founding member of the Municipal Citizens Action Group – so he takes the frivolous waste of taxpayer dollars very seriously and is driven to bring us all justice.
And what a bumpy road it’s been!
You know that saying, ‘you can’t fight City Hall’?
Well, CC is trying to fight not one, but two City Halls and a Provincial Government to boot!
For non-Ontario residents, this is probably a new issue – because lamestream media barely covers it. But, in a nutshell, here is the crux of the matter.
Ontario government passed a law permitting various municipal transportation authorities (run at an ‘arm’s length’ by the municipal governments) to use the open bidding process to choose the best advanced electronic payment system for the collection of public transportation fares. The municipalities, when they decided to go electronic, started this competitive bidding process and, in many cases, chose an inexpensive commercially available system already proven to be reliable in many municipalities, including Gatineau, just North of the Ottawa River from the City of Ottawa.
So far so good, right?
Not so fast. The Ontario Provincial Government had, in its wisdom, decided that two of the largest system, the Toronto and Ottawa ones were – and this is where things get fuzzy – mysteriously moved to abandon the bidding/contract process altogether and, instead, purchase a Metrolinx Presto system somehow backed (or something) by the Ontario Provincial government.
What is more, the Presto system was not ‘commercially available, off the shelf’ system that had been tried and proven effective: oh no, that would be too easy! Instead, Metrolinx began to develop a whole new, ‘custom’ system with a ‘custom price-tag’.
A very, very BIG ‘custom pricetag’!
Oh, and did I mention the system sucks?
In other words, what was predicted all along by people when the competitive bidding process was abandoned.
Now, I do not know this to be true, but I have heard a rumour or two that some Liberal insiders, friends of the Provincial government bureaucrats and politicians, have made a pretty little profit on this whole Metrolinx/Presto venture.
And there were legitimate reports at the time, from mainstream media, of municipal politicians claiming that the only reason the cities of Ottawa and Toronto have gone with this overpriced, untested and underperforming system is because if they had not done so, the Provincial government would have withheld funds due to the cities from gas taxes (for road maintenance) and for public transit expansion.
Interestingly enough, the former Provincial Minister of Municipal Affairs (through whose office this ‘threat’ would presumably have been channeled) had since become the Mayor of Ottawa – and, all of a sudden, nobody in Ottawa, bureaucrat or councilman alike, remembers telling the media that there ever was any threat.
And, the former Provincial Minister of Transportation (from whose office this ‘threat’ would presumably have originated or been channeled) had since become the Premier of Ontario – the head honcho herself!
And not only had the previous bidding process been abandoned by the Toronto and Ottawa Transportation bureaucracies in favour of the overpriced and under-performing Metrolinx/Presto system, they have also both failed to enforce hundreds of thousands of dollars in penalties permitted under the contract.
Money that had to be made up by squeezing the taxpayers even more…
This is where things begin to get very, very interesting.
CC was trying to figure out some way to get to the bottom of this whole mess and reparation of financial damages for the taxpayer. But, where to start?
One of the things he tried doing was to sue Kathleen Wynne, the now Premier of Ontario.
In Ontario, a private citizen may lay criminal charges against someone else and pursue a private prosecution in the criminal justice system. That is still leftover from the Magna Carta days – even if the costs are so prohibitive, CC had to represent himself, despite not being trained in the law.
However, at their discretion, The Crown may, at any point in time, take over a private citizen’s criminal prosecution and pursue it as it wishes. Or not at all.
This has been done in the past when citizens, frustrated with race-based policing, tried to get justice in face of Police so cowed by the Liberal government that they would not enforce the law if the victims were of the ‘wrong’ race. The pattern – quite invariably – was to let the citizens spend as much money on the private prosecution as possible, then take it over and immediately dismiss all charges.
This case was no different: when CC was heavily invested in private criminal prosecution of Kathleen Wynne, the Ontario Premier, The Crown took over the prosecution and moved to have all charges dismissed.
But, this was different: the top guy governing the public prosecutor’s office in Ontario serves 100% at the pleasure of the Premier of Ontario. CC appealed the dismissal of the charges, arguing that since the head of public prosecution is employed by the Premier, dismissing charges against Kathleen Wynne who happens to be Premier is a bit of a conflict of interest and that instead of dismissing these charges.
Slam dunk – right?
After all, even the appearance of a conflict of interest is a definite threat to our constitutional democracy, right?
Well, I was in court that day, watching the judge jump through loops of logic so convoluted that she ended up ruling that had CC brought an action against Kathleen Wynne – the Minister and Premier, he would be correct that The Crown was in a conflict of interest to drop the charges. But, he had brought the charges against Kathleen Wynne, that means the private person of Kathleen Wynne, and since her actions in this were as a Minister/Premier, not a private person, there was no conflict of interest…
At every step of the way, CC has been thwarted by obfuscation and, what in my never-humble-opinion constitutes miscarriage of justice.
But, CC is tenacious.
At every step, when he was thwarted, he pushed the judge in question to tell him how else to approach the issue so that he could get an honest ruling on the true merit of the core issue. In fact, he pushed so hard that, at times, I and his other supporters spectating were afraid he would be disciplined for trying so hard!
And, whenever thwarted, CC would file a new suit based on the direction of the previous judge.
