Professional Documents
Culture Documents
___________
Court of Appeal Registry Vancouver
Between
Appellants
(Plaintiffs)
And
REPUBLIC OF BULGARIA
Respondents
(Defendants)
1.1. Introduction
[2] Few parallels can be found in Canadian case law that can be said to be "on all fours" with the
circumstances of the present applications, the particulars now before the Appeal Court appear
unfamiliar and the issues untested. However, some parallels can be drawn from the Sowa v. Can.
(2000), 143 B.C.A.C. 223 (CA); 235 W.A.C. 223 and Gwynne v. Can. (1998), 103 B.C.A.C. 1 (CA); 169
W.A.C. 1], the applicant's in both cited cases are prisoners petitioning the courts to protect their
fundamental rights.
[3] In Gwynne, supra, the Appeal Court had valuable insight into circumstances not all that different from
those of this Canadian, also a prisoner concerned with his treatment in a foreign prison. Here, in case
now at bar, and unlike Gwynne, the petition to the Appeal Court originates from a place that is
internationally known as being far worse than what Gwynne recalled at §62 of his affidavit as a: "….
memory… so terrible that I live in constant fear.", asking the Appeal Court at §63 of his affidavit: "if you
have any compassion, not perhaps for me as a person, but for my wife who has waited for twelve years
hoping for a small ray of sunshine to come into our lives, if you have any compassion at all, I would ask
that you take seriously the inhumanity of my past treatment…".
[4] The suggested parallels may be found by this Honourable Court recalling the January 2 nd 2001
affidavit No. 1 of Mr. Robert Kap, father of the Speaker's, filed as evidence to the Duty Master and the
words found at §9: "…as reported in the daily newspapers in the city of Sofia, Republic of Bulgaria, my
son has been beaten and tortured by officials of the Defendant, Republic of Bulgaria and I and the
Plaintiff's family exist in a state of constant anxiety and fear for my son who seeks to exercise his legal
rights as a Canadian citizen before a court of law in the Province of British Columbia".
"9. I have and continue to experience deep emotional and physical anxiety over the
personal injury caused my son by the Defendant and am in constant anguish over my
utter helplessness in the past and at the present moment to end or relieve my son’s
sorrow and pain. And the Defendant still persists in acts connected to my son and I in the
province that I do verily believe to be unlawful, abusive, unreasonable, cruel, and
inhuman. Such acts further aggravating and adding to the personal injury, damages and
losses my son and I have already wrongly sustained.
"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.
[6] Much can all be garnered from the words of the learned Goldie, J.A. writing in Gwynne, supra, at [24]:
"I conclude the standard of review in this court is one at the high end of deference
accorded to tribunals subject to judicial review…[sic]….Canada is a party to a
considerable number of these treaties and its interests are often those of a requesting
state. See: Operation Dismantle Inc. et al. v. Canada et al. , [1985] 1 S.C.R. 441; 59
N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16, at p. 450-454 for a
discussion of analogous problems arising out of the conduct of foreign relations."
"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."
[9] In Gwynne the court was concerned with a decision on extradition, a subject not directly concerning
the trial court in these proceedings except, mutatis mutandis, the possible subpoena of this Speaker
under custody of the Respondent to appear before the trial court. However, among the points raised on
appeal in Gwynne, supra, that are of significance to the present enquiry are concerns over what
standard of review are a prisoners' applications deserving of, and the further question before the trial
court of an "allegation of procedural unfairness on the part of the Minister", here, in proceedings before
the trial court, there are allegation against a Crown servant and the Ministry of the Attorney General of
Canada and British Columbia.
[10] Here, the Appeal Court is also asked, as it was in Gwynne, to consider the aggravating effects seen
in the "supporting materials [that] reveal conditions that were degrading, dangerous and apparently
endemic within the prison system of that [foreign] 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", conditions
the court in Gwynne found sufficient to grant Gwynne leave to appeal and later to deny the United
States his extradition to Alabama.
[11] The Appeal Court, in the present case now at Bar, is not asked "to go into the weight the Minister is
required to give the issues arising under [extradition] treaties [see, Goldie, J.A. at §24 in the cited
Gwynne, supra], rather it is asked to consider the effects on the time needed to appeal and the
international rights of a Canadian citizen in a foreign prison, the conditions of which are far more
despicable than those ever seen by Gwynne. Harshness, brutality, indifference and oppression the
hallmark of prisons in the former communist Eastern European countries among which the defendant
Republic of Bulgaria is counted, circumstances this Speaker, unlike Gwynne, has been unable to
physically escape.
[12] To this Speaker, and his family, the bringing of his law suit, these applications and his intended
appeal are a test of physical and mental stamina, and of wills. A Canadian, the plaintiff/applicant who is
deprived of his liberty seeks to lawfully prevail over his captors and gain his civil rights under
international and Canadian law, his captor's, the defendant/respondent have an equal determination to
frustrate or break the plaintiffs/applicant from his pursuit of any legal right under international and
Canadian law.
[13] The Respondent foreign state rarely passes openly beyond the thin and fragile vail of international
law protecting all men and women from the abuses of power and misapplications of law. However, the
international record speaks for itself, the words of this Speaker, as those of Gwynne, only amplify to this
Honourable Court that justice and humanity still remain civilised ideals imperfectly practised in many
parts of the world. Even in my home Canada, and as we have seen in Gwynne, supra, the United
States, despite all the constitutional protections of law, the ideals of humanity, equality and justice still
fail to be fully practice. What then can be said for the agencies of a former totalitarian state?
[14] Bring the present case before the Appeal Court has proven a regrettably difficult and time
consuming task for someone not fully comprehending the practice of the common law. There will come
moments during this monograph where it appears the Speaker is stating the obvious and burdens the
learned Justices of the Appeal Court with unneeded details. However, the Speaker concluded he would
be better served to demonstrate by what method, on what facts and according to what laws he arrived at
his conclusions. Anything less could not possibly serve to adequately convey the personal difficulties in
organising what has proved a complex and difficult thesis to express.
1.2. Reasoning.
[23] Reason is a most admirable trait and one unique to the human species. It is found to varying
degrees based on ones education, experience and ultimately the individual barrier of our respective
intelligence. Among reasonable, educated and intelligent members of our society concepts can be
quickly, clearly and efficiently exchanged. In this way a consensus can be quickly achieved and it
becomes possible to move on to matters that require more effort.
[24] The object of these applications and the intended appeal can be efficiently and quickly disposed of
as long as the Speaker's reasoning is not flawed and it conforms to the reasoning of the court.
[25] The single objective of the appeal is only to secure from the court the right of a prisoner to have his
applications and arguments heard by the trial court.
Part II.
STATEMENT OF FACTS
[34] Following is a history of the proceedings before the trial court, including relevant events leading up
to the commencement of the law suit and the present applications before the Appeal Court.
[39] On or about November 23rd 2000 the Speaker delivered a number of Rule 17, Rules of Court,
applications to the SCBC Registrar. The plaintiffs applied for desk orders entering judgement, jointly and
severally, against those defendants in default of appearance for an unspecified amount to be later
assessed by the court.
[40] These applications were returned. The SCBC registrar remarked the affidavits of service and
attached documentation was deficient. The Speaker undertook to address the deficiencies.
[41] On December 7th 2000, the defendant Bulgaria, prepared a defence in the form of a letter from the
Ministry of Justice, Republic of Bulgaria, the deputy minister Z. Rousseva responding to the plaintiff's
statement of claim and writ.
[42] On December 9th 2000 the Speaker was served by prisoner administrators of the Sofia Central
Penitentiary the prepared statement of defence of the Respondent Bulgaria.
[43] On December 29th 2000 the Speaker filed with the trial court [SCBC Registrar] a copy of a the
defendant government's (Republic of Bulgaria) defence. The statement of defence was discursive, its
form and style not conforming to the court's practice.
[44] The Speaker prepared a Reply and a separate Notice to Admit of facts and documents in the form
required by the Rules of Court and served them on the Respondent, Ministry of Justice, in the time as
fixed by the Rules of Court.
[45] No response has been forthcoming to the plaintiffs Reply or their Notice to Admit.
[46] In January 2001 or thereabouts the Speaker corrected the previous deficiencies identified by the trial
court [SCBC Registrar] in the November 2000, again resubmitted applications for desk orders. The
Speaker, as plaintiff, again requested orders that declared all the Bulgarian defendants not having filed
appearances to be in default. The defendant, Republic of Bulgaria was excluded from the plaintiffs
petitions, it having served a defence to the plaintiffs on December 9th 2000.
[47] The Registrar again was asked to enter judgement against the defendants, the damages to be
assessed at a hearing, time and date to be fixed. As well the Speaker brought other applications before
the trial court raising issues for, inter alia, extending the time for service and response, the manner of ex
juris service, and the question on how the Speaker, an indigent prisoner, is to appear or otherwise be
represented in proprio persona before the trial court. The following orders were sought:
[i] Desk orders to enter judgement against all the Defendant's in default of appearance, with the
exception of the defendant, the Government of the Republic of Bulgaria and defendant
Doornbos.
[1] An ex parte order extending time, by 90 days, for all parties to affect any acts required under
the Rules of Court.
[3] An ex parte order requiring the Respondent have its agencies (1) conduct the Speaker in
custody to any hearing as may be fixed by the Respondent or at any trial before the SCBC; or
(2) to alternatively permit the incarcerated Speaker to communicate electronically or transmit
in writing his pleadings on any applications the court required be spoken to. This order in
particular relied on the inherent jurisdiction of a court of Canada to guarantee all litigants their
s. 15(1) Charter of Rights and Freedoms, (hereinafter the "Charter") and the procedural relief
available from the Rules of Court as found under Rules 40 and 59, particular attention placed
on the provisions in 40(4), 40(40), 59(3) and 59(4).
[4] An order declaring the Speaker indigent, the court asked to provide him the appropriate relief
from court fees.
[48] 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 it being made clear
from the petitions themselves and affidavits, that the Speaker could not appear and had no funds to pay
the fees.
[49] By February 8th, 2001 only one appearance had been filed with the provincial court, that of the
Respondent.
[50] On February 24th, 2001 the Speaker learned of the Respondent's having retained its present
Vancouver legal counsel and filing an appearance.
[51] No other defendant has since filed an appearance or offered a defence before the trial court.
[52] 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 petitioners incarceration and poverty, requesting under such circumstances that
the Duty Master hear the Speaker pleadings only in writing and ex parte of the Respondent.
1. To order the Defendant Bulgaria, the applicant there, to agree to conduct in custody the
Plaintiff Kapoustin (the Speaker), the respondent then, to the hearings. The issue of
costs to be agreed between the parties.
