Supreme Court of Canada – Evidence of the continuation of the conspiracy by The Supreme Court of Canada, Justices; Ian Binnie, Marie Deschamps and Rosalie Silberman Abella dismissing The Application for Leave for which was with purposeful intent to cover up the criminal activity within Alberta Court of Queen’s Bench action 9703-12949 for which denied Donald H. Broder of his Constitional Rights by not allowing a Canadian citizen to bring this matter before The Supreme Court of Canada and prove he had been framed by his own lawyers. It is apparent The Supreme Court of Canada denied the Application as it would not be in the publics best interest to be made aware that a conspiracy was purposely orchestrated by Federally appointed Justices and Alberta lawyers for whom all had acted in collusion to frame, defrauded and falsely incarcerate an innocent 75 year old Senior Citizen. The information on this tab will provide the evidence of how low they will go to protect their own by covering up Judicial corruption by The Alberta Justice Department colluding with lawyers as demonstrated by their own documents shown below ….

BRODERBUCK

Presents

THE BUCK FOR JUSTICE

*************************************

 The Highest Court in Canada

 victim

or

 perpetrator

you decide!

The Supreme Court of Canada tab;

allows you the reader to be the jury and decide if;

The highest Court in Canada

was a willful participant by covering up that

Conspiracy, Fraud, Collusion, and Purgery!

that had taken place against an innocent senior citizen

at The Edmonton Law Courts

 Marvin Bloos of Beresh Depoe Cunningham

was

Donald Broder’s  criminal lawyer

and

also the lawyer that filed the

Application for Leave  to;

The Supreme Court of Canada

on behalf of

Donald H. Broder

What did

Marvin Bloos of Beresh Depoe Cunningham

 and

Henry S. Brown of Gowling Lafleur Henderson

“Ottawa agents for solicitors for the Applicant”

not tell

The Supreme Court of Canada!

Leave to the Supreme Court of Canada (full version)PDF

Leave to the Supreme Court of Canada (full version)PDF
This document was purchased from the Clerks Office at The Supreme Court of Canada,  scanned in and e mailed to Donald Broder directly from The Supreme Court of Canada in PDF format. The Application for Leave was heard by Justices; Ian Binnie, Marie Deschamps and Rosalie Silberman Abella and dismissed on April 27, 2006. The  following dismissal was provided to Donald Broder by his lawyer Marvin Bloos of Beresh Depoe Cunningham with a correspondence dated April 28, 2006.

The Supreme Court of Canada Order to dismiss The Application for Leave. (full version)PDF

YOU BE THE JURY!

Were

Supreme Court Justices;  

 Ian Binnie, Marie Deschamps and Rosalie Silberman Abella.

 for whom dismissed

Donald H. Broder’s;

Application for Leave to;

The Supreme Court of Canada;

also acting in collusion to conceal criminal activity,

committed by Justices and lawyers in Alberta, Canada;

and based their decision that;

it was not in the public’s best interest to be made aware that;

  conspiracy, collusion and fraud had taken place at;

The Edmonton Law Courts;

  for which caused an innocent senior citizen  to be framed

wrongfully incarcerated and defrauded by;

The Alberta Justice Department and Donald H. Broder’s own Lawyers.


It is alleged that;

The Supreme Court of Canada has been made aware that;

Donald H. Broder’s

own lawyer’s

Marvin Bloos

Marvin Bloos of Beresh Depoe Cunningham

and

Henry S. Brown of Gowling Lafleur Henderson

conspired with

the Plaintiff’s lawyer

Elizabeth MacInnis of Weir Bowen

to conceal from

The Supreme Court of Canada

the criminal activity

that had been orchestrated by Justices within

The Alberta Law Courts.

to willfully frame and falsely incarcerate an

innocent 75 year old senior citizen

Donald H. Broder

and refuse to

criminally charge these white collar criminals that;

orchestrated

The Application for Leave to;

THE SUPREME COURT OF CANADA

by purposely

excluding and concealing that

Conspiracy, Collusion and Fraud had taken place 

between Federally appointed Justices and

lawyers in Alberta had taken place

by their willful actions committing;

fraud, purgery, backdating documents,

deleting audio from the trial tapes

and also

forging judges signatures.

Marvin Bloos of Beresh Depoe Cunningham

allowed this crime to be committed

against his own client

Donald H. Broder.

************************************************

Marvin Bloos

of

Beresh Depoe Cunningham

actions were  willful

as he chose not to

identify the

criminal conduct of;

The Alberta Justice Department

and

lawyers from Alberta, Canada

within

The Application For Leave to

The Supreme Court of Canada

as follows;

1) Prior to applying for Probate and obtaining the grant of administration, Elizabeth MacInnis of Weir Bowen on behalf of the Plaintiff’s obtained a Court Order from Justice Lewis to force      the  pleadings closed on February 15, 2001 only to be extended by the Defendant’s by Chief Justice A. H. Wachowich to on or before March 15, 2001 to allow for a 129 Application   challenging the issue of standing or in this case lack of Personal Representatives being named as Plaintiff’s within Action 9703-12949.

