Commentary on Justice Newbury’s decision. Most people will only read the judge’s decision and accept and assume that it is a fair summary of the facts and the legal arguments and is correct or it would have been appealed. Those with more familiarity with the process know that Judges take the opportunity to re-write the facts, cherry pick the evidence and the law knowing that we almost never examine the evidence presented by the parties themselves. Judicial conduct, as Judges would like to perceive it, becomes merely, were they polite whilst they stabbed you in the back? Then they can claim that in their defense that in an adversarial system there are always winners and losers and the losers always feel ignored and the winners vindicated. In a Democracy the State, lawyers and judges are the greatest threat to the personal freedoms of the public. Since historically the State has seen fit to order it’s men to fight, kill and die on their orders, or to be imprisoned, or shot for refusal, or even for questioning those orders we know that men have no rights. “Theirs not to reason why, Theirs but to do and die” The Charge of the Light Brigade, Tennyson.
The question becomes, who cares about men and fathers? Well, their parents care, their children care, their current partners care and their community cares, the people that want services from men care ( a little less perhaps since an abused man will work for less, desperation works that way, to a point. Men are committing suicide at a rate of 4-5 times that of women and there are no support systems for men, unless they pay. It’s capitalism after all.
The corruption of the court system for the benefit of lawyers and judges to extract money from the citizens is legal abuse. PM Trudeau’s protection of the SNC-Lavelin Engineeering firm from charges of bribing foreign officials clearly indicates this Government’s application of the rule of law and the attitude towards corruption. That he even fired his previous AG/MOJ Raybould for failing to do his wishes is a chilling reminder of the power of that office and the potential for it’s abuse. Trudeau Snr. was a lawyer and PM Trudeau has had frequent protections from the services of lawyers, of course they would return the favor since they have benefited financially and their power increased from the patriation of the Charter.
COURT OF APPEAL FOR BRITISH COLUMBIA
| Citation: | R. v. Holsworth, |
| 2022 BCCA 328 |
Date: 20220929
Docket: CA48339
Between:
Rex
Respondent
And
Trevor Russell Holsworth
Appellant
| Before: | The Honourable Madam Justice Newbury (In Chambers) |
On appeal from: An order of the Supreme Court of British Columbia, dated
May 10, 2022 (R. v. Holsworth, 2022 BCSC 1242, Nelson Dockets 26418, 24419).
| The Appellant, appearing in person: | T.R. Holsworth |
| Counsel for the Respondent: | M.A. Erina |
| Place and Date of Hearing: | Vancouver, British Columbia August 30, 2022 |
| Place and Date of Judgment: | Vancouver, British Columbia September 29, 2022 |
Summary:
Application for leave to appeal an order of the court below allowing the applicant’s appeal from a summary conviction for failure to file income tax returns (and ordering a retrial) is dismissed. The applicant’s grounds of appeal relate to an entirely different legal proceeding that ended in 2007, and his grounds have no chance of success.
Reasons for Judgment of the Honourable Madam Justice Newbury:
[1] Mr. Holsworth seeks leave to appeal the order of a summary conviction appeal judge which allowed his appeal against conviction by a Provincial Court judge on seven counts of failing to file personal and corporate tax returns contrary to s. 238(1) of the Income Tax Act, R.S.C. 1985, c. 1 (the “ITA”.) The summary conviction appeal judge, Madam Justice Lyster, set Mr. Holsworth’s convictions aside and ordered a new trial. However, Mr. Holsworth is not content with this result. He seeks to challenge much larger matters — including the impartiality and integrity of the judges of the justice system and indeed that system itself.
[2] Mr. Holsworth’s grievances date back to at least 2006 and in legal terms are entirely unrelated to the present proceeding. What little information he has provided concerning these grievances relates to his attempts in 2007 to have a justice of the Supreme Court of British Columbia removed from office. As I understand it, that well respected judge (now retired) had presided over a family law trial involving Mr. Holsworth and had preferred the evidence of his spouse over the evidence of Mr. Holsworth. Fifteen years later, Mr. Holsworth holds the view — or at least purports to — that because of that experience, all judges, whom he characterizes as “government employees”, are essentially unethical and that the justice system amounts to “organized crime protected by the state.”