3. To accept the volumes of factum, affidavits and attached exhibits of the plaintiffs into
evidence in answer to the defendant Bulgaria's applications.
4. 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.
5. To order joinder of three SCBC Vancouver Registry law suits, C974299, S004040 and
S005440 where the defendant Bulgaria is named as defendant.
6. 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.
[79] 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.
[80] The Speaker regularly enquires of the defendant Bulgaria and its legal counsel. Such written inquire
includes requests to co-operate in fixing a date and the preparation of joint materials to be placed before
a Master at the next hearing.
[81] As of the date of this Memorandum no reply has been forth coming from the defendant Bulgaria or
its counsel in Vancouver. The defendant Bulgaria remains not only uncooperative but actively
obstructive of the Speaker in his efforts to provide full answer in response to its original motion and to
prosecuting his own pre-trial motions in the law suit.
[82] The Speaker, to no avail, has repeatedly complained to responsible agencies of the defendant
government of Bulgaria, that its officials or employees of its penal institutions are unlawfully interfering
with or harbouring questionable motives behind their regular obstruction of the Speaker's access to the
limited material facilities and other resources necessary to his accessing the processes of the trial court
in Canada. Such incidents are fully documented and are part of correspondence to the Chief Judge of
the SCBC, the SCBC Registrar, the Attorney General of British Columbia, and the attorney for the
defendant Bulgaria in Vancouver.
[83] The issues raised by the defendant Bulgaria [jurisdiction simpliciter and jurisdiction forum non
conveniens] remain outstanding before the trial court. These issues are relevant to the appeal although
not the subject of it.
[106] The foresaid commercial activities between the defendant Bulgaria and the plaintiffs in British
Columbia are connected to the pharmaceutical industry and general trade in services and goods of
provided by Bulgaria to clients of the plaintiffs in Canada, the United States and elsewhere.
[107] It can be seen from the facts of the case in the proceeding before the trial court that the Defendant
Bulgaria has not attempted to contest the truth of the plaintiffs' claim that the initial relationships
between the defendant Bulgaria, the plaintiffs and the Speaker are ones readily identifiable as
commercial and contractual in character. The transactions and contracts are documented in the three
(3) volume Factum of the plaintiffs filed with the trial court.
[108] The first of numerous commercial transactions with the defendant Bulgaria occurred in the
province around October 1999. It involved a transfer of funds and shipments of goods from the province
by the plaintiffs to scientific and commercial institutions in Bulgaria controlled and managed by the
defendant Bulgaria. The facts of the case as found in documentary evidence placed before the trial
court show exchanges of goods, services and money between the plaintiffs and the defendant Bulgaria.
This continuing unabated between the defendant Bulgaria and the plaintiffs in the province until about
July of 1995.
[109] On the basis of the their transactions with defendant Bulgaria and distribution or other written
contracts, the plaintiffs have sued the defendant Bulgaria in provincial court, claiming, inter alia, that the
Respondent breached implied as well as written agreements with the plaintiffs, further alleging that a
fiduciary obligation of the defendant Bulgaria arose from the contracts and was breached. The
transactions connected to the contracts had included certain warranties from the defendant Bulgaria to
the plaintiffs and their customers in or connected to British Columbia, such as they were the warranties
nonetheless later proved to be false.
[2] The nexus required for jurisdiction of the provincial court to hear the plaintiffs' claim as framed in the
tort of defamation result from slanderous words, and libellous letters, together with injurious
misrepresentations of fact made in Bulgaria or elsewhere.
[3] The facts of the case show the offensive words were first spoken on May 15 th 1995 by a servant of
the Crown, defendant Derek A. Doornbos, diplomatic liaison to Austria, and R.C.M.P. Staff Sgt and are
connected to the performance of his officials duties for the Ministry of the Attorney General of the
Province of British Columbia.
[4] The facts of the case before the trial court show that on July 7 th 1995 the actionable words are, in
part, reproduced in writing and attributed to the Government of Canada, the plaintiffs' claim actionable
in tort against the Crown under the Crown Proceedings Act [RSBC 1996] c. 89. It is a fact in the
proceedings before the trial court that the Plaintiffs failed to name the Crown, in "Her Majesty the Queen
in right of the Province of British Columbia" as defendant, having named the defendant Doornbos as
personally liable as a servant of the Crown.
[5] It is significant as a fact of the case and to the present enquiry that the Speaker is unable to obtain
leave to amend his statement of claim and writ to include the Crown for as long as the impugned order
of the Master is permitted to stand.
[6] Of significance to the law suit is that the plaintiffs had no way to know they were defamed until the
damages manifested themselves, and the damages only manifested themselves to the plaintiffs in the
province when they were finally able to correspond with the Speaker in Bulgaria. Only after having the
opportunity sometime in the year 2000 to exchange, for the first time, information among themselves,
could they then learn of what actual damages each plaintiff had jointly or severely suffered in or
connected to the province. In the case of Nicholas Kapoustin, Tatiana Kap and Tracy Kapoustin the
personal injuries suffered were physical as well as emotional and financial.
[10] Prior to March 2000 it was unknown to the plaintiffs and not fully understood by them as to what
words were spoken and what had occurred on or about May 15th 1995 in Sofia, Bulgaria. It appears
from the facts of the case that on that date the Crown had dispatched its servant, the defendant
R.C.M.P. Staff Sgt. Derek A. Doornbos ("Doornbos"), to meet secretly with officials from the Interior
Ministry (internal secret police) of the defendant Bulgaria in the city of Sofia, Bulgaria.
[11] What can be evidentially adduced from documentary evidence filed with the trial court and the
written statement of the defendant Bulgaria before the court, together with the available extracts from
press and wire service reports, is the following: That in May of 1995 the defendant Doornbos made the
first, of what proved to be a series, of what are now known to be slanderously false assertions to officials
and agencies of the defendant Bulgaria. The offensive words concerned the religious beliefs, moral
character and sexual deviation of the Speaker, the business activities of the plaintiffs in Bulgaria and
elsewhere.
[12] Among the Crown representation made to the defendant Bulgaria are that the Speaker had been
previously convicted in British Columbia on multiple counts of sexually molesting children. The Crown
further advised the defendant Bulgaria that the plaintiffs activities in Bulgaria were a part of organised
crime in the province of British Columbia, and the proceeds of crime in Bulgaria are to be found in
banks of the province known to the Crown. What is significant to the plaintiffs claim against the Crown
are that the actionable words were spoken and written as facts, not allegations or suspicions.
[13] The words spoken by a Crown servant, the defendant Doornbos, form the basis for the plaintiffs'
allegations against the Government of Canada, among them slander and libel. The words of the
Government of Canada were publicly exploited by agencies of the Defendant Bulgaria and made widely
reproduced in the mass media beginning as early as July 8 th of 1995, four months prior to any criminal
complaints being brought against the Speaker. The most outstanding reproduction and example of the
actionable words of the Crown appear in an August 1st 1996 newspaper interview in "Continent", and
later again on state owned television and radio with the defendant S. Georgiev, the lead prosecution
investigator for the defendant Bulgaria, clearly and in no uncertain terms crediting the offensive words to
the Crown.
[18] The primary documentary in evidence before the trial court that provides the first written proof of the
offensive words of the alleged libel appear in a July 7th 1995 letter issued by the Government of
Canada to the defendant government of Bulgaria. The defendant Bulgaria refuses to provide the
plaintiffs with a copy of the original letter sent by the Embassy of Canada at Austria in July of 1995.
What is available to the trial court is a certified English translation of a copy obtained from the
defendant Bulgaria's criminal proceeding against the Speaker.
[19] The libel claim turns on the words and their context as set out in the foresaid July 7th letter. In no
uncertain terms the Government of Canada had provided agencies of the defendant Bulgaria with what
the Crown provided as Canadian police conclusions developed by the Ministry of the Attorney General
of the province of British Columbia. The letter specifically identifies the Speaker as a known criminal to
provincial authorities and leaves no room for doubt on the readers part for any question as to th
Speaker's guilt for the acts identified in the letter by the Crown.
[20] There exists an absolute certainty in the words used and their context as conclusions of the Crown.
The writer, again the defendant Doornbos, can be seen to mean and was understood by agencies of the
defendant Bulgaria to mean, by what was written there, that the plaintiffs' companies in British Columbia
and in Bulgaria are actively engaged in the commission of crimes on Bulgaria territory. These crimes
being committed against Bulgarian citizens and actionable in Bulgaria. It goes on to say in no uncertain
terms that the money proceeds of the crimes committed by the Speaker in Bulgaria are being deposited
to bank accounts in Canada fronted by a Jewish pseudo-religious organisation based in British
Columbia. Further advising the defendant Bulgaria that the activities of the Speaker form a part of a
larger on going money laundering operation directed from the province by associates of the plaintiffs.
[21] The libellous words had been clearly written from the Crown to the defendant government of
Bulgaria and leave little doubt as to their character of accusatory conclusions designed to impute the
commission of a criminal offence(s) in Bulgaria as connected to the province.
[111] The facts of the case show that on July 8th 1995, there appeared in newspaper, television and radio
reports the first in a long series of egregious and deliberate assassinations of the character and public
image of the plaintiffs' and their company. These public statements by officials of the defendant
government of Bulgaria were overt acts designed to be insulting, degrading, and humiliating, having
later proved to be false in every particular.
[112] The law suit alleges that the offensive and insulting publications and television reports that
appeared through out the period of July 1995 to April 2001 were malicious in the extreme, having falsely
suggested that the Speaker, the plaintiffs and their companies activities were a public menace and
danger.
[113] Beyond relying on the Crown and the defendant government as the source of the actionable words,
the libellous publications and television reports that appeared were unexplained by any evidence, and
were calculated to damage the family of the Speaker, causing them jointly and severally to suffer
personal injury and physical harm in the province as a result of their anguish and emotional trauma, at
having become the subject of public ridicule in the British Columbia were the family resided and in
Bulgaria where the family had their investments and assets.
[114] Each defendant named in the law suit shared a collective purpose, to engender hatred and
contempt of the plaintiffs and to invite others to join in doing the plaintiffs personal harm. The overt
actions and words of the Crown and defendants Doornbos and Bulgaria, having nothing to do with the
attainment of truth and the common good.
[27] The plaintiffs claim that the facts of the case establish the presence of "Mens Rea", this providing a
significant factor in aggravation of the damages claimed, the defendants each having prior knowledge
that the words spoken, and later written, first by defendant Doornbos and later repeated or reproduced
by the defendant Bulgaria, were in every way false, and intended only to promote with certainty a public
hatred of the plaintiffs, injuring their reputation, and to expose them, particularly the Speaker, to further
contempt and public ridicule and insult.