2) Justice C. P. Clarke acted biased and prejudiced towards the Defendants by circumvented the Alberta Rules of Court and ordering the addition of new Plaintiff’s during the Defendants 129 Appeal.

3) Alberta’s New Limitations of Actions Act references a two year limitation period to add or substitute a new party to an Action and evidence will be provided that over 4 years had lapsed before the Alberta Law Courts added the Personal Representatives as Plaintiff’s within Action 9703-12949.

4) The FIAT “permission to amend” on the Amended Statement of Defence had been backdated from it’s true date of January 9, 2004 to January 9, 2003 to predate the false filing of the Certificate of Readiness date of April 17, 2003 and the Judges second signature forged.

5) Elizabeth MacInnis of Weir Bowen was acting in conflict of interest and in Breach of the Legal Profession Act by acting for the Estate of Edmund Broder evidence will bee provided in transcript from a cross-examination of Guy Lacourciere that Ms. MacInnis made the comment she had been ambushed and as such she could not now represent all the Beneficiaries inclusive of the Defendant, Donald Broder in a fair and non-prejudicial manner as she was upset because she had been ambushed by Donald Broder’s Lawyer, Robert J. Sawers for allowing her to close the pleadings on herself before she applied for probate.

6) Evidence in transcript from the cross-examination of Guy Lacourciere explaining how Donald Broder’s own lawyer Bryan Kickham of Miller Thomson colluded with Elizabeth MacInnis of Weir Bowen to conceal the Original Statement of Defence from the trial Judge, Justice Myra Bielby because if it had be known at trial that the issue of standing had been raised within the original Statement of Defence Estoppel would have prevent Elizabeth MacInnis of Weir Bowen from relying on the Relation Back Doctrine to win at trial.

Leave to the Supreme Court of Canada (full version)PDF

Contained within the full PDF version of The Application for Leave to The Supreme Court  of Canada above;

Under: Table of Contents – paragraph 5 – Documents Relied Upon: Highlighted

 

 

Note: The documents listed in paragraph 5 above;

A. Statement of Claim                                            July 8, 1997

  B. Statement of Defence                                       July 28, 1997

                  C. Amended Statement of Claim                    December 18, 2000

                               D. Amended Amended Statement of Claim           November 5, 2001

Listed under B. 

Was the only Pleading listed to be relied upon by;

Donald H. Broder’s

own lawyer

Marvin Bloos of Beresh Depoe Cunningham

  within

The Application for Leave to

The Supreme Court of Canada

***************************************************************************************

Note:

Donald H. Broder had filed a;

Statement of Defence to The Amended Amended Statement of Claim

and

an Amended Statement of Defence to The Amended Amended Statement of Claim

for which were not listed to be relied upon

             “Did you know!”

The Supreme Court of Canada was not shown all the documents listed below!

Excluded purposely

from;

The Application For Leave to

The Supreme Court of Canada

was;

  • Justice J. L. Lewis order

 

“The Supreme Court of Canada was not shown that;”

On December 18, 2000

Elizabeth MacInnis of Weir Bowen

obtained a Court Order from Justice J. L. Lewis to;

Paragraph 5 above;

file The Certificate of Readiness

on or before February 15, 2001

which was at her own request to close the Pleadings.

and in Paragraph 2;

“the Defendants were allowed to apply to The Chief Justice A. H. Wachowich for a jury before February 15, 2001″

Excluded purposely

 

from;

The Application For Leave to

The Supreme Court of Canada

 

by

Marvin Bloos of Beresh Depoe Cunningham

was the;

  • Chief Justice A. H. Wachowich order

“The Supreme Court of Canada was not shown that;”

On February 13, 2001

During the jury trial application;

Chief Justice A. H. Wachowich

Ordered;

“contained within the document above in”

paragraph 2; allowing the defendants time to have a 129 application

paragraph 3;  extended the time to file the Certificate of Readiness to on or before March 15, 2001

paragraph 4; only the Defendants can extend the time to file the Certificate of Readiness

Paragraph 1; The Chief Justice A. H. Wachowich dismissed the jury trial application

****************************************************************************************************

Elizabeth MacInnis of Weir Bowen has not followed;

The Chief Justice A. H. Wachowich Order of February 13, 2001;

to file The Certificate of Readiness on or before March 15, 2001 !

to date!

Oh, hold on

Elizabeth MacInnis of Weir Bowen told Justice Marceau she had filed;

The conditional Certificate of Readiness on April 17, 2003

see below!

