113. Prelude to Case Management

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Scrutinizing the FACTS!

Until I received below as a PDF complaint, I did not know about Case Management. Having filed my Claim on December 30, 2010, I began email exchange with Defense Counsel Mr. MacHaalani in March, 2010.

As verified below, I had filed and served my Rule 35 A Written Questions  on May 19, 2011.
By law a response must be served within a 2 week period. Mr. MacHaalani had indicated that for "technical reasons" he had not been able to serve his clients with my Written Questions until May 24th. Asking for an extension we exchanged a number of emails, with my final allowance of June 21, 2011.  This being more than a month from serving. It was not enough.

I was then emailed below PDF. The next day, June 2, I telephoned Case Management Office and spoke with Miss Estabrooks who confirmed her office did NOT RECEIVE ANY FAX from Mr. MacHaani!

I have retyped its contents:
=====================================================

VIA FACSIMILE ONLY AT Tel No: xxxxx

June 1, 2011

Case Management Centre, Room 5022

161 Elgin Street, 5th Floor

Ottawa, Ontario

K2P 2K1

Attention: Kathy Estabrooks:

Dear Ms. Estabrooks:

re: Evert Jan Steen v. (Defense numbered Company)

Court File No: 10-49776

Our File No: (etc)

We are the solicitor for the Defendant (Plaintiff by Counterclaim) in the above-noted action. The Plaintiff (Defendant by Counterclaim) is self-represented, and is a resident of Hornby Island, British Columbia. 

Since the filing of the Statement of Claim, the self-representing Plaintiff, being emotionally involved in the case at bar, has made the management of the case extremely difficult.

On or about May 19, 2011, the self represented Plaintiff served our client with Form 35A Questions on Written Examination for Discovery. The foregoing comprised about 111 questions where many questions contained several sub-questions.

Under Rule 35.02 (1), the Defendant is to answer all written questions within 15 days after service. Due to the excessive number thereof, the Defendant is utterly unable to comply with same. As such, we requested the self-representing Plaintiff indulgence into providing time extension until the end of June.

It is apparent that the self-represented Plaintiff is intentionally holding matters strictly legal. 

The Defendant was only provided with 4 days grace period, thus until June 6, 2011, which is completely insufficient in the circumstances. 

It appears that the self represented Plaintiff considers the legal system as "doing business". Thus, he agreed to provide limited extension only if the Defendant compensate him at a $1000.00 per calendar week, payable in advance, commencing on June 6, 2011. The said proposal shall only subsist until June 27, 2011, being the self-represented Plaintiff self-imposed final due date. Such proposal is absolutely unqualified, unreasonable and unacceptable.

In order to avoid future delays, increasing legal costs to the Defendant, as well as, more particularly, to reduce Court intervention, we are requesting a Case Conference, pursuant to 77.08, for the purpose of establishing a timetable for the proceeding.

We are prepared to attend the conference personally. Presumably, the self represented Plaintiff would be available by telephone.

Your immediate reply to this correspondence would be appreciated or, if you wish, please contact the writer by telephone so that we may discuss this matter in more detail. 

We look forward to hearing from you at your earliest convenience.

Yours very truly,

(Company Name)

Roy Machaalani 

c.c. Evert Jan Steen - Plaintiff and Defendant by Counterclaim (self-represented)

====================================================

Other than it is made clear the Plaintiff is Self-Representing (x9), a number of factors urge consideration, and require clarification, if the law is to be just:

1) I called the Case Management office on June 2, introduced myself, and the case. I then asked Ms. Estabrooks if she had received a FAX from Mr. Machaalani on June 1, to which I had received an
emailed PDF c.c.  Miss Estabrooks informed me "NO", she had not.

2) Considering the content of the purported FAX, it is addressed to Ms. Estabrooks. (i.e. NOT the Master) Surely this Counsel knew Ms. Estabrooks as secretary in the office, was not the person
who could supply him any legal directives on the subject.

3) Mr. Machaalani indicates several telling facts. 

"We are the solicitor for the Defendant (Plaintiff by Counterclaim)" 

Mr. Machaalani had been emailing this Appellant/ Plaintiff on company letterhead since March.
At all times did he make clear he was representing "his client." 

4) Only after I began probing his legitimate role, did he finally, on July 21, 2011, go on file and supplied me with a 'Notice of Appointment of Lawyer.'

5) Mr. Machaalani further indicates he has been in receipt of my Written Questions since May 19, 2011. That by law the defendant is to supply answers within 15 days of receipt.

6) He doesn't admit emailing me, it took him 5 days to supply 'his client' with the questions.

7) He mentions "increasing legal costs." It later became evident, his client had claim insurance.

8) He then mentions: "to reduce Court intervention we are requesting a Case Conference."

- What kind of Court intervention was he hinting at?

- Requesting a Case Conference from Case Management, after having informed me:
"Case Management is archaic, my client does not want it." 

 What exactly is going on here?

The chess game had begun. Although delivery receipt had been acknowledged,
I did not receive answers to my questions for some 5 MONTHS (October 30, 2011).

Regardless the ruse FAX, I began looking in to Case Management, thinking it would clean up our wanting communications. 

