03 October 2005

Mary M Gusella, Chief Commissioner
Canadian Human Rights Commission (CHRC)
344 Slater Street
Ottawa ON    K1A 1E1

RE:  File 20031527, Canadian Jewish Congress v Ukrainian Archive at www.ukar.org (CJC v UKAR) ATTENTION:  The instant 03-Oct-2005 correspondence is a Lubomyr Prytulak submission to the CHRC in the matter of CJC v UKAR, and in support of the Prytulak argument that the CHRC hate-messaging unit operates at the command of the CJC and systematically and totally disallows Prytulak a voice in the proceedings, such that proceedings intended to be adversarial are instead ex parte.

Mary M Gusella:

Concealment, followed by confession, of CHRC spoliation

The 13-Sep-2005 Lucie Veillette letter informing Lubomyr Prytulak of the CHRC Disposition Committee decision to send CJC v UKAR to the Canadian Human Rights Tribunal (CHRT) gave Lubomyr Prytulak assurance that among the documents examined by the Disposition Committee had been Prytulak's 29-Jul-2005 Comment on the Second Investigator's Report of 30-Jun-2005:

Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report.  After examining this information, the Commission decided, pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act, to request that the Chairperson of the Canadian Human Rights Tribunal institute an inquiry into the complaint as it is satisfied that, having regard to all the circumstances, an inquiry is warranted. Veillette to Prytulak, 13-Sep-2005.  References to "the Commission" above are understood to be references to what, for the sake of clarity, Prytulak refers to as the "Disposition Committee."  The "submission(s) filed in response to the report" are understood to be Comments � such as the 29-Jul-2005 Prytulak Comment � filed in response to the 30-Jun-2005 Second Investigator's Report.

On the one hand, the above statement gives assurance that the Prytulak Comment has been among the documents reviewed by the Disposition Committee, as the Disposition Committee is said to have "reviewed ... any submission(s) filed in response to the report," and to have rendered its decision only "after examining this information," and that it was satisfied that an inquiry was warranted "having regard to all the circumstances."

On the other hand, however, Prytulak believed it impossible that any Disposition Committee could send CJC v UKAR to the Tribunal after reading the Prytulak Comment because that Comment alleged a systematic exclusion of all Prytulak facts and arguments from both First and Second Investigator's Reports, and more generally a systematic spoliation (suppression or destruction) of all Prytulak submissions.  Prytulak's incredulity was encouraged by the 13-Sep-2005 Veillette statement above confining itself to generalities while failing to explicitly identify the 29-Jul-2005 Prytulak Comment as being among the submissions reviewed by the Disposition Committee.

In order to verify the Disposition Committee's having been permitted to read the Prytulak Comment, Prytulak telephoned Lucie Veillette to ask whether it had.  The reply to Prytulak's telephone query arrived in the 21-Sep-2005 Lucie Veillette letter which unabashedly confessed that Prytulak's suspicion had been justified � the Prytulak Comment had never been shown to the Disposition Committee after all.

Your letter of July 29, 2005 was not submitted to the Commission. Veillette to Prytulak, 21-Sep-2005.  "The Commission" is understood to make reference to "the Disposition Committee."

The Prytulak Comment, then, had indeed been spoliated as suspected.  The reason that the Disposition Committee had decided to send CJC v UKAR to the Tribunal was indeed because it had been prevented from seeing the Prytulak Comment.  The impression conveyed by the 13-Sep-2005 Lucy Veillette letter that the Prytulak Comment had been presented to the Disposition Committee was deceptive, the deception was methodical and deliberate, and the methodical and deliberate deception is evidence of consciousness of guilt.  The 21-Sep-2005 Lucy Veillette letter constitutes a confession of malfeasance in the face of an obligation to disclose the Prytulak Comment to the Disposition Committee, an obligation that can be inferred from at least the following six considerations.

First reason for expecting the 29-Jul-2005 Prytulak Comment to be placed before the Disposition Committee Investigations Manager John J Chamberlin Solicited the Prytulak Comment

The John J Chamberlin 30-Jun-2005 covering letter accompanying the Second Investigator's Report invited Prytulak to submit the very Comment which Mary M Gusella subsequently spoliated.  Chamberlin detailed for Prytulak the proposed Comment's maximum length and its deadline and where it should be delivered, and as good as guaranteed Prytulak that it would be reviewed by the Disposition Committee.

