Académique Documents
Professionnel Documents
Culture Documents
___________
Court of Appeal Registry Vancouver
Supreme Court File №.S004040
Supreme Court Registry Vancouver
II
STATEMENT OF FACTS...............................................................................................17
"10. That my persistent emotional trauma and unstable health is as a direct result of
what I do verily believe to be the utterly unreasonable and abusive conduct of the
Defendant and the unlawful and often cruel and inhuman acts that it continues to
inflict on myself and my family.
"11. As a result of the aforestated, I am unable to attend the July 13th 2001 hearing
fixed by the Defendant before this Honorable Court. My son’s need for constant
medical supervision and care takes precedent over the need of the Defendant who
persists in its wrongful and abusive acts and threats against my husband, my son and
I.
"12. That my son and my emotional and physical health as aforestated does further
preclude my personally attending any hearing in the absence of my husband and the
facts and evidence collected by him and that he is able to present to this Honorable
Court. The Plaintiff Nicholas Kapoustin and I are unable to stand-alone and be
subjected to any further defamation, slander and other falsehoods as intentionally
manufactured by the Defendant to deliberately cause us further personal injury and
loss.
The words of this Applicant's wife and father, as those of Gwynne, act only to
amplify to this Honourable Court of Appeal that justice and humanity
remain ideals imperfectly practised in many parts of the world, even in
Canada, and the United States. As it can be seen from Gwynne, despite all
the constitutional protections offered, the ideals of humanity, equality and
justice still fail to be fully practised, even in the two most advanced of
democracies of the free world, what then can be said for the agencies of a
former totalitarian state?
The conditions this Applicant' continues to suffer after 6 years, without benefit
of final sentence, in a prison of the Defendant/Respondent Bulgaria, have
improved, yet still remain far harsher than those considered by the Appeal
Court in Gwynne supra.
The plaintiffs' law suit, the present applications, and the intended appeal, each
prove a test of physical, and mental, stamina of the family of the Applicant
who continue to suffer from the post traumatic stress of the first years of
his beatings and torture as reported in the Bulgarian media. As Canadians,
the plaintiffs seek to lawfully prevail over the defendant Bulgaria's
continued interference with this Applicant, and those fundamental rights
guaranteed to him under international and Canadian law.
And at §29:
"If this matter revealed no other circumstance than service of the unexpired portion
of an admittedly harsh sentence, but one imposed by law, and the allegation of
procedural unfairness on the part of the Minister, I would not be prepared to
conclude he had exercised his discretion in a manner which would permit this court
to interfere on either Charter or non- Charter grounds."
Again at §30:
"But the matter does not stop there. Mr. Gwynne's affidavit of his incarceration in
Alabama (annexed to my colleague's reasons for judgment) and the supporting
materials reveal conditions that were degrading, dangerous and apparently
endemic within the prison system of that state. It is the cumulative effect of the
combination of the harshness of the sentence and the apparent conditions under
which it is to be served, including the prospects of parole which may have been
diminished almost to the point of irrelevance by virtue of his escape, that must be
weighed in terms of the Charter requirements."
As in Gwynne, the court here is asked to consider the aggravating affects seen
in the "supporting materials [that] reveal conditions that were degrading,
dangerous and apparently endemic within the prison system” of a foreign
state. The present case concerns those prisons under the control of the
Respondent/Defendant government of Bulgaria, and the "cumulative effect
of the combination of the harshness…and the apparent conditions under
which" the Applicant is placed by the Defendant Bulgaria. The court asked
by the Applicant to closely examine the deleterious affects such conditions
have on the time needed in bringing the present applications, and the
subsequent quality of the actual appeal itself.
An ex parte order extending time, by 90 days, for all parties to affect any acts required
under the Rules of Court.
An ex parte order to require each party of record comply with Rule 13(12)(c), Rules of
Court and the Hague Convention of the Service Abroad of Judicial and Extra Judicial
Documents in Civil or Commercial Matters ("Hague Convention"), at once
respecting and observing the declarations made to the Hague Convention by the
Republic of Bulgaria. This to include officials or agencies of the Respondent
responsible for delivering documents to this Applicant.
An order declaring the Speaker indigent, the court asked to provide him the appropriate
relief from court fees.
On January 21st 2001 the Speaker's applications were again returned by the
trial court [SCBC Registrar]. The Registrar requiring, inter alia, that the
applications made be spoken to before a Master or Chambers Judge by a
legal representative of the Speaker and payment of the $62.00 court fee
per application. This was asked of the Speaker, as petitioner, by the trial
court, although being made clear from the petitions themselves and
affidavits, that the Speaker could not appear and had no funds to pay the
fees.
By February 8th, 2001 only one appearance had been filed with the provincial
court, that of the Respondent.
On February 24th, 2001 the Speaker learned of the Respondent's having
retained its present Vancouver legal counsel and filing an appearance.
No other defendant has since filed an appearance or offered a defence before
the trial court.
For the third time, on or about April 2001, the Speaker again amended and re-
filed his petitions to the trial court [SCBC Registrar], having asked his
father to pay the $62 dollar fee to at least have the Speaker's indigence
application reviewed and judicially ruled upon. All petitions identified the
circumstances of the petitioner’s incarceration and poverty, requesting
under such circumstances that the Duty Master hear the Speaker pleadings
only in writing and ex parte of the Respondent.
To accept the 4 Volumes of the factum, and the affidavits and other exhibits placed into
evidence by the plaintiff in response to the defendant Bulgaria's simpliciter and
forum non conveniens applications.
To first hear the plaintiffs' cross applications to set aside the defendant Bulgaria's ex juris
service of documents on plaintiffs in Bulgaria. Plaintiffs relying on Rules 13 and 14,
and the Hague Convention as previously cited.
To order joinder of three SCBC Vancouver Registry law suits, C974299, S004040 and
S005440 where the defendant Bulgaria is named as defendant.
To grant leave to the plaintiffs to amend their claims, adding the Ministry of the Attorney
General of British Columbia as a defendant, plaintiffs relying on the Crown Liability
and Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21.
After inspecting the three volumes of the Speaker's materials the Master
adjourned the matter generally and advised counsel for the defendant
Bulgaria to fix a full day to hear its applications.
The Speaker regularly enquires of the defendant Bulgaria and its legal
counsel. Such written enquiry includes a request to the said defendant in
co-operating to fix a date and prepare a joint filing of materials to be
placed before a Master at the next hearing.
II.2.5Malicious Prosecution
The facts of the case strongly suggest to the plaintiffs that the intended
purpose of the Crown's July 7th 1995 letter and its unverified or untrue
representations to the defendant Bulgaria and the public are formulated not
to display the truth but only to provide a cause to initiate criminal
proceedings against the Speaker in Bulgaria.
It was the Crown that acted in May and July of 1995 to initiate criminal
proceeding against the Speaker in Bulgaria. The July letter of the Crown
acted as an incitement to the defendant Bulgaria's interior police to seek
the indictment and prosecution of a Canadian citizen in Bulgaria.
The facts of the case prove the Crown letter to be directly responsible for the
July 17th 1995 order of the defendant Bulgaria's interior police to the
national police and prosecutor, to deprive a Canadian citizen of his liberty.
The National Investigative Service (national police) acted only on the
Crown request.
Neither the Crown nor the defendant Bulgaria engaged any judicial
supervision or other due process of law before a court of competent
jurisdiction.
The Crown deliberately, recklessly or negligently failed to adhere to Canadian
law in engaging itself in the bringing of criminal charges against a
Canadian citizen in Bulgaria on what was known, or should have been
known, at the time to servants of the Crown to be untrue and maliciously
false representations.
The facts of the case show that the Crown failed to observe or otherwise be
bound by its constitutional guarantees to a person accused of a crime (this
Speaker) by Canadian authorities.
"The official statistics on shootings, deaths in custody and complaints of ill treatment
are not made public."
The experiences of this Speaker during his solitary confinement at the hands
of the defendant Bulgaria went unreported. His complaints and attempts at
communicating such complaints severely punished. The AI (Amnesty
International) Report for 1996 goes on to say "Lawyers, non-government
organisations monitoring human rights in Bulgaria as well we press
frequently report incidents of torture and ill-treatment." And:
"The deteriorating human rights situation is further compounded by a pattern of
impunity of law enforcement officers responsible for human rights violations.
International standards require prompt, thorough and impartial investigations into
reports of human rights violations by law enforcement officers. However, the
information on such investigations is seldom made public…..Failure to bring to
justice those responsible for human rights violations is in itself a violation of
international obligations. Furthermore in order to prevent such human rights
violations from reoccurring, the Bulgarian authorities need to clearly indicate that
such conduct is totally unacceptable."
The significance of the foresaid data to the proceedings before the trial court
can be found in the exchanges of data and requests that occurred during
operative calls and meetings of Ministry of Interior agents with Crown
servants.
Faxes were exchanged and reports made by the Crown to agents of the
Ministry of Interior, including the foresaid Captain Savov, and his
associates, in May of 1995. The Crown inevitably assisting them in their
efforts to cause pecuniary and non-pecuniary injury to the plaintiffs, as
well as to extort funds all or part of the funds identified by the Crown to
Captain Savov's Department of Internal Affairs Unit for Combating
Organised Crime.
The situation was summarised by AI as "police officers have traditionally
placed the protection of state interests above universally recognised rights
of individuals" having lead to AI's conclusion that the Bulgarian judicial
system routinely practised a policy that failed to safeguard fundamental
human rights.