Income Tax Act Charges
[3] I begin, however, by describing the immediate legal context of the leave application. On or about January 8, 2020, Mr. Holsworth was charged with a total of seven counts of failing to file income tax returns both for himself and for a corporation, Kootenay Experience Ltd., for taxation years ranging between 2014 and 2017. The charges were brought under s. 238(1) of the ITA, which states:
238 (1) Every person who has failed to file or make a return as and when required by or under this Act or a regulation or who has failed to comply with subsection 116(3), 127(3.1) or (3.2), 147.1(7) or 153(1), any of sections 230 to 232, 244.7 and 267 or a regulation made under subsection 147.1(18) or with an order made under subsection (2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to
(a) a fine of not less than $1,000 and not more than $25,000; or
(b) both the fine described in paragraph 238(1)(a) and imprisonment for a term not exceeding 12 months.
[4] The trial of the charges in Provincial Court was adjourned several times due to the COVID 19 pandemic, and once more because of scheduling problems of a Crown witness. Finally, the trial was set for July 15, 2021 and was heard by His Honour Judge Sicotte. Mr. Holsworth represented himself.
Provincial Court Trial
[5] At the start of the trial, and without notice to the Crown, Mr. Holsworth produced a document called “Notification [of] Constitutional Question Act” in which he asserted:
1. The Income Tax Act provides for a term of imprisonment which is contrary to the Charter of Rights as stated in Reference Re BC Motor Vehicle Act, 1985, 2 SCR 486
Furthermore
S 8(2)(b) an application is made for a constitutional remedy
Particulars:
1. The Canadian Judicial Council claims by their letter to me dated August 28, 2007 that Judges have absolute unfettered discretion to accept or reject all evidence including the official court record, the transcript.
2. I served the Attorney General of Canada / Minister of Justice David Lametti on March 9th 2020 by registered letter though the office of the Deputy Attorney General’s office as specified under serving the Crown on the Ministry of Justice website with a charter notice as per s 24(1) of the Charter of Rights.
3. The Charter Notice is attached in Appendix A.
4. No formal response was ever received.
5. No notification to Parliament was ever made.
6. I hereby apply for the constitutional remedy outlined in my Charter Notice to be applied, for the constitutionality of the Courts [to] be checked by Parliament and other such remedies be provided as that court determines.
[6] The trial judge sought clarification from Mr. Holsworth as to what his principal concern was. Mr. Holsworth said he feared he was not going to get a fair trial because he had not got one in the past, and that the Canadian Judicial Council (“CJC”) had approved of the unfair conduct he allegedly experienced. Judge Sicotte replied that he did not have any misgivings about whether Mr. Holsworth would get a fair trial on this occasion and that he was not prepared to adjourn the proceeding or strike it out based on Mr. Holsworth’s expressed concerns. The judge found that the Charter argument set out in the Notification of Constitutional Question had no realistic prospect of success and declined to address that matter further.
[7] The trial then proceeded. The Crown called evidence from a tax collector, Mr. Hopkins, who testified to having served Mr. Holsworth with “notices of requirement” under the ITA and to the fact that tax returns for the specified years had not been filed. Mr. Holsworth did not lead any evidence, but acknowledged he had been served with the notices of requirement (although he questioned the voluntariness of his communications with Mr. Hopkins.) He said he intended to advance only his constitutional arguments, including an argument that the ITA was unconstitutional. In particular, he contended that s. 238(1) violated the ruling of the Supreme Court of Canada in Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486 concerning the risk of imprisonment on absolute liability offences. The judge invited Mr. Holsworth to address this matter in his closing submissions, but Mr. Holsworth chose instead to advance an argument that the threat of imprisonment or fines for non compliance with a regulatory requirement could amount to a restriction on freedom of expression contrary to the Charter.
[8] Being satisfied that Mr. Holsworth had been properly served with the notices of requirement under the ITA and had not filed the required tax returns within the statutory 90 day periods, Judge Sicotte pronounced judgment finding him guilty on all seven counts. As for his constitutional arguments, the judge stated in part:
. . . he has a much broader attack against the Informations that are before the court, based on the constitutionality of the Income Tax Act . . . I appreciate that Mr. Holsworth feels very strongly with respect to this and it is clear that that was much of the conversation that he had with Mr. Hopkins from CRA at the time as well.
Mr. Holsworth also takes issue with his prior dealings with the justice system and that they have significantly undermined his faith in the courts and in the justice system and caused him to have difficulty in terms of dealing with CRA or these courts in terms of having trust in the process that is before him, and I have sympathy for Mr. Holsworth in terms of his prior dealings. They do not affect what I have to decide with respect to this case.
