Canada Federal Court refuses to release judge from Judicial Review of misconduct complaint

In an unprecedented decision the Federal Court also ordered the Ontario Superior Court Justice to personally pay the legal costs of a man he sent to prison.

The Federal Court of Canada has refused a motion to release a judge as a party in a Judicial Review of a Canadian Judicial Council ‘CJC’ decision concerning his alleged misconduct.

At issue is a CJC decision about the actions of Ontario Superior Court Justice J. Bryan Shaughnessy after a civil case hearing where the judge sentenced Donald Best, an unrepresented litigant, to three months in prison for civil contempt of court.

Judge secretly created new warrant of committal in a backroom. Secretly increased prisoner’s sentence off the court record.

Justice J. Bryan Shaughnessy ordered to pay legal costs.

After court had finished on May 3, 2013 and the prisoner had been taken away to serve his three month sentence, Justice Shaughnessy went to a backroom and secretly created a new warrant of committal that increased the prisoner’s jail time by a month. Justice Shaughnessy did this off the court record, out of court, without telling the prisoner and without placing the new warrant of committal into the public court record.

The judge gave the only copy of the warrant to prison authorities and ordered that the prisoner was not to have knowledge of the creation of the court order.

Senior lawyers shocked by Justice Shaughnessy’s misconduct

Justice Shaughnessy’s misconduct shocked many members of Ontario’s legal profession. Several senior lawyers, including a retired Crown prosecutor, examined the evidence against the judge and made comments such as…

“In all my years of practicing law, this is the most disgusting thing I have ever seen a judge do.”

“Reprehensible misconduct by a judge that undermines the very foundations of justice.”

“Shaughnessy’s misconduct is worthy of his removal from the bench.”

When the Canadian Judicial Council summarily dismissed a complaint against Justice Shaughnessy without an investigation, the complainant Donald Best filed an Application for a Judicial Review of the CJC’s decision – and named Justice Shaughnessy as a party.

Justice Shaughnessy then filed a motion asking the court to:

  • Release Justice Shaughnessy from being a named party to the Judicial Review.
  • Strike the majority of Donald Best’s affidavit evidence filed in the Judicial Review.
  • Strike parts of Best’s Application for a Judicial Review and modify the Judicial Review procedures.
  • Order that Donald Best, the Applicant for the Judicial Review, pay Justice Shaughnessy’s legal costs in the motion.

Condensed Order – click for large

Costs order against judge unprecedented in Canadian Legal History

The Federal Court of Canada denied every part of Justice Shaughnessy’s motion, and in an unprecedented decision in Canadian legal history, ordered that Justice Shaughnessy should personally pay $2,500 in legal costs to the complainant Donald Best: a man the judge had sent to prison.

Although this writer is open to correction, research to date indicates that this is the first time ever in Canadian, British and USA legal history where a judge has been ordered to personally pay the legal costs of anyone – let alone a person he sent to prison.

Justice Shaughnessy did not appeal the order of the court, which is now confirmed.

Nobody acting for the Public Interest

Lawyer Paul Slansky

In a move that many legal professionals find surprising, the Ontario Ministry of the Attorney General is not acting for the people of Ontario and the public interest, but instead is the personal lawyer for Justice Shaughnessy. The Attorney General of Canada apparently represents the Canadian Judicial Council and sided with Justice Shaughnessy in the hearing of his denied motion.

As Toronto defense lawyer Paul Slansky is acting for Donald Best, it appears that the public interest is unrepresented in an important matter concerning serious misconduct by an Ontario Superior Court Justice.

The date for the Judicial Review of the CJC decision has not yet been set, but is expected to take place sometime in 2017.

Written by Donald Best

Court Documents in the Public Record

January 17, 2017 Federal Court of Canada Order and Reasons (PDF 250kb)

April 14, 2016 – Notice of Application (PDF 711kb) by Donald Best for a Judicial Review of CJC decision.

April 27, 2016 Affidavit of Donald Best in two PDF files: Vol 1 (10.4mb) and Vol 2 (11.7mb)

December 2, 2016 Memorandum of Fact and Law (PDF 436kb) – Paul Slansky for Donald Best

Background   Read more

Representing Yourself in Court 101 – Lesson #1: Walk away if you can.

Lady Justice Cheats

Lady Justice doesn’t like Self-Represented Litigants

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

So you want justice, and you want it badly enough that you are willing to represent yourself in court – without a lawyer.

What I really want you to understand is this: walking away from court is often the best decision you can make, whether you have a lawyer or not. If you are self-represented though, walking away is almost always the best decision.