2. 5. Malicious Prosecution.
[123] In affidavits before the trial court members of the Speaker's family allege that throughout the
period of his nearly 6 years of incarceration they have repeatedly and bitterly complained to the
Government of Canada that the defendant Bulgaria had breached Canadian law in or connected to
British Columbia. Family members allege defendant Bulgaria officials made repeated attempts to extort
money from family and friends in Canada by telephone or through intermediaries visiting Canada in
exchange for ending the physical and psychological torment of the Speaker. Police and prosecution
officials promising safe treatment in detention, even the possible release of the Speaker only if
substantial sums of money were paid them.
[124] The plaintiffs in British Columbia became deeply distressed and anxious about the Speaker's
safety, this caused severe mental, even physical torment to each plaintiff forced to endure such
attempts at extortion knowing they could not pay the defendant Bulgaria's agencies the amounts of
money necessary to ending what they knew to the cruel and unusual punishment of the Speaker.
[125] The plaintiffs claim to have maintained a record of each such complaint. This includes diary
entries, dozens of letters and press statements that officials of the defendant Bulgaria are beating and
drugging the Speaker during his detention in solitary confinement. The Speaker having reported his
drugging in a small note smuggled to a consular officer in August of 1997, and his beatings to Canadian
authorities and the press only after his solitary confinement was ended and he was moved into general
prison population. The plaintiffs claim the Crown failed to take concrete steps.
[126] That plaintiffs allege, as facts in aggravation of the damages they seek, that the beatings and
drugging the Speaker endured had a sinister purpose connected to the May and July 1995 demands of
the Crown for information on money allegedly in British Columbia banks. During his beatings and other
interrogations it became apparent to the Speaker that there was an ongoing criminal investigation in
British Columbia connected to the Bulgarian prosecution and investigation. These were things that at the
time the Speaker knew nothing about and were impossible for him to connect. It only later became
apparent that the Speaker was being repeatedly beaten, deprived of sleep and apparently drugged in an
effort to force him to disclose the whereabouts of this money.
[127] On or about August 1998 the beatings and other cruel punishment suffered by the Speaker abruptly
ended. Facts of the case show the physical violence and mental torment ending a short time after the
defendant Bulgaria received a fax from the Crown servant, the defendant Doornbos, advising that the
Crown would close its 1995 criminal investigation in the province, the defendant Bulgaria having been
unable to provide any of data required in the July 7th 1995 Crown request.
[128] The foresaid forms the basis of allegations in the case before the trial court that officials of the
defendant Bulgaria had unlawfully and repeatedly attempted to extort money from the plaintiffs in the
province with threats of violence against the Speaker in Bulgaria. The specific issues of these claims
are brought by the plaintiffs in the nature of a quasi-criminal proceeding against the individual Bulgaria
defendants named.
[130] The Speaker considers now, as he did in his written pleadings before the trial court, that the facts
surrounding his arrest and the related charges are immaterial to the proceedings in Canada except as
they might aggravate or alternatively mitigate any damages the plaintiffs suffered in British Columbia.
[131] It is nonetheless worthwhile to briefly comment on the history of Speaker's prosecution, arrest and
treatment by the Respondent, only in so far as the defendant Bulgaria, in its written pleadings, has
undertaken to make these facts material to the present proceedings before the trial court and relies on
them to support its argument of immunity.
[132] On February 28th 2001 a Ms. Maya Dobreva, Minister Plenipotentiary and Consul ("Dobreva") for
the Respondent's embassy in Canada, in sworn written testimony, introduced to the trial court facts of
the Respondent's criminal prosecution of the Speaker.
[133] The foresaid information was allegedly provided to Dobreva by a third party, a Mr. Dimitar Tonchev,
the then Deputy Minister of Justice, Republic of Bulgaria.
[134] The statement of Dobreva appears to rely on the defendant Bulgaria's sovereign right to criminally
prosecute whom it likes, and relies on the factual basis of its criminal prosecution of the Speaker as
adequate cause to invoke its state immunity and deny jurisdiction to a court of Canada.
[135] In her affidavit Ms. Dobreva traversed such immaterial averment as the nature of the criminal
charges brought by the Respondent against the Speaker in 1995, and the participation of the Crown in
the prosecution, location and arrest of the Speaker. This has been detailed above.
[136] Ms. Dobreva failed to provide any factual particulars as to what information or assistance was
provided by the Crown to the defendant Bulgaria.
[137] It appears to this Speaker that the controversy raised by Ms. Dobreva over the jurisdiction of a
court of Canada is a moot issue if, as Dobreva asserts, the Crown jointly conducted investigative
actions in and outside of Canada with the defendant Bulgaria. Apparently both governments participated
in the prosecution and arrest of the Speaker on information and charges collected in and originating
from British Columbia, this fact alone sufficient to bring the plaintiffs claims within the jurisdiction of a
trial court of the province. The fact The Speaker has attempted to complete the factual omissions of the
defendant Bulgaria when and where possible.
[138] If this Speaker understands the common law, and the principles of international comity, it is not for
this Honourable Court to make any judgement on the criminal charges raised in the Dobreva statement
for the Respondent. The plaintiffs make no such request to the trial court.
12.What, If Any, Relevance To The Trial Court Surrounding the Criminal Proceedings
[139] A review of the Respondent government's charges and sentence under the criminal law, "lex loci
delecti", of Bulgaria are made relevant to the present facts of the case insofar as their nature and
character may affect the processes of the trial courts of Canada and a persons rights before and under
the civil law, "lex fori", of the trial court.
[140] Of particular significance to the enquiry here are the facts of the case that document the defendant
Bulgaria obstructing the Speaker's access to the trial court and preparation in pursuit of his claims. The
Speaker is asserting that the criminal charges or character of the sentence under the "lex loci delecti" of
Bulgaria do not and cannot permit the defendant government's agencies to hinder, or otherwise limit the
fundamental civil rights of a prisoner, the Speaker, acting under the "lex fori" of the civil trial court in
Canada. The Defendant Bulgaria has repeatedly claimed the alternative, that persons deprived of their
liberty are also deprived of their other fundament civil rights, i.e. to appear before a civil court to
prosecute of defend their law suit against the defendant Bulgaria. The court is asked to refer to the May
9th 2001 letter of the defendant Bulgaria [see Vol 1, Tab.No. 9 Plaintiffs Factum].
13.What Are the Facts of the Criminal Case The Defendant Bulgaria Relies On?
[144] The Speaker risks redundant, however for the sake of clarity the following may be worth repeating
in the context of facts of the criminal proceedings initiated by the Republic of Bulgaria against the
Speaker and confirmed, absent of the following details, by the defendant Bulgaria before the trial court.
[145] On July 7th 1995 Government of Canada, in a letter to the Respondent, provided it with R.C.M.P.
conclusions, including a statement of facts allegedly collected in British Columbia, of what the R.C.M.P.
concluded was the Speaker's criminal activities in Canada and in Bulgaria. The letter goes on to
identified to the Respondent that the R.C.M.P. had concluded that the activities of the Speaker and his
"LifeChoice" companies are an international criminal organisation operating in Canada and Europe. The
R.C.M.P. concluded that Speaker's activities were criminally qualified under Canadian law as a major
fraud and money laundering businesses operating in British Columbia and elsewhere.
[146] The foresaid letter make conclusions of a connection between criminal activities in British
Columbia to the Speaker's activities and company in Bulgaria. The Government of Canada requests the
Respondent, the Government of Bulgaria, to prosecute the Speaker and his company on the evidence
and conclusions provided in the letter, on doing so to then forward any operative information to the
Attorney General of British Columbia.
[147] On July 8th 1995, Respondent government officials used the facilities of its state owned and
controlled mass media to make public the oral and written R.C.M.P. conclusions and information on the
Speaker's supposed criminal activities, charges and convictions in British Columbia. Including that
provided since on or about May 15th 1995 to the Respondent by the Government of Canada.
[148] None of the Respondent's public statements and repetition of the information originating from the
Government of Canada and Attorney General of British Columbia, as reproduced in the Bulgarian and
international media, proved to be true.
[149] On July 17th 1995, as a direct result of the conclusions and request provided by the Crown, the
defendant Bulgaria instructed its agencies to take legal action against the Speaker, his company and
any companies or persons associated to him. The defendant Bulgaria agreed to act on the Crown
request to criminally prosecute the Speaker. The Main Public Prosecutor of the Republic of Bulgaria was
order to bring charges and arrest the Speaker.
[150] The defendant Bulgaria also proceeded to order its scientific and commercial enterprises to
terminate all joint commercial activities and contracts with the plaintiffs connected to the Speaker, and
to seize all the plaintiffs assets, tangible and intangible, and documents under their fiduciary control.
[152] On November 22 1995 the defendant Bulgaria agency, the National Investigative Service (NIS),
ordered police investigator, the defendant S. Georgiev, to issue the international warrant for the
Speaker. Defendant Georgiev relied on the exact words found in the July 1995 Crown request to indict
the Speaker.
[153] Here significance must be attached to the fact that there is no participation whatsoever by any
judge or court in the preparation or authorisation or issuance of a warrant for arrest. Upto very late in
2000 decisions on matters of habeas corpus had been within the exclusive ambit of police and
prosecution officials who formulated the charge and issued warrant in th absence of judicial supervision
or review.
[154] After a number of European Court (EC) of Human Rights judgements against Bulgaria, beginning
with the seminal case of Assenov and Others v. Bulgaria, Judgement of 28 October 1998 Reports of
Judgements and Decisions 1998, [see among others: Nikolova v. Bulgaria Judgement of 25 March 1999,
Reports of Judgement and Decisions 1999], the practice was in part abandoned in late 2000 after
legislative amendments to the Bulgarian Criminal Code of Procedure.
[155] The Speaker's first judicial review of his arrest did not occur until more than two years and two
months after his arrest. Furthermore, there existed at the time of the Speaker's arrest no procedure for
appellate court review of a detention order issued by the prosecutor or a district court judge.
[156] The charge brought by Bulgarian police (NIS) in November of 1995 was an alleged embezzlement
by the Speaker as an "official" (director) employed by the Speaker's company in Bulgaria. The court will
recall a servant of the Crown, Defendant Doornbos, had advised Bulgaria authorities in May and July of
1995 the said company was a part of an international criminal organisation operating out of Canada. It
was known at the time to the agencies of the Respondent that such a charge and allegation was
impossible both as a point of law and fact. The seminal case on this particularly question of fact and law
was reviewed by the EC of Human Right in Lukanov v. Bulgaria, judgement of March 20 1997, Reports
of Judgements and Decisions 1997-II. There the court found against the Respondent Bulgaria for
bringing accusations of embezzlement against one official for what had been a collective decision
approved by all responsible officials, none of whom had independently lodged any complaint. In the
cited EC judgement the transaction involved public funds, in the Speaker's circumstances the
transaction involved private funds the patrimony of which devolved to the plaintiffs company in British
Columbia by way of 100% ownership of the Bulgarian company shares.
