Information No.

09458205, 09479105, and 09497005

New Brunswick Provincial Court (Provincial Court Office of Fredericton) BETWEEN: HER MAJESTY THE QUEEN and ANDRE CHARLES MURRAY ______________________________________________________

BRIEF RESPONDING TO SECTION 810 Undertaking

Filed by Self Represented Litigant Andre Murray ______________________________________________________

ANDRE MURRAY, Applicant/Defendant/Accused 103 Huntingdon Circle, Fredericton, New Brunswick, E3B 0M1, Canada, andremurraynow@gmail.com

Fredericton Crown Prosecutor Christopher Lavigne Fredericton Crown Prosecution Services Christopher.Lavigne@gnb.ca Hilary Drain Regional Director of Fredericton Crown Prosecution Services hilary.drain@gnb.ca Reception: (506) 453-2819 Fax: (506) 457-4812 Mailing Address Justice Building Room: 313 P. O. Box 6000, Fredericton, NB, E3B 5H1, Canada

SELF REPRESENTED, ANDRE MURRAY DEFENDANTS BRIEF RESPONDING TO SECTION 810 OF THE CRIMINAL CODE OF CANADA UNDERTAKING INDEX Page INDEX _________________________________________________________________ i (1) Introduction __________________________________________________________ 1 (2) Public Confidence in the Justice System____________________________________ 12 (3) Matter brought before a Judge ____________________________________________ 14 (4) Restraint of Liberty ____________________________________________________ 16 (5) The Subjective Fear and Objective Reasonable Grounds _______________________ 17 (6) Statutory Interpretation Issues ____________________________________________ 20 (7) Violation of Principles of Due Process _____________________________________ 24 (8) Charter Violations _____________________________________________________ 25 (9) Vagueness ___________________________________________________________ 28 (10) Violation of ss.7 and 9 of the Charter _____________________________________ 29 (11) Actual Conduct of Police, Crown and Court ________________________________33 (12) Conclusion __________________________________________________________39 ORDERS SOUGHT ______________________________________________________ 42

(1) INTRODUCTION 1. It is a violation of anyones Charter Rights and Freedoms, therefore, a victimization of

anyone, who is, subjected to, and or, as was in this case, Andre Murray coerced by members of FREDERICTON POLICE FORCE to enter into an RECOGNIZANCE/UNDERTAKING, coercion as may reasonably be accused of members of FREDERICTON POLICE FORCE consequence of Police having not followed procedure according to the Criminal Code, section 810.(2) requiring of the Police, therefore, that there must first of all be an Information laid before a Justice, who having determined, just cause, would then, thereafter, reasonably cause the relative parties to appear before him.

2.

Furthermore, Date: April 18, 2012, approximately 12:45 as Andre Murray attended

FREDERICTON POLICE FORCE, Station, at Queen Street Fredericton, according to a prescheduled appointment meeting with Constable David Beck, which was for the purpose of Process Serving Court Documents upon Defendant Constable David Beck as he was named within the subject Court Documents; in attendance at that time was Detective Steven Cliff as Defendant Constable David Beck acknowledged acceptance of the herein mentioned subject Process Service of Court documents upon him by Andre Murray.

3.

Furthermore, as mentioned herein above Defendant Constable David Beck accepted

Process Service of Court Documents, in the lobby of Fredericton police Station at Queen Street; in the presence of Detective Steven Cliff, however, immediately following the herein subject process service, Detective Steven Cliff together with Defendant Constable David Beck did act upon Andre Murray, so as to place Andre Murray under arrest, as the subject officers claimed they had grounds for the criminal charge of assault.

4.

However, Detective Steven Cliff together with Defendant Constable David Beck Date:

April 18, 2012 were acting unilaterally. It appears from disclosures finally provided by the Crown Prosecutors Office, to now Defendant Andre Murray revealed inter alia, that no member

of FREDERICTON POLICE FORCE had filed a report or investigation papers to the Crown Council, for charge assessment.

5.

Furthermore, as Andre Murray relies upon proper criminal Code procedures, the lack of

the herein above mentioned necessary preliminary Police reports or investigative files, having not been provided to Crown Prosecutors Office would mean that section 810 of the Criminal Code of Canada has not been adhered to. In other words, it is not possible for the Crown Prosecutors Office to have laid an INFORMATION before a Justice, consequentially, this must constitute an intentional violation Andre Murrays Charter Rights, inter alia by Detective Steven Cliff together with Constable David Beck. An Information laid before a Justice would have resulted in: section 810 (2) of the Criminal Code requiring: (2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division. 6. For consideration of the Court, Andre Murray has studied the Rules of the Game, called

Canada. Moreover, Andre Murray has studied the Rules of the Game, called New Brunswick and has included game THE CITY OF FREDERICTON, and the numerous bylaws.

7.

Therefore, Andre Murray, in good faith, having arranged an appointment through the

Office of Chief of Police for FREDERICTON POLICE FORCE for the purpose of serving Court Documents upon member Constable David Beck naming him as a Defendant. Andre Murray was innocently expecting that the confirmation by the Office of Chief of Police as having a 1:00 pm, April 18, 2012, scheduled meeting for these herein mentioned purposes with Constable David Beck would be a proper and sincere event.

8.

However, as the above mentioned arrest of Andre Murray which occurred at

approximately 1:00 pm, April 18, 2012, Andre Murray was escorted by Defendant Constable David Beck and Detective Steven Cliff, from the Police Station Lobby and into what must be in this case considered an interrogation room, at which time both Defendant Constable David Beck

and Detective Steven Cliff now joined by Constable Jeff Lingley began to coerce Andre Murray into signing, an RECOGNIZANCE/UNDERTAKING for which Andre Murray immediately refused. However, in order to obtain the herein above mentioned RECOGNIZANCE/UNDERTAKING from Andre Murray, coercion was used: This process which Andre Murray was subjected to, whereby the subject attending members of FREDERICTON POLICE FORCE did for approximately 1 hour focus primarily upon obtaining a signature from Andre Murray onto a RECOGNIZANCE/UNDERTAKING document which was notably back dated to April 16, 2012, for which Andre Murray continually refused to sign

9.

Furthermore, consequently, as Andre Murray would not sign the above herein mentioned

back dated to April 16, 2012, RECOGNIZANCE/UNDERTAKING document, therefore, Andre Murray was locked into a jail cell for 30 minutes till approximately 2:30 at which time Andre Murray in hand cuffs, was removed from the jail cell, by Detective Steven Cliff together with Constable David Beck, and then was placed into a marked City of Fredericton Police Car, thereafter, transported to the Court House, at which time Andre Murray was transferred into the custody of Sheriffs, who placed Andre Murray into a holding cell in the basement of the Court House Justice Building.

10.

NOTICE: The reader must realise that Constable David Beck October 23, 2009, did

Criminal Code Break and Enter into the private residence of Andre Murray whereby under threat of harm, was forced to leave his 31 Marshall Street, Fredericton, Duplex, Unit. This matter is still unresolved and before the Courts.

11.

NOTICE: The reader must realise that Constable David Beck October 7, 2011, did

without warning in the middle of the afternoon, football style tackle Andre Murray from behind, thereby, causing Andre Murray to fall off his bicycle, and onto the ground. Constable David Beck alleged that Andre Murray had been observed riding his bicycle on a sidewalk, depite at the time of the tackle Andre Murray was riding on the street. This matter is still unresolved and before the Courts.

12.

It must be reasonable to believe that Andre Murray cannot feel safe from harm, in the

presence of Constable David Beck, therefore, April 18, 2012, events, was alarming to Andre Murray who has never been given any reason, to trust the judgement of Constable David Beck, however, Andre Murray finds himself, locked up in a jail cell, without charges by a man to whom Andre Murray has just served Court documents, thereby advising Constable David Beck that Andre Murray is suing Constable David Beck.

13.

Furthermore, it is incredulous, that Constable David Beck is involved in the warrantless

arrest of Andre Murray, April 18, 2012; Constable David Beck who has probable cause for reasonable apprehension of bias against Andre Murray should not at this point be participating with Detective Steven Cliff.

14.

NOTICE: the reader must empathize with the shock that must be experienced by Andre

Murray, who in the first place, without Court issued Orders is placed under arrest for assault April 18, 2012 at12:59, ; moreover, these circumstances and or incident, must reasonably mean that crown Council for the Crown Prosecutors Office, had not yet according to procedure, received a report or Information by which they could do a charge assessment. Andre Murray is of the understanding and therefore relies upon proper procedure according to the criminal Code, which in this herein subject matter, of Andre Murrays arrest for assault, would have required the Crown Council having first completed their charge assessment according to procedure, moreover and furthermore, conditional to having determined that an Information should be laid before a Judge.

15.

Nevertheless and despite the above herein mentioned Crown Council Charge Assessment

procedure inter alia., Andre Murray would still be relying upon, proper procedure according to Criminal Code, in which case Andre Murray what would have been proper procedure would have required that an Information be laid before a Justice who would then as mentioned herein below an excerpt of section 810 (2) provided followed procedure, first laid an Information before a Justice, before having first laid an Information before a Justice. under threat of incarceration for 12 months forced to a unverified, unsubstantiated Information, Defendant

Andre Murray is, regarding this herein topic matter, an innocent man. This matter of a section 810 Information having allegedly been laid before a Justice on behalf of Neil Rodgers, et al., However despite section 810 (2) of the Criminal Code requiring: (2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division. section 810 .(2) of the Criminal Code has not been adhered to, in any meaningful way, which, for that reason, Defendant Andre Murray claims to have never received a summons to appear before a summary conviction court. Thereafter according to: (3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,
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(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or (b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

16.