The challenge to the constitutionality of the Income Tax Act with respect to reference, Re B.C. Motor Vehicle Act is something that has been litigated in prior cases and the Income Tax Act’s constitutionality has been upheld many times with respect to these types of challenges and I must follow precedent and reject Mr. Holsworth’s arguments with respect to the constitutionality of the Income Tax Act. [At paras. 15–17.]
[9] The Court then heard submissions on sentence. The trial judge stated that there would be a fine of $1,000 on each count, but applying the totality principle, sentenced Mr. Holsworth to pay a total of $5,002 no later than July 15, 2026. These fines were less than the minimum specified in s. 238(1) of the ITA — a fact that was the subject of a cross-appeal by the Crown on appeal.
Summary Conviction Appeal
[10] Mr. Holsworth’s summary conviction appeal was heard on December 3, 2021 in Nelson before Madam Justice Lyster of the Supreme Court of British Columbia. On this occasion, he described his grounds of appeal as based on breaches of ss. 2, 6(1), 6(2), 7, 11(d), 12, 15 and 20 of the Charter and (as the Crown notes in its written argument to this court) “broadened” the scope of his complaints to include other institutions such as the Law Society of British Columbia, the B.C. Family Maintenance Program, the RCMP and Crown counsel.
[11] Almost as an afterthought, Mr. Holsworth also asserted that his trial had taken place seven days and 18 months after the “presumptive ceiling” set by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27. Lyster J. did not deal with this issue in her reasons, but it was clear that the bulk of the adjournments in Provincial Court were granted because of the COVID 19 pandemic. There could be no doubt this was an “exceptional circumstance” (see para. 69 of Jordan) beyond anyone’s control and that the trial could not have gone ahead before early 2021.The Jordan principle had not been violated.
[12] At para. 38 of her reasons, Lyster J. stated that since Mr. Holsworth’s constitutional complaints did not relate to the offences with which he had been charged and convicted, she would not be considering them further in her decision.
[13] The judge began her substantive analysis of the application before her at para. 45. Her findings and conclusions were that:
1. The Provincial Court judge had not failed to act judicially by declining to consider Mr. Holsworth’s constitutional application regarding his grievances with the judiciary and the government; this was a “discretionary screening decision” subject to a deferential standard and Mr. Holsworth’s grievances were, the judge said, “completely unrelated” to the proceeding before her. She continued:
The trial judge provided Mr. Holsworth with a full and fair opportunity to explain the nature of his constitutional application. He considered the nature of the application and acted judicially in determining that it had no reasonable prospect of success. There is no basis to interfere with the trial judge’s exercise of discretion in summarily dismissing Mr. Holsworth’s constitutional application. [At para. 50.]
2. The Provincial Court judge had not erred in dismissing Mr. Holsworth’s argument that s. 238(1) of the ITA violated the “rule” in Re B.C. Motor Vehicle Act, given that the offence was not one of absolute liability but of strict liability — i.e., that the defence of due diligence was available to an accused. Accordingly, s. 7 of the Charter was not infringed. On this point, Lyster J. quoted from R. v. Pontes [1995] 3 S.C.R. 44, where Cory J. for the majority wrote:
Obviously, if the offence is one of absolute liability, but there is no risk of imprisonment, then the provision will not offend s. 7 of the Canadian Charter of Rights and Freedoms. Similarly, if the statutory provisions are found to create a strict liability offence, then by definition a defence of due diligence must be available to the accused and there will be no infraction of s. 7 of the Charter. The sole difference will be that if the offence is found to be one of strict liability, the possible sanction of a term of imprisonment may be retained. [At 52–3.]
In Lyster J.’s analysis, the Provincial Court judge had come to the correct result, whether he had had this ruling in mind or had been referring to authorities holding that because there are potential penal consequences under the ITA, the accused must have the opportunity to demonstrate due diligence. (See, e.g., R. v. Sedhu 2015 BCCA 92.) In her words, “The combination of the strict liability offence created by s. 238(1) of the ITA with the possibility of imprisonment does not offend s. 7 of the Charter.” (At para. 56.)