“Marvin Bloos or Beresh Depoe Cunningham did not tell;

The Supreme Court of Canada that;”

Elizabeth MacInnis of Weir Bowen and Guy Lacourciere of Lacourciere Associates played;

Justice Marceau and the parties for which they were acting for

by confirming the conditional Certificate of Readiness had been filed

April 17, 2003

and not as per The Chief Justice A. H. Wachowich had ordered

March 15, 2001

Then;

Upon conclusion of the trial held at Edmonton Law Courts January 19 – 23, 2004

Elizabeth MacInnis of Weir Bowen had;

Donald H. Broder

incarcerated at The Edmonton Remand Center for 11 days for not

following the Trial Judge Justice Bielby’s Court Order of

February 2004.

While Donald H. Broder was being held in jail Guy Lacourciere of Lacourciere Cervini

contacted Joyce Broder to obtain the money to purchase the trophy back from a lease to own agreement

Donald Broder had with an American and when that fell through he provided the money to Elizabeth MacInnis of Weir Bowen to secure

Donald H. Broder’s release from prison.

“See below the money transfer.”

This next document is the July 13, 2004 session before Justice Bielby where

Elizabeth MacInnis instructs the Court to send Donald H. Broder a strong message that when a;

 Court Order is given in ought to be obeyed!

When all the time it was;

Elizabeth MacInnis of Weir Bowen that was not following th;

Chief Justice A. H. Wachowich

Court Order!

*****************************************************************************************************

Did you know!

The Chief Justice A. H. Wachowich said no to a jury trial because he would have been aware that;

Elizabeth MacInnis of Weir Bowen had just been ambushed and that the Defendants;

 Donald Broder and Craig Broder

would not require a Jury because;

the 129 application would be successful with the dismissal of the action as

The Plaintiffs had no standing to sue in their personal names;

and only

The Personal Representatives had such a right to sue

but did not exist

because

The Application for Probate

had never been before the Surrogate Courts

since the death of Edmund Broder on December 26, 1968

and the date of February 13, 2001 when the Application was heard by

The Chief Justice A. H. Wachowich.

and now

 The Pleadings had been forced closed by

the Order to file

The Certificate of Readiness;

Elizabeth MacInnis of Weir Bowen

had been granted by;

Justice J. L. Lewis and extended by Chief Justice A. H. Wachowich

“The Supreme Court of Canada was shown the;

  1. The Original Statement of Claim was filed  – July 8, 1997  –“for which did not name the personal representatives as plaintiffs”
  2. The Amended Amended Statement of Claim was filed November 5, 2001“for which was the date the personal representatives were added as plaintiffs”

Within the written submission the issue was not raised to;

“The Supreme Court of Canada that;”

 The substitution of new Plaintiff’s

” The Personal Representatives”

was outside the applicable limitation period of 2 years as per

Alberta’s Limitations of Actions Act.

 The Supreme Court of Canada was shown that; 

The Statement of Claim was filed on  – July 8, 1997

and

The Personal Representatives were substituted as Plaintiffs on November 5, 2001.

and that;

The Personal Representatives were substituted as Plaintiffs

excess of 4 years after the

Original Statement of Claim was filed!

“The Supreme Court of Canada was not shown that;”

The Pleadings within the said action were order closed

immediately following the 129 Application before Master Quinn;

So to keep the pleadings open and favor

Elizabeth MacInnis of Weir Bowen;

Master Quinn adjourned the application to allow;

Elizabeth MacInnis of Weir Bowen

time to apply for probate.

  • Master Quinn’s Order below!

Paragraph 4; “If no one is appointed as Administrator it is my intention to strike out the Statement of Claim.”

“The Supreme Court of Canada was not told that;”

Elizabeth MacInnis of Weir Bowen had requested an adjournment and delayed this Application to

April 27, 2001

due to an urgent family matter

and now on April 27, 2001

Elizabeth MacInnis of Weir Bowen was to  conform with the

Order of ;

The Chief JusticeA. H. Wachowich

and file

The Certificate of Readiness

immediately following

Donald Broder and Craig Broder’s 129 Application.

Elizabeth MacInnis of Weir Bowen refused to file the Certificate of Readiness to close the Pleadings as she was made aware that

The Plaintiff’s she was representing required time to apply for probate and appoint two of them as Personal Representatives

then a Pleading would be required to

Substitute new Plaintiff’s

 and she could not proceed if

The Certificate of Readiness was filed.

**********************************************************

Elizabeth MacInnis of Weir Bowen had her legal secretary

Joan C. Hill file a;

The false Affidavit of Service for the;

Application for Probate at;

 The Surrogate Courts in Edmonton, Alberta.