The matter, before this Court is replete with evidence, of impropriety, improper

procedure, bias and reasonable apprehension of bias, and requires Court intervention to right this glaring injustice that has befallen innocent Defendant Andre Murray. To force a s.810 Undertaking on someone, the threat of future harm must be more than mere speculation, and requires a proven factual foundation which raises probable grounds to suspect future misbehaviour. Andre Murray has repeatedly demanded a proper s.810 hearing, to the extent of filing a FORM 1 NOTICE OF APPLICATION Dated July 16, 2012 and a supporting Affidavit, Dated July 16, 2012. The demanded s.810 hearing has been denied.

17.

Section 810 of the Criminal Code, compels a Justice (this is mandatory, no discretion),

before whom the Information is laid (in this case a FORM 2 INFORMATION was sworn by a third party Constable Paul Estey), to thereby cause, (as is required) as in this case, all parties including Informant Constable Paul Estey and both Defendant Andre Murray, and Witness Statement signatory Neil Rodgers to Appear before a Court of competent Jurisdiction, for a s.810 Hearing of the matters; however in this case the Informant is a HEARSAY Constable Paul Estey, who having completed an INFORMATION FORM 2 (section 506 and 788) claims to: have reasonable and probable grounds to believe and does believe that.

18.

HEARSAY Constable Paul Estey cannot sincerely believe, therefore he obfuscates the

truth, as we see and I hereby quote HEARSAY Constable Paul Estey in his capacity of Informant: have reasonable and probable grounds to believe and does believe that however, as we must clearly see HEARSAY Constable Paul Estey is so eager to falsely claim in his INFORMATION FORM 2 (section 506 and 788) despite there being no evidence of and therefore contrary, to the claims found made by HEARSAY Constable Paul Estey as he states in his subject INFORMATION FORM 2 (section 506 and 788) that: and therefore Neil William Rodgers prays that ANDRE CHARLES MURRAY may be bound over to keep the peace and be of good behaviour towards them, as authorized by Section 810(1) of the Criminal Code of Canada and amendments thereto. Please Note: there is absolutely no existence of any evidence that: Neil William Rodgers prays that ANDRE CHARLES MURRAY may be bound over to keep the peace and be of good behaviour towards them, as authorized by Section 810(1) of the Criminal Code of Canada and amendments thereto.

19.

Furthermore, it is reasonable to identify as herein above Informant Constable Paul Estey

as HEARSAY as there is not any disclosure from the Crown or FREDERICTON POLICE FORCE indicating that Constable Paul Estey ever attended upon Neil Rodgers at his residence or otherwise.

20.

There appears to be an organized attempt by members of FREDERICTON POLICE

FORCE to distance Police Informant Neil Rodgers from the possibility of perjuring himself, as will most consequentially be revealed by anyone, viewing the audio/video exhibit A evidence
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as provided by Affidavit and witness Shane Henry. For this purpose Neil Rodgers has been careful to not provide Affidavits, wherein, Neil Rodgers would be found guilty of perjury, please note: Neil Rodgers was aware of the audio/video camera being on location at the incident of Neil Rodgers assaulting Andre Murray, however, not until the conclusion of Neil Rodgers aggressive behaviour towards Andre Murray, did Neil Rodgers finally become aware of the audio/video camera.

21.

Discretion (reasonably a constitutional safeguard) to Order a Undertaking according to

s.810 of the Criminal Code, is only available to a Justice having had the Information first laid before the justice, thereafter procedurally causing all concerned parties to attend a hearing of the matter, which reasonably requires Defendant Andre Murray to have been given notice of a Hearing. This never occurred. Defendant Andre Murray never had opportunity to respond a Information as an Information had never been laid before a Justice.

22.

No Court of competent Jurisdiction, at least no open Court as required pursuant to

section 810 of the Criminal Code. Defendant Andre Murray has been subject to an undertaking for 11 months (from April 18, 2012 to March 13, 2013), despite no Court having jurisdiction, therefore no Court having discretion to Order same. Despite the following Andre Murray was arrested by Constable David Beck April 18, 2012, a full 47days before (as in this case) a subject FORM 2 Information (section 506 and 788), attesting to the need for Andre Murray to be bound, pursuant to s 810, was finally sworn June 5, 2012, by Constable Paul Estey then same day laid before a Justice. However, a Justice jurisdiction to cause someone to be restricted by an Undertaking, is only activated once Defendant Andre Murray is given notice of a Hearing, then has a chance to respond to the allegations before a Court of competent Jurisdiction. The prerequisite, preliminary s 810 Hearing to determine the need of a Defendant to be bound over, is an important constitutional safeguard, without a prerequisite, preliminary s 810 Hearing, Andre Murrays Right to due process, and Andre Murrays Charter guarantees are violated, and that is exactly what occurred, as Andre Murray has suffered an illegal undertaking, since April 18, 2012.

23.

NOTICE: the herein above mentioned prerequisite, preliminary s 810 Hearing has since

April 18, 2012, never been granted Andre Murray rendering that illegal Undertaking a nullity.

24.

In the context of a preventive provision like Criminal Code: s.810, mandatory or

automatic issuance of process upon Defendant Andre Murray (without due process) violates ss.7 and 9 of the Charter and cannot be justified under s.1of the Charter. An automatic issuance of process, with the potential arrest of the defendant, is excessive and unwarranted. In Defendant Andre Murrays case, as the evidence confirms, there was no FORM 2 Information, sworn, before Andre Murray was arrested April 18, 2012 and forced under protest and duress to sign a Undertaking to a Police Officer (or go to Jail). Automatic enforcement/subjection of an Undertaking, provides no control on obviously unfounded FORM 2 Informations, under which a person may be summonsed, or arrested, thus Andre Murray has been illegally subjected to capricious, or unjustifiable arrest, detention and loss of personal freedom. The Supreme Courts decision in Baron v. Canada, paragraph 19 made this clear a residual discretion is a constitutional requirement. and its exercise by the Court, pursuant to a s. 810 application hearing integral to due process requirements. An Undertaking order can only be made if the presiding judge (following a s.810 application hearing ) is satisfied by evidence that the fear is reasonably based. The need for the informants state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion is essential for due process. Andre Murray has been stripped of his Charter protected liberty and freedom for 11 months, without due process.

25.

Regarding restraint of Liberty, in application of Section 810 of the criminal Code. It is

most important to note that a Judge hearing a s.810 application must attempt to balance two competing interests: (1) the right of Defendant Andre Murray to privacy or to be left alone; (2) the right of informant Neil William Rodgers to protective intervention in appropriate circumstances.

26.

The prerequisites of the subject section 810 provide the balance needed by setting out

subjective and objective grounds that must be satisfied (to the Court on balance of probabilities)
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prior to the issuance of the Undertaking sought. Without the prerequisite hearing to determine if the Undertaking is rationally justified, how can it be said that a balance was reached in due process? The justice who conducts the trial must be satisfied, (presumably at least on a balance of probabilities if not beyond a reasonable doubt), that the subjective and objective elements have been proven is evidence. Unless both elements have been proven the justice has no jurisdiction to make the Undertaking Order.

27. states:

The subject June 5, 2012, FORM 2 INFORMATION sworn to by Constable Paul Estey

"Neil William Rodgers of 15 Fisher Avenue, Fredericton, New Brunswick does fear that ANDRE CHARLES MURRAY of 31 Marshall Street, Fredericton, New Brunswick, will do him personal injury in that ANDRE CHARLES MURRAY on or about 10th day of April AD. 2012, at Fredericton, New Brunswick, did threaten and harass Neil William Rodgers and his family therefore Neil William Rodgers prays that ANDRE CHARLES MURRAY may be bound over to keep the peace and be of good behaviour towards them, as authorized by Section 810(1) of the Criminal Code of Canada and amendments thereto." 28. The audio/video evidence attached as Exhibit A of the Affidavit of Shane Henry

provided by eye witness Shane Henry, provides objective and abundantly conclusive evidence to anyone who listens and views the subject audio/video; indisputable evidence therefore that proves Defendant Andre Murray did not did threaten and harass Neil William Rodgers and his family on April 10, 2012.

29.

There is not rational reason, therefore no credible evidence, that as put forth in the subject

hearsay Information by Constable Paul Estey: Neil William Rodgers of 15 Fisher Avenue, Fredericton, New Brunswick does fear that ANDRE CHARLES MURRAY of 31 Marshall Street, Fredericton, New Brunswick, will do him personal injury.

30.

Criminal Code of Canada hereafter the Criminal Code Section 810 reads as follows: Sureties to Keep the Peace Where injury or damage feared

810. (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property. Duty of justice (2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division. Adjudication (3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears, (a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or (b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance. Modification of recognizance (4.1) The justice or the summary conviction court may, on application of the informant or the defendant, vary the conditions fixed in the recognizance. Procedure (5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section. 31. Section 810 of the Criminal Code, is generally described and titled as a sureties to keep

the peace. It is not a criminal charge. No conviction is entered and no criminal record results. The imposition of conditions as part of the Undertaking is aimed at preventing potential future harmful incidents and or mishaps, and requires a promise to behave, rather than imposing punishment as that term is contemplated in criminal proceedings. Therefore, these matters are at best quasi-criminal and in fact more akin to civil proceedings than criminal. For example, please note that the subject of the order is described as the "defendant" rather than the "accused", the
10

term used elsewhere in the Criminal Code. ( See R. v. Bilida, 1999 ABQB 1016 (CanLII), http://canlii.ca/t/5nmw para 2).

