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How Undemocratic Is CUPE 3903 -- The Story Of Val

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Cupe Doll	Posted: Wed Mar 10, 2010 7:30 am
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	Just intuitively, it seems fairly obvious we can't expect social justice from the legal system. Since it doesn't even pretend to be democratic, how can anyone expect more genuine democracy from it? In an even somewhat free and democratic society, though, we might expect the legal system to protect our most basic rights. Protect against the most egregious, most socially unjust wrongs. Which really does nothing for anyone looking to bring about more genuine democracy. The legal system, as a class of inherently conservative institutions designed to protect the status-quo in a partly free and democratic society, can only respond to constitutive change as something to protect from. Seems to me, therefore, that unless really terrible breaches are occurring, the thing for any individual or collective seeking to bring about more genuine democracy to do is keep the legal system out. And the legal system seems most obliging when told to butt out. Like, if there's a collective of whatever sort with its own internal administrative bodies? The courts will likely insist prospective plaintiffs exhaust all internal avenues before they get more days in court. What about collectives trampling members' basic democratic rights into dirt? Seems to be a huge hole in the legal system right there. _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Sun Mar 21, 2010 10:44 pm
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	If you say that we cannot expect "social justice" from the legal system, then what kind of justice is it supposed to serve? This may be an important question. My understanding is that the courts are said to deal with two catagories of issues: civil and criminal. In fact, right now I am preparing to initiate a "private prosecution" for perjury against one of the lawyers I've recently contended with in my seemingly endless pursuit of justice. She lied - in an affidavit. The criminal code says that the maximum sentence for a conviction on perjury is 14 years. So, this is quite serious. She lied to prevent me getting access to a substantial collection of documents that are in the custody of the Ministry of A.G. I requested that access so I could search those documents for specific evidence about who was involved in secretly and illegally amending Section 13 of the Labour Code, which has been used by the LRB to summarily toss hundreds of DFR cases over many years. This one is a real tangled web. But, that's what the law is: an infinitely tangled web. And it is strangling all of us, the whole of society. If we want democracy - in our unions or anywhere - we must have the "Rule of Law". Instead what we have is the "Tyranny of Lawyers". The judges sometimes call themselves the "gatekeepers". What that means is that ultimately they control everything. I believe we can and must end that tyranny by directly challenging their power.
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Cupe Doll	Posted: Sun Mar 21, 2010 11:51 pm
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	"If you say that we cannot expect "social justice" from the legal system, then what kind of justice is it supposed to serve?" Just in my opinion? Certainly the legal system has to be about social justice. Realistically -- or democratically -- though, it may not be about serving social justice. It may be about protecting against the worst social injustice. Guess the question is how proactive and activist the legal system ought to be. Your story sounds fascinating -- and heroic. How do you manage to afford it? _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Mon Mar 22, 2010 7:45 pm
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	How anyone can afford to take on the system is a good question. I don't have any money, so my investment has been in time. The legal establishment readily acknowledges that hardly any of us can afford to retain professional counsel to pursue a significant case. They say that is an immutable reality: that justice is expensive. That's one of the key assertions in their self-serving rhetoric. Another is the claim that all the lawyers, in their various roles, are "independent". If, for example, you do a search on "judicial independence" (or some variation of that term) you'll find that they don't even try to provide a convincing argument that it is a reality. What they do instead is make reference to the notion as often as possible. It's one of the oldest of the propaganda techniques. When people in positions of authority repeat something ad nauseum as an assumption, no one questions it. The only thing I did that really set me on this path was question a few basic assumptions. And that wasn't always easy because I was afflicted with the same blind faith that we all tend to have in authority. If, for example, the judges said something I didn't understand, well then that must be because they are the experts. It took me quite a while to fully remove the blinders and realize that their expertise is in peddling bullshit, for which we are paying them generously.
