Académique Documents
Professionnel Documents
Culture Documents
2. The venue of this complaint is proper under Article 7 para (1) of the Act. The Minister embodies the
legal competence to assess the lawfulness of actions effected by agents or agencies of Canada under
provisions provided for and the conditions considered by the Act.
3. It is asserted that the Minister has as Attorney General proper jurisdiction and venue to ascertain the
penal or administrative liability, if any, of Doornbos and possibly others alleged to be responsible for
the acts setout below which give rise to this complaint and are the cause of the allegations herein that
Canadian law and the rights of the Claimant have been violated by an unlawful and unauthorized
implementation and administration of the Act and by the slander and deep humiliation of the Claimant
and his family by Doornbos.
4. The allegations are asserted to be violations within the purview of the Charter of Rights and
Freedoms. The Attorney General of Canada has venue in that the rights of the individual as provided
for and protected therein cover those actions by Canadian officials, including police activity and
investigation, as conducted or affected by them through agencies in a foreign state. The consequences
of such activity by Canadian officials when having a direct impact upon the rights identified under the
charter are subject to review.
5. The Attorney General of Canada as the competent authority must assess if Doornbos did commit
prosecutable acts against the person of the Claimant and justice by successfully denying the Claimant
his rights to due process and law while in pursuit of an investigation outside of Canada. It is alleged a
violation of law arises from Doornbos engaging on his behalf the agencies and instrumentalities of a
foreign state to successfully circumvent the procedures and law embodied in the Act, the Charter and
other laws of Canada.
8. The acts complained of herein as alleged are inter alia, violations of Article 17 para (1) and Article 18
para (1) of the Act. There exists no instance or document in evidence that the Minister did either
receive or in the alternative approve a lawful request, under Article 11 para (1) of the Act, from the
Republic of Bulgaria, to obtain in Canada on its behalf the provided by Doornbos evidence or to, in the
alternative provide to the Republic of Bulgaria reports by Canadian police officers with respect to an
offense over which the Republic of Bulgaria claims jurisdiction.
9. There exists no application or order from a judge of complement jurisdiction in Canada which did
authorize the gathering of evidence, the preparation of reports and their sending abroad. The exhibits
referenced herein and attached hereto provide evidence that Doornbos and others violated Article 20
of the Act, and therefore Canadian law, by unlawfully collecting, preparing and delivering to agencies
of the Republic of Bulgaria evidence and data concerning the Claimant and to be used by the Republic
of Bulgaria against him. Doornbos at all times knew of the Act, the Privacy Act, the Freedom of
Information Act, the Charter and his obligation under law to them. But Doornbos’ actions as recited
herein show that as a police official and diplomatic representative of the Government of Canada he did
not feel bound by them.
10. The complaint as brought and violations described reveal that the Minister could not give affect or
means to the provision under Part I of the Act on account that the Republic of Bulgaria is not a party
1
to the treaty under which the Act is promulgated and is therefore not entitled, under Article 8 of the
Act, to mutual legal assistance without the consent of the Minister of Foreign Affairs, Canada.
11. Article 6 para (1) of the Act requires an "administrative arrangement" be instituted with any non treaty
foreign state on a case by case basis by the Minister of Foreign Affairs, Canada. Inquiries and court
records reveal no administrative arrangement affected by the Ministers of Foreign Affairs, Canada and
Foreign Affairs, Bulgaria upon the subject matter of Claimant
12. The Claimant asserts that Doornbos and others did violate laws of the Republic of Bulgaria. The
alleged violation arises from Article 464 para (2) of the Bulgarian Penal Process Code, which reads:
“464 (1)…
(2) The request for legal assistance shall be forwarded to the Ministry of Justice and Legal
Euro- Integration (Bulgaria), unless another procedure is provided by international treaty to which the
Republic of Bulgaria is a party.”
Government of Canada and the Ministry of Justice of Bulgaria records (see Exhibit No. ) reveal no
such request for legal assistance having been made in compliance with the Republic of Bulgaria Penal
Procedure Code or the Act.
Allegations
13. The complaint alleges that the violations of law claimed would not have been otherwise possible if not
for the means and instrumentalities available to Doornbos as an official at Government of Canada
facilities situated at the Embassy of Canada, Vienna, Austria, and if not for the instrumentalities and
secure telecommunications, diplomatic mails and other facilities of the Royal Canadian Mounted
Police, Ottawa, Ontario and Vancouver, British Columbia. It is alleged a violation of law arises from
Doornbos’ use of these resources on behalf of the Republic of Bulgaria.
14. It is alleged a violation of law arises when an “administrative arrangement” had been made between
Doornbos, an Officer of the Royal Canadian Mounted Police and an agency of the Republic of
Bulgaria on or about May 15, 1995 without the knowledge, consent or participation of the respective
parties of the Minister of Foreign Affairs, Minister of Justice and Office of the Attorney General of
Canada, either jointly or severally as incumbent under the Act.
15. It is alleged that commencing on or about May 15, 1995 and including but not limited to the dates of
June 13, 1995; July 7, 1995; September 7, 1995; December 13, 1995; April 1, 1996; August 14, 1996;
August 23, 1996 and July 2, 1997, Doornbos, an employee of the Government of Canada, did meet or
had contact with Stefcho Georgiev (hereinafter “Georgiev”) and other officials of the Republic of
Bulgaria (hereinafter “Bulgaria”) with the purpose and intent to officially and publicly humiliate,
degrade and damage the reputation as well as the financial well being of the Claimant, by knowingly,
with malice and aforethought, uttering untrue, false and slanderous remarks concerning the personality,
character and business activities of the Claimant. Representations, which Doornbos knew or should
have known to be untrue, yet did, intentionally and with malfeasance, represent the said false and
slanderous remarks to officials of Bulgaria and its mass media, so that they and the public at large
might believe, inter alia, that the Claimant had been convicted in Canada for the sexual rape of
children; was an internationally recognized fraud and swindler known to be a close associate of one
Ivon Shearing and a participant and financial supporter of Mr. Shearing’s “pseudo – religious cult” the
“Kabbalarian Society” of Canada; that the Claimant’s international company “LifeChoice” in the
Republic of Bulgaria was a criminal operation and large scale fraud; had transferred 16 million United
States dollars to Canada, all or a substantial part claimed by Doornbos as coming from citizens of the
Republic of Bulgaria, something he knew to be untrue.
16. From the period of May 31, 1995 to the present the aforesaid misrepresentations and slander appeared
repeatedly in hundreds of national newspaper articles, television and radio programs and official
2
documents throughout the Republic of Bulgaria as well as on a number of occasions in parts of Canada
and Europe via electronic news services. The aforesaid is best represented and evidenced by a
published interview with Georgiev in Continent newspaper, Sofia, Bulgaria, on August 1, 1996 (see
below para….).The aforesaid official and public humiliation, degradation and slander of the Claimant
was to facilitate his unlawful arrest upon the grounds of the Doornbos’ slander and misrepresentations
and to thereby cause damage and injury to arise therefrom as suffered, inter alia, from the seizure and
destruction of the Claimants’ property, loss of income, the extortion of cash, physical torture;
permanent injury derived of emotional and psychological trauma.
17. That Bulgaria was induced by Doornbos into collaborating in the arrest and public humiliation of the
Claimant by an oral and written promise it would be beneficiary of all or a substantial part of 16
million United States dollars alleged to be property of the Claimant and his associates. This financial
reward as officially embodied in a July 7, 1995 letter by Doornbos, it provided motives for arrest as
qualified solely upon the personal suppositions of Doornbos therein, as elevated by him to the status of
“official facts” and “conclusions“ of the Government of Canada without the knowledge, consent or
order of his immediate superiors and in violation of the principles and procedures of international law.
18. It is alleged the slander, misrepresentation, misstatements and other information gathered and its public
release by agencies of the Government of Canada as subsequently transmitted from Canada’s embassy
at Vienna, Austria to agencies of the foreign states in question was undertaken to make such
information ultimately public. These slanders, misrepresentation, misstatements and conclusions of
Doornbos and the Government of Canada manifest acts which it is alleged breached the Claimant’s
rights under the Privacy Act and Freedom of Information Act since these agencies and Doornbos
failed to comply with the law and procedure incumbent upon them under law.
19. It is alleged the said data provided Bulgaria by Doornbos on the part of Canada, which is the cause of
this complaint was submitted by him in the full knowledge that it was to be made public, in whole or in
part and was to be used to affect the prosecution and arrest of the Claimant, a citizen of Canada, by
the police and courts of a foreign state. Doornbos stated purpose and intent was to help Bulgaria
prosecute the Claimant so as to aid and facilitate, directly the criminal investigation of one Ivon
Shearing and the Kabalarian society. An investigation and subsequent penal proceeding to which the
Claimant was neither a party, a witness to or a subject of. The interactions complained of herein and
recorded in official documents establish Doornbos as irresponsible and his behavior unlawful.
Subsequent events have proven the Doornbos’ conduct to be the product of a criminal malfeasance
designed by him to secure professional prestige and financial gain, information and money essential
to and desired by Doornbos and others at the expense of the Claimant’s honor, integrity and property.