32.

In Thorpe v. Lacovetsky, Justice Kelly, J. stated the uniqueness of this section and

expanded on unique standard of proof required under Section 810 of the Criminal Code: [5] Counsel for the parties before me were not in dispute as to the proper standard of proof to be applied in this matter and, in fact, it appears from the transcript that they both presented the same opinion to the justice at the earlier hearing. They agree that the standard of proof under Section 810 of the Criminal Code is one on the balance of probabilities. It is, in fact, trite law that Section 810 does not create an offence and does not give rise to a conviction or sentence. It is a rather unique section of the Criminal Code, designed to prevent crime rather than to punish it. It does not require proof of an offence in the criminal sense, that is beyond a reasonable doubt, but only that the fear that is required by the offence be established and the evidence for granting a peace bond be established on reasonable grounds. See R. v. Gill, [1991] B.C.J. No. 3255 (DeVilliers, P.C.J.), Miller v. Miller reflex, (1991), 87 N.F.L.D. & P.E.I. Reports 250 (Provincial Court), MacAusland v. Pyke 1995 CanLII 4541 (NS SC), (1995), 96 CC.C. (3d) 373, Kelsey v. Medley, [1997] N.S.J. No. 584 and R. v. Budreo, 104 C.C.C. (3d) 245. Thorpe v. Lacovetsky, 2002 NSSC 129 (CanLII), http://canlii.ca/t/5jwb

33.

Please Note: Provincial Offences Procedures Act. 35(3) A witness statement shall be in prescribed form and shall be signed by the witness in the presence of another person. 35(4) The evidence of a witness given by way of a witness statement has the same force and effect as evidence given orally under oath or solemn affirmation. 35(5) Every person who knowingly makes a false statement in a witness statement commits a category H offence. 64(1) A judge may, in relation to a category H offence, sentence a defendant to a term of imprisonment of not more than one hundred and eighty days.

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(2) PUBLIC CONFIDENCE IN THE JUSTICE SYSTEM 34. Public confidence in the Justice system must reasonably be dependent upon the certain

actions of the Judiciary. However, the public should reasonably be able to rely upon the Courts, Police and the Crown to Act according to the Canadian Charter of Rights and Freedoms. Therefore, the Judiciary must be expected to act, in a way, that does not bring the administration of Justice into disrepute. In R. v. Teskey, the Supreme Court of Canada described the concept of judicial integrity as follows: 20 The notion of judicial integrity was discussed at length by this Court in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484. It encompasses the expectation that judges will strive to overcome personal bias and partiality and carry out the oath of their office to the best of their ability. Impartiality was described as follows by Cory J. (at paras. 104-5): . . . impartiality can be described perhaps somewhat inexactly as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. The judges impartiality is essential to achieve trial fairness. 21 As reiterated in S. (R.D.), fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend .
R. v. Teskey, 2007 SCC 25 (CanLII), [2007] 2 SCR 267, http://canlii.ca/t/1rq5q

35.

Public confidence in the justice system relies on a presumption of integrity. The high

threshold for displacing a presumption that a judge is acting with integrity and in accordance with his or her oath of office, seeks to balance two significant public interests, both related to maintaining confidence in the administration of justice: the right of judges to be presumed to be acting with integrity and the right of litigants to challenge judges, when, however, their conduct gives rise to a reasonable apprehension of impropriety. The presumption of integrity
12

acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold. This aspect of the presumption, namely, that judges are presumed to know and act in accordance with their legal responsibilities. The judges impartiality is essential to achieve fairness, Defendant Andre Murray expects any Judge who reviews this subject matter, to see the injustice which has engulfed this particular matter therefore, dismiss all related charges as they may be, for that reason, impugned by improper procedures associated with the alleged undertaking.

36.

This presumption of integrity extends to Police and Crown Prosecutors, who should be

bound by their various oaths and should carry out duties, they have sworn to uphold. This matter before the Court is replete with evidence, of impropriety, improper procedure, bias and reasonable apprehension of bias, and requires Court intervention to right this glaring injustice that has befallen innocent Defendant Andre Murray.

37.

In R. v. Budreo, the Court expressed that various provisions of the Criminal Code, when

properly exercised, strike the appropriate balance between public interest in the protection of genuine Informants and the liberty interest of the defendant. Only in unusual circumstances will the justice be entitled to order the detention of the defendant pending the hearing. Indeed, it will be a rare case, where it would enhance confidence in the administration of justice to detain a defendant who is not alleged to have committed any crime and who would in any case only be required to enter into a recognizance at the conclusion of the subject s. 810 proceedings: [68] in the light of the limited consequences of a successful s.810.1 application, only in unusual circumstances will the justice be entitled to order the detention of the defendant pending the hearing. Indeed, it will be a rare case where it would enhance confidence in the administration of justice to detain a defendant who is not alleged to have committed any crime and who can only be required to enter into a recognizance at the conclusion of the proceedings. [69] So interpreted, these various provisions of the Code strike the appropriate balance between the public interest in the protection of children and the liberty interest of the defendant. R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 68-69

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38.

Provisions of the Criminal Code, strike the appropriate balance between public interest in

the potential protection of Neil Rodgers and the liberty interest of Defendant Andre Murray. Only in unusual circumstances will the justice, hearing the matter, be entitled to order the detention of the Defendant, pending the hearing. Indeed, it will be a rare case where it would enhance confidence in the administration of justice to detain a defendant who is not alleged to have committed any crime and who can only be required to enter into a recognizance at the conclusion of the proceedings: The conduct of the judiciary to this point will bring the administration of Justice into disrepute. Section 810 has been improperly, without justification and without jurisdiction exercised, upon Defendant Andre Murray. Defendant Andre Murray has been subject to an undertaking for 11 months (from April 18, 2012 to March 13, 2013), despite the Court having no discretion to Order same. Andre Murray was arrested by Constable David Beck April 18, 2012, a full 47days before the FORM 2 Information, applying for an Undertaking pursuant to s 810, was sworn June 5, 2012, by Constable Paul Estey. So far Andre Murray has been arrested twice and spent two days in jail, over an illegally obtained Undertaking that should not exist and for reasons unrelated to harming the interests of Neil Rodgers.

(3) MATTER BROUGHT BEFORE A JUDGE 39. According to s. 810 of the Criminal Code, Crown prosecutors office having laid an

information, the Justice receiving the information will cause all parties to attend a Hearing to determine if a Undertaking is required. In circumstances where the objective and subjective of the fear has not been proven on the balance of probabilities, no undertaking will be required, nor desired in administration of justice. There may be some circumstances where the objective and subjective of the fear has been proven on the balance of probabilities where the recognizance is still not warranted. Finally the objective and subjective of the fear may be proven on the balance of probabilities, and the recognizance is warranted. Thus, the Judge must be left with a residual discretion that may or may not be exercised based on the factual context.

40.

In R. v. Soungie, Judge M.G. Allen provided the following summary of principals for

application of Section 810 of the Criminal Code:

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Summary of the Principles [46] Let me set out in point form the principles applicable to s. 810 applications: (1) Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, the applicants spouse, the applicants common law partner, the applicants children, or future damage to the applicants property. The Court is allowed to intervene to prevent a breach of the peace prior to an actual offence being committed. (2) Section 810 restrains the liberty of the defendant to live his or her life free from restraint of that liberty. (3) The Judge must balance the two competing interests in determining whether to place the defendant on a recognizance. That is, the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protective intervention in appropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject, but this caution must be tempered with a view to the protection provided to the applicant where grounds have demonstrated the need for the recognizance. (4) The applicant must actually fear that the defendant will cause personal injury to the applicant, the applicants spouse, the applicants common law partner, the applicants children, or will cause damage to the applicants property. (5) The Judge must find that the applicants fears are reasonable, i.e., that an objective person armed with the same knowledge as the applicant would agree that the applicants fear are reasonable. The reasonable fear must be triggered by some action of the defendant. (6) Evidence of the defendants previous misconduct is admissible to determine the basis for the beliefs held by the applicant. This evidence can be used by the Judge in determining whether the applicants fears are reasonable. (7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of future harm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood. (8) The onus of persuasion is upon the applicant. The applicant must satisfy the Judge on the balance of probabilities of the grounds for the issuance of a recognizance. R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv

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41.

The summary of principals for application of Section 810 of the Criminal Code and how

they may relate to this subject matter, will be examined below in section (11) Titled ACTUAL CONDUCT OF THE POLICE, CROWN AND COURT. Please note: the objective and subjective of the fear must be proven on the balance of probabilities, to a Court before the Judge has the jurisdiction to Order an Undertaking. The Judge must be left with a residual discretion that may or may not be exercised based on the factual context; otherwise the enforcement of an Undertaking will be Unconstitutional (contrary to Charter guarantees).

