Court file No S -196032    
Vancouver  Registry

IN  THE  SUPREME  COURT  OF  BRITISH  COLUMBIA

holden at Vancouver

IN THE MATTER OF THE   JUDICIAL  REVIEW  PROCEDURE  ACT

   [ RSBC 1996 ]    Chapter  241     

IN  THE  MATTER  OF  THE   BC  HUMAN RIGHTS CODE 

[ SBC  1996   ]     Chapter     210    

BETWEEN     WILLIAM WHATCOTT                    Petitioner

AND                BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL
                        MORGANE OGER

                                                                                    Respondents

PETITION  TO  THE  COURT

 

                                                      as amended November  24^th   2020

ON  NOTICE  TO :         DAVID EBY  Attorney General of British Columbia
                                                PO Box 9290   Stn Prov Govt

                                                Victoria   British Columbia   V8W 9J7

                                    BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL

                                    1170     605   Robson Street    Vancouver    BC    V6B 5J3

                                    MORGANE OGER

                                    C/o       Allevato Quail and Roy
                                                405    510 West Hastings Street   Vancouver   V6B 1L8

Let all persons whose interests may be affected by the Orders sought  TAKE NOTICE  that the Petitioner applies to Court for the Relief set out in this Petition

                                                                      
This proceeding has been started by WILIAM WHATCOTT, Petitioner,  for the relief set out in Part 1, below

If you intend to respond to this Petition, you or your lawyer must

( a ) file a Response to Petition in Form 67 in the above-named Registry of this court within the    time for Response to Petition described below, and
( b ) serve on the Petitioner
            ( i )  2 copies of the response to Petition,  and

            ( ii ) 2 copies of each filed affidavit upon which you intend to rely at the hearing

Orders, including orders granting relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response.

            Time for response to Petition

A response to Petition must be filed and served on the Petitioner, 

( a ) if you reside anywhere within Canada, within 21 days after the date on which a copy of the filed petition was served on you,

( b ) If you reside in the united states of America, within 35 days after the date on which a copy of the filed petition was served on you

( c ) if you reside elsewhere, within 49 days after the date on which a copy of the filed petition was served on you, or

( d ) if the time for response has been set by order of the court,  within that time

 (  1 )  The address of the Registry is :

            800 Smithe Street     Vancouver    British Columbia

(  2  )    The  ADDRESS FOR SERVICE  of the Petitioner, is :
                                                Post Office Box 47034   Langford   British Columbia   V9B 5T2
                          

( 3 )      the Petitioner speaks for himself
             

CLAIM  OF  THE  PETITIONER

PART  1:  ORDERS  SOUGHT

            FIRST 

For an Order that, because therewas a reasonable apprehension of bias in the tribunal from before it even got underway,  its ruling is thus set aside

            SECOND
For Declaration that sections 2 ( a ) 2 ( b )  2 ( c )  and 2 ( d ) of the Canadian Charter of Rights and Freedoms  do override section  7 ( 1 ) of the B C Human Rights Code.   And for an Order that the ruling of the Tribunal in the matter of  OGER versus WHATCOTT  is thus a nullity

            THIRD
For Declaration that section 2 ( b ) of the Canadian Charter of Rights and Freedoms   entrains the right of a citizen to receive expressions of particular information previously unknown to him or her.     And for an Order that, as the Tribunal failed to consider the right of each elector in Vancouver Fraserview riding to receive information via the publication in question, the Tribunal erred in law

            FOURTH
For Declaration that by excluding certain witnesses whom WHATCOTT had called to testify in his defence, the Tribunal denied him the right to make full answer in defence

            FIFTH
For Declaration that,  by preventing the Defendant testing the veracity of the proposition central to the case, ie, Complainant’s assertion that he ‘is a woman’  then relying upon it as a fact when there was no evidence supporting it,  the Tribunal made an error in law