With clear indications the case was off-track, I applied for Case Management. But my application for Case Management ran into some never explained 'technical' problems. Was there a cover up?

I then received what became Defense's first MOTION. Set for September 13, 2011, the following was an exchange between MacHaalani and my Counsel in Ottawa I had especially retained for the Motion hearing, since traveling there was out of the question at that stage.
=====================================================

Machaalani to my Ottawa Counsel:

"I just got instructions and confirmation from my client. Tentatively, my client is ready to adjourn the motion sine die, if Mr. Steen accepts the following conditions that he:

- Withdraws any motion to have the action managed by the Case Management office;
- Accepts the attached discovery plan as discussed and agreed tentatively by the parties;
- Agrees to have mandatory mediation no later by the end of the year 2011 or another time agreed upon by both parties;
- Agrees as to legal costs issue incurred for educating him and bringing this motion to be reserved to the trial judge who shall hear this matter on the merits.

Please be advised that the day of acceptance of the Discovery Plan shall be the day of the motion, being September 13, 2011.

I kindly ask you to prepare the consent order for execution.
Signed/ MacHaalani
=====================================================

The September 13th, 2011, Motion Hearing was my introduction to Master Roger.

Accepting all conditions (as per above) I was informed by my Ottawa Counsel that, at the Hearing, Master Roger had stated the following:
"I am of the view that this is an appropriate candidate for case management and, but for the provision in the order dealing with it specifically, I would have made that order." 
(Made Bold by Blogger)

While compiling evidence for my 'Appeal Argument,' I will pose the following:

Based on the Master's views:

1) WHY did the Master not ask some pertinent questions during the September 13 Defense Motion? 

2) If he had he done so, a number of disturbing factors would have come to light.

a) The fact Defense had acknowledged possession of my Written Questions since May 19, 2011 (some 4 months by September 13th). It is my argument, the Master erred for not enquiring about this crucial, and legally binding procedure.
b) The purported FAX I had supplied them a copy of, after my phone call enquiring about it.
c) With my previous efforts to seek Case Management, WHY did the Master not smell a rat and enquire WHY the Plaintiff was requesting to "drop the request?"

112. The Variables of 'JURISDICTION.'

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The way SILENCE, or a 'snicker' response, can imply various meaning, the CONCEPT of the word 'Jurisdiction' holds its own bag of tricks. Let me walk through how I have learned to understand this coloured beast.

jurisdiction |ˌjo͝orisˈdikSHən|
nounthe official power to make legal decisions and judgments: federal courts had no jurisdiction over the case | the District of Columbia was placed under the jurisdiction of Congress.• the extent of the power to make legal decisions and judgments: the claim will be within the jurisdiction of the industrial tribunal.• a system of law courts; a judicature: in some jurisdictions there is a mandatory death sentence for murder.• the territory or sphere of activity over which the legal authority of a court or other institution extends: several different tax jurisdictions.================================================
1) The last * where 'Jurisdiction' is indicated as "territory," was initially implemented when my case was dismissed in BC. The Judge sited: "Lack of Jurisdiction." The reason being Defensc were domiciled in Ottawa, Ontario, and as such had no 'tangible presence' in BC; like offices, or similar representation. The alternate "OR" clause for filing a claim requiring to show that, by FACT, Defence had VERY MUCH a presence in BC, based on the fact they were soliciting business from ME, culminating in a signed CONTRACT, with regular contact, and PAYMENT of $43,000.2) Then there is Rule 21================================================RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL WHERE AVAILABLE

To Any Party on a Question of Law

21.01  (1)  A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).

(2)  No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b). R.R.O. 1990, Reg. 194, r. 21.01 (2).

To Defendant

(3)  A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.  

======================================================

Digesting above: when Defense were also self-representing (January 17, 2012 - May 06, 2013), the case had been ordered in to Case Management by the 'Junior' Master. I say 'Junior' here, in case I might ever be held responsible for having defamed the person.)

Defense filed a Motion at that time in which they sited (3) (d) > (above)  Asking for a dismissal of the case, based on their opinion the Action (my claim) was "Frivolous, Vexatious or (was an) Abuse of Process." 

- Remember, this Defense had offered us the "FRIVOLOUS" sum of some $30,000 to settle out of court earlier!

In a follow up Post I will walk through the history of our Case Management Conferences with both Masters. I will build my 'ARGUMENT.' I will set out to prove a number of legal anomalies, including how both Masters ERRED drastically on a number of counts. 

Back to "JURISDICTION."  (IN BLACK) 

The Junior Master, as I will quote him, had indicated he did not have "JURISDICTION" to 'HEAR' the above Rule. That only a JUDGE could hear it. He then ADVISED Defence to hire Counsel to properly interpret same (which they ultimately did in May, 2013.   

  

Jurisdiction plays a number of additional roles I am gradually becoming aware of:

- A Master handling or orchestrating a case in Case Management apparently has NO JURISDICTION to discuss any of the pleadings. ('Pleadings' being the nitty-gritty details in the Claim and Statement of Defense of the case). They are there to guide the proceedings expediently to Trial. OR, if at all possible, help the parties come to an out-of-court settlement.   