AI reported, as this Speaker has documented with his own experiences, that
the defendant Bulgaria regularly refuses to provide proof on whether
complaints against its officials are processed, or to make public those
documents necessary to prove such complaints against the defendant
Bulgaria before foreign courts or international tribunals. Such conduct has
been and continues to be inconsistent with the UN and European
obligations of the Republic of Bulgaria.
AI further reported that year, as this Speaker has insisted to the trial court, that
the defendant Bulgaria does regularly breach the rights of victims of abuse
of official powers (police or judicial). There exist rights, but no effective
remedies to secure those rights in Bulgaria; the international law principle
of a legal remedy against state agencies, instrumentalities or officials that
abuse their powers remains virtually non-existent before the Bulgarian
courts.
II.3.1.2 1997
In November of 1997, Mr. Peter Stoyanov was elected to President of the
Republic of Bulgaria. Stoyanov is a former attorney and business associate
of this Speaker.
"Most internal security services are responsible to the Ministry of Interior, including
the Central Service for Combating Organised Crime, the National Security Service
(civilian intelligence), internal security troops, border guards, and special forces.
Although government control over police is improving, it is still not sufficient to
ensure full accountability. The Special Investigative Service (SIS), reduced in size by
a recent reorganisation, is a judicial branch agency and therefore not under direct
government control. Some members of the police committed serious human rights
violations"
The US State Department indicated that, as in the prior years, the security
forces continued to beat suspects and prison inmates. The Speaker makes
reference to such fact as it is relevant to his past treatment and the ever
present threats under which he exists.
The court is asked to recall the facts surrounding the Crown's request to have
the Speaker and the plaintiffs company prosecuted by Bulgarian
authorities. It is recalled that the Crown request was in order to aid the
Attorney General of the province to obtain information from Bulgaria for
a criminal investigation in British Columbia [see: "Facts of Case:
Malicious Prosecution " - July 7 1995 Crown Request].
Of some significance to the trial court and the present enquiry are the
independent reports that the "Government exerts an unduly large influence
on the media through official channels" and that "Journalists frequently
colour their reports to conform to the views of the political parties or
economic groups that own their newspapers." This report is consistent
with plaintiffs’ claims against the Respondent that sound in the tort of
defamation.
"The UN Committee against Torture met in April and May to consider Bulgaria's
second periodic report. The committee found that Bulgarian law lacked a definition
of torture and failed to ensure that all acts of torture are offences under criminal law.
The committee expressed concern about continuing reports of ill-treatment by
public officials, particularly the police, especially of ethnic minorities. The
committee also expressed concern about the deficiencies in the system of
investigation of alleged cases of torture and the failure to bring those allegations
before a judge or other appropriate judicial authority."
II.3.2Definitions of Torture
It may be reasonable here to introduce to the court the internationally accepted
interpretation given to the terms "cruel, inhuman or degrading treatment
or punishment".
· "Article I
"1. For the purposes of this Convention, the term "torture" means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions."
See for further reference as well: The Declaration on the Protection of All
Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. res. 3452 (XXX), annex, 30
U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975) as follows:
· "Article 1
"1. For the purpose of this Declaration, torture means any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted by or at the
instigation of a public official on a person for such purposes as obtaining from him
or a third person information or confession, punishing him for an act he has
committed or is suspected of having committed, or intimidating him or other
persons. It does not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions to the extent consistent with the Standard Minimum
Rules for the Treatment of Prisoners.
"Article 2
4 Relevance
"Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property [indigence], birth or other
status [imprisonment].
"Article 6
"Everyone has the right to recognition everywhere as a person before the law.
"Article 7
"All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.
"Article 10
"No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone
has the right to the protection of the law against such interference or attacks.
"Article 28
"Everyone is entitled to a social and international order in which the [civil] rights and
freedoms set forth in this Declaration can be fully realized.
"Article 29
"1. …..
"2. In the exercise of his [civil] rights and freedoms, everyone shall be subject only
to such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.
"3……
"Article 2
"1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property [indigence], birth or other status [imprisonment].
"2. Where not already provided for by existing legislative or other measures, each
State Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such legislative or other measures as may be necessary to give
effect to the rights recognized in the present Covenant.
"(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective [civil] remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
"(c) To ensure that the competent [judicial] authorities shall enforce such remedies
when granted.
"Article 3
"The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in the
present Covenant.
"Article 10
"1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
"Article 14
"1. All persons shall be equal before the [civil and criminal] courts and tribunals. In
the determination of any criminal charge against him, or of his [civil] rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by
a competent, independent and impartial tribunal established by law…….[sic]"
"Article 16
"Everyone shall have the right to recognition everywhere as a person before the law.
"Article 26
"All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property [indigence], birth or other status
[imprisonment].
"Guiding principles
"57.
"Imprisonment and other measures which result in cutting off an offender from the
outside world are afflictive by the very fact of taking from the person the right of
self-determination by depriving him of his liberty. Therefore the prison system shall
not, except as incidental to justifiable segregation or the maintenance of discipline,
aggravate the suffering inherent in such a situation.
"60.
"(1) The regime of the institution should seek to minimize any differences
between prison life and life at liberty which tend to lessen the responsibility of the
prisoners or the respect due to their dignity as human beings.
"61.
"The treatment of prisoners should emphasize not their exclusion from the
community, but their continuing part in it [i.e. appearing before courts of law].
Community agencies should, therefore, be enlisted wherever possible to assist the
staff of the institution in the task of social rehabilitation of the prisoners. There
should be in connection with every institution social workers charged with the duty
of maintaining and improving all desirable relations of a prisoner with his family and
with valuable social agencies. Steps should be taken to safeguard, to the maximum
extent compatible with the law and the sentence, the rights relating to civil interests,
social security rights and other social benefits of prisoners.
"These principles apply for the protection of all persons under any form of detention
or imprisonment.
"Principle 3
"There shall be no restriction upon or derogation from any of the human [civil]
rights of persons under any form of detention or imprisonment recognized or
existing in any State pursuant to law, conventions, regulations or custom on the
pretext that this Body of Principles does not recognize such rights or that it
recognizes them to a lesser extent.
Principle 5
"1. These principles shall be applied to all persons within the territory of any
given State, without distinction of any kind, such as race, colour, sex, language,
religion or religious belief, political or other opinion, national, ethnic or social origin,
property [indigence], birth or other status [imprisonment].
"Principle 36
"1……
"2. The arrest or detention of such a person pending investigation and trial shall be
carried out only for the purposes of the administration of justice on grounds and
under conditions and procedures specified by law. The imposition of restrictions
upon such a person which are not strictly required for the purpose of the
detention or to prevent hindrance to the process of investigation or the
administration of justice, or for the maintenance of security and good order in
the place of detention shall be forbidden.
"PART I
BILL OF RIGHTS
"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) ….
"(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) ……;
"(c)……..;
"(d) …..;
"(e) deprive a person of the right to a fair [civil] hearing in accordance with the
principles of fundamental justice for the determination of his rights and obligations;
"3.1 For greater certainty, a discriminatory practice includes a practice based on one
or more prohibited grounds of discrimination or on the effect of a combination of
prohibited grounds.
"Discriminatory Practices
"(a) to deny, or to deny access to, any such good, service, facility or
accommodation to any individual, or
1976-77, c. 33, s. 5.
"disability" means any previous or existing mental or physical disability and includes
disfigurement and previous or existing dependence on alcohol or a drug.
PART III
"39. For the purposes of this Part, a "discriminatory practice" means any practice that
is a discriminatory practice within the meaning of sections 5 to 14.1.
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
"15. (1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances.
"26. The guarantee in this Charter of certain rights and freedoms shall not be
construed as denying the existence of any other rights or freedoms that exist in
Canada.
"a) to the Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and
Northwest Territories; and
"b) to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.
"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a) or (b),
10 (1) (a), 11, 13 (1) (a) or (2), 14 (a) or (b) or 43;
"Purposes
"(a) to foster a society in British Columbia in which there are no impediments to full
and free participation in the economic, social, political and cultural life of British
Columbia;
"(b) to promote a climate of understanding and mutual respect where all are equal in
dignity and rights;
"(e) to provide a means of redress for those persons who are discriminated against
contrary to this Code;
Code prevails
"4 If there is a conflict between this Code and any other enactment, this Code
prevails.
"8 (1) A person must not, without a bona fide and reasonable justification,
Principles
"7.1 The principles that shall guide designated authorities in achieving the
purpose of a temporary absence program are
"(a) that the least restrictive decision that is consistent with the protection of society
and the prisoner's rehabilitation and reintegration into the community be made;
"(b) that all available information that is relevant to the case be taken into account;
"(c) that prisoners be provided with relevant information, reasons for decisions and
access to the review of decisions in order to ensure a fair and understandable
temporary absence process; and
"(d) that the designated authority provide for the timely exchange of relevant
information with other participants in the criminal justice system and make
information about temporary absence programs and policies available to prisoners,
victims and the public.
1997, c. 2, s. 2.
"7.3 (1) A designated authority may authorize a prisoner to be absent from prison
with or without escort, subject to any conditions that the authority considers
appropriate, where it is necessary or desirable in the authority's opinion
"(a)…;
"(c) for any other purpose, consistent with the purpose and principles set out in
section 7 and 7.1, that may be established by the laws of the province respecting the
authorization of temporary absences of prisoners who have contravened provincial
law.