[157] On February 6th 1996, the Speaker was arrested by German police while in transit to Greece at
Frankfurt International Airport on the very same data as provided by Crown then embodied in the
defendant Bulgaria's police warrant.
[158] According to the sworn statement of Ms. Dobreva before the trial court in this proceeding, the
Speaker's location and arrest was only possible thanks to the assistance provided by a servant to the
Crown and agency of the Government of Canada.
[159] On February 12th 1996, while detained by German police, the defendant Bulgaria raised new
charges against the Speaker of misappropriation of his company's funds by documentary fraud, general
fraud and income tax evasion.
[160] On or about August 1st 1996 the Speaker, was hospitalised at the order of prison medical staff in
Germany and placed on intravenous feeding.
[165] On December 10th 1998 the Respondent brought final charges, entering an indictment for
embezzlement against the Speaker. It was alleged by the defendant Bulgaria that the Speaker had
misappropriated funds he had first defrauded from 4831 individuals. The alleged subject of the indicted
crime, embezzlement, was the same subject of the preceding crime, the fraud, it being alleged that to
acquire the funds so that the Speaker could embezzle them, required that he first defraud others of the
funds. Needless to say the Speaker and his attorneys at the time were completely confused by the
indictments legal construction.
[166] On April 16th 1999, three (3) years and three (3) months after his arrest, the Speaker was
arraigned for the first time before a justice of the Sofia City Court. The court allowed bring new elements
in the indictment different from those brought at the time the Speaker was arrested on February 7th
1996 and for which Germany later extradited the Speaker on September 2nd 1996. A repeated defence
thesis during the Speaker's arraignment was that an alteration of the extradition elements and charge
was in violated of international law -the European Convention on Extradition - in the absence of German
consent.
[167] On January 14th 2000, the defendant Bulgaria withdrew the April 16th 1999 indictment and original
accusations against the Speaker, raising instead a new charge, having different circumstantial and
factual elements but having the same criminal code qualification, the presiding judge allowing the new
charges.
[168] On March 13th 2001 the Sofia City Court convicted the Speaker of embezzlement of his
companies funds and sentenced him to 23 years of hard time. The maximum sentence for
embezzlement is 30 years. The only victim of the crime identified by prosecution and the convicting
court was the plaintiffs' wholly owned subsidiary company, "LifeChoice" incorporated by the plaintiffs and
the Speaker in Bulgaria.
[169] On August 2nd 2001, on appeal, the Speaker was acquitted of the charge of embezzlement, the
appellate court ruling that the first court had erred in law and in fact when allowing the new charges and
elements of embezzlement as brought on January 14th 2000. The Appeal court re-qualified the factual
elements as having the character of a general fraud and convicted the Speaker, sentencing him to 9
years. The maximum sentence for fraud is 10 years.
[170] On August 20th 2001 the defendant Bulgaria ordered its prosecutor to protest to the Supreme Court
of the Republic of Bulgaria that the appellate court had erred in law and fact when acquitting the
Speaker. The defendant Bulgaria seeks the Supreme Court of Bulgaria to set aside the appellate
decision and return the Speaker for a new trial before the first court. The Speaker appealed his
innocence.
1.1996
[176] As the Court may recall the Speaker began his detention in Bulgaria on 2nd September 1996.
[177] The conditions in Bulgaria and the treatment the Speaker could expect and did later encounter
were set out in 1996 by USAID [see: www.usaid.gov/countries/bg/bulseed.htm] it reported:
[178] In that same year Amnesty International reported [see: AI Index:EUR 15/07/96 DISTR:SC/CO/GR]:
[179] 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 as press frequently report incidents of torture
and ill-treatment." And:
[180] Persistent violations of fundamental civil rights or obligations and corruption is systemic, and
occurred regularly in the context of continued social and economic difficulties. Inadequate legislative
reforms by successive governments of Bulgaria left intact corrupt state institutions and an atmosphere
of lawlessness heightened by the numerous reports of the illicit financial gains of former government
nomenklatura, some of whom were and are still active politicians.
[181] This Honourable Court is asked to recall a significant and outstanding incident involving the 1995
to 1998 co-operation of a Crown servant and diplomatic agent of Canada [see: above references to
defendant Derek Doornbos] with the Regional Department of Internal Affairs Unit for Combating
Organised Crime [the above referenced Ministry of Interior - secret services police]. In the 1996 AI
wrote:
[182] 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 Captain Savov and his associates from May 1995, inevitably assisting
them in their efforts to cause pecuniary and non-pecuniary injury to the plaintiffs, as well as extort funds.
[183] The situation was summarised by AI as "police officers have traditionally placed the protection of
state interests above universally recognised rights of individuals." And lead to a conclusion, due to the
few cases of abuses reported being prosecuted, that the Bulgarian judicial system and practice routinely
failed to safeguard fundamental human rights. AI reported, as this Speaker has documented with his
own experiences, that Respondent authorities regularly refuse to provide such documents on whether
complaints against its officials are processed or to make public those documents necessary to prove
such complaints against the Respondent. Such conduct has been and continues to be inconsistent with
UN and European Counsel obligations of Bulgaria.
2.1997
[185] In November, Mr. Peter Stoyanov was elected to President of the Republic of Bulgaria. Stoyanov is
a former attorney and business associate of this Speaker. Late in 1994 and the beginning of 1995
Stoyanov was paid $15,000 United States Dollars (USD) by the Speakers British Columbia company. In
exchange for these funds, Stoyanov was to obtain municipal approval for the Speaker's company to
install and operate a micro-refinery and oil treatment plant near the City of Plovdiv. Stoyanov took the
funds but never provided the services promised, prior to the Speakers arrest he had been forcefully
demanding that Stoyanov return the funds. The money in question became a public issue during the
Speakers detention and at his trial in 1999.
[186] AI reported that 1997 began much like 1996 with "daily reports of torture and ill-treatment by police
officers" of most criminal suspects, some leading to death. Racial and religious discrimination was often
a predominate factor among police and investigative officers. Medical attention was often denied
victims when still in custody, or alternatively, as in the Speaker's case, medical reports were provided
that were consistent with police claims and not the truth [see case: AI "Deaths In 1997: Mincho
Sartmachev"]. Requests for independent medical examinations to verify claims of ill treatment were, as
in the Speaker's case, routinely denied him. All Canadian consular requests for an examination of the
Speaker by a Canadian doctor were routinely refused by the defendant Bulgaria. Quoting AI;
"Ill treatment and beatings in police custody are common in Bulgaria and
there now exists a pattern of almost casual violence which Amnesty
International believes must urgently be addressed….Violence on the part of
the police at the time of detention is also frequent."
[187] Police and investigator violence are a regular pattern utilised to obtain information or extract
confessions from suspects. Prosecutors and Judicial officials fail to pursue allegations against police
and other officials responsible to them under law. As a result human rights violations are committed with
impunity from prosecution or discipline. Bulgarian authorities failed in most cases to pursue those
responsible or adequately investigate reports despite obligations as a state party under the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment.
[188] AI expressed deep concern over the failure of the Ministry of Justice and police to act on
complaints, so much so as to suggest to the government of Bulgaria that it establish a complaints board
independent of these institutions that included the office of the prosecutor and courts.
3.1998
[189] During March of 1998 the Bulgarian government authorised the release of a report prepared by the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment. This report was compiled after the committee had visited the various places of detention to
be found in Bulgaria and concluded that those persons detained there "run a significant risk of being ill
treated at the time of their apprehension and/or while in police custody, and that on occasion resort may
be had to severe ill-treatment or torture".
[190] Of significance to the Speaker is that the report went on to state "that conditions of detention in the
National Investigative Service (NIS) facilities could be described as inhuman and degrading", prisoner
are held in isolation, often for years and under an "impoverished regime offering very little human
contact". The court may well recall that the Speaker had been isolated more than two years (1996 to
1999) by the NIS at facilities described in the European Committee report.
4.1999
[193] During 1999 the Parliamentary Assembly of the Council of Europe decided to continue monitoring
Bulgaria's honouring of its international obligations and commitments [see below: Part 3 "Law and
Enactment Relied On"], assembly rapporteurs expressed concern to the council about continued police
violence.
[194] In May of 1999 the Chief Prosecutor and the Director of NIS both acknowledged there had been
"serious violations of laws, rights and freedoms of citizens" that were becoming ever more, rather than
less, frequent in the practice of the Ministry of Interior. In 1995 the agreement between the Ministry of
Interior, defendant Bulgaria, and the Crown Servant defendant Doornbos was to "prosecute for
whatever" the Speaker or his company in Bulgaria. It is recalled that AI reported in 1996 that the
defendant Bulgaria interior police was known to be co-operating with, and protecting, high ranking
organised crime member.
[195] The Ministry of Interior continued and continues its practice of not co-operating in complaints
against its officers or facilities under its control. It may be remembered that the Ministry of Interior
effected all the seizure of property belonging to the plaintiffs in Bulgaria, and records of their companies.
[196] The Ministry of Interior was responsible for efforts in Bulgaria connected to the discovery of the
whereabouts of funds the Crown had advised the said ministry on July 7 th 1995 were to be found in the
province. It is members of this agency that co-operated with the Crown. The plaintiffs are alleging before
the trial court, in aggravation of their claims against the defendant Bulgaria and the Crown, that the
beating of the Speaker, and attempts in Canada to extort money from the his family were organised by
officers of the Ministry of Interior of Bulgaria in regular contact with the Crown..
[197] On February 25th 2000, the United States State Department "1999 Country Reports on Human
Rights Practices" [see: www.state.gov/www/global/human_rights/1999] wrote:
[198] The US State Department indicated that, as in the prior years, the security forces continued to beat
suspects and prison inmates. The Speaker make reference to such fact as it is relevant to his past
treatment and the ever present threats under which he exists.
5.2000
[211] AI continued to express concerns in its August 2000 report about the continuing "high incidence of
reports of ill-treatment by Bulgarian police officers. A questionnaire survey conducted among nearly
1000 convicts in Bulgaria's prison system on behalf of the Bulgarian Helsinki Committee in early 1999
revealed over half claimed that they were tortured or ill treated during arrest", causing AI to conclude that
ill treatment continued to be a "systemic, institutional problem".
[212] The Bulgaria government agencies continue to refuse to provide human rights organisations with
reports into case of torture or ill treatment.. AI writing that such refusals "cast doubt on their conduct".