There’s a tough reality to representing yourself that you don’t know about, even if you have previous experience in court with your lawyer beside you. As a self-represented litigant, you WILL be abused by opposing lawyers. You WILL be abused by court staff and by judges.

And, like the vast majority of self-represented litigants, you will likely lose your case. You may find yourself having to pay legal costs to the other side – sometimes tens of thousands of dollars or more. Or, like me, you may end up doing several months in prison even though your case is a civil lawsuit, not a criminal charge.

You have no idea about what you are getting into, but…

Maybe you are forced to represent yourself in court. Perhaps you are being sued and the other side won’t settle. Maybe your children or your home are at stake and you can’t walk away, but you have no money to hire a lawyer.

If you must represent yourself, you have a difficult path ahead. You’ll have to work hard to learn the law, and to learn the written and unwritten rules of litigation. Don’t let your case overwhelm  what is really important in your life.

Representing Yourself in Court 101

My new video series covers some of the general information you’ll need to represent yourself in court. We’ll also look at some topics the legal community doesn’t like to talk about, such as the common dirty tricks that abusive lawyers reserve for those who don’t have a lawyer.

Lesson #1 in the series is titled ‘Walk away – if you can’.

Don’t say I didn’t warn you.

A handful of wise Canadian Judges urge lawyers to adopt a new business product: unbundled services

How lawyers can take pressure off the courts and earn new profits from assisting self-represented litigants.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

If you have ever been involved in a lawsuit, whether personal or business, you are probably aware that for most Canadians, the cost of hiring a lawyer can easily exceed the loss or damages under dispute. In family law, it is not unheard of for the legal fees on both sides to equal the joint family assets. That is reality in our courts.

Yet, each year tens of thousands of Canadians hire lawyers in the hope that, after legal fees, they will be able to achieve some level of justice, even if greatly discounted. Harsh reality often awaits many who enter the world of paying lawyers $400 or more per hour – in a system that provides the greatest financial benefit to those lawyers who spend the most time achieving as little as possible.

I can almost hear the screams of indignant outrage from the senior benchers of the Law Society of Upper Canada. Except, I have been at social events and seen lawyers openly joke about exactly that; how the system is set up to benefit the legal profession, not ordinary Canadians. As one of the jokes goes: A good lawyer will take a year to accomplish a motion – an excellent lawyer takes much longer.

As the legal profession pushed the cost of justice out of reach of the majority of ordinary people, many Canadians are reluctantly having to represent themselves in the courts. This tsunami of self-represented litigants is overwhelming the justice system and tests the patience of many judges who find the once professional theatre of the court now more akin to an amateur hour talent show.

So the legal system is searching for solutions to the ‘problem’ of self-represented litigants. We’ve seen some good efforts that need to be continued. Chief Justice Michael MacDonald of Nova Scotia instituted an educational program for self-represented litigants. Across Canada, SRL advocacy groups and a few lawyers run workshops to assist those who are forced to represent themselves.

Unbundled Services: Quick and effective relief for the courts & opposing lawyers

What is missing though, is the willingness of mainstream lawyers and law firms to enter the business of providing legal research, legal document creation and case preparation for self-represented litigants who would happily pay for such assistance, but do not have the funds to hire a ‘full service’ lawyer to represent them in court. (‘Unbundled legal services’)

Many lawyers see the delivery of unbundled services as undermining the profession. Still others fear malpractice claims or professional insurance problems when self-represented litigants turn on the lawyer who assisted them.

Dr. Julie Macfarlane and the National Self-Represented Litigants Project continue to educate lawyers and law students about the SRL crisis – and now focus on untapped business opportunities for lawyers willing to add a new product: Unbundled Services to self-represented persons.

And, in the new NSRLP video (above) we see support for unbundled legal services from some heavy hitters including Chief Justice Robert Bauman of British Columbia, Chief Justice Michael MacDonald of Nova Scotia, and Associate Chief Justice Frank Marrocco of the Superior Court of Ontario.

Kudos to the Justices for their leadership, and to Dr. Macfarlane and the National Self-Represented Litigants Project for their excellent video.

Canadians respond to my Globe and Mail article about solitary confinement and Adam Capay

globe-mail-donald-best-590x220-private

Last Tuesday I was sitting in an examination room as a new doctor looked at my chart. (Like airline pilots, doctors seem to get younger every day.) When he flipped the pages to read my name again, he stopped, trying to remember something, and then said, “Donald Best… Donald Best. Did you write that column in the Globe and Mail yesterday?”