           SIXTH
For an Order that Commissioner Cousineau’s ruling in the BC Human Rights Tribunal matter of OGER versus WHATCOTT,  having been predicated in abovementioned errors of law, is therefore set aside ; a nullity
                                                                          

PART  2:        FACTUAL BASIS

01        the FACTS which form the basis of this matter are set out best in pages 1 to 3 of the  Amended Additional Response which is Item  One  in the MATERIALS TO BE RELIED UPON.   At all times material to his complaint OGER was a vice president of the New Democratic Party.  In the provincial election in June 2017 he was that party’s candidate in the Vancouver False Creek riding         

02        OGER was born in France.  Official records in that country reflect that he was born a male child, with the birth name “RONAN”.  [  page 44 lines 28 to 47 of the transcript ]   In Canada, OGER  married a woman and had children with her.   At the time those children were born, Complainant identified himself as  “Ronan Oger”.  Official records of the birth of each of his children show ‘Ronan Oger’ as their father. The transcript of the hearing shows OGER pitching to the Tribunal that the flyer and subsequent commotion arising from it,  affected his children. At no time in his political activity, particularly in his campaign in the 2017 provincial election, while declaring himself their parent, did OGER ever say that he was  not  the natural father of those children.  Apparently – from his campaign literature / public appearances – Complainant manipulated the Vital Statistics Branch of British Columbia to change certain information in official records to pretend he is now female. 

03        After the election OGER originated a formal complaint to the Human Rights Commision about the flyer in which WHATCOTT critiqued OGER’s fitness to be elected.     Devyn Cousineau was appointed to be the sole commissioner presiding on the tribunal considering that complaint. Appointment of Commissioners to preside over Administrative Tribunals falls under the Ministry of Attorney General.  In the run-up to the hearing,  various citizens notified Attorney General Eby that Cousineau was a long-time activist promoting the cause of “transgender rights”.   AG Eby never dealt with complaints that her presence on the tribunal was a reasonable apprehension of bias.  Rather,  AG Eby appointed two more people to the tribunal with Cousineau in charge.      

04        The Tribunal proceedings are best described in modern parlance as a charade trying to give the pretence of impartial adjudication of law but in reality, it was nothing more than a pro-LGBT kangaroo court in which there was not defence that WHATCOTT  was able to employ that would have brought about a different result, other than him renouncing the truth that Mr. Oger is man.  To the chagrin of its members,  WHATCOTT correctly referred to OGER as male,  using the correct pronouns ‘he’ and ‘him’ when giving testimony in his own defence. During the hearing adjudicator Norman Trerise in advertently spoke the truth, referring to OGER four times using the correct pronouns even though he later concurred with the other two adjudicators in finding WHATCOTT guilty and assessing additional costs because WHATCOTT did the same. Diana Jurecivic revealed her bias by ordering WHATCOTT to  remove his teeshirt that said Mr. Oger was a man, and had the Bible verse “God made them male and female”  Genesis 5:2.   But Jurecivic did not order the homosexual and transgender activists in the room, to remove their shirts with pro-LGBT slogans. Ms Jurecivic kept a score of the times WHATCOTT refused to lie ( as he was ordered by the Tribunal, allegedly, to protect Mr Oger’s feelings)  And tallied each time WHATCOTT used the correct male pronouns in his defence. The Tribunal refused to consider that WHATCOTT  would literally be discrediting his own defence, his beliefs and his moral character if he referred to the Complainant with female or gender-neutral pronouns.  In its ruling the Tribunal assessed WHATCOTT  an additional $20,000 in costs, because he refused to participate in the charade i.e  ‘Mr. Oger is a woman’.    

