Retiring Supreme Court of Canada Justice Rosalie Abella when asked if she’d change any of her past rulings: “Not One.” The End.

Comment by a rural Albertan:

“Pretty frightening stuff by somebody who knew about gas chambers and how easy it was to make a mistake i.e. the Jews and Royals that backed Hitler up yet she is beyond all that, only there for the accolades and applause because SHE is never wrong. Just Evil! Kenney level evil and they just keep coming out of the woodwork. I didn’t read anything but end. F*ck her.”

How Rosalie Abella’s personal history shaped her legal legacy, The daughter of Holocaust survivors will soon give up her seat on Canada’s Supreme Court. But her quest for global justice, over and above the rule of law, is far from finished by Sean Fine, June 26, 2021, The Globe and Mail (subscription required)

“The law is there for the public, to serve the public, and to serve the public’s need for justice.”

But not for me – a frac-harmed Canadian with a “valid” Charter claim against the Alberta Energy Regulator (AER, 100% industry-funded and led) – or my need for justice. Why? Because I publicly, for decades, stated my opposition to Israel murdering Palestinians including children, stealing homes and land, and a $4Billion dollar gas field (that needs to be frac’d), destroying olive groves, violating rights, etc.? In my experience, J Abella’s quote above would be more accurate with “AER” replacing “public”

“We serve the law best when we do so spontaneously, in our own way, with our own voice, and don’t try to force ourselves to comply with some artificial, ideal-type notion of how a judge should be… to humanize the law, reduce its artificiality.”

Like belittling an applicant in a ruling with “Alice in Wonderland” insults? Like making shit up in a ruling to discredit an ordinary citizen whose Jewish family in Europe was also endangered by Hitler’s genocide and who was sacrificing every penny of her life-long savings to pay lawyers, mandatory Ottawa Agent and expensive court costs?

Whether she’d change any of her past rulings:

“Not one.”

An attack on the independence of a court anywhere is an attack on all courts What when a Supreme Court Judge knowingly lies in her ruling and much worse, is allowed to get away with it? by Supreme Court Justice Rosalie Abella, JERUSALEM, CONTRIBUTED TO THE GLOBE AND MAIL, October 26, 2018, The Globe and Mail.

Rosalie Abella serves on the Supreme Court of Canada. This speech was delivered on Oct. 23 at the President of Israel’s Symposium In Honour of the 70th Anniversary of the Supreme Court of Israel.

It was the Charter of Rights and Freedoms in 1982 that brought the Supreme Court of Canada – and judicial independence – to the public’s attention, and introduced it to a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer. The Charter both represented and created shared and unifying national values. The judges on the Supreme Court of Canada in the eighties, when the Charter was first enacted were bold and fearless. Now they intentionally publish lies in rulings, send the lie to the media to defame and discredit the applicant and piss on all our civil Charter rights. So much so that as a result of their leadership, one of Canada’s leading exports today is her justice system, its rights jurisprudence and the independent stature of its judiciary.

Not surprisingly, our constitutionalization of rights was not without controversy. If, as Isaiah Berlin once observed, there’s no pearl without some irritation in the oyster, by the nineties there were those who saw the Charter as a whole pearl necklace. As for the judges, they understood that controversy was inevitable, but they also understood that one person’s controversy may be another person’s remedy. So they embraced controversy and forged ahead.

And out of the ashes of controversy, the Supreme Court developed a robust new justice consensus for Canada. Where for others pluralism and diversity are fragmenting magnets, for Canada they are unifying. Where for others assimilation is the social goal, for us it represents the inequitable obliteration of the identities that define us. Where for others treating everyone the same is the dominant governing principle, for us it takes its place alongside the principle that treating everyone the same can result in ignoring the differences that need to be respected if we are to be a truly inclusive society.

Integration based on difference, equality based on inclusion despite difference and compassion based on respect and fairness: These are the principles that now form the moral core of Canadian national values, the values that have made us the most successful practitioners of multiculturalism in the world, and the values that make our national justice context democratically vibrant and principled.Excluding of course, Canada’s many bad judges. Is a liar a bad judge?