 

Robert Sawers Affidavit (full version)PDF

Quote: from Robert Sawers Affidavit

  • [7.] On or about May 10, 2001, counsel for the plaintiffs In the Queen’s Bench Action, Elizabeth Maclnnis of Weir Bowen LLP (MacInnis), filed an application with the Surrogate Court of Alberta, being Court file No. SES113S67, tor a Grant of Administration of the Estate of Edmund Broder (the “Surrogate Court Action”) A copy of the procedure record for the Surrogate Court Action, which my counsel advises and I verily believe is a true copy of the procedure record received from the court, is attached hereto and marked as Exhibit 5.
  • [8.] Maclnnis served Donald Broder with a copy of the required Notice to Beneficiary and of the Application for Grant of Administration, via registered mail, but Donald Broder did not receive these documents until on or about May 28, 200t. A copy of an affidavit sworn by Donald Broder on October 16, 2001, and subsequently filed in the Surrogate Court Action, in which he deposes to his receipt of the Notice, is attached hereto and marked as Exhibit 6.
  • [9.] Maclnnis provided me with a copy of the letter and documents served on Donald Broder, which I received on or about May 15, 2001. However, at that time I was not counsel for Donald Broder in the Surrogate Court Action, and did not believe that service would be effective on Donald Broder until he himself received the documents. A copy of Maclnnis’ May 10, 2001 letter, providing me with a copy of the Notice to Beneficiary and Application for Grant of Administration being served on Donald Broder, is attached hereto and marked as Exhibit 7.
  • [11.] I represented Don Broder in the Surrogate Court Action beginning at some point in time on or after May 28,2001.

“The Supreme Court of Canada was not told that;”

Joan C. Hill had filed a false Affidavit of Service!

Robert J. Sawers was not in a legal position to;

Accept Service for

The Application for Probate

on behalf of

Donald H. Broder

because

Elizabeth MacInnis of Weir Bowen had forced the Pleadings closed within action 9703-12949

and The Estate would have to commence a new Litigation

and service could only be effective directly on

Donald H. Broder

“The Supreme Court of Canada was not told that;”

During Donald H. Broder’s Appeal of

Master Quinn’s decision

Justice C. P. Clarke

winked and

Order that

Elizabeth MacInnis of Weir Bowen could add the new Plaintiffs

to Action 9703-12949

well after the applicable limitation period had expired

as per Alberta’s Limitations of Action Act

Justice C. P. Clarke added the Personal Representatives during

Donald H. Broder’s Appeal of Master Quinn’s Order

after the Limitation Period had lapsed and

circumvented The Rules of Court;

as he had been made aware

The Pleadings were closed and

Elizabeth MacInnis of Weir Bowen

could not bring any further Applications

which would be required to

Amended the  Amended Statement of Claim

and add the Personal Representatives as Plaintiff’s.

Did you know!

Alison Redford – Premier – Past Justice Minister / Attorney General just

juggle the monies your Justice Department steals from innocent senior like;

Donald H. Broder is just one example

of how your role in government is pathetic!

*************************************************************************************

Oh know what to do! –  the money would have to be recovered from the kickbacks provided to the perpetrators!

and

Decisions they make about protecting innocent senior citizens will show they mean business about controlling Judicial corruption!

*********************************************************************************************************************************************

Marvin Bloos of Beresh Depoe Cunningham

Made a willful decision to exclude from the

Table of Contents of the Application for Leave to;

The Supreme Court of Canada

that;

Donald H. Broder’s own lawyer;

Bryan Kickham of Miller Thomson

Amended The Statement of Defence on January 9, 2004;

left out the date then after the Judges sign the;

FIAT “permission to amend”

added in the date of January 9, 2003.

to predate the false Certificate of Readiness file date of

April 17, 2003.

This transcript provides proof of the false date for which

Elizabeth MacInnis of Weir Bowen filed

The conditional Certificate of Readiness

Page 11 of the procedural record print ” below”provided by

The Clerk of the Court at Edmonton Law Courts proves

 the correct date the FIAT was filed as;

“09 January, 2004

the MT following the file date stands for

Law Firm of

Miller Thomson

for which

Bryan Kickham

was the lawyer representing

Donald H. Broder.

Did you know!

Marvin Bloos of Beresh Depoe Cunningham did not tell

The Supreme Court of Canada

that;

Guy Lacourciere of Lacourciere Associates made up an excuse to quit in October, 2003

just three months before the scheduled trial date of January 9, 2004

Bryan Kickham of Miller Thomson was retained in November of 2003 to

act as counsel for Donald H. Broder and prepare for the trial.

Bryan Kickham immediately went to work for the Plaintiffs lawyer;

Elizabeth MacInnis of Weir Bowen

because she had complained about being ambushed!

Below is an excerpt from pages 28 and 29 of

The cross-examination of

Guy Lacourciere

on his Affidavit

and filed an Amended Statement of Defence, backdating the FIAT and forging the judges signature

for the sole purpose to frame his own client

and conceal that the first time the issue of standing / lack of Personal Representatives was raised within paragraph 8 of the

Original Statement of Defence.

Did you know!