(4) RESTRAINT OF LIBERTY 42. In R. v. Soungie, Judge M.G. Allen provided the following on restraint of Liberty in

application of Section 810 of the criminal Code. It is most important to note that A Judge hearing an application must attempt to balance two competing interests: (1) the right of the defendant to privacy or to be left alone; (2) the right of informant to protective intervention in appropriate circumstances. The prerequisites of the section provide the balance needed by setting out subjective and objective grounds that must be satisfied prior to the issuance of the recognizance sought. In the matter of Defendant Andre Murray no Information was laid before a Justice until months after members of FREDERICTON POLICE FORCE acted unilaterally, whereby Andre Murray was arrested without a warrant and detained for hours enduring coercive manipulation, furthermore, threatening Andre Murray with ultimatums requiring that Andre Murray sign an undertaking or go to jail, inter alia. It must be noted that many months after and while Andre Murray was still suffering the conditions of his undertaking HEARSAY Informant Constable Paul Estey provided Information to the Crown Council. Restraint of Liberty [9] Even prior to the Charter the Courts recognized that peace bonds restrained liberty: R. v. MacKenzie (1945), 85 C.C.C. 233 (Ont. C.A.). MacKenzie dealt with a common law peace bond which could bind someone to keep the peace. The present provisions contained with s. 810 give a Provincial Court Judge even greater powers to restrain an individuals liberty. When the defendant is ordered to be placed on a recognizance, the minimum condition that the defendant is subject to keeping the peace
16

and good behaviour (s. 810(3)(a)). Other conditions desirable for securing good behaviour may be added. Moreover, some conditions must be considered by the Judge. These include: a prohibition from possession of firearms and other weapons (s. 810.3.1); a condition prohibiting the defendant from being within a certain distance of the applicant or applicants spouse, common law partner or children (s. 810.3.2(a)); a condition prohibiting direct or indirect communication with the applicant, the applicants common law partner, spouse or children (s. 810.3.2(b)). If the respondent does not agree the defendant can be committed to custody for twelve months. Should the defendant breach the recognizance he or she can be charged with an offence that is punishable by a maximum of two years by indictment or a summary conviction maximum. The legislative scheme does place restrictions upon a defendant subject to a recognizance. [10] The jurisprudence also supports the view that the defendant is restrained by a recognizance. In Budreo Then J. recognized that the Charter and specifically s. 7 of the Charter is applicable to liberty interests restrained by s. 810.1. In the Court of Appeal the Crown stipulated that s. 810.1 deprived the defendant of his liberty: R. v. Budreo 2000 CanLII 5628 (ON CA), (2000), 142 C.C.C. (3d) 225 (Ont. C.A.). By s. 810.1 the respondent can be restrained from contact with persons under eighteen years and certain named locations where such persons can be found. In s. 810, as in s. 810.1, the defendant can be prohibited from contact with certain individuals and from certain locations. Clearly, the liberty interests recognized by the Charter could be implicated by a s. 810 recognizance. [11] A Judge hearing an application must attempt to balance two competing interests: (1) the right of the defendant to privacy or to be left alone; (2) the right of informant to protective intervention in appropriate circumstances. The prerequisites of the section provide the balance needed by setting out subjective and objective grounds that must be satisfied prior to the issuance of the recognizance sought.
R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv Paragraph 9 - 11

43.

In Defendant Andre Murrays case, there was no prerequisite s.810 Application hearing

to determine, before a Judge, if an Undertaking was justified, therefore it is not possible to say that a balance was reached according to due process. Pursuant to Charter protections, any Undertaking, that claims restrictions upon Defendant Andre Murray, without due process is of no force or effect. (5) THE SUBJECTIVE FEAR AND OBJECTIVE REASONABLE GROUNDS 44. In R. v. Soungie, Judge M.G. Allen provided the following, regarding Subjective Fear

and Objective Reasonable Grounds in relation to an undertaking under section 810 of the
17

Criminal Code. It is most important and revealing to note that the justice who conducts the trial must be satisfied, (presumably at least on a balance of probabilities if not beyond a reasonable doubt), that the subjective and objective elements have been proven is evidence. Unless both elements have been proven the justice has no jurisdiction to make the order.: The Subjective Fear and Objective Reasonable Grounds [12] The objective and subjective ground necessary to support were succinctly set in R. v. Banks, reflex, [1995] 4 W.W.R. 698 (Sask. C.A.) (Banks), Bayton J. said at pp. 7023: It is evident from ss. (1) and (3) that before an order can be made against the defendant, two elements must be established in evidence (for clarity I will use the masculine gender): (1) The informant actually fears that the defendant will cause personal injury to him, his spouse, his child, or will damage his property, and (2) Reasonable grounds exist for the informants fears. The first condition is a subjective condition while the second is an objective one. The Code uses the term reasonable grounds while the information uses the term reasonable and probable grounds. In any event, the justice who conducts the trial must be satisfied, (presumably at least on a balance of probabilities if not beyond a reasonable doubt), that the subjective and objective elements have been proven is evidence. Unless both elements have been proven the justice has no jurisdiction to make the order. The reasonable grounds requirement is to protect individuals from unwarranted restrictions on their liberty through an order made solely on the subjective (and possibly unreasonable) perceptions of an informant. Only in those instances in which the subjective perceptions of an informant are supported by objective reasonable grounds can such an intervention order be made. R. v. Patrick reflex, (1990), 75 C.R. (3d) 222 at 228 (B.C. Co. Ct.). [13] Many Criminal Code sections use the term reasonable grounds for the basis of judicial action. The judicial interpretation of the term used in other contexts can be helpful in making a determination the meaning of the term used in the context of s. 810. [14] In R. v. Storrey, [1991] 1 S.C.R. 241 (S.C.C.), the Supreme Court was dealing with the power of police to arrest which required the police to have reasonable and probable grounds. Cory J. writing for the Court observed at pp. 250-251:

18

In summary then, the Criminal Code requires that the arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds, must, in addition, be justifiable from the objective point of view. That is, to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest. R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv Paragraph 12 - 14 45. In R. v. Soungie, Judge M.G. Allen provided the following regarding the onus of proof,

which is, based on balance of probabilities. The prosecution on a section 810 application, must prove to a Justice, on the balance of probabilities that an Undertaking is warranted: [35] In Miller v. Miller reflex, (1991), 87 Nfld. & P.E.I.R. 250 (Nfld. Prov. Ct.) Handrigan P.C.J. explored at length the onus of proof. His conclusion was at para. 23: It is my view that the burden of proof on the prosecution on a section 810 application is not proof beyond a reasonable doubt but on a balance of probabilities. The following are my reasons for concluding this: (1) Proceedings under section 810 are at best quasi-criminal in nature and even where there is a finding that the accused is required to enter into a recognizance this is not a conviction and no penalty flows directly there from. (2) The wording of section 810 of the Criminal Code is to the effect that an application can be taken out by any person who fears, and that the court must be satisfied on the evidence adduced that the applicant has reasonable grounds for his fears. The use of the words fears, satisfied, and reasonable grounds do not suggest the same severity or significant degree of proof attendant upon the prosecution in bona fide criminal proceedings. (3) While it may be argued that a respondent entering into a recognizance has his liberty restricted, or that a very real consequence will result to those directed to but who refuse to enter into a recognizance, essentially the existence of a recognizance is no penalty or burden for a respondent to bear, simply because he is only binding himself to do what all law-abiding citizens are required to do. It is true that he attracts the risks of further penalty for breaching the peace or failing to be of good behaviour but this is not such an unreasonable burden or expectation for him, such that his exposure to it should be supportable only by proof beyond a reasonable doubt. (4) The recognizance contemplated by section 810 of the Criminal Code may be in form 32 of the Criminal Code and this is the type of form suggested as
19

being the form of a recognizance to be entered into by a person released by the court under the judicial interim release provisions of the Criminal Code. It is a will-established fact that the burden on the applicant under the judicial interim release provisions is not beyond a reasonable doubt but on a balance of probabilities. Hence, it would follow a fortiori that the burden contemplated by section 810 of the Criminal Code is on the same standard, proof on a balance of probabilities. R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv Paragraph 35 46. The onus of proof (is on the Crown), through due process a balance of probabilities has to

be met,. Please Note that unless both elements have been proven: (1) Subjective Fear; (2) Objective Reasonable Grounds; the justice has no jurisdiction to make an Order pursuant to section 810 of the Criminal Code. The Court must be satisfied on the evidence adduced at the s 810 hearing, that the Informant has reasonable grounds for his fears. (6) STATUTORY INTERPRETATION ISSUES 47. In R. v. Falle, the Court expressed that in order to accomplish what Parliament intended,

(through the Criminal Code), a hearing before a Provincial Court Judge, is essential and mandatory, at which time both the Informant and the Defendant can address the issues. In proceedings pursuant to section 810, the onus is upon the Informant on the balance of probabilities to prove the need for an undertaking. The threat of future harm must be more than mere speculation, and requires a proven factual foundation which raises probable grounds to suspect future misbehaviour. The factual foundation must be based on evidence meeting the principles of necessity and reliability set out by the Supreme Court of Canada or in the very least civil evidentiary standard of inherent trustworthiness. Either way evidence is tendered to a Court at a formal Hearing of the matter, contemplating a Section 810 Undertaking. Statutory Interpretation Issues [7] . In order to accomplish this Parliament has provided for a hearing before a Provincial Court Judge at which both the Informant and the Defendant can address those

