Supreme Court kills Meritorious Appeal
Justice Gone Awry

How do lawyers survive?

On June 02, 2016, the Supreme Court of Canada deposited its judgment in Kakoutis v. Bank of Nova Scotia and it was succinct and cruel -succinct because reasons are not published and cruel because the victims are being forced to pay for this grotesque, miscarriage of justice. One does not expect to be out-gunned by the Supreme Court of Canada but in this particular case, that is the clear and distasteful outcome. Confused? Did you expect an open-ended search for the truth from the highest court in the land? Brace yourself. This will probably be the best thing you will have ever learned about the judicial process in Canada and if you read it very carefully, you will clearly understand why lawyers are known to make comments like, "if I ever get into trouble I will not be able to afford my own services."

And so, why did the Supreme Court of Canada dismiss Kakoutis v. Bank of Nova Scotia?

In a nutshell, Justices Andromache Karakatsanis, Rosalie Abella and Russell S. Brown dismissed, with costs, the application for leave to appeal from the decision of a judge who relies upon a fraudulently altered court transcript to justify her position. Is that what justice in Canada has become or should be? If you answered "yes", you have made North Korean leader, Kim Jong-un, very proud.

Kakoutis v. Bank of Nova Scotia started off as a simple breach of contract case which was made to appear to be a bad debt collection action against deadbeat mortgagors. To evade liability, powerful corporation like the Bank of Nova Scotia use their resources to dominate and to mischaracterize and the simplests truth is lost in translation (in other words it is adjusted) to suit the corporate agenda. That is why we say that in Canada, corporations get "great justice" which means that self-represented litigants get the crumbs.

And how do corporations get away with it? It is surprisingly easy. All they have to do is to insist that anybody who complains about all the unrecognized abuse is a frivolous and vexatious litigant and corporate Goliath stomps on David until he or she is chocked to death.

The Supreme Court of Canada was wrong to dismiss the Kakoutis v. Bank of Nova Scotia appeal. It is clearly a matter of national public import because it relates to the grotesque violation of the Appellants' private, personal bank account and what can be more consequential in a free and democratic society than the right and the responsibility to manage personal finances without untoward interference?

Since Justices Andromache Karakatsanis, Rosalie Abella and Russell S. Brown dismissed the appeal in question, we need to understand what they were thinking even though it is clearly difficult to determine.

While the appeal was in the hands of the aforementioned judges, the court gives no indication whether the judgment was unanimous or not and the entire blame for killing a meritorious appeal is consequetly unknown unless the Justices subsequently agree to talk about it.

In the meantime, it is safe to say that this particular decision of the Supreme Court of Canada is not acceptable under the rule of law, and that has to be the starting point of any reasonable inquiry into this matter.

Justice Karakatsanis and Justice Brown are Harper appointees and if they were influenced by partisan consideration, it does not appear likely to have had a huge impact on the decision they reached. Justice Brown's history has certainly exhibited the characteristics of a partisan hack whose philosophy was summed up in four words; "Harper good, Trudeau bad." Nonetheless, his current state of mind is not as transparent. He does not blog anymore nor does he give interviews and it is consequently not possible to know what he is currently thinking.

Justice Rosalie Abella is known to reject Kafkaesque decisions and if there was a dissent on the panel it was probably her.

Unfortunately, Supreme Court Justice Moldaver was not on the panel that decided whether to grant leave to appeal this particular case. He would have been far less likely to dismiss the appeal because he is evidently in the best position to understand the issues it raises. To be sure, he is also a Harper appointee and lest anyone thinks we are merely partisan hacks, an objective reader ought to note that the only point of this analysis is to develop understanding, not to establish a foundation for partisan bickering.

Justice Moldavor was raised in a small town, Peterborough Ontario household whose moral values inspired him to always do the right thing and values that were instilled from an early age never left him. As a child, when Justice Moldaver got into trouble in school he got into "double trouble" at home and he consequently developed a sense of morality which has been the dominant force in his life.

Given his regard for the importance of ethical and moral values, it is highly unlikely that Justice Moldaver would have not relished the opportunity to jostle with and to thoroughly expose the corrupted Bank of Nova Scotia in this particular case. A ferocious cross-examiner, Justice Moldaver would have simply shredded the Bank of Nova Scotia's fickle efforts to turn a simple breach of contract case into a malignantly aggressive, collection agency operation.

A Perry Mason fan since he attended university, Justice Moldaver exposed his moral aspirations in a 2014 interview wherein he said, "the thought of being able to defend a person charged with murder who was innocent and to have the real culprit confess after a blistering cross-examination was sort of too much for me too resist."