(Herein lies my ARGUMENT) 

With the Appeal set for September 10,  2 PM Ottawa, 'Jurisdiction' again crops up. 

I am informed the Appeal Judge can/may ONLY deal with what has occurred!

He/ She may ONLY discuss/ review the matters in proceedings that are now history.  

He/ She does NOT HAVE JURISDICTION  to GET TO THE HEART OF THE MATTER! 

In other words:

- The Legal system is so set up that if a party manages to drag out P..R..O..C..E..E..D..I..N..G..S by filing Motions, Applications, or e-Discovery requirement demands necessitating more Questions, that arose from Answers to previous Questions, that were Answers to earlier Questions etc...etc...  (you get my gist) AND the MASTER ALLOWS IT ??? WITHOUT ASKING WHAT IS GOING ON??? 

THEN, I SAY: There is something askew here, OR I am COMPLETELY MAD!  

Remember, on March 25, 2013, Defense files a:

  "REQUISITION TO SCHEDULE APPEARANCE LONG MOTION DATES"   

How do you like them apples!

This is to be a new MOTION with an estimated 3 hour duration!

AND, the MASTER has TOTAL JURISDICTION TO HEAR SAME! 

 Let's get to the BOTTOM of this >  JURISDICTIONALLY speaking.

     I can not repeat too often: "There are MAJOR POT HOLES IN THIS PAVEMENT!"

and, with aid from others with more clout and access, I aim to do my outmost best to help leave behind a less hypocritical world!  

111. The Principles of Sedona

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Under the heading 'LITIGATION,' the following para is from an article LEXOLOGY.COM brought to my attention this morning. 

"Join the dialogue Working Group 7 Meeting to update e-discovery principles.  
Have Your Say at the Sedona Conference ...

As a member of the Steering Committee, I am pleased to announce that we are holding a Working Group Meeting in Toronto on August 21, focused primarily on updating the Sedona Canada Principles for publication shortly thereafter. The ongoing goal is to ensure that they represent the consensus guidance of experts in the field representing all of the different types of stakeholders in Canadian litigation, including judges, government officials, in-house counsel from small and large corporations, plaintiff litigators, and defense litigators.

I hope you will consider joining the dialogue for this important process, and help us in "moving the law forward in a reasoned and just way." "

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Please, reader, do NOT mistake me. I am the Blogger responding to above by email:

Hello to all concerned at the Sedona Principles:

My BACKGROUND:

I am a 75 year old Canadian Citizen domiciled on an idyllic Gulf Island in BC's Georgia Straight. Mostly retired, I exist on a minimum pension. This forced me to become a Self-Representing Litigant in a claim I initially filed in 2010 in a BC Small Claims Court. The claim was based on contractual non-compliance against an Ottawa domiciled web-developer.

 Madame Justice Justine Saunders dismissed the claim for "Lack of Jurisdiction,"*not acknowledging the relevant secondary 'OR' clause with its pertinent business connectives with Ottawa. (Madame Justice allowed me an appeal in Supreme Court, should I wish to do so). Defense however filed an application, stating a technicality: 'One can file an appeal after a Trial, not a Hearing.' The claim's dismissal was ordered during a 'Hearing' in Small Claims Court. I ultimately abandoned my appeal, filing in Superior Court in Ottawa. The nightmare only expanded.      

* Irony is that had I filed my claim in Ontario, 

RULE 6 FORUM AND JURISDICTION:

Place of Commencement and Trial 
6.01 (1) An action shall be commenced,
(a) in the territorial division,
   (i) in which the cause of action arose, or

(the Judge in Ontario could more legitimately have dismissed the claim for "Lack of Jurisdiction." 

The default Rule for filing is reversed in Ontario.

=======================================

What SHOULD have been a concise, contract relating, factual based, clearly focused, BRIEF legal affair, is now in its 4th year!  

Including the noble intentions of the Sedona Principles, I gleaned information by Googling Government Online legal files. I studied the Rules of Civil Procedure, and its 2010 upgrades. (below) 

DISCOVERY

The reforms to the discovery rules include:

1. Scope of Discovery

The scope of discovery has been narrowed in the new civil rules. The "semblance of relevance" test has been replaced with a stricter test of "relevance". The phrase "relating to any matter in issue" has been changed to "relevant to any matter in issue" (see rules 30, 31 and 76).

This reform provides a clear signal to the bar that restraint should be exercised in the discovery process. It strengthens the objective that discovery be conducted with due regard to cost and efficiency. The effects of this reform will be felt by those who abuse the discovery process or engage in areas of inquiry that could not reasonably be considered necessary.

Having suffered the perturbing BC experience, in which clearly the judge erred on two MAJOR counts: Jurisdiction + Appeal allowance, I quickly learned that meaningful text and Rules, with well-timed Motions and fine rhetoric, can quickly be buried, or rephrased; that over time, focus can shift, and, like good chess, black can reposition, gain the upper-hand, and become the 'Moving Party.' The best Defense is a strong OFFENSE!  

This brings me to cut to the quick in my contact with you. While I continue my legal nightmare with an intended drive across Canada to attend a September 10, 2PM Divisional Court Appeal, I would much care to "join you in your dialogue in this important process." 