3. The Provincial Court judge had erred, however, in failing to advise Mr. Holsworth of the existence of the ‘due diligence’ defence available to him under s. 238(1). It was clear from the transcript that Mr. Holsworth had been confused at trial about the difference between strict and absolute liability offences and which kind of offence was created by s. 238(1). Since Mr. Holsworth was unrepresented, the resulting irregularity would “taint the administration of justice in the eyes of a reasonable and objective observer.” In the judge’s words:
… The availability of a due diligence defence is central to a strict liability offence such as this, and it was important, especially in light of Mr. Holsworth’s evident confusion about the nature of the offence, that he know that that defence was available. That knowledge might have affected both his cross-examination of Mr. Hopkins and his decision whether to call evidence in his own defence. In the circumstances, I find that Mr. Holsworth’s ability to bring out his defence with full force and effect was impaired. [At para. 74.]
[14] In the result, Lyster J. set aside Mr. Holsworth’s convictions and ordered a new trial. It was unnecessary for her to consider the appeal against sentence or to decide whether Mr. Holsworth should be given leave to raise the “fresh issue” of whether the mandatory minimum fine established by s. 238(1)(a) of the ITA was unconstitutional. If Mr. Holsworth decided to pursue that point, she stated, he would have to file a new notice of constitutional question in order to ensure that the Crown was put on notice, that a full evidentiary record was created, and that the trial court would provide considered reasons. It was also unnecessary to deal with whether the trial judge had imposed an illegal sentence by imposing lesser fines than the mandatory minimum amount of $1,000 per offence set out in s. 231(a) of the ITA.
[15] I note that dates were set recently in Provincial Court for the retrial of the two Informations against Mr. Holsworth. The retrial dates are October 6, 2022 and January 26, 2023.
Leave Application
[16] On June 9, 2022, Mr. Holsworth filed a notice of application in this court for leave to appeal the Supreme Court’s order. The notice stated that he wished to:
….appeal to the Court of Appeal against, neither the conviction or the sentence but the decision and order, of which I have received written notice of neither, on the grounds set out below of this notice.
I desire to present my case and argument by way of appeal where leave is not necessary as it relates to a question of law.
I do not intend to set out Mr. Holsworth’s grounds of appeal in full; many are difficult to understand. I have shortened them somewhat below:
· The facts that the summary conviction appeal judge refused to consider Mr. Holsworth’s constitutional issues, that he was seeking a writ of mandamus against the Minister of Justice “to comply with the law and report this matter to Parliament”, and that “Crown [was] claiming we will destroy evidence” indicated that lawyers and judges were “all failing to comply with all of their oaths and code of ethics. This conduct cannot be justified in a free and democratic society.”
· Lyster J.’s decision “continues to perpetuate the illusion” that s. 238(1) of the ITA is constitutional “according to the rule set out for absolute liability offences with prison terms attached in Reference Re Motor Vehicle Act”. Claiming that a due diligence defence is available “does not change the reality” that the ITA does not so state.
· Sending the case back for retrial “brings with it the implicit threat … of seven years’ imprisonment and $200,000 in fines. Combined with the claim of Judges that they can disregard all evidence, including the transcript, and can, at their discretion, plant evidence at trial, in the form, of calling upon the Plaintiff, to perjure herself, to protect her lawyer, committing fraud. However, the integrity of the justice system has not been resolved judicially so the justice system is currently stalled.” (I suspect this refers to the 2006 family law trial, but no details were provided.)
· Lyster J.’s ‘refusal’ to be bound by R. v. Jordan was “nothing compared to the failure to even respond to the request for a writ of mandamus on the Minister of Justice”. This was a “failure to act judicially.” This was followed by a personal criticism of Lyster J., who, according to Mr. Holsworth, was associated prior to her appointment to the bench, with a legal “team” working for the advancement of women’s rights. In this case, Mr. Holsworth asserted, she was “attempting to prevent Men, the defence of providing the transcript, to prove fraud. In particular the issue of the integrity of the administration of the Family Law Act and the Criminal Code in respect [of] domestic violence and rape are completely destroyed.” He suggested a complaint should be made regarding the judge’s conduct to the CJC or the Ministry of Justice.
· It was not in the “best interests of the child [presumably this is a reference to a child or children of Mr. Holsworth] for their father to have no rights and for the mother’s word to be accepted in preference to everything that the father says.” In his submission, this created a second class of citizens based on sex, which is explicitly prohibited by the Charter. Again, no details were given as to what ruling Mr. Holsworth was alluding to on this point.