05        The Tribunal delivered its ruling in March 2019.   On May 24^th 2019 lawyer Daniel Mol originated a Judicial Review on behalf of WHATCOTT.  On November 13^th  2019 a private citizen – acting completely independent of lawyer Mol nor WHATCOTT – took it upon himself to serve Respondents with a copy of the Petition, only.  UN-learned in the law, assuming that there was no requirement to serve them because they were available electronically, that individual did not serve hard copies of Affidavits which had been filed when the Petition was originated.   Neither Respondent submitted a Response to that partial service.  After May 29 2019 professional lawyer Daniel Mol took no further step in the matter.  On October 15^th  2020 William WHATCOTT took back personal conduct of this matter.    Mr Mol is not counsel of record.               

PART 3          LEGAL BASIS           

06        This Petition is brought in accordance with the  Judicial Review Procedure Act   to have a Justice of the Supreme Court review a ruling of a provincial body.    For his argument for setting aside the ruling of the Tribunal, Petitioner adopts the reasoning including the authorities, published by his counsel at the hearing, the Summary a copy of which is Item Three in the MATERIALS TO BE RELIED UPON.    And for certainty : said reasoning is set out in this PART using letters defining paragraphs instead of the numbers used in the original.      

            Reply to Attorney General Submissions     OGER   versus   WHATCOTT

( a )      At stake is the future of political free speech.     The question is whether the Province has jurisdiction to regulate the content of political free speech uttered or stated in a publication in the course of an election campaign.

Is the Subject Matter Within the Scope of Section 92 (13) read together with 92 (16) of the Constitution Act, 1867 and Within Provincial Jurisdiction ?   

General Response to Paragraphs 30, 36-49 of Attorney General Factum

( b )           In Scowby, Estey J. at p. 233i, determined that the test for deciding whether a section of a provincial human rights code falls within the jurisdiction of the province, boils down to the  activities  legislated. Housing, employment and education were all activities that are in relation to property and civil rights or were matters of a local and private nature.

( c )           The activity of political free speech is at issue here.      Is there absolute freedom to discuss the moral fitness of a political candidate running for public office?

( d )           The Respondent says that his liberty, personal autonomy, psychological integrity rooted in security of the person, all guaranteed by s. 7 of the Charter, is impaired by the coercive reach of s. 7 of the BC Human Rights Code  (“Code”).      Moreover, his deprivation of these constitutional freedoms is done by a governmental adjudicative process that violates fundamental principles of justice.     Rulings made by the Tribunal,    both before and during the hearing, resulted in the abandonment of the search for truth, a prohibition upon cross-examination of the complainant to test credibility,  the application of a legal test for liability that eliminates mens rea,    a legal test that eliminates good faith,  a legal test that deems truth to be irrelevant,     deprivation of a finder of fact composed of a representative jury, and the imposition of an order compelling speech to conform to gender specific pronouns.

( e )           The result is the imposition of strict liability based on an objective test of a hypothetical reasonable person.      Although the norm in judicial review of administrative action is reasonableness,  the Respondent says that the appropriate legal standard can only be one of correctness.    This is because what is reasonable to the average person who forms part of the majority, does not take into consideration what is reasonable to discrete and insular minorities, who are powerless and marginalized because of unpopular views.      To counter this imbalance, a finder of fact assessing this case, that is essentially about democracy, must give weight to unpopular dissenting views that are perceived as unreasonable or even hateful, by adopting a correctness standard, instead of a reasonableness standard that will only be certain to impose liability upon the Respondent.

( f )           The Respondent says that there is no authority, express or implied, within the scope of s. 92 of the Constitution Act, 1867  that grants jurisdiction to the province to regulate the content of political speech in the course of an election campaign.    Section 7 of the Code strikes at the heart of democracy.      Here is why.

( g )           The prohibition of alleged hate speech during an election campaign will exacerbate social problems and not relieve them.    Banning free speech will bottle up steam that needs a way to peacefully vent.      Restricting free speech disrespects individual autonomy and self-determination. The concept of democracy is self-government by the people.     For the system to work, an informed electorate is necessary. In order to be knowledgeable, there must be no constraints on the free flow of information and ideas.    Democracy will not be true to its essential ideal if there is law that can manipulate the electorate by withholding information to stifle criticism of the moral fitness of a political candidate.