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Cupe Doll	Posted: Mon Mar 22, 2010 8:11 pm
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	I took on a collection agency once. My claim was defeated by the brilliant argument that, should events in question indeed qualify as fraud, then the entire world of business would be turned on its ear. Since that was just the way things got done. That's when I got it. The legal system is (perhaps necessarily) conservative. It does not dispense justice. It only protects against the most blatant injustice. _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Mon Mar 22, 2010 11:19 pm
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	If we concede that the justice system is inherently conservative then what do we mean by conservative? Some people think it means preserving and protecting everything that is good. An alternative meaning is resisting progress. That probably explains why we used to have a party that called itself the "Progressive Conservatives" and why it's now common for many people to label themselves "progressives". I suspect that reliance on such simplistic labels is generally not particularly helpful. However, sometimes I look for labels that specifically illuminate a problem. As I learn more about what I now like to call the "juristocracy", I am developing a comprehensive understanding of their culture, agenda and modus operandi, all of which are influenced by the complex relationships they have with the other privileged elites. There is a growing body of material that acknowledges the judiciary's conservatism and how it prevents progress and undermines the development of democratic institutions. Andrew Petter, who will become President of SFU in September, has written a book, published this year, that I have purchased. The title is "The Politics of the Charter: The Illusive Promise of Constitutional Rights". It is a collection of ten essays, written since 1986, that are consistent in their criticism of the Canadian Charter and its impact. As President of SFU, perhaps his perspective will become more widely appreciated.
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Cupe Doll	Posted: Tue Mar 23, 2010 12:33 am
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	gbuddy wrote: There is a growing body of material that acknowledges the judiciary's conservatism and how it prevents progress and undermines the development of democratic institutions. It is, after all, inherently un-democratic. It may not necessarily be anti-democratic, though. But if struggling for more genuine democracy, I would never appeal to the judiciary. _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Tue Mar 23, 2010 3:25 am
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	An institution that is non-democratic will be anti-democratic if it is granted powers that ought to be exercised by a democratic institution. I expect many people have read a little of the debate about the Canadian courts (particularly the Supreme Court) having acquired such powers. For most people that is an abstract issue. It can become a real issue if you have to go before the judges to argue a case that exposes how such power is abused. The case I have assembled is about how members of the legal establishment usurped the exclusive mandate of the Legislature to amend a piece of legislation (they used another process called revision, which is intended to be used solely for making cosmetic changes). That is very close to the charge that judges in fact are writing our laws. The reality is not far from that charge. The judges are merely the senior members of the legal establishment, which through its many components has substantial control over how our laws are conceived, written, and applied. The people we elect to represent us in Parliament and our provincial assemblies rarely have an active role in conceiving or drafting laws. They defer to the "experts". So why do we call them "legislators"? Some recent reading I have done indicates that they surrendered the legislative role starting in the 19th century as a result of the evolution of political parties into the kind of organizations we have today, in which loyalty to the leader is paramount. The current situation in Ottawa graphically demonstrates how that arrangement fails to serve the public interest and alienates the electorate. Look at the mighty Liberals now - a party wandering in the proverbial wilderness.
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Cupe Doll	Posted: Tue Mar 23, 2010 3:52 am
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	Quote: An institution that is non-democratic will be anti-democratic if it is granted powers that ought to be exercised by a democratic institution. That reiterates your question, doesn't it? What powers are legitimately judiciary in a (relatively) free and democratic society. Have never heard of "revision". Don't doubt you -- but expect it would be seldom if ever used. To mix metaphors, it reeks too loudly for even back-door purposes. But courts can always use the constitutionality front-door to similar effect, no? Should judges really wish to become that activist, they could conceivable send legislation back until they got what they wanted out of it. Thing is? Either way would be too obvious power-grabbing. It would set the legislative and judiciary at bad odds indeed. And the judiciary would have no hopes in such direct struggling. Nothwithstanding Quebec's use of "notwithstanding", of course -- since backed by all Quebec's sovereigntist ambitions. Notice, more generally, though. You seem to indicate it isn't (democratically) legitimate for judges to get too activist. Yet, to deliver the social justice you appear to expect from the legal system -- aren't you demanding judges get more activist? It's probably commonplace. When it doesn't go our way, we want the legal system to do less. When it goes our way, we want it to do more. _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Tue Mar 23, 2010 11:41 pm
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	The debate about judges being "activist" is a deliberately engineered distraction. Likewise for the whole "Charter" debate. These ideas are framed by the establishment. The judiciary have no desire to be "activist", that is, to change anything of significance. They have everything they want: generous remuneration, lifetime appointments and no accountability to any other entity - certainly not the public anyway. In fact, those privileges are what they cite when they claim to be "independent", i.e. answerable only to themselves. The truth is somewhat different. Simply put, they do what they've been trained to do. Like a herd, they always move in the same direction. There is a judicial culture. And it is anti-democratic. What we should be able to demand from a justice system is what is tritely referred to as "due process". We'll never get due process from a privileged caste that don't face the same challenges as the majority of people. No one who goes before an adjudicator should be concerned about a lack of impartiality. It would not be difficult to create a court that gives the majority of people confidence in the process. One solution that would solve that problem with the tribunals would be to create an appeal tribunal to displace judicial review by the courts. The key to the success of this tribunal would be that adjudication would be handled by a panel composed of one person trained in law and several people appointed in a manner similar to how juries are selected. I would also grant this tribunal the power to make findings against the adjudicators whose decisions it is asked to review. This would impose real accountability on the entire tribunal community: something they don't currently face because judicial review is a joke. A major part of the legal establishment's agenda has been to eliminate the participation of anyone other than lawyers in all legal proceedings. Only when citizens are active participants in the system, can we expect to have a real justice system.