- " THE IMPLIED TERM OF GOOD FAITH AND FAIR DEALING" (The Canadian Bar Review)
- " The Principles of Proportionality in Discovery..." (As in the THE NEW RULE OF DISCOVERY)  

Discovery should initially focus on those sources of information relevant to allegations, defences, and issues that are supported by material facts. - See more at: http://www.rmc-agr.com/the-new-rule-of-discovery-proportionality/#sthash.580yxDcV.dpuf

Discovery should initially focus on those sources of information relevant to allegations, defences, and issues that are supported by material facts. - See more at: http://www.rmc-agr.com/the-new-rule-of-discovery-proportionality/#sthash.580yxDcV.dpuf

"Discovery should initially focus on those sources of information relevant to allegations, defences, and issues that are supported by material facts.

* Requests for further production should be reasonably specific and targeted.

The burden, cost, and delay of further production should be balanced against the probability of yielding unique information that is valuable to the determination of the issues.

Rules of civil procedure are designed to serve and effect justice. They do not define it. Fairness and justice require that there be a sense of balance and proportionality. There are at least three imperatives in the justice system. The imperative of fairness has to be balanced against considerations of cost and delay in proportion to the complexity of the action and the importance of the issues in dispute. This balance should be the touchstone if the court is called upon to exercise its discretion in expanding or restricting discovery rights."

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

I have encountered none of the above; all has been to the contrary. As a Self-Representing Litigant I am clearly an alien in a restricted house. Like a pesky gnat I must be quashed.

The world at large is in chaos! Corruption rules at the highest levels. My Case is a prime example of legal misappropriation; I feel I have ample PROOF!

Should you be truly serious and DETERMINED TO MAKE A POSITIVE DIFFERENCE TO THE LEGAL SYSTEM, and force implementation of all you speak of, I am interested to join you in that vital process. 

So far, I present you with my CanLii CaseLaw: #10-49776 and my Blog: 

Http://about-justice.blogspot.com/ or, Google: The Lonely Road to Justice.

That I may find justice in that one Pillar of Society's assessment on September 10, 2 PM, in Ottawa's Divisional Superior Court. 

I look forward to your response,

Sincerely,

Jan Steen

PS: I have uploaded the above as Post 111 on my Blog

110. The Elusive Truth called 'LAW!'

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Now you see it - applied - then you don't. I copy the following text from LEXOLOGY today. It proves that all is SUBJECTIVE! Who is residing in court that day? Who knows who? What becomes more important 'under the circumstances?' Will the Rules RULE, or be re-interpreted?

I argued EXACTLY the following in the BC Court in 2010. "Google had a real and substantial connection with B.C...etc." Substitute 'Web-Developer's Name' for "Google."
=====================================================

".....Google responded that the B.C. Court does not have jurisdiction over it because it is not present in British Columbia, and because the application for an injunction does not relate to Google doing or refraining from doing anything in either British Columbia or Canada. Google argued that even if the Court did have jurisdiction, the order sought should not be made: (i) because it would amount to a worldwide order that could not be enforced; and (ii) because it would constitute an unwarranted intrusion into Google’s lawful business activities as a search engine.

The case raises two interesting questions: (i) Does the B.C. Court have territorial competence over a worldwide internet search provider?; and (ii) Should Google be ordered not to generate and show search results that provide hyperlinks to the Datalink websites which advertise and sell infringing products?

Jurisdiction

The B.C. Court decided it had the power to grant injunction against Google since it considered that Google had a real and substantial connection with B.C. and was within the Court’s territorial jurisdiction. While advertising in a jurisdiction alone is generally not sufficient to grant territorial competence, Google is not advertising its own business, but rather going beyond by engaging with customers and providing them with user-specific, non-Google brand advertising. Additionally, Google sells ad space to B.C. businesses and had previously sold ad space to the defendants, and as result, was carrying on business in B.C.

Google as a facilitator of the defendant

Foreign “passive” websites have traditionally been off-limits for Canadian courts. However, the B.C. judge held that Google was an active not passive participant given Google’s customized search results based, in part, on Google’s past experience with that searcher.

The B.C. judge decided that although Google was an innocent bystander, it was unwittingly facilitating the defendants’ ongoing breaches of the Court’s orders. Moreover, there was no other practical way for the Datalink websites’ sales to be stopped, and no other way to remove those websites from Google’s search results.

Implications of decision on brand owners

It remains to be seen whether this decision remains entirely fact-specific, or has far reaching implications in respect of future court orders in Canada. Google has indicated that it will appeal the decision......"

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In my case factual proof of involvement went FAR BEYOND mere rhetoric of being "an innocent bystander." A signed Contract with set Completion Date; a total of $43,000 paid on demand after "Phasal Completions." Almost daily E-mail contact and input by Client. etc/etc. 

The more I glean, the more I recognize the fickle fate called LAW! 

'CIRCUMSTANCES' NOT 'FACTS' control the outcome! 

Welcome to 'Reality.' 

109. The Rule of Law - A most elusive Concept!

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The above header is part of a legal firms opening statement. My experience continues to confirm that 
NOTHING makes sense, and ALL is a crap-shoot. 

