2013 FC, 2013 FC 1116

Date: 20131104 Docket: T-676-13 Citation: 2013 FC 1116 Ottawa, Ontario, November 4, 2013 PRESENT: The Honourable Madam Justice Kane BETWEEN: EVA NOTBURGA MARITA SYDEL Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicant seeks an Order for mandamus to compel the Attorney General of Canada or Minister of Justice (the “Minister”) to issue a direction to the Registrar of the Supreme Court of Canada (the “Registrar”).

Specifically the applicant requests that the Registrar be ordered to put her motion for reconsideration of an application for leave to appeal to the Supreme Court of Canada (the “SCC”), from a decision of the British Columbia Court of Appeal, before a judge of the SCC. [ 2 ] The application is dismissed for the reasons that follow. [ 3 ] The following background information provides the context for the present application and for the reasons to refuse the relief sought. Background [ 4 ] In 2007, the applicant was convicted in the Provincial Court of British Columbia for tax evasion.

She was sentenced to 18 months in prison and fined $244,447. [ 5 ] The applicant appealed her conviction to the Supreme Court of British Columbia but later abandoned the appeal. Her application to reopen the appeal was refused. She then brought a civil action in the Supreme Court of British Columbia seeking a declaration that the Income Tax Act was invalid as were her convictions under that Act. [ 6 ] The applicant sought $300 million in damages for breach of her right to a fair trial pursuant to paragraph 11(

d) of the Canadian Charter of Rights and Freedoms , based on allegations that her criminal trial was unfair because the Judge was biased and because the Judge and the Canada Revenue Agency investigator had communicated during the trial with non-verbal signals, including those used by Freemasons.

In addition, allegations were made that the Judge was likely a Freemason because he refused to indicate whether he was a Freemason, and that judicial independence has been subverted because Freemasons have infiltrated the judiciary and have placed their Freemason oath above their judicial oath. [ 7 ] These same allegations have been made with respect to the other Judges who have dealt with the applicant’s various legal proceedings and complaints have been made to the Canadian Judicial Council, all of which have been found to have absolutely no merit.

[8] On August 3, 2011, the applicant applied to the SCC for leave to appeal the Order of the British Columbia Court of Appealwhich dismissed her appeal and upheld the decision of the British Columbia Supreme Court which dismissed her civil action. [9] The applicant submitted all materials on the application for leave to the SCC by November 21, 2011. [10] In addition, by motion to the SCC dated November 29, 2011, the applicant sought Orders that the Attorney General ofCanada, the Canadian Judicial Council and the Attorney General of British Columbia be directed to investigate whether named Judges ofthe British Columbia Supreme Court and Court of Appeal, the Provincial Court Judge who convicted the applicant, as well as a namedemployee of the Canada Revenue Agency, were Freemasons.

By Order dated December 15, 2011, the Registrar dismissed this motion. [11] On December 22, 2011, a three member panel of the SCC dismissed the application for leave to appeal the decision of theBritish Columbia Court of Appeal. [12] On January 31, 2012, the applicant brought a motion seeking reconsideration of the application for leave to appeal.

By letterdated June 19, 2012, the Registrar advised the applicant that her motion was refused as it did not reveal exceedingly rare circumstancesto warrant reconsideration as required by Rule 73 of the Rules of the Supreme Court of Canada (the “Supreme Court Rules”) [13] Counsel for the applicant then wrote to the Minister on September 24, 2012, requesting the Minister to “direct the Registrar toput my client’s materials before the court according to the Rules of Court”.

The Minister did not act as requested. [14] This brings us to the present application for judicial review of the Minister’s decision to take no action. The applicant nowseeks mandamus and asks this Court to compel the Attorney General of Canada or the Minister, to order the Registrar to put the motionsfor disclosure and the motion for reconsideration of the refusal to grant leave to appeal, before a judge of the SCC.

The applicant did notmake submissions with respect to the motion for disclosure and limited her application for mandamus with respect to the motion forreconsideration. [15] This relief cannot and should not be granted. The Applicant’s Grounds to Seek Mandamus [16] The applicant’s primary argument is that the Registrar made a decision that should have been decided by a judge of the SCC.The applicant submits that the Registrar acted without authority in refusing her motion for reconsideration. Therefore, the Minister, whois responsible to superintend the administration of justice pursuant to

section 4 of the Department of Justice Act, should direct theRegistrar to put this motion before a judge of the SCC. [17] The applicant submits that her motion should have been considered by a judge of the SCC in accordance with the SupremeCourt Act and the Supreme Court Rules.