( h )           Democracy thrives when there is no regulation of the content of free speech during an election. Good intentions to prevent hurt feelings to targeted candidates harms the political and democratic process.     Free speech, not human rights law, is the antidote to the social diseases of prejudice and hate. In this war on free speech, the ultimate casualties are truth and democracy.

( i )           Whatcott’s flyer created a golden political opportunity and platform for Oger to expose Whatcott as a prejudiced bigot and to attack the Bible as a fount of hate literature.    The activities of Whatcott identified him as a political opponent and revealed the precise nature of his thinking. This allowed Oger to counter with a strategic political response,   by using religious clergy to oppose the biblical authorities cited by Whatcott.

( j )         The effect of legally supressing unwelcome political speech will outrage and alienate those who share Whatcott’s beliefs and views.     This consequence marginalizes minorities who may then view the legal order as illegitimate and regard the electoral and democratic process as a one-sided sham.     History teaches us that suppressing peaceful political speech in the short term can eventually lead to violence and illegal means to accomplish political goals.     Conflicts are inevitable in any society, but what sets democracy apart from other political systems is that it offers the means to resolve conflicts peacefully without violence.

( k )         Regulating political speech means that the majority and “reasonable” viewpoint in society will attain power that can lead to abuse. Classifying dissenting minority speech as unprotected “hate” speech, will be an easy means to attack moralists who quote the Bible, and to expose people like Whatcott to detestation and vilification by the general public.     People like Oger will use s. 7 as a shield to defend dominant groups that have protected status in law, and used like a sword to punish Whatcott, by stifling his political speech and to financially and socially destroy him, labeling him a hater and relegating him to marginal existence, all because Whatcott decided to meaningfully participate in the democratic electoral process and to manifest his religious faith.

( l )         The irony is that outliers and dissenters who are most in need of speech protection, will be denied that protection by any finding that s. 7 of the Code is constitutional and may regulate the content of political free speech.      If the Tribunal disempowers those who advance biblical authority to justly criticize the moral fitness of a political candidate for public office, the enemies of Whatcott and what he stands for, will have cleverly set the stage for a direct attack on the Bible itself, as cesspool filled with hate literature, that condemns the immoral to eternal suffering and punishment for sin.      All this will flow from an innocuous complaint regarding the content of a political and religious flyer that has not a shred or hint of posing any clear or present danger of criminal activity or hatred to the person of Oger or to anyone else associated with Oger’s gender identity.

( m )         All these aforementioned activities cannot be said to have any rational connection to the powers granted to a provincial government under s. 92.   The inevitable conclusion is that s. 7 of the Code poses a grave threat to the very foundations of democracy itself.

( n )         Regulating the content of political free speech and thus restricting Whatcott’s public participation in the democratic electoral political process is incompatible with a free and democratic society.

( o )         If s. 7 of the Code is constitutional, then the provincial government will have the authority to regulate the content of political expression during an election. Such a finding is opposite to the conclusion of the Tribunal in   CJC v. North Shore News, para. 190,    “Thus s. 7(1)(b) does not in any way restrict hateful expressions that are likely to expose … politicians … to hatred or contempt, because of their political affiliations …”   Close scrutiny of Whatcott’s flyer reveals that his goal was to persuade other voters not to vote for the NDP,   a political party advocating the political, legal, and social agenda of Oger,    who is the current Vice-President of that same party.

( p )         The content of political free speech cannot be limited by provincial law, as this activity is outside the scope of s. 92 and arguably also s. 91.     The written and unwritten constitution of Canada is a legal instrument that is superior to any positive law passed by any provincial government or by the federal government.  Unregulated political free speech is in its own right, is a political institution of the highest order, enshrined by both the implied bill of rights found in the unwritten constitution and in the Constitution Act, 1982.  Support for this is found in the Keegstra decision, where freedom of expression is regarded as the most powerful of all the s. 2 Charter rights.    See: Brunner, p. 302.

