Docket:
T-676-13
Citation: 2013 FC 1116
Ottawa, Ontario, November
4, 2013
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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EVA NOTBURGA MARITA SYDEL
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks an Order for mandamus to
compel the Attorney General of Canada or Minister of Justice (the “Minister”)
to issue a direction to the Registrar of the Supreme Court of Canada (the
“Registrar”). Specifically the applicant requests that the Registrar be ordered
to put her motion for reconsideration of an application for leave to appeal to
the Supreme Court of Canada (the “SCC”), from a decision of the British
Columbia Court of Appeal, before a judge of the SCC.
[2]
The application is dismissed for the reasons
that follow.
[3]
The following background information provides
the context for the present application and for the reasons to refuse the
relief sought.
Background
[4]
In 2007, the applicant was convicted in the
Provincial Court of British Columbia for tax evasion. She was sentenced to 18
months in prison and fined $244,447.
[5]
The applicant appealed her conviction to the
Supreme Court of British Columbia but later abandoned the appeal. Her
application to reopen the appeal was refused. She then brought a civil action
in the Supreme Court of British Columbia seeking a declaration that the Income
Tax Act was invalid as were her convictions under that Act.
[6]
The applicant sought $300 million in damages for
breach of her right to a fair trial pursuant to paragraph 11(d) of the Canadian
Charter of Rights and Freedoms, based on allegations that her criminal
trial was unfair because the Judge was biased and because the Judge and the
Canada Revenue Agency investigator had communicated during the trial with
non-verbal signals, including those used by Freemasons. In addition,
allegations were made that the Judge was likely a Freemason because he refused
to indicate whether he was a Freemason, and that judicial independence has been
subverted because Freemasons have infiltrated the judiciary and have placed
their Freemason oath above their judicial oath.
[7]
These same allegations have been made with
respect to the other Judges who have dealt with the applicant’s various legal
proceedings and complaints have been made to the Canadian Judicial Council, all
of which have been found to have absolutely no merit.
[8]
On August 3, 2011, the applicant applied to the
SCC for leave to appeal the Order of the British Columbia Court of Appeal which
dismissed her appeal and upheld the decision of the British Columbia Supreme
Court which dismissed her civil action.
[9]
The applicant submitted all materials on the
application for leave to the SCC by November 21, 2011.
[10]
In addition, by motion to the SCC dated November
29, 2011, the applicant sought Orders that the Attorney General of Canada, the
Canadian Judicial Council and the Attorney General of British Columbia be
directed to investigate whether named Judges of the British Columbia Supreme
Court and Court of Appeal, the Provincial Court Judge who convicted the
applicant, as well as a named employee of the Canada Revenue Agency, were
Freemasons. By Order dated December 15, 2011, the Registrar dismissed this
motion.
[11]
On December 22, 2011, a three member panel of
the SCC dismissed the application for leave to appeal the decision of the
British Columbia Court of Appeal.
[12]
On January 31, 2012, the applicant brought a
motion seeking reconsideration of the application for leave to appeal. By
letter dated June 19, 2012, the Registrar advised the applicant that her motion
was refused as it did not reveal exceedingly rare circumstances to warrant
reconsideration as required by Rule 73 of the Rules of the Supreme Court of
Canada (the “Supreme Court Rules”)
[13]
Counsel for the applicant then wrote to the
Minister on September 24, 2012, requesting the Minister to “direct the
Registrar to put my client’s materials before the court according to the Rules
of Court”. The Minister did not act as requested.
[14]
This brings us to the present application for
judicial review of the Minister’s decision to take no action. The applicant now
seeks mandamus and asks this Court to compel the Attorney General of Canada or
the Minister, to order the Registrar to put the motions for disclosure and the
motion for reconsideration of the refusal to grant leave to appeal, before a
judge of the SCC. The applicant did not make submissions with respect to the
motion for disclosure and limited her application for mandamus with respect to
the motion for reconsideration.
[15]
This relief cannot and should not be granted.
The Applicant’s
Grounds to Seek Mandamus
[16]
The applicant’s primary argument is that the
Registrar made a decision that should have been decided by a judge of the SCC.
The applicant submits that the Registrar acted without authority in refusing
her motion for reconsideration. Therefore, the Minister, who is responsible to
superintend the administration of justice pursuant to section 4 of the Department
of Justice Act, should direct the Registrar to put this motion
before a judge of the SCC.