She claims she was denied the benefit of having a judge, who is judicially independent, considerthe issue of whether her motion for reconsideration raised exceedingly rare circumstances. [18] The applicant submits that the Registrar is part of the Executive Branch of the Government and is not judicially independent. [19] The applicant disputes that she is undermining the finality of the determination by the SCC, and argues that she seeks finalitybut that finality can only result from a decision of a judge of the SCC on her motion for reconsideration of leave to appeal.

The applicantalso disputes that this judicial review is a collateral attack on the SCC and submits that it is only an attack on the person that refused hermotion, namely, the Registrar. [20] The applicant further submits that she has satisfied all the elements of the test for mandamus as established by the FederalCourt of Appeal in Apotex Inc v Canada (Attorney General), (FCA), [1993] FCJ No 1098 at para 45, [1994] 1 FC742, affd (SCC), [1994] 3 SCR 1100, [1994] SCJ No 113 [Apotex].

The Respondent’s Position [ 21 ] The respondent submits that the principle of judicial independence does not permit this Court to order mandamus to compel the Minister to direct the Registrar to put the applicant’s motion for reconsideration before a judge of the SCC. [ 22 ] The Minister or any other Minister of the Crown or member of the Executive Branch of the Government can not interfere with the decision-making process of any court. [ 23 ] The respondent submits that the criteria for mandamus need not be considered because the Minister must refrain from acting, just as he did, in order to fulfill his duties under the Department of Justice Act and to comply with the rule of law. [ 24 ] The respondent further submits that the relief is in fact a collateral attack on the SCC decision to dismiss her application for leave as it seeks to undo the decision of the Court. [ 25 ] The respondent also notes that the Registrar is part of the SCC and can not be characterized as part of the Executive Branch of the Government.

The Issue [ 26 ] The key issue is whether this Court has jurisdiction to order the Minister or the Attorney General of Canada to direct the Registrar to put the applicant’s motions for disclosure and reconsideration of leave to appeal before a judge of the SCC. [ 27 ] If the Court has such jurisdiction, then the issue of whether the test for mandamus has been met would be considered.

This Court does not have jurisdiction to order mandamus against the Registrar [ 28 ] The relief sought by the applicant offends the principles of judicial independence, the hierarchy of our Court structure and the supremacy of the SCC. [ 29 ] In addition, the applicant’s argument that the Registrar had no authority to make the decision refusing her motion for reconsideration is without merit. [ 30 ] I agree with the respondent that by seeking mandamus against the Minister, the applicant seeks indirectly what she can not achieve directly.

Regardless of how the applicant has packaged her request, she is indeed asking that the Minister interfere with the SCC. [ 31 ] As noted by the respondent, the Minister’s role in ensuring the proper administration of justice or superintendence of the administration of justice, in accordance with

section 4 of the Department of Justice Act , requires that the Minister ensure judicial independence. This, in turn, requires that the Minister not act as the applicant has requested. The Registrar’s Authority [ 32 ] The applicant repeatedly argued that the Registrar acted without authority in refusing her motion for reconsideration of her leave application because it did not raise exceedingly rare circumstances in accordance with Rule 73 of the Supreme Court Rules . The argument has no merit. [ 33 ] The Supreme Court Act provides as follows:

18. The Registrar has such authority to exercise the jurisdiction of a judge sitting in chambers as may be conferred on the Registrar by general rules or orders made under this Act. 18. Le registraire exerce la juridiction d’un juge en chambre selon les pouvoirs qui lui sont conférés par les ordonnances ou règles générales édictées en vertu de la présente loi. [ 34 ] The relevant Supreme Court Rules provide: 12. Subject to Rule 78, every order made by the Registrar shall be binding on all parties concerned as if the order had been made by a judge. 13. The Registrar may refer any matter before him or her to a judge . […] 73.

(1) There shall be no reconsideration of an application for leave to appeal unless there are exceedingly rare circumstances in the case that warrant consideration by the Court. […] 78.

(1) Within 20 days after the Registrar makes an order, any party affected by the order may make a motion to a judge to review the order.