"4. The principles that shall guide the Service in achieving the purpose referred to in
section 3 are
"(a)…;
"(b)…;
"(d) that the Service use the least restrictive measures consistent with the protection
of the public, staff members and offenders;
"(e) that offenders retain the rights and privileges of all members of society, except
those rights and privileges that are necessarily removed or restricted as a
consequence of the sentence;
"(a) an inmate will not, by reoffending, present an undue risk to society during an
absence authorized under this section,
"(b) it is desirable for the inmate to be absent from penitentiary, escorted by a staff
member or other person authorized by the institutional head, for medical,
administrative, community service, family contact, personal development for
rehabilitative purposes, or compassionate reasons, including parental responsibilities,
"(c) the inmate's behaviour while under sentence does not preclude authorizing the
absence, and
"(d) a structured plan for the absence has been prepared, the absence may, subject to
section 746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act
and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, be
authorized by the institutional head
"15 (1) The minister may authorize an inmate to be absent from a correctional centre
with or without escort, subject to any conditions that the minister considers
appropriate, if in the minister's opinion the absence is necessary or desirable
"(4) Any international instruments which have been ratified by the constitutionally
established procedure, promulgated and having come into force with respect to the
Republic of Bulgaria, shall be considered part of the domestic legislation of the
country. They shall supersede any domestic legislation stipulating otherwise.
"Article 57
"The Constitution
"Article 31
"(5) Prisoners shall be kept in conditions conducive to the exercise of those of their
fundamental rights which are not restricted by virtue of their sentence.
"Article 23. Incarcerated persons may avail themselves of (enjoy) all rights
established by law with the exception of the following:
"b) The rights, which have been denied to them or have been explicitly restricted by
a law or another enactment and
"c) Rights, the exercising of which is incompatible with the execution of the
punishment.
The foregoing Art. 2(c) having made all limitations lawful if they are
"incompatible with the execution of the punishment" leaves open to very
broad interpretation what fundamental rights may be administratively
denied solely due to a person having been deprived of his liberty in
Bulgaria. The only limiting provision appears to be the cited Art. 5§4 of
the Bulgarian Constitution, it having created a positive obligation for State
agencies to observe the international agreements of Bulgaria as
incorporated, by reference, as a part of the lex fori of Bulgarian.
Of particular significance to this review is the following Art. 463§2 of the
Criminal Code of Procedure, Republic of Bulgaria, having a provision
permitting a prisoner the right, or obligation to appear under the custody
of a foreign State authority, in proprio persona, before a court of that State
in any proceeding where attendance is required to protect his legal
interests, or that of other persons involved in a foreign judicial
proceedings. The context of the provision's text makes no distinction if the
procedure before the foreign court foreign is a suit at law or criminal
proceeding. The enactment and text are as follows:
IV.1.1.3.3Criminal Code of Procedure of the Republic of Bulgaria
"Article 463
"(1)…[Sic]
2 A Priori
IV.2.2Access to A Court
It is incontrovertible that non-judicial agencies of a State are directly
responsible for a prisoner's care, and the compliance of prison officials
with the requirements of the previously cited international law.
The previously cited Prisons and Reformations Act, Corrections and
Conditional Release Act, and Correction Act embody the negative
restrictions as well as positive practices, and procedures to be observed by
all responsible agencies of Canada when determining the fundamental a
priori rights to be denied or limited a person deprived of liberty.
The previously cited constitutional law of Bulgaria, and by incorporation all
Bulgaria's international treaties, conventions or declarations, as well as its
Law On Execution of Punishments and Criminal Code of Procedure are
the full embodiment of the negative restrictions, as well as positive
practices and procedures, to be observed by all responsible Bulgaria
agencies when determining the fundamental a priori rights to be denied or
limited to a person deprived of liberty.
A person deprived of self determination by a State on having been deprived of liberty, yet
retaining property, may engage a legal representative to appear on his behalf in a suit
at law to prosecute, or defend his legal and property interests before the court.
Alternatively, where it is necessary for some reason for the prisoner to attend, the
State has a positive obligation and duty to allow or secure a reasonable and necessary
means for him to appear and protect his interests before the court.
A special set circumstances are created on a person having no property, and no self
determination. The State then incurring a special positive obligation, and duty to
secure the means for its prisoner to appear and protect his interests before the court.
"(40) The court may order the attendance of a witness who is in the lawful custody of
another person, including the custodian of a penal institution.
It is recalled that the Applicant's petitions to the Master and Chambers Judge
had raised all the forgoing issues, having in part relied on Rule 40(40).
The Applicant petitioned the Master to provide a subpoena or order for the
Defendant Bulgaria to produce the Applicant. This would be seen by the
defendant Bulgaria as the "paper(s) submitted by the other Country" [see
the above cited: CCP Art. 463] to allow a "district court" of Bulgaria to
consider the Applicant's request of temporary escorted conduct to appear
before the court. Much of the Applicant's frustration is derived from being
refused a judicial review of his requests for an escorted appearance before
the trial court in British Columbia, despite that the minimum rights of
persons deprived of liberty happen to include the possibly under both
Bulgarian, and Canadian national law to bring and prosecute to the full
extent of the law a civil claim. Even against the very State, or its
institution and officials, having deprived him of liberty and property.
These respective provisions of the national laws of Bulgaria and British
Columbia, and principles of international law, were are relied on by the
Applicant when petitioning the Defendant Bulgaria, the Ministry of
Justice, and then the Master and Chambers Judge of the provincial court.
Had the fact of the defendant Bulgaria being in breach of international law
been established on hearing the petition of the Applicant, it would be
bound to have raised appropriate and very real questions in the mind of the
court as to the purpose of the coercive measures and interference
employed by the said defendant. The negative restrictions as well as
positive obligations and duty of the defendant Bulgaria under international
law should not have been overlooked by either the Master or Chambers
Judge on their review of the Applicant's complaints.
The Act is further impugned for failing to identify indigent persons deprived of their
liberty as belonging to a distinct social group. The courts, on removing a person's
right of self determination having created a distinguishable, and disadvantaged
"other status" different from other indigent members of society.
This "other status" is one made inherently afflictive by an act of law, it therefore
warranted a positive legislative remedy.
The difficulty arises from the present practices and procedures of the court not being
sensitive to the afflictions, or responsive to the needs of the affected group. As a
result all persons within this distinct, and disadvantaged group are unable to
overcome the obvious indirect discrimination occurring solely due to their
unmistakable "other status" in Canadian society. The impugned practice and
procedure acts as an unreasonable barrier only to members of the group, it barring
them from engaging the services of the provincial courts of law in prosecuting or
defending their legitimate interests in a suit at law.
The groups Charter, and a priori rights as flow from the principles of international law are
as a result unreasonably limited in a suit at law by the impugned Act. The present
practice and procedures indirectly and unintentionally barring all members of the
group from accessing the courts powers or obtaining a judicial remedy bar solely due
to their poverty, and the distinct disadvantage of having been deprived of liberty.
Second, the observable facts and circumstances of this Applicant's "other status" make
the Duty Master's order unreasonable, and Chambers Judge findings incorrect.
Both order, and decision are impugned for failing to recognise, or to be unresponsive to
the petitioner's a priori rights as a member of a distinct, and disadvantaged social
group existing within Canadian society.
The Duty Master erring in judgement when having failed to distinguish the courts
positive constitution obligation and duty to procedural fairness to persons having
"other status" from its negative restrictions to limiting the rights of parties in a suit at
law.
The Master proved insensitive, and unresponsive to the inherent afflictions of the
petitioner's "other status", and the affect to his procedural rights on the application of
a practice and procedure of the Master in a suit at law. In electing to place a reverse
onus on the Petitioner in place of the courts positive constitutional obligation and
duty, the Master acted to effectively bar the petitioner's access to the courts
procedural powers.
The legal affect of the Duty Master's order was to indirectly discriminate by making the
court's services available to the petitioner only on condition of property - he must
have the means to retain legal counsel - and on a condition of self-determination - he
must be able to appear before the court.
The learned Master, and Chambers Judge, both erred in their a posteriori reasoning when
finding the petitioner's poverty, and loss of self determination as posing no obstacle
to his appearing before the court, or retaining a legal representative. The order
creating a practical barrier that acted to indirectly discriminate by limiting the
petitioner's rights as a person under law to prosecute, or defend his claims in a suit at
law as a citizen of Canada. The Petitioner's a priori rights to a fair, and open
adversarial hearing of the his complaints, and the facts denied to him by the Master
solely due to this other status.
The Applicant attempted to resolve, from three standpoints, the Duty Master's
order, and Chambers Judge Decision. It is significant to recall that the
Applicant was not provided any written reasons for the Duty Master's
order.
The first possible point appears to concerns the procedural options available to
a Master or Chambers Judge of the provincial court, the second a possible
conflict between the national laws of Canada and Bulgaria acting as a bar
to the available procedures, and the third and final point concerns the
comity among nations. The defendant's status as a foreign State acting to
bar the Master in exercising the courts inherent jurisdiction over its own
processes.
IV.3.5.1 Procedures
Earlier the Applicant made reference to the practices and procedures available
under the SCBC Rules of Court at Rule 40, and under the Criminal Code
of Procedure, Republic of Bulgaria, at Art. 436, both having provisions
allowing for persons deprived of their liberty to appear before a court of
competent jurisdiction.
It is apparent from both the cited enactments that there exists no negative
restriction in either to allowing a person under custody to be either
summoned, or alternatively permitted, to appear as a "witness” or "expert"
on subpoena before a foreign court.
What is apparent under both the cited enactments is the positive procedural
obligation and duty of the State and the summoning court to act
responsively and responsibly in securing the appearance of the person
required before the court.
It appears as equally incontrovertible that the courts of Canada, and Bulgaria are
constitutionally endowed with a positive obligation, and duty, to vigorously as
opposed to passively secure to all persons before the law within their respective
jurisdictions the a priori rights that naturally form a part of the international
commitments of each government, notwithstanding the "other status" of the person,
i.e. an indigent foreign prisoner.