20

issues. In coming to this conclusion I have been helped by the reasoning in the following cases: R. v. Baker [1999], B.C.J. 681 (B.C.S.C.); R. v. Budreo, 2000 CanLII 5628 (ON CA), (2000) 142 C.C.C. (3d) 225; Re Dhesi, 1983 CanLII 338 (BC SC), (1984) 9 C.C.C. (3d) 149; R. v. Wakelin, reflex, (1992) 71 C.C.C. (3d) 115; R. v. Bilida, 1999 ABQB 1016 (CanLII), (2000) 256 A.R. 336. Evidentiary Issues [8] The onus is on the Applicant. I agree with the observations of DeFillipis, J. in R. v. Ferrier [2000], O.J. 2720(Ont. Ct. Just.): In proceedings pursuant to this section, no plea is taken from the Respondent. The onus is upon the Applicant on the balance of probabilities. There is a broader scope for the admissibility of evidence, including the history of violence and evidence supporting a pre-disposition for violence. The threat of future harm must be more than mere speculation, and requires a proven factual foundation which raises probable grounds to suspect future misbehaviour. I would only add that I believe the enhanced balance of probabilities test may be the better way of distinguishing this quasi-criminal proceeding. [9] I endorse the observations of Martin J. in R. v. Bilida [2000], A.J. 20 (Q.L.): In my opinion the phrase satisfied by the evidence adduced does not require formal sworn evidence such as viva voce evidence commonly called in criminal proceedings. Rather, I think the phrase also contemplates information tendered to the Court by Counsel in the form of oral submissions. [11] In making this finding I am reinforced by the developing principled approach to the admissibility of hearsay evidence - namely the principles of necessity and reliability set out by the Supreme Court of Canada in: R. v. Khan, 1990 CanLII 77 (SCC), (1990) 59 C.C.C. (3d) 92; R. v. Smith, 1992 CanLII 79 (SCC), (1992) 75 C.C.C. (3d) 257; R. v. Finta, 1994 CanLII 129 (SCC), (1994) 88 C.C.C. (3d) 417. R. v. Rockey, 1996 CanLII 151 (SCC), (1996) 110 C.C.C. (3d) 481;
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R. v. U.(F.J.), 1995 CanLII 74 (SCC), (1996) 101 C.C.C. (3d) 97; [12] However, if a witness is too ill, or is beyond the jurisdiction of the Court, or there is some evidence that his/her attendance would cause undue emotional trauma or hardship, I would be prepared to accept a letter or report that meets a civil evidentiary standard of inherent trustworthiness.
R. v. Falle, 2001 ABPC 36 (CanLII), http://canlii.ca/t/5qs0 paragraph 7 - 12

Sureties to Keep the Peace

Where injury or damage feared

810. (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.
Duty of justice

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.

Adjudication

(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,
o

o
Conditions

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or (b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

(3.1) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for any period specified in the recognizance and, where the justice or summary conviction court decides that it is so desirable, the justice or summary conviction court shall add such a condition to the recognizance.
22

Surrender, etc.

(3.11) Where the justice or summary conviction court adds a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall specify in the order the manner and method by which
o o
Reasons

(a) the things referred to in that subsection that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and (b) the authorizations, licences and registration certificates held by the person shall be surrendered.

(3.12) Where the justice or summary conviction court does not add a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall include in the record a statement of the reasons for not adding the condition.

Idem

(3.2) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf the information was laid or of that persons spouse or common-law partner or child, as the case may be, to add either or both of the following conditions to the recognizance, namely, a condition
o

(a) prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that persons spouse or common-law partner or child, as the case may be, is regularly found; and (b) prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that persons spouse or common-law partner or child, as the case may be.

Forms

(4) A recognizance and committal to prison in default of recognizance under subsection (3) may be in Forms 32 and 23, respectively.

Modification of recognizance

(4.1) The justice or the summary conviction court may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.

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(7) VIOLATION OF PRINCIPLES OF DUE PROCESS 48. Due process protections in the Bill of Rights do confer certain rights to notice and an

opportunity to make submissions in the adjudication of individual rights and obligations. A basic principle of Natural Justice is the Right to Be Heard and common law support this principle. Section 2(e) of the Bill of Rights applies to guarantee the fundamental justice of proceedings before any Court that determine individual rights and obligations. The right of the individual to liberty, and the right not to be deprived thereof except by due process of law is essential to the identity of Canadian Law. This concept is reflected again in the requirement for a Section 810 Hearing before a Justice, where an applicant must convince a Court, by evidence and the balance of probabilities, that an undertaking is warranted in the situation, before an individuals liberty is restricted, by signing an undertaking, or face incarceration.

49.

Recognition and declaration of rights and freedoms in the Canadian Charter of Rights and

Freedoms: 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to (a) authorize or effect the arbitrary detention, imprisonment or exile of any person; (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

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(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or 50. In R. v. J.T.S., the Court stated the right to due process is for everyone, which notably is

the best insurance for the government itself, against the blunders which leave lasting stains on a system of justice: Unfortunately for Defendant Andre Murray, he has experienced one of those blunders, expressed by the Court as follows: We cannot ration the right to due process in the execution of our penal laws on the basis of the character of those who seek it. While it is the outcasts of society that must have the primary call upon the safeguard of due process, it is not for the convicted alone; [Due process] is the best insurance for the government itself, against the blunders which leave lasting stains on a system of justice. Shaughnessy v. United States, (1953) 345 U.S. 206, 224 (1953), Robert H. Jackson J. (U.S.S.C.). R. v. J.T.S., 1996 ABCA 374 (CanLII), http://canlii.ca/t/2dd75 51. The unilateral actions of members of FREDERICTON POLICE FORCE, thereafter

Negligence on the part of the Crown Prosecutors and the Court thus far, have collectively violated Defendant Andre Murrays right to due process, this is such a blunder, that if not corrected will leave a lasting stain on the Judiciary. The administration of Justice will be brought into disrepute. Andre Murrays right to due process has been violated, contrary to Constitutional guarantees. A correction must be made to maintain public confidence in the administration of Justice. (8) CHARTER VIOLATIONS 52. Procedural safeguards within the Criminal Code of Canada should be sufficient to allow

s.810 to be Charter compliant, but when procedure is not followed, imposition of s.810 can create a Charter infringement upon the innocent. When properly implemented the procedural safeguards in s.810 are adequate. In the normal course of maters, anyone subjected to a s.810 application receives notice of the hearing. The hearing must meet the procedural fairness requirements of a summary conviction trial. No order can be made until after the hearing is completed. The presiding provincial court judge has discretion to limit the restrictions imposed.
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Any order made is not a lifelong injunction; it can last no longer than a year and may be renewed only after an entirely new hearing. A person subjected to a s.810.1 order may appeal the order and may, at any time, seek to vary the conditions. When properly implemented, it strikes a reasonable balance between the liberty interest of the defendant and the states interest in protecting an Informant from harm. A defendants liberty interest may be restricted only after a hearing complying with the requirements of natural justice and only to the extent needed to avoid unreasonably jeopardizing the safety of the Informant.

53.

In R. v. Budreo, the Court examined the provisions for pre-trial arrest and bail and

Procedural safeguards sufficient to not make s.810.1 overbroad, thus saving it from violating the Charter.: [46] The provisions for pre-trial arrest and bail which, as I will discuss later in these reasons, apply to a proceeding under s.810.1 carry with them the possibility of a sanction more severe custody or detention than any sanction that may be Imposed as a result of a hearing under s.810.1. That possibility, however, does not make the section overbroad. Pre-trial arrest or even pre-hearing detention may be necessary to secure the defendants attendance at the hearing or to prevent harm to children pending a hearing because of a defendants unwillingness to comply with reasonable terms of release. In short, as I have already said, pre-trial arrest and detention may be needed in some cases to ensure the integrity and viability of the s.810.1 proceedings themselves. 4. Procedural safeguards are sufficient to not make s.810.1 overbroad [47] The procedural safeguards in s.810.1 are adequate. Anyone subjected to a s.810.1 application receives notice of the hearing. The hearing must meet the procedural fairness requirements of a summary conviction trial. No order can be made until after the hearing is completed. The presiding provincial court judge has discretion to limit the restrictions imposed. Any order made is not a lifelong injunction; it can last no Longer than a year and may be renewed only after an entirely new hearing. A person subjected to an s.810.1 order may appeal the order and may, at any time, seek to vary the conditions. [48] I therefore conclude that s.810.1 is not overbroad. Instead, it strikes a reasonable balance between the liberty interest of the defendant and the states interest in protecting young children from harm. A defendants liberty interest may be restricted only after a hearing complying with the requirements of natural justice and only to the extent needed to avoid unreasonably jeopardizing the safety and security of young children. R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 46-48
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54.

When those Procedural safeguards found within s.810 of the Criminal Code of Canada,

are not followed, Police, Crown and Court actions are no longer Charter compliant, the defendant Andre Murray becomes a victim of procedure run amuck, as follows: The Defendant (in this subject matter) Andre Murray did not receive any notice of a s. 810.1 application Hearing. There has not been the necessary s 810 application Court Hearing, prior to Andre Murray having been subjected to the ultimatum requirement wherein Andre Murray was threatened to spend time in jail while waiting to see a Judge and or alternatively Andre Murray had to sign the subject undertaking to be released from the custody of members of FREDERICTON POLICE FORCE who subjected Andr Murray to arrest, interrogation, combined ultimately with an ultimatum, (under threat of incarceration for a days) (a form of coercion) therefore, I Andre Murray was given to believe by members of FREDERICTON POLICE FORCE that I had no options, at that time, other than sign the subject undertaking or to spend days in Jail, before being allowed to see a Judge, therefore violating procedural fairness requirements according to s. 810. There exists no jurisdiction for the Court to make such an order, of an Undertaking, furthermore, no order could reasonably have been made until after the s.810 application hearing is completed.

55.