A copy of the investigation report is enclosed for your review. If you would like to submit comments on the report, you can do so by writing to me at the address below; fax is also acceptable.  Your submission must be no more than 10 pages in length (including any attachments), and must not include documents which have been provided and reviewed during the course of the investigation, or any information related to confidential settlement discussions in the course of mediation or conciliation.  Any such documents or information will not be placed before the Commission.  Your submission may be disclosed to the other party. You can provide your submission on or before July 30, 2005.  In order to avoid delay in the handling of this matter, extensions to this period will not be granted, except in extraordinary circumstances.  This may be your last opportunity to provide comments to the Commission on the merits of the complaints. The complaint, along with the investigation report and submissions which we receive from the parties, will be submitted to the Commission at one of its upcoming meetings.  After reviewing these documents, the Commission will make a decision on the disposition of the case. Chamberlin to Prytulak, 30-Jun-2005.    All four mentions of "the Commission" are understood to be references to "the Disposition Committee."

Second reason for expecting the 29-Jul-2005 Prytulak Comment to be placed before the Disposition Committee The CHRC Advertises that Each Party is Entitled to a Post-Investigation Comment

The CHRC web site specifies that the Disposition Committee will consider Post-Investigation Comments, which is understood to mean that it will consider the single Post-Investigation Comment that is allowed each party:

Both sides have a chance to review the investigator's report and make submissions before the investigator presents the report to the Commissioners.  [...] What does the Commission do when it gets the investigator�s report? When the investigator's report is presented at a Commission meeting, the Commissioners also consider any submissions from either side. Canadian Human Rights Commission  www.chrc-ccdp.ca/publications/the_complaint-en.asp.  Two references to "the Commissioners," and one to "a Commission meeting," are understood to be references to "the Disposition Committee."  Bold is in the original.

Similarly:

Either way, all complaints must be submitted to the Commissioners, who weigh the evidence in the report and consider the investigator�s analysis.  They also consider any submissions by the complainant and the respondent before reaching a decision. What if I disagree with the investigator�s report? The complainant and the respondent can review the investigator�s report and provide comments before it is presented to the Commission.  In most cases, a copy of the comments is also given to the other party.  The complaint, the investigator�s report and any submissions are presented together to the Commission for a decision. Canadian Human Rights Commission  www.chrc-ccdp.ca/publications/investigation-en.asp.  References to "the Commissioners" and "the Commission" are understood to be to "the Disposition Committee."  Bold is in the original.

Third reason for expecting the 29-Jul-2005 Prytulak Comment to be placed before the Disposition Committee Lubomyr Prytulak Explicitly Emphasized the Importance of his Comment Reaching the Disposition Committee

Intending to terminate the CHRC's spoliation of his submissions, Prytulak wrote in red at the top of his Comment � much as he writes at the top of the instant letter � the following emphasis of the importance to his case of his Comment reaching the Disposition Committee:

RE:  File 20031527, Canadian Jewish Congress v Ukrainian Archive at www.ukar.org (CJC v UKAR) ATTENTION:  The instant correspondence is a Lubomyr Prytulak submission to the CHRC in the matter of CJC v UKAR, and is among the documents that Mary M Gusella is obligated to bring to the attention of any and all CHRC employees working on the case, especially CHRC investigators preparing any CHRC Investigator's Report, and most especially CHRC Disposition Committee members convening to decide whether to submit CJC v UKAR to the Canadian Human Rights Tribunal (CHRT).

Fourth reason for expecting the 29-Jul-2005 Prytulak Comment to be placed before the Disposition Committee The Canadian Criminal Code prohibits spoliation

The Canadian Criminal Code §341 dictates a maximum of two years imprisonment for concealment for a fraudulent purpose.