And the new suit would come up and the judge would, invariably, demand very costly transcripts of all the cases that were filed before – yet these would suit to obfuscate the issue and CC would find himself arguing the previous, already lost case, instead of the new one. And if he resisted introducing the transcripts, wanting the suit to be judged on the new grounds, he would be told that no decision can be reached without the the transcripts, even though he kept insisting this was a brand new case that ought not be tainted…
This last Friday was no different.
The case was presided over by Justice Charles Hackland, known for presiding over high-profile cases – such as temporarily removing former Toronto Mayor Rob Ford from office on conflict of interest charges. (Of course, Rob Ford was a Conservative, and Justice Charles Hackland’s ruling was later reversed by another impartial judge…)
The very start was an omen of things to come…
Usually, it is up to the prosecution to present their case to the judge first. As such, CC stood up and was ready to present his case when, in the most patronizing tone ever, the judge asked him to sit down, saying that he’d like to hear the intro to the case from the defense because, you know, lawyers speak a common language and so, non-lawyer CC should just shut up and listen to his betters.
At least, that is how I heard it!
It was with this opening sentence of the judge that I thought CC’s case was lost.
I have, over my career as a blogger, been to a few hearings, both before the provincial and federal judges. In some cases, I saw people represented by lawyers, in others, I saw not-rich people self-represented. In all instances of self-representation, the judges made sure to make the law as accessible to the citizens as possible, some of them even citing that it is their duty to make sure regular people have as ready an access to the courts as people who can afford expensive lawyers and that they were both willing and legally obligated to make this happen.
Never before have I encountered a case where the judge would be, from the onset, contemptuous of a private citizen’s effort to get justice, even though they cannot afford a $500/hour lawyer.
Perhaps I am misreading this: after all, I am an Aspie and nuances of human behaviour often escape me. But, from the onset, I thought the judge was actively annoyed that a non-lawyer would dare to argue a case before him.
In this part of the overall effors, CC was trying to sue the City of Ottawa for not acting on the clauses in their contract with Metrolinx/Presto to collect penalties in non-delivery/non-performance of their system. From what I understood, the unnecessary cost to the taxpayer of this whole fiasco topped half-a-billion dollars…though I have no idea of the breakdown of all this, since I did not have the court documents in front of me.
Still, half-a-billion dollars here, half-a-billion dollars there, and, pretty soon, you’re talking real money!
Predictably, the City of Ottawa lawyer poo-poohed the whole issue…
When CC was finally allowed to speak, he was no longer permitted to present the issue as a whole. Instead, he was subjected to questions from the judge like: “It seems that the City of Ottawa may have some claim, but have failed to act on it. What gives YOU any standing to file a lawsuit on their behalf?”
This, necessarily, put CC on the defensive…and he did his best to defend his position.
Still, being on the defensive and explaining his legal standing in this, he had no opportunity to present his core issue. The judge got more and more alienated from him as the morning wore on. The judge broke with the statement that he did not really comprehend why CC was there and that, following the break, he was to explain why he ought to have a standing interest in this matter.
During the morning break, CC and his loyal band of supporters (including me) talked over the morning’s events and worried about how to get the core message across. Being my not-so-shy self, I tried very hard to help come up with the proper explanation for why CC had a valid interest in this case.
OK, I was a bit pushy. That’s my nature!!!
In the end, when the case resumed after the morning break and some administrative stuff got out of the way, CC asked the judge to permit me to explain the core of his case.
Amused, the judge agreed!
And so it came that I got to actually talk in a case I was covering, as a blogger.
I stated my name for the court record and explained that I was a blogger who was following this case – and that I would be glad to help the court understand CC’s position because since I have been writing about his quest, I might be able to help.
OK – this was very adrenalin-producing.
I do not recall a single thing I said.
Yet, I do recall trying to explain the situation as I have in the words above, though condensed to a few short sentences.
After a short 3-4 minutes, the judge asked me if I knew whether CC had ever sought advice from a lawyer. I replied truthfully that I had no idea, I just wrote about the case and had never met CC outside the courthouse.
Still, I felt that question was rather ominous – as if only a legal expert were permitted to seek justice….it left me very pessimistic, regardless of what was to come.
Following my brief little speech, CC did an awesome job presenting his position. In my mind, he truly made his case. He explained that he submitted evidence that a Dianne Deans, the head of the City of Ottawa Transportation Committee, had been quoted in the newspapers saying that the Province (and these are my paraphrasing, not her exact words) had threatened the City of Ottawa with withholding transfer payments to the City if they did not go with Metrolinx/Presto and/or enforced the penalties for late/not working systems. I may have misunderstood his argument, but, to the best of my highly flawed recollection, this was the central point of his argument.
When he had asked The City about is, he claimed (I think) that Dianne Deans claimed never to have made such a statement to the media. She replied in an email – not a sworn statement which the CC had sought because a sworn statement was subject to cross examination, while a simple email was not.
The City lawyer argued that the email, which blamed a bureaucrat for the leak, was answer enough.
CC pointed out that he demanded to know, from the City of Ottawa, if a bureaucrat was the actual source of the quote (rather than the Transportation Chair, Dianne Deans), that The City was obligated to tell him the identity of that bureaucrat (Norwich ruling).
The City lawyer claimed this was frivolous and unnecessary – and since the Province was the source of all this unpleasantness, CC knew who the culprit was and the Norwich thingie did not apply.
The judge reserved his ruling.
Yes, I do think this is a very meritorious case.
No, I do not think justice will be done.
I hope to be proven wrong!