Below are excerpts from the closing arguments at trial whereby the trial Judge;

Justice Bielby asks Elizabeth MacInnis of Weir Bowen

when the first time the Defendants raised the issue of lack of Personal Representatives

Elizabeth MacInnis of Weir Bowen commits purgey knowingly that the issue had been raised within the

Original Statement of Defence on July 28, 1997 and not as she told Justice Bielby

“early 2001”

For which will expose what else

Marvin Bloos of Beresh Depoe Cunningham

did not show to;

The Supreme Court of Canada

Below is an excerpt from pages 41, 42,and 43 of

The cross-examination of

Guy Lacourciere

on his Affidavit

********************************************************************************************************************************

The Supreme Court of Canada was shown;

“The Reasons for Decision of Justice Myra Bielby!”

Page 2, paragraph [2]  –This action is nonetheless not statute barred, nor a nuilty through application of s. 61(1) of the limitaions of Actions Act, R.S.A. 1980, c. L-15 9″the Limitation of Actions Act”) or, alternatively, through  application of principle of “relation back”.

Page 17, paragraph [82] – The Defendant led evidence from his then counsel, Joseph Kueber to the effect that Mr. Kueber wrote to Plaintiff’s counsel in April of 1997 advicing that he would advance a limitations defence but neither of his letters expressly raised the issue of the Plaintiffs’ standing to sue at that time which, in any case, was before the original Statement of Claim was filed. Therefore, those letters created no estoppel which would prevent the application of the principle of relation back. 

The Supreme Court of Canada was informed within the Application for Leave the first time the issue of standing was raised / Lack of Personal Representatives was contained within paragraph 8, in the Original Statement of Defence filed on July 28, 1997.

 Did you know!

The Supreme Court of Canada

dismissed

Donald H. Broder’s Application for leave

The Supreme Court of Canada Order to dismiss The Application for Leave. (full version)PDF

so this matter has never been before;

The Supreme Court of Canada

The Application for Leave to

The Supreme Court of Canada

was prepared by

Marvin Bloos of

The Law Firm Beresh Depoe Cunningham

in Edmonton , Alberta

and all criminal content was left out

so the dismissal was orchestrated

by Marvin Bloos as he was also

Donald H. Broder’s

criminal lawyer

and would be also in serious trouble

if the truth was told

for allowing Donald H. Broder to be falsely incarcerated

and held until he succumbed to the demands

that Elizabeth MacInnis of Weir Bowen

framed him for!

Did you know!

Marvin Bloos of Beresh Depoe Cunningham;

willfully participated in framing an honorable man

  charged him over $30,000 for legal fees

watched him being falsely incarcerated

and then orchestrated his Application for Leave to;

The Supreme Court of Canada.

******************************************************

It has been requested that the;

RCMP lay criminal charges against;

Bryan Kickham of Miller Thomson,

Marvin Bloos of Beresh Depoe Cunningham,

and

Elizabeth MacInnis of Weir Bowen

for

Conspiring to orchestrate the outcome of ;

Court of Queen’s Bench Action 9703-12949

purposely incarcerating an innocent man,

defrauding him and his family of their life and retirement savings,

purgery, fraud on the courts and falsifying documents!

*********************************************************************

There is no lower form of living organisms than

the named perpetrators for whom

all willfully participated to frame

Donald H. Broder

A true man of honor!

In memory of Donald H. Broder standing beside one of his hand built carriages.

Donald H. Broder lent this carriage to The Bridal Fair in Edmonton, then had to sell it to pay for what Marvin Bloos was defrauding him of.

*************************************************************************************************************************

Donald H. Broder’s lawsuit against

  Marvin Bloos of Beresh Depoe was dismissed at;

Calgary Law Courts

and without

Donald H. Broder

present

as he was hospitalized on the day the

Application was heard.

Did you know!

Within the order below it is noted that Donald H. Broder was absent;

The lawyer; Ivan Derer acting for Marvin Bloos was

informed of the serious nature of Donald H. Broder medical condition.

Also note in paragraph 3 that Justice Romaine banned

Donald H. Broder from filing any further proceedings against Marvin Bloos

without leave “permission” of this court.

You the reader be the Jury and render your verdict.

Was the Supreme Court of Canada also acting in a Conspiracy to ambush an innocent 77 year old Senior Citizen?

Because Elizabeth MacInnis of Weir Bowen had made the comment she had been ambushed!

or was 

The Supreme Court of Canada acting as they always do!

Choosing not to hear cases that are not in the public best interest!

It would not be in the Public’s Best Interest

to be made aware that 

Lawyers and Judges in Alberta

were involved in willful acts of collusion to

frame and defraud an innocent senior citizen! 

Beverley McLachlin,

Chief Justice of Canada

Remember the quote;

Every town has a story, Tombstone has a legend.

A Legend is assigned by the people;


The Broder Buck is a legend!

 

  “Legends like these did not believe the Government of Canada then!”

“We still do not believe any of you today!”

“The Right Honourable

“is assigned by the government!”

Beverley McLachlin,

Chief Justice of Canada

from Ottawa, Ontario, Canada

the story of your town

has now been told!

BUT

we still chose to post

 your  phony comforting  story

you wrote to the

Canadian people.