FRAUDULENT CONCEALMENT 341.  Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

The SYNOPSIS, which in Martin's Annual Criminal Code 2005 is presented below the statement of the law, contributes to clarification by adding italics for emphasis:

This section describes the offence of fraudulent concealment.  Any person who, for a fraudulent purpose, takes, removes or conceals anything commits the offense.  The offence is indictable and carries a maximum term of two years' imprisonmnet.

Fifth reason for expecting the 29-Jul-2005 Prytulak Comment to be placed before the Disposition Committee Judicial review is intolerant of administrative spoliation

Although an administrative body is allowed considerable latitude in screening, it is not permitted to go so far as to deprive a participant of his right to answer:

[C]ourts have generally inferred from the administrative nature of the Commission's decision that they need only ensure that the Commission considered all of the facts, leaving it up to the discretion of the Commission as to whether to proceed to Tribunal.  [...] Provided it has considered all of the relevant information before it, the Commission is free to ascribe whatever weight it wishes to various factors, without review of the Court.  [...] [S]o long as there is an indication that the Commission considered the evidence before it, court intervention is not justified.  [...] Although the CHRC is entitled to rely on the investigator's report, the report must be able to provide a fair and adequate basis for the CHRC's decision, that is, it must be neutral and thorough.  [...] It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Joanna Birenbaum and Bruce Porter, Screening Rights: The Denial of the Right to Adjudication Under the Canadian Human Rights Act and How to Remedy it.  A research paper prepared for the Canadian Human Rights Act Review Panel, 04-Nov-1999 www.equalityrights.org/cera/docs/screen.htm

Sixth reason for expecting the 29-Jul-2005 Prytulak Comment to be placed before the Disposition Committee Judicial analysis enshrines the right to be heard

The exclusion of Lubomyr Prytulak from participation in the CJC v UKAR proceedings calls to mind the opposition to such practice penned in Hovey v Elliott more than a century ago and cited below, and which must be read with the understanding that the deprivation of rights that elicits the Hovey v Elliott indignation is less egregious than that inflicted upon Lubomyr Prytulak in the CJC v UKAR proceedings because the defendants contemplated in Hovey (1) had been in violation of a court order whereas Prytulak has not; and (2) are informed that their submissions have been stricken from the record and of the reason why, whereas Prytulak can extract no such acknowledgement or explanation from the Canadian Human Rights Commission � his submissions simply vanish absent any statement that they have been stricken from the record or any reason for their disappearance.

[A] more fundamental question yet remains to be determined, that is, whether a court possessing plenary power to punish for contempt, unlimited by statute, has the right to summon a defendant to answer, and then after obtaining jurisdiction by the summons, refuse to allow the party summoned to answer or strike his answer from the files, suppress the testimony in his favor, and condemn him without consideration thereof and without a hearing, on the theory that he has been guilty of a contempt of court.  The mere statement of this proposition would seem, in reason and conscience, to render imperative a negative answer.  The fundamental conception of a court of justice is condemnation only after hearing.  To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. In McVeigh v. United States, 78 U.S. 11 Wall. 259 [20:80], the court, through Mr. Justice Swayne, said (p. 267 [81]): "In our judgment, the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files.  As we are unanimous in this conclusion, our opinion will be confined to that subject.  The order in effect denied the respondent a hearing.  It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum.  ...  The liability and the right are inseparable.  A different result would be a blot upon our jurisprudence and civilization.  We cannot hesitate or doubt on the subject.  It would be contrary to the first principles of the social compact and of the right administration of justice." And quoting with approval this language, in Windsor v. McVeigh, 93 U.S. 277 [23:916], the court, speaking through Mr. Justice Field, again said (pp. 277, 278 [915, 916]): "The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence.  Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable.  This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations.  A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.  That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted.  Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject-matter.  But notice is only for the purpose of affording the party an opportunity of being heard upon the claim of the charges made; it is a summons to him to appear and speak, if he has anything to say why the judgment sought should not be rendered.  A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether.  It would be like saying to a party, Appear and you shall be heard; and, when he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard.  In the present case, the district court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered.  It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict clothed in the form of a judicial sentence." This language but expresses the most elementary conception of the judicial function.  At common law no man was condemned without being afforded opportunity to be heard.  [pp. 219-220] Can it be doubted that due process of law signifies a right to be heard in one's defense?  If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution?  If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution.  If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it.  If such authority exists then in consequence of their establishment, to compel obedience to law and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent. In Galpin v. Page, 85 U.S. 18 Wall. 350 [21:959], the court said (p. 368 [963]): "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.  Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered."  [p. 221] The necessary effect of the judgment of the supreme court of the District of Columbia was to decree that a portion of the award made in favor of the defendant, in other words his property, belonged to the complainants in the cause.  The decree therefore awarded the property of the defendant to the complainants upon the hypothesis of fact that by contract the defendant had transferred the right in or to this property to the complainant.  If the court had power to do this, by denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process of law?  If the power to violate the fundamental consitutional safeguards securing property exists, and if they may be with impunity set aside by courts on the theory that they do not apply to proceedings in contempt, why will they not also apply to proceedings against the liberty of the subject?  Why should not a court in a criminal proceeding deny to the accused all right to be heard on the theory that he is in contempt, and sentence him to the full penalty of the law?  No distinction between the two cases can be pointed out.  The one would be as flagrant a violation of the rights of the citizen as the other, the one as pointedly as the other would convert the judicial department of the government into an engine of oppression, and would make it destroy great constitutional safeguards.  [p. 221] • Hovey v Elliott, 167 US 409, 17 SupCt 841 (1897), from Book 42, Lawyer's Edition. Quoted at length and with approval in • Foley v Foley, 52 P 122 at 124 (California 1898)