Below 10) + 11) are from Post 104. At this stage, the chances of being appointed a scrupulous judge with her/his own conscientious agenda are extremely slim. Too much lies at stake here. To acknowledge that Rules and Procedure were not adhered to, would hurt those who were in charge. Easier to let me go, on a technicality, then wag a back-room finger if still required.  

"10) That BASED ON THE RELEVANT FACTS - UNDER THE CIRCUMSTANCES - the Self-Representing Litigant from British Columbia was neither treated to proportionality, fairness, or the strict adherence of the Rules. In addition to the number of legal discrepancies overlooked, DUE PROCESS did NOT take place."

Below 11). Although it would show indeed some hope - that not all is 'effected'  - it would seem too much to ask for "in the circumstances," especially in a case with a Self-Representing Litigant.

"11) As such, the Judge, in her/his wisdom and integrity, unswayed by any potential urge to give in to any possible Jurisdictionally favorable slanting, or 'semblance of relevance' - under the circumstances -  by taking ALL FACTORS IN TO CONSIDERATION, while upholding the very essence of their office as Pillars of our society - in the "CIRCUMSTANCES"- acknowledges sufficient questionable discrepancies occurred and were committed."

Next Post will begin with 'The Set Up' of the Masters. 

108. Our PILLAR of Society's ETHICS

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As I work to construct my ARGUMENT, building on a background of 'givens,' or at least 'ASSUMPTIONS' certain 'givens' lie at the base of my Argument, I again QUOTE the following:

"Principles of Judicial Office

1.  The Justices of the Peace in Court

1.1 Justices of the peace must be impartial and objective in the discharge of their judicial duties.

Commentaries:
Justices of the peace should not be influenced by partisan interests, public pressure or fear of criticism.

Justices of the peace should maintain their objectivity and shall not, by words or conduct, manifest favour, bias or prejudice towards any party or interest.

1.2 Justices of the peace have a duty to follow the law.

Commentaries:
Justices of the peace have a duty to apply the relevant law to the facts and circumstances of the cases before the court and to render justice within the framework of the law.

1.3 Justices of the peace will endeavour to maintain order and decorum in court.

Commentaries:
Justices of the peace must strive to be patient, dignified and courteous in performing the duties of judicial office and shall carry out their role with integrity, appropriate firmness and honour.

2. The Justices of the Peace and the Court

2.1 Justices of the peace should approach their judicial duties in a spirit of collegiality, cooperation and mutual assistance.

2.2 Justices of the peace should conduct court business with due diligence and dispose of all matters before them promptly and efficiently having regard, at all times, to the interests of justice and the rights of the parties before the court.

2.3 Reasons for judgment should be delivered in a timely manner.

2.4 Justices of the peace have a duty to maintain their professional competence in the law.

Commentaries:
Justices of the peace should attend and participate in continuing legal and general education programs.

2.5 The primary responsibility of justices of the peace is the discharge of their judicial duties. "

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In following posts I will venture - by quoting text proof of fact - to walk through several years of Discovery, questioning Court Officers allowances and expressions. By comparing Rules, Ethics, and actual outcome, using example, I will question whether matters by behaviour, showed in fact - proportionality, unbiased fairness, and due process.

107. The Role of The Attorney General

Below is quoted from Ontario online Government Text. This Blogger has emboldened certain text.

Roles and Responsibilities of the Attorney General

• The Attorney General has a unique role to play as a Minister.

One part of the Attorney General's role is that of a Cabinet Minister.
In this capacity the Minister is responsible for representing the interests
and perspectives of the Ministry at Cabinet, while simultaneously
representing the interests and perspectives of Cabinet and
consequently the Government to the Ministry and the Ministry's
communities of interest.

The Attorney General is the chief law officer of the Executive Council.
The responsibilities stemming from this role are unlike those of any other
Cabinet member. The role has been referred to as "judicial-like" and as
the "guardian of the public interest".

Much has been written on the subject of ministerial responsibilities and
the unique role of the Attorney General.

There are various components of the Attorney General's role. The Attorney
General has unique responsibilities to the Crown, the courts, the Legislature
and the executive branch of government. While there are different emphases
and nuances attached to these there is a general theme throughout all the
various aspects of the Attorney General's responsibilities that the office
has a constitutional and traditional responsibility beyond that of a political minister.

The statutory responsibilities of the office are found in section 5 of the Ministry of the Attorney
General Act. Section 5 states:
The Attorney General,
(a) is the Law Officer of the Executive Council;
(b) shall see that the administration of public affairs is in accordance with the law;
(c) shall superintend all matters connected with the administration of justice in Ontario;
(d) shall perform the duties and have the powers that belong to the Attorney General and
Solicitor General of England by law and usage, so far as those powers and duties are
applicable to Ontario, and also shall perform the duties and powers that, until the
Constitution Act, 1867 came into effect, belonged to the offices of the Attorney General
and Solicitor General in the provinces of Canada and Upper Canada and which, under
the provisions of that Act, are within the scope of the powers of the Legislature;
(e) shall advise the Government upon all matters of law connected with legislative enactments
and upon all matters of law referred to him or her by the Government;
(f) shall advise the Government upon all matters of a legislative nature
and superintend all Government measures of a legislative nature;
(g) shall advise the heads of ministries and agencies of Government upon all matters of law
connected with such ministries and agencies;
(h) shall conduct and regulate all litigation for and against the Crown or any ministry or
agency of government in respect of any subject within the authority or jurisdiction of the
Legislature;
(i) shall superintend all matters connected with judicial offices;
(j) shall perform such other functions as are assigned to him or her by the Legislature or by
the Lieutenant Governor in Council. "

What follows is an overview of the various components of the Attorney General's roles and
responsibilities, primarily as outlined in the Act.