( q )         In Switzman v. Elbing, at p. 328 [SCR], Abbott J. stated, “… neither a provincial legislature nor Parliament itself can ‘abrogate this right of discussion and debate.’”   Political free speech is the lifeblood of democracy.     Political free speech, like the air itself, is not confined to the physical limits of a building housing the elected members of parliament or the legislature, but extends everywhere as a treasured political institution that is at its highest level of importance, during an election campaign, when the freedom to choose a candidate is at stake.

( r )         In this case, the Whatcott flyer injects truth and Christian morality into the political debate, to dissuade voters from electing a party that nominated an individual perceived by Whatcott to be morally unfit.  To mischaracterize a flyer intended to be the sunlight of truth as the darkness of hate, disregards the rule of law, which permits citizens to “explain, criticize, debate and discuss in the freest possible manner such matters as the qualifications … and social principles …” of a political candidate.     See pp. 327-8, per Abbott J. in Switzman.  

( s )         Do moral virtues and social principles derived from Judeo-Christian authority that informed the genesis and development of the common law and the rule of law still matter today? If the answer is yes, the message that Whatcott preached through his flyer cannot be properly interpreted as hateful at all.

( t )         While gender identity and expression is be legal as a protected class under human rights legislation, there is a hot political opposition from some feminists who argue that this kind of activity is unwelcome gender misappropriation, offensive to biological women.    Does this mean that all political opposition to the legal status quo is uniformly hateful, whether based in feminist theory or in Christian doctrine?   If only Christian doctrine is viewed as hateful, is this not bigotry and hate toward Christianity itself, manifested as Christphobia?

( u )         The human rights legislation includes religion as a protected class too.     Is not the depiction of Whatcott’s flyer as hate, also an indirect attack on the Bible itself as hate literature? Where is the jurisdiction in the province to make a determination that the holy book of a major established religion is hate speech and cannot be quoted in an election to oppose the morality, political platform, and social principles of a political candidate?   Assuming there is a hate finding against Whatcott, is this not State discrimination against Christian evangelists and activists, contrary to the statutory policies of the Code?     Where is the jurisdiction in the division of powers that allocates such a sweeping mandate to a province?      There is none.

( v )         A political proposal to repeal the protection of those people who identify as transgender might be regarded by some as hateful, and the subject of a complaint to the human rights tribunal. But however repulsive Whatcott’s political actions might be to Oger, who lobbied to amend the Code to protect gender identity, CJC Duff ruled in Reference re Alberta Statutes, at pp. 133-4 that “every point of view” is legitimate in both the advancement and in the attack upon political proposals.  This freedom is governed by criminal laws that protect public order from violence and protects by tort law the reputation of individuals from defamation. Duff CJC does not identify the truth as a limitation that may be restricted by law.

Is the Subject Matter Within the Exclusive Jurisdiction of the Criminal Law, s. 91 (27) Constitution Act, 1867 ?

            Specific Response to Paragraph 40, AG Factum

( w )         The imposition of a penal sanction, such as the deprivation of physical liberty for a predetermined period of time, is not the only identifying characteristic of criminal law regarding the classification of legislation to be in pith and substance criminal law.     Whatcott faces the possible lifetime deprivation of his liberty to evangelize, to manifest his religion in the public square, and to use the pronouns he chooses.    He also risks losing his freedom to express his conscience and to publicly rebuke immorality, as part of his participation in a democratic election to urge voters not to vote for a candidate or a political party, or both, that he believes is morally unfit to hold public office and to exercise power.    These infringements of liberty are far more insidious and restrictive of personal liberty and his psychological integrity, which is integral to his security of the person, than incarceration that imposes no control over the mind.

( x )         Section 7 of the Code resurrects the crime of seditious libel that was once regulated in the Criminal Code. Exclusive jurisdiction for the regulation of hate speech as a crime is conferred upon the federal government by s. 91(27).     The Keegstra decision is an illustration of the exclusive authority of the federal government to regulate hate speech.

