The Courts: Jessica Ernst and the Honourable Neil Wittmann, Chief Justice, Court of Queen’s Bench, Alberta by Robin Mathews, October 15, 2013, The Straight Goods
The present “Jessica Ernst Case” in the Court of Queen’s Bench, Alberta is – in my estimation – in the process of creating an historic, huge, and dangerous miscarriage of justice.
In doing so (if I am correct) the court is show-casing the move from the rule of law in Canada to government/corporate/court wrong-doing: practiced delay, manipulation of process, intimidation, and the imposition of perverse readings and judgements characteristic of a move to Fascism.
The case (already drawn out ridiculously) is simple.
EnCana Corporation drilled and hydraulically fracked land around and in the possession of Jessica Ernst at Rosebud, Alberta, between 2001 and 2006, causing, she alleges, damage to her well water and more. Ernst filed her first Statement of Claim in 2007, six years ago.
The Regulator (the Energy Resources Conservation Board, “ERCB”) she claims, failed (put simply) to regulate, and she claims it violated her Rights and Freedoms under the “Charter” by barring her from communicating with it “through usual public communication channels” (page 3, “Reasons for Judgement,” Neil Wittmann), by ignoring her, refusing her communications, and (as I read its actions) by attempting to associate her with eco-terrorism.
The government of Alberta as the entity “Alberta Environment and Sustainable Resource Development” (“Alberta Environment”) failed, she claims, massively in its duties to the environment and people concerned.
In addition, (not mentioned in the case) the RCMP gratuitously visited Ernst, with no valid reason, to “interview” her.
I believe it is fair to suggest that the moves by the three entities complained of may be seen as not only single efforts to frustrate the court process, but as a collaborative effort of mighty forces (calling also upon the RCMP?) to intimidate and to prevent a reasonable hearing of reasonable claims by Ms. Ernst. I may be wrong.
That possibility is heightened, I believe, by two other aspects of the case that surround it with questions. (1) Case Management judge in 2012 was Madam Justice Barbara L. Veldhuis – about to rule on the applications against Ernst’s case, especially the one to declare actions against the ERCB as impossible to conduct on the grounds that the ERCB cannot be, in any way, called to account by a Canadian citizen or citizens by reason of immunity protection written into its being.
In a truly strange and surprising move (Veldhuis had been on the Court of Queen’s Bench only about a year), the Conservative Minister of Justice in Ottawa, Rob Nicholson, promoted her to the Court of Appeal of Alberta on February 13, 2013… and off the Ernst case. Except … as clearly as I can understand the processes of the Alberta higher courts … Madam Justice Veldhuis could have been both raised to the Appeal Court and instructed to finish hearing the applications with which she was already involved. She was not so instructed.
What was the Conservative government of Stephen Harper doing removing Madam Justice Barbara Veldhuis from the Jessica Ernst case? Was it setting up Neil Wittmann to take over Case Management rulings, as he, in fact, did?
The claim by the ERCB that it is above the Canadian Constitution, that it cannot be held responsible for any action violating the Canadian constitution, and that it is not responsible to the Canadian Charter of Rights and Freedoms is – I believe – a claim by it for existence as a fascist arm of government and private corporations. That means, to put the matter simply, the Canadian and Alberta governments (and environmental regulators created by them) acting, in fact, for large private corporations can behave in any way they wish and make whatever “laws” they feel necessary to facilitate profit-taking and the subjugation of injured Canadians in the process.
Such powers, I believe, are called fascist powers.
I suggest that no responsible judge in Canada would uphold such a claim to extraordinary powers. Chief Justice of the Alberta Court of Queen’s Bench Neil Wittman – as I read and understand his judgement – just upheld the claim.
The second reason (2) for believing the Jessica Ernst case is surrounded with questions springs from the self-appointment of Neil Wittmann to be judge on the Case Management matter of the Jessica Ernst case.
I am not at all sure Chief Justice Wittmann should be on the bench.
My recent Open Letter to him (asking for a reply) invited him to answer questions about allegations that he supported repressive actions taken against Kelly Marie Richard in her long and heart-breaking dental malpractice case. Her allegations are clear and on record on her website. I formally requested the Attorney General of Alberta to undertake a full public inquiry into the Kelly Marie Richard case, and was rebuffed.
