An analysis of the Hackland ruling in Guergis v. Novak et al.

By Prof. Anatole French

Professor of Laws

Law Society of Up Canada University

Capital City

Ontario  K1S A5S

[Guest blogger]

As a legal academic, I have been called upon to review the recent (August 24, 2012, http://canlii.ca/t/fsg9t) ruling of Regional Senior Justice Charles T. Hackland of the Ontario Superior Court of Justice in the matter of Guergis v. Novak et al., and to articulate my review in plain language understandable by a discerning public. Senior academics such as myself have academic tenure, which is why we frequently provide cutting edge criticisms of current court rulings of public interest where others, such as journalists and their editors, might not be so daring.

The main facts in the case, concerning Prime Minister Stephen Harper, are simple. The Prime Minister, through his senior officer Mr. V. Raymond Novak, Principle Secretary, wrote to the RCMP to suggest that a criminal investigation be made of, at the time, Member of Parliament, Minister, and member of the caucus of the Conservative Party of Canada, Helena Guergis. The letter alleged: an existence of evidence relevant to fraud, extortion, and prostitution, that the writer and the PMO did not have first-hand knowledge of the said evidence, that a named third party (private investigator Derrick Snowdy) was available to provide the said evidence, and that the PMO had not communicated directly with Mr. Snowdy.

The RCMP found no evidence worthy of acting upon, did not even question Guergis, and closed the case. If the allegations in the Novak letter had any truth then the RCMP’s reaction should be of great concern to all Canadians.

The plaintiff (Guergis) claims that the entire episode was designed to impair her reputation sufficiently to remove her and/or justify her removal from all her positions, including her party candidacy in the Electoral District of Simcoe-Grey.

On the face of it, the plaintiff’s claim is not outlandish. If it can be proven then the actions of the defendants would constitute a conspiracy to harm, and other torts including defamation and misfeasance in public office. That is, if the claim can be proved, then there was illegal behaviour on the part of the defendants and just remedy to the plaintiff should follow.   

This was a (Harper et al.) defendant’s motion to strike the (Guergis) plaintiff’s pleadings (or claim to the Court). Therefore, the question before the Court was: Assuming the plaintiff’s alleged facts to be true, should the claim be allowed to proceed, in that it could possibly lead to some just remedy in law? In legal jargon: “The court must assume that the alleged facts can be proven, and ask whether it is “plain and obvious” that the Statement of Claim discloses no reasonable cause of action?”

To the lay person, it is obvious that of course the action should be allowed to proceed, in order for justice to be found. Ah, but the legal landscape in the eyes of Justice Hackland is sufficiently rocky for there to be a deep enough crevice that this action should never see the light of day…

Hackland’s argument is as follows. A decision of a Prime Minister to can a Minister, remove a party candidate, and so on, is a decision for which the Prime Minister is not answerable to the courts. It is a political decision, the merits of which cannot be questioned by the courts. This established principle is called “Crown Prerogative” or, depending on the type of decision, “Parliamentary Privilege”.

Since the decisions at issue were entirely protected under say Parliamentary Privilege, Hackland argues, then the Court has no jurisdiction to examine the circumstances or reasons for the decisions and the case should not be heard: The pleadings must be struck.

Hackland argues that to allow a Prime Minister’s privileged decisions to be questioned in the courts on the basis of mere allegations of illegal behaviour would render the principle of say Parliamentary Privilege meaningless and, therefore, the practical operation of the legislature impossible. To the lay person, this would mean that illegal behaviour as part of a Prime Minister exercising his/her privileged authority is not subject to the rule of law.

Hackland arrives at this nonsensical conclusion by lack of discernment. A correct analysis would discern all the legitimate political dimensions of a Prime Minister’s privileged decisions, which cannot be questioned by the courts under the true principle of Parliamentary Privilege, from any illegal components of a Prime Minister’s privileged decisions, which must be subject to the rule of law. In this correct analysis, the just remedy may or may not include reversals of decisions, even if the illegal behaviour is proved. But the plaintiff has a right that other remedies also be considered in order to achieve justice.

There is no case law that states that illegal behaviour, involving the misuse of a public officer’s power and influence, can be shielded from the court’s consideration using Parliamentary Privilege. The case law cited by Justice Hackland (Canada (House of Commons) v. Vaid) is consistent with a Parliamentary Privilege which protects political and legislative executive decisions from judicial review, not a Parliamentary Privilege which shields executives from the law in performing illegal acts.

To this observer, Hackland’s error of discernment and broad brush approach depriving the plaintiff of access to justice is so egregious that it needs to be questioned in the public sphere. Such questioning, in Canada, is protected by a Charter guarantee to the Open Court Principle and constitutes an exercise of democracy.

On the individual psychology of food: Against calorie management

By Denis G. Rancourt

Modern society is structured as a highly stratified dominance hierarchy. The present superior global human hierarchy is maintained -- in its depth and breadth -- by advanced transportation, communication, information, and military technologies, and is unprecedented in the hundred million year history of mammalian life on the planet. Consequently, the degree of top-down control of the individual, in his/her every thought and attitude, is also unprecedented, whether conscious or not.