20. The Claimant further alleges that his arrest, detention and torture by agencies and instrumentalities of
the Republic of Bulgaria had arisen directly and indirectly, on account of an unlawful implementation
of the Act and the effecting of its provisions by Doornbos whose acts and transactions with Bulgaria
when affected thereunder, did give rise to the preparation and dissemination to the mass media of
official Government of Canada correspondence, reports and evidence which was known to Doornbos
to be false, misleading, suggestive and intentionally slanderous. His hope and intent was his
misrepresentations and misstatements might cause, and in fact did cause in substantial part the
prosecution, arrest, extradition and torture of the Claimant by those agencies of Bulgaria with whom
the said Doornbos and the Government of Canada did unlawfully interact.
21. On account of Government of Canada assurances offered by Doornbos and due to the belief and
promise of a financial reward, Bulgaria did not subject his representations to any proper legal test as
was incumbent upon it. Doornbos provided the data and confirmation needed for the public
humiliation of the Claimant and seizure of his assets. Doornbos provided the means for Bulgaria to
divert attention from other crimes committed by its agencies and instrumentalities as reported to the
European Court of Human Rights on April 10, 2000 under case No PN 6650 Michael Kapoustin et al
versus the Republic of Bulgaria, as well to gain other benefits.
3
22. Doornbos caused Bulgarian agencies to embark upon an official campaign to induce in the minds of
the public enmity, hostility, antipathy, rancor, malice, discrimination and bias against the Claimant with
the intent to cause loss of reputation and goodwill. Jointly and severally Doornbos did conspire and
plan with the promise of money to Bulgaria if it succeeded in securing the desired criminal prosecution
grounded upon the slander and acrimony as privately, personally, politically and publicly promoted by
him. Though these criminal allegations were unsubstantiated and contrary to the facts and
circumstances known Bulgaria did nonetheless affect, at the insistence of Doornbos “any prosecution
whatsoever against Kapoustin”. This prosecution a precondition to the 16 million dollar financial
reward promised by the said Doornbos. Whereupon on February 7, 1996 the Claimant Kapoustin was
summarily and without due process under law, imprisoned by the Defendants and remains so in the
Republic of Bulgaria at Sofia Central Prison, 21, “Gen. Stoletov” St., 1309, Sofia until this day.
23. The Claimant alleges his extradition from the Federal Democratic Republic of Germany and his
subsequent beating and torture were a direct consequence arising from Doornbos’ allegations of
pedophilia, religious perversion and offers of cash. The torment commenced on September 18th and
continuing to October 23rd 1996. It began again on January 15 th 1997 until March 6th, 1997 and then
again July 1st 1997 until November 10th 1997 was adjunct to a severe interrogation in the absence of
attorneys or interpreters. These interrogatories were concerned entirely and exclusively upon the
subject matter of Doornbos’ claims as setout in Government of Canada requests. Most particularly that
of July 7th 1995 and the August 1st, 1996 claims of Georgiev and the monies referenced therein and
repeatedly inquired about thereafter by the Canadian officials.
The physical and mental torture involved beatings about the shoulders, back, buttocks and legs muffled
through blankets and affected by hard, yet flexible, plastic or rubber, Each incident involved 4-6
masked individuals one of whom repeatedly interrogated the Claimant in poor English concerning
funds purported to be ensconced in Canada with criminal associates identified to the Government of
Bulgaria by agencies of the Government of Canada.
Subsequent to these beatings the Claimant was kept in isolation for days, often weeks, without any
contact except the investigator supervising the case. Beating lasted as little as 5 minutes with the
longest being approximately 10 minutes.
During the 1997 episodes of abuse the Claimant was repeatedly given, without his knowledge,
psychotropic drugs to disorient him deprive him of sleep and to induce moods of extreme depression
and helplessness. Subsequent to these episodes the Claimant would again be interrogated upon the
subject matter of the funds in Canada and his returning those funds to the Republic of Bulgaria.
Each denial by the Claimant of having any knowledge of these funds encountered assurances by his
interrogators that the information was accurate and provided by Canadian authorities who sought
together with Bulgaria the return of these funds. Interrogators were certain the Claimant was lying and
therefore extended their beatings and continued their investigation for 4 years prior to committing to
trial. Bulgaria continues, until this day, to believe there are funds in Canada as represented to them and
to demand the money from the Claimant.
4
II FACTS
The following facts are within the context of Canadian and Bulgarian national law
regulating international legal assistance in criminal matters and the delivery of
information.
The statutes of Canada are particularly comprehensive on the subject of judicial
supervision of Canadian police investigations, notwithstanding the extraterritorial
nature of such investigations.
Bulgaria national law on the subject is practically nonexistent.
A synopsis of the respective national laws must be antecedent to the documents,
correspondences, evidence, and events surrounding the Canadian request to Bulgarian
authorities to prosecute the Applicant, and actually preceding the Bulgarian criminal
investigation and other reaction to the Canadian information and request.
Both Canadian privacy laws and the Mutual Legal Assistance In Criminal Matters Act
evoke a Canadian citizen’s privacy protections under s.7 and s.8 of the Charter of
Rights and Freedoms.
There is no official document approving the transmittal abroad of police investigative facts
or information concerning the Applicant and obtained during the course of a criminal
an investigation conducted in Canada.
1. The 7 July 1995 investigative conclusions and request provided the Government as represented by RCMP
Command Liaison S. Sgt. Doornbos correspondence sets out and qualifies conclusions of the writer
[Doornbos] elevated to the status of “official facts” and “conclusions“ of the Government of Canada without
the knowledge, consent or order of his immediate superiors and in violation of the principles and procedures
of law under “Mutual Legal Assistance In Criminal Matters Act”, Chapter M – 13.6 (RS 1985, c. 30 (4th
supp.)) 1988, c. 37, assented to 28 July, to which Doornbos was legally incumbent as an official of Canada.
2. On 25 July 2000 the family of the Applicant brought civil action in British Columbia Supreme Court against
RCMP Command Liaison S. Sgt. Doornbos and others wherein it was alleged that Canada Charter of Rights
and Freedoms and consolidated Federal and provincial Privacy Act(s) [R.S.C. 1985, R.S.B.C. 1996] had been
breached. No action against the Government of Canada was possible under civil Action No, S004040,
Vancouver Registry on account of the acts as alleged were “de jure gestionis” and not “de jure imperii”.
Paragraphs 41 and 42 of the claim read:
41. Plaintiffs would then claim that the officials, agencies and instrumentalities
of the Government of Canada did violate the law promulgated under the
(Provincial) Protection of Privacy Act [R.S.B.C. 1996] Chapter 165, Section
15 (h), S. 30 and S. 28 in conjunction with S. 22 (1); the (Federal) Privacy
Act [R.S.C. 1985] Section 8 (1) and further re-allege that the acts and
transactions of, inter alia, preparation of false, misleading and slanderous
materials; the sending abroad of same; causing the public distribution and
publication of information protected by law and the preparation and delivery
abroad of official reports and documents was adequate proof of common law
torts of privacy, defamation and slander as having occurred in this Court’s
district.
3 Interpol
3. The operational exchange of information between police agencies or instrumentality of Government may be
conducted between offices of Interpol, in the absence of a treaty, an agreement or other arrangement, may be
conducted, to a limited degree and in compliance with the national legislation of the respective parties and
international law.
4. As of 1990 offices in member countries are known as National Central Bureaus (NSB’s) and in 1990 consisted
of more than 150 national law enforcement agencies, Canada for some time and effective Government
membership in the last years.
6. On July 4th 1989, 13 members of the Council of Europe issued a motion calling for an extensive investigation
of Interpol. Some extracts from this motion include:
7. On 7 February 1996 Applicant while in transit at Frankfurt International Airport to his family in Kavala,
Republic of Greece, was placed under arrest at the request of Interpol by airport police authorities of the
Federal Democratic Republic of Germany (“FDRG”) and remanded in accordance with Article 16 § 1,
European Convention on Extradition (“ECE”).
8. On 2 September 1996 Applicant was extradited by the FDRG to the Republic of Bulgaria to face trial on
accusations and charges embodied in a 28 November 1995 and 12 February 1996 Order(s) of Detention
[warrants of arrest] issued by one police investigator S. Georgiev, National Investigative Service (“NIS”) and
authorised by supervising prosecutor M. Stoyanov, Sofia City Prosecutor’s Office (“SCPO”) as presented by
the Government in its effort to comply with Article 12 § 2 (a) of ECE.
10. On 26 July 2000, the Applicant, in a civil proceeding commenced by his wife and son before the British
Columbia Supreme Court claimed an allegation of scienter against [civil defendants] police investigator S.
Georgiev, SCPO prosecutor M. Stoyanov and others, the scienter allegation reads:
82. This alleged violation of law arises from the November 28,1995 “orders of
detention” produced by Defendants Georgiev and Stoyanov at the direct or
indirect inducement of Defendant Doornbos, whereupon and subsequent to
the Defendant Georgiev did on November 30, 1995 and again on Feb. 12,
1996 provide to Interpol Sofia requests of which the substantive content was
known by Defendants to be false and principally grounded upon the
unconfirmed allegations, conclusions and slanderous representation of
Defendant Doornbos, thereby directly and indirectly inducing agencies and
instrumentalities of the Federal Democratic Republic of Germany
(hereinafter “FDRG”) to wrongfully arrest Plaintiff Kapoustin at Frankfurt
International Airport on Feb. 7th, 1996. It is alleged the ensuing 208 days
detention of Plaintiff Kapoustin by the FDRG and his subsequent handing
over to Defendant Bulgaria and additional 1405 days of captivity, did
permit, facilitate and aid the Defendants in proceeding with their
malfeasance, slander, planned extortion and other violations of law.
85. It is alleged the “orders of detention” were known to the Defendants and
FDRG to be primary violations of prevailing international law and practice.