It is also incontrovertible that the courts of Canada and Bulgaria have constitutionally
authority to judicially determine, within their jurisdiction, an effective remedy, or
other relief on application of a person believing his legal, or property rights under
international or national law are somehow violated by a government agency.
One proposition found under the cited international, and national laws is the
negative restriction on a State's non-judicial and judicial bodies in limiting
the fundamental rights of a prisoner beyond what is absolutely necessary
to public safety, and order. The Applicant again recalling UDHR Article
29§2, and SMR Principle 61.
On the basis of the foregoing, if there is to be any conflict of laws at all, it
appears to be one limited only to interpretation and practice of a priori
justice as opposed to its substance. Both legal traditions of Canada and
Bulgaria, in sharing the same a priori principles of international law,
cannot be in conflict on a question of a person's fundamental right to
protection from direct or indirect discrimination. There can not exist in
law a conflict on the self proposition of a person's right to a judicial
determination of his complaints, rights or obligation in a suit at law by the
court of competent jurisdiction.
The present discussion will therefore attempt to concern itself with
interpreting the positive obligation and duty of judicial and non-judicial
bodies to an indigent Canadian citizen deprived of his liberty on the
territory of Bulgaria.
Foremost the Applicant believes the common law interprets the constitutional
obligation and duty of Canada's courts to be a positive one in any
observable circumstance of a practice, or procedure that indirectly
discriminates by creating an unreasonable barrier to the obtaining justice -
judicial review -only for a distinct group of disadvantaged persons.
What remains is to consider how reasonable it is for a court of Canada to
extend its jurisdiction in a suit at law to the "territory of any given state"
when responding to its positive constitutional obligation and duty to a
citizen having a other status. Notwithstanding the State in question is
party to the cited treaties, and a defendant in the proceedings before the
provincial court.
To continue this discussion it is necessary once again to summarise the
observable facts within the context of the self evident propositions
previously listed. The following is recalled:
The defendant having filed an appearance, and its applications for judicial determination
on the questions of jurisdiction simpliciter and forum non conveniens remain live
issues before the trial court.
At this present stage of the proceedings the provincial court of British Columbia remains
the competent jurisdiction to determine, according to the facts and law, the rights and
obligations of the defendant Bulgaria, and the plaintiff within Canada. The provincial
court therefore has inherent jurisdiction to determine all questions of procedural
fairness.
The Applicant, has a "other status" of being an indigent Canadian citizen deprived of his
liberty abroad. The agencies of the defendant Bulgaria are responsible for his
imprisonment, and equally responsible for his a priori rights as flow from the
principles of international law previously discussed. The Applicant is imprisoned six
(6) years, and still awaits a final sentence. There exists no provision of Bulgarian
national acting to limit or bar a person deprived of liberty from prosecuting or
defending his rights and obligation in a suit at law, notwithstanding the foreign
jurisdiction of the competent court. The Criminal Code of Bulgaria having no
provision to deprive a sentenced person of his rights and obligation in a suit at law, it
in fact allows for a practice and procedure to extradite -conduct - a person deprived
of liberty to testify before to a foreign court.
The Applicant, relying on relevant international law and enactments of Bulgaria, and
Canada, petitioned the responsible government agency of the defendant Bulgaria to
contact the responsible agency of Canada. The Defendant Bulgaria to arrange the
Applicant's conduct in custody to, and from hearings as fixed by it before the
provincial court. Reference was made to the defendant Bulgaria's motion to the
Master, and its notice of hearing - subpoena - requiring the Applicant to appear, as
respondent, to defend his interests in a suit at law. The responsible agency of the
defendant, the Ministry of Justice Republic of Bulgaria, refused its positive
obligation and duty to contact Canadian authorities, on petition of the Applicant.
In the alternative the Applicant, again relying on international law, and enactments of
Bulgaria and Canada, again petitioned the foresaid responsible government agency
of the defendant Bulgaria to obtain its consent to a motion having the Master order
the proceedings be conducted only in writing for as long as alternative the defendant
Bulgaria refused to conduct the Applicant to hearings before the court. No reply was
forthcoming.
The Duty Master refused to judicially review or hear the Applicant's petition(s), or to
determine the legal affect of the courts order. The Master placing a reverse onus on
the Applicant to appear or retain an attorney to bring his applications before the
court.
Chambers Judge Edwards J. refused to judicially review or hear the Applicant's appeal on
the reasonableness a Duty Master's reverse onus. His Lordship's took a decision to
not review the Applicant's constitutional complaint that the Master's order and a
practice and procedure of the court breached his Charter rights and the a priori
principles of international law by indirectly discriminting to deny him the courts
services solely due to his status as an indigent Canadina citizen deprived of his
liberty abroad.
A court of Canada has limited jurisdiction over a foreign state, this is made fact by the
State Immunity Act, S.C. 1980-81-82-83 c. 95 (now R.S.C. 1985, c. S-18).
The defendant government of Bulgaria is named as a state party to a suit in law before a
court of Canada. Therefore, until there is a judicial determination to the alternative
the State defendant is subject to the jurisdiction, practices and procedural processes
of that court and the laws of Canada.
A court of Canada has a positive obligation and constitutional duty, as naturally flow
from the principles of international law, to provide a remedy in law seen to guarantee
in practice, and not only in principle, the right of all parties to procedural fairness in
a suit at law.
The defendant government of Bulgaria, and this plaintiff have, under law, equal
procedural rights and obligations in a suit at law before the provincial court.
The principles of international law, and the national laws of both Bulgaria, and Canada
provide for a person deprived of liberty to be allowed or secured a means to access
the courts of law. Attendance in a judicial proceeding is a priori the right of all
persons where his or her legal or property interests, or those of others, are to be
affected, notwithstanding the foreign jurisdiction where such interests are to be
prosecuted or defended.
It appears, that the government and agencies of a state, any state, including
Bulgaria, clearly incur a legal - not only moral - liability, and duty to any
person the State deprives of liberty. The principles of comity and
reciprocity within the international community require Bulgaria to observe
its international commitments in practice, not only in principle, Bulgaria
having a positive obligation and duty to respect the fundamental rights of
foreign citizens before their own courts.
International comity and reciprocity suggest, at least to this ignorant
Applicant, there exists a positive obligation and duty of Bulgaria found
under law, to arrange with the responsible authorities of Canada this
Applicant's conduct in custody to the trail court. Absent a practice or
procedure to do so, Bulgaria to secure or allow a reasonable and effective
alternative to the Applicant's appearance.
The State of Bulgaria by refusing its international commitments to comity and
reciprocity as well as refusing to observe a practice and procedure under
its national law has reversed the onus from itself to the Applicant. The
Defendant Bulgaria requiring the Applicant seek from prison his rights to
procedural fairness by intervention of the trial court, and to obtain the co-
operation of the government of Canada to secure his conduct in custody
from the agencies of the said Defendant. The Applicant to rely on the same
international agreements, comity and reciprocity binding on Bulgaria
when now applying to Canada. The defendant government of Bulgaria
apparently having taken comfort from the fact of international comity and
reciprocity making both the provincial court, and government of Canada,
in practice, understandably reticent to assist the Applicant.
In the present enquiry comity and reciprocity can also serve the present
Applicant and other plaintiffs. The principle of comity appearing to be
inoperable in saving the defendant Bulgaria for having refused its
international treaty obligations.
The preceding discussion provides both context, and causus, to the Applicant
having petitioned the Master and Chambers Judge for judicial relief in the
form of a subpoena and interlocutory order. It only natural that the
Applicant, a Canadian citizen and resident of British Columbia, would
turn to the jurisdiction of a provincial court to protect his and his family's
legal and property interests.
IV.4.1.2 Questions
Do indigent Canadian citizens deprived of liberty abroad continue to retain their
constitutionally guaranteed rights in Canada?
Is it constitutional - lawful - for a practice and procedure of the court to create a property
and social barrier to a Canadian citizen's right to judicial review and remedy in a suit
at law?
Are the international commitments of the defendant. the Republic of Bulgaria, and its
national law equally as binding on agencies of the government of Bulgaria when
before the lex fori of a British Columbia court, as party to a suit at law, as they would
be binding on the agency before the lex loci delecti of the Applicant's imprisonment?
IV.4.2Analysis
There is no doubt the international community considers deprivation of liberty
by its very nature to poses special problems to the person affected. The
"afflictive" nature of imprisonment recognisably creating many of the
negative restrictions as well as positive obligations of governments and the
courts discussed above. It is apparent these are a priori principles
applicable to all democratic and free states, Canada and Bulgaria being no
exception.
IV.5.1Arguments
In layman's terms the applications and the argument are along the following
lines.
The applications for additional time and indigent are reasonable, a posteriori,
solely due to the observable factual elements before the Appeal Court.
The application for leave to appeal made reasonable due to the significance of
the a priori rights affected by the Master's order, and a practice and
procedure impugned by its affect on a distinct and disadvantaged group a
part of Canadian society.
Before proceeding to the Applications themselves it seems prudent to recall
the following parts of the preceding discussion within the context of the
applications.
IV.5.1.1 Time
The Defendant Bulgaria's conduct is a factual element existing in aggravation
of the time needed to develop a judicial remedy and bring the application
before the Appeal Court. Agencies of the Defendant Bulgaria failed to
observe its international commitments to the negative restrictions on a
State. Bulgaria knowingly limiting the Applicant's fundamental right as a
person deprived of liberty to develop his judicial remedy in a suit at law
before a court of competent jurisdiction. Notwithstanding that delays are
as a part of the nature of incarceration it is as well alleged the defendant
Bulgaria acted with mens rea having knowledge and intent to obstruct the
Applicant from his timely access to the both the trial court and Appeal
court of Canada. It is observable from the facts the Applicant cannot be
held fully accountable for the delays in bringing his applications, the
extension of time should therefore be allowed.