About the Court

Judges of the Court

Remarks of Beverley McLachlin, Chief Justice of Canada

The Challenge of Fighting Terrorism While Maintaining our Civil Liberties

Eleven days ago, the world paused to mark the 8th anniversary of an event known to an entire generation simply as “9/11” — the suicide attacks that felled the twin towers of the World Trade Centre, killing more than 2,995 people, 24 of whom were Canadians. The events of 9/11 have come to represent a pivotal moment in history. They mark the time when many people first became conscious — fully conscious — of the phenomenon of terrorism.

For many, terrorism is still understood in terms of Osama Bin Laden Al Qaeda and Jihad-driven suicide bombers. But to narrowly define it by the events most recently stamped upon our collective imagination blinds us to two facts I believe are essential if we are to successfully contain terrorism and maintain our democratic values. The first is that terrorism is an historic, ongoing phenomenon that neither started nor ended with 9/11. The second, flowing from the first, is that our response to terrorism must be broad, systematic and effective. To succeed, it must achieve two goals: first, effectively containing terrorism, and second, all the while preserving our fundamental values and the rule of law. This afternoon, I wish to address these two realities and examine why the false dichotomy between safety and our ideals must be rejected.

First, the phenomenon of terrorism. Any discussion of terrorism must define the term at the outset. Precise definitions on which everyone agrees have proven difficult to formulate. However, there is a general consensus that terrorism is conduct which seeks not merely to harm and destroy — the effect and purpose of crime generally — but also attempts to use violence for the calculated purpose of instilling terror in the general populace, thereby injuring and destabilizing it. Terrorism targets not only the individual, but society generally.

Terrorism has diffuse roots in hatred, insecurity and fanatical beliefs and yet its singular peculiarity lies in its method of operation. Terrorism operates as a psychological weapon directed at both its immediate victims and society as a whole. The Nazi era and communist dictatorships that followed consciously used the arts of propaganda to “brainwash,” as the term went, entire peoples. Terrorism is the negative counterpart of such brainwashing. Like the “newspeak” language of George Orwell’s novel Nineteen eighty-four, terrorism is an instrument used to change how people think and act.1 Propaganda and terrorism are both designed to provoke reactions based not on reality — the true situation — but on false information and fear. These manufactured realities create manufactured reactions aimed at diverting the populace from effective action and continued adherence to democratic values. Therein lies their true danger. Terrorism and its accompanying dogma are the ultimate con-game. They seek to destroy the very fabric of civilized society.

Terrorism — violence aimed at general societal disruption — is not a new phenomenon. It has been the historic stock in trade of conquerors and revolutionaries, a tool used to paralyse existing governance and impose a new order. Though calculated acts of violence against the innocent may provoke broad organized social resistance, more often such acts destabilize effective counter-action and destroy the ability to resist.

In the modern era, terrorist tactics have assumed a new guise and taken on a new life. They have become the favored tool of fanatical minority groups seeking to promote their particular world vision. Al Qaeda is such a group but it is far from the first. The Sinn Féin bombings in Northern Ireland were terrorist acts. The kidnapping and murder of Israeli athletes by the Black September Organization at the 1972 Munich Summer Olympic games were terrorist acts. Here in Canada, we witnessed the horror of the Air India bombing two decades ago. Just off the coast of Ireland, a bomb planted by members of a dissident branch of the Sikh religion exploded on a passenger jet carrying 329 innocent people. That was a terrorist act and we can expect more such acts, in yet unthought-of forms. The point is simple. Terrorism is not merely a series of isolated events that occurred when two planes flew into the twin towers of New York in 2001; or when youthful bombers exploded cars on the tube in London in 2005; or when plotters in 2007 almost blew up critical infrastructure in Toronto. Terrorism is an ongoing phenomenon that every democratic society must confront and must continue to confront.

This brings me to my second point. The ongoing phenomenon of terrorism demands an ongoing, broad and sustained response that is consistent with our fundamental values and the rule of law. One of the most destructive effects of terrorism is its ability to provoke responses that undermine the fundamental democratic values upon which democratic nations are built. The fear and anger that terrorism produces may cause leaders to make war on targets that may or may not be connected with the actual terrorist incident. Or perhaps it may lead governments to curtail civil liberties and seek recourse in tactics, like torture, which they might otherwise deplore— tactics that may not, in the clearer light of retrospect, be necessary or defensible.