The “order of detention” could prove to the Defendants and FDRG a legal
obstacle to their planned malfeasance and extortion, if tested by a court of
the FDRG and Defendants’ scienter discovered.
86. The said documents, in and of themselves, were insufficient and not in
compliance with the prevailing international legal precedents for arrest,
detention and extradition by a third party. The Defendants to give effect to
their unlawful intent to gain bodily the Plaintiff Kapoustin undertook to and
could engage in a fraudulent scheme due to their official control over the
content of documents and statements made to the FDRG as translated and
officially transmitted by them in the German language.
89. Defendants Georgiev and Stoyanov who issued the “orders of detention” of
November 28, 1995 and February 12, 1996 and which constituted, in totus,
the grounds for arrest, detention and extradition by the FDRG, would not
meet any criteria of international law had not the Defendants participated in
the fraudulent scheme arising by virtue of the materiality of their misleading
misstatement in documents provided by them to the FDRG.
92. This same principle applies to statements submitted by the Main Public
Prosecutor of Bulgaria, Ivan Tatarchev, on February 16, 1996 to the FDRG,
the contents of which are grounded in their entirety upon the fraudulent and
unlawful actions of the Defendants as alleged herein and are therefore not
materially different although issued independent of the Defendants.
94. The Defendants employed devises, schemes and artifices to defraud and
slander; made untrue statements of material fact and/or omitted to state
material facts necessary to make the statements not misleading; engaged in
acts, practices and a course of official conduct which operated as a fraud
and deceit upon the Plaintiffs, the FDRG and the public, which included the
physical and mental torture of the Plaintiff Kapoustin, emotional and
physical anguish of other Plaintiffs. Defendants acted in an effort to
humiliate the Plaintiffs and to gain for the Defendants and/or others the
Plaintiffs’ assets in order to as well protect the Defendants from discovery
and prosecution; to gain, as agents for Defendant Doornbos, a reward and
benefit, for affecting acts vicariously relating to affairs of his principal,
Canada; to enhance their official positions and to secure the substantial
compensation and prestige they hoped to obtain by so doing.
95. The Defendants did as well conceal evidence of crimes against justice,
humanity and the person of the Plaintiff Kapoustin as known by them and in
evidence. In abnegating their responsibility to law and failing in their joint
and several incumbency to report new crimes, the Defendants jointly and
severally become culpable and liable for the injury and harm caused the
Plaintiffs as setout herein.
97. Defendants’ acts included, inter alia, the making of, or the participation in
the making of, untrue statements of material facts and omitting to state
material facts necessary in order to make the statements as they were made,
not misleading, as set forth more particularly herein, and engaged in
practices and a course of conduct which operated as a fraud and deceit
upon the public, the Plaintiffs and the FDRG and a slander upon the
Plaintiffs’ honor and reputation.
100. Defendants have deliberately refrained from taking those steps necessary to
discover whether those documents and statements were false or misleading.
Individual Defendant’s ignorance of the fact that other Defendants as
officials of the Defendant Bulgaria and Government of Canada were
providing directly or indirectly false and misleading documents and
statements and relying upon the individually responsible Defendants’
integrity as an official whose representation must therefore by default be
truthful even in the presence of materially adverse information provided by
the Plaintiffs and Plaintiff’s attorneys, provides no excuse or relief from
liability or culpability for the consequentially injuries and damages suffered
by the Plaintiffs as a direct and proximate result of the Defendants’ wrongful
conduct or willful ignorance.
101. At all relevant times, the Defendants, individually and in concert, directly
and indirectly, engaged and participated in a continuous course of action
and conduct whereby they knowingly provided public representations which
they knew to be materially false and/or misleading and would cause direct
personal injury and financial harm to the Plaintiffs. This continuous course
of conduct resulted in the publishing and electronic transmission of media
statements and official documents that were false, misleading and
slanderous as to their content.
103. The Plaintiff Kapoustin and his business activities in Bulgaria, prior to his
arrest were the sole financial support for his family. The unlawfully seized
property and business represented all the assets of the Plaintiffs of which the
Plaintiffs Tracy and Nicholas are owners, beneficiaries and heirs to the
income and value represented and upon which they were dependent.
105. The Individual Defendants did cause or control the issuance of public
statements containing the slanderous and misleading representations alleged
herein.
106. The Individual Defendants had actual knowledge of the facts making these
public statements and official documents false, misleading and slanderous or
acted with reckless disregard for that they failed to ascertain and to disclose
such facts, even though same were available to them.
108. The actions of the Defendants have reduced the natural life expectancy of
Plaintiff Nicholas and placed a burden upon a young life, which is
immeasurable in financial or material terms. The Plaintiffs shall be weighed
with the expense of special medical attention and care and a lifetime of
anxiety over the health and well being of their 7 (seven) – year old son.
109. The unlawful seizure and destruction of the Plaintiffs’ property and assets by
the Defendants has further denied Plaintiff Nicholas his rightful inheritance
and future opportunity.
111. The extreme stress, personal anguish and anxiety born of the demands of
what is an unjust and undeserved burden have physically manifested
themselves in ill health requiring constant medication and the regular
attention of physicians, thus causing added financial hardship upon the
Plaintiffs.
112. As a result the Plaintiff Kapoustin’s elderly parents Robert and Tatiana, due
to the humiliation and anxiety they suffered from the Defendants’
malfeasance, slander, unlawful arrest and inhuman treatment of their son,
with attempts by the Defendants to extort money from them and the threats
made in the process thereof against their and their son’s safety and lives as
the alternative to non payment, caused Robert and Tatiana to suffer grievous
personal anguish and anxiety which proved to be the direct cause of the
physical and mental deterioration and illness of Plaintiff Kapoustin’s 67-
year-old mother Tatiana, whose failed health has placed her under ongoing
institutional care and requires the constant attention of her husband, Robert,
who at 78 years of age has had to bear the emotional and financial burden
of his wife’s care with that of the Plaintiff Kapoustin’s sister Sonia Jordan,
neither of whom, in the absence of the Plaintiff’s support are able to
financially sustain the care of Tatiana and themselves and their effort to
protect their son and gain his freedom.
113. These unjust emotional and material demands have caused the Plaintiff
Kapoustin’s elderly parents to lose their home of twenty years, which to them
has been second to the resultant loss of the love, care, companionship and
affection in the winter of their lives of the son unlawfully denied them.
115. As a result the Plaintiffs have jointly and severally incurred certain special
damages, loss and expenses and further loss and expense in the future,
particulars of which will be provided on request.
Stefcho Georgiev was appointed by the chief of department Alexandrov as an investigator (sledovatel) under the
case on the 30 October 1995.
12. On 28 November 1995, police investigator (sledovatel) S. Georgiev brought a charge of embezzlement
qualified according to Criminal Code, Article 203 §1, the accusation reads:
The committed offence is found under Article 203, § 1 ref. Article 26,§ 1 of the
Penal [Criminal] Code.
and with considering the degree of the danger to society of the offences committed,
the personality of the perpetrator, the possibility of his non-attendance and other
facts: the great degree of the danger to society - damaged in the amount of more
than 5 mln. USD were thousands of Bulgarian citizens - investors of the LifeChoice
International Share Holding Company [LCIAD], Sofia and in compliance with the
prescriptions of the p.5 of the Directions Letter of the District Attorney of Sofia
[Sofia City Prosecutor's Office - phonetic SGP - Sofiiska Gradska Prokuratura]
according to Articles 146 - 148, 152, 207, 209, 212,of the Penal Procedure Code
[Criminal Procedure Code (CPC)]
HAVE RULED:
14. On 30 November 1995 NIS investigator Georgiev directed a request to Interpol as predicated under Criminal
Procedure Code Article 133 to search with objective to arrest and extradite the Applicant on account of the 28
November Ruling to bring a charge of embezzlement as qualified under Criminal Code Article 203 para (1).
The data provided to Interpol as relevant to this Application reads:
Most probably large-scale “money laundering” operations are going on. The
Canadian source of this information supposes that it is most likely that a
considerable part of these amounts come namely from the funds accumulated in
Bulgaria by KAPOUSTIN through the large-scale financial frauds carried out by his
pyramidal structure “LIFE CHOICE”. The transfers are effected through Caribbean
banks.
At the end we ask you for urgent and active search of the accused MICHAEL
KAPOUSTIN through the structures of Interpol throughout the world. There are
data that the latter has circumvented Bulgarian and Canadian Tax Legislation by
cash transfers of large amounts in USD and DM.
15. At all material times during the period in question the Applicant's permanent residence and legal counsels in
Canada, McCandless, Morrison and Verdicchio, were known to Canadian authorities in liaison with the
agencies and instrumentalities of the Government, who as well were aware, in addition thereto, of the
Applicant's home at 14-B, Plio St., Kavala, Greece and corporate offices of LifeChoice S.A. at 9, Idras St.
Kavala, Greece as was clearly evident from LCIAD corporate documents made available to the Government,
in addition to the foregoing the Government, as its agencies and instrumentalities were aware of, having been
informed as to and had in fact interviewed legal counsel of the company and the Applicant, thereby having
made it incumbent to subpoena the Applicant under the national Criminal Procedure Code Article 268 para (3)
and para (4) to first demand his attendance as is obligatory under domestic law setout in conjunction with
Article 217a of the Code.
16. At no material time during the period in question did the responsible agencies or instrumentalities of the
Government undertake to subpoena or otherwise attempt to notify the Applicant as required and setout in
Article 158 CPC and in the absence or refusal of an accused or summoned person serving may be effected
under Article 160 of the Code.