The AI Annual Report 2000 made the following conclusions that are significant to the trial court
proceedings and present applications before the Court of Appeal:
· "PART I
· "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."]
[214] 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
Part III.
ERRORS IN JUDGEMENT
[216] The untrained lay applicant risks much when attempting the practice of law. Among these risks
there exists the embarrassment and foolishness of making statements or arriving at conclusions that are
inconsistent with the practice of the common law or intent of the enactment relied on.
[217] If simplicity and clarity of purpose are twin virtues to the practice of any science, including law, then
at the risk of appearing foolish this Speaker respectfully puts to this Honourable Court that the error in
judgement is on a point of law. If it is in fact that, then the substantive question put to the Appeal might
well be thus expressed:
. "Did the Master erred in law when failing to exercise its constitutional duty and inherent
jurisdiction to guarantee the Charter rights of the applicant. Having erred in judgement
when failing to recognise the legal effect of his order and inevitable prejudicial
consequences that such order had against the legitimate interests and lawful rights of
the person before him whose liberty had been denied and indigent was a barrier to the
exercise of his fundamental rights."
Part IV.
ARGUMENT AND ANALYSIS
1. Discussion
1.1. Issues - There Are Three Applications
[218] The applications before the Court of Appeal if placed in order of difficulty are as follows:
[219] The lesser applications of time and indigence are moot if there is no arguable point on appeal in
the application for leave, the nature of the appeal is discussed first in the Speaker's analysis.
[229] Through the course of the proceedings before the trial court, the Speaker as a litigant and prisoner,
has had to rely on certain principles of international law found to be binding jointly and severally on the
governments of Canada and the Defendant, the Republic of Bulgaria. What follows is a chronological
review of international instruments for the protection of fundamental rights. The cited articles are what
the Speaker believes relevant to his arguments. The Speaker has emphasised the particular part of the
provisions cited that are directly applicable to his status as a prisoner.
1.3.1.1.The Universal Declaration of Human Rights, G.A. res. 217A (III), U.N.
Doc A/810 at 71 (1948).
"Article 2
"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
"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
"Article 12
"Article 28
"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].
"(b) To ensure that any person claiming such a [civil] remedy shall
have his right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for by
the legal system of the State, and to develop the possibilities of judicial
remedy;
"(c) To ensure that the competent [judicial] authorities shall enforce such
remedies when granted.
"Article 3
"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
"Article 16
"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.
"60.
"61.
1.3.1.4.Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR
Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).
"SCOPE OF THE BODY OF PRINCIPLES
"These principles apply for the protection of all persons under any form of
detention or imprisonment.
"Principle 3
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……
1.3.1.5.Basic Principles for the Treatment of Prisoners, G.A. res. 45/111, annex,
45 U.N. GAOR Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990).
"5. Except for those limitations that are demonstrably necessitated by the
fact of incarceration, all prisoners shall retain the human [civil] rights and
fundamental [civil] freedoms set out in the Universal Declaration of Human
Rights, and, where the State concerned is a party, the International
Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and the Optional Protocol thereto, as
well as such other rights as are set out in other United Nations covenants.
2.Canadian Enactment.
[230] The foregoing international principles of law were incorporated by legislators into the Canadian
legal landscape as follows.
"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;
"(a) ……;
"(c)……..;
"(d) …..;
"PURPOSE OF ACT
"2. The purpose of this Act is to extend the laws in Canada to give
effect, within the purview of matters coming within the legislative
authority of Parliament, to the principle that all individuals should have
an opportunity equal with other individuals to make for themselves the
lives that they are able and wish to have and to have their needs
accommodated, consistent with their duties and obligations as
members of society, without being hindered in or prevented from
doing so by discriminatory practices based on race, national or ethnic
origin, colour, religion, age, sex, sexual orientation, marital status, family
status, disability or conviction for an offence for which a pardon has been
granted.
"Discriminatory Practices
1976-77, c. 33, s. 5.
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.
"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.
"Definitions
"Purposes
"(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,
3.Bulgarian Enactment
[231] The Government of the Republic of Bulgaria took an alternative approach from that of Canada
when incorporating the aforecited international law. The defendant government relies on its' constitution
to incorporate, by way of reference, all international instruments ratified by its legislation, making such
international law the supreme law of the country.
"Article 5
"Article 57
1.Canada
"TEMPORARY ABSENCE
R.S., 1985, c. P-20, s. 7; 1992, c. 20, s. 207; 1995, c. 42, ss. 71(F), 72(F);
1997, c. 2, s. 2.
Principles
"(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;
"(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.
"(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)…;
"(c)…;
"(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;
"(c) the inmate's behaviour while under sentence does not preclude
authorizing the absence, and
"Temporary absences
2.Bulgaria
"The Constitution
"Article 31
[237] The subject of prisoner rights, temporary absence to attend judicial proceedings being one such
right, are treated in a limited way under as follows;
"b) The rights, which have been denied to them or have been explicitly
restricted by a law or another enactment and
[238] A procedure is provided under Bulgaria legislation, again in a limited fashion, for a the foreign (i.e.
Canada) court to summon any prisoner to exercise his or her fundamental right of appearance, in
proprio persona, before it in any proceeding where the prisoners attendance is required to protect his or
her civil or other legal interests or those of others in a foreign judicial proceedings. The text makes no
distinction if the foreign proceeding is civil or criminal in nature. The enactment reads as follows:
"Article 463
"(1)…[Sic]
[264] Co-operation of the defendant Bulgaria with the trial court should be seen as an obligation of the
defendant government of Bulgaria to its international agreements and as an expression of its comity and
respect for the processes of a trial court of Canada. It recalled the trial court has inherent jurisdiction
over its own processes.
[265] The Speaker recognises that his reasoning does not alter the hard fact of a provincial trial court's
reticent to exert jurisdiction in Canada over a foreign State, no matter how un-cooperative. However, it
is equally a hard fact that such understandable reticence of the trial court cannot withstand the fact that
the Respondent is a party to a judicial proceeding before a British Columbia court of law and is therefore
subject to that courts jurisdiction.
[266] It is equally as hard a fact that the defendant Bulgaria is shown by the facts of the case to be
impairing the Speaker from exercising his rights as the opposing party in the same proceeding to which
Bulgaria happens to be a party.
[267] There are no saving provisions or principles under the cited international law that appear to permit
an agency of a foreign state to directly or indirectly interfere with the judicial processes of another state
or for that matter to interfere with the standard minimum limits for prisoners as recognised by the
international community. The most comprehensive of such guidelines are the cited United Nations
Standard Minimum Rules for the Treatment of Prisoners (known as the Standard Minimum Rules),
adopted by the U.N. Economic and Social Council in 1957. It should be noted that although the
Standard Minimum Rules ("SMR") are not a treaty, they constitute an authoritative guide to the binding
treaty standards recited above. Part II Principle 57 is most instructive:
[268] The said Principle 57 clearly expresses what the Speaker had repeatedly attempted to identity in
his written petitions to the Master and Chambers Judge of the trial court, that "imprisonment and other
measures which result in cutting off an offender from the outside world are afflictive by the very fact
of….depriving him of his liberty".
[269] According to the SMRs governments should act to insure to "minimize any differences between
prison life and life at liberty which tend to lessen the responsibility of the prisoner" (see Art. 60). It is
recalled that the defendant government, Bulgaria, had at first refused all petitions to allow the Speaker,
as a prisoner, the SMR protections available under international law.
[270] A prisoner's minimum rights happen to also include the constitutional possibly in both Bulgaria and
Canada to bring and prosecute to the full extent of the law a civil claim against the very state or the
institutions and officials of that state holding a plaintiff prisoner.
[277] In the Master and Chambers Judge requiring a prisoner to appear or pay for a lawyer to appear
before them, they acted to deny any a prisoner the exercise his constitution right to obtain a judicial
review of grievances when relying on s. 24(1) Charter.
"Except for those limitations that are demonstrably necessitated by the fact
of incarceration, all prisoners shall retain the human rights and fundamental
freedoms set out in the Universal Declaration of Human Rights, and, where
the State concerned is a party, the International Covenant on Economic,
Social and Cultural Rights, and the International Covenant on Civil and
Political Rights and the Optional Protocol thereto, as well as such other
rights as are set out in other United Nations covenants."
[281] Endorsing this philosophy in 1992, the United Nations Human Rights Committee explained that
states have "a positive obligation toward persons who are particularly vulnerable because of their status
as persons deprived of liberty", stating:
[282] It is significant that both the learned Master and Chambers Judge Edwards, J. failed to recognise
the "hardship and constraint" that their order had on an impoverished and imprisoned party to the case
as before the bar. Insodoing both Master and Chambers Judge failed in their "positive obligation"
towards the Speaker who remains "particularly vulnerable because" of his status.
"(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.
[307] It is recalled that the Respondent Bulgaria's legislation on the subject of a prisoners fundamental
rights encompasses all those rights available to others except those "which are not restricted by virtue of
their sentence" [see: the cited Art. 31(5) Constitution of Bulgaria]. Other than this an "incarcerated
person(s) may avail themselves of (enjoy) all rights established by law" and the Respondent agencies
are forbidden to restrict such rights [see: the above cited Art. 23 Law on Execution of Punishments].
1.Fact.
[310] On the basis of all the above having been said, the points on appeal appears to require the
Speaker's argument to turn naturally on one obvious fact and two equally as obvious questions:
. The Master and Chambers Judge in the civil court did chose to limit the Charter rights
and international law guarantees of an imprisoned citizen of Canada in such a way as
to make prosecution or defence of his civil and quasi-criminal proceedings before the
trial court impossible.
2.Questions.
. This being so, then are the Charter rights and international law guarantees for citizens
of Canada before its' civil court equal to the guarantees afforded by Canada's
legislators to other citizens still at liberty or having financial resources to retain an
attorney? Or has an enactment prescribed such limits as to make such rights solely
unavailable to indigent persons deprived of their liberty who act as civil litigants before
a court of the province?"
3.Common Issue.
[311] It became apparent to the Speaker that the three applications now at Bar are each jointly and
severally connected to the deceivingly simple common issue of a persons rights as a civil litigant before
a court of Canada, when he or she happens to be deprived of his or her liberty and has no means to pay
for a lawyer.
1.7. Analysis
[312] There is no doubt in the mind of the international community that incarceration in a penal institute,
by its very nature, poses special problems to any civil litigant. As seen above the "afflictive" nature of
imprisonment has been recognised and acted on by the community of democratic nations as a whole.
Canada and the Respondent Bulgaria are no exceptions.