Chief Law Officer of the Executive Council (s. 5(a))

The role of chief law officer might be referred to as the Attorney General's overall responsibility
as the independent legal advisor to the Cabinet - and some have even suggested that the role
possibly extends to the Legislature as well. The importance of the independence of the role
is fundamental to the position and well established in common law, statutes and tradition.

As chief law officer, the Attorney General has a special responsibility to be the guardian of that
most elusive concept - the rule of law. The rule of law is a well established legal principle,
but hard to easily define. It is the rule of law that protects individuals, and society as a whole,
from arbitrary measures and safeguards personal liberties.

The Attorney General has a special role to play in advising Cabinet to ensure the rule of law
is maintained and that Cabinet actions are legally and constitutionally valid.

In providing such advice it is important to keep in mind the distinction between the Attorney
General's policy advice and preference and the legal advice being presented to Cabinet.
The Attorney General's legal advice or constitutional advice should not be lightly disregarded.
The Attorney General's policy advice has the same weight as that of other ministers.

Criminal prosecutions (s.5(d))

One of the most publicly scrutinized aspects of the Attorney General's role is the responsibility
for criminal prosecutions encompassed in section 5 (d) and s. 92 of the Constitution Act, 1867.
Section 92 gives the provinces authority to legislate in matters related to the administration
of criminal justice and thereby gives the provincial Attorney General authority to prosecute
offences under the Criminal Code.

The Attorney General does not, however, direct or cause charges to be laid. While the Attorney
General and the Attorney General's agents may provide legal advice to the police,
the ultimate decision whether or not to lay charges is for the police. Once the charge is laid
the decision as to whether the prosecution should proceed, and in what manner, is for the
Attorney General and the Crown Attorney.

It is now an accepted and important constitutional principle that the Attorney General must
carry out the Minister's criminal prosecution responsibilities independent of Cabinet and of
any partisan political pressures. The Attorney General's responsibility for individual criminal
prosecutions must be undertaken - and seen to be undertaken - on strictly objective and
legal criteria, free of any political considerations. Whether to initiate or stay a criminal
proceeding is not an issue of government policy. This responsibility has been characterized
as a matter of the Attorney General acting as the Queen's Attorney - not as a Minister of
the government of the day.

This is not to suggest that decisions regarding criminal prosecutions are made in a
complete vacuum. A wide range of policy considerations may be weighed in executing
this responsibility, and the Attorney General may choose to consult the Cabinet on some
of these considerations. However any decisions relating to the conduct of individual
prosecutions must be the Attorney General's alone and independent of the traditional
Cabinet decision making process. In practice, in the vast majority of cases, these
decisions are made by the Attorney General's agents, the Crown Attorneys.

An important part of the Crown's - and thus the Attorney General's - responsibility
in conducting criminal prosecutions is associated with the responsibility to represent
the public interest - which includes not only the community as a whole and the victim,
but also the accused. The Crown has a distinct responsibility to the court to present all
the credible evidence available.

The responsibility is to present the case fairly - not necessarily to convict. This is a
fundamental precept of criminal law, even if it is not a particularly well-understood concept
among the general public. One of the Attorney General's responsibilities in fostering
public respect for the rule of law, is to assist the public in understanding the nature and
limits of the prosecutorial function.

Ultimately the Attorney General is accountable to the people of the province, through
the Legislature, for decisions relating to criminal prosecutions. Such accountability
can only occur, of course, once the prosecution is completed or when a final decision has
been made not to prosecute. The sub judicae rule bars any comment on a matter before
the courts that is likely to influence the matter. The sub judicae rule strictly prohibits
the Attorney General from commenting on prosecutions that are before the courts. Given
the stature of the Attorney General's position, any public comment coming from the office
would be seen as an attempt to influence the case.

Although the Attorney general can become involved in decision-making in relation to
individual criminal cases, such a practice would leave the Minister vulnerable to accusations
of political interference. Accordingly, it is traditional to leave the day-to-day
decision-making in the hands of the Attorney General's agents, the Crown Attorneys,
except in cases of exceptional importance where the public would expect the Attorney
General to be briefed.

Legislative Responsibilities (s. 5(e) and (f))

The Attorney General has broad responsibilities associated with Government legislation.
These responsibilities have been described as twofold. One is to oversee that all legislative
enactments are in accordance with principles of natural justice and civil rights (see also s. 5(b)
above). This is obviously an important and broad area of responsibility. The second aspect
of this responsibility is to advise on the constitutionality and legality of legislation.