When I confirmed that I was the author, he called in a nurse, made introductions and the three of us spent the next 15 minutes discussing solitary confinement, my column and how a ‘nice man’ like me came to be housed with some of Canada’s most dangerous prisoners.

It is apparent that my Globe and Mail article ‘Solitary confinement is pure torture. I know, I was there“ touched many of my fellow Canadians who were unware of the horrors of solitary confinement in our prisons.

Prior to my own incarceration for 63 days, I too hadn’t thought much about solitary confinement, and when I did I had no idea about the reality – this despite three decades of service in public and private law enforcement.

But my article resonated with ordinary people, for which I am grateful – because solitary confinement is torture, nothing less. It is not what my Canada is about – or should be about.

In the last week, I received over one hundred emails and other messages of encouragement from all across Canada. My website saw an increase of several thousand additional visitors, and many journalists opened communication with me. I made guest appearances on two ‘talk-radio’ shows in Ottawa and Montreal. Several lawyers contacted me to inquire whether I would provide testimony to assist their clients who are incarcerated in solitary confinement.

(Sure I’ll testify to the truth about what I saw and experienced in solitary confinement. The truth does not have an agenda – it is just the truth.)

The catalyst for all this is, of course, Adam Capay, an indigenous 24-year-old man horrifically kept in solitary confinement for almost five years. His story splashed across the news media for a few days, but has disappeared now that Ontario Premier Kathleen Wynne made some promises and moved Capay to a cell with a television.

Such is the fleeting attention of the public as new stories come and go.

17 Years in Solitary Confinement

Yet, as bad as Adam Capay’s case is – somewhere in Canada, if he is still alive, there is a prisoner who has spent over 17 years in ‘administrative segregation’.

Seventeen years.

This is not the Canada that I believe in. WE, you and I, need to make some changes happen.

Donald Best

Why over 100 lawyers refused to represent me, even as they acknowledged the validity of my case.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

Why would no lawyer represent me? Read my latest guest column published at the National Self-Represented Litigants Project.

The Client most lawyers fear – and won’t represent at any price

4,000+ visitors in the past 3 days. Thank you Toronto Star, The Canadian Press, Colin Perkel

What’s that old saying about there being no bad publicity?

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

Now I truly understand why (according to a friendly TorStar reporter) the Toronto Star has had an editor’s ‘kill’ on my story for the past three years – to the point of removing my reader comments from their website even when my comments had nothing to do with my legal case or personal situation.

The Toronto Star made ‘Donald Best’ and ‘DonaldBest.CA’ disappear from their website.

Could it be libel chill that caused the newspaper to censor my story, name and website? Could it have something to do with the fact that two of the senior lawyers I sued regularly act for the Toronto Star and other mainstream news media, even representing them all the way to the Supreme Court of Canada on occasion?

Big Media won’t allow their journalists to cover my story

In the last few years I’ve been interviewed by many Canadian journalists from such outlets as the Toronto Star, National Post, Sun Media, Globe and Mail and CTV.

It usually starts in the same manner. The reporter stumbles across my website, listens to the voice recordings, downloads the transcripts and other evidence and then contacts me almost breathless for an interview. Their instinct tells them there are several good stories here, and their healthy professional skepticism is soon satisfied by the quality of my evidence.

(It’s tough to dispute forensically-certified voice recordings of me telling lawyers that I did NOT receive a certain court order – and then read the same lawyers’ sworn testimony and transcripts falsely telling the judge that during the same telephone call I ‘confessed’ that I HAD received the court order. What the lawyers did is called ‘perjury’ and ‘obstruct justice’.)

Each time I politely answer the journalist’s questions, provide them with the backup evidence they request, and each time nothing appears in the news media. A very few journalists contacted me afterwards and in a forthright manner explained in frustration and perhaps some shame what I already knew was happening.

The mainstream news media has censored my story since 2013, yet four days ago on June 21, 2016, only hours after the Appeal Court of Ontario released a decision that was critical of my lawyer Paul Slansky, the Toronto Star, National Post and Toronto Sun all ran the same one-sided, incomplete and inaccurate story about my lawyer and my case.

Journalist Colin Perkel

Award-winning senior Canadian Press Journalist Colin Perkel

Did the powers that be decide that the award-winning Canadian Press reporter Colin Perkel should write a story and it would be published nationwide? Or, did Mr. Perkel somehow trip across an Appeal Court release within a few hours, decide to cover the story himself and then convince his editors to publish?