(2) The affidavit in support of the motion shall set out the reasons for the objection to the order. (Emphasis added) 12. Sous réserve de la règle 78, l’ordonnance du registraire lie toutes les parties intéressées comme si elle émanait d’un juge. 13. Le registraire peut renvoyer à un juge toute affaire qui lui est soumise. […] 73.

(1) Aucune demande d’autorisation d’appel ne peut faire l’objet d’un réexamen sauf si des circonstances extrêmement rares le justifient. […] 78.

(1) Toute

partie visée par une ordonnance du registraire peut, dans les vingt jours suivant le prononcé de celle-ci, en demander la révision à un juge par requête.

(2) L’affidavit à l’appui de la requête en expose les motifs. [Je souligne] [ 35 ] As I interpret those provisions, the Registrar’s authority to refuse the motion for reconsideration is the same as that of a judge in Chambers as that authority has been conferred by Rule 12. The Order made by the Registrar is binding. [ 36 ] The decision of the Registrar clearly indicated that

section 78 was not applicable: I have reviewed your motion for reconsideration and your affidavit in support. I regret to inform you that, in my opinion, your motion does not reveal the exceedingly rare circumstances which would warrant reconsideration by this Court. Furthermore, please note that Rule 78 of the Rules of the Supreme Court of Canada is not applicable to this matter.

[37] The applicant is not entitled to have her motion for reconsideration heard by a judge of the SCC as her motion has beenvalidly considered and determined by the Registrar. Therefore, the applicant’s theory that the Minister is duty-bound to intervene toensure that the Registrar acts within his authority is baseless.

Judicial independence requires no interference by the Executive Branch of the Government [38] Judicial independence means and requires that the judiciary is separate and independent from all other participants in thejustice system, including the Government . [39] The SCC has addressed the importance and hallmarks of judicial independence on many occasions and the principles areclear. [40] In Beauregard v Canada, (SCC), [1986] 2 SCR 56, [1986] SCJ No 50 [Beauregard], the SCC traced theorigins of judicial independence, noting at para 21: Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges tohear and decide the cases that come before them: no outsider--be it government, pressure group, individual or even another judge--shouldinterfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.

This corecontinues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle. [41] And at paras 30-31: […] Canadian constitutional history and current Canadian constitutional law establish clearly the deep roots and contemporary vitalityand vibrancy of the principle of judicial independence in Canada. The role of the courts as resolver of disputes, interpreter of the law anddefender of the Constitution requires that they be completely separate in authority and function from all other participants in the justicesystem.

I emphasize the word 'all' in the previous sentence because, although judicial independence is usually considered and discussed in termsof the relationship between the judiciary and the executive branch, in this appeal the relevant relationship is between the judiciary andParliament. Nothing turns on this contextual difference.

Although particular care must be taken to preserve the independence of thejudiciary from the executive branch (because the executive is so often a litigant before the courts), the principle of judicial independencemust also be maintained against all other potential intrusions, including any from the legislative branch. [42] In R v Valente, (SCC), [1985] SCJ No. 77, [1985] 2 SCR 673, the SCC considered the relationship betweenimpartiality and independence, at 685: Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinctvalues or requirements.

Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in aparticular case. The word "impartial"... connotes absence of bias, actual or perceived. The word "independent" in s. 11(

d) reflects orembodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in theactual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests onobjective conditions or guarantees. [43] In R v Lippé, (SCC), [1990] SCJ No 128, [1991] 2 SCR 114, the SCC noted at 138: The content of the principle of judicial independence is to be determined with reference to our constitutional tradition and is thereforelimited to independence from the government.

Although the language in Beauregard, supra, may seem to have expanded the concept, itis to be remembered that the ratio of the case extended the requirement beyond the executive to the legislative branch ofgovernment. […] I do not intend, however, to limit this concept of "government" to simply the executive or legislative branches. By "government", in thiscontext, I am referring to any person or body, which can exert pressure on the judiciary through authority under the state. [Emphasis in original.]

[ 44 ] In the present case, the applicant’s request for mandamus is contrary to the separation of powers between the executive and the judiciary and undermines the judicial independence of the SCC. The applicant is really asking the Minister to ensure that her motion for reconsideration is considered for a second time and by a judge of the SCC. This would put the Minister in the role of supervising or interfering with Canada’s top court.

This clearly infringes the principle of judicial independence. [ 45 ] If the Minister could be compelled to direct the Registrar to put a motion for reconsideration of a leave application – or any other motion – before a judge of the SCC, which basically compels that Judge to consider the motion, what prevents the Minister from directing the Registrar to put a motion to a judge of the SCC to consider or reconsider a matter that any Minister of the Crown is a party to? There is no doubt that this would violate judicial independence and the rule of law.