· If it was reasonable for the Crown to allege that a citizen has committed a crime, it should “equally be open for a Citizen to assert that a Government employee has committed a crime, without fear of retribution.” Judges, he said, are government employees “no matter how much Judges would like to assert independence, fairness and impartiality.”
· The fact that in the days immediately before Lyster J. was to issue her reasons, Mr. Holsworth’s website received a “spike of 300 direct hits per day from Toronto and Ottawa and then nothing” was said to give the impression to Canadians that judicial independence was compromised. The “fact the Crown prosecutor appears to have been informed of the contents of the decision prior to its release” was also a matter of “grave concern”. No details of conduct that would support such an inference were provided.
· A statement of the Minister of Justice (presumably made in reply to Mr. Holsworth’s complaint in 2007) that the government is administered in accordance with the law, is “completely false”. Combined with “the claim to be able to plant perjured evidence at trial” it amounted to a refusal to allow the legitimate review of judicial discretion and is “undemocratic and the claim of dictators”. No evidence was offered of anyone’s ‘planting’ evidence or avoiding legitimate judicial review.
· The failure of the Prime Minister’s office to respond to the “enforcement procedure of the Charter” is a “huge problem”. A writ of mandamus was again sought, this time against the Minister of Public Safety, requiring a response to this problem.
· Mr. Holsworth says he was “refused access” to Lyster J.’s written decision and to a signed court order and to a digital audio file of the proceedings on May 10, 2022 when the judge issued her oral reasons. Asking the question “who does justice serve?”, Mr. Holsworth suggests that the apparent answer is “So far, women, lawyers and judges. That is a problem for access to justice.”
· In consequence, the courts are not operating within their constitutionally guaranteed constraints.
[17] In order for leave to be granted under s. 839 of the Criminal Code from a summary conviction appeal, the applicant must show that his or her grounds of appeal involve a question of law alone, that the issue is one of importance, and that the proposed appeal has a reasonable possibility of success. The overriding consideration is the interests of justice: see R. v. Winfield 2009 YKCA 9; R. v. Verma 2014 BCCA 157; R. v. Cai 2008 BCCA 332; R. v. Gill 2008 BCCA 259.
[18] Given that most of the grounds of appeal are, as noted earlier, entirely unrelated to the order sought to be appealed, they cannot succeed in this proceeding. I will, however, address them in general terms for Mr. Holsworth’s benefit.
[19] The Crown contends that the eleven grounds advanced by Mr. Holsworth can be reduced to three issues, namely 1) whether Lyster J. failed to act judicially by refusing to adjudicate Mr. Holsworth’s grievance; 2) whether she erred in dismissing Mr. Holsworth’s argument that s. 238(1) is unconstitutional because it violates the “rule” in Re B.C. Motor Vehicle Act; and 3) whether she erred in failing to consider whether Mr. Holsworth should be permitted to raise delay as a new issue on appeal. While Mr. Holsworth’s purported grounds cover a great deal of territory, they do not refer to R. v. Jordan or the question of delay. As I have already said, the vast bulk of the delay in trying the ITA charges was attributable to the COVID 19 pandemic. The suspension of court proceedings during that period was beyond the control of anyone. I need not say anything further concerning delay.
Constitutional Challenge
[20] As far as the constitutionality of s. 238(1) of the ITA is concerned, the authorities are clear that it is a strict, rather than an absolute liability offence: see R. v. Pontes, quoted above at para. 13(2); see also R. v. Euerby [1992] CanLii 1597 (B.C.S.C.); R. v. Jarvis 2002 SCC 73 at para. 55. It is for that reason that Lyster J. declared a mistrial and ordered a retrial of Mr. Holsworth’s convictions, giving him the opportunity to mount a ‘due diligence’ defence. The fact this defence is not set out in s. 238(1) does not mean it is not available.
[21] With respect to the constitutional validity of the ITA as a whole, I note that in Re Bruno 2002 BCCA 47, this court affirmed it was “plain and obvious” that an argument the ITA lay outside the legislative jurisdiction of the Parliament of Canada, would fail. Low J.A. for the Court noted that this issue had been decided by the Judicial Committee of the Privy Council in Caron v. The King [1924] A.C. 999, a decision that had been followed by Canadian courts on numerous occasions.