( y )         In this case, Oger asked the police to bring a hate crime prosecution against Whatcott.    No charges were laid.  That ought to have been the end of the matter.  It is a violation of the rule of law and the division of powers to use human rights legislation as criminal law to accomplish the suppression of Whatcott’s views.

( z )         Had Whatcott been charged with a hate crime, he was entitled to be presumed innocent until proven guilty beyond a reasonable doubt, to test the credibility of Oger, to rely upon the defence of truth, to the admission of expert evidence from Dr. Gutowski, allotted more time to cross-examine and to make legal submissions, and if indicted, to be tried by a judge and a jury, just to name a few due process protections available under criminal law.    Whatcott would have been far better off to be criminally charged and undoubtedly acquitted.

( aa  )         The test for charge approval is that there is no likelihood of conviction and that it is not in the public interest to proceed.      That was the right decision.

( bb )         However, s. 7 of the Code is bereft of the due process requirements of criminal law.    In effect, Whatcott is unconstitutionally prosecuted for a human rights hate crime that is not only outside the jurisdiction of the province,   but also is shamefully lacking legislative safeguards that ensure due process.

( cc )         The penal sanctions test deserved more than just a cursory look by the Attorney General to see if the Tribunal has the power to jail Whatcott or not. A proper analysis begins with the finding of liability. A finding of liability under the applicable statute attaches moral culpability and social stigma to the offender. The sanctions imposed by both a sentencing judge for a criminal offence and for a human rights offence are the same. The sanctions are designed to compel behaviour modification.

( dd )         Behaviour modification is the goal of sanctions that are designed to denounce, deter, rehabilitate and make reparations to the complainant and to society at large.    In this case, this Tribunal is asked by Oger to make a finding of liability; to make a declaration that s. 7 of the Code was violated; to impose costs of $35,000 for alleged defiant and disrespectful behaviour, both in and out of the sight of the Tribunal members; to assess a severe monetary penalty of $35,000 to punish for the public expression of alleged hateful thoughts and ideas that allegedly harmed Oger’s dignity and reputation, to pay an unspecified large sum of money to a transgender-rights organization to pay for harm done to the larger transgender societal community; for an order that Whatcott be compelled to be re-educated by participating in a school designed to teach him a better understanding of gender identity, with the goal to humble and humiliate Whatcott by indoctrinating  him with the Tribunal’s view of Whatcott’s legal obligations under the Code.

( ee )         Denunciation is accomplished by the declaration that Whatcott violated the Code and amounts to a societal miscreant who is a hateful bigot.    The monetary penalty of $35,000 for harming Oger’s dignity and reputation serves as a deterrent to both Whatcott and others who might follow his example.     The monetary penalty of $35,000 in costs also serves to deter Whatcott and others from criticizing the lack of due process, coercion and bias alleged by Whatcott to have permeated the human rights proceedings.    The coerced donation to an organization supporting what Whatcott considers to be immoral political, social and cultural goals is designed to make reparations to a certain segment of society that identifies with the political advocacy of Oger.    The order for coerced re-education is designed to rehabilitate Whatcott in the hopes that his thinking and behaviour will conform in the future to transgender values and objectives.     The individual and collective sum of all these sanctions amount to behaviour modification through a combination of financial penalties, social stigma, and forced re-education of his mind by social engineering.

( ff )         These sanctions are indeed penal and to anyone with a sound knowledge of criminal law, recognize that these sanctions follow the basic principles of criminal law sentencing. In fact, the sanctions sought are more comprehensive and more draconian than simply a fine and a term of probation with conditions that is normally imposed as sanctions for summary conviction offences that result in a criminal record.

