Aboriginal Arguments Draw Temporary Interlocutory Suspension
The standards for an interlocutory suspension are at issue in a recent decision of the Tribunal Hearing Commission of the Upper Canada Law Society
Mr. Bogue was called to the bar of Ontario in 1985. He was not in active practice status from 1987 until February of 2015. There are currently six investigations involving him, stemming from his actions as litigation counsel. It appears that many of his clients are Indigenous people.
On behalf of clients, Mr. Bogue has made submissions that, on their face, are of significant concern because they may hamper the administration of justice and harm his clients’ interests. For example, he has commenced problematic court proceedings against several judges, the Queen and the Prime Minister personally. In multiple proceedings, the documents suggest, the Lawyer has relied on theories that deny the authority of the Canadian federal and provincial governments. He has advised opposing counsel that they cannot act on a judgment from which leave was denied to the Supreme Court of Canada because it was being transferred to an Aboriginal tribunal. He pled in Federal Court that “[o]n July 17, 2013, the Pope issued a Motu Propria dissolving the Corporations of the world” and that Canada is a Crown Corporation “registered as #0000230098 in the corporate capital known as The United States of America Inc., operating in Washington, D.C.” There are numerous other examples.
Courts have expressed concerns about the nature of Mr. Bogue’s submissions. In Steinkey v. Canada, 2017 FC 124 (CanLII), Prothonotary Lafrenière of the Federal Court said at paras. 5 and 8-9:
Notwithstanding the Plaintiffs’ protestations to the opposite, they clearly fall within a class of individuals described in Meads v. Meads, 2012 ABQB 571 (CanLII), 2012 ABQB 571 (Meads) as “OPCA litigants”, who follow a well-known path of illogic, presumption and pseudo-legal rants. The pleading before me is a classic case of a vexatious party seeking to foist on the Crown a unilateral agreement and trust obligations based on nonsensical arguments…
Finally, I note that the Statement of Claim was signed by a lawyer, Glenn P. Bogue, and that Mr. Bogue also filed written representations in opposition to the motion before me. In Meads, Justice Rooke observed in paras. 643-645 that, as an officer of the court, each lawyer has certain duties not only to the client, but also to the justice system as a whole. In particular, it is a lawyer’s duty to not participate in or facilitate OPCA schemes.
I am very troubled to see that Mr. Bogue accepted a retainer to draft and file pleadings which ultimately assist in the implementation of a vexatious litigant strategy. I therefore direct that this Order and Reasons, along with a copy of the Statement of Claim and the parties’ motion materials, be delivered to the Law Society of Upper Canada for review, to determine whether any sanction is warranted against Mr. Bogue.
In R. v. Anderson, 2016 BCSC 2170, a criminal case, Justice Brown stated at para. 155:
I was particularly concerned when counsel advised that he and his colleague intended to introduce at trial the matters raised in the Memorandum of Fact and Law, including ‘criminal equity.’ Those matters are immaterial to the case and will not be admissible. Counsel’s comment left an impression that counsel was motivated by opportunity to pursue the theories and matters he addressed in the memorandum, which, he advised the court, were authorized and guided by the Clan Grandmother, as opposed to meeting the Crown’s case. He will have to satisfy this court clearly in due course where his representational interests lie.
It was clear from Mr. Bogue’s submissions before us that he continues to actively work on files.
Disposition
In our balancing of public protection and Mr. Bogue’s interest in having appropriate time to prepare, the following factors were key in tilting the balance in favour of an adjournment on terms:
• The allegations are serious and the Law Society’s evidence, considered alone, sets out a strong case for an interlocutory suspension. Based only on the Law Society’s submissions, we accept there is a significant risk of harm to the public and to the public interest in the administration of justice and that an order suspending Mr. Bogue on an interim interlocutory basis would reduce that risk. There is evidence, including comments from multiple judges, to suggest that Mr. Bogue is using litigation techniques that could harm the administration of justice and cause costs and delay to his clients and others.
• On the evidence now before us, the risks are significant and would continue during the period of the adjournment. Nothing short of a suspension could adequately address them, given the evidence we have seen. Mr. Bogue acknowledges he is actively representing clients on litigation files, and there is no indication he has stopped the types of approaches alleged here. The possible harm to the administration of justice of these types of tactics is well-recognized, including by this Tribunal: see, for example, Meads, above, Law Society of Upper Canada v. Hosein, 2014 ONLSTH 218 (CanLII) at paras. 17-18, and Law Society of Upper Canada v. Townley-Smith, 2010 ONLSHP 77 (CanLII), at paras. 34-38.
• The April 12 rescheduled date for the motion was agreed upon to accommodate Mr. Bogue’s vacation.
• The issues to be determined are primarily based on an analysis of the litigation materials Mr. Bogue prepared and do not appear to require complex financial or other analysis. He has been aware of the allegations for some time.
• The Law Society acted quickly as the number of complaints and comments by judges about Mr. Bogue mounted in a relatively short period.
• Mr. Bogue did not prepare any materials. He has not taken steps other than speaking with two lawyers and he proceeded with his vacation and work on his clients’ files. While there is a right to counsel in Tribunal proceedings, a licensee who wishes to exercise that right must quickly find counsel who is available on an urgent basis when a motion such as this is brought.
• The total time he requests to prepare is more than two months, which is too long when an urgent, ongoing risk to the public is alleged.
Considering both substantive and procedural issues, we concluded that the adjournment should be granted on the term that there be an interim interlocutory suspension.
(Mike Frisch)