In addition, Chief Justice Wittmann was the investigator for the Canadian Judicial Council of a complaint I made of misconduct by a B.C. Supreme Court judge. I believe he was her colleague on the Council – creating an obvious conflict of interest – when he took on the task and completed it to my complete dissatisfaction.
Finally, his selfless and public-spirited willingness to let Madam Justice Barbara Veldhuis be moved aside as judge in charge of Case Management in the Jessica Ernst case seems to me to have been a highly suspicious result of questionable events. In his “Reasons for Judgement”, Neil Wittmann does not say he volunteered to take over from Barbara Veldhuis. Nor does he say his taking over the matter delayed decision on the applications for many months, putting Jessica Ernst to further cost and to unnecessary anxiety and concern. He does not apologize to her for his delay in his “Reasons”. I do not believe – by any stretch of the imagination – that the applications submitted needed several months to be examined.
His decision to strike down Jessica Ernst’s claim that ERCB engaged in Charter violation is most interesting … and, I believe, highly questionable. His decision, in effect, validates the (seemingly repressive) actions of the ERCB, I believe. Chief Justice Wittmann accepts legislation that provides immunity for government organizations (working, as I see it, in cooperation with large private corporations). That such government organizations or agencies may, in fact, be violating Charter protections appears to escape him.
He wipes away with a phrase the fact that the ERCB refused contact with Ernst because of an alleged reference made to Weibo Ludwig (convicted of eco-terrorism). Wittmann writes that he agrees with “Ernst that the ERCB cannot rely on its argument on the Weibo eco-terrorism claim, in the total absence of evidence. There is none.” (p. 20, “Reasons….”)
It seems plain to me that the ERCB violated Jessica Ernst’s Charter protections in refusing to accept communications from her on matters of substance “through the usual public communication channels”. (Freedom of Expression does not only mean uttering words. It means having those words received and registered, especially by a responsible public body. Public demonstrations, for instance, are not conducted only so that demonstrators may “express” themselves “freely”. They are conducted so members of the population at all levels of power hear and see the expression of the demonstrators. Freedom of Expression is not freedom to shout in a sealed cave.)
So plain (as I see it) is the violation of Jessica Ernst’s Charter Rights by the ERCB that I believe the duty of the judge on Case Management was to find in her favour, and to declare a violation on the part of the ERCB. Instead Chief Justice Neil Wittmann repeats his contention that if he agreed a Charter violation happened, “such a breach would be alleged in litigation against government wherever possible” (page 30).
That is a statement of such unbounded absurdity and irrelevance to the case, it is hard to believe it was written.
In effect, I take it he is saying that immunity to litigation permits governments and their agencies to violate Charter rights, and the violations must be upheld by judges of the higher courts in Canada.
That is, apparently, because so many violations would be found they would throw into question the existence of immunity legislation! Wittmann does not question legislation that prevents Canadians from seeking remedies for real government wrong doing (often in support of large private corporations).
I believe that such an argument is a fascist argument – an argument which claims that what government and large private corporations agree between themselves about greed-driven pursuit of profit comes before all rights and freedoms of Canadians. That, perhaps, is indication of a move to the acceptance of Fascism in Canada’s higher courts.
Behind the whole case – and nowhere mentioned in Chief Justice Wittmann’s “Reasons for Judgement” – is a brooding reality. Canadians believe that a civil case – like the one being taken by Jessica Ernst – should never have to be undertaken. Canadians believe that ‘regulators’ (such as ERCB and Alberta Environment) are there to protect the population and to act in criminal law against any corporation that violates the freedom, the sanctity, and the security of Canadians and the environment. Jessica Ernst and other Canadians have come to learn, instead, that government appointed ‘regulators’ are more and more the servants of large private corporations and are tasked with silencing and intimidating Canadians seeking remedy for corporate wrong doing.
Nowhere in Chief Justice Wittmann’s “Reasons for Judgement” does he suggest the proper place for remedy of the wrong doings claimed is in the criminal courts in cases taken by the Crown on behalf of all Canadians.
For that reason I believe the present Jessica Ernst case (presently in the hands of Chief Justice Neil Wittmann) against EnCana, the Alberta ERCB, and the Alberta government is deliberately stacked against her. I believe those who have power over procedure intend an historic, huge, and dangerous miscarriage of justice. I fervently hope I am wrong.