Justice Moldaver chuckles fondly when he talks about how he was influenced by the fictional character, Perry Mason, but he is deadly serious when he talks about real life miscarriages of justice. For example, this is what he said with respect to the involvement of the Supreme Court of Canada in the Steven Truscott case;

"The Charter is a magnificent document, it's here to do great good and it had done great good. When you look at that trial back in the late 50's, (Steven Truscott) from the time he was charged to the time he was refused leave to the Supreme Court of Canada was all of 6 months, and during that time he was transferred to the adult court from the juvenile court, he had a trial, he had an appeal and his leave was denied with the Supreme Court of Canada -and that was all within 6 months. And I was thinking to myself this is an expeditious justice system but you need justice. And so, as I became involved in the Truscott decision I saw some of the things firsthand that could lead to serious miscarriages of justice -one of them being on the failure on the part of the police and the crown to disclose... I was impressed by the fact that miscarriages of justice can result from tunnel vision on the part of the authorities and in Mr. Truscott's case, the police sort of focused on Stephen Truscott from day one and really did not look beyond him. So there were a number of things that came out of that case, apart from just feeling that justice was finally done, that caused me to realize that we must take all reasonable steps to avoid the kinds of miscarriages of justice that occured in that case. There are a number of factors that we look at today that weren't looked at back then."

Having developed a keen sense of the predisposing circumstances which lead to miscarriages of justice, Justice Moldaver far more likely to speak out against the grotesque misrepresentation, mischaracterization and deception which has thus far dominated every action in Kakoutis v. Bank of Nova Scotia.

Unlike Moldaver, who condemns characteristic tunnel vision, the Supreme Court of Canada embraced the confirmatory bias which is a key factor of miscarriages of justice and the following excerpt of the summary that the Supreme Court of Canada published on its website to describe the Kakoutis v. Bank of Nova Scotia appeal makes that quite clear:

"On February 22, 2012, Mr. Kakoutis attempted to make payment of $1,188 on the Scotialine account because it was in default. The applicants maintained that this payment was made in cash and that the teller had either lost or stolen this payment. BNS stated that there was no evidence that a cash payment was made but that an attempt was made to make the payment from the applicants’ deposit account. Due to the teller’s error the transaction had no effect. The applicants made their last payment of $593 on March 1, 2012. BNS served the applicants with a Notice of Sale Under Mortgage on February 1, 2013. They remained in possession of the property."

The aformentioned summary is factually incorrect. First and foremost, the bank continued to withdraw mortgage payments from the bank account of the Kakoutis family, the last one being January 1, 2013 and that makes the Bank of Nova Scotia's knee-jerk foreclosure demand on February 1, 2013 extremely premature, to say the least. Moreover, the bank's claim that the applicants maintained that they paid in cash and that there is no evidence of having made a payment in cash is yet another fraudulent, essentially irrelevant diversion which is being used to dispute a legitimate, well documented payment of $1188.

The deception and the doublespeak of the Bank of Nova Scotia is making a total mockery of the entire judicial process. The Kakoutis family relied on its bank account, not "cash payments" to fulfill their financial obligations. Does the Bank of Nova Scotia seriously think it can get away with creating the false impression that the Kakoutis family can rely upon the Brian Mulroney method of doing business?

For those who are too young to understand what that means, a brief diversion: In 1993 and 1994, former Prime Minister Brian Mulroney accepted payments larger than $225,000 in cash from arms dealer Karlheinz Schreiber. In accepting cash-stuffed envelopes from Mr. Schreiber on three separate occasions, failing to record the fact of the cash payments, failing to deposit the cash into a bank or other financial institution, and failing to disclose the fact of the cash payment made these transactions untraceable. Consequently, "cash payment" implies untraceable transaction and when the bank makes that the focus of its investigation it is essentially seeking to duplicate Brian Mulroney's deceptive tactics.

The Kakoutis' do not have the resources that are required to transact in cash. They deposited their money in the bank and that means traceable and provable. Mulroney accepted envelopes full of cash as payment and that means no bank account record. The difference is as clear and as obvious as all of the bank's futile and fraudulent efforts to create a contrary impression.

In banking, the word "cash" bears no significance because it is the quantum of the deposit which matches the payment in quesion.

The Bank of Nova Scotia evidently thinks it can manufacture a diversionary dispute regarding a failed cash payment to challenge the credibility of the Kakoutis family, but that would only be possible if they had the luxury to rely on untraceable money in brown paper bags to fulfill their financial obligations.

For the sake of confirming the obvious, there are essentially two ways to transact in Canada, the Mulroney way and the bank account way. Former Prime Minister Brian Mulroney did not need a bank account to feed tiny Ben but Effie Kakoutis is not that fortunate. She relies on her bank account to feed her family and for some reason, Scotiabank thinks it can take that away without consequence. "Let them eat catfood", but even the price of that is considerble, these days.

Adding insult to injury, the Bank of Nova Scotia obscures its own surveillance video because it does not understand the insignificance of the misdirection regarding the "cash" aspect of the transaction in question.