The latter control is essential for maintaining the hierarchy against the destabilizing natural impulses for individual freedom and for individual influence in local community. Independence must be actively suppressed and individual health, which is premised on independence, is always sacrificed for the benefit of maintaining and increasing hierarchical control [1].

Consequently, individual health is a problem for hierarchy and is only allowed in (self) indoctrinated individuals, to the degree that the indoctrination is seamless.The main determinant factor of individual health is the individual's perceived position or status within the dominance hierarchy, which is often largely determined by the individual's actual position within the dominance hierarchy [2]. This perceived position is, in turn, fundamentally a question of the individual's self-image of utility, place, and power.

Since the individual can only have utility, place, and power as prescribed by the dominance hierarchy, and since most individuals occupy lower strata of the hierarchy, then necessarily most individuals are unhealthy, have sub-ideal health levels.

Unhealthy overweightness and obesity are caused by over eating. The science of metabolic energy budgets is incontrovertible on the latter point! Over eating is caused by low self-image and the associated psychological pain.

Here, I suggest two solutions: A radical solution anchored in personal politics, and a practical solution that is ridiculously easy to implement. The two solutions can be combined, or actuated independently.

The personal political solution is to eye the enemy that actually has its hand on your throat and to fight the bastards. A true fight avoiding windmills will make you both active and healthy. Take power to get power. The food thing will work itself out if your primordial target becomes the fight for your influence and dignity, against the real enemy. This solution is extremely difficult to implement because the system has done everything to incapacitate you regarding any type of self-defense, and has even made you blind regarding the actual physical appearance of the enemy.

The practical solution, which can be implemented immediately, is to make one brisk continuous 10-minute walk every day. This can be increased to 20 minutes per day if you feel so inclined.

Peer reviewed medical research shows that such a 10-minute walk per day may be the single most healthy thing one could ever do, and that this health therapy far outweighs virtually all other medical interventions known to modern science... [3]

Here, keep in mind that "brisk walk" is specific to you. Don't push too hard but don't sleep walk either, in such a way that it doesn't even get the juices flowing. Be confident that your body will repair itself if the joints hurt at first, and so on. This won't kill you.

The idea here is not that the calorie burning from the walking itself is of any use. It is not and that is not the point. The idea is twofold, in my opinion.

First, a million years of human evolution would never have predicted that humanity could come to a point where one actually has to think about walking at least 10 minutes a day. In that sense, it is fundamentally bad for one's metabolism to not have at least this degree of animal activity. And science has now provided the answer about the quantitative minimal degree that is required to avoid a slow meltdown into immobility, depression, and early death [3].

Secondly, and as importantly, walking is a physical expression of independence and power. You and your body go where you want to go, say hi to those you want to greet, go at the pace you want to have, and choose everything about the walking. In this sense, walking gives one a psycho-physiological experience of independence and power, one that directly nurtures self-esteem.

This is the missing link in calorie intake theory as a paradigm for weight loss: Physical activity, if chosen and self-directed, directly impacts self-esteem which, in turn, mediates compulsive over eating. As a result, the calorie balance sheet is affected far beyond the energy consumption value of the physical activity itself.

Why is the latter point such a secret? Why all the emphasis on calorie counting, which acts to mask this truth about the real benefits of physical activity? How is it that the most important advice is never clearly given as being the main point? One answer is that the professional behaviours of medical doctors and nutritionists are necessarily aligned with maintenance of the dominance hierarchy. Independence threatens hierarchy.  

Endnotes

[1] 2011-12-20::: A Theory of Chronic Pain, by Denis G. Rancourt
[2] 2011-11-21::: Is establishment medicine an injurious scam?, by Denis G. Rancourt
[3] 2011-12-02::: "23 1/2 hours: What is the single best thing we can do for our health?", video by Dr. Mike Evans, University of Toronto.

Denis G. Rancourt is a former tenured and full professor of physics at the University of Ottawa in Canada. He practiced several areas of science (including physics and environmental science) which were funded by a national agency and ran an internationally recognized laboratory. He has published over 100 articles in leading scientific journals and several social commentary essays. He developed popular activism courses and was an outspoken critic of the university administration and a defender of student and Palestinian rights. He was fired for his dissidence in 2009. His dismissal case is scheduled to continue court hearings into 2013.

Climatologist Dr. Tim Ball on the politics and professional ethics of global warming agitation

On July 12, 2012, CHUO 89.1 FM (Ottawa) The Train's Denis Rancourt interviewed Professor Dr. Tim Ball, climatologist, about climate science and the politics of global warming. Fascinating history of the climatology profession... Dr. Ball is being sued for defamation in regard to his criticisms of other climate professionals. The lawsuits are on-going and Dr. Ball is committed to getting to the truth and justice.

This is a remarkable interview where you can hear what it is like to respect the memory of decades of acquired scientific knowledge, as opposed to re-defining reality for careerist goals.

 LINK TO RADIO INTERVIEW

Radio Talk::: Denis Rancourt on science and science popular education propaganda

This one-hour radio show is receiving positive feedback from around the world, mostly Russia this month:

CHUO 89.1 FM Ottawa -- Dr. Denis Rancourt goes it alone critiquing science and science popular education propaganda
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