IV.5.1.2 Indigence
The lesser applications of time and indigence are moot if there is no arguable
point on appeal. It is for that reason the nature of the appeal was discussed
first and at some length in the Applicant analysis.
6 Need To Extend Time.
"2. Whether the appellant had formed an intention to appeal within the time limits for
making an appeal;
"3. Whether the respondent was aware of the appellant's intention to appeal within
the time limits; and
"4. Whether any ground of substance was raised in the proposed appeal.
"Once the plaintiff establishes that the standard is prima facie discriminatory, the
onus shifts to the defendant to prove on a balance of probabilities that the
discriminatory standard is a BFOR [a bona fide occupational requirement] or has a
bona fide and reasonable justification. In order to establish this justification, the
defendant must prove that:
"(1) it adopted the standard for a purpose or goal that is rationally connected to the
function being performed;
"(2) it adopted the standard in good faith, in the belief that it is necessary for the
fulfillment of the purpose or goal; and
"(3) the standard is reasonably necessary to accomplish its purpose or goal, in the
sense that the defendant cannot accommodate persons with the characteristics of the
claimant without incurring undue hardship."
It is argued that the case at bar as presented to the Appeal Court is one of
indirect and unintentional discrimination. The impugned order is made,
and enactment written, in a way that requires the affected group, persons
who are deprived of their liberty and in poverty, to do something they
cannot reasonably be expected to do. Such an order or enactment must be
and is intrinsically wrong when it discriminates solely against one group,
no matter how small or unusual that group may prove to be.
As a result the rights of the Speaker and other incarcerated and indigent
citizens are significantly affected by any such order or enactment having
as its only positive affect to deny a prisoner, as it has the Speaker, his or
her guaranteed rights under and before the courts of law as persons having
equal rights in law.
The Speaker believes, as he is sure the thousands of other Canadian families
and those citizens burdened with a similar status as his own believe, that
there are substantial grounds the Appeal Court to allow the Speaker time
to formulate a full argument, prepare his appeal and then file it.
7 Relief from Court Fees and Costs
This Court's jurisdiction to entertain applications of this type are found in
Appendix C, Schedule 1 to the Rules of Court which reads as follows:
"4. Most importantly, whether the appeal will unduly hinder the progress of the
proceeding in the trial court.
The Legal Affect of the Order and Decision on Citizens of "other status";
The learned Chambers Judge ruled the Appellant's appeal and other
applications be returned to him. The learned Edwards J. having apparently
found it reasonable to judge the Appellant against presumed group
characteristics, notwithstanding him being in the impoverished as well as
harsh custody of the defendant Bulgaria. A Master or Chambers Judge
knew or should have known this to be an impossible task and one that
contravenes the very a prior element of equality and fairness imbued
through in Canadian human rights legislation as well as every international
agreement cited..
The Legal Affect of the Order and Decision on Citizens of "other status";
"3. In case the matter referred relates to the constitutional validity of all or part of an
Act, the Attorney General of Canada must be notified of the hearing, and must be
heard if the Attorney General of Canada sees fit.
(b) state
(c) state the day on which the challenge or application under subsection (2)
or (3) is to be argued, and
(5) The notice must be served at least 14 days before the day of argument unless the
court authorizes a shorter notice.
If the enactment is within the legislative competence of the Provincial Government under
s. 92 of the Constitution Act, 1867, is there nevertheless a deprivation of a liberty
protected by s. 7 as well as a discriminatory practice restricted by s. 15(1) of the
Charter of Rights and Freedoms (the "Charter") on application to a distinct group?
If the right or liberty limited are ones saved by s. 1 of the Charter are the outstanding
issues that remain then based on administrative law principles pursuant to the
Judicial Review Procedure Act [RSBC 1996] c. 241?
If the Judicial Review Procedure Act (the "Act") applies, are then indigent Canadian
citizen deprived of liberty abroad limited or prohibited under s.4 of the Act from
bringing a proceeding referred to in s. 2?
Is it reasonable for a Duty Master or correct for a Chambers Judge to limit the nature of
applications from persons deprived of liberty, as well as the standard of their of
review in a proceeding under s. 2(1) of the Act for any reason other than those setout
in s. 3 and s. 4 of the Act?
A law's "matter" is its leading feature or true character, often described as its
pith and substance: Union Colliery Co. of British Columbia v. Bryden, [1899] A.C.
580 (P.C.), at p. 587; see also Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286.
There is no single test for a law's pith and substance. The approach must be flexible
and a technical, formalistic approach is to be avoided. See Hogg, Constitutional
Law of Canada (3rd ed.) 1992), vol. 1, at p. 15-13. While both the purpose and
effect of the law are relevant considerations in the process of characterization (see,
e.g., Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117
(P.C.) (the Alberta Bank Taxation Reference), at p. 130; Starr v. Houlden, [1990] 1
S.C.R. 1366, at pp. 1389, 1392), it is often the case that the legislation's dominant
purpose or aim is the key to constitutional validity. Rand J. put it this way in
Switzman v. Elbling, [1957] S.C.R. 285, at pp. 302-3:
"The detailed distribution made by ss. 91 and 92 places limits to direct and
immediate purposes of provincial action. The settled principle that calls for a
determination of the "real character", the "pith and substance", of what purports
to be enacted and whether it is "colourable" or is intended to effect its ostensible
object, means that the true nature of the legislative act, its substance in purpose, must
lie within s. 92 or some other endowment of provincial power."
A reading of the impugned part of the Court Rules Act is Section 1 seems a
good place to start an enquiry into the matter of the law in the Court Rules
Act:
Rules Of Court
"1 (1) The Lieutenant Governor in Council may, by regulation, make rules that the
Lieutenant Governor in Council considers necessary or advisable governing the
conduct of proceedings in the Court of Appeal, the Supreme Court and the
Provincial Court.
"(2) Without limiting subsection (1), the rules may govern one or more of the
following:
"(b) the means by which particular facts may be proved and the mode by which
evidence may be given;
Using a purely technical and formalistic approach the Applicant adduced that
the Legislation was enacted with a principle purpose or aim of allowing
the province to regulate the practice and procedure of the courts in the just
and economic determination of property and civil rights. The Legislation
exists to allow the Lieutenant Governor of British Columbia to develop in
Council policy directions on how proceedings before the provincial courts
ought to be conducted, the dominate purpose being of just and economic
results.
The Applicant first attempted to understand the intended purpose and direct
affect of impugned Legislation, in particular practice and procedure as
applied to him, as it would be applied to any other person. It appeared
reasonable to first read the particular provision under the Rules of Court
having applied the challenged discriminatory standard allowed under the
impugned part of the Legislation's regulations or a common law rule
within the ambit of Rule 41, subrule (16.5(b)) reading as follows:
" Rule 41 – Orders
"(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person,
or
"(b)….
"(d)….
"(e) to make an investigation or inquiry into a person's legal right, power, privilege,
immunity, duty or liability;
"Masters
"11 (1) On the recommendation of the Attorney General after consultation with the
Chief Justice, the Lieutenant Governor in Council may appoint one or more masters
of the court.
"(7) A master has, subject to the limitations of section 96 of the Constitution Act,
1867, the same jurisdiction under any enactment or the Rules of Court as a
judge in chambers unless, in respect of any matter, the Chief Justice has given a
direction that a master is not to exercise that jurisdiction.
As a result of the foregoing the impugned part of the Legislation is ultra vires,
the province. What Legislation "is really doing" is practising a form of
indirect discrimination when allocating provincial court resources. Its net
affect is to only sanction, penalise, or punish any distinct group or person
who cannot, for one reason or another, meet presumed group
characteristics of property and self-determination. On application of the
foregoing to indigence persons having an alleged criminal misconduct and
as a result remanded to the custody of the State the affects are absolute,
taking on the form of prohibitions or limitation of fundamental rights and
liberties beyond what is prescribed under criminal or correctional services
legislation. This is a matter outside provincial jurisdiction and something
the Legislation cannot do directly [see Hogg, Constitutional Law of
Canada, supra, at 394] so does it indirectly. A Master or Chambers Judge
exceeds the jurisdiction of the Legislation as well as its stated aim when
ordering derogation from fundamental rights or liberties of indigent
incarcerated persons that are otherwise not prohibited or limited under
federal legislation. In pith and substance determining a form of indirect
punishment having a class of subject specified under the criminal code and
other related enactments. This at least suggests, if not proves the
Legislation having thereby invaded the exclusive jurisdiction of
Parliament.
Admittedly, on the surface there appears to be no contradiction between the
federal and provincial legislation and that the latter is intra vires, the
province. However, as Sopinka J. wrote in Morgentaler, supra, "form
alone is not controlling in determination of constitutional character." The
policy and legal principle of the Legislation purports to having a dominate
purpose or aim of providing all residents of the province just and
economic judicial services. The practice and procedure as well as common
law rules applied under the Legislation having a positive obligation to
make accessible to all persons their absolutely fundamental right and
liberty to bring their civil complaints before a court of competent
jurisdiction. It the absolute right of all persons in a democratic and free
society to develop a judicial remedy in a fair and open environment.
Earlier discussion identified the rights and liberties international law
considered as absolute. Most outstanding and significant to the later
Charter enquiry is the right to develop a judicial remedy as well as to
access a court of law to continue or defend legal interests in a suit at law.
"I therefore hold that the impugned sections of the Act are in pith and substance
property and civil rights. The sections do not impinge upon and are not in conflict
with Federal legislation and are thus intra vires the jurisdiction of the Province of
Manitoba. (See Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R., 161; R. v.