The Attorney General's legislative responsibilities are played out in a variety roles. The Office
of Legislative Counsel reports to the Attorney General. Legislative Counsel plays a key role
in ensuring the legal integrity of Government legislation. Although the Legislative Counsel's
reporting relationship to the Attorney General does allow the Attorney General to provide
guidance and set standards, individual pieces of legislation are drafted on instructions
from client ministries and are not within the sole control of Legislative Counsel or the
Attorney General. It should also be noted that Legislative Counsel also has a direct
responsibility to the Legislature as the Office also drafts all private member's bills.

The Attorney General has a further role to play as part of whatever Cabinet Committee is
formed to review legislation and regulations. Here the Minister has an opportunity
to comment on the technical issues related to legislation and regulations prior to
Cabinet consideration.

The Attorney General's role on legislative matters is as an adviser to the Cabinet.
Although unlikely, Cabinet could, in theory, receive the Attorney General's legal
opinion on legislation and choose to disregard it. The Attorney General's role is not
independent of Cabinet decision making as in the area of criminal prosecutions.
As was noted earlier, the Attorney General must make careful distinctions about the
legal opinions and policy or political preferences being offered about legislation.

Civil Litigation (s.5(h) and (d))

In addition to the specific responsibilities to conduct civil litigation on behalf of the
Government and its agencies (s. 5(h)), the Attorney General has broader litigation
responsibilities flowing from the historical powers of the Attorney General referred
to in s. 5(d) of the Act. These powers are based on the Crown's parens patriae
(parental) authority. The Attorney General's authority, therefore, is not only
to conduct litigation in cases directly affecting the government or its agencies but
also to litigate cases where there is a clear matter of public interest or public rights
at stake.

This has been characterized as a constitutional responsibility to ensure that the
public interest is well and independently represented. It may involve interventions in
private litigation or Charter challenges to legislation, even if the arguments conclude
that the legislation does contravene constitutionally protected rights.

Responsibility for Court Administration (s. 5(c))

A key component of the Attorney General's responsibilities to ensure the administration
of justice in the province is the administration of the courts and as a result the
responsibility for maintaining liaison with the judiciary.

Given the fundamental importance of the independence of the judiciary, the
responsibility for courts administration is often a very sensitive and delicate issue.
Great care and respect for the principles of judicial independence must be exercised in this area.

HoweverHH

106. The OMINOUS presence of SILENCE.

VIEWS @ 8177

"We have nothing to fear but fear itself." (Franklin Delano Roosevelt)

Save for a VERY few of you, and thank you, I have come to realize that I am essentially running this Blog as an exercise for my own rhetoric, to weigh the pros and cons of attitude and action (My argument), as I wind my way towards interpreting an approach, or several, depending on the realities that may confront me on the day of reckoning on September 10.

As I watch the news, I glean how Canadian youth have taken up arms in the East to kill, rape and pillage the vulnerable. They are wagging potent with new opportunity. It is their desperate stand towards a chaotic world in which all is possible. I listen to my adult kids, and they are weary. True meaning, with tangible evidence of how things 'MATTER,' has fallen by he wayside. Buyer beware.

The Pipeline WILL GO THROUGH! Those in charge of our future have spoken. And I mean to repeat: "WE PUT THEM IN CHARGE!" "WE" are ones responsible!

 I re-Post below, since I feel the need to refresh our collective memories as to WHAT IS REALLY GOING ON!  I need to remind myself that what I am presently involved in no longer has anything to do with my Claim and its pleadings. Best I can do is create 'An Argument' as to why I feel entitled to an explanation and WHY I decided the Masters erred in fulfilling their role during my Case Management.

By side-lining the relevant issues, those in charge over time have managed to corner me. Clever chess.
Different issues have become 'relevant.' By questioning the pillars of our society, as a self-representing litigant no less, I am being reprimanded. DO AS WE HAVE ORDERED YOU, OR TAKE THE CONSEQUENCES! We will not listen to the likes of you who dare to question the pillars of society.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Justice: An Impossible Dream?

The 11-year ordeal of Chester J. Chalupowski at the hands of unscrupulous lawyers scheming to gain control over his estate led Dr. Margaret Koch-Nabialczyk to point out that many books by legal scholars had warned of the crisis that is now washing over our judicial institutions, entrapping and destroying the lives of countless citizens who turned to the courts hoping to find protection and relief from injury. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++