[17]
The applicant submits that her motion should
have been considered by a judge of the SCC in accordance with the Supreme
Court Act and the Supreme Court Rules. She claims she was denied the
benefit of having a judge, who is judicially independent, consider the issue of
whether her motion for reconsideration raised exceedingly rare circumstances.
[18]
The applicant submits that the Registrar is part
of the Executive Branch of the Government and is not judicially independent.
[19]
The applicant disputes that she is undermining
the finality of the determination by the SCC, and argues that she seeks
finality but that finality can only result from a decision of a judge of the
SCC on her motion for reconsideration of leave to appeal. The applicant also
disputes that this judicial review is a collateral attack on the SCC and
submits that it is only an attack on the person that refused her motion,
namely, the Registrar.
[20]
The applicant further submits that she has satisfied
all the elements of the test for mandamus as established by the Federal Court
of Appeal in Apotex Inc v Canada (Attorney General), [1993] FCJ No 1098
at para 45, [1994] 1 FC 742, affd [1994] 3 S.C.R. 1100, [1994] SCJ No 113 [Apotex].
The
Respondent’s Position
[21]
The respondent submits that the principle of judicial
independence does not permit this Court to order mandamus to compel the
Minister to direct the Registrar to put the applicant’s motion for
reconsideration before a judge of the SCC.
[22]
The Minister or any other Minister of the Crown
or member of the Executive Branch of the Government can not interfere with the
decision-making process of any court.
[23]
The respondent submits that the criteria for
mandamus need not be considered because the Minister must refrain from acting,
just as he did, in order to fulfill his duties under the Department of
Justice Act and to comply with the rule of law.
[24]
The respondent further submits that the relief
is in fact a collateral attack on the SCC decision to dismiss her application
for leave as it seeks to undo the decision of the Court.
[25]
The respondent also notes that the Registrar is
part of the SCC and can not be characterized as part of the Executive Branch of
the Government.
The Issue
[26]
The key issue is whether this Court has
jurisdiction to order the Minister or the Attorney General of Canada to direct
the Registrar to put the applicant’s motions for disclosure and reconsideration
of leave to appeal before a judge of the SCC.
[27]
If the Court has such jurisdiction, then the issue
of whether the test for mandamus has been met would be considered.
This Court does not have jurisdiction to order mandamus against the
Registrar
[28]
The relief sought by the applicant offends the
principles of judicial independence, the hierarchy of our Court structure and
the supremacy of the SCC.
[29]
In addition, the applicant’s argument that the
Registrar had no authority to make the decision refusing her motion for
reconsideration is without merit.
[30]
I agree with the respondent that by seeking mandamus
against the Minister, the applicant seeks indirectly what she can not achieve
directly. Regardless of how the applicant has packaged her request, she is
indeed asking that the Minister interfere with the SCC.
[31]
As noted by the respondent, the Minister’s role
in ensuring the proper administration of justice or superintendence of the
administration of justice, in accordance with section 4 of the Department of
Justice Act, requires that the Minister ensure judicial independence. This,
in turn, requires that the Minister not act as the applicant has
requested.
The Registrar’s
Authority
[32]
The applicant repeatedly argued that the
Registrar acted without authority in refusing her motion for reconsideration of
her leave application because it did not raise exceedingly rare circumstances
in accordance with Rule 73 of the Supreme Court Rules. The argument has
no merit.
[33]
The Supreme Court Act provides as
follows:
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18. The Registrar has such authority to exercise the
jurisdiction of a judge sitting in chambers as may be conferred on the
Registrar by general rules or orders made under this Act.
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18. Le
registraire exerce la juridiction d’un juge en chambre selon les pouvoirs qui
lui sont conférés par les ordonnances ou règles générales édictées en vertu
de la présente loi.
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[34]
The relevant Supreme Court Rules provide:
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12. Subject to Rule 78, every order
made by the Registrar shall be binding on all parties concerned as if the
order had been made by a judge.
13. The
Registrar may refer any matter before him or her to a judge.
[…]
73. (1) There
shall be no reconsideration of an application for leave to appeal unless
there are exceedingly rare circumstances in the case that warrant
consideration by the Court.
[…]
78. (1) Within
20 days after the Registrar makes an order, any party affected by the order
may make a motion to a judge to review the order.
(2) The affidavit in support of the motion shall set out the
reasons for the objection to the order.
(Emphasis added)
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12. Sous
réserve de la règle 78, l’ordonnance du registraire lie toutes les parties
intéressées comme si elle émanait d’un juge.
