An Aboriginal Argument Is Rejected

The Tribunal Hearing Division of the Upper Canada Law Society has denied motions filed in response to these matters

 Between March 2016 and February 2017, the Law Society received several complaints about the conduct of Glenn Bogue (the “Lawyer”) in various litigation matters. These complaints led to six Law Society investigations involving the Lawyer.

An order was entered suspending the attorney on an interlocutory basis and then 

In a motion filed on December 1, 2017, the Lawyer sought a number of orders. Following a Proceedings Management Conference on December 11, 2017, the parties agreed that a hearing would proceed on January 11, 2018, but only in respect of two of the orders sought in the Lawyer’s Notice of Motion, as follows:

1.   An Order appointing an Indigenous Chair to oversee an Indigenous Tribunal comprised of members of the Indigenous community. The Indigenous Chair should be a Clan Mother, and the three member Tribunal should be an Indigenous person from the Status community, the non-Status community, and the Métis community, appointed by the Clan Mother.
2.   An Order transferring this file, including this Motion, to the Indigenous Tribunal.

Mr. Bogue self-identifies as a member of the Kinakwii Nation/Confederacy.

The claims

The Lawyer’s arguments, although difficult to follow, were based on his notions of “Equity” and “Aboriginal Law,” without any cogent relationship to our statutory jurisdiction. The Lawyer argued that the June 29, 2017 Report of the Equity and Indigenous Affairs Committee adopted by Convocation, together with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and Indigenous laws of “Equity,” require the Tribunal to have a wholly Indigenous panel to address matters involving Indigenous licensees, and that this panel has the jurisdiction to create such a panel.

In making this submission, the Lawyer further argued that the panel had the authority to declare or establish such a panel and, indeed, the authority to transfer this matter to an Indigenous Tribunal based on a number of historical enactments and provisions. In his submissions the Lawyer referred to the following:

1. Recommendations number 42 and 45 of the Truth and Reconciliation Inquiry’s Calls to Action (“TRC”);
2. Canada’s filing its non-objector status to the UNDRIP at the United Nations;
3. the Two Row Wampum Treaty of 1613;
4. the Royal Proclamation of 1763;
5. the Jay Treaty of 1794;
6. s. 35 of the Constitution Act, 1982
7. the June 29, 2017 Report of the Equity and Indigenous Affairs Committee adopted by Convocation.

 To illustrate the evolving and expanding purview of Indigenous rights and law in Canada, the Lawyer further referred the panel to more recent jurisprudence: Delgamuukw v. British Columbia, [1997] 3 SCR 1010, 1997 CanLII 302 (SCC)R. v. Daniels (Indian Affairs and Northern Development), 2016 SCC 12 (CanLII) R. v. Sayers, 2017 ONCJ 77 (CanLII).

The Law Society, in its submissions, put forward the following response(s):

1. That the Law Society, the Law Society Tribunal, and this panel are governed by the statutory framework under the Act and its Regulations. This includes the creation of the Law Society Tribunal, its jurisdiction, its composition, its two Divisions, and the appointment of its Tribunal members and the procedure under which they act.
2. That the relief sought by the Lawyer could only be effected by way of legislative and regulatory means, including by Convocation of the Law Society Benchers, who are granted jurisdiction over various matters by the Act.
3. That none of the enactments or provisions cited by Mr. Bogue in the various enactments and reports establish, or grant jurisdiction to establish, an “Indigenous Tribunal,” as sought through this panel, on this motion.

Disposition

The Law Society Tribunal, including its jurisdiction, function, and procedures, is a creature of statute created pursuant to the Act and its Regulations.[4] While the Tribunal is required to act in accordance with fairness and the tenets of natural justice, it is not a Superior Court with jurisdiction to issue declaration(s) of right. While the Act and Regulations are subject to constitutional conformity, constraints, and parameters, like any other piece of legislation, this Tribunal panel does not have any jurisdiction to declare the statutory provisions unconstitutional, nor order the creation of a body not found in its enabling statute, which is what the Lawyer seeks.

At no time during his submissions did the Lawyer point to any specific provision that directly spoke to the relief he sought, nor to any specific, statutory or constitutional authority that could ground jurisdiction to declare, create, or transfer our jurisdiction to an “Indigenous Tribunal,” as requested by the Lawyer. This includes the Lawyer’s references to recent jurisprudence. We find these references were simply illustrative and general, and not directly tied to the otherwise narrow issue(s) before this panel on this motion, and our jurisdiction to grant the relief Mr. Bogue seeks. At no point did Mr. Bogue articulate or make any submission(s) with respect to any relief under s. 52(1) of the Constitution Act, 1982, with respect to any provision(s) of the Act or Regulations governing our composition or jurisdiction as a panel of the Law Society Tribunal.

The panel lastly notes, in passing, as put forward by Law Society counsel, that Mr. Bogue has made similarly vague and untenable arguments in other Courts, which have been dismissed, namely: The Children’s Aid Society of Ottawa v. A.C., Endorsement of the Court of Appeal for Ontario dated April 1, 2016; The Children’s Aid Society of Ottawa v A.C., Reasons of the Divisional Court dated May 11, 2016;The Children’s Aid Society of Ottawa v. A.C., 2016 ONCA 512 (CanLII)R. v. Anderson, 2016 BCSC 2170; R. v. Anderson, 2017 BCCA 154 (CanLII). While these cases are not strictly binding on this panel, they are nonetheless worth noting for the fact that they confirm and support this panel’s conclusions with respect to Mr. Bogue’s similar arguments before us, with respect to issue(s) before the panel and our jurisdiction.

For these reasons the motion is dismissed.

(Mike Frisch)