Francis, [1988] 1 S.C.R. 1025; Validity of Section 92(4) of the Vehicles Act, 1957
(Sask.), [1958] S.C.R. 608.)
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
There natural follows a need to find some respected authority that will support
the Applicant's suppositions to what the Charter may be applied.
For better or worse the Applicant developed his own order of hierarchy. The
first of issue to be established having turned on if the Charter could be
applied to impugned legislation. The question to be satisfied is if not only
is it reasonable to apply the Charter, but is it a part of the practice
generally to do so.
"(a) interpretating the common law in light of the values underlying the
Charter
"This court first considered the application of the Charter to the common law in
Dolphin Delivery, supra , [1986], 33 D.L.R. (4th) 174]; It was held that, pursuant to
s.32( 1) of the Charter, a cause of action could only be based upon the Charter when
particular government action was impugned. Therefore, the constitutionality of
the common law could be scrutinized in those situations where a case involved
government action which was authorized or justified on the basis of a common law
rule which allegedly infringed a Charter right."
"However, Dolphin Delivery, supra , also held that the common law could be
subjected to Charter scrutiny in the absence of government action.
In emphasizing that the common law should develop in a manner consistent with
Charter principles, a distinction was drawn between private litigants founding a
cause of action on the Charter and judges exercising their inherent jurisdiction to
develop the common law. At p.198 this was written:
"Where, however, private party "A" sues private party "B" relying on the common
law and where no act of government is relied upon to support the action, the Charter
will not apply. I should make it clear, however, that this is a distinct issue from the
question whether the judiciary ought to apply and develop the principles of the
common law in a manner consistent with the fundamental values enshrined in the
Constitution . The answer to this question must be in the affirmative . In this sense,
then, the Charter is far from irrelevant to private litigants whose disputes fall to be
decided at common law."
...
"Courts have traditionally been cautious regarding the extent to which they will
amend the common law. Similarly, they must not go further than is necessary when
taking Charter values into account. Far-reaching changes to the common law must be
left to the legislature."
...
Then at p.157 Cory J. set out the framework to be used in a Charter analysis of
the common law in a private dispute:
"It must be remembered that the Charter "challenge" in a case involving private
litigants does not allege the violation of a Charter right. It addresses a conflict
between principles. Therefore, the balancing must be more flexible than the
traditional s.1 analysis undertaken in cases involving governmental action cases.
Charter values, framed in general terms, should be weighed against the principles
which underlie the common law. The Charter values will then provide the guidelines
for any modification to the common law which the court feels is necessary.
...
Last in the Applicant's order of hierarchy, as well as the last in the chain of
events leading to the intended appeal, are the consequential orders or
decisions grounded in the common law rule flowing from s.1 of the
impugned Legislation. Here, the practice and procedure of applying a
discriminatory standard relies on a common law rule having engaged the
coercive power and compulsory over an individual in the nature of an
order fixed by a Master or Chambers Judge. Mr. Hogg in his Constitution
Law (supra) writes that it is this power of coercion that provides the
source for application of the Charter, (p. 34-12):
"The Charter applies to the exercise of statutory authority regardless of whether the
actor is part of the government or is controlled by the government. It is the exertion
of a power of compulsion granted by statute that causes the Charter to apply."
The learned Cory J. in Manning supra concluded the Charter applied to the
common law notwithstanding if s.32 (1) was engaged, here the Applicant
believes government action was involved for the following reasons.
The nature of the Master's order, its purpose or aim can only be to advance the
governmental scheme developed under s.1 of the impugned Legislation for
regulating the courts services, and provides a second element of s.32 (1)
operating to engage the Charter. The Applicant's reasoning is garnered
from a reading of the Supreme Court of Canada in Eldridge v. British
Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577, there the court
decided to broadly apply the Charter under the circumstances of an
administrative or quasi-judicial decision or order, mutatis mutandis, not
unlike the Master's order and Chamber Judge decision in the case at bar.
This is due in large part to the direct, and indirect, public dimension of
their roles when carrying out the government's scheme of regulations,
regardless of whether the actor is part of the government.
In Eldridge supra, the court held the Charter should apply to the decision by a
hospital not to supply interpreters to patients who were unable to hear. In
writing for the Court, the learned La Forest J. concluded the Charter
applied to non-governmental or quasi-governmental agencies if the
impugned act is truly "governmental" in nature (p. 608), finding the
Charter applied to those acts which implement the governments regulatory
scheme. The hospital in question was considered by the court to be
carrying out a governmental policy in determining services under the
governing medical services legislation and thus was subject to the Charter.
"Dear Sir,
"Your recent desk order applications were referred to the Duty Master. The Duty
Master reviewed your applications and ordered all your applications must be spoken
to. Therefore, I am returning your applications.
To the Applicant, it appears from the wording of the Order, that the Duty
Master's role here is a quasi-judicial one advancing a discriminatory
standard and regulatory scheme of the government. Its intent is to compel
an appearance before the court of the petitioner or his attorney. The Duty
Master exercises the power of compulsion over a petitioner (the
"Applicant") to advance the provincial government's regulatory scheme.
The common law rule is to judge all applicants according to presumed
group characters and to limit the means or mode of access to the court for
judicial review of applications to those applicants who can meet the
standards. Neither the nature of the applications or individual abilities of
the applicant are judicially assessed
The Chambers Judge Decision
On May 28th 2001, the first opportunity the Applicant's had at prison in Sofia,
Bulgaria, he appealed the Duty Master's order.
The appeal to the Chambers Judge relied first on s. 24(1) of the Charter, the
Applicant asked His Lordship apply the Charter when judicially reviewing
his appeal from the Duty Master's order. The principal controversy was the
order having exceptionally prejudiced the petitioner's legal rights. The
Appeal procedure before the Chambers Judge relied on the provisions of
Rule
The Applicant's grievances at that time to His Lordship were against an
administrative or quasi judicial practice and procedure placing a further
sanction on the already severe and harsh circumstances of the present
applicant. A duty of an impossible reverse onus placed on an indigent
person already deprived of liberty must, by its very nature, offend
fundamental guarantees within the ambit under the Charter, - s. 15(1).
Furthermore the engaging of coercive power as a limitation on a person
accessing the court's services solely due to being unable to meet presumed
group characteristics proves a form of unlegislated sanction, penalty or
punishment exceeding what is prescribed by law as demonstrably
justifiable in a free and democratic society - s. 1.
Among the points raised in writing before the Chambers Judge the following
four are believed significant for the purposes of this analysis.
Starting at the third paragraph of the Applicant's appeal:
"Judicial direction is sought from His Honour as to the practical matter of how best
might the Charter rights of the Plaintiff be guaranteed."
"1. The Order manifests as its practical consequence a violation of ss. 15(1) Charter
rights of the plaintiff."
"3. The Order has a further practical consequence, it obstructs the ss. 24(1) Charter
rights of the Plaintiffs. In the Master requiring the Plaintiff do something that it is
apparent from the facts he cannot possibly do without the court to assist, the Master
has imposed, as a vicarious element of his Order, a procedural obstruction to
exercising a Charter guaranteed right."
"6. The Order is inconsistent with Charter principles and the inherent jurisdiction of
the court for fair and efficient compensation for wrong and deterrence."
"Dear Sir,
"I referred your Notice of Appeal from the Duty Master to the Honourable Mr.
Justice E.R.A. Edwards. His Lordship reviewed your application and directed no
further steps be taken, by the plaintiff, until a representative of the plaintiff speaks to
this matter in Court.
"As I stated in previous correspondence, one of the following agencies may be able
to assist you in this matter. [List of legal aid agencies follows]"
As it can be seen the Chambers Judge agreed with the Master's assessment of
the government regulatory scheme and common law practice and
procedure applied to all circumstances as that of the case now at bar.
IV.8.3.3.1.2 Discussion
To use the Registrar's words applications are "reviewed". However, it seems
only an extemporaneously review not having any judicial quality but the
"quasi-judicially" one that naturally extends to all enactments concerned
with administering court resources and proceedings. Reference to this
"quasi-judicial" role and power of a Master or Chambers Judge can be
found under the Interpretation Act [RSBC 1996]c. 238:
"Powers to judges and court officers
"19 (1) If by an enactment judicial or quasi judicial powers are given to a judge
or officer of a court, the judge or officer in exercising the powers does so in his or
her official capacity and representing the court.
"(2)….
"39 The definitions section of the Supreme Court Act, so far as the terms defined can
be applied, extends to all enactments relating to legal proceedings.
The direction to the Registrar and order to the Applicant that "no further steps
be taken, by the plaintiff, until a representative of the plaintiff speaks to
this matter in Court" appears only to advance the interest of the
government's regulatory objective of cost effective and expeditious
administration of the courts processes in the name of the well-being of the
public.
In the order to the Applicant, the Master does not speaks to its legal affects,
and the consequential decision of the Chambers Judge and his direction to
the Registrar proves only to be an administrative sanction on a right and
liberty of the Applicant to seek legal redress through the courts. It to be
recalled the Applicant is barred from bringing applications to continue, or
defend in a proceeding, as well as limited in his right to participate in
hearings.
and
Charter 15.
Returning to the criteria in Law v. Minister, supra.
The Applicant has established evidence to prove the answer to (A)(a) in the
case at bar, is "YES", the impugned Legislation maintains or at best
permits a discriminatory standard to be applied to all persons. The
standard, by a reverse onus, indirectly draws a formal distinction on two of
the Applicant's personal characteristics, property and his power of self-
determination. The facts and common sense prove the answer to (A) (b) to
as well be "YES", the impugned Legislation clearly fails or omits taking
into account the already afflictive and disadvantaged status of the
Applicant as an indigent Canadian citizen deprived of his liberty abroad.