13. Le
registraire peut renvoyer à un juge toute affaire qui lui est soumise.
[…]
73. (1)
Aucune demande d’autorisation d’appel ne peut faire l’objet d’un réexamen
sauf si des circonstances extrêmement rares le justifient.
[…]
78. (1)
Toute partie visée par une ordonnance du registraire peut, dans les vingt
jours suivant le prononcé de celle-ci, en demander la révision à un juge par
requête.
(2) L’affidavit à l’appui de la requête
en expose les motifs.
[Je souligne]
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[35]
As I interpret those provisions, the Registrar’s authority to refuse the motion for reconsideration is the same as
that of a judge in Chambers as that authority has been conferred by Rule 12.
The Order made by the Registrar is binding.
[36]
The decision of the Registrar clearly indicated
that section 78 was not applicable:
I have reviewed your
motion for reconsideration and your affidavit in support. I regret to inform
you that, in my opinion, your motion does not reveal the exceedingly rare
circumstances which would warrant reconsideration by this Court. Furthermore,
please note that Rule 78 of the Rules of the Supreme Court of Canada is
not applicable to this matter.
[37]
The applicant is not entitled to have her motion
for reconsideration heard by a judge of the SCC as her motion has been validly
considered and determined by the Registrar. Therefore, the applicant’s theory
that the Minister is duty-bound to intervene to ensure that the Registrar acts
within his authority is baseless.
Judicial
independence requires no interference by the Executive Branch of the Government
[38]
Judicial independence means and requires that
the judiciary is separate and independent from all other participants in the
justice system, including the Government
.
[39]
The SCC has addressed the importance and
hallmarks of judicial independence on many occasions and the principles are
clear.
[40]
In Beauregard v Canada, [1986] 2 S.C.R. 56,
[1986] SCJ No 50 [Beauregard], the SCC traced the origins of judicial
independence, noting at para 21:
Historically, the
generally accepted core of the principle of judicial independence has been the
complete liberty of individual judges to hear and decide the cases that come
before them: no outsider‑‑be it government, pressure group,
individual or even another judge‑‑should interfere in fact, or
attempt to interfere, with the way in which a judge conducts his or her case
and makes his or her decision. This core continues to be central to the
principle of judicial independence. Nevertheless, it is not the entire content
of the principle.
[41]
And at paras 30-31:
[…] Canadian
constitutional history and current Canadian constitutional law establish
clearly the deep roots and contemporary vitality and vibrancy of the principle
of judicial independence in Canada. The role of the courts as resolver of
disputes, interpreter of the law and defender of the Constitution requires that
they be completely separate in authority and function from all other
participants in the justice system.
I emphasize the word
'all' in the previous sentence because, although judicial independence is
usually considered and discussed in terms of the relationship between the
judiciary and the executive branch, in this appeal the relevant relationship is
between the judiciary and Parliament. Nothing turns on this contextual
difference. Although particular care must be taken to preserve the independence
of the judiciary from the executive branch (because the executive is so often a
litigant before the courts), the principle of judicial independence must also
be maintained against all other potential intrusions, including any from the
legislative branch.
[42]
In R v Valente,
[1985] SCJ No. 77, [1985] 2 S.C.R. 673, the SCC considered
the relationship between impartiality and independence, at 685:
Although there is obviously a close relationship between
independence and impartiality, they are nevertheless separate and distinct
values or requirements. Impartiality refers to a state of mind or
attitude of the tribunal in relation to the issues and the parties in a
particular case. The word "impartial"... connotes absence of
bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the
traditional constitutional value of judicial independence. As such, it connotes
not merely a state of mind or attitude in the actual exercise of judicial
functions, but a status or relationship to others, particularly to the
executive branch of government, that rests on objective conditions or
guarantees.
[43]
In R v Lippé, [1990] SCJ No 128, [1991] 2 SCR
114, the SCC noted at 138:
The content of the principle of judicial independence is to be
determined with reference to our constitutional tradition and is therefore
limited to independence from the government. Although the language in Beauregard, supra, may seem to have expanded the
concept, it is to be remembered that the ratio of the case extended the requirement beyond
the executive to the legislative branch of government. […]
I do not intend, however, to limit this concept of
"government" to simply the executive or legislative branches.
By "government", in this context, I am referring to any person or
body, which can exert pressure on the judiciary through authority under the
state.
[Emphasis in original.]
