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Glen P. Robbins gives Reasons in Google v Equustek Vol IX (headed for SCC Nov, 2016)
  Sep 05, 2016

Commentary
Continued from Vol. VIII:
“Despite Bellotti's emphasis upon the nature of the contested speech being political, it is clear that the same principle the right of the public to receive information, governs non political, corporate speech.” {Consolidated Edison Co. v PSC, 447 U.S. 530, 533-35 (1980). “Nor does the status of a corporation as a government-regulated monopoly alter the treatment.”
“With some qualification, therefore, it is submitted that the speech and press clauses may be analyzed under an umbrella “expression” standard, with little, if any hazard of missing significant doctrinal differences.”
From Yves De Montigney in paper “The Difficult Relationship Between Freedom of Expression and its Reasonable Limits” (1992) “Historically, “[O]ccasional attempts were made to infer the existence of an “implied bill of rights” from the preamble of the Constitution Act, 1867”. The first paragraph of the preamble reads: “Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitutional similar in Principle to that of the United Kingdom....” Constitution Act, 1867 preamble, para 1 (emphasis added).
“On the basis of the fact that the Canadian Constitution is based on the same principles as that of the United Kingdom, and that it consequently introduced parliamentary democracy as the form of government, it was determined that freedom of expression had to be sheltered from any legislative infringement because it was essential to maintaining that political system.”
In Reference re Alberta Statutes, (1938) SCR 100 at 132-33 (Duff concurring): Switzman, (1957) SCR at 326 (Abbott, majority opinion) “they won over a few judges of the Supreme Court before being permanently ruled out.”
“No dispute based on the alleged infringement of this freedom ever made it to the Supreme Court, so that the Court never had the opportunity to rule on the the exact scope of this concept.”
From RWDSU v Dolphin Delivery Ltd., (1986) 2 SCR 573; B.C.G.E.U v Attorney General of British Columbia, (1988) 2 SCR 214 The Supreme Court did “confirm (sic) the paramount importance of political debate,” but “did not breach (sic) with past jurisprudence” (tying expression right to parliamentary democracy).... “and in so doing confirmed the apprehension of those who did not trust judges to draw all possible conclusions from the (sic) issue of these rights.”
The Dolphin Delivery Ltd case from 1986 at 588 saw the Supreme Court of Canada refute “the nonfunctional distinction between the action and expression.....” “recognizing that there is “always some element of expression” in picketing”
In Referencing Boucher v The King, (1951) SCR 265, Switzman, (1957) SCR 285 and re Alberta Statutes, (1938) SCR 100 “Justice McIntyre expressed confidence in recalling that freedom of expression is not a creation of the Charter but has always been perceived as on the bases of historical development of Western society's political, social and educated institutions.” (From Dolphin Delivery, (1986) 2 SCR at 538-88).
Similarly in that 1986 case McIntyre “refused (sic) to delve into the subtle distinction in which the American jurisprudence abounds on this topic”...stipulating that: “freedom of expression would not protect the destruction of property, or assaults, or other clearly unlawful conduct.”
In 1986 case R v Oakes (1986) 1 SCR 103 a case decided by the Supreme Court of Canada “establishing the famous Oakes test” “an analysis of the limitations clause (section 1) of the Canadian Charter of Rights and Freedoms” which “allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society.”
“The key value of the Charter” “which pertains to limitations which might confront Charter Rights emerge from the phrase “free and democratic society” which serves as Canada's ground zero standard from section 1 protection: “respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identify, and faith in social and political institutions which enhance the participation of individuals and groups in society.”
“Charter rights are not absolute and it is necessary to limit them in order to achieve “collective goals of fundamental importance””.
In R v Big M Drug Mart Ltd. the Court “struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms and in so doing introduced “a two step test to justify a limitation” on the Charter. “First, it must be”: “an objection related to concerns which are pressing and substantial in a free and democratic society”, and second is must be shown “that the means chosen are reasonable and demonstrably justified.”
“The second part is described as a “proportionality test” which requires the invoking party to show”: “First, the measures adopted must be carefully designed to achieve the objection in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in the first sense, should impair “as little as possible” the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “significant importance””.