And yet, terrorism must be fought. Terrorists seek to achieve their ends by violence. They care nothing for individual liberties or democracy. If we prize our liberties and the history that enshrines them, we cannot let those who seek to destroy these very things prevail. It would mark the end of our ideals. As Justice Robert Jackson of the United States Supreme Court famously declared, the constitution is not a suicide pact.2

It is also clear, however, that it would be equally disastrous to jettison our liberties in the name of fighting terrorism. That too would constitute loss of the fight against terrorism. We may lessen terrorism, but the terrorists will have effectively deprived us of what we hold most dear and what they seek to attack – our democratic liberties. As Benjamin Franklin once pronounced, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”.3

It follows from what I have said that we cannot view the problem in terms of “either-or” – either rights or terrorism. Our only option is to fight terrorism while maintaining our constitutional rights and freedoms to the maximum extent possible. The Canadian Minister of Justice in 2005, Irwin Cotler, referred to this two-pronged approach when he described the government of the day’s national security legislation as “human security legislation, which seeks to protect both national security – or the security of democracy if not democracy itself – and civil liberties”.4

The result is a compromise. The fight against terrorism may require some limitations on our freedoms, such is the price of vigilance, but those limitations should not go further than is required, having regard to the particular threat. Lawyers have words for this. They say that limits on basic rights must be justified, and assert that constraints on rights must “minimally impair” those rights. That is, constraints must go no further than is actually necessary in the pursuit of security.

In brief, terrorism confronts democratic societies with a formidable challenge. On the one hand, terrorism must be prevented, fought and contained. Terrorists must be brought to justice. On the other hand, states combating and prosecuting terrorists must remain true to the fundamental principles upon which democratic governance and a free society are based, including the presumption of innocence and a fair trial. As the Supreme Court of Canada stated in a recent case, “[i]n a democracy not every response is available to meet the challenge of terrorism”.5 A case from the Israeli Supreme Court makes the same point. Democracies must respond to terrorism, noted the court,

in a way that appropriately recognizes the fundamental values of the rule of law… As ….President Aharon Barak of the Israeli Supreme Court [stated], preserving the rule of law and recognition of individual liberties constitute an important component of [a democracy’s] understanding of security.6

The first line of any response to terrorism must come from the legislative branch of government. Duly elected law-makers must lay down the rules by which terrorism is fought in clear compass. They must trace the difficult line between combating terrorism and preserving liberties in a way that is effective, constitutional and gives clear guidance to those charged with combating terrorism on the ground. Few laws were directed to the issue of terrorism prior to 9/11. After the twin towers fell, law-makers responded. Britain passed the Anti-terrorism, Crime and Security Act 2001,7 the Prevention of Terrorism Act 2005,8 the Terrorism Act 20069 and the Counter-Terrorism Act 2008.10 The U.S. Congress has been active as well setting limits on interrogation practices via the Detainee Treatment Act of 2005.11 In Canada, Parliament passed the 2001 Anti-terrorism Act.12

The second line of response must come from the executive branch of government. In Canada, this responsibility ultimately lies with the Minister of National Defence, the Minister of Public Safety, the Minister of Justice and is filtered down through various agencies, including the RCMP, CSIS and the Immigration and Refugee Board.

The executive branch of government seeks to prevent terrorist acts and to bring their perpetrators to justice. As every follower of current events is aware, the task of preventing terrorist attacks is particularly challenging. The identification and detention of individuals who pose a risk to national security is fraught with complexity and legal difficulties. In some countries, state reliance on torture and extraordinary rendition have become issues as has the denial of captured individuals to the right to due process of law.13 The courts are inevitably called upon to review executive conduct to ensure that it remains lawful.

This brings us to the judiciary, the third branch of governance involved in responding to terrorism. The courts do not initiate the laws that govern how terrorism is fought, nor do they execute them. However, under our system of constitutional governance and the rule of law, the courts may be called on to review national security laws passed by Parliament as well as actions taken by the executive branch of governance. From time to time, however, the courts are called upon to interpret laws on terrorism, to rule on the constitutionality of their provisions and to preside over the prosecution of terrorists and hear complaints that the state has unconstitutionally abridged the constitutional rights of individuals. In addition, the Immigration Act gives the Federal Court special responsibilities to monitor the detention of non-nationals who pose security risks and cannot be immediately deported because, for example, there is no country to receive them or they would be subject to torture in the receiving country.

Courts approach this review with an attitude of respect for the difficult role of Parliament and the executive in combating terrorism. Yet they must also be vigilant to ensure that laws are constitutional and that government agents have not overstepped their lawful powers. The judiciary must stand ready to protect the rights of, not only the majority, but the poor and marginalized — the people who without the courts have no voice. In doing so, courts may, as my colleague Justice Binnie has put it, be called on to question the “idiom of the war on terrorism” wherein the destructive power of war and the need for deference to the executive are both emphasized.14

The Canadian Charter of Rights and Freedoms sets the template for how Courts go about difficult work. The Charter guarantees to every person — not just citizens — liberty, mobility, freedom of expression and religion, and basic criminal law procedural protections like the presumption of innocence. But the Charter also provides that these rights can be limited when justified by the broader public interest. Rights, it states in s.1 are:

subject only [and the “only” is important] to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The single big idea driving s. 1 is that limits on rights must be justified as proportionate. Proportionality means a fair and justified balance between the exercise of a guaranteed right and a broad conflicting public goal. Our laws and regulations must meet the proportionality requirement. And when Canadians challenge the balance that has been struck, the courts’ role is to review the balance that Parliament or the executive has reached, between rights on the one hand and fighting terrorism on the other. Due deference is accorded in view of the fact that Parliament or the executive may be better positioned than judges to determine precisely where the balance should be struck in a particular case. Nevertheless, the state bears the burden under the constitution of justifying intrusions on guaranteed rights. If the state fails to provide this justification, the court is required to declare that the government action is unconstitutional.