[44]
In the present case, the applicant’s request for
mandamus is contrary to the separation of powers between the executive and the
judiciary and undermines the judicial independence of the SCC. The applicant is
really asking the Minister to ensure that her motion for reconsideration is
considered for a second time and by a judge of the SCC. This would put the
Minister in the role of supervising or interfering with Canada’s top court. This clearly infringes the principle of judicial independence.
[45]
If the Minister could be compelled to direct the
Registrar to put a motion for reconsideration of a leave application – or any
other motion – before a judge of the SCC, which basically compels that Judge to
consider the motion, what prevents the Minister from directing the Registrar to
put a motion to a judge of the SCC to consider or reconsider a matter that any
Minister of the Crown is a party to? There is no doubt that this would violate
judicial independence and the rule of law. The relief requested by the
applicant of the Minister is no different.
[46]
In Legere v Canada, 2003 FC 869, [2003]
FCJ No 1766 [Legere], this Court addressed the principles of judicial
independence in circumstances similar to the present case. Mr Legere brought an
action in the Federal Court against Her Majesty the Queen, as the Federal
Crown, alleging that it had supervisory jurisdiction over the judges and
masters of the British Columbia Supreme Court, where he had been unsuccessful
in a family law matter.
[47]
Prothonotary Hargrave referred to the passages
cited above from Beauregard and noted that the Federal Crown has no
supervisory role over the judiciary, at para 15 of Legere:
The judiciary hold
office during good behaviour. While judges and masters are appointed by the
Crown they are not Crown servants: they cannot be either controlled by or given
directions by the Crown, or by the Crown's ministers, or by Parliament, or by
any government department. The members of the judiciary are independent and
enjoy total immunity from court action based on anything done or said in the
exercise of their judicial functions. There can therefore be no vicarious
liability on the part of the Crown.
[48]
The same principles are applicable in the
present case. Judges of the SCC are not Crown servants; they cannot be
controlled by or be given directions by the Crown or by the Crown's ministers.
To hold otherwise would undermine the separation of powers between the
executive and the judiciary.
[49]
In Legere, Prothonotary Hargrave also
noted that permitting the application to continue would constitute an
impermissible collateral attack on the British Columbia Supreme Court. The rule
against collateral attack prevents an order made by a decision-maker of
competent jurisdiction from being attacked in proceedings other than those
whose specific object is the reversal, variation, or nullification of the
order.
[50]
Although the application in the present case is
brought against the Minister, the doctrine of collateral attack nonetheless
applies because the effect of the relief sought by the applicant is to
challenge a valid and binding decision of the Registrar in an attempt to undo a
decision made by a three member panel of the SCC.
[51]
In oral submissions, counsel for the applicant
indicated that he agreed with the decision of Prothonotary Hargrave in Legere
and that “no player in the Executive should ever have any contact with the
judiciary or court”. However, the applicant holds the view that the Registrar
is not part of the Court or judiciary, and that, therefore, this principle is
not applicable.
[52]
The applicant does not seem to appreciate the
effect of what she seeks. Compelling the Minister to direct the Registrar to
put the motion for reconsideration before a judge of the SCC is the same as
bypassing the Registrar altogether and directing the Minister to demand that a
SCC judge consider the applicant’s motion for reconsideration of leave to
appeal.
The hierarchy
of the Court must be respected
[53]
In addition to violating the principles of
separation of powers and judicial independence, the relief sought by the
applicant ignores the hierarchy of Canada’s court system. Finality would never
be achieved if the Minister could be compelled to direct the Registrar to put
motions before judges of the SCC.
[54]
In Scheuneman v Canada (Attorney General),
2003 FCA 194, [2003] FCJ No 686 [Scheuneman], the Federal Court of
Appeal noted the importance of finality and the hierarchy of our courts which
places the SCC at the top.
[55]
Mr Scheuneman sought judicial review of the
SCC’s decision to dismiss his application for leave to appeal and motion for
reconsideration, arguing that the SCC fell within the definition of “federal
board, commission, or other tribunal” in subsection 2(1) of the Federal
Court Act, thereby giving the Federal Court jurisdiction to judicially
review the SCC’s decision regarding his leave application.
[56]
The Federal Court of Appeal strongly rejected
this argument, noting at paras 10 and 11:
[10] We
are all satisfied that this argument must fail. In our view, it would be so
absurd to interpret "federal board, commission or other tribunal" as
including the Supreme Court of Canada that Parliament did not think it
necessary specifically to exclude the Judges of that Court from the definition.