( gg )         A human rights record is no less odious than a criminal law record, and is perhaps even worse, because there is no process for a human rights pardon.    Whatcott faces a lifetime of unemployment. No employer is required to hire an individual deemed by law to be a hate monger. He will be discriminated against, in spite of his Christian beliefs. Social isolation, ostracism and expulsion are other consequences.    For an indigent individual like Whatcott, bankruptcy looms, and the financial penalties affect not only him, but his wife and two young children. Compulsory re-education imposes the state’s will upon Whatcott’s security of the person, in a similar manner to a judge unconstitutionally ordering the castration of a convicted sexual offender or the forced ingestion of unwanted prescription drugs upon a convicted person, to modify that individual’s behaviour and mental state.   Compulsory re-education at a facility amounts in principle to a form of temporary incarceration to brainwash Whatcott so that he will modify his Christian beliefs to accept transgenderism.     This sanction is similar to the current situation in China where over a million Muslim Chinese are confined to a detention facility to modify their religious beliefs so that the prevailing orthodox view of the secular state is unchallenged in society.

( hh )         For the Attorney General to conclude without any substantive analysis in paragraph 40 that   “there is no penal sanction that could possibly make this [legislation] criminal law,” ignores the provisions of the human rights legislation,   that permit sanctions that follow the principles of behavior modification and sentencing utilized in criminal and human law.

( ii )         There is no doubt that s. 7 of the Code in pith and substance is criminal law.    Rand J. at pp. 12-13 [SCR] ruled in Switzman that prohibiting any part of political free speech “as an evil would be within the scope of criminal law,” and then referred to sections of the Criminal Code that dealt with sedition.

( jj )         Section 7 of the Code, according to the AG in para. 40, does not specifically ban the propagation of a political belief.     If that is the case, why was this case not dismissed at an early stage upon the application of Whatcott?      The evidence in this case is clear that Whatcott was expressing a political belief that was grounded in Christian morality.

( kk )         Duff, CJC read s. 92(13) and s. 92(16) together in Reference re: Alberta Legislation.  At p. 26 [SCR] Duff summed up the law that leaves no doubt that s. 7 of the Code falls outside provincial jurisdiction:    “Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law.     Every inhabitant … is also a citizen … The province may deal with his property and civil rights of a local and private nature within the province;   but the province cannot interfere with his status as a Canadian citizen and his fundamental right to express freely his untrammelled opinion about government policies and discuss matters of public concern.”      [My emphasis]

( ll )         This conclusion is supported in para. 47 of the AG factum.     In OPSEU, Beetz J. held, “… neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure.”      The structure is the right to abrogate the right of free public discussion and debate referred to in the immediately preceding authorities cited, of Switzman and Alberta Statutes.

( mm )         The law is clear: the mandatory and prohibitory provisions of s. 7 of the Code are ultra vires of the provincial legislature.  

07        Section 32 of the British Columbia Human Rights Code  Application of  Administrative Tribunals Act to tribunal,   particularly,  its section ( i )  states section 45   [ tribunal without jurisdiction over Canadian Charter of Rights and Freedoms issues ].     Cousineau et al. were statute-barred from entertaining the OGER complaint until Charter issues had been canvassed in the Supreme Court of B C.    As a lawyer knowing perfectly-well that the matter invokes the Charter ab initio, and that the Defendant had already voiced such defence to the Commission in the run-up to the hearing,  Commissioner Cousineau ought not to have gone ahead with OGER’s complaint, at all.  

08        UN-learned in the law as he was prior to the hearing,  it was not incumbent upon WHATCOTT to point out to the tribunal that the BC Human Rights Code is fatally-flawed.    Even if he was remiss in not challenging that aspect in the run-up,   he hereby raises it now pursuant to section 24 of the Charter of Rights and Freedoms      

AS  REGARDING  THE  THIRD  DECLARATION  AND  ORDER  SOUGHT

09        Several people applied to Intervene in the hearing but were denied standing.  One of them being Gordon S Watson, who had stood as a candidate in the provincial election of 2001.   He funded part of the cost of publishing the flyer in question.  Watson’s submission to the Tribunal prior to the hearing proves he did intend to argue that the reciprocal of the right to expression, is the right to receive information. Thus every one,  whether known to a publisher or not, has the right to receive new information by any and all media, especially the free press.   And that as an Intervenor he could best make this argument.  Shutting out his pitch re such right directly on-point legitimacy of speech in the fray of the election,  the Tribunal evaded its duty to hear from a stake-holder as it dealt with a kind of complaint never encountered before.