All this came from the Supreme Court, all this came to be understood by the public as being properly within the domain of the Supreme Court and, most notably, all this was, on the whole, respected and accepted by the legislatures. Criticisms and questions were of course raised, but usually with civility. And the Court’s integrity was never seriously publicly questioned. FRACSHIT! DUNG BALONEY! BULLSHIT! We have, in other words, been very lucky … so far.

What have I learned about judicial independence from Canada’s experience? I learned that democracy is strengthened in direct proportion to the strength of rights protection and an independent judiciary, and that injustice is strengthened in direct proportion to their absence. A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph. In a polarized society, it is especially crucial to have an institution whose only mandate is to protect the rule of law.

It is the media’s job to gather and disseminate the information we need to participate in the public conversations that lead to deciding whom to elect – or defeat; it is the legislature’s job to take the public’s pulse and decide which of its opinions to implement as public policy; and it is the Court’s job to decide how best to protect democracy’s core values, regardless of public opinion. Only Courts are not entitled to abandon their commitment to those core values – human rights, freedom of expression Supreme Court of Canada sure pissed on my Charter rights and damaged the Charter rights of all civil Canadians, freedom of the press and protection of woman and minorities, among others. Those are the values a Supreme Court has in its tool kit, and those are the values it must protect as it grapples with some of society’s most complex issues, such as the relationship between state power, rights and public safety; the relationship between minority rights and majoritarian expectations; or the relationship between religious demands and secular beliefs. These are the kinds of challenges that attract intense public scrutiny, and they are the kinds of issues that cannot be decided – or be seen to be decided – without a fiercely independent judiciary. They are also the kinds of decisions that define a nation’s values and, in defining its values, define not only its identity, but also its soul. Canada’s soul is in Hell, along with the frac and legal industries. Just ask our Indigenous people, raped environment, drinking water, women and children.

Many countries around the world are having existential crises over their national identities. They have made Faustian bargains, selling their democratic souls in exchange for populist approval. Their humanity has been the victim. So have their minorities. So have human rights. This, to me, is unconscionable.

I was born in 1946 in a German displaced-person’s camp to Holocaust survivors right after the Second World War. That was the devastating war that inspired the nations of the world to unite in democratic solidarity and commit themselves to the promotion and protection of values designed to prevent a repetition of the war’s unimaginable human-rights abuses. That’s why we had the Nuremberg Trials, the Universal Declaration of Human Rights and Israel’s Declaration of Independence. Yet here we are in 2018, seven decades later, watching that wonderful democratic consensus fragment all over the world, shattered by polarizing insensitivity; an unhealthy tolerance for intolerance; a cavalier indifference to equality; a deliberate amnesia about the instruments and values of democracy that are no less crucial than elections; and a shocking disrespect for the borders between power and its independent adjudicators, like the courts, who are made to choose between independence, ideological compliance, and survival.and intentionally publish lies in rulings.

Israel is having its own existential crisis and, with respect, the humanity of its soul is at risk unless the country understands that it cannot survive as the vibrant and complicated democracy that bloomed out of the desert 70 years ago without fiercely protecting the independence of its 70-year-old Supreme Court.

What is putting this at risk? The deliberate attempts to undermine public confidence in the Court’s integrity; the unforgivable sacrificing of the Court’s international reputation on the altar of partisanship; the hyperbolic rhetoric of hate that greets unpopular decisions; the menacing volley of simplistic pejorative labels, like “unpatriotic,” that too often replace mature debate; the demeaning of human rights by trivializing it as a weakness of the “left,” whatever that means, instead of recognizing that human rights is essential to the health of the whole political spectrum. All this is corrosive not only of the Israeli judiciary’s independence, but of Israel’s democracy. It seems Israel’s horrific human rights violations of Palestinians much more damaging to its judiciary’s credibility than anything else, yet, Abella ignores that tail of Satan on Israel.