This, in brief outline, is a description of the branches of governance and how they engage in issues involving the clash between individual rights and freedoms and measures aimed at combating terrorism. The task of maintaining the balance between fighting terrorism and conserving our rights and freedoms is shared by the three branches of democratic governance – Parliament, the executive and the courts.

Each has a critical role to play. In the remaining few minutes, let me give a few examples of how this balance has been struck — one under the detention provision of the Immigration Act, one concerning torture and one regarding extra-territorial interrogation by Canadian officials.

The Canadian Immigration and Refugee Protection Act15 creates a scheme for the detention and deportation of non-citizens certified to be inadmissible to Canada on the grounds of national security. Two years ago, in Charkaoui,16 the Supreme Court of Canada held that aspects of the procedure reviewing security certificates did not comply with the Charter. The law failed to provide a fair hearing because it allowed the government to base its case on secret evidence and summaries of evidence. It did not ensure that all relevant facts would be put before the detained person, and indeed, even the reviewing judge. The Court acknowledge that in the face of terrorist threats, some information must remain secret. However, it pointed to measures not found in the Act that could have been taken to intrude more minimally on the fair trial right, such as the use of special advocates to review the evidence. Parliament responded by amending the legislation to introduce special advocates empowered to provide an independent perspective on the evidence against the detained person.

Torture, or rendition to torture — familiarized to many by Justice O’Connor’s inquiry into the Arar case — is another issue raised in the fight against terrorism. At common law, evidence obtained by torture is inadmissible in court on the basis that such evidence would not be voluntarily given by the individual. The concerns behind admitting evidence obtained by torture rest on the issues of fairness to the individual and the reliability of evidence obtained by torture.

International law supports this position as does Canadian.17 In Suresh,18 the Supreme Court of Canada held that deportation of a person to a state where there is a substantial risk the person will face torture violates s. 7 of the Charter. The Court left open the possibility that in “exceptional circumstances” deportation to face torture may be justified; however, what would constitute “exceptional circumstances” has not been addressed by the courts and would necessarily be very rare.

Finally, in the recent decision of [the Supreme Court of Canada] in Khadr,19 the Supreme Court ordered Canadian authorities to disclose to Mr. Khadr the content of the interview and related documentation obtained by CSIS from Mr. Khadr held at the US prison in Guantánamo Bay. Taken to Guantánamo Bay at the age of 15, Khadr, a Canadian citizen, was interrogated repeatedly and at length in circumstances that appear to have involved sleep deprivation by both US authorities and CSIS. Mr. Khadr’s claim to be returned to Canada has been upheld by the Federal Court of Canada and is currently before our Court. Accordingly, I will not provide further comment.

Conclusion

I return to the two observations with which I began. First, terrorism is an historic and ongoing phenomenon that neither started nor ended with 9/11. We must be vigilant to contain it. Second, our response to terrorism must be one that preserves our fundamental values and the rule of law. Canada, and indeed all democratic societies, are struggling with how to balance the concern for national security against the need to protect basic rights and liberties.

Canada has developed its own unique approach to the challenges posed by terrorism, an approach founded on the primacy of rights and an insistence that those rights can be limited only where the state can justify those limits. We recognize the gravity of the threat of terrorism and the need to combat it with vigilance; yet, we also recognize that intrusions on rights must be justified as minimally impairing and proportionate in effect.

The current modalities of terrorism seem new to us but the ongoing challenge of balancing securities against liberties is as old as Western thought. Chief Justice Warren put it well in United States v. Robel. Speaking in 1967 at the height of the Cold War, another era where people feared for their security, he wrote,

…implicit in the term “national defense” is the notion of defending those values and ideals which set [the United States] apart….It would indeed be ironic if, in the name of national defense, we would sanction the subversion of …those liberties…which makes the defense of the Nation worthwhile.20

Or as articulated by Richard Posner paraphrasing the philosopher John Rawls,

it is liberty that first commands our attention. Human security may be the precondition to liberty, but it should not be valued above liberty for, when so weighted, it is capable of destroying liberty.21

Terrorism is far from conquered but if we follow the path of balance and justification charted by our most fundamental laws, I for one believe we will not go astray. It may seem, as former Chief Justice Barak of Israel has said, that democracies fight terrorism with one hand tied behind their back. Yet, as he also asserted, for that very reason they are likely to prevail in the end – not only in containing terrorism, but in preserving our most cherished liberties.


Right Honourable
Beverley McLachlin, P.C.
Chief Justice of Canada

Ottawa Women’s Canadian Club
Ottawa, Ontario
September 22, 2009

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