[313] If imprisonment of a party to a civil proceeding does not alone complicate matters enough before
the trial court, we need only add the ingredients as found in the case at bar. The state responsible for
the imprisonment in question happens to be a foreign State and a defendant, and the civil proceeding
having been initiated by a person imprisoned by it. The state defendant insisting on the trial court
applying "absolute", not "restrictive" immunity, the defendant state refuse to recognise the jurisdiction of
the provincial court.
[319] As much as the Speaker might wish to have the lawfulness of his arrest and detention tested by a
court of Canada that is not to be. And it may be prudent at this juncture to identify to the Court of Appeal
what points are not to be put before the trial court or on appeal.
[320] First and foremost is the Speaker's incarceration by the Respondent State. Clearly this is not open
to this or any trial court in Canada to rule on. However, it is reasonable to make averment to such facts
only in aggravation of those points as legitimately laid before the trial court.
[321] The Incarceration of the Speaker and its reasons, lawful or unlawful are not nor are intended to be
a point of the plaintiffs law suit, and are most definitely not the object of the intended appeal. Such facts
are substantive only to an understanding of the plaintiffs' full case, and if any, to its merits.
2. The Applications.
2.1. Arguments.
[324] In layman's terms the Speaker's applications and the argument are along the following lines:
1.Time
[325] The Respondent Bulgaria's agencies have exceeded the recognised international limits on
reasonable restriction of civil and fundamental rights or obligations of the Speaker as a prisoner
involved in a law suit against the state. It has done so without adequate or good cause and with the
knowledge and purpose to obstruct the Speaker's timely access to a trial court of Canada.
Notwithstanding that delays are as well a part of the nature of incarceration. Therefore it is reasonable
for the Appeal Court to extend to the Speaker the needed time to bring his applications and appeal
before the court. A judicial remedy is called for as no other remedy is available to the Speaker as a
prisoner.
2.Indigence
[326] Judicial relief from the fees and costs of the court are reasonable as no other remedy is presently
available to enable the Speaker, a prisoner, to proceed in a way other than in forma pauperis before the
courts of law. The Speaker is at present unable to secure the required court fees, his poverty and
imprisonment acting as dual impairments to his constitutional right to apply under s. 24(1) of the Charter
for judicial review and remedy of his constitutional and other complaints. Deprivation of liberty by its
nature is an "afflictive" status depriving the Speaker of the right of his self determination in financial and
other personal affairs. Conditions in a prison of the Respondent Bulgaria are such that the suffering
already inherent in imprisonment is severely aggravated by extreme and harsh conditions, the poverty
of state institutions of Bulgaria and the absence of prison employment opportunities or possibility to
arrange for an alternate form of income having cumulative effects, after 6 years of imprisonment, of
leaving the Speaker in poverty.
[327] A judicial review of the impugned order by Court of Appeal is reasonable. The appeal brought is as
well in the nature of a constitutional application under s. 24(1) of Charter, raising as material to
interpreting the impugned order a question under the Constitutional Questions Act [RSBC 1996] c. 68. In
the least there might be merit to the Speaker's facts if not in his layman's view of law.
[328] Reason and the principles of international justice collectively suggest, and the facts of the case
show, that if the s. 24(1) Charter review the Speaker seeks is not allowed in writing, then his s. 15(1)
Charter guarantees before this or any court of law in Canada are seriously at risk of continuing to be
breached.
[329] It is the legal affect, as opposed to the intent, of the impugned order of the Duty Master and
enactment that has prejudice the Charter rights of the Speaker, its application having done so more than
it would if applied to another citizen, having done so solely because the Speaker is a member of a class
of citizens having a status of an indigence prisoner. The impugned order and enactment act to prevent
the Speaker's applications from being accepted, his complaints from being heard and incontrovertibly it
denies him, as a citizen of Canada, any access to a court of law to attempt to pursue his constitutional
right to a judicial remedy. Beyond the legal and practical effects of the appealed order is again the
question of the degree that the impugned Court Rules Act [RSBC 1996] c. 80, Rules Of Court did, by
omission, act to create the discriminatory or prejudicing effect of the impugned order.
[330] It this set of rules that allow the Supreme Court of British Columbia, as a general practice, to
derogate from the "standard minimum " rights prescribed in law as those reasonably limiting a prisoners'
constitutional right to equality under s. 15(1) Charter.
[331] The Speaker, rightly or wrongly, reasons in his application for leave that an enactment of
parliament is in principle wrong and open to constitutional challenge the moment it produces a direct or
indirect discriminatory practice as its affect. Though indirect and unintentional, the effect is nonetheless
one that is discriminating against a small group of citizens solely due to their status as prisoners of
Canada or as Canadian citizen prisoners of a foreign state.
[332] The discriminatory affect, as opposed to intent, is the creation of a set of administrative rules or
judicial requirements (the need for self-determination and funds) that all reasonable people know or
ought to know are insurmountable requirements levied by the courts on the identified group. Application
of the impugned Rules (see Rule 41(16.5)(b)) provides for, or has created by omission, an
administrative impairment for a prisoner to pursue his or her "rights or obligations" in a lawsuit before
the trial court, having created a reverse onus on the person effected on its application, such that it fails
to meet the test of reasonableness found in s. 1 of the Charter.
[333] The intended appeal recognises that it is the sovereign right of every state to lawfully and
reasonably deprive the liberty of those members of its society who fail to observe the rights of others.
However, it is wrong for a state to deprive any member of its society of those other rights not limited by
the nature of the sentence imposed. Such rights are held by society and law to be the reasonable and
inalienable rights fundamental to all members of society, and not to be derogated due to a depravation
of liberty or by administrative act or judicial order having the effect of denying fundamental civil and
human rights solely to a person having lost his or her self-determination.
[334] It has been argued that one such fundamental right, in the opinion of the Speaker, is the right and
obligation to prosecute or defendant claims in a law suit before a court of law having jurisdiction
simpliciter over such claims and being the forum conveniens to provide a remedy. It is intrinsically wrong
when a state or court official acts to deny anyone, even a prisoner, the reasonable opportunity and
facility to responsibly and conscientiously act on his civil rights or obligations as a "detached" member
of society afflicted with the hardships of imprisonment.
3. The Applications
3.1. On The Application To Extend Time.
[336] Case law suggests to the Speaker that the factors to be considered by the court when exercising its
discretion in such an application were established in Robinson v. Rouse (1957), 22 W.W.R. 89
(B.C.C.A.) as follows;
"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.
[337] As a practical matter there can be is no prejudice to the Defendant and Respondent government
Bulgaria for the reasons that follow.
[338] From the course of the proceedings it can be seen that only one defendant, the Government of
Bulgaria, has filed an appearance in this proceeding. As a result it is difficult to contemplate that
granting the Speaker the time needed to appeal would prejudice the interests of other defendants
having taken a decision to not engage themselves in the processes before the trial court.
[339] According to the course of the proceedings and facts of the case, officials and agencies of the
defendant Bulgaria are clearly in complete physical control of the Speaker. His ability to access the
resources and facilities of the courts of Canada are at the sole discretion of the defendant State. The
delays in the Speaker bringing his applications before the Appeal Court are directly a consequence of
the defendant/respondent, Bulgaria. What can also be seen from the course of the proceedings is that
the Speaker, although incarcerated, attempted through his interpreter and various other intermediaries
to maintain contact with the defendant's counsel in Vancouver and the trial court. In numerous
correspondences there are raised concerns over meeting time constraints. The need for additional time
a result of the hostile interference from officials and agencies of the defendant Bulgaria, and not an
intentional or irresponsible act of the Speaker.
[340] The Speaker and defendant Bulgaria were both aware of the deadline for making any application
for leave to appeal to the Appeal Court. The Respondent was also well aware that there would be an
appeal, and knowingly that to be so imposed restrictions on the Speaker's ability as a prisoner to effect
the necessary due diligence for such an appeal
[341] The nature of the appeal to be brought and its hearing by the Appeal Court do not in any significant
way prejudice the rights or interests of the Respondent the defendant Bulgaria.
[342] Even if there were any prejudice to the defendant Bulgaria, or the Crown, also named as a
Respondent, it would be far outweighed by the prejudice the Speaker would suffer if he were prevented
from pursuing his appeal.
2.Whether the appellant had formed an intention to appeal in the time limits for an appeal:
[344] From June 25th 2001 [see § 1.2above] representatives of the Speaker communicated to the SCBC
Registrar and defendant Bulgaria the possibility of appealing the Chambers Judge order, and formed, in
writing, the intention to pursue the appeal.
[345] Subsequently the Registrar of the B.C.A.C. received a letter and substantive other electronic
correspondence from the Speaker. Even telephone conversations with the Speaker's representative in
Bulgaria were had regarding the intention of the Speaker to seek to clarify or vary a the Master's order
and Chambers Judge decision, the Speaker believing he had been unfairly discriminated against, solely
as a result of his indigence and depravation of liberty. His rights as a litigant in Canada having been
unfairly limited.
[346] On the above cited date the Speaker wrote and faxed the Legal Aid Society of British Columbia. In
his letter the Speaker formed his reasons to appeal the decision of His Lordship Edwards, J. and was
seeking legal aid counsel to pursue that appeal. Similar letters were sent to other legal aid services in
British Columbia. These requests went unanswered except for the Legal Aid Society rejecting the
request to provide its services to a prisoner in a civil proceeding.
[347] There can be no doubt as to the intent of the Speaker to appeal, this is apparent from the course of
the proceeding and available correspondence. Counsel in Vancouver for the Respondent has not
accused the Speaker of having "bushwhacked" his client with the intended appeal.
3.Was the respondent aware of the appellant's intention to appeal within the time limits:
[348] For the reasons and circumstances cited above, and as a practical matter, it is unreasonable to
conclude that the defendant Bulgaria was unaware of Speaker's intention to appeal within the time
limits. The Speaker's written complaints of interference are evidence of the Speaker's losing battle with
the Bulgaria's officials to meet to the time limits. There is the additional fact that all B.C.A.C. Registrar
correspondence on the subject of the Speaker's appeal has been copied to the trial counsel for the
Respondent in Vancouver.
[349] Furthermore in a June 25th 2001 letter the Speaker identified the issues to be appealed c/o of the
Ministry of Justice for the Respondent, the Deputy Minister Dimitar Tonchev in Sofia, Bulgaria.
[350] Again on July 6th 2001 the Speaker's representative in Bulgaria sent Vancouver counsel for the
defendant Bulgaria Respondent copies of the Speaker's correspondence with his client's representatives
in Sofia, Bulgaria. In particular the letters exchanged with the Respondent, Ministry of Justice regarding
the intention to clarify or vary the trial court's order.