Any Undertaking, properly Ordered, can last no longer than a year and may be renewed

only after an entirely new hearing. Please Note: for 11 months, since April 18, 2012, without the prerequisite s. 810 hearing, members of FREDERICTON POLICE FORCE have been, however, treating Defendant Andre Murray as if he is subject to an Undertaking. This is because of the improper procedure and actions of the members of FREDERICTON POLICE FORCE, Crown and the Courts. When properly implemented, s. 810 of the Criminal Code, strikes a reasonable balance between the liberty interest of Defendants and the states interest in establishing the validity of an Informants legitimate need to be protected from harm. Therefore, as in this subject matter, Defendant Andre Murrays liberty interest should never have been prematurely restricted.

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(9) VAGUENESS 56. Constable Jeff Lingley erroneously Dated the subject Police Officer's Undertaking as

April 16, 2012, however, the true Date of which the Undertaking was signed by Andre Murray was in reality April 18, 2012, moreover, while Andre Murray under protest and duress.

57.

Defendant Andre Murray was forced (under protest and duress) to sign a undertaking to a

Police Officer, April 18, 2012, that was ambiguous enough to void for vagueness principle. Defendant Andre Murray was unreasonably forced to agree to not go onto the property of Neil Rodgers and Trina Rodgers, or appear at their place of employment, without those places of employment being expressly identified. Like the overbreadth principle, the void for vagueness principle is also concerned with whether an undertaking has used precise enough means to achieve its objective. But whereas overbreadth is concerned with whether the Undertaking is targeted sufficiently narrow, vagueness is concerned with whether the Undertaking is defined with sufficient clarity. The rationale for the void for vagueness principle is that, unless a undertaking sufficiently delineates the area of risk of unlawful conduct, the Defendant will not have the fair notice of the Order, which they therefore, may be unknowingly violating. Thus, an undertaking must provide an intelligible standard according to which the judiciary must do its work and an adequate concise basis and intelligible conditions to which the defendant may adhere to, otherwise the undertaking does not sufficiently delineate an area of risk of unlawful conduct The effect is that the undertaking will be impermissibly vague contrary to the principles of fundamental justice.

58.

In R. v. Budreo, the Court considered the charter implication of vagueness and asked the

question, Is s.810.1 void for vagueness. In R. v. Budreo, the Court found that s 810.1 was not. Neverthless, in Defendant Andre Murrays case, before this Court, if the same principles are applied and question asked, was the initial undertaking given to a Police Officer, (singed, under protest and duress) void for vagueness.? The Court would conclude that yes it was and is, therefore it is of no force or effect. (iii) Is s.810.1 void for vagueness? [49] Like the overbreadth principle, the void for vagueness principle is also concerned with whether the legislature has used precise enough means to achieve its objective. But whereas overbreadth is concerned with whether the legislation is
28

targeted sufficiently narrowly, vagueness is concerned with whether the legislation is defined with sufficient clarity. The rationale for the void for vagueness principle is that, unless a law sufficiently delineates the area of risk of unlawful conduct, citizens will not have the fair notice of the law to which they are entitled, and police officers and others will have too much discretion in deciding how and when to enforce the law. Thus, a law must provide an intelligible standard according to which the judiciary must do its work and an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.15 Otherwise, the law will be impermissiblyvague contrary to the principles of fundamental justice. [50] The appellant submits that s.810.1 does not sufficiently delineate an area of risk of unlawful conduct, and thus does not provide fair substantive notice to a citizen, because it allows for restrictions on liberty on an informants fear on reasonable grounds. The appellant argues that the word fear should be contrasted with the word belief, which is used in Criminal Code provisions authorizing an arrest or a search.16 Fear, according to the appellant, can be irrational or emotional and is invariably subjective, while belief can be assessed objectively. R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 49-50 (10) VIOLATION OF S.7 AND S.9 OF THE CHARTER 59. In R. v. Budreo, the Court expressed the concept, that, in the context of a preventive

provision like s.810.1, making the issuance of an undertaking on a defendant automatic, mandatory or without the prerequisite preliminary hearing violates s.7 and 9 of the Charter and could not be justified under s.1. An automatic issuance of process, with the potential arrest of the defendant, is excessive and unwarranted. The case before this Court is a stellar example of this. Thus, An automatic issuance of process subjects the ordinary citizen to inter alia, capricious or unjustifiable detention. A residual discretion is a constitutional requirement. A recognizance order can only be made if the presiding judge (following a Hearing) is satisfied by evidence that the fear is reasonably based. The need for the informants state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion, is essential for due process. Please see the following paragraphs for reference: [51] I do not accept the appellants argument. The word fear or fears should not be considered in isolation but together with the modifying words in s.810.1(1) on reasonable grounds. Fear alone connotes a state of belief or an apprehension that a
29

future event, thought to be undesirable, may or will occur. But on reasonable grounds lends objectivity to the apprehension. In other words, the phrase fears on reasonable grounds in s.810.1(1) connotes a reasonably based sense of apprehension about a future event, or as Then J. put it, it equates to a belief, objectively established, that the individual will commit an offence.17 [52] Moreover, although an informants fear triggers an application under s.810.1, under subsection (3) a recognizance order can only be made if the presiding judge is satisfied by evidence that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in subsection (1). Although the evidence the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy. [53] Despite the need for the informants state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion, I acknowledge some imprecision in the phrase fears on reasonable grounds. But some imprecision is to be expected because s.810.1 requires a prediction about future dangerousness. So too does s.810, which uses the same phrase. The phrase is not so imprecise that it fails to delineate an area of risk or fails to provide an adequate basis for legal debate. Moreover, it is surrounded by requirements in s.810.1 the information, the summons, the hearing itself that give the defendant fair notice of the conduct sought to be prevented; and if a recognizance is ordered, the defendant will have fair notice of the conditions imposed and, thus, will know how to comply. The threshold for declaring a law void for vagueness is appropriately high. Section 810.1 does not pass this threshold. I would not give effect to this ground of appeal. [54] Subsection 810.1(2) provided that a provincial court judge who receives an information under subsection (1) shall cause the parties to appear before the provincial court judge (emphasis added). Then J. held that, in the context of a preventive provision like s.810.1, making the issuance of process on a defendant mandatory violated ss.7 and 9 of the Charter and could not be justified under s.1. In his view, an automatic issuance of process, with the potential arrest of the defendant, is excessive and unwarranted. It provides no control on obviously unfounded informations under which a person may be summonsed or arrested.18 Thus, it subjects the ordinary citizen to capricious or unjustifiable detention. In Then J.s view, and relying on the Supreme Courts decision in Baron v. Canada,19 a residual discretion is a constitutional requirement. The Crown does not take issue with Then J.s holding that shall in s.810.1(2) is unconstitutional. [55] The appellant, however, takes issue with Then J.s remedy. Having found that a discretion was a constitutional requirement, Then J. applied s.52 of the Constitution Act, 1982, and read down shall to may. The appellant submits that he should simply have declared the subsection inoperative.

30

[56] The Supreme Court refused to read down shall to may in Baron itself, and in R. v. Swain.20 Then J. distinguished Baron on the grounds that the Attorney General in that case had not asked for the remedy of reading down and that, unlike the provision challenged in Baron, s.810.1(2) was not central to the legislative regime in s.810.1. I think it fair to say, however, that when legislation expressly excludes a judicial discretion, courts have been reluctant to read one in as a constitutional remedy. Nonetheless, in my view, Then J. was correct to read down shall to may in this case. [57] In deciding on the appropriate remedy under s.52 for a Charter breach, the court must apply the measures which will best vindicate the values expressed in the Charter while refraining from intrusion into the legislative sphere beyond what is necessary. Before reading down or reading in, the court must ask whether it is safe to assume that the legislature would have enacted the legislation in its altered form.21 Here, may in s.810.1(2) appropriately vindicates Charter values. Giving the presiding judge a discretion whether to summons or arrest a defendant once an information is sworn is an important constitutional safeguard. Thus, the remedy of reading in may, although explicitly altering the legislation, will preserve statutory objectives within clear constitutional contours.22 [58] Recent legislation shows that we can safely assume Parliament would have enacted s.810.1(2) with the word may. In 1997 Parliament added two new provisions to the Criminal Code similar to s.810.1, and in each new provision used the word may instead of shall. Section 810.01 authorizes a recognizance order against a person likely to commit a criminal organization offence, and s.810.2 authorizes a recognizance order against a person likely to commit a serious personal injury offence. Sections 810.01 and 810.2 are worded similarly to s.810.1 with necessary modifications for their context. Sections 810.01(2) and s.810.2(2) are identical to s.810.1(2) except that in place of shall cause the parties to appear before the provincial court judge, in the two new provisions Parliament has used may cause the parties to appear before the provincial court judge. Because Parliament itself has enacted s.810.01 and s.810.2 to conform to Then J.s decision, we can safely assume that reading down shall to may does not unnecessarily intrude into the legislative domain. I would not give effect to this ground of appeal. R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 51-58

60.

It is noteworthy that s. 810 gives the justice, before which a Information is laid, discretion

whether to Order a Undertaking or not, upon a named Defendant, which is an important constitutional safeguard, but this discretion is only activated once a named Defendant, together with all the concerned parties are given notice of a Hearing, who respectively, for that reason, have opportunity to respond to the information which has been laid before the subject Justice.

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However, to truly be a Court of competent Jurisdiction, pursuant to s 810 all parties should be in attendance and or represented.

61.