[22] Challenges have also been brought against aspects of the ITA based on the Charter, but they have been unsuccessful. In Kennedy v. Canada 2012 FC 1050, for example, it was argued that s. 7 of the Charter precluded the collection of taxes from the applicant. The Court ruled that her rights to life, liberty and security of the person were simply not engaged by the application of the collection provisions of the ITA, and that there was no evidence of a breach of fundamental justice. (At para. 49.) I am not aware of any authority that would support Mr. Holsworth’s arguments to the contrary.
[23] It cannot be said, then, that there is merit to this issue.
Judicial Discretion
[24] As already mentioned, it appears that Mr. Holsworth’s experience in 2006–7 with the courts and the CJC has left him with the impression that it is open to Canadian judges to act arbitrarily, and disregard “all evidence, including the transcript”; for litigants to “plant evidence” at trial; and for the Crown to destroy evidence. He says all judges and lawyers are “failing to comply” with their oaths of office and codes of ethics. I asked Mr. Holsworth to provide me with a transcript of his family law trial, or part thereof, that might explain why his credibility was doubted. He did not do so; nor did he provide a copy of his complaint to the CJC at the time. He gave no explanation as to why these were not provided, although he had assured me at the hearing that he was in possession of them.
[25] He provided me only with a copy of the brief response of the CJC dated August 28, 2007 to his complaint. It stated that the reviewing member of the CJC had found that the presiding judge had exercised his discretion judicially and that the exercise of judicial discretion was “not a matter of conduct.” Mr. Holsworth has misinterpreted this response to mean that judges may exercise their discretion arbitrarily and without review by the CJC or by Parliament, which of course has the power to remove a judge from office in certain circumstances.
[26] There can be no doubt that any discretion a judge has must be exercised judicially — that is, not arbitrarily, but in accordance with governing legal principles. Thus in Sharpe v. Wakefield [1891] A.C. 173, Lord Bramwell stated:
An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and “discretion” means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to the private opinion… ; according to law and not humor. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself… . [At 179.]
This principle has been stated and applied countless times by Canadian courts, including by the Supreme Court of Canada in London (City) v. RSJ Holdings Inc. 2007 SCC 29 at para. 39, Young v. Young [1993] 4 S.C.R. 3 at para. 97 and Carnochan v. Carnochan [1955] S.C.R. 669 at 673. Consistent with this principle, a judge’s exercise of discretion is reviewable on appeal where it is shown the judge gave no weight or gave “no sufficient weight” to a relevant consideration or acted on a wrong principle. (See Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3 at para. 104).
[27] One of the most difficult tasks of trial judges is to make findings of credibility where witnesses or parties disagree as to the facts before the court. Judges may not always be correct in deciding whom to believe in cases of conflict, but they must consider the evidence before them and do their best to find facts and apply the law as independent and impartial decision makers. Many judges have found guidance in the judgment of O’Halloran J.A. in Faryna v. Chorny [1952] 2 D.L.R. 354 at 357 (B.C.C.A.), who emphasized the importance of careful analysis of the content of a witnesses’ evidence in light of probabilities that are reasonable in the context, as well as its consistency with the evidence of other witnesses:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. [At 357.]
[28] I do not know whether Mr. Holsworth provided a transcript of the family law trial proceedings to the CJC in his complaint in 2007, but it may be assumed that the CJC obtained what evidence it needed to be satisfied that the complaint was not a matter of judicial conduct, but rather one of the exercise of judicial discretion — with which the CJC may not interfere.
[29] It is unclear to me whether Mr. Holsworth is intentionally ignoring the clear rule that judges must exercise their discretion judicially and is doing so in order to obfuscate and delay the fact of his convictions under the ITA; or whether he actually believes he was unfairly treated in 2006 and is therefore somehow not bound by court orders or by the duty of all Canadians to file income tax returns. In any event, his leap from the fact that his evidence was not accepted in 2006 to the existence of a vast failure of the justice system and of judges and lawyers to comply with their oaths of office and codes of ethics seems to indicate a disturbing world view rife with conspiracies and corruption. This does not reflect reality.
Disposition
[30] None of Mr. Holsworth’s purported grounds of appeal described above has any chance of success in an appeal of Lyster J.’s order to this court. The application for leave to appeal is dismissed. I urge Mr. Holsworth to be fully prepared to address the question of due diligence at his upcoming trials on October 6, 2022 and January 26, 2023.
“The Honourable Madam Justice Newbury