[351] The question of this particular application to the B.C.A.C. is not to determine whether the Speaker's
case has any merit, but whether a substantial ground has been raised in the proposed appeal which
could result in the order appealed being varied or set aside by the Appeal Court [see: Shipping
Federation of British Columbia and International Longshoremen's and Warehousemen's Union (1961),
31 D.L.R. (2d) 181 (B.C.S.C.)]. If the answer to that question is "yes", then the additional time requested
by the Speaker is merited.
[352] As there are constitutional and international law questions in the original application(s) to the trial
court that were not adjudicated upon, and the Speaker asserts such questions should have been
adjudicated upon in the full sense, it causes the Speaker to then believe that this Honourable Court can
on appeal revisit the same matter.
[353] The substance of the alleged constitutional and international law questions are to be given greater
consideration by the Speaker later, in Part 3: Applications: "For Leave to Appeal". To avoid being overly
redundant the Speaker defers his argument and analysis until later.
"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
[354] 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.
3.2.1.1.B Jurisdiction
[35] The Supreme Court Act [RSBC 1996] c. 443, s. 18 interprets a vexatious proceedings as follows:
"18 If, on application by any person, the court is satisfied that a person has
habitually, persistently and without reasonable grounds, instituted vexatious
legal proceedings in the Supreme Court or in the Provincial Court against
the same or different persons, the court may, after hearing that person or
giving him or her an opportunity to be heard, order that a legal proceeding
must not, without leave of the court, be instituted by that person in any court.
[375] The Speaker does not believe his petitions before the Master, later the Chambers Judge of the trial
court, and now the intended appeal, are vexatious. Each petition attempted to first address a serious
and complex question of what constitutional duty the Master or Chambers Judge had to observe a
special standard of review, and duty to procedural fairness, when practising and applying the Rules of
Court in cases where a petitioner deprived of his or her liberty and property would, as a result of a rules
application, be extremely prejudiced or discriminated against more than another person.
[376] Secondly, each of the Speaker's petitions raised before a Master or Chambers Judge, in
aggravation of the petitioners circumstances, certain facts proving a party to the proceeding (defendant
Bulgaria) had unacceptably acted to intimidate or otherwise obstruct the petitioner from exercising his or
her rights as a litigant before the court. Issues of obstruction of justice cannot be a subject matter to be
taken lightly under circumstances such as those found in the case at bar, being neither scandalous,
frivolous or vexatious, but of serious concern to the practice of law and application of equal justice.
[377] The proceedings before the trial court, on the one hand, concern contract rights and the
commercial activities engaged in by the parties, in the other they also concern pecuniary and non-
pecuniary personal injuries suffered by the plaintiffs in the province. The intended appeal concerns
fundamental civil rights and obligations enshrined under a significant body of principles to be found
flowing from international law, composing the very essence of the most primary of rights guaranteed to
person deprived of their liberty under the government of a democracy.
[378] Canada's laws, and the international community, recognise as equal the rights of persons deprived
of their liberty to protect themselves, their families and their property from unlawful encroachment by
private or state parties as may be named in a law suit, as it does to the rights of all others that appear
before the courts of Canada.
[380] The Speaker and plaintiffs are also of the opinion that they have a good cause of action before the
trial court that sound in tort and in contract against the all the defendants, including the defendant
Bulgaria, having attempted to disclose a reasonable grounds for a claim in subsection (a) above.
[381] The Speaker maintains that albeit he is a lay person and not trained or experienced in the practice
of law, he is nonetheless attempting to act responsibly towards the processes of the court. He attempts,
in full, often admittedly painful, detail to carefully lay out to the Appeal Court his research and
reasoning, hopeful the court will not view his efforts as an abuse of its processes.
[382] As seen from subsection (a), there is no merit to the claims by the defendant Bulgaria that the law
suit is an abuse of the courts process on the grounds of the its having absolute immunity before the
courts of Canada in the province, ergo the law suit cannot possibly succeed, any such argument by the
defendant Bulgaria is doomed to fail. The plaintiffs are residents of the province, they are its lawful
resource users and so entitled to prosecute their legitimate claims before its courts and seek to access
and avail themselves of the exceptional powers and inherent jurisdiction of the court. Under such
circumstance no reasonable action can be seen as an abuse of the courts processes.
[383] The Appeal Court, for the reasons given, is asked to end the deterrence posed by the courts fees
and to allow the relief petitioned for as necessary to the Speaker to prosecute his appeal before it and
his claims before the trial court. The application for indigent status should be allowed and the Speaker
permitted to proceed against the defendants.
1. Whether the point on appeal is significant both to the litigation before the trial court and
to the practice in general;
4. Most importantly, whether the appeal will unduly hinder the progress of the proceeding
in the trial court.
1.Whether the point on appeal is significant both to the litigation before the trial court
and to the practice in general;
3. In the further alternative, the Duty Master erred in judgement on holding a person
deprived of his liberty, and having no resources to retain a lawyer, had no standing to
bring or have his petitions heard, either as a person aggrieved by the Defendant, in the
trial proceeding the defendant Bulgaria, or as a person satisfying the test for an
afflictive disability requiring a procedural remedy. It further follows that:
4. The Chambers Judge erred in judgement on holding that the Duty Master's order as
reasonable on application to a person deprived of his liberty and living in poverty. His
Lordship, having a constitutional duty to procedural fairness, was wrong in refusing the
petitioner a judicial review and remedy against the discriminatory and prejudicial
affects of the Duty Master's order barring any judicial hearing of the plaintiff's
complaints solely because as the petitioner he could not appear or a retain a lawyer.
5. In the alternative the Chambers Judge erred in judgement on holding the petitioner
had not brought his petition 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 petitioners appealing
the Duty Master's order under Rule 53, Rules of Court, the Chambers Judge had a
statutory duty to judicially review the reasonableness of the legal and practical affects
of the order on the legal rights of the petitioner. His Lordship Edwards, J. was wrong to
hold an indigent person deprived of his liberty as having no procedural right to a full
judicial review on applying under s. 24(1) of the Charter. His Lordship was in error to
hold the petitioner must first comply with the terms of the very order appealed from,
such a decision cannot be correct since His Lordship knew, or should have known, the
Master's order, and the impugned part of the practices and procedures of the court, on
application to an indigent party deprived of his liberty, can result only in an
unreasonable limitation on the party's legal rights before the court. The terms fixed by
the Duty Master's order, as a practical matter, are impossible for the petitioner.
[394] To establish merit the Speaker relies on the "merit test" as set out by Wood, J.A. in Mikado
Resources Ltd. v. Dragoon Resources Ltd. (1990), 46 B.C.L.R. (2d) 354 (C.A.). In that case, the court
was dealing with an application for a stay of proceedings on a judgment ordering the partition and sale
of a property. Wood, J.A. stated as follows at p. 357:
"I am of the view that the proper approach to the threshold test of merit is
that enunciated by Lambert, J.A. in Rogers Foods (1982) Ltd. v. Federal
Business Development Bank et al. (1984), 57 B.C.L.R. 344 (C.A.). From that
judgment I conclude that if the grounds of appeal raised by the
appellant have sufficient merit that it could not be said that the appeal
has no prospect of success, then the so-called "merit test" is met. That
seems to me to be akin to the "fair question to be tried" test which is
applied on an application for an interlocutory injunction, and that is the
approach which I think should be taken in this case."
[395] The intended appeal has a "fair question to be tried", being; Does the law prescribe practices and
procedures that indirectly discriminate against the rights of indigent persons having been deprived of
their liberty, it doing so by unintentionally imposing limits on the quantitative remedies necessary to their
circumstances, in the prosecuting or defending of civil claims before a court of Canada? If so, then are
such limits as prescribed by law reasonable and justifiable in a free and democratic society according to
the inviolable principles of natural justice and international law?
[396] Success of the Speaker's "fair question" on appeal, the so called "merit test", relies on those
previously cited and discussed principles of international law as naturally form a part of Canada's
Charter and its broad guarantees of equal rights and freedoms. Eight (8) points are chosen as relevant
to any analysis on the merits of the Speaker's intended appeal:
1. Analysis of Enactment.
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;
"(b.2) ….
[402] Section 1 of the impugned enactment is sufficiently broad so that "practice and procedure" can
encompass administrative, quasi-judicial and judicial acts, the rules providing a comprehensive body of
regulatory measures governing the administration of the courts and the practice of law in British
Columbia. It appears that the Registrar, Master or Chambers Judge of the Supreme Court of British
Columbia may, from time to time, be called on to perform a role that has an administrative or quasi-
judicial character.
[403] Of interest to the present enquiry is 1(2)(b)(b.1), where on occasion a Master or Chambers Judge is
called, on under the enactment by the Registrar, to allocate the courts resources. The Duty Master
taking on an administrative role in determining what pre-trial applications are to be heard, and the
means or mode of their hearing. Such a role appears, if not wholly administrative, then at least not
wholly judicial, and one usually reserved for a Registrar unless the decision having been deferred to the
master or chambers judge to make a final determination on an administrative or quasi-judicial question.
This role of a Duty Master or Chambers Judge in administering the courts' "practice and procedure" [see
again: s. 1(2)(a), Court Rules Act] is significant to the present enquiry, and is examined later in more
detail.
[404] Any question on the constitutional validity of the impugned rules turns on the direct and indirect
affects of a practice and procedure advancing the governmental regulatory scheme, by judicial order or
decision, applied to persons deprived of their liberty and indigent when the courts.
1. Constitutional Rights.
Charter
"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."
"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."
"Section .8 provides:
[407] The present enquiry should proceed along what appear to be the traditional lines established in
case law for any Charter analysis, and advance argument on the three questions that follow: Does the
Charter apply at all? Does the impugned act and order to be appealed offend the right of equality under
s. 15(1) of the Charter on application of the impugned enactment and order to an indigent person
deprived of his liberty? If so, does the application of the impugned enactment and order to an indigent
person deprived of their liberty offend beyond such reasonable limits as can be demonstrated to be
justified in a free and democratic society (s. 1)? The Speaker has considered each in turn.
"... the limitations on statutory authority which are imposed by the Charter
will flow down the chain of statutory authority and apply to regulations, by-
laws, orders, decisions, and all other action (whether legislative,
administrative or judicial) which depends for its validity on statutory
authority."
[412] This "power of compulsion" is derived from the "statutory authority of decision" as defined under
the Judicial Review Procedure Act [RSBC 1996] c. 241, as follows:
" Definitions
"(b)….
"(d)….
"Definitions
"Masters
[414] Case law suggests there exists a practice of applying the Charter to circumstances where a
statutory power of coercion, by order or decision, is engaged to advance the governmental regulatory
scheme. One example is the Supreme Court of Canada in Eldridge v. British Columbia (Attorney
General) (1997), 151 D.L.R. (4th) 577, mutatis mutandis, there the court decided to broadly apply the
Charter under the circumstances of an administrative or quasi-judicial decision or order.