In this matter scheduled to be before the Court, March 13, 2013, Defendant Andre

Murray has however, been subject to an undertaking for 11 months (from April 18, 2012 to March 13, 2013), despite the Court having no discretion to Order same. A process or period in which a Andre Murrays fitness, as membership in a social group, has been tested. Andre Murray has been of good behaviour towards his neighbor Neil Rodgers. This subject time period of April 18, 2012 to March 13, 2013 demonstrates conclusively, that the Neil Rodgers fears alluded to exist by Informant Constable Paul Estey were without foundation. Nevertheless, Andre Murray was placed under arrest by Constable David Beck and Detective Steven Cliff, April 18, 2012, a full 47 days before the herein above mentioned FORM 2 Information, pursuant to s 810, was sworn and laid before a Justice June 5, 2012, by Constable Paul Estey. In these subject matters jurisdiction, is found by a Justice only following an Information having been laid before the justice, furthermore, and not until pursuant to s 810, the relative parties are caused be in attendance before the subject Justice. The prerequisite, Preliminary s 810 Information Hearing is an important constitutional safeguard, without the s 810 Information Hearing, Andre Murrays Right to due process, and Charter guarantees are violated, rendering a Undertaking a nullity.

62.

In the context of a preventive provision like Criminal Code: s.810, making the

issuance of process on Defendant Andre Murray mandatory or automatic (without due process) consequentially violates s.7 and 9 of the Charter and cannot be justified under s.1of the Charter. An automatic issuance of process, with the potential arrest of the defendant, is excessive and unwarranted. In Defendant Andre Murrays case, there was no FORM 2 Information, sworn, before Andre Murray was arrested April 18, 2012, and thereafter forced under protest and duress to sign a Undertaking to a Police Officer (or go to Jail). Automatic enforcement/subjection of an Undertaking, provides no control on (as in this case) obviously unfounded FORM 2 Informations, under which a Defendant may be summonsed, or arrested, consequently, as a result of the foregoing, Andre Murray has been subjected to capricious, or unjustifiable arrest, detention and loss of personal freedom. The Supreme Courts decision in Baron v. Canada, paragraph 19 made this clear a residual discretion is a constitutional requirement. and its
32

exercise by the Court, pursuant to a s. 810 Information hearing integral to due process requirements. An Undertaking order can only be made if the presiding judge (following a s.810 Information hearing ) is satisfied by evidence that the fear is reasonably based. The need for the informants state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion is essential for due process. Andre Murray has suffered loss of his Charter protected liberty and freedom for the past 11 months, as a result of lack in due process.

(11) ACTUAL CONDUCT OF THE POLICE, CROWN AND COURT 63. In Defendant Andre Murrays case, there was no Hearing scheduled or conducted as

required by s 810 for a Court for assessment and hearing of evidence which might warrant a undertaking. No Summons, was issued to Defendant Andre Murray. The Defendant was provided no chance to answer or respond, to the accusations and provided no opportunity to provide evidence in his defence.

64.

Defendant Andre Murray has a right to a speedy trial, and holding a s 810 hearing, 11

months after the undertaking is forced on the Defendant, is not in accordance of due process and the right to speedy trial as expressed in the Charter. A person is supposed to be presumed innocent until proven guilty, but in the Defendants case, he has been under prohibition as if just cause of his guilt had been proven, when the opposite is true.

65.

A Court in deciding whether to impose a undertaking on Defendant Andre Murray, must

balance the two competing interests in determining whether to place Defendant Andre Murray on a Undertaking. That is, the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protective intervention in appropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject, but this caution must be tempered with a view to the protection provided to the applicant where grounds have demonstrated the need for the recognizance. In this case Defendant Andre Murrays interests have been completely ignored, in favour of unfounded, irrational, vexatious allegations, by Police Officer Constable Paul Estey (who has no first hand involvement) on behalf Informant Neil Rodgers.
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66.

When we review the Summary of Principles [(1)-(8) below] required in consideration of

forcing an undertaking upon a Defendant Andre Murray, only alleged to have done some act the Applicant Neil Rodgers subjectively labels as causing the necessity for an undertaking; much is revealed:

67.

(1) Section 810 is preventive in nature potentially protecting Applicant Neil Rodgers and

the Applicants interest, in appropriate circumstances from future harm. This protection provided to Applicant Neil Rodgers, can only be acted upon, where grounds have demonstrated the need for the undertaking. To force a s810 Undertaking on someone, the threat of future harm must be more than mere speculation, and requires a proven factual foundation which raises probable grounds to suspect future misbehaviour.

68.

(2) Section 810 , when properly applied, restrains the liberty of Defendant Andre Murray

to live his or her life free from restraint of that liberty. This mean, section 810 can only be properly applied, through due process, by a Judge pursuant to a s.810 application hearing,.

69.

(3) The Judge at a s.810 application hearing, must balance the two competing interests in

determining whether to place the Defendant Andre Murray on an Undertaking. That is, the Judge must balance the right of the Defendant Andre Murray to privacy or to be left alone against the right of Applicant Neil Rodgers to a protective intervention in appropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject Andre Murray, but this caution must be tempered with a view to the protection provided to Applicant Neil Rodgers where grounds have demonstrated the need for the Undertaking. Defendant Andre Murray was barred from having a s.810 application hearing, to be heard on the matter, violating the most basic natural right to be heard, established common law, and violating Charter protections, that anyone in Canada should be entitled to and expect.

70.

(4) Applicant Neil Rodgers must actually fear that Defendant Andre Murray will cause

personal injury to the Neil Rodgers, the Neil Rodgerss spouse, Neil Rodgerss children, or will
34

cause damage to Neil Rodgerss property. In this case video evidence provided in support of the Defendant Andre Murrays innocence, (Neil Rodgers repeatedly, without fear attacked Process Server Andre Murray without cause or provocation), this is further evidence which proves that the applicant has no real fear of the Defendant Andre Murray. The evidence which will be produced by the requested investigations (the results of Defendant Andre Murrays February 26, 2012, FORM 1 NOTICE OF APPLICATION), will reveal that Neil Rodgers and Trina Rodgers have a demonstrable history of harassment, utilizing members of FREDERICTON POLICE FORCE as their personal, on call assault team, to cause harm and harass Defendant Andre Murray.

71.

(5) The Judge must find (through a s 810 application hearing) that the Applicant Neil

Rodgers fears are reasonable, i.e., that an objective person armed with the same knowledge as the Applicant Neil Rodgers would agree that the Applicants fears are reasonable. The reasonable fear must be triggered by some action of Defendant Andre Murray. The interaction the Applicant Neil Rodgers is basing the application on is in response to Defendant Andre Murray Serving Civil Court Document upon Applicant, Neil Rodgers wife, April 10 2012. The video evidence tendered to the Crown, by Shane Henry proves that Defendant Andre Murray was peacefully serving Court Documents upon Trina Rodgers (a named Defendant/Intended Respondent in that matter), when Neil Rodgers in fact attacked Process Server Andre Murray repeatedly. It is unreasonable for Neil Rodgers to repeatedly fearlessly attack Defendant Andre Murray without provocation, then claim to be in fear of the same man. That is an irrational claim.

72.

(6) Evidence of Defendant Andre Murrays previous misconduct is admissible to

determine the basis for the beliefs held by Applicant Neil Rodgers. This evidence can be used by the Judge in determining whether Applicant Neil Rodgers fears are reasonable. In this case FREDERICTON POLICE FORCE provided the criminal record on Defendant Andre Murray, which revealed no previous criminal conviction whatsoever, evidence further demonstrating that the Applicant Neil Rodgers fears are unreasonable and there is no demonstrable history of violence to justify a s.810 Undertaking in this matter.

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73.

(7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied

from the evidence the likelihood of future harm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood. In this case there is no evidence justifying a s.810 Application. There is strong objective substantive material audio/video evidence and eyewitness testimony against the s.810 Application. Defendant Andre Murray was unreasonably deprived of a hearing in which to respond to these unfounded vexatious allegations, remember no evidence was ever tendered to a Judge to justify an Undertaking be imposed upon Andre Murray.

74.

(8) The onus of persuasion is upon the Applicant Neil Rodgers, who must satisfy the

Judge on the balance of probabilities of the grounds for the issuance of an Undertaking. Again, in this case Defendant Andre Murray was deprived of a hearing in which to respond to these unfounded vexatious allegations and no evidence was ever tendered to a Judge to justify a Undertaking. The onus of persuasion is upon Applicant Neil Rodgers, in this case Defendant Andre Murray has been subject to an unjustified and unwarranted undertaking for 11 months, without a proper hearing, and no evidence to support same, completely violating Defendant Andre Murrays Charter protected right to privacy or to be left alone;

75.

In the context of a preventive provision like Criminal Code: s.810, making the

issuance of process on a defendant mandatory or automatic (without due process) violates ss.7 and 9 of the Charter and cannot be justified under s.1of the Charter. An automatic issuance of process, with the potential arrest of the defendant, is excessive and unwarranted. It provides no control on obviously unfounded informations, under which a person may be summonsed, or arrested. Thus, it subjects the ordinary citizen to capricious, or unjustifiable detention. Relying on the Supreme Courts decision in Baron v. Canada,19 a residual discretion is a constitutional requirement. and its exercise by the Court, pursuant to a s. 810 application hearing integral to due process requirements. A Undertaking Order can only be made if the presiding judge (following a s.810 application hearing ) is satisfied by evidence that the fear is reasonably based. The need for the informants state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion is essential for due process.

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76.

