Shooting the Messenger
33 – In the Supreme Court of Canada
The Right Honourable Chief Justice Brian Dickson
The Honourable Mr. Justice William McIntyre
The Honourable Mr. Justice Antonio Lamer
Robert Cousineau Q.C., counsel for HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Treasury Board.
John E. McCormick Esq., counsel for the Public Service Staff Relations Board
Bernard Payeur representing himself
I had just stepped up to the lectern and was getting ready to address the Court when a group of school children on a field trip were ushered in by their teacher. If anything, they would learn a valuable lesson about getting justice in Canada that day.
I had fifteen minutes to convince the Supreme Court of Canada to grant me leave to appeal the Judgement of the Federal Court of Appeal. Even if I had been given more time, I did not want to repeat the mistake I had made in the Federal Court by telling the whole story.
I again prepared my arguments after reading old Memorandums of Point of Arguments* given to me by the always helpful Court staff.
It may have been after reading some of these Memorandums that I decided to base my appeal on a single issue: Joe Clark’s letter. I would argue that section 28 did not prevent the Federal Court of Appeal from ruling that Thomas Brown had erred in allowing such a letter to be introduced into evidence. I would argue that Thomas Brown’s actions, and the Federal Court’s decision not to intervene in an obvious miscarriage of justice brought the administration of justice into disrepute.
What about the question the Federal Court suggested I ask the Supreme Court?
The essence of the Federal Court’s question is contained under Point at Issue, paragraph 11; the part about the Federal Court bringing the administration of justice into disrepute by using section 28 to avoid finding fault with Thomas W. Brown’s Decision exonerating Foreign Affairs of any wrongdoing.
From my discussions with Court staff, I could not simply go up to the Supreme Court and ask them to answer yes or no to a straightforward question. I had to frame it in some kind of legalese and give it some context. I thought Joe Clark’s letter gave it that context.
Also, for the Supreme Court of Canada to grant me leave to appeal the Judgement of the Federal Court, I had to convince it that it was an issue of national importance. That is why I made this statement of fact early on in my memorandum to the Court.
Chief Justice Brian Dickson was not of that opinion. “This is not a question of national interest,” he said, after I had finished with my presentation.
When is a question of justice not of national interest? And since when is a question of justice a matter of popular appeal?
In hindsight, I should have argued lack of due process. In hindsight, I don’t think I had a hope in hell of getting the Order I sought. If Thomas W. Brown was worried that a decision in my favour was going to attract attention, think about the type of attention a Supreme Court hearing might attract!
Had Foreign Affairs' corrupting influence reached the highest court in the land?
According to Chantal Portelance, Manager, Communications Services for the Supreme Court of Canada only “one self-represented litigant was granted appeal before the Supreme Court between 1999 and 2007”.
Only one “self-represented litigant” in almost ten years! The Supreme Court of Canada is obviously not in the habit of granting citizens without professional legal representation leave to appeal.
Given this depressing statistic, I must assume that if the Right Honourable Brian Dickson decided to ignore my plea for justice, it was not because he did not want his Court to become entangled in Foreign Affairs’ web of lies.
* Memorandum of Point of Arguments (Partial):
STATEMENT OF FACTS
1. This is an application for leave to appeal to the Supreme Court of Canada from the Judgment of the Federal Court of Appeal, rendered June 3, 1987. The Federal Court of Appeal refused to render a Judgment on whether the proceedings before the Public Service Staff Relations Board has brought the administration of justice into disrepute because, in its opinion "Mr. Payeur, in effect, is asking us to review and reweigh the evidence. This we cannot do in a proceeding under section 28 of the Federal Court Act.
2. This case is of major importance to any Canadian who has or will appear before one of the countless federal judicial or quasi-judicial tribunals. It is important because it raises the issue of the impartiality of such tribunals;... it is important because it raises the issue of whether, under present regulations, even tainted decision of such tribunals can be successfully appealed. The issues raised in this document, it is respectfully submitted are of national importance.
POINTS AT ISSUE
11. Whether the Federal Court of Appeal erred in not ruling, section 28 of the Federal Court Act notwithstanding that the actions of government officials during hearings held before the Public Service Staff Relations Board into the dismissal of the Applicant had brought the administration of justice into disrepute.
12. This case raises the following question of importance.
Whether correspondence between a private citizen and a Member of Parliament is privileged information and whether such correspondence can be used by public servants in judicial or quasi-judicial proceedings, in which they are implicated, without ... bringing the administration of justice into disrepute.
13. By introducing the letter from the Rt. Hon. Joe Clark to the Applicant into the proceedings before the Public Service Staff Relations Board, officials of the Department of External Affairs brought the administration of justice into disrepute by creating a situation whereby the adjudicator could not rule in favour of the Applicant without questioning the competence of the Secretary of State for External Affairs.
14. The adjudicator is clearly troubled by the implication of the letter as can be gleamed from a conversation with the representative of the Applicant at the hearing.
“Mr. Brown indicated to me that, in his view, the introduction into evidence of the letter from the Rt. Honourable Joe Clark, Secretary of State for External Affairs, of May 5, 1985, was such that Mr. Payeur's case and the Adjudication Decision might attract considerable media attention.” Statutory Declaration of Evelyne Henry of the Public Service Alliance of Canada. Motion Book, Tab 2. p.1)
15. A decision calling into question the competence of the Secretary of State, a former Prime Minister “might attract considerable media attention.” A decision against a faceless public servant, the reputation of public servants being what it is, would go unnoticed.
16. This case goes far beyond a dismissal for “alleged” insubordination. If section 28 of the Federal Court Act is strictly applied, without consideration for justice and fairness, decisions of administrative tribunals are for all intents and purposes “unappealable (sic).”
17. The applicant wishes the opportunity to further develop the arguments presented here in the Supreme Court of Canada. This, we believe is the first opportunity the Court will have to rule on what is acceptable conduct by government officials implicated in judicial or quasi-judicial proceedings …
18. The applicant request that leave to appeal from the Judgement of the Federal Court of Appeal be granted.