Why is this any of my business? Because an attack on the independence of a court anywhere is an attack on all courts. It is not only my business as a judge, it is my business as a citizen of the world, a world I grew up thinking would be based on a commitment to human rights. But I am not the judge who matters. Israel’s most important judge is history, and history’s judgment is based not only on a country’s survival, but on its character and the values it represents and promotes. Precisely! And Israel has destroyed its character and values many times over in how it abuses the human rights of Palestinians and has done so for years, and how Israel is working to destroy our right to freedom of expression the world over, so that it can keep on with its brutal genocide and despicably use antisemitism to try to destroy those calling Israel out for its greedy cruel crimes.

The Israeli Supreme Court is the most precious jewel in the democratic crown Israel put on in 1948. Tampering with its independence and legitimacy is tampering with its integrity, and tampering with its integrity is tampering with Israel’s soul. That would break the hearts not only of judges all over the world who have looked to the Israeli Supreme Court for guidance and inspiration for the last 70 years, but the hearts of everyone all over the world who cherishes democracy. This article came out during the time my lawyers withheld my website from me and withheld access to it from me.

A few of the comments:

Gus Papageorgiou:

“Where for others treating everyone the same is the dominant governing principle, for us it takes its place alongside the principle that treating everyone the same can result in ignoring the differences that need to be respected if we are to be a truly inclusive society” – It is disheartening that a justice of the Supreme Court of Canada, openly, and apparently brazenly, ranks the goal of inclusion over that of justice (which by definition means treating everyone the same). The job of the Supreme Court is to uphold the law of the land. And that law is revered for the fact that everyone is equal under its reign. When that responsibility is abdicated in favour of offering certain groups preferential treatment over others, in order to accommodate (or include) them, the law ceases to be the glue that holds a civilized society together, and instead becomes an agent of divisiveness — courted for gain by some and respected by none. Well I judge you Justice Abella, and I find you wanting.

Howard Beale:

These judges, coming from the elites, coseily clustered in their entitled little worlds, will bear a great deal of responsibility for the coming disintegration of Canada.

Capitain R:

Ms Abella seems pretty full of herself. …

Gizzela:

Definitely a woman who thinks extremely well of herself and her importance. But I’m not sure what I”m being sold here (or why). I had no idea that Israel’s Supreme Court was under ‘attack’ – the point of this article was buried half-way through it, Generally even in an article, like an essay, you state the purpose of it at the outset, and then support your thesis.

MDP0

I’ll never forgive Abella for employment equity. I couldn’t get a group interview for my dream job because of my race, definitely the worst justice we’ve ever had.

Refer also to:

Lorne Sossin: Statutory Bars to Constitutional Remedies: The Importance of Being Ernst

An immunity clause can preclude only those claims that a legislature has the constitutional authority to bar — that includes civil claims for damages, but it cannot bar Charter claims (including Charter claims, as in Ernst, where one of the remedies sought is Charter damages). On this reading, the Supreme Court of Canada could and should have interpreted the statutory bar as inapplicable to this claim to the extent a breach of the Charter is properly pleaded.

Further, to Abella J.’s objection in her concurring reasons, the Alberta Government would not need to have received formal notice of the claim, since the validity of the statutory immunity clause does not arise as a live issue if it is interpreted as inapplicable to Charter claims.

Returning to my broader objection with the majority of the Supreme Court of Canada’s approach to Charter damages, the claim in this case, on its face, is that a Charter breach has occurred. Ernst claims she was silenced as punishment for her opposition to the Board.

The availability of Charter damages, like the availability of other Charter remedies (declarations, injunctions, etc.), cannot be precluded by an act either of a provincial legislature or of Parliament (unless the notwithstanding clause under section 33 is invoked, which is the sole mechanism for immunizing public bodies from Charter scrutiny, and therefore, from Charter remedies). Legislation can limit the availability of Charter remedies from administrative tribunals and regulators as they have no inherent powers, and so can only provide those constitutional remedies which fall within their statutory jurisdiction,54 but here, the remedy sought is from a court.