Did ever any person in a position of authority find herself under stronger obligation to produce a document than the position Mary M Gusella found herself in when she was obligated to disclose the Prytulak Comment to the Disposition Committee?  Was ever balance more needed than that which would have been provided by the Prytulak Comment in one pan of the weighing scale, against in the other pan the combined weight of something like four documents in unison chanting the CJC Complaint and nothing but the CJC Complaint?

And what considerations can be adduced in defense of spoliation?

And from the CJC-CHRC point of view, what considerations can be adduced in opposition to the six anti-spoliation considerations above?  Where is to be found the justification for CHRC spoliation?  What authority, what precedent, for CHRC spoliation can be cited?  The Lucie Veillette letter acknowledges the spoliation but without offering justification, as if no explanation was called for, as if the conjecture that the spoliation was for a fraudulent purpose was unlikely to be uppermost in every mind.

Further questions in connection with the spoliation of the Prytulak Comment

In connection with the spoliation of the 29-Jul-2005 Prytulak Comment, a few questions remain.

1. Did the CJC also submit a Post-Investigation Comment?  Did John J Chamberlin invite the CJC to submit a Post-Investigation Comment the way that he invited Lubomyr Prytulak to?  One must assume that he did.  And was this CJC Comment spoliated the way Prytulak's was, or did it succeed in reaching the Disposition Committee, such that the Disposition Committee based its decision on four CJC documents and zero Prytulak documents � the four CJC documents being the CJC Complaint, the First and Second Investigator's Reports which echoed the CJC Complaint, and the CJC Comment which presumably approved of the preceding three CJC documents?
   
   

2. What was the extent of Comment disclosure to the opposite party?  The 30-Jun-2005 John J Chamberlin letter cited above warns Prytulak that "Your submission may be disclosed to the other party."  And the CHRC online statement quoted above puts it more strongly: "In most cases, a copy of the comments is also given to the other party."  So, then, was the Prytulak Comment disclosed to the Canadian Jewish Congress?  And did the Canadian Jewish Congress have a say in winning the spoliation of that Lubomyr Prytulak Comment?  And if the Prytulak Comment was disclosed to the CJC, and if the CJC did submit a Comment of its own, then why was the CJC Comment not disclosed to Lubomyr Prytulak?
   
   

3. Why did Mary M Gusella not recuse herself from the Disposition Committee?  Throughout the two years of the CHRC proceedings to date, Lubomyr Prytulak has been given reason to complain of Mary M Gusella malfeasance, abuse of office, and even of indictable crime, and so that she has an interest in joining the CJC in its persecution of Lubomyr Prytulak and in the suppression of the UKAR web site on which the Prytulak complaints against Gusella are published.  Why, in view of her conflict of interest, did Mary M Gusella fail to recuse herself from sitting on the Disposition Committee when CJC v UKAR came under consideration?
   