The relief requested by the applicant of the Minister is no different. [ 46 ] In Legere v Canada, 2003 FC 869 , [2003] FCJ No 1766 [ Legere ], this Court addressed the principles of judicial independence in circumstances similar to the present case.

Mr Legere brought an action in the Federal Court against Her Majesty the Queen, as the Federal Crown, alleging that it had supervisory jurisdiction over the judges and masters of the British Columbia Supreme Court, where he had been unsuccessful in a family law matter. [ 47 ] Prothonotary Hargrave referred to the passages cited above from Beauregard and noted that the Federal Crown has no supervisory role over the judiciary, at para 15 of Legere : The judiciary hold office during good behaviour.

While judges and masters are appointed by the Crown they are not Crown servants: they cannot be either controlled by or given directions by the Crown, or by the Crown's ministers, or by Parliament, or by any government department. The members of the judiciary are independent and enjoy total immunity from court action based on anything done or said in the exercise of their judicial functions. There can therefore be no vicarious liability on the part of the Crown. [ 48 ] The same principles are applicable in the present case.

Judges of the SCC are not Crown servants; they cannot be controlled by or be given directions by the Crown or by the Crown's ministers. To hold otherwise would undermine the separation of powers between the executive and the judiciary. [ 49 ] In Legere , Prothonotary Hargrave also noted that permitting the application to continue would constitute an impermissible collateral attack on the British Columbia Supreme Court.

The rule against collateral attack prevents an order made by a decision-maker of competent jurisdiction from being attacked in proceedings other than those whose specific object is the reversal, variation, or nullification of the order. [ 50 ] Although the application in the present case is brought against the Minister, the doctrine of collateral attack nonetheless applies because the effect of the relief sought by the applicant is to challenge a valid and binding decision of the Registrar in an attempt to undo a decision made by a three member panel of the SCC. [ 51 ] In oral submissions, counsel for the applicant indicated that he agreed with the decision of Prothonotary Hargrave in Legere and that “no player in the Executive should ever have any contact with the judiciary or court”.

However, the applicant holds the view that the Registrar is not part of the Court or judiciary, and that, therefore, this principle is not applicable. [ 52 ] The applicant does not seem to appreciate the effect of what she seeks. Compelling the Minister to direct the Registrar to put the motion for reconsideration before a judge of the SCC is the same as bypassing the Registrar altogether and directing the Minister to demand that a SCC judge consider the applicant’s motion for reconsideration of leave to appeal.

The hierarchy of the Court must be respected [ 53 ] In addition to violating the principles of separation of powers and judicial independence, the relief sought by the applicant ignores the hierarchy of Canada’s court system. Finality would never be achieved if the Minister could be compelled to direct the Registrar to put motions before judges of the SCC. [ 54 ] In Scheuneman v Canada (Attorney General) , 2003 FCA 194 , [2003] FCJ No 686 [ Scheuneman ], the Federal Court of Appeal noted the importance of finality and the hierarchy of our courts which places the SCC at the top.

[55] Mr Scheuneman sought judicial review of the SCC’s decision to dismiss his application for leave to appeal and motion forreconsideration, arguing that the SCC fell within the definition of “federal board, commission, or other tribunal” in subsection 2(1) of theFederal Court Act, thereby giving the Federal Court jurisdiction to judicially review the SCC’s decision regarding his leave application. [56] The Federal Court of Appeal strongly rejected this argument, noting at paras 10 and 11: [10] We are all satisfied that this argument must fail.

In our view, it would be so absurd to interpret "federal board, commission orother tribunal" as including the Supreme Court of Canada that Parliament did not think it necessary specifically to exclude the Judges ofthat Court from the definition. The court system in Canada, and elsewhere, is hierarchical in nature. In Canada, the Supreme Court ofCanada sits at the apex of our judicial system. Subject to a residual discretion to reconsider its own decisions (R. v.