Without following proper procedure, the defendant has been subjected to Section

1(a),1(b), 2(a), 2e, 2(f), 7 and 9 Charter violations. Please remember The Charter should protect the individuals liberty by guaranteeing, the right not to be deprived thereof, except by due process of law. A defendant has the right to equality before the law and the protection of the law and should not be subject to arbitrary arrest, detention, or imprisonment. The Charter sufficiently guarantees that a person is not deprived of the right to a fair hearing in accordance with the principles of fundamental justice, for the determination of his rights and obligations; furthermore, shall not deprive a person charged with a criminal offence of the right, to be presumed innocent until proved guilty, according to law, in a fair, and public hearing, by an independent and impartial tribunal, and or the right not to be deprived of reasonable bail, without just cause. The defendant has been: arrested twice; spent two days in jail, has been restricted by an unwarranted undertaking for 11 months, (used by Members of FREDERICTON POLICE FORCE to vindictively add more charges) without just cause. In all cases, regarding these herein mentioned matters, Defendant Andre Murrays rights have been trampled and injustice has overcome the justice system.

77.

The admission of the evidence following a biased Investigation would violate the liberty

interests of Defendant Andre Murray, in a manner, that is not in accordance with the principles of fundamental justice under s. 7, or would violate the guarantee of a fair trial under s. 11(d) of the Charter. The evidence was unfairly obtained or that its admission would be unfair, because it was obtained in a manner that would in this country violate a Charter guarantee. As in other cases involving broad concepts like fairness and principles of fundamental justice, one is not engaged in absolute or immutable requirements; these concepts vary with the context in which they are invoked. We must be mindful that a constitutional rule may be adopted to ensure that our system of obtaining evidence is so devised, as to ensure that a guaranteed right is respected, as a matter of course.

78.

Although protected expressly in s.11(d), the presumption of innocence is referable and

integral to the general protection of life, liberty and security of the person contained in s.7 of the
37

Charter. The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct. The right to be presumed innocent requires that s.11(d) have, at a minimum, the following content: (i) an individual must be proven guilty beyond a reasonable doubt; (ii) it is the State which must bear the burden of proof; and (iii) criminal prosecutions must be carried out in accordance with lawful procedures and fairness: R. v. Oakes, [1986] 1 S.C.R. 103.

79.

Regarding restraint of Liberty in application of Section 810 of the criminal Code. It is

most important to note that a Judge hearing an application must attempt to balance two competing interests: (1) the right of the defendant to privacy or to be left alone; (2) the right of informant to protective intervention in appropriate circumstances. The prerequisites of the section provide the balance needed by setting out subjective and objective grounds that must be satisfied prior to the issuance of the Undertaking sought. Without the prerequisite hearing to determine if the Undertaking is justified, how can it be said that a balance was reached in due process? The justice who conducts the trial must be satisfied, that the subjective and objective elements have been proven is evidence. Unless both elements have been proven the justice has no jurisdiction to make the s.810 Undertaking Order.

80.

In the context of a preventive provision like Criminal Code: s.810, making the

issuance of process on Defendant Andre Murray mandatory or automatic (without due process) violates ss.7 and 9 of the Charter and cannot be justified under s.1of the Charter. An automatic issuance of process, with potential arrest of the defendant as an outcome, is excessive and unwarranted. In the case of Defendant Andre Murray, there was no FORM 2 Information, sworn, before Andre Murray was arrested April 18, 2012 and thereafter, forced under protest and duress to sign a Undertaking to a Police Officer (or go to Jail). Automatic enforcement/subjection of an Undertaking, provides no control on, as in this case, evidently non-existent INFORMATION(s), under which, pursuant to s 810 of the Criminal Code, a judge shall cause all parties to appear, nevertheless Andre Murray was arrested, thus Andre Murray has been subjected to capricious, or unjustifiable arrest, detention and loss of personal freedom. The Supreme Courts decision in Baron v. Canada, paragraph 19 made this clear a residual discretion is a constitutional requirement. and its exercise by the Court, pursuant to a s. 810 is integral to due process
38

requirements. Therefore, Undertaking orders can only be made if the presiding judge (following a s.810 application hearing) is satisfied by evidence that the fear is reasonably based, as the case may be. The need for the informants state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion is essential for due process. Therefore, Andre Murray has been stripped of his Charter protected liberty and freedom for 11 months, consequence of a lack of due process.

81.

Regarding restraint of Liberty, in application of Section 810 of the criminal Code. It is

most important to note that a Judge hearing a s.810 application must attempt to balance two competing interests: (1) the right of Defendant Andre Murray to privacy or to be left alone; (2) the right of informant Neil William Rodgers to protective intervention in appropriate circumstances.

82.

The prerequisites of section 810 provide needed balance, by setting out subjective and

objective grounds, that, which must be satisfied (to the Court on balance of probabilities) prior to the issuance of any Undertaking sought. Without prerequisite hearings, to determine if Undertakings are justified, it cannot be said that a balance was reached in due process. The justice who presides over the section 810 Hearing must be satisfied, (based on a balance of probabilities), that the subjective and objective elements are bona fide. Unless both elements have been proven the justice has no jurisdiction to make the order.

(12) CONCLUSION

83.

New Brunswick Provincial Court Rules are intended to provide for the just determination

of every criminal and quasi-criminal proceeding, and shall be liberally construed to secure simplicity and uniformity in procedure, fairness in administration, the elimination of unjustifiable expense and the avoidance of delay. Where a Defendant such as Andre Murray is not represented by counsel, anything that these rules require or permit counsel to do shall not be mandatory for the unrepresented Defendant. A failure to comply with New Brunswick Provincial Court Rules is an irregularity and does not render a proceeding or a step, document or order in a
39

proceeding a nullity, therefore the court may grant all necessary amendments or other relief in accordance with sub-rule 2.02, on such terms as are just, to secure the just determination of the real matters in dispute, and or, where it is necessary in the interests of justice, the Court may set aside the proceeding or a step, document or order in the proceeding, in whole or in part. Furthermore, The Court may, in the interests of justice, dispense with compliance with any rule, at any time, or substitute a process, that would produce an equally just result, pursuant to New Brunswick Provincial Court Rules 1.01 (1), 1.01 (2), 2.01(a), 2.01(b) and 2.02.

84.

Without the judiciary following proper procedure, Defendant Andre Murray has been

subject to Section 1(a),1(b), 2(a), 2e, 2(f), 7 and 9 Charter violations. Remember the Charter should protect the individuals liberty by guaranteeing the right not to be deprived thereof, except by due process of law. Defendant Andre Murray has the right to equality, before the law, and the protection of the law, and should not be subject to arbitrary arrest, detention, or imprisonment, as has been his experience regarding these herein subject matters. The Charter should guarantee that a person is not deprived of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; moreover, , not deprive a person, charged with a criminal offence, of the right to be presumed innocent until proved guilty, according to law, in a fair and public hearing by an independent and impartial tribunal, and or, as the case may require, the right not to be deprived of reasonable bail without just cause. Defendant Andre Murray has been arrested twice, spent two days in jail, and has been restricted by an unwarranted and unjustified undertaking for 11 months, manipulated by members of FREDERICTON POLICE FORCE to vindictively add more charges, without establishing just cause. In all cases Defendant Andre Murrays rights have been trampled and injustice has overcome the justice system.

85.

This Honorable Court must realize that the herein mentioned subject Information laid by

HEARSAY Informant Constable Paul Estey, is impugned. Informant Constable Paul Estey appears to responding to witness statements collected from Neil Rodgers and Trina Rodgers, however, there is no disclosure confirming that HEARSAY Informant Constable Paul Estey ever professionally met with Neil Rodgers and or Trina Rodgers on these subject matters. How then is it that Informant Constable Paul Estey has laid an Information before a Justice, unless it is
40

entirely based on HEARSAY. On this matter of Informant Constable Paul Estey HEARSAY Defendant Andre Murray can only point to the subject discrepancy. However it is a fact as established by the Affidavit of Neil Rodgers that he is a Police Informant who has and continues to work closely with members of FREDERICTON POLICE FORCE, therefore, it stands to reason, that HEARSAY Informant Constable Paul Estey has come forward, in support of ONE OF THIERS.

86.

Furthermore, on this matter of the whimsical witness statements provided by Neil

Rodgers, Trina Rodgers and Thomas Rodgers and including Valerie Atchison are simply a disguised design to further manipulate the Justice system, for their own nefarious ends, to be used to further victimize Andre Murray.

87.

Nevertheless, Defendant Andre Murray verily believes the reason for this manifestation

of the herein mentioned subject Information laid by HEARSAY Informant Constable Paul Estey, April 18, 2012, furthermore, together with the scheduled March 13, 2012, section 810 Information Hearing appears to be the newest expression of Neil Rodgers and Trina Rodgers, inter alia, in a concerted effort to assist Neil Rodgers and Trina Rodgers in their maneuvering to avoid Process Service of Court documents, wherein, Neil Rodgers and Trina Rodgers are named as defendants. Please note: Almost all references and or witness statements refer to and or are essentially based on interaction between Process Server(s) Andre Murray et al., as they attempt process service, upon, Neil Rodgers and or Trina Rodgers, with regards to Court Document Process Service. Condoning these herein above mentioned contrived response behaviours behaviours and or conduct would be process service avoidance , for these reasons, would establish a dangerous president, to encourage anyone to evade Court Document Process Service by entanglement of members of FREDERICTON POLICE FORCE consequently, therefore, charging the unsuspecting innocent process servers with unfounded unjustified harassment charges and or as in this case of Police Informants, Neil and Trina Rodgers, have the herein mentioned subject Information laid by HEARSAY Informant Constable Paul Estey to obtain an Undertaking thereby restricting the rights, of Andre Murray.

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