“The Court in R v Big M Drug Mart found that section 8 of the Narcotics Act did not (sic) pass the rational connection tests as the “possession of a small or negligible quantify of drugs does not support the inference of trafficking””.
The First Amendment to the United States Constitution “prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, and interfering with the right to peaceful assembly (sic) or prohibiting the petitioning for a governmental redress or grievances.”
The contrast with the usage of language is particularly interesting here as abridgment can be linked linguistically to cutting or pruning words often related to growth of nature, as if the natural growth of foliage while infringement is linked to a sense of obligation or contract. This gives the understanding the common experience of freedom of speech and expression is organic from the society outward including academic or more common experience, whilst the infringement consideration between the Constitution and the Press is trenched more as a corporate bargain presuming a sense of good faith by operators and purveyors of both not necessarily related to the overarching sense of purpose and progress (however that progress is expressed) by the organic society unrelated to the pursuit of commercial interests subjected to and presumed of the institutional press.
In John Paul Stevens, article “The Freedom of Speech” in Yale Law Journal, Vol 102. p 1296 (1993) commenting on the use of the article “the”, in “the freedom of speech”. The author suggests that the “draftsmen intended to immunize a previously identified category or subset of speech”; which might “otherwise....absurdly immunize things like false testimony under oath.”
The lead author for “the free speech” was James Madison arguing against narrowing the freedom to that which was known from the English common law:
“The practice in America must entitled to much more respect” (than the U.K.). “In every state, probably in the Union, the press has exerted a freedom in canvassing the merits of public men, of every description, which has not been confined to the strict limits of common law.”
From Murray Dry, a political scientist from the University of Chicago specializing in Constitutional Law and specifically “Civil Peace and the Quest for Truth: The First Amendment Freedoms in Political Philosophy and American Constitutionalism pp 68-70 Lexington Books 2004).
“In 1925 in Gitlow v New York the Court upheld the conviction of labour organizer Benjamin Gitlaw, “convicted following his distribution of a manifesto calling for a revolutionary dictatorship of the proletariot.”
“Although the Court upheld the conviction, it also found that the First Amendment applied to state laws as well as federal laws via the Due Process Clause of the Fourteenth Amendment.”
The due process Clause better known to the Fifth Amendment (protecting a person from being compelled to be a witness against himself in a criminal case). “The Fourteenth Amendment deals with “citizenship” rights and equal protection under the law.”
Due process clause “acts as a safeguard from arbitrary denial of life, liberty or property.” “The Supreme Court of the United States interprets these clauses broadly because these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws—due process is intended to ensure the rights..of all citizens.”
“The English charter of 1215 known as the Magna Carta at Clause 39 “No free man shall be seized or imprisoned, or stripped of his rights on possession, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land” (Text of the Magna Carta).
In Margart C. Jasper's text “The Law of Speech and the First Amendment (1999)” she references 1937 U.S. Litigation Hernon v Lowry where “African American Communist Party organizer Angelo Herndon” having been “convicted under the Slave Insurrection Statute for advocating black rule in the Southern United States...” “In a 5-4 decision, the Court reversed Herndon's conviction, upholding Holmes “clear and present danger” test for the first time and arguing that the state of Georgia had not demonstrated that Herndon's actions met this standard.” (Jasper (1999)).
The “Clear and Present Danger” Test emerged from World War I era jurisprudence regarding prosecution for violation of the Espionage Act of 1917. In the first of these cases, Schenck v United States “involves an appeal of the general secretary of the American Socialist Party, having (sic) been convicted for distributing 15,000 leaflets to young men of draft age critical of the war effort and, especially, the draft.”
Writing to the Court in Schenck, Justice Oliver Wendall Holmes asked whether “the words create a clear and present danger that they will bring about substantial evils Congress has a right to prevent?” “As used in Schenck”, Holme's test accomplished little more than demand the government prove “the words in the leaflet had a bad tendency – no proof was demanded that the word actually persuaded anyone to evade the draft, or even that they were highly likely to have that effect; resulting ultimately Schenck's conviction being upheld.”
In Debs v United States Socialist Eugene Debs in 1918 “before 1,200 persons in Ohio...was prosecuted for remarks such as”: “I might not be able to say all that I think, but you know you are fit for something better than slavery and common fodder.”