In my view, the Court in Ernst misconstrues the place of Charter damages in the context of Canada’s constitutional architecture. It is important to recall what is at issue in Ernst. The case is not about whether the Charter was breached, or, if so, whether Charter damages are appropriate — rather, this case is about whether a claimant should have a chance to prove her allegations of a Charter breach warranting damages as a remedy, and whether a statute can bar her from having such an opportunity. By upholding the validity of a statute to bar a Charter remedy, the Supreme Court of Canada has allowed a legislature to unilaterally circumscribe constitutional protections and done so for no broader constitutional rationales or benefits. …

Dear J Rosalie Abella and Germany: Is it “justice” and “a fantastic work ethic” for a Supreme Court of Canada judge to lie in a ruling and damage our Charter of Rights and Freedoms?

Slides from Ernst presentations, including in North Yorkshire, UK

Below, a bit of background on what led me to the Supreme Court of Canada:

2012: AER’s outside counsel, Glenn Solomon, filed his brief in Court of Queen’s Bench and stated as fact that AER found me to be a terrorist (changing that the regulator judged me a criminal 7 years earlier) with no evidence, no hearing, no trial, no due process, no arrests, no fingerprinting, no charges. Justice Neil C Wittmann later ruled that there was “absolutely” no evidence of me being a terrorist but instead of punishing Solomon for lying, Wittmann punished me.

2005: Letter from AER (then EUB) judging me to be a criminal with no evidence, no hearing, no trial, no due process, no arrests, no fingerprinting, no charges, and giving me no chance to defend myself:

Did AER/EUB write “vexatious litigant” anywhere? I didn’t become a litigant until two years after the above letter was received.

The Supreme Court did not allow any evidence to be filed for the Ernst vs AER hearing, only matters of law were allowed to be argued, which makes Abella’s lie triply nasty.

Before I found out that Encana/Ovintiv had broken all laws and regulations in place in Alberta to protect groundwater, the company completed two fraudulent noise studies in response to my noise complaints and many others in the community. The company violated my legal right to quiet enjoyment of my home and land for years with the regulator refusing to “regulate” anyone but me. Since passing off the noisy compressors and frac’d aquifers to Lynx, my legal right to quiet enjoyment of my home and land continues to be violated.

Living frac’d is horrendous hell. Never mind living with toxic chemicals and in explosive risk from dangerous levels of Encana/Ovintiv’s frac’d methane venting out of your water taps and painfully burning your skin while bathing or doing dishes or cleaning house, and the incessant roar of dangerous speeding frac traffic, slamming jake brakes, drilling, frac’ing and more, Encana’s unmitigated compressor noise stressed me and my dogs no end. Nights were the worst, especially in fall, winter and spring; my sleep was severely compromised and the dogs paced up and down the hall all night, every night.

For the first fraudulent noise study, Encana/Ovintiv put the microphone about 1,000 metres east of my home near the community hall and highway (to state it’s naturally noisy). The regulator’s noise directive mandates that it must be 15 metres from the complainant’s home. The company also turned off their noisiest compressor to conclude they were compliant and oh so quiet. EUB ate the company’s garbage hook line and sinker. I detailed Encana’s fraud and violations and sent it to the “regulator.”

For the second noise study, Encana violated even more rules, and my privacy rights (handed out an aerial map showing where I live at a large public meeting, but not showing where anyone else with noise complaints lived), yet the data still proved Encana’s noise was non-compliant so the “regulator” fraudulently altered Encana’s loud noise levels to make them quiet and compliant. I also pointed this out in writing to the EUB.

Then, the regulator deregulated their noise control directive to make Encana’s non compliances compliant. I pointed this out to the EUB too.