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Cupe Doll	Posted: Wed Mar 24, 2010 4:50 am
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	Quote: The debate about judges being "activist" is a deliberately engineered distraction. Likewise for the whole "Charter" debate. These ideas are framed by the establishment. No doubt. But I can't see how establishing more pervasive, invasive kangaroo courts -- tribunals -- would help anything. Anything democratic, that is. _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Wed Mar 24, 2010 6:39 pm
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	The arrangement I've suggested would not be a kangaroo court. I agree with you that we don't need more courts or tribunals. However, we Canadians have allowed ourselves to become oppressed by an entire constellation of Star Chambers already. How and why this happened is an interesting story that needs to be understood. One of the principle reasons we have this situation is that all these separate judicial and quasi-judicial fiefdoms create lucrative employment opportunities - mainly for the graduates of Canada's law schools. If you are a union activist then you should have some knowledge of how that works in the labour relations regime, and a sense of how much it costs. What happens if you become the subject of a grievance that goes to an arbitration hearing? I've been there - once - and the experience was a surreal nightmare, heard by a tenured professor of law who was acting as a privately retained quasi-judge. I still find it hard to believe that we tolerate such kangaroo courts in a supposedly civilized country. We can do way better than that if we want to, but we have to make it clear to our elected representatives that we won't vote for them unless they commit to proceding with such reforms. Mapping out a full program of reforms would not be a great challenge. For example, with labour arbitration, why can't we have something like what I suggested above? Why was I not an actual party to the arbitration hearing that decided my fate, instead of merely a witness? Would I have agreed to the choice of arbitrator given that the manager who testified against me was the son of a former professor emeritus at the same university (and a former City Manager)? Anyone who has not been through such a hearing cannot imagine what it's like. And it doesn't get any better if one tries to challenge the result of such a kangaroo court by going to a labour relations board or even to the courts. They all operate as kangaroo courts. What would it take to turn them into real courts? In my view, just a few fundamental changes, one being separating the "bar" from the "bench".