17. On 15 December 1995 apparently after NCB Interpol refused the request of NIS investigator Georgiev a
second request to the Head of NCB Interpol Sofia, Mr. Hristov was brought by MPPO Prosecutor Doichev as
an order to be directed and followed by Interpol without consideration as to the merits, quality or lawfulness
of that request, in so doing the MPPO demanded Interpol NCB Sofia to apparently abnegate what
independence, if any, as international organization it might possess, the order reading:
I ORDER:
19. The Applicant repeats and re-alleges each of the foregoing paragraphs as if fully set forth herein.
20. On 13 February 1996 new accusations and charges were brought by NIS investigator S. Georgiev after his
having being notified by the MPPO of requests to the Government for documentation, in the German
language and compliance with Article 12 § 2 (a) ECE, the new criminal suppositions and purported facts as
represented to the FDRG read:
…[sic]…
1. For the period of time April 01, 1993 till August 01, 1995 in the city of Sofia
and in other cities of the Republic of Bulgaria, and with the conditions of
constantly perpetrated crime, for the purpose of receiving material benefit for
himself, has initiated and supported a fallacy with a number of 9,065 Bulgarian
citizens by way od issuing them with "Redeemable Depositary Receipts" and
"American Depositary Receipts" and has thereby caused to those a material
damage of especially great value in the sum of USD 7,898,815.00, representing
an especially aggravated case.
The committed offence is found as per Article 211 ref. Article 209 para 1 and
Article 26 para 1 of the Penal Code [Nakazatelen Kodeks - Criminal Code
(CC)] of the Republic of Bulgaria.
2. For the period of time June 17, 1993 till August 01, 1995, in the city of Sofia,
Republic of Bulgaria, and with the conditions of constantly perpetrated crime,
has unlawfully acquired the corporate movable property, as placed in his care
and governing under his official capacity of executive director of the
"LifeChoice International Ltd",[LCIAD] Sofia - sums of money in Bulgarian
levas and in foreign currency in the amount of USD 4,721,185.00, being wire
transferred from the Republic of Bulgaria to the USA and Jamaica through the
submitting to a Bulgarian bank of 6 fictitious pro forma invoices. This
embezzlement is of an especially great value and is representing especially
aggravated case.
The committed offence is found as per Article 206 para 4 ref. Para 1 and
Article 26 para 1 of the Penal Code of the Republic of Bulgaria.
The committed offence is found as per Article 313 para 2 ref. para 1 of the
Penal Code of the Republic of Bulgaria.
HAVE RULED:
1. To bring a charge against MIHAIL (MICHAEL) KAPOUSTIN as accused for
the criminal offences stated herewith as per Article 211 ref. Article 209 para 1
and Article 26 para 1; Article 206 para 4 ref. para 1 and Article 26 para 1;
Article 313 para 2 ref. para 1 of the Penal Code of the Republic of Bulgaria.
The measure thereto "Detention Under Custody" to be counted after the 27 th day of
November 1995, this day being sanctioned and taken by the District Attorney of
Sofia [SCPO].
… [sic]…
21. Attorney Stoycheva again dutifully as required by NIS investigator Goergiev did endorse the new criminal
accusations brought against the Applicant and charges qualified under Criminal Code Article 206 § (4) 1,
Article 211 and Article 313 § (2) 1. Subsequently thereafter new Orders of Detention [arrest] were authorised
by supervising SCPO Prosecutor M. Stoyanov.
22. On 16 February 1996 Main Public Prosecutor Ivan Tatarchev [Attorney General], MPPO Republic of
Bulgaria submitted a request [petition] to the Ministry of Justice, FDRG, the Minister, to extradite the
Applicant to the Republic of Bulgaria. MPP Tatarchev repeated and re-alleged the contents of the 28
November 1995 and 12 February 1996 Orders of Detention [arrest] going on to state, inter alia, that remand
in arrest of the Applicant was qualified since 27 November 1995, by "default" under Criminal Procedure
Code, Article 152 § (1); that the investment contracts [Depositary Receipts] publicly offered and floated in
Bulgaria are not securities; LCIAD, a company managed by the Applicant, conducted illegal banking activity;
9,000 individuals concluded investment contracts [depositary receipts] equal to 12,620,000 USD; there
existed as of the 12 February 1996 Order of Detention [arrest], in possession of the Government, 3,400
individual criminal complaints against the Applicant; private complaints allege breach of contract, fraudulent
representations and the forcing of 3,400 individuals to act against their will; the unlawful acquisition of clinic
drugs from outside Bulgaria; failure to purchase the medicines from agencies or instrumentalities of the
Government; failure to import the purchase clinical drugs; the alleged misappropriation of 7,898,815 USD on
account thereof; avoided personal income tax due the Government and provided a false personal tax
declaration.
23. The Applicant repeats and re-alleges each of the foregoing paragraphs as if fully set forth herein.
24. On 2 September 1996 the Applicant, while still hospitalized and under doctors' care by prison authorities of
the FDRG, was forcefully removed from intravenous feeding and hydration by police officers of the FDRG
and transported, unconscious by police vehicle, to a waiting Balkan Airlines flight where after being
physically carried aboard the aircraft by Frankfurt airport hospital staff the flight departed for the Republic of
Bulgaria.
1. Court Record April 21, 1999 – p.9, para 7 – Motion dd. April 9, 1999 requesting to admit evidence and
Motion dd. April 13, 1999 – requesting in its essence to stop the proceeding, written evidence attached not
translated
-Prosecutor Stoyanov – p. 9, para 8 - Not to honour the request – the
issues brought up in the motion are upon the essence, they refer to evidence and accusation and the C. will rule upon
them by its Act (meaning the verdict – note of translator); evidence not concretized, part of it under the case; request
to stop proceeding – without merit.
2. Court Record April 21, 1999 – the court - p. 22, para 2 – Concerning the April 28, 1999 Motion of the
defendant (dates I cite correctly; checked several times – Marianna) – “finds that under item 2 of the
request in volume 43, sheet 121 – 125 he cannot be given an original text in English of the documents
specified on those pages since the document is for official use and does not contain information concrete
with the accusation brought up”; item 3 – in volume 14 on p. 50 there is a certified translation of a written
declaration submitted through a protocol for submitting dd. July 9, 1997 in Sofia to investigator Kirov
personally by Doornbos. police liaison officer of the Canadian embassy in Vienna and in his letter to
investigator Kirov it is stated that they attach a legalized certified copy; item 4 – the defendant examined
materials in volume 27 banking documents; item 5 – Mike: “Are there transfers to Green Oasis from IBID?
– rejected request, information in vol. 27; item 6 – to demand from Investigative service documents –
technical reoprts – installation – honoured by court; p. 23 item 7 – asking for documents from BNB –
Sasho Roussev – honoured by court; item 8 –the court finds it necessary to demand a response from the
Ministry of Finance – concerning lawfulness and other correspondence about DRs; item 9 p. 24 – honoured
– to obtain from inv. service contracts with Georgia, USA, Canada and Mexico about F-R; item 10 –
request withdrawn by att. Lulcheva ; item 11 – request not grounded since there is no such accusation;
item 12 – rejected request – no relevance to the Act of Indictment; items 13 and 14 connected with Motion
dd. April 13;
REF: case 1403/98
DATE: 28.01.2000
FILE: pet0128002MR
V PETITION
The Defendant in accordance with the law setout in Article 311 para (1) PPC submits the following corrections and
amendments to the court record(s) of January 10 to 14, 2000. The changes petitioned reflect mistranslation,
incomplete sentences, dropped words or wrongly cited articles. The changes requested are as follows:
V.1.1Page 11 para 2
THE DEFENDANT: I would like to request rulings on two issues raised by attorney Loukanov.
The first is in conjunction with Article 217a, Article 268 para (3) and (4) PPC and Article 201. As I repeatedly stated
to this Court in early sessions my arrest and extradition was not effected within the framework of these articles of
law, since no information was submitted to me that I had been under search and they wanted to question me. I
The second is the ruling of M. Stoyanov according to which Articles 206 and 313, the accusations under these
articles had fallen away was not served upon me in compliance with my legal rights. I was at the first division of
prison and I did not receive this document in a language understandable for me. When I presumably understood that
this document had been issued, people who know English to translate it for me and to help me send a protest on my
behalf that protested my rights having been violated. I wrote this protest to the Main Public Prosecutor of RB and to
the Ministry of Justice – Legal Euro Integration in October to December in which I petitioned and protested this
document but I received no response. The first time I saw this document in a language understandable for me, it was
after the first presentation of the case at this Court and not before that. My right to protest against this has been
infringed. This is only one of many of the rights that have been denied to me.
I have repeatedly protested against this ruling and they have outgoing ref. No from prison against it and I have no
response from MPPO.
THE DEFENDANT: I would like to reply to prosecutor Stoyanov. Since attorney Loukanov did not attend during
the last four years when I was in the arrest and he is not in a position to reply in detail to the accusations and words
of prosecutor Stoyanov. I strongly object his statements as being not motivated. The translation of materials – during
the arrest the translator was A. Kossev and not between 12 and 15 translators. They assisted Mr. Kirov and Georgiev.