   

4. Was it proper for Mary M Gusella to trick Aimable Ndejuru into playing the role of stooge?  The 21-July-2005 Lucie Veillette letter also disclosed that the Disposition Committee consisted of a grand total of two Commissioners: "The names of the Commissioners who rendered the decision in the above complaint are: the Chief Commissioner Mary Gusella and Commissioner Aimable Ndejuru."  However, with Mary M Gusella having received a copy of the Prytulak Comment, but determined to railroad Prytulak no matter what he said, then all that remained to achieve the CJC-dictated outcome was to persuade Aimable Ndejuru to vote against Prytulak as well, which turned out to be easily accomplished by keeping Ndejuru in ignorance of the Prytulak Comment, and indeed of all Prytulak submissions.  Aimable Ndejuru's vote, then, was obtained fraudulently.  Mary M Gusella painted for Aimable Ndejuru the false picture of Lubomyr Prytulak as a respondent without facts, without arguments, without submissions, without post-investigation Comment.  Mary M Gusella abused Aimable Ndejuru's trust by maneuvering him into the role of patsy who could be used to unwittingly advance an unlawful cause.
   
   

5. What punishment is to follow the Mary M Gusella crime?  Confession of committing spoliation in a CJC-inspired conspiracy to pauperize and discredit a defender of the Ukrainian people must have its repercussions.  But where are those repercussions?  Where is the criminal prosecution of Mary M Gusella?  When can Canadians look forward to hearing of Mary M Gusella's resignation?  Where is any Gusella apology, or where any sign of her contrition or repentance?  Why, after having flaunted her unfitness for any position of authority, does Mary M Gusella nevertheless continue to rule over the CHRC?
   
   

6. Who steps forward to take ultimate responsibility for the CHRC spoliation of Prytulak documents?  As it is implausible that Mary M Gusella would on her own initiative have set off on an unlawful spoliation spree leading to the discredit of the CHRC and to the derailment of the CJC prosecution, the question arises of who did command the spoliation?  Whose decision was it?  Whence originates the impetus?
   
   

Closing statement

The 21-Sep-2005 Lucie Veillette confession of CHRC spoliation of the 29-Jul-2005 Prytulak Comment is prima facie confirmation of what Prytulak has been complaining of throughout the two years of CJC v UKAR proceedings � that the CHRC hate-messaging unit is corrupt, that it is railroading Prytulak in sham proceedings, that it brings the administration of justice into disrepute, and that it is Canada's leading practitioner of Charter-prohibited discrimination, placing as it does the bulk of its resources at the disposal of the Canadian Jewish Congress in order to advance racially-motivated prosecution, in the present instance the lawless prosecution of a Ukrainian for the sin of exercising his right to employ truthful speech to protect himself, the Ukrainian people, and the Canadian nation from the encroachment of CJC-imposed totalitarianism.




Lubomyr Prytulak

cc:

Irving ABELLA, National Honourary President, CJC, Department of History, York University, 4700 Keele Street, Toronto ON  M3J 1P3
John J CHAMBERLIN, Manager Investigations, CHRC, 344 Slater Street, Ottawa ON  K1A 1E1
Hon Irwin COTLER, Minister of Justice and Attorney General of Canada, 284 Wellington Street, Ottawa ON  K1A 0H8
Rt Hon Paul MARTIN, Prime Minister, Office of the Prime Minister, 80 Wellington Street, Ottawa ON  K1A 0A2
Ed MORGAN, Chair, CJC, Suite 650, 100 Sparks Street, Ottawa ON  K1P 5B7
Aimable NDEJURU, Commissioner, CHRC, 344 Slater Street, Ottawa ON  K1A 1E1  /  Commissaire, La Commission de l'Immigration et du Statut de réfugié, Complexe Guy Favreau, 200 boul. René Levesque Ouest, Tour Est, bureau 102, Montréal Québec   H2Z 1X4