            REASONABLE  APPREHENSION  OF  BIAS      

10        Because of the fact that political activist Cousineau had been appointed to preside over the OGER WHATCOTT matter, when it was well known she was a longtime activist in the “trans-gender” cause, there was apprehension of glaring bias such that the Tribunal was convened illegally ab initio.  Item four the MATERIALS TO BE RELIED UPON, find a photograph of her in full throat in her activist mode.  The location, ie. on the public sidewalk outside the MLA constituency office of Premier Clark, is important. 
MLA Christie Clark – miraculously – moved the “transgender” amendment to the
B C Human Rights Code through the Legislature via 3 readings in one day, while the gallery was packed with supporters of that political cause.          

11        Any reasonable person who learned that AG EBY had picked Cousineau to preside on the OGER WHATCOTT matter, involving this vice president of the New Democratic Party ( OGER ) can see that that was done so the goal of OGER and Cousineau’s personal political campaign would have the color of law.        Allowing this matter to go ahead under Cousineau, after her bias had been brought to his attention, AG Eby knowingly evaded his duty to ensure WHATCOTT’s civil right to due process of law :  ‘the fix was in’  and the Attorney General himself was in on the fix.           

12        After the fact,  Cousineau’s prejudice is proven in her Reasons where she changed the very words spoken in the hearing, inserting feminine pronouns where the official transcript shows WHATCOTT having used “he”  “his”  “him” when referring to OGER.        
           
13       The nature of evidence is that it can be tested. If it cannot be tested, it isn’t evidence 

Had OGER’s core delusion been put to the test in cross-examination, his credibility would have been ruined. Example being, at page 47 lines 43- 44 of the transcript of examination in Chief,  where OGER  relates an exchange with someone who believes he is mentally ill. For the Tribunal to prevent WHATCOTT’s counsel from testing OGER’s assertions that he was somehow ‘a mom … her children … who she is’  [  lines 17 to 20 page 41 transcript of his evidence in Chief ]  while relying upon that absurdity as a fact,    is an error of law.             
14        Compelling his accuser to take the witness stand so he can be exposed as a liar is a fundamental right of a Defendant within British jurisdiction.  This right is long established … predating the Canadian Charter of Rights and Freedoms.   WHATCOTT was entitled to exercise that right in order get at the facts regarding OGER’s mental state, especially the delusion that he “is a woman”. The term for the mental illness suffered by OGER is gender dysphoria. Such people are “brittle” personalities.  When their preposterous self image is challenged, they come un-glued.   Based on its acceptance that what the Complainant said was so, but for which there was not a scintilla of evidence then the Tribunal’s ruling is as patently absurd as OGER’s belief he  “is”  a woman.            

PART 4:        MATERIALS  TO  BE  RELIED  UPON

 

Item One         Amended Additional Response

Item Two         Supplemental Submissions December 16^th 2018

Item Three      Summary of Whatcott’s defence December 21 2018

Item Four        photograph of political activist Devyn Cousineau in full throat
                        outside the constituency office of MLA Christie Clark

Item Five         application by Gordon S Watson for status as Intervenor 

Such other affidavits as Petitioner may come up with, and be permitted, prior to the hearing

Petitioner estimates that the Review will take one full day of Court.

 All of which is respectfully submitted

Dated this   24^th     day of November 2020 A. D.

______  __________________

signature of Gordon S Watson
Agent for Petitioner WILLIAM  WHATCOTT