Had Your Honor paid attention to my petition to you – I motivated and replied as per Article 11 item 2 that I did not
have adequate translations at my disposal, their number was not sufficient and that the documents were not
translated for me. I challenged Mr. Stoyanov to submit to this Court and me a document translated into English
during my arrest. There has been no document produced because no document was translated. He said I had 10
legal counsels – does a signature under a power of attorney mean the presence of a legal counsel? During the years I
stayed under arrest no more than two lawyers have visited me. I’d like to remind the Court that I relied on Mr.
Kossev to tell the truth. Prosecutor Stoyanov asks what I have against Kossev. I cite who Kossev is – he is the same
person who received and maintained the investigative case, as an official when he collected and maintained
information against the Defendant. I cite the Canadian police officer Doornbos letter from July 1995 to translator
Kossev from a Canadian police officer police officer who represents accusations to Kossev which this police
officer believes this Defendant should be charged. Article 25 para 2 and 9 PPC forbids an interested or bias party
such as a police officer, other official or police employed translator, who takes part in collecting of evidence
against an accused person to participate such as a translator that Kossev was in the employee of the police.
Prosecutor Stoyanov asks why I did not protest – these documents were not submitted to me – I had to do this
myself – I had to establish that Kossev was in the police from attorney Loukanov. How could I learn the truth, which
had not been provided but in fact denied to me? Now I know and I protest. It is not right for me to rely on a
policeman, who had his personal interest in my convicting, to translate for me or to submit translations on my
behalf.
As far as the ruling dd 30.11.1998 is concerned, about which Mr. Stoyanov says it has been submitted to me in
prison after I don’t know how many weeks of solitary confinement and hunger strike, he still considers that a
foreign national has no need to understand what has been written – Article 6 para III ECHR Article 5 para (4) CRB
(Constitution of RB) makes it officially implicit that Stoyanov was obligated to submit me or to secure translation
for me of these documents, but he does not consider my rights have any importance. As per compliance with the
conditions of Article 268 PPC I own houses everywhere and is he expected to send summons all over the world. I
can only refer to Article 158 PPC – it is rich in mechanism, by which summons could have been submitted to me. I
cannot see anywhere therein where this obligation is relieved if by whether I may or may not have many residences.
On 14. 12.1999 Your Honor ruled it had been necessary for the preliminary procedure authorities to request Interpol
where I had been. Please read the letter to Interpol from investigator S. Georgiev on November 1995, in which he
II FACTS.............................................................................................................................5
IV REQUESTS.................................................................................................................38
V PETITION....................................................................................................................38
1 Preamble............................................................................................................... ..............49
VI.1.1 Parallels in Canadian Case Law............................................................................................49
VI.1.2 Relevance of the Cited Gwynne Supra.................................................................................52
VI.1.3 Factors Existing In Aggravation of the Circumstances.........................................................53
VII
STATEMENT OF FACTS...............................................................................................58
XI FACTS.......................................................................................................................268
XII LAW.........................................................................................................................269
XIV EXHIBITS..............................................................................................................278
XV DISCUSSION .........................................................................................................281
"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.
VI.1.4The Appeal
VI.1.5Relevant Law
This Memorandum raises questions, and seek relief under, inter alia,
Canada's Bill or Rights 1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c.
26, s. 105; 1992, c. 1, s. 144(F), the Constitution Act, 1982 (79) enacted as
Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, which came into
force on April 17, 1982, "Canadian Charter of Rights and Freedoms"; the
Canadian Human Rights Act 1976-77, c. 33, s. 1; the Constitutional
Question Act [RSBC 1996] c. 68; the Judicial Review Procedures Act
[RSBC 1996] c. 241; Crown Liability and Proceedings Act R.S., 1985, c.
C-50, s. 1; 1990, c. 8, s. 21.
VI.2.3Prior Petitions
The Applicant's petitions, past and present, have sought only such remedy that
may be seen to be reasonable under the circumstances of a combined
disabilities, indigence and incarceration, as claimed by the party affected.
Any relief thus far sought from the trial court to have the legal affect of
being seen to do justice to all parties and to be applicable in the specific
circumstances.
If reason is to prevail then justice cannot be seen to be done by any judicial
order or legislative enactment that has as its effect to deny the one party
the relief appropriate to their difficult circumstances. The international
community, and Canada, having recognised imprisonment as an
"afflictive” social status.
It is asserted that prison is a difficult and harsh place from which to conduct
ones affairs, much less to prosecute or defend ones civil claims.
3 End of Preamble
If all reasonable enlightened men and women, together with the international
community, know the foregoing to be true, then why did the Duty Master,
and later, on appeal, the Chambers Judge, fail to recognise the truth before
them? Such are the questions the Appeal Court Justices are ultimately
asked to answer, should they find merit to admit these applications.
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.
VII.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.
VII.3.1.21997
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."
VII.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:
IX.1.1.3.3Criminal Code of Procedure of the Republic of Bulgaria
"Article 463
"(1)…[Sic]
2 A Priori
IX.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.
IX.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.
IX.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?
IX.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.
IX.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.
IX.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.
IX.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.
IX.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.
IX.8.3.3.2
IX.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:
IX.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.
IX.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:
In the alternative His Lordship erred in judgement on holding the petitioner had not
brought his request for a judicial review of the Duty Master's order within the ambit
of the Judicial Review Act or s. 24(1) of the Charter. On the petitioner having
appealed under Rule 53, Rules of Court, His Lordship had a statutory duty to
judicially review the reasonableness of the legal, and practical, affects of the order on
the rights of the petitioner. His Lordship was wrong to hold an indigent person
deprived of his liberty as having no procedural right to a full judicial review of the
facts and law, and refusing to proceed further on the matter of constitutional
complaints until the petitioner first complied with the terms of the Master's order. His
Lordship knew, or should have known, the terms fixed by the Duty Master's order, as
a practical matter, to be impossible, notwithstanding that they were lawful.
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
26. The May 15th, 1995meeting and June 13th, 1995 telefax are referenced in a July 7th 1995 letter by the
Government of Canada to Bulgaria, a copy from the Bulgarian language provided as Exhibit No 1
wherein Doornbos has requested Bulgarian authorities to have the Claimant charged and
prosecuted…. setout therein by Doornbos. Bulgaria readily agreed to proceed against the Claimant at
the request of Doornbos on 17.07.95 the Bulgarian Ministry of Interior (check this date against the
letter) Ref. N 3233.
27. It is alleged the said July 7 1995 written request… of Interpol and Bulgaria is in whole or in
substantial part grounded on the criminal supposition setout by Doornbos. This is apparent when
examining Exhibit N 2, a copy of Georgiev’s request on behalf of Bulgaria to Interpol on Nov. 30,
1995 and Exhibit No 3, the teletype Interpol order to police and border officers of the Federal
Democratic Republic of Germany to arrest the Claimant.
28. The complaint alleges that the aforesaid constitutes a violation of the Claimant’s rights…
Government of Canada of any polices interest or interest in the Claimant’s business activities or of a
Government of Canada … Bulgaria for the Claimant’s arrest … Canada.
29. Prior to the February, 7th, 1996 arrest of the Claimant upon the allegations of Doornbos and the
Government of Canada a December 13, 1995 meeting was conducted at which Doornbus attended in
Sofia, Bulgaria in the office of on Internal Security Col. A. Alexandrov from 11 to 12 a.m. A
“memorandum” of this meeting provided for as Exhibit N 4, confirms that Doornbos affected an
unlawful administrative arrangement with Bulgaria and indicated the Government of Canada’s desire
to “establish the entire criminal activity” of the Claimant’s alleged by Doornbos “’large scale
financial frauds”.
30. On August 14, 1996 Doornbos conducted a search, collected data and provided evidence to Bulgaria
concerning the Claimant and the firm “International Pharmaceutical Supplies” (of Austin, Texas). In
Exhibit No 6, as provided Doornbos refers to “ Canada wide criminal warrants of arrest” and
“several civil lawsuits” involving the Claimant. On August 23, 1996, Doornbos submits a 6 (six)
page peace officers report by one Detective Desmarais and Staff. Sgt. Vander Graff on the Claimant.
This report appears here as Exhibit No 7. No where is it apparent or in evidence that Doornbos has
complied with the requirements of law. In both official correspondences Doornbos requests “if any
information is found regarding Kapoustin having transferred monies to Canada” on Aug. 14, 1996
and repeats on Aug. 23, 1996 “I am still very much interested in any indication he has (Georgiev)
that any of Kapoustin gains from the fraud in Bulgaria ended up in Canada.” No further
correspondence from Doornbos is in evidence under files of cccc 1403/98 of the Sofia City District
court until July 2, 1997, more than two years from the initial contact and interaction. In Exhibit N 8
Doornbus provides evidence to Bulgaria and subsequently the court in the hope of incriminating the
Claimant upon an causation of embezzlement brought by Bulgaria on the grounds of unverified
evidence searched for, collected and sent abroad upon the order by the Government of Canada. The
evidence so submitted was done so without the implementation or administration of the Minister or a
competent Canadian court. Doornbos delivered directly to Bulgarian police investigator Roumen
Kirov what is claimed by Doornbos to be a free copy of an affidavit signed by the Claimant on 20
December of 1993 which might be incriminating. Doornbos again, and apparently far the last time,
states he is “still awaiting in writing, confirmation, information and a Rogatory Request processed by
Mr. Stefcho Georgiev regarding funds that Kapoustin transferred to Canada, specifically to the law
office of McCandless, Morrison and Verdicchio. Please advice this regard”. If is unknown to the
Claimant if any such reply or request was provided by Bulgaria.