Hinse, (SCC), [1997] 1 S.C.R. 3), the Supreme Court's judgments (including decisions not to reconsider a leave application) are final andconclusive: Supreme Court of Canada Act,

section 52. They are not subject to appeal. To interpret "federal board, commission or othertribunal" as including the Supreme Court of Canada, and as thus permitting the Federal Court to review judgments of the Supreme Courtof Canada, would undermine the finality of the Supreme Court's decisions and subvert the judicial hierarchy. [11] If, as Mr. Scheuneman maintains, the Federal Court could review a decision or order of the Supreme Court of Canada, thedecision of the Federal Court would itself be subject to appeal to the Supreme Court of Canada.

Moreover, if the Supreme Court refusedleave to appeal, that refusal could itself potentially be the subject of a further application for judicial review to the Federal Court. Itwould be absurd to construe the Federal Court Act as conferring on the Court jurisdiction to review the decision of a body when theresult of the review could then be appealed to the very body that made the decision under review. There would be no finality tolitigation. [57] The principles set out in Scheuneman are applicable to the application before me. The applicant seeks an Order of this Courtagainst the Minister.

If granted, a decision of the Registrar, which is as binding as a decision of a SCC judge in Chambers,notwithstanding that the SCC is the court of final appeal, would be subject to or undermined by the authority of this Court. [58] If the SCC considered the motion for reconsideration for a second time as a result of the order by the Minister via theRegistrar, and refused the motion for a second time, would the applicant suggest that the Minister could continue to demandreconsideration?

Although the applicant’s position is that there is no finality until a judge, and not the Registrar, decides the motion forreconsideration, the very relief sought from the Minister of Justice would invite requests for reconsideration over and again, with nofinality and no respect for the hierarchy of the SCC.

The test for mandamus cannot be met [59] The applicant argued that she met the test for mandamus, as established in Apotex because: the Minister owed a duty to her toact to prevent the Registrar from exceeding his authority; she had satisfied all the conditions precedent by requesting the Minister to act;there was no other remedy available to her; the order would have practical value because it would place her affidavit outlining theexceedingly rare circumstances before a judge and bring about the finality she seeks; and, the balance of convenience favoured her as shewas entitled to have her motion considered by a judge, or at minimum, it would not cause inconvenience or confusion in the SCC. [60] The applicant has not met any of the elements of the test for mandamus for the reasons set out above.

Most importantly, theMinister is not under any duty to act, and is, in fact, under a duty to refrain from acting in order to ensure judicial independence and theseparation of powers.

Conclusion [61] The relief sought by the applicant offends the principles of judicial independence, the hierarchy of our Court structure and thesupremacy of the SCC. [62] I would also note that the applicant cannot assert that she was denied the opportunity to place her affidavit alleging thatexceedingly rare circumstances exist to warrant reconsideration before a judge given that her affidavit was considered by the Registrar,who has the same authority as a judge of the SCC in Chambers.

Moreover, the exceedingly rare circumstances, i.e., her allegations thatFreemasons have infiltrated the justice system and that Freemasons may be a criminal organisation and, as a result, have subvertedjudicial independence and the rule of law, are the very same allegations set out in her Statement of Claim which was dismissed and forwhich leave to appeal was denied by a three member panel of the SCC. [63] The applicant claims that she wants finality and that she will only have finality when her motion is considered by a judge of

the SCC. In fact, the applicant has had finality. She has relentlessly pursued all possible legal remedies over several years. Her leave to appeal to the SCC has been denied, as has her motion to reconsider her leave to appeal. These Orders are final and binding. As a result, the decision of the British Columbia Court of Appeal is final in upholding the dismissal of her cause of action.

The applicant must come to terms with that final decision and with the fact that her legal recourse has reached its end. [ 64 ] As noted by the Federal Court of Appeal in Scheuneman , supra at para 12 : […] No one has a right to consume scarce public resources indefinitely in the endless pursuit of a dispute, no matter how important the issues may seem to the individual concerned. Finality is an indispensable aspect of any system of justice. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application for judicial review and mandamus is dismissed; and 2.

Costs are awarded to the respondent at the middle of Column 3 in Tariff B. "Catherine M. Kane" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-676-13 STYLE OF CAUSE: EVA NOTBURGA MARITA SYDEL v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: October 21, 2013

REASONS FOR JUDGMENT AND JUDGMENT: KANE J. DATED: NOVEMBER 4, 2013 APPEARANCES : Richard Hendery For The Applicant Kirat Khalsa Loretta Chun For The Respondent SOLICITORS OF RECORD : Richard Hendery Barrister and Solicitor Vancouver, British Columbia For The Applicant William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia For The Respondent