The court system in Canada, and elsewhere, is hierarchical in nature. In Canada, the Supreme Court of Canada sits at the apex of our judicial system. Subject to a
residual discretion to reconsider its own decisions (R. v. Hinse, [1997]
1 S.C.R. 3), the Supreme Court's judgments (including decisions not to
reconsider a leave application) are final and conclusive: Supreme Court of
Canada Act, section 52. They are not subject to appeal. To interpret
"federal board, commission or other tribunal" as including the
Supreme Court of Canada, and as thus permitting the Federal Court to review
judgments of the Supreme Court of Canada, would undermine the finality of the
Supreme Court's decisions and subvert the judicial hierarchy.
[11] If,
as Mr. Scheuneman maintains, the Federal Court could review a decision or order
of the Supreme Court of Canada, the decision of the Federal Court would itself
be subject to appeal to the Supreme Court of Canada. Moreover, if the Supreme
Court refused leave to appeal, that refusal could itself potentially be the
subject of a further application for judicial review to the Federal Court. It
would be absurd to construe the Federal Court Act as conferring on the
Court jurisdiction to review the decision of a body when the result of the
review could then be appealed to the very body that made the decision under
review. There would be no finality to litigation.
[57]
The principles set out in Scheuneman are
applicable to the application before me. The applicant seeks an Order of this
Court against the Minister. If granted, a decision of the Registrar, which is as
binding as a decision of a SCC judge in Chambers, notwithstanding that the SCC
is the court of final appeal, would be subject to or the authority of this Court.
[58]
If the SCC considered the motion for
reconsideration for a second time as a result of the order by the Minister via
the Registrar, and refused the motion for a second time, would the applicant
suggest that the Minister could continue to demand reconsideration? Although
the applicant’s position is that there is no finality until a judge, and not
the Registrar, decides the motion for reconsideration, the very relief sought
from the Minister of Justice would invite requests for reconsideration over and
again, with no finality and no respect for the hierarchy of the SCC.
The test for mandamus
cannot be met
[59]
The applicant argued that she met the test for
mandamus, as established in Apotex because: the Minister owed a duty to
her to act to prevent the Registrar from exceeding his authority; she had
satisfied all the conditions precedent by requesting the Minister to act; there
was no other remedy available to her; the order would have practical value
because it would place her affidavit outlining the exceedingly rare
circumstances before a judge and bring about the finality she seeks; and, the
balance of convenience favoured her as she was entitled to have her motion
considered by a judge, or at minimum, it would not cause inconvenience or
confusion in the SCC.
[60]
The applicant has not met any of the elements of the
test for mandamus for the reasons set out above. Most importantly, the Minister
is not under any duty to act, and is, in fact, under a duty to refrain from
acting in order to ensure judicial independence and the separation of powers.
Conclusion
[61]
The relief sought by the applicant offends the
principles of judicial independence, the hierarchy of our Court structure and
the supremacy of the SCC.
[62]
I would also note that the applicant cannot
assert that she was denied the opportunity to place her affidavit alleging that
exceedingly rare circumstances exist to warrant reconsideration before a judge
given that her affidavit was considered by the Registrar, who has the same
authority as a judge of the SCC in Chambers. Moreover, the exceedingly rare
circumstances, i.e., her allegations that Freemasons have infiltrated the
justice system and that Freemasons may be a criminal organisation and, as a
result, have subverted judicial independence and the rule of law, are the very
same allegations set out in her Statement of Claim which was dismissed and for
which leave to appeal was denied by a three member panel of the SCC.
[63]
The applicant claims that she wants finality and
that she will only have finality when her motion is considered by a judge of
the SCC. In fact, the applicant has had finality. She has relentlessly pursued
all possible legal remedies over several years. Her leave to appeal to the SCC
has been denied, as has her motion to reconsider her leave to appeal. These
Orders are final and binding. As a result, the decision of the British Columbia
Court of Appeal is final in upholding the dismissal of her cause of action. The
applicant must come to terms with that final decision and with the fact that
her legal recourse has reached its end.
[64]
As noted by the Federal Court of Appeal in
Scheuneman, supra at para 12:
[…] No one has a
right to consume scarce public resources indefinitely in the endless pursuit of
a dispute, no matter how important the issues may seem to the individual
concerned. Finality is an indispensable aspect of any system of justice.
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