Personal characteristics that must imminently result in substantially
different treatment than that expected by other Canadians who are able to
meet the Legislation's presumed group characteristics.
The answer to (B) must as well be "YES", given that for so long as the
grounds enumerated in (A) are true, and the reverse onus maintaining the
discriminatory standard remains in effect. The Applicant is absolutely
prohibited first as a practical matter of his imprisonment and then from
affects of the reverse onus, from petitioning the court as well as limited in
any future action to continue or defend in the proceeding.
The Speaker places reliance on this two step approach as had been applied in
both the cited cases. The Court there was considering the right to freedom
of expression (s. 2(b)) but the prescribed method of analysis appears to be
of general application and useful to the present enquire into s. 15(1).
Following the two step approach of the Supreme Court of Canada found in
Irwin, supra, the first question may be formed as follows; Whether the
activity of an indigent prisoner in prosecuting his law suit before the
courts of law is a civil activity protected under s. 15(1) of the Charter; the
second question is whether the purpose or the effect of the Rules (Act) is
to restrict that kind of activity.
Interpreting the Charter.
IV.8.3.3.2
IV.8.3.3.3Does The Charter Apply?
S. 7 Rights and Liberties
This argument has evolved rightly or wrongly from an interpretation of
relevant federal legislation as well as the principles of international law
cited earlier. On the surface of these international commitments of the
Federal Government, as well as federal legislation, all persons have what
appear to be certain absolute rights and liberties. It is expressly forbidden
to directly or indirectly limit or withdraw such rights except as prescribed
under statutory law, and then only reasonably.
Charter.
On reading of limited case law available to the Applicant, it was found the
Court of Appeal to be more than slow to strike down administrative law
practice and procedure regulations as developed under s. 1 of the
Legislation as unreasonable, leaving such determinations to the Lieutenant
Governor in Council or the Chief Justice of the SCBC. Having recognised
such reticence the second question raised later on is the courts duty to
consider whether the impugned Legislation as well as common law rule
when applied in certain circumstances, was sensitive to the s. 7 and s.
15(1) Charter rights of incarcerated and indigent citizens, contrasted with
the wider mandate conferred by the Charter to that conferred by the
provincial Legislation.
Section 1 of the Court Rules Act grants broad powers to the Lieutenant
Governor in Council powers, sufficiently so that "practice and procedure"
under the impugned Legislation can encompass a comprehensive body of
regulatory measures governing the administration of the courts and the
practice generally in British Columbia. From time to time a Registrar,
Master or Chambers Judge of the Supreme Court of British Columbia is
called on to perform a role under the Legislation that has an administrative
or quasi-judicial character. That role allows for a discretionary right to
apply an administrative or quasi-judicial sanction, penalty or punishment.
...
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;"
...
"Section 1 provides:
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society."
Section 7 provides:
"7. Everyone has the right to life, liberty and security of the person and the right not
be deprived thereof except in accordance with the principles of fundamental justice.
"15(1). Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability."
In the United Kingdom the constitution is unwritten. It can only be found in common law, statute
and Professor A.V. Dicey's constitutional conventions. Thus, in a sense, British libel and
slander laws stand free from explicit constitutional limitations apart from potential future
interpretations pursuant to Article 10 of the European Convention on Human Rights by the
European Court of Human Rights.
The appellant submitted that it is not only "absolute rights" or "fundamental liberties" that are
protected by s. 7 of the Charter. While recognizing that no liberty or right is absolute, it is
asserted that once a person is granted a "general liberty" or right, such as the right to be
“heard” by the Court, it becomes a right protected by s. 7 of the Charter. The fact that the
"general liberty" is subject to regulation by the Rules of the Court does not reduce the
"general liberty" to a mere privilege.
Alternatively, it can be argued that being “heard” by a Court of law in a civil proceeding is not a
"fundamental liberty", a "general liberty" or any other type of right or liberty protected by
s. 7 of the Charter. Permission to be heard or for an incarcerated person to be transported
to the Court are regulated activities which are a privilege - not a right or a liberty protected
by s. 7 of the Charter.
Discussion
Frivolous Prisoners.
Comparing provisions of s. 7 of the Charter with the provisions of the Fifth and the Fourteenth
Amendments of the United States Constitution Nemetz C.J.B.C., for the majority, at 140
stated:
" I adopt, however, those American authorities which do not confine the definition of liberty to
mere freedom from bodily restraint. In Bolling v. Sharpe (1954), 347 U.S. 497, Chief
Justice Warren said, in part: "`Liberty' under law extends to the full range of conduct
which the individual is free to pursue and it cannot be restrained except for proper
governmental objective" (my emphasis). I am in respectful agreement with this general
doctrine.”
Nemetz C.J.B.C. was considering a question that the Applicant finds a lesser “right to liberty” than
that of having his having a right to appear before of Canadian Court of Law;
"Liberty" under the Charter cannot be taken to create an absolute right to drive. Age, infirmity
and other impediments may restrict the granting of drivers' licences. However, once the
licence is granted there becomes attached to it the general liberty to employ one's skill and
ability - in this case the ability to drive. Accordingly, such liberty constitutes a right under
the Charter and a person cannot be deprived of it except in accordance with the principles
of fundamental justice.
Chief Justice Nemetz concluded that the provisions of s.214 (2) offended the principles of
fundamental justice and deprived the appellant of his right or his general liberty under s. 7
of the Charter to drive a motor vehicle. He held that the "road-side suspension law"
contained in s. 214(2) of the Motor Vehicle Act was unconstitutional.
In R. v. Neale, [1986] 5 W.W.R. 577 (Alta. C.A.), on the Crown's appeal the
Alberta Court of Appeal the Court wrote of “liberty” at 584-5:
IV.8.3.4.1.1.1Argument
"2 (1) An application for judicial review is an originating application and must be
brought by petition.
"(2) On an application for judicial review, the court may grant any relief that the
applicant would be entitled to in any one or more of the proceedings for:
"Error of law
"3 The court's power to set aside a decision because of error of law on the face of the
record on an application for relief in the nature of certiorari is extended so that it
applies to an application for judicial review in relation to a decision made in the
exercise of a statutory power of decision to the extent it is not limited or precluded
by the enactment conferring the power of decision.
"9(1) On application for judicial review of a statutory power of decision, may refuse
relief if
"(a) the sole ground for relief established is a defect in form or a technical
irregularity, and
"(2) If the decision has already been made, the court may make an order validating
the decision despite the defect, to have effect from a time and on terms the court
considers appropriate.
"11 An application for judicial review is not barred by passage of time unless
"(b) the court considers that substantial prejudice or hardship will result to any other
person affected by reason of delay.
"(2) Subsection (1) applies whether or not the proceeding for a declaration or
injunction includes a claim for other relief.
"Sufficiency of application
The Speaker believes that there existed a statutory duty of care by the Master
to judicially review petitions made by a prisoner for any interlocutory
order or such other procedural relief or judgment. The Master allowing the
prisoner's applications according to the circumstances of the petitioner, the
court finding a reasonable judicial remedy and procedural remedy to the
limitations imposed by such circumstances as indigence and the
deprivation of liberty. The order, as stated earlier, was unreasonable in that
it placed a reverse onus on a petitioner seeking the procedural relief from
an "afflictive state", such relief first necessary to having his applications
heard. The Master directing an indigent person retain an attorney to speak
to an indigence application is mildly somewhat paradoxical, as it is
equally unreasonable to place a reverse onus on a prisoner to find his own
way before the court from a penitentiary. The Master had placed no onus
on the state agency responsible for these factors and a party to the
proceedings.
On appeal of the Master's order and request for judicial review, it appears that
the principle, if any, procedural grounds for the Chambers Judge to refuse
such a review of the Speaker's petition are to be found under s. 9(1) (b)
above, the petition as made having failed to show adequate grounds. The
purpose of the present application before the Appeal Court is to
demonstrate the alternative, that the Master's order was unreasonable and
therefore substantially wrong and a miscarriage of justice. The petitioning
plaintiff/prisoner should have been provided the judicial review requested,
notwithstanding technical irregularities or the like.
IV.8.3.6 What Standard of Review to be applied to Applications of
"detached" Members of Society;
The Speaker alleges the Duty Master failed to observe a proper standard of
judicial review when dispensing with the Applicant/Prisoners various
interlocutory petitions. This reasoning on the Speaker's part is on valid if
review was available to the Speaker as he alleges above.
Issues of availability of judicial review, the standing of the Speaker to seek
review, and the timeliness of the application are questions of jurisdiction.
If judicial review of the applications returned by the Master was available
to the Speaker as a plaintiff, then the scope of review and whether the
Master erred are questions of law. The standard of review of the ruling of
the Chambers Judge is correctness.
"Once the plaintiff establishes that the standard is prima facie discriminatory, the
onus shifts to the defendant to prove on a balance of probabilities that the
discriminatory standard is a BFOR [a bona fide occupational requirement] or has a
bona fide and reasonable justification. In order to establish this justification, the
defendant must prove that:
"(1) it adopted the standard for a purpose or goal that is rationally connected to the
function being performed;
"(2) it adopted the standard in good faith, in the belief that it is necessary for the
fulfillment of the purpose or goal; and
"(3) the standard is reasonably necessary to accomplish its purpose or goal, in the
sense that the defendant cannot accommodate persons with the characteristics of the
claimant without incurring undue hardship." [See also: Entrop et al. v. Imperial Oil
Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.).]
and at 632:
"As was said by this Court in Osborne and Butler, the threshold for finding
a law vague is relatively high. So far discussion of the content of the notion has
evolved around intelligibility."