32. The said Doornbos personally provided evidence before government agencies and judicial authorities
of the Republic of Bulgaria on July 7th, 1995 and again on August 23rd 1996 and finally on July 2nd
1997 seeking to incriminate and convict the Claimant only upon personal suppositions and
representations as made officially by him before a foreign court.
33. The information so provided by the Government of Canada is directly responsible for precipitating
official and public acrimony towards the Claimant leading to the beatings and torture by police and
his continued imprisonment by prosecutors and judges without possibility of bail or transfer. As well
the information by the Government of Canada provided in totus the substance, content and
foundation for the slander of the Claimant in the national and international mass media by officials of
the Government of Bulgaria.
34. At all material times during the period in question the Applicant's permanent residence and legal
counsels in Canada, McCandless, Morrison and Verdicchio, were known to Canadian authorities in
liaison with the agencies and instrumentalities of the Government, who as well were aware, in
addition thereto, of the Applicant's home at 14-B, Plio St., Kavala, Greece and corporate offices of
LifeChoice S.A. at 9, Idras St. Kavala, Greece as was clearly evident from LCIAD corporate
documents made available to the Government, in addition to the foregoing the Government, as its
agencies and instrumentalities were aware of, having been informed as to and had in fact interviewed
legal counsel of the company and the Applicant, thereby having made it incumbent to subpoena the
Applicant under the national Criminal Procedure Code Article 268 para (3) and para (4) to first
demand his attendance as is obligatory under domestic law setout in conjunction with Article 217a of
the Code.
XII Law
1. 6 para (1) and (6), and 21 with regards to the Minister of Foreign Affairs;
2. 7, 11 para (1), 16 and 17 para (1) with regard to the Minister of Justice;
3. 11 para (2), 17 para (2) and 18 para (1) abstract (a) with regard to the Attorney
General of Canada.
(1) “If there is no agreement between Canada and a State or Entity, or the
State or Entity name does not appear in the schedule, the Minister of
Foreign Affairs may with the agreement of the Minister of Justice
enter into an administrative arrangement with the State or Entity
providing for legal assistance with respect to an investigation specified
in the arrangement relating to an Act that if, committed in Canada,
would be an indictable offence.
35. The interaction between relevant Canada Law, police and judicial agencies and instrumentalities of
Canada and those of Foreign Governments are regulated by the Mutual Legal Assistance In
Criminal Matters Act.
36. Beyond Charter requirements the conduct of police agencies [RCMP] or instrumentalities [Embassy
of Canada], and the exchange of information, investigative actions and reports [to Bulgaria] are
setout at the provincial [British Columbia] level in those laws promulgated under the Privacy Act
[R.S.B.C. 1996] Chapter 165, Section 15(h), s. 30 and s. 28 with s.22.
37. During the period in question (1995 – 1997) there were no rules for co-operation in police
investigations with foreign states. A new Criminal Procedure Code (CPC) was promulgated in S.G.
64/1997 according to which agencies or instrumentalities of Government were required to conduct
their co-operation in police [criminal] investigations with foreign states within the procedural rules of
Chapter Twenty Two Section VI.
38. According to national law preliminary proceedings [investigations] to an alleged crime are instituted
only upon qualification of certain criteria and at the order of a prosecutor with qualified jurisdiction.
The relevant Articles are setout in Part two, Chapter twelve, Section I and II of the Bulgarian
Criminal Code of Procedure.
39. Government control over information or data concerning the results of a preliminary investigation
are regulated by CCP Article 179.
41. Alternatively where insufficient data exists to effect a preliminary proceeding, the Ministry of
Interior [Home] Affairs may conduct their own inspection inside pendant of and unhindered by the
aforesaid national law as provided by Article 190 of the CPC in effect at the time.
42. In all instances it is apparent from national law that preliminary “inspection” and preliminary
“proceedings” afford Government agencies or instrumentalities equal power, in the former instance
unsupervised or judicially controlled, in the later supervised and controlled by a prosecutor as
appointed to each particular instance according to appropriate jurisdiction and venue as setout in
Articles 175 and 176 of CPC.
43. An investigation is to be instituted only subsequent to a “successful” preliminary inquiry and any
later proceeding instituted by an instrumentality of the Main Public Prosecutor’s Office, investigation
is obligatory as charged [Applicant] under Article 203 Criminal Code (CC) and is to be investigated
by the National Investigative Service, Articles 195 and 196, CPC in effect in 1995.
So is it possible that one of those “administrative arrangements” has been made between
the Minister of Foreign Affairs or in the alternative the Minister of Justice with the
Republic of Bulgaria on or about May 15th 1995 in Sofia, Bulgaria, concerning this
Appellant and that this arrangement was withheld from the Appellant and his attorneys.
Or is the alternative possible, in that such an “administrative arrangement” has been made
between an official of the Government of Canada in the person of an Officer of the Royal
Canadian Mounted Police and the Republic of Bulgaria on May 15, 1995 concerning this
Appellant without the knowledge, consent or participation of the respective parties of the
Minister of Foreign Affairs, Minister of Justice and Office of the Attorney General of
Canada, either jointly or severally as incumbent under the Act.
And if such alternative fact is ascertained to be true would the private information
gathered concerning the Appellant and its public release by agencies of the Government
of Canada and as subsequently transmitted by them from Canada’s embassy at Vienna,
Austria, to the agencies of the foreign state in question which did undertake to make
public such information.
It is further appealed that the Minister of Justice and Attorney General of Canada as the
“competent authority” under the Act ascertain if the fact of their agencies participation in
the preparation and delivery of a written request by the Government of Canada to the
Republic of Bulgaria on July 7th, 1995 wherein it was requested by them to have the
Appellant charged and prosecuted by agencies of the Republic of Bulgaria upon the
accusatory suppositions and representations setout therein by the Government of Canada
To further ascertain if the said July 7 1995 request made to the Republic of Bulgaria
constituted by its style, form and content a “defacto” warrant of arrest issued by an
agency of the Government of Canada under the meaning of Part II of the Extradition Act
to an agency of the Government of Bulgaria to affect the Appellant’s detention.
And if that arrest, as affected on Feb. 7, 1996 by the agencies of Interpol and the
Republic of Bulgaria solely and exclusively upon the criminal suppositions and grounds
setout by the Government of Canada on July 7, 1995 constituted a violation of the
Appellant’s rights under Articles 9, 10 para (a) and 11 of the Charter of Rights and
Freedoms, hereinafter the “Charter”. In that neither the Appellant nor his attorneys were
ever informed by the Government of Canada of its request to the Republic of Bulgaria for
the Appellant’s arrest on those criminal suppositions and representations as setout on
07.07.1995 to the Republic of Bulgaria by Canada as then later withdrawn by Canada.
To further ascertain if the beatings and torture of the Appellant by agencies of the
Republic of Bulgaria in order to obtain information from the Appellant as requested from
them by the Government of Canada on May 15, July 7, September 7 and December 13 of
1995 and again on April 1, August 14 and August 23 of 1996 and lastly on July 2 1997
constituted a violation of Article 12 of the Charter and the Universal Declaration of
Human Rights to which Canada is a party.
Both facts to be ascertained are within the purview of the charter and the Attorney
General of Canada in that the rights of the individual as provided for and protected
therein cover those actions by Canadian officials, including police activity and
investigation, as conducted or affected by them through agencies of or by themselves in a
foreign state. The consequences of such activity by Canadian officials having a direct
impact upon the rights identified under the charter.
The facts of the Appellant’s beating and torture can be considered relevant under the
instance in that each torment commencing on September 18th and continuing to October
23rd 1996. And beginning again on January 15th 1997 until March 6th, 1997 and then again
July 1st 1997 until November 10th 1997 was adjunct to a severe interrogation in the
absence of attorneys or interpreters. These interrogatories were concerned entirely and
exclusively upon the subject matter setout in Government of Canada requests. Most
particularly that of July 7th 1995 and the monies referenced therein and repeatedly
inquired about thereafter by the Canadian officials.
The physical and mental torture involved beatings about the shoulders, back, buttocks
and legs muffled through blankets and affected by hard, yet flexible, plastic or rubber,
Each incident involved 4-6 masked individuals one of whom repeatedly interrogated the
Appellant in poor English concerning funds purported to be ensconced in Canada with
criminal associates identified to the Government of Bulgaria by agencies of the
Subsequent to these beatings the Appellant was kept in isolation for days, often weeks,
without any contact except the investigator supervising the case. Beating lasted as little as
5 minutes with the longest being approximately 10 minutes.
During the 1997 episodes of abuse the Appellant was repeatedly given, without his
knowledge, psychotropic drugs to disorient him deprive him of sleep and to induce
moods of extreme depression and helplessness. Subsequent to these episodes the
Appellant would again be interrogated upon the subject matter of the funds in Canada and
his returning those funds to the Republic of Bulgaria.
Each denial by the Appellant encountered assurances by his interrogators that the
information was accurate and sought by the Government of Canada together with the
Republic of Bulgaria. Interrogators were certain the Appellant was lying. The
Government of Bulgaria continues, until this day, to believe there are funds in Canada as
represented to them. The Appellant references public statements by the Sofia City
Prosecutor …
It is protested to the Attorney General of Canada as the competent authority that the said
official of the Government of Canada did commit prosecutable acts against the person of
the Appellant and justice by successfully denying the Appellant his rights to due process
and law while in pursuit of an investigation in Canada. The said official successfully
circumvented procedures and law embodied in the Act and laws of Canada.