Then, to add more injury and insults, the EUB promised me a third study to make things right. They promised that Encana would not be told about this study so that no hanky panky could take place. I caught the EUB notifying Encana about the third study three times, so I told the regulator “no thank you” and why. There’s only so much fraud and stress a frac’d girl can take while living poisoned in her home from frac fumes and debilitating noise.

Edmonton lawyer disbarred for lying: “The code of professional conduct prohibits lawyers from misleading others, either intentionally or accidentally,” while nine Supreme Court of Canada judges get away with intentionally publishing a lie in Ernst vs AER.

Nasty! Canadian courts describing “individuals as exhibiting ‘vexatious-style’ behavior without formally designating them as a vexatious litigant.” Is that how Supreme Court of Canada Justice Rosalie Abella gets away with ruling AER found Ernst to be “vexatious litigant” when evidence proves AER found Ernst to be a “criminal,” 7 years later, a terrorist – all without charges, evidence, trial or due process?

Who orders a new hearing for a Supreme Court of Canada ruling where 9 justices knowingly published a lie and sent it to the media? Who “slaps” Justice Rosalie Abella for knowingly lying in her ruling and belittling the applicant? Certainly not the Canadian Judicial Council (which self-regulates)

Abellian “Law”

It is with an utter lack of surprise that I yet again fill the virtual pages of Double Aspect with thoughts on another of Justice Abella’s comments on the nature of judging. Both Leonid and I have continuously written about how Justice Abella frequently displays a judicial arrogance  that is inconsistent with the role of a judge in a constitutional democracy, both descriptively and normatively. I hesitate to write yet again on the same subject.

But I am moved to do so by the utter lack of accuracy in Justice Abella’s recent speech at Fordham University, where she described a bastardized version of the Canadian approach to constitutional and statutory interpretation. …

.. While I believe that Justice Abella means well, she reveals an unfortunate arrogance that crops up in speech after speech. For one, she claims the law is her opinion when it is not. Then, she takes on the mantle of judging what a statute should mean, given her own impressions of what it requires. It takes someone with much self-confidence to do this. Whether or not we should have confidence in her is quite another matter altogether. A Supreme Court judgeship is not enough, in a democracy, to give its holder the mantle of deciding what laws should mean or which laws should apply. Someone who believes so is better suited to be a politician than a judge.

Delusions of Grandeur, Justice Abella sets out a vision of the Supreme Court as arbiter of national values

I didn’t realize that writing op-eds for the media was part of the judicial job description, but apparently it is. There was of course Brett Kavanaugh’s instantly-notorious op-ed in the Wall Street Journal. And, ten days ago, Justice Abella followed in now-Justice Kavanaugh’s footsteps, with an op-ed of her own, in the Globe and Mail. The op-ed is an adaptation from a speech given on the occasion of the 70th anniversary of the Supreme Court of Israel; but Justice Abella, presumably, thinks that it deserves a Canadian audience as well as an Israeli one.

Why that ought to be the case, I am not quite sure. Part of the op-ed is meaningless twaddle: we have, Justice Abella tells us, a “national justice context” that is “democratically vibrant and principled”. Part is rank hypocrisy: the Supreme Court’s “only mandate is to protect the rule of law”, says the person who has devoted many a talk to criticizing the very idea of the Rule of Law and arguing that it had to be replaced by something called the rule of justice. Part is rotten grammar: “human rights is [sic] essential to the health of the whole political spectrum” (emphasis removed). But all of it is a self-assured presentation of a role for the judiciary that has nothing to do with the Rule of Law, and this bears commenting on. …

And while she begins by seemingly conceding that “[t]he Charter both represented and created shared and unifying national values”, Justice Abella then argues that it is the Supreme Court that has developed “a robust new justice consensus for Canada”. It is the Supreme Court that serves as “the final adjudicator of which contested values in a society should triumph”. (Wait… didn’t the Charter already represent and create shared values? How come these values are, after all, contested?) Fortunately, says Justice Abella, the Canadian public and its elected representatives have fallen into line and followed the Supreme Court’s moral leadership: “[c]riticisms and questions were of course raised, but usually with civility.” If Canada is committed to “pluralism and diversity”, rather than “obliteration of the identities that define us”, that’s because “[a]ll this came from the Supreme Court”, and its teachings were accepted by both “the public” and “the legislatures”.