"(a) the need for flexibility and the interpretative role of the courts;
Do the measures impair the freedom in question in the least drastic manner
necessary to achieve the objective; and,
The need for a flexible application of the Oakes test in the context of each
case, was discusses in RJR, McLachlin J., writing for the majority,
described the s.1 inquiry as follows (para. 133):
The Speaker has only his reason and logic to rely on for justification. His
constitutional claims are a matter of the evidentiary proof found in the
opprobrious effect that the impugned prohibition has affected when the
Duty Master applied the impugned rule to a prisoner as he would have any
other person.
Here the Speaker, as a lay litigant admits his confusion as to what authority
bears the burden of proving, on a balance of probabilities, the extent to
which a Charter freedom of a prisoner when offended is reasonable and
demonstrably justified in a free and democratic society [see: Oakes, supra.
(pp. 136-37)] Thus, in defending the Rules or in the application of the
impugned rule to an indigent prisoner, it appears that some authority must
come forward and prove that all of the elements of the two criteria
repeatedly enunciated by the Supreme Court of Canada as in are satisfied.
But, unhappily, this approach to what appears to be the pivotal question
here is absent from the order made by the Duty Master or the decision of
the Chambers Judge. It seems to the Speaker somewhat superficial to deny
so absolutely to a prisoner what are his fundamental civil rights and to do
so without benefit of explanation or regard to the legal effect of the order
on application of the impugned rules to a person so obviously unable to
comply.
In RJR, McLachlin J. considered that the degree of deference to be afforded a
law-making body must depend on the social context in which the rights
are limited, with a caution that deferential scrutiny may sometimes mean
no scrutiny at all (para. 136):
" ... care must be taken not to extend the notion of deference too far.
Deference must not be carried to the point of relieving the government of the burden
which the Charter places upon it of demonstrating that the limits it has imposed on
guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the
appropriate response to social problems within the limiting framework of the
Constitution. But the courts also have a role: to determine, objectively and
impartially, whether Parliament's choice falls within the limiting framework of the
Constitution. The courts are no more permitted to abdicate their responsibility than is
Parliament. To carry judicial deference to the point of accepting Parliament's view
simply on the basis that the problem is serious and the solution difficult, would be to
diminish the role of the courts in the constitutional process and to weaken the
structure of rights upon which our constitution and our nation is founded."
The Speaker's reasoning and interpretation of the language used by the learned
McLachlin J. leads him to the conclusion that the same must hold true in
respect of the Duty Master or the Chambers Judge on application of the
impugned rule to an indigent prisoner. Having carried their judicial
deference to the point of abdicating their constitutional duty to the
Speaker, both having simply accepted the view that the impugned Rules
applied to all classes of person, showing no deference to the evidentiary
facts proving circumstances of a physical, property or other afflictive
limitations that, like imprisonment, acted as the primary "non-
government" prohibition to the realising their s. 15(1) Charter rights.
Thus while the importance of regulations and admirable goals of the
impugned Rules should be considered in the s. 1 analysis, McLachlin J.
held in RJR it does not relieve either the government or the court of the
burden of demonstrating its justification and application. Here the
application of the impugned rule to indigent prisoners is clearly an
invasive one, and there is nothing to prevent this Honourable Court from
striking such rule down or its application under such circumstances if
necessary.
The Speaker has taken a position that his evidence relating to international law
and the foreign jurisdiction of the Respondent is irrelevant and therefore
admissible in the present enquiry. Given the nature of an s. 1 inquiry the
Speaker believes such an analysis must be undertaken as well by the Court
of Appeal, the evidence referred to by Speaker is entirely probative of
whether the extent to which the impugned Rules infringe on his s. 15(1)
Charter rights in Canada before a Canadian court can be said to be
reasonable and demonstrably justified in a free and democratic society.
Here the conduct of the Respondent Bulgaria, as a "free and democratic
society" is evidence that establishes the existence of similar rules and
obligations for the Respondent government equal with those of the
government and courts of Canada and necessary to maintaining standards
of equality under law in both the jurisdictions of Bulgaria and Canada.
Any similar practice as that giving rise to this constitutional challenge and
appeal have been found to be an impediment to the fair and equal
dispensation of justice in the Republic of Bulgaria, with no offsetting
public interest benefits. There is no evidentiary reason that the Speaker
can advance that would suggest to him that there are for some reason
distinguishing considerations justifying the absolute prohibition on an
indigent prisoner in himself prosecuting his law suit up to and including
any trial before a court of British Columbia or Canada for that matter-- our
free and democratic society.
Such laws of the forum, "lex fori", while separate are not mutually exclusive
to the jurisdiction of either state and it is reasonable for the Speaker, if
granted leave to appeal, to apply both of the "lex fori" to of Canada and
Bulgaria to the point on appeal.
The Speaker argues that the Duty Master's order is not only "unreasonable"
but is in fact, according to the analysis of Iacobucci, J., made "patently
unreasonable" on the evidence available to the Master of the Speaker's
imprisonment and indigence.
As a statutory delegate of authority, the Master had a duty to act reasonably
and the failure of His Lordship, when issuing an order that neither accept
to consider relevant factors of the plaintiff's personal circumstances
amounts to an unreasonable decision [see mutatis mutandis: Oakwood
Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2
S.C.R. 164; 61 N.R. 321; 36 Man.R (2d) 215; [1985] 6 W.W.R. 147; 18
Admin. L.R. 59, Madam Justice Wilson said at p. 69 that "the failure of an
administrative decision-maker to take into account a highly relevant
consideration is just as erroneous as the improper importation of an
extraneous consideration", and further citing as authority Lord Denning in
Baldwin & Francis Ltd. v. Patents Appeal Tribunal , [1959] 2 All E.R. 433,
at 447 (H.L.), where he said that "if a tribunal ... fails to take into account
a vital consideration which it ought to have taken into account, then its
decision may be quashed on certiorari and a mandamus issued for it to
hear the case afresh".]
"Section 2 provides
"(2) On an application for judicial review, the court may grant any
relief that the applicant would be entitled to in any one or more of the proceedings
for:
"8 (1)....
(2) Despite subsection (1), the court may not refuse to grant relief
in a proceeding referred to in section 2 on the ground that the relief should have been
sought in another proceeding referred to in section 2."
What was before the Chambers Judge was an application for judicial review
under s. 24(1) of the Canadian Charter of Rights and Freedoms founded
upon an alleged infringement by application of Rule 41(16.5) (b) to an
indigent prisoner by the Duty Master Crown of the right of the Speaker
under the Charter, inter alia to make full answer and defence on a Rule 14,
Rules of Court motion filed by the Respondent Bulgaria.
In Knight , supra, L'Heureux-Dubé, J., observed at 682 [S.C.R.] that the
concept of the duty of procedural fairness there was discussed in the
context to be followed by a tribunal. The finding was that such duty is
variable and its content is to be determined "by reference to all the
circumstances under which the tribunal operates". She elaborated in Baker
v. Canada (Minister of Citizenship and Immigration), supra, there the
parties had found that a duty of procedural fairness applied to the
proceedings leading to the impugned decision. She said at 837 [S.C.R.]:
" The existence of a duty of fairness, however, does not determine what
requirements will be applicable in a given set of circumstances. As I wrote in Knight
v. Indian Head School Division No. 19 ... at p. 682, 'the concept of procedural
fairness is eminently variable and its content is to be decided in the specific context
of each case'. All of the circumstances must be considered in order to determine the
content of the duty of procedural fairness ...
INTERPRETATION
"12. Every enactment is deemed remedial, and shall be given such fair, large and
liberal construction and interpretation as best ensures the attainment of its objects.
In the further alternative, the Duty Master erred in judgement on holding a person
deprived of his liberty, and no resources to retain a lawyer, as having no legal
standing to bring or have his petitions heard, either as a person aggrieved by a
defendant in the trial proceeding, or as a person satisfying the test for an afflictive
disability requiring a procedural remedy. It further follows that:
The Chambers Judge erred in judgement on holding the Duty Master's order as
reasonable on application to a person deprived of his liberty and living in poverty.
His Lordship, having a constitutional duty to procedural fairness, was wrong in
refusing the petitioner a judicial review, and remedy, against the discriminatory and
prejudicial affects of the order. It having absolutely barred any judicial hearing of the
petitioner's complaints, and solely because the petitioner could not appear or a retain
a lawyer.
In the further alternative, His Lordship erred on holding a indigent person deprived
of his liberty had no legal standing to bring a petition for judicial review of a Charter,
or other constitutional question, either as a person aggrieved by the Duty Master's
order, or as one satisfying the test for public interest standing, the Charter applying to
both the order and the practice and procedure under an enactment.
Success of the Applicant's "fair question" on appeal, the so called "merit test", turns
on the argument that later evolves from the 8 points he has previously listed above.
The points raised are made arguable when applying the test found in Meiorin to the
observable affects of the order as well as impugned Act. The Applicant further
supporting his later argument with the cited principles of international law as
naturally form a part of Canada's broad guarantees of equal rights and freedoms
under its human rights legislation.
Applicant/Plaintiff
Michael Kapoustin
1
The Applicant refers to the accusatory letter of Staff Sgt. Derek A. Doornbos, R.C.M.P. Liaison Officer at
the Embassy of Canada to Austria. A true and correct copy of this letter, translated into English, is in
possession of the ministries of the Attorney General of Canada and British Columbia. It forms the basis of a
Applicant’s civil action against officer Doornbos, Case File. No. S004040 before the Supreme Court of
British Columbia, Vancouver Register.