The said official of Canada provided personally evidence before government agencies
and judicial authorities of the Republic of Bulgaria on September 7 th, 1995 and again on
August 23rd 1996 and finally on July 2nd 1997. Seeking in his so doing, to incriminate and
convict the Appellant only upon his personal suppositions and representations as made
officially by him as an agent of the Government of Canada before a foreign court.
In view of the Appellant’s current trial, his now fifth year of detention without sentence,
his physical and mental torture, financial loses and damages to his prestige and honor and
that of his families he pleads the responsible parties act post haste in ascertaining the
facts and placing them before the respective judicial and disciplinary bodies having
jurisdiction in such matters.
Sincerely
24. The July 7th 1995 RCMP REQUEST undeniably established that there was an earlier meeting in Sofia
Bulgaria between the RCMP and Bulgaria Interior Ministry official on May 15, 1995. The wording of
the letter suggests that RCMP officer Doornbos committed the Government of Canada, its agencies
and instrumentalities to assisting an agency and instrumentality of the Government of Bulgaria. A
conclusion supported by RCMP officer Doornbos himself when writing on page one:
“… I advise that in compliance with our agreement from May 15th,
1995 in Sofia I have submitted to our economic delinquency service the
information Mr. Miroslav Genov told me. As a result the said service has
started an operational investigation of Kapoustin …”
25. I assert that the RCMP has violated Canadian law with this “Agreement from May 15, 1995” and any
preceding or subsequent acts resulting from this RCMP REQUEST are therefore unlawful.
26. Enquires made by the Complainant to the office of Canada Foreign Affairs Minister yielded only that
Canada Foreign Affairs had not been requested by a competent authority of the Republic of Bulgaria to
provide the “Agreement from May 15, 1995” as cited by RCMP officer Doornbos. Article 6 para (1) of
the Act reads:
“6.(1) Where …… the Minister of Foreign Affairs may, with the arrangement of the
Minister, enter into an administrative agreement with that other state providing for legal
assistance…”
27. The Republic of Bulgaria is not a “signatory” to the Act or a party to any other treaty. No
“administrative arrangement” existed between the Republic of Bulgaria and Canada. Furthermore;
28. Mr. Miroslav Genov is identified by Doornbos as being responsible for the May 15, 1995 agreement
with the Government of Canada. Mr. Genov is not an official of the Ministry of Justice of the Republic
of Bulgaria and therefore is not a competent authority under Article 464 para (2) of the Bulgarian
Criminal Code of Procedure who can submit or implement requests for international legal assistance in
a criminal matter with the Foreign Minister of Canada. Mr. Miroslav Genov was not an official of
competent authority according to law to affect an agreement with Canada and for any such an
agreement to be in compliance with the Canadian law.
29. Equally, according to the Act, the RCMP and RCMP officer Doornbos do not have any legislated
authority to enter independently into any formal arrangement with the Bulgarian Ministry of Interior.
From this it would appear that the assistance and information provided by the RCMP was done in
breach of Canadian law.
30. An inquiry with Ministry of Justice of the Republic of Bulgaria on December 12, 1999 proved that
there was no enquire made in Canada concerning the Complainant. This can lead to only one
preliminary conclusion; that the RCMP had initiated first contact with Bulgarian Ministry of Interior
official and its enquiries into the Complaint and allegations criminal activities in Canada had
precipitated the Bulgarian prosecution of the Complainant.
31. It is a fact no request was made to the Minister or the Government of Canada by the Republic of
Bulgaria. It is factually apparent
32. It has been alleged above that a violation of Bulgarian law arises from the “Agreement from May15,
1995” and that any proceeding or subsequent acts were unlawful.
33. It is a factual consequence that neither Doornbos nor Genov complied with the law and exceeded their
legal competence in affecting the “Agreement from May15, 1995”. It is apparent and irrefutable, upon
the present information and prevailing laws, that Derek A. Doornbos, RCMP and Miroslav Genov,
Ministry of Interior, their agencies and instrumentalities acted independently of their governments and
had exceeded, as evidenced by their acts, their legislated authority.
34. There is no document or other proof that the Minister of Foreign Affairs, Canada designated RCMP
officer Doornbos to sign or provide any oral undertaking on behalf of Canada’s Minister of Foreign
Affairs to agencies or instrumentalities of the Republic of Bulgaria under Article 6 para(6) of the Act,
which reads:
make an order for the gathering of evidence, where he is satisfied that there are
as
Attached
27. The fact is that on or before May 15, 1995 in Sofia, Bulgaria Doornbos committed the Government of Canada, its
agencies and instrumentalities to assisting an agency and instrumentality of the Government of Bulgaria. This fact
is confirmed by Doornbos himself in a July 7, 1995 letter (see para… and Exhibit No…) where he says on page
one:
“… I advise that in compliance with our agreement from May 15th,1995 in Sofia I
have submitted to our economic delinquency service the information Mr. Miroslav Genov
told me. As a result the said service has started an operational investigation of Kapoustin
…”
28. It has been alleged above that a violation of Canadian law arises from this “Agreement from May 15, 1995” and
any preceding or subsequent acts are therefore unlawful.
29. Oral and written requests to the office of Foreign Affairs Minister, the Honorable Lloyd Auxworthy, yielded
information that Foreign Affairs had not been requested by competent authorities of the Republic of Bulgaria to
provide an “Agreement from May15, 1995” under Article 6 para (1) of the Act, which reads:
“6.(1) Where …… the Minister of Foreign Affairs may, with the arrangement of the Minister, enter
into an administrative agreement with that other state providing for legal assistance…”
35. The Republic of Bulgaria was not a “signatory” to the Act or a party to any other treaty. No “administrative
arrangement” is in evidence.
36. Mr. Miroslav Genov is identified by Doornbos as being responsible for the May 15, 1995 agreement with the
Government of Canada. Mr. Genov is not an official of the Ministry of Justice of the Republic of Bulgaria and
therefore not a competent authority under Article 464 para (2) of the Bulgarian Penal Process Code (see above para
12) to submit requests or to implement requests for legal assistance in criminal matters with the Minister and/or the
Foreign Minister of Canada.
37. An inquiry on December 12, 1999 to the Ministry of Justice of the Republic of Bulgaria yielded a reply (see
Exhibits No…. and No…..), which reads in part:
38. It is a fact no request was made to the Minister or the Government of Canada by the Republic of Bulgaria. It is
factually apparent Mr. Miroslav Genov was not an official of competent authority according to law to affect an
agreement with Canada and for such an agreement to be in compliance with the Canadian Act and Bulgarian Penal
procedure.
39. It has been alleged above that a violation of Bulgarian law arises from the “Agreement from May15, 1995” and that
any proceeding or subsequent acts were unlawful.
40. It is a factual consequence that neither Doornbos nor Genov complied with the law and exceeded their legal
competence in affecting the “Agreement from May15, 1995”. It is apparent and irrefutable, upon the present
information and prevailing laws, that Derek A. Doornbos, RCMP and Miroslav Genov, Ministry of Interior, their
agencies and instrumentalities acted independently of their governments and had exceeded, as evidenced by their
acts, their legislated authority.
41. There is no document or other proof that the Minister of Foreign Affairs, Canada did designate Doornbos to sign or
provide oral undertaking on his behalf to agencies and instrumentalities of the Republic of Bulgaria under Article 6
para(6) of the Act, which reads:
281
“In any legal or other proceeding, an administrative arrangement entered
into under subsection (1) or (2) and purporting to be signed … by a person
designated by the Minister of Foreign Affairs is admissible in evidence …
proof that it is what it purports to be.”
37. Fact further reveal that the Minister did not as the competent authority, order the May15, 1995 agreement to be
implemented as required by Article 6 para (3) of the Act, which reads:
”7. (1)…
(2) Where a request is presented to the Minister by a foreign state or a
Canadian authority, the Minister shall deal with the request in accordance
with the relevant treaty and this Act.”
38. It is a fact that Doornbos did not seek the approval of the minister to obtain evidence for use abroad by agencies
and instrumentalities of the Republic of Bulgaria. Article 16 of the Act reads:
“No record or thing seized that has been ordered under Section 15 to be
sent to the foreign state mentioned in subsection 11 (1) shall be so sent until
the Minister is satisfied that the foreign state has agreed to comply with any
terms and conditions imposed in respect of the sending abroad of the record
or thing.”
39. It is a fact that Doornbos did not seek the approval of the Minister to obtain evidence for use abroad
by agencies and instrumentalities of the Republic of Bulgaria. Article 16 of the Act reads:
“No record or thing seized that has been ordered under section 15 to be
sent to the foreign state mentioned in subsection II (1) shall be so sent until
the Minister is satisfied that the foreign state has agreed to comply with any
terms and conditions imposed in respect of the sending abroad of the record
or thing.”
38. It has been alleged herein that a violation of law arises from the Doornbos “sending abroad of the record or thing”
on, inter alia, June 13th, 1995; July 7th, 1995; September 7th, 1995; December 13th, 1995; April 1st, 1996; August
14th, 1996; August 23rd, 1996 and July 2nd, 1997.
39. It is a fact that the minister was not sought out by Doornbos to approve the requests of the Republic of Bulgaria for
an “operational investigation” to gain information on the Claimant. Article 17 of the Act reads:
(1) “Where the Minister approves a request of a foreign state to obtain, by means of an
order of a judge, evidence regarding an offence with respect to which the foreign state has
jurisdiction …”
(2) “The competent authority who is provided the documents or information shall apply ex
parte for an order for the gathering of evidence to a judge of the province in which the
competent authority believes all or part of the evidence may be found.”