To repeat ad nauseum, in the legitimate world, there is no such thing as a cash transaction. Consequently, the Bank's childish efforts to ascribe inappropriateness to a definite, well documented transaction are futile and altering its own surveillance video merely confirms the claim, "it's not the crime, it's the cover up, stupid".

Like the Bank, the Supreme Court failed to acknowledge the implicatins of inappropriately destroying the banking privileges we all take for granted and it has embraced the confirmatory bias which mischaracterizes the nature of the case in question.

Why wasn't Kakoutis v. Bank of Nova Scotia appropriately assessed by the Supreme Court of Canada? It appears, and there is no other, rational explanation, that the case summary in question was distorted because tunnel vision is a natural human tendency. Indeed, we have finaly come to recognize the pernicious effects of cognitive bias in the criminal law context but some people evidently still think that authorities have the right to obstuct justice at will in the civil law context. Clearly, the fraudulent alteration of court transcripts is probably the best indication of that particular attitude, and if the Supreme Court of Canada thinks that is acceptable it needs to put it in the rules.

In the current, Kakoutis v. Bank of Nova Scotia fiasco, the evidence proves that official court transcripts were fraudulently altered to mischaracterize the case in question, that will always be true and it should not take the Supreme Court of Canada 40 years to review

the significance of that. The path to setting the record straight is clear. Bias must be consciously rejected and as long as that does not happen, history clearly proves that the routine abuse of process routinely obstructs justice.

Confirmation bias explains the errors in the case summaries that the Supreme Court of Canada publishes but it does not justify them. The reiteration of falsehood merely reflects the unwillingness to shed an unreliable conclusion and it is clearly the dispositive evidence to the contrary which merits consideration.

The simple truth is elusive because of the following reasons brilliantly elaborated through the comprehensive research of Canadian Lawyer, Bruce A. MacFarlane:

"All people are, to varying degrees and in different ways, susceptible to natural cognitive biases and distortions...A finding of tunnel vision is not necessarily a statement about the values of the affected justice system participant; rather, it is a recognition that tendencies that are quite natural can distort normal decision-making processes, often to the detriment of the citizen. The innateness of these cognotive biases and distortions does not, however, absolve the affected players, for the person adversely affected invariably had an expectation of being dealt with fairly and objectively by the system. Personal accountability must therefore form a part of the process, and, equally importantly, the justice players themselves must recognize that they have a responsibility to acknowledge that they are susceptible and that they need to take steps to reduce or neutralize that vulnerability so that they will not be trapped in the tunnel.

Beyond lawyer, MacFarlane was a Crown prosecutor, former federal and provincial Department of Justice official, and a legal scholar whose research paper regarding the authoritative tendency to get it wrong is a must read.

Predisposing circumstances, tunnel vision and cognitive biases invariably lead to seemingly normal, professional decisions that are simply wrong and the logical suspect gets away with murder. In this case, the logical suspect even altered evidence is a futile effort to hide the money, and it is consequently time to hold the Bank of Nova Scotia accountable for their obsessive efforts to misrepresent the simple truth.

There is no real surprise here. Justice is frequently much slower than it should be. On May 4, 1967 the Supreme Court of Canada denied 8-1 to hear Stephen Truscott's appeal citing inconsistencies in his testimony. It was not until August 28, 2007, that the court declared that Truscott's conviction had been a miscarriage of justice. It took 40 years for the Supreme Court of Canada to catch up to the truth because it did not know anything about confirmatory bias and tunnel vision. Now it does and there is no excuse for a similar delay to do justice.

The tunnel vision or cognitive bias promoted in the Supreme Court of Canada synopsis of the case has clearly impeded the accuracy with respect to the issues that Kakoutis v. Bank of Nova Scotia raises, that is not appropriate and while it may explain the decision to kill the appeal it does not justify it.

Clearly, the single-minded, narrow focus which micharacterized the case has pre-judged the outcome and that is not what the Supreme Court of Canada should do.

It is evidently time to rethink what we call good corporate justice because systematic and structural abuse of process is insidious, it blocks access to justice and it is so pervasive it has even managed to infect the Supreme Court of Canada. It is consequently necessary and essential to oppose and expose all inappropriate decisions that are not acceptable under the rule of law.

We must all work together to fix the reigning mess and a good place to start is right here because when the Supreme Court of Canada kills justice it raises the need to revive it.

In the meantme, to develop a better understanding about abuse of process and the effects of confirmatory bias, it is in the interests of justice for every lawyer and every judge to review this paper by lawyer Charles G. Bretz Jr., as well as this comprehensive study by Bruce A. MacFarlane.

When the open-ended search for the truth is destroyed through mutually reinforcing mischaracterization, even the Supreme Court of Canada can bring the administration of justice into disrepute, and that needs to change.





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