Mr. Perkel never contacted me. His story contains inaccuracies, no background and certainly no reference to DonaldBest.CA where Canadians can listen to voice recordings, examine the evidence and decide what happened for themselves.  Read more

Welcome. Hear the secretly recorded phone calls that the judges refuse to listen to.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

I woke this morning to discover that I have already had hundreds of visitors to my website since midnight as a result of a very inaccurate Canadian Press story published yesterday afternoon.

Inaccurate or not, I welcome the CP news story because millions of my fellow Canadians can now read about my legal case for the first time in the mainstream news media. If the visitor trend continues, by the end of today several thousand people will also visit my website, hear the telephone recordings that no judge will listen to and read the court documents that prove the simple truths about what happened to this ordinary Canadian.

Please don’t take my word for anything. I welcome your scrutiny. Examine the court documents, listen to the recordings, read the transcripts and then make up your own mind about what happened with my case. And why it happened.

Why it happened is so important.

If you are one of the tens of thousands of Canadians who have been forced to represent yourself against professional lawyers in family or civil court; if as a self-represented litigant you’ve been subjected to resentment, abuse or anger by judges, lawyers and court staff; if you’ve been denied access to justice or discovered secret backroom deals about your case; if opposing lawyers set you up or lied to the judge; if a lawyer took every dollar you had, accomplished nothing and then walked away without a care when the money ran out… know that you are not alone.

There are thousands of us. We are telling our stories, educating, organizing and advocating for major reforms to the justice system and the legal profession. My story is just one more – but it is a rather powerful one, even if I do say so myself.

The Beginning

While I was traveling in Asia in November 2009, I spoke via telephone conference call with senior partners from some of Canada’s largest law firms. I told them many times during the conversation that I had not received a certain court order that they claimed to have sent to me.

As soon as the call ended, these same lawyers fabricated a false ‘Statement for the Record’ court document and lied to the judge – swearing in writing and later orally in court that I had confessed to them during the telephone call to having received the court order. They swore they delivered the court order to me via courier at a Kingston, Ontario address. They did not know that I was in Asia at the time.

On January 15, 2010 the lawyers placed their fabricated false evidence before the Ontario Superior Court in a rushed hearing that I was unaware of and therefore not present for. No lawyer spoke for me. Justice J. Bryan Shaughnessy believed the lawyers’ testimony as Officers of the Court, found me guilty in absentia (in my absence) of civil contempt of court and sentenced me to three months in prison and a fine. The court issued a warrant for my arrest and imprisonment.

Lawyers Gerald Ranking and Lorne Silver lied to the court, fabricated evidence.

Lawyers Gerald Ranking and Lorne Silver lied to the court, fabricated evidence.

Telephone Recording proves lawyers lied to the Judge.

Unfortunately for the lying senior partners, I had secretly (and legally) recorded our telephone conversation. This is why I can invite you to listen to the recorded conversation, and to read the certified transcript of that recording. Then you can compare that recording and the certified transcript to the false evidence that Toronto lawyers Gerald L. Ranking and Lorne S. Silver provided to the court to obtain my conviction.

Justice Shaughnessy’s dilemma and decision Read more

9 Tips for dealing with an Abusive Lawyer: Advice for self-represented litigants, Part 4

Abusive Lawyers vs. Self-Represented Litigants

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

Today, a reader told me yet another tale of an abusive lawyer and a court that refused to do anything about it. The judge advised the self-represented litigant that court involves “a certain amount of rough and tumble” and they should “get used to it.”

Indeed, that ‘rough and tumble’ against self-represented litigants can involve almost anything when courts let lawyers go over the line. And judges do let abusive lawyers get away with it – every day.

One lesson self-represented persons soon learn is that the respect and courtesy so evident between opposing lawyers, in and out of court, immediately vanishes when a non-lawyer sets foot onto the sacred turf of the legal brotherhood.

Every person who has been a self-represented litigant (SRL) in anything more than a minor civil claim or traffic court knows exactly what I am talking about. Lawyers view self-reps as ‘easy pickin’s’ because, well, we are. Self-represented persons often describe how lawyers deliberately use shows of anger, personal space invasion, belittling comments and sarcasm to intimidate and confuse, both in and out of court.

Summary Judgments as a legal strategy against Self-Represented Persons

Even worse, many lawyer-bullies use their status and credibility as officers of the court and their legal knowledge to deliberately ‘set-up’ self-represented persons in a long-term litigation strategy designed to obtain a Summary Judgment and dismiss the case before trial.