Hence the empowerment of the Supreme Court, coupled with its independence, is all to the good. “[D]emocracy, Justice Abella insists, “is strengthened in direct proportion to the strength of rights protection and an independent judiciary”. Indeed, the very “humanity” of a country would be imperiled by attacks on judicial power. Hence Justice Abella’s plea in defence of the Supreme Court of Israel, delivered, she says, in her capacity not only “as a judge”, but also “as a citizen of the world”. (I assume Justice Abella has not been shy about criticizing the feebleness of the judiciary in countries like Russia and China, too, though I don’t think she has published op-eds about them. Perhaps she has even criticized the backward ways of the United Kingdom, Australia, and New Zealand, which haven’t seen it fit to remit the adjudication of contested values in their societies to the courts, though I can recall no op-eds on that subject either.)

….if the Supreme Court is to be the arbiter of national values, it is not at all clear why it should be staffed by judges—that is to say, by former lawyers, who are not trained for or especially good at this task. Why not economists and philosophers instead?

And if the courts are not, after all, to be replaced by philosophical-economic colloquia, that’s probably because what we really want is for judges to stick to law.

This brings me to Justice Abella’s most remarkable claim—that it is indeed the Supreme Court that defines not just our constitutional rights, but Canadian values more generally. … Justice Abella’s ambition is not so limited; she is not content to decide what our supreme law means; she wants to be the ultimate authority on what Canadians believe in. To force all Canadians to be pro Israel, no matter how horridly Palestians are murdered, human rights violated and lands stolen? This is shocking stuff. In a free society, there can be no such authority, whether in the Supreme Court or elsewhere. In a free society, one cannot point to the constitution and say, Thatcher-style, “this is what we believe”. Citizens in a free society disagree, including about fundamental values. A constitution is only a judgment, albeit one reached by a super-majority—not, mind you, an actual consensus—about which of these values will be translated into legal constraints that will be imposed on the government until the constitution is amended. The courts’ job is to interpret these legal constraints, as they interpret other law; it is not to dictate “which contested values in a society should triumph”.

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority. It is unfortunate that a person so utterly misguided holds an office with as much power and prestige as that of a Supreme Court judge. Still, as important as this office is, it is less significant than Justice Abella imagines. We remain free to reject the values the Supreme Court would have us subscribe to. When these values amount to uncritical polite deference to philosopher-kings in ermine-collared robes, we have very good reason to do so.

Jessica Ernst Open Letter to Chief Justice Beverley McLachlin Regarding False and Seriously Damaging Statements in Justice Rosalie Abella’s Supreme Court of Canada Ruling, Ernst v AER

I sent my letter to my then lawyers, Murray Klippenstein and Cory Wanless, asking to cc them. They told me they thought my letter was great but did not want me to copy them to protect their careers/futures. I see now, since my ex lawyers pissed on the rules of their profession, quit, lied to me, left me hanging in unbearable stress for 2.5 years, still refuse to send me my property that I paid one Hell of a lot of money for, with Mr. Klippenstein even going so far as to misrepresent me to the court, that my career and future means nothing. Where’s the regulator? Oh ya, it’s frac’d. Canadian lawyers regulate themselves, just like our judges do.

Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”

Dear J Abella,

All the best to you in your retirement. May you and yours always have safe water to live with, bathe in and drink, and never have your skin and eyes painfully burned by it.

And, may you learn how to admit wrong doing and make amends.

Sincerely,
Jessica

***

The Constitution of Canada is the supreme law of Canada

The Supreme Court of Canada pissed on our “supreme law” in their 2017 ruling in Ernst vs AER.

To keep the oil, gas and frac industry, and freedom of expression destroying Israel happy?

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