“The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures.” -- Justice John F. Molloy The Fraternity: Lawyers and Judges in Collusion JUSTICE JOHN F. MOLLOYWhen I began practicing law in 1946, justice was much simpler. I joined a small Tucson practice at a salary of $250 a month, excellent compensation for a beginning lawyer. There was no paralegal staff or expensive artwork on the walls. In those days, the judicial system was straightforward and efficient. Decisions were handed down by judges who applied the law as outlined by the Constitution and state legislatures. Cases went to trial in a month or two, not years. In the courtroom, the focus was on uncovering and determining truth and fact. I charged clients by what I was able to accomplish for them. The clock did not start ticking the minute they walked through the door.When I began practicing law in 1946, justice was much simpler. I joined a small Tucson practice at a salary of $250 a month, excellent compensation for a beginning lawyer. There was no paralegal staff or expensive artwork on the walls. In those days, the judicial system was straightforward and efficient. Decisions were handed down by judges who applied the law as outlined by the Constitution and state legislatures. Cases went to trial in a month or two, not years. In the courtroom, the focus was on uncovering and determining truth and fact. Looking back The legal profession has evolved dramatically during my 87 years. I am a second-generation lawyer from an Irish immigrant family that settled in Yuma. My father, who passed the Bar with a fifth-grade education, ended up arguing a case before the U.S. Supreme Court during his career. The law changed dramatically during my years in the profession. For example, when I accepted my first appointment as a Pima County judge in 1957, I saw that lawyers expected me to act more as a referee than a judge. The county court I presided over resembled a gladiator arena, with dueling lawyers jockeying for points and one-upping each other with calculated and ingenuous briefs That was just the beginning. By the time I ended my 50-year career as a trial attorney, judge and president of southern Arizona's largest law firm, I no longer had confidence in the legal fraternity I had participated in and, yes, profited from. I was the ultimate insider, but as I looked back, I felt I had to write a book about serious issues in the legal profession and the implications for clients and society as a whole. The Fraternity: Lawyers and Judges in Collusion was 10 years in the making and has become my call to action for legal reform. Disturbing evolution Our Constitution intended that only elected lawmakers be permitted to create law. Yet judges create their own law in the judicial system based on their own opinions and rulings. It's called case law, and it is churned out daily through the rulings of judges. When a judge hands down a ruling and that ruling survives appeal with the next tier of judges, it then becomes case law, or legal precedent. This now happens so consistently that we've become more subject to the case rulings of judges rather than to laws made by the lawmaking bodies outlined in our Constitution. This case-law system is a constitutional nightmare because it continuously modifies constitutional intent. For lawyers, however, it creates endless business opportunities. That's because case law is technically complicated and requires a lawyer's expertise to guide and move you through the system. The judicial system may begin with enacted laws, but the variations that result from a judge's application of case law all too often change the ultimate meaning. Lawyer domination When a lawyer puts on a robe and takes the bench, he or she is called a judge. But in reality, when judges look down from the bench they are lawyers looking upon fellow members of their fraternity. In any other area of the free-enterprise system, this would be seen as a conflict of interest. When a lawyer takes an oath as a judge, it merely enhances the ruling class of lawyers and judges. First of all, in Maricopa and Pima counties, judges are not elected but nominated by committees of lawyers, along with concerned citizens. How can they be expected not to be beholden to those who elevated them to the bench? When they leave the bench, many return to large and successful law firms that leverage their names and relationships. Business of law The concept of "time" has been converted into enormous revenue for lawyers. The profession has adopted elaborate systems where clients are billed for a lawyer's time in six-minute increments. The paralegal profession is another brainchild of the fraternity, created as an additional tracking and revenue center. High powered firms have departmentalized their services into separate profit centers for probate and trusts, trial, commercial, and so forth. The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures. Bureaucratic design Today the skill and gamesmanship of lawyers, not the truth, often determine the outcome of a case. And we lawyers love it. All the tools are there to obscure and confound. The system's process of discovery and the exclusionary rule often work to keep vital information off-limits to jurors and make cases so convoluted and complex that only lawyers and judges understand them. The net effect has been to increase our need for lawyers, create more work for them, clog the courts and ensure that most cases never go to trial and are, instead, plea-bargained and compromised. All the while the clock is ticking, and the monster is being fed. The sullying of American law has resulted in a fountain of money for law professionals while the common people, who are increasingly affected by lawyer-driven changes and an expensive, self-serving bureaucracy, are left confused and ill-served. Today, it is estimated that 70 percent of low-to-middle-income citizens can no longer afford the cost of justice in America. What would our Founding Fathers think? This devolution of lawmaking by the judiciary has been subtle, taking place incrementally over decades. But today, it's engrained in our legal system, and few even question it. But the result is clear. Individuals can no longer participate in the legal system. It has become too complex and too expensive, all the while feeding our dependency on lawyers. By complicating the law, lawyers have achieved the ultimate job security. Gone are the days when American courts functioned to serve justice simply and swiftly. It is estimated that 95 million legal actions now pass through the courts annually, and the time and expense for a plaintiff or defendant in our legal system can be absolutely overwhelming. Surely it's time to question what has happened to our justice system and to wonder if it is possible to return to a system that truly does protect us from wrongs. A lawyer from Tuscon, Arizona, John Fitzgerald Molloy (b. 1917) was elected to the Superior Court bench where he served for seven years as both a juvenile court and trial bench judge.  He subsequently was elected to the Court of Appeals where he authored over 300 appellate opinions, including the final Miranda decision for the Arizona Supreme Court.  During that period, he also served as president of the Arizona Judge's Association.  After 12 years, Molloy returned to private practice to become president of the largest law firm in southern Arizona.  His book has received widespread praise for its candor and disquieting truths.  (Photo courtesy of Paragon House) Copyright 2004, Paragon House From an Internet released preview of the book by John Fitzgerald Molloy, The Fraternity: Lawyers and Judges in Collusion, Paragon House, St. Paul, Minnesota, 2004.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose. JUICE & JUSTICE IN VEGAS JUDGES HELPING LAWYERS JUDICIAL PARTISANSHIP HOW TO BECOME A JUDGE

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