As part of their technique, these abusive lawyers deliberately overwhelm self-reps with a tsunami of emailed communications, always wait to the last minute to serve motions, and use a hundred practiced devices to bully SRLs into becoming ineffective or – much better for the lawyer – goad the SRL into foolish acts of aggression or non-compliance with required legal procedures.

Julie Macfarlane, National Self-Represented Litigants Project

Julie Macfarlane, National Self-Represented Litigants Project

In the court hallways where there is no record, some lawyers aggressively demand unrealistic procedural concessions or case schedules that are designed to place self-reps at a disadvantage. Some lawyers deliberately misrepresent these hallway conversations to the court.

Some unethical lawyers falsely claim to the court that they sent letters or even served documents via courier when it never happened. They then petition the court that the self-represented litigant is irresponsible or vexatious in not responding to the “very reasonable, courteous communications” of the lawyer. Professor Julie Macfarlane and her colleagues at the National Self-Represented Litigants Project found shocking results in their studies of Summary Judgments against self-reps.

Don’t let it happen to you.

Here are 9 Tips for dealing with an Abusive Lawyer 

1. Always remain calm. Lawyer-bullies try to provoke self-represented litigants into inappropriate behaviour and into making inappropriate statements both in and out of the courtroom, on the record and off. Don’t be driven by emotion; the lawyer-bullies aren’t, no matter how angry or threatening they sound. As Michael Corleone says in The Godfather, “It’s not personal. It’s strictly business.” Know their game and be prepared.  Read more

Affidavit filed in action against Canadian Judicial Council, Justice J. Bryan Shaughnessy

Superior Court Justice J. Bryan Shaughnessy

Superior Court Justice J. Bryan Shaughnessy

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

In the next few days I’ll be establishing a separate page devoted to my current Application for a Federal Court Judicial Review of the decision of the Canadian Judicial Council regarding my complaint about the misconduct of Justice J. Bryan Shaughnessy on May 3, 2013.

(Whew! Sometimes it takes a run-on sentence to accurately describe a lawsuit.)

Meanwhile, my lawyer Paul Slansky has filed on my behalf a supporting affidavit sworn by me on April 27, 2016.

You can download the affidavit in two PDF files: Vol 1 (10.4mb) and Vol 2 (11.7mb)

A senior Ontario lawyer examined the complaint and the evidence, and stated…

“In all my years of practicing law, this is the most disgusting thing I have ever seen a judge do.” 

Senior Ontario lawyer writes to Donald Best after examining the evidence against Justice J. Bryan Shaughnessy.

Background

March 31, 2016: Canadian Judicial Council refuses investigation of Justice J. Bryan Shaughnessy. CJC says “No misconduct”

Feb. 9, 2016: Judge J. Bryan Shaughnessy under investigation by Canadian Judicial Council

Dec. 2, 2015: Ontario Superior Court Justice J. Bryan Shaughnessy secretly increased prisoner’s jail sentence; in a backroom meeting, off the court record, without informing the prisoner.

March 9, 2016: Canadian Judicial Council remains silent on investigation of Justice J. Bryan Shaughnessy

 

Donald Best honoured to have work referenced by National Self-Represented Litigants Project

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

I was surprised, delighted and honoured to discover that the National Self-Represented Litigants Project’s latest publication references my article Advice for self-represented litigants, Part 1: Walking away is sometimes the best decision.

The NSRLP updated edition of ‘Access to Justice Annotated Bibliography’ is a resource for law students, researchers and SRLs themselves.

Here is an excerpt from the NSRLP’s article Updated Edition of our Access to Justice Annotated Bibliography and a link to download the Bibliography…

Updated Edition of our Access to Justice Annotated Bibliography

We are proud to announce the latest – Version 4 – edition of our Access to Justice Annotated Bibliography. Designed as a resource for students, researchers and SRLs themselves, the NSRLP Access to Justice Annotated Bibliography is now over 50 pages and includes almost 100 summaries in 3 sections (Canada, US and the rest of the world).

biblio

We are constantly pruning and adding to keep the Bibliography as current and as useful as possible (we welcome all your suggestions for items to include). We are gratified to see more academic writing being done on this topic area than when the Bibliography was first launched in 2013, as well as wider coverage in news reports, both on-line and print, for us to choose from.

Important upgrade: this latest version of the bibliography includes hyperlinks (just hover over the title) for every source that has an on-line location. We hope that this will greatly improve the usability and accessibility of this resource.

The Access to Justice Annotated Bibliography is offered as a free downloadable community resource, and we shall continue to update and revise this at regular intervals to keep it up-to-date.

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