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wm pasz	Posted: Wed Mar 24, 2010 7:13 pm
Joined: 29 Jan 2006 Posts: 1219 Location: Toronto	Any quasi judicial tribunal will eventually degenerate into a kangaroo court - no matter what kind of procedural rules and safeguards you build into it. Whether the quasi judges are lawyers or laypeople, they will all become corrupted because of the virtually unfettered power the will have over the lives of whoever is unfortunate enough to end up in front of them. They'll find ways to twist the rules to their liking or will simply disregard the ones they don't like. Any appeal process will become an extension of the kangaroo court system and for the same reason. Put a bunch of guys together in an institution and give them a lot of power and they'll misuse it. If you broaden access to the courts for plaintiffs who don't like what the quasi judges did to them, you'll just end up with pretty much every case going to the courts, thereby making the quasis a redundant step. The problem as I see it whether you're talking about the real courts of the kangaroo courts is that the minute you institutionalize power, you create a breeding ground for nests of elitists who will use that power to their advantage or in support of their own interests (as in the case of the so called activist judges). What's the solution? That's a real dilemma. I think there are a number of steps that might help move things in the right direction. One would be to get rid of the kangaroo courts. They're an affront to the concept of justice. Another would be to confine the courts to dealing with issues of law and not politics and to ensure that sound judicial principles and practices are followed. Another would be to simply the language of the law and legal procedures so that laypeople could represent themselves. Ultimately I think the judicial system could be well served if we rid it of lawyers altogether. Another possibility might be to move away from the practice of appointing judges for life. I'm not sure that I would advocate the American system of an elected judiciary but it does have some pluses. Anyone who is ensconced for life in a position of such immense power is going to turn into a corrupt scion of a corrupt old boys club no matter how noble and pure his or her intentions might be going in. _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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Cupe Doll	Posted: Thu Mar 25, 2010 1:02 am
Joined: 06 Jan 2010 Posts: 69 Location: Toronto	I have to agree with WMP. Seems reasonable to conclude, as a general heuristic, that more genuine democracy always requires less hierarchical authority (of any stripe whatsoever) and more potential for self-representation. It is no surprise that lawyers ultimately do not represent their clients, that courts ultimately do not stand for the legal principles advertised, that unions do not stand for memberships and that governments won't stand for the people. Which brings us back to what we were originally talking. What would a more genuinely democratic "collaborative" look like? _________________ www.ultimatecultureclash.com
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gbuddy	Posted: Thu Mar 25, 2010 5:27 am
Joined: 07 Mar 2006 Posts: 77 Location: Vancouver	I haven't done enough reading yet about democracy itself, but it seems to me that it requires mechanisms to resolve disputes that involve both individuals and institutional players, so therefore we have to have adjudication. I served on a jury once and the one thing I recall about that experience was the way we, the jurors, worked together in the jury room. It wasn't a perfect process, but it was civilized, and it worked. That's what I have in mind when I speak of a panel that is predominently composed of lay persons. If they are serving on just one case, then they will not be corrupted by power. There are certainly many other things we could do to reform the system of courts and tribunals, but I believe that one idea would be effective. Just look at the impact that mechanism would have on the current arrangement with DFR cases and the labour boards. We've found that there's no point in going there unless one is committed to jump through a succession of hoops. Even then, one ultimately faces senior judges who have no more respect for us than the labour lawyers. Judicial review is used to protect the entire tribunal regime. If we could instead appeal an LRB decision to a panel of our peers that had the power to make findings about the conduct of the LRB processes and the adjudicators (e.g. a finding of bad faith conduct) then the LRB adjudicators would be forced to change their conduct or risk losing their jobs. Why are the LRB's still seeing DFR cases despite the atrocious treatment they inflict on every applicant? The reason is that the unions and employers have no incentive to change their behaviour, while the victims have no other option than to try the DFR route. Accountability is the missing component. That's now a pervasive problem in all of our institutions, but it has long been obvious in the labour and employment regime. As for the courts, I believe we really need a thorough review of the basic premises. Based on both personal experience and a lot of reading my opinion is that judges are overwhelmingly arrogant, elitist autocrats, which seems to demonstrate that lifetime appointments are not a good idea. On the other hand I don't like the idea of lawyers who are free to wear a variety of hats, especially judge one day and barrister the next. There are two really important issues that we need to consider together: the monopoly granted to the legal profession through the law societies, and the lack of separation between bar and bench. I expect to return to court this year and I'm going to make a lot of noise about the impact of these two issues. I will be forced to represent myself and as far as I'm concerned the opposing counsel (and their clients - though they won't be in attendance) might as well sit with their buddies on the bench. This is a key point I'm also going to put to the Canadian Judicial Counsel. Chief Justice Beverley McLachlin's position that Canada has a judicial system that is the envy of the world and it's just too bad most of us can't access it, is absurd. In fact it's more than absurd; it's outrageous that she is allowed to peddle such offensive rubbish. If we had a real press here instead of a bunch of sycophants they would have called her on that a long time ago. As citizens we currently have only one way to demand real reform. I'll vote for a candidate or party that can convince me that they are committed to such reform. That's why I haven't voted in an election since 2001.
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