282
(1) “A judge to whom an application is made under subsection 17 (2) may make an order
for the gathering of evidence, where he is satisfied that there are reasonable grounds to
believe that
(2)An order made under subsection (1) must provide for the manner in which the evidence
is to be obtained …and may
a)…
b) order a person named therein to make a copy of a record or to make a record from data
and to produce the copy or record to the person designated …;
c)…
40. It has been alleged herein a violation of law arises, inter alia, from Doornbos providing reports, records, data and
copies as evidence for use abroad without: a proper application for an order; the evidence gathering before a judge
in the province of British Columbia as to why such an order should be granted for the foreign state and in what
manner the evidence may be obtained.
41.
6.
7.
Whereupon the grounds of the foregoing the following violations are alleged as to time , date and place:
11. The May 15th, 1995meeting and June 13th, 1995 telefax are referenced in a July 7th 1995 letter by the Government
of Canada to Bulgaria, a copy from the Bulgarian language provided as Exhibit No 1 wherein Doornbos has
requested Bulgarian authorities to have the Claimant charged and prosecuted…. setout therein by Doornbos.
Bulgaria readily agreed to proceed against the Claimant at the request of Doornbos on 17.07.95 the Bulgarian
Ministry of Interior (check this date against the letter) Ref. N 3233.
12. It is alleged the said July 7 1995 written request… of Interpol and Bulgaria is in whole or in substantial part
grounded on the criminal supposition setout by Doornbos. This is apparent when examining Exhibit N 2, a copy of
Georgiev’s request on behalf of Bulgaria to Interpol on Nov. 30, 1995 and Exhibit No 3, the teletype Interpol order
to police and border officers of the Federal Democratic Republic of Germany to arrest the Claimant.
13. The complaint alleges that the aforesaid constitutes a violation of the Claimant’s rights…
Government of Canada of any polices interest or interest in the Claimant’s business activities or of a Government
of Canada … Bulgaria for the Claimant’s arrest … Canada.
283
14. Prior to the February, 7th, 1996 arrest of the Claimant upon the allegations of Doornbos and the Government of
Canada a December 13, 1995 meeting was conducted at which Doornbus attended in Sofia, Bulgaria in the office
of on Internal Security Col. A. Alexandrov from 11 to 12 a.m. A “memorandum” of this meeting provided for as
Exhibit N 4, confirms that Doornbos affected an unlawful administrative arrangement with Bulgaria and indicated
the Government of Canada’s desire to “establish the entire criminal activity” of the Claimant’s alleged by Doornbos
“’large scale financial frauds”.
15. On August 14, 1996 Doornbos conducted a search, collected data and provided evidence to Bulgaria concerning the
Claimant and the firm “International Pharmaceutical Supplies” (of Austin, Texas). In Exhibit No 6, as provided
Doornbos refers to “ Canada wide criminal warrants of arrest” and “several civil lawsuits” involving the Claimant.
On August 23, 1996, Doornbos submits a 6 (six) page peace officers report by one Detective Desmarais and Staff.
Sgt. Vander Graff on the Claimant. This report appears here as Exhibit No 7. No where is it apparent or in evidence
that Doornbos has complied with the requirements of law. In both official correspondences Doornbos requests “if
any information is found regarding Kapoustin having transferred monies to Canada” on Aug. 14, 1996 and repeats
on Aug. 23, 1996 “I am still very much interested in any indication he has (Georgiev) that any of Kapoustin gains
from the fraud in Bulgaria ended up in Canada.” No further correspondence from Doornbos is in evidence under
files of cccc 1403/98 of the Sofia City District court until July 2, 1997, more than two years from the initial contact
and interaction. In Exhibit N 8 Doornbus provides evidence to Bulgaria and subsequently the court in the hope of
incriminating the Claimant upon an causation of embezzlement brought by Bulgaria on the grounds of unverified
evidence searched for, collected and sent abroad upon the order by the Government of Canada. The evidence so
submitted was done so without the implementation or administration of the Minister or a competent Canadian
court. Doornbos delivered directly to Bulgarian police investigator Roumen Kirov what is claimed by Doornbos to
be a free copy of an affidavit signed by the Claimant on 20 December of 1993 which might be incriminating.
Doornbos again, and apparently far the last time, states he is “still awaiting in writing, confirmation, information
and a Rogatory Request processed by Mr. Stefcho Georgiev regarding funds that Kapoustin transferred to Canada,
specifically to the law office of McCandless, Morrison and Verdicchio. Please advice this regard”. If is unknown to
the Claimant if any such reply or request was provided by Bulgaria.
16. It is alleged that the apparently repeated and intense request by Doornbus for information concerning transfers of
money from Bulgaria precipitated the beatings and torture by agencies of Bulgaria in order to obtain information
from him as requested from them by the Government of Canada on but not limited to May 15, July 7, September 7
and December 13 of 1995 and again on April 1, August 14 and August 23 of 1996 and lastly on July 2 1997.
17. The said Doornbos personally provided evidence before government agencies and judicial authorities of the
Republic of Bulgaria on July 7th, 1995 and again on August 23rd 1996 and finally on July 2nd 1997 seeking to
incriminate and convict the Claimant only upon personal suppositions and representations as made officially by
him before a foreign court.
18. The information so provided by the Government of Canada is directly responsible for precipitating official and
public acrimony towards the Claimant leading to the beatings and torture by police and his continued imprisonment
by prosecutors and judges without possibility of bail or transfer. As well the information by the Government of
Canada provided in totus the substance, content and foundation for the slander of the Claimant in the national and
international mass media by officials of the Government of Bulgaria.
In view of the Claimant’s current trial, his now fifth year of detention without sentence, his physical
and mental torture, financial loses and damages to his prestige and honor and that of his families he
pleads the responsible parties act post haste in ascertaining the facts and placing them before the
respective judicial and disciplinary bodies having jurisdiction in such matters.
284
i
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
ADMINISTRATIVE ARRANGEMENTS
§6 (1) If there is no agreement between Canada and a state or entity, or the state's or entity's name does not appear in the schedule, the Minister of Foreign
Affairs may, with the agreement of the Minister, enter into an administrative arrangement with the state or entity providing for legal assistance with respect to
an investigation specified in the arrangement relating to an act that, if committed in Canada, would be an indictable offence
§6 (3) An administrative arrangement entered into under subsection (1) or (2) may be implemented by the Minister, pursuant to this Act, in the same manner
as an agreement.
§6 (4) An administrative arrangement entered into under subsection (1) or (2) has force and effect only for such period not exceeding six months as is
specified therein and with respect to the type of legal assistance that is specified therein
§6 (5) Sections 4 and 5 do not apply in respect of an administrative arrangement entered into under subsection (1) or (2).
§6 (6) In any legal or other proceeding, an administrative arrangement entered into under subsection (1) or (2) and purporting to be signed by the Minister of
Foreign Affairs or by a person designated by the Minister of Foreign Affairs is admissible in evidence without proof of the signature or official character of the
person appearing to have signed it and proof that it is what it purports to be [R.S., 1985, c. 30 (4th Supp.), s. 6; 1995, c. 5, s. 25; 1999, c. 18, s. 100]
ii
FREEDOM OF INFORMATION AND PRIVACY ACT
§15(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to
(h) deprive a person of the right to a fair trial or impartial adjudication,
§15(2) If an agreement expressly states that legal assistance may be provided with respect to acts that do not constitute an offence within the meaning of
the agreement, the Minister of Foreign Affairs may, in exceptional circumstances and with the agreement of the Minister, enter into an administrative
arrangement with the state or entity concerned, providing for legal assistance with respect to an investigation specified in the arrangement relating to an act
that, if committed in Canada, would be a contravention of an Act of Parliament or of the legislature of a province.
iii
§22(1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable
invasion of a third party's personal privacy.
§22(2) In determining under subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's
personal privacy, the head of a public body must consider all the relevant circumstances, including whether:
(e) the third party will be exposed unfairly to financial or other harm;
(h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant
§22(3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy if:
(b) the personal information was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that
disclosure is necessary to prosecute the violation or to continue the investigation;
(f) the personal information describes the third party's finances, income, assets, liabilities, net worth, bank balances, financial history or activities,
or creditworthiness;
(g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations about the third
party;
(i) the personal information indicates the third party's racial or ethnic origin, sexual orientation or religious or political beliefs or associations, or;
(j) the personal information consists of the third party's name, address, or telephone number and is to be used for mailing lists or solicitations by
telephone or other means.
iv
§27 (1) A public body must collect personal information directly from the individual the information is about unless
(a) another method of collection is authorized by (i) that individual, (ii) the commissioner under section 42 (1) (i), or (iii) another enactment,
(b) the information may be disclosed to the public body under sections 33 to 36, or
(c) the information is collected for the purpose of (ii) a proceeding before a court or a judicial or quasi judicial tribunal, (iv) law enforcement.
§27(2) A public body must tell an individual from whom it collects personal information
(a) the purpose for collecting it,
(b) the minister responsible for this Act excuses a public body from complying with it because doing so would (i) result in the collection of
inaccurate information, or (ii) defeat the purpose or prejudice the use for which the information is collected.
v
§28 If an individual's personal information will be used by a public body to make a decision that directly affects the individual, the public body
must make every reasonable effort to ensure that the information is accurate and complete.
vi
§30 The head of a public body must protect personal information by making reasonable security arrangements against such risks as
unauthorized access, collection, use, disclosure, or disposal.