“Even though Deb's speech was milder”...” “than George McGovern made (sic) about the Viet Nam War during his 1972 presidential bid...the Supreme Court....using the clear and present danger test voted to uphold a 10 year conviction.”
In 1919 in Abrams v United States 250 U.S. 616 (1919) it was (again) determined that “The First Amendment does not protect speech that is designed to undermine the United States in war by fueling sedition and disorder.” The 'good news' which emerged from “Abrams” was Justice Holmes dissenting who argued that the “silly leaflet” “poor and puny” posed “no real danger to U.S. Efforts, and thus failed to present a “clear and present danger” that the government might be trying to suppress.”
Oakes case: “allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society”
In Robbins v Cambridge (BCSC H130330) was Fenlon J. justified in evaluating Glen Robbins right of audience based on another BC Supreme Court case involving the Legal Profession Act which dealt only with the filing of documents at court registry?
Were lawyers for the defendant reasonable justified in filing their petition in the wrong court, in obtaining a trial date by filing false documents, by filing an Order Made After Application which application never was made and for which no order was given?
Was Fenlon J. demonstrably justified in endorsing an order she never gave, months after the fact and for then taking responsibility to sell the Robbins house for one half its value and at same application issuing a vacant possession order (December 6, 2014) when one had already been obtained during a stay of execution (April 24, 2014) all under the same file of H130330.
Does any person in their right state of mind find these actions acceptable?
Were the directors of Cambridge Mortgage Corporation and sister company Peet and Cowan Financial Services, its lawyers, the Law Society of BC and its executive, as well as BC Justices and Chief Justice reasonably justified in permitting a vacant possession to be granted ex parte when a stay of execution was in place?
Was it demonstrably justified that Fenlon J. agreed to this order she never originally made that would contend that Glen Robbins “could not speak” on behalf of his wife under he judicial discretion and on the basis of her purposeful and misguided malfeasance in using another Justice's (Grauer J.) Reasons for so doing, sufficient to have other justices and judges follow such an order? How can it reasonably be that anyone properly vetted to be a federally appointed Justice (Master-provincial), would not see the error of this order on its face?
By removing Glen Robbins capacity to “speak” which is his within his Charter Right to do, on the basis of provincial legislation pertaining to the Legal Profession Act (B.C.) was this a justified limitation of the right of freedom of speech?
Was it demonstrably justified for Fenlon J. to order an injunction demanding a non party, an innocent party to remove links form a proprietorial website, notwithstanding the nature of those links relative to a civil case? Would it therefore be reasonably justified in the future for a court to make further such orders against parties who do not have the opportunity to confront their accuser?
Was Fenlon J. within reasonable limits or was she simply advertising her services back to her former law firm for employment in Trans Pacific Partnership Tribunal matters showcasing her and the courts predilection to help BC businesses confront larger global organizations?
Was it reasonably justified in the Robbins v Cambridge case for Fenlon J. to ignore, in fact subvert the authority of fellow justice (Grauer J.) to assist BC mortgage lenders from being found out in unconscionable loans and fraudulent registered mortgages and Land Title Office in British Columbia? How can we believe the independence of a justice who places herself above another within her own court jurisdiction, let alone support her decisions in matters of International comity?
How can the Supreme Court of Canada give audience to a decision of a lower court justice who displays such wanton disregard for the rule of law and upholding the principles of the administration of justice, in a matter where member of the Law Society of BC and executive of the Law Society including its Executive Director (a former Rogers Cable executive) were willing to support and endorse the filing of false statements in the manner of incomplete replies and responses in its court?
How can we sanction the mindset of a such persons improperly vetted and without sufficient skill and sufficient awareness to be granted the opportunity to further the cause of judicial comity from decision in Morgaurd province to province (within nation), and Beals state to province (International), and now Google v Equustek International (In Rem) to provincial (In Personam) when Canada itself has not properly dealt with the inter provincial migration of goods and services?
How or why do we, would we sanction this activity in a free and democratic society against a non party which has been determined to be “innocent” in the matter?
The answer is – we should not sanction it in any circumstance. The Supreme Court of Canada should allow the appeal and send the matter back to the BC Legislation to alter its rules, directing that the lower court justice provide Equustek with final order for judgment which would provide Equustek with the opportunity to enforce the order.
Glen P. Robbins

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