[415] 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.
[416] Now seems a reasonable time to consider the chronology, and exact words and nature of the order
as appealed, and the subsequent appeal to, and decision of His Lordship Edwards, J.
"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.
Brent Messenger
Manager, Civil Programs
Vancouver Law Courts"
[419] Eldridge to is significant to the present analysis of the Duty Master's order due to the objective of
the Master. It is recalled that the Supreme Court of Canada concluded that the Charter applies to any
"act(s)" in the nature to "implement the governments regulatory scheme." Furthermore, the Master's act
is coercive, it requires the affected party "to do or to refrain from doing" something. This "exertion of a
power of compulsion granted by statute" is precisely what Prof. Hogg identifies as "causes the Charter
to apply."
[420] On application of the foregoing to any analysis of the Master's act, and the quasi-judicial order
limiting a party's rights as a litigant, no other purpose can be attributed to the act and order except its
advancing, by coercion, an administrative practice and procedure required under the regulatory scheme
of the governments Court Rules Act. Applying what was held by the court in Eldridge, and the reasoning
advanced by learned Prof. Hogg, the Charter must apply to the order.
"1. The Order manifests as its practical consequence a violation of ss. 15(1)
Charter rights of the plaintiff."
"2. The Order effectively discriminates against a class of litigant that, due to
circumstances beyond his or her control, could not reasonably be expected
to attend court of his or her own initiative or free will and in the absence of
financial resources to secure legal counsel."
"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 exercise 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."
[423] In his written argument the petitioner challenged the validity of the Duty Master's order, claiming
that the Charter applied to any coercive practice and procedure under the Rules designed to limit the
rights of litigants to access the court's services. The ultimate question on which the appellant and Duty
Master remain sharply divided is whether the practice and procedure applied by the Duty Master
offended a fundamental freedom guaranteed the petitioner under the Charter - s. 15(1) - the limitation
exceeded what can be demonstrably justified in a free and democratic society - s. 1 - when applied to
an indigent person [plaintiff] having been deprived of his liberty.
[424] There is some discrepancy in the dates appearing on the Registrar's correspondence to the
Speaker and the actual date of events. Setting aside what appears a typographical error on the part of
the Registrar, it can been seen from the course of the proceedings that the Speaker was provided the
decision of Chambers Judge also on April 18th 2001. What follows is the notice of the Registrar:
"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.
[425] AS previously discussed, the Duty Master's order appears only to advance the practice standards
of the courts in the interest of the government's objective of cost effective and expeditious
administration of the courts processes in the name of the well-being of the public. The Chambers Judge
agreed.
[426] Both the order and decision, are judicially coercive in nature, having the character of administrative
decisions expressing a cost effective and expeditious practice and procedure that no applications of a
petitioner be judicially reviewed, or remedy considered, until he or his legal representative show
themselves before the court, together with the applications, full stop. Ergo, indigent persons deprived of
their liberty need not apply for the services of the court.
[427] Such simplicity again belies the complexity of this issue, and requires some additional discussion
on the administrative and quasi-judicial role of a Master or Chambers Judge. This administrative duty,
i.e. what application are or are not to be "spoken to", appears to derives its quasi-judicial nature only
when engaging the statutory power to issue a "judicial order" advancing the regulatory scheme of the
government in administering the courts.
[428] As it can be seen from the correspondence of the Registrar, the order affecting the Speaker's rights
before the court is more a quasi-judicial, or administrative role derived from the "practices and
procedures" the courts are required to observe under the Court Rules Act. The "order" as appealed
develops form from a procedure, to use the Registrar's words, where applications are "reviewed", not
judicially but extemporaneously or "quasi-judicially". A mention of "Quasi-judicial powers" extending to
all enactment concerned with legal proceedings can be found under the Interpretation Act [RSBC
1996]c. 238:
"(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.
[429] A Duty Master or Chambers Judge, after having made his extemporaneous or quasi-judicial review,
then applies the practice under the impugned enactment, and "orders" the return of all application(s) to
the petitioner, in the process limiting any future applications for judicial review or remedy until such time
as the petitioner, or his or her legal representative, can again bring the same applications, in proprio
persona, before a Master or Chambers Judge, to have them "spoken to".
[430] It appears that the particular practice and procedure impugned is a provision of the Court Rules
Act, Rules of Court Rule 41, subrule 16.5(b) that reads as follows:
3. To Rule 41
"Definitions
"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.
"(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.
"(b) the court considers that substantial prejudice or hardship will result
to any other person affected by reason of delay.
"Sufficiency of application
"14 An application for judicial review is sufficient if it sets out the ground on
which relief is sought and the nature of the relief sought, without specifying
by which proceeding referred to in section 2 the claim would have been
made before February 1, 1977.
[443] 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.
[444] 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 a 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.
3.3.2.3.Standard Of Review
[445] 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.
[446] 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.
"Idem
"(7)…..
"Notice
"(8) Unless otherwise ordered, there shall be at least 2 days between the
service of the notice and the hearing."
[454] Availability of Judicial Review is discussed in Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re , [1998] 1
S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, at 41 [S.C.R.], Iacobucci, J., speaking for the Supreme Court of
Canada, referred with approval to the approach to statutory interpretation enunciated by Driedger in
Construction of Statutes (2nd Ed. 1983):
'Today there is only one principle or approach, namely, the words of an Act
are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and
the intention of Parliament.'
"Recent cases which have cited the above passage with approval include: R.
v. Hydro-Quebec , [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow
Electric Corp. , [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank ,
[1996] 3 S.C.R. 550; Friesen v. Canada , [1995] 3 S.C.R. 103."
[458] The application of the foresaid rules and the usual practice connected to them, when applied to
indigent prisoners proves to have a prejudicial, even discriminatory effect. The Court Rules Act [RSBC
1996] c. 80, Rules of Court, appears to have failed to consider a standard of review and duty of
procedural fairness remedy for those applications brought by prisoners who are otherwise prevented
from or unable to appear in proprio persona the Duty Master or Chambers Judge.
[463] In the case of an impugned Act (Rules) the Supreme Court of Canada in Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] 1 S.C.R. 927, considered a the two-step approach in determining if legislation
offends a Charter right. The approach was followed in Rocket v. Royal College of Dental Surgeons of
Ontario, [1990] 2 S.C.R. 232 at 244-45.
[464] 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).
[465] It was first necessary for the Speaker to determine whether the activity in question falls within the
sphere of conduct that is afforded Charter protection. If so, the Speaker must then consider whether the
purpose or the effect of the impugned legislation is to restrict a freedom enshrined as a right.
[466] For the purposed of this enquire 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 is whether the purpose or the effect of the Rules (Act) is to
restrict that kind of activity.
"(A) Does the impugned law (a) draw a formal distinction between the
claimant and others on the basis of one or more personal characteristics, or
(b) fail to take into account the claimant's already disadvantaged position
within Canadian society resulting in substantively differential treatment
between the claimant and others on the basis of one or more personal
characteristics?"
[471] The Speaker's answer, is "YES" (a) a distinction is made on two personal characteristics, indigence
and imprisonment, and (b) fails to recognise the already afflictive and disadvantages status of this
distinct group. The next inquire in Law supra, reads:
and
"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
[482] The present appeal is brought as a case of indirect discrimination effecting a specific group to
which the Speaker belongs. It was so argued before the Chambers Judge and is done so again now. The
Speaker does not believe that the abolition in MEIORIN of a distinction between direct and indirect
discrimination will greatly effect the result of his appeal, however the words and reasons found there
give substance to his analysis and arguments.
3.3.2.5.Do the Impugned Rules Offend Section 15(1) Beyond the Extent of the
Freedom Guaranteed Under Section 1?
[484] The next, and penultimate, question that can be applied to the impugned rules and the order
appealed, is whether the prohibition imposed, here on a indigent prisoner, can be said to be reasonable
and demonstrably justified in a free and democratic society such that the offended freedom is beyond
Charter guarantee. It appears that the liberal interpretation afforded the Charter on the authorities
ensures that most constitutional challenges to legislative prohibitions will be fought on this question --
the s. 1 question.
[485] In the Speaker's view on the first question of s. 1 of the Charter, does not include limits beyond
those prescribed in law or by the sentencing court. This is substantially defeated in the cases where the
fundamental rights of equal justice has been considered in the context of national legislation and
international law that prohibits a government agency from limiting a prisoners access to a court of civil
or criminal law. If such legislation exists it has been consistently struck down as unconstitutional even
though it served to only prohibit an abuse of process or serve the interest of economics and efficiency.
However, when such legislation is so broad that it results in distinguishing between those who are and
those who are not to access law in the province where the Rules were made such legislation is
intrinsically wrong.
[486] There is sound reason why the prohibition that applications only be spoken to in person or through
counsel should fall within the sphere of the limits on freedom enshrined in s. 1. Of course, whether, they
should be restricted, and the extent to which they should be restricted, arises later in the Charter
analysis under s. 1.
[487] On the second question to be addressed at this point in the analysis -- neither the purpose nor the
effect of the impugned Rules is to prohibit incarcerated and indigents their access to the courts is, in my
view, only well well-founded as to the issue the effect and not the purpose. The Speaker considers this
line of authority sufficient for him to believe the first question disposed of and what must be addressed
in determining whether the impugned Rules offend s.1. of the Charter.
[488] Of course the question now arises of whether indigent prisoners should in fact be restricted, and
the extent to which they should be restricted, this comes later in the Charter analysis under s. 1. The
Speaker's position on this second question is, at this point in the analysis, that the purpose of the
impugned Rules is not to prohibit indigent prisoners from the civil activity of prosecuting their law suits
to the fullest extent possible under the law, it is the effect however that proves prohibitive. Is the
Speaker's position well-founded?
[489] The Speaker contends that the reasonable limits imposed by government on an incarcerated
citizens rights are to deprive him or her of their liberty in pursuit of the common purpose of protecting
society and providing some remedial social benefit. That the governments right to limit the Charter right
of liberty is not an untrammelled freedom to limit a prisoners other Charter guarantees. Having been
deprived of a right to liberty cannot be regarded as granting a freedom to other government agencies to
pursue a policy having a result to further limit other rights under law, if it were so, such a freedom would
render illusory and wholly ineffective the s. 15(1) Charter rights that are held to be in the public interest.
Such a practice by government would ensure that only those citizens remaining at liberty or alternatively
having financial resources are considered be equal before the courts of law.
[490] The importance of this aspect of the analysis was enunciated by Dickson C.J.C. in Big M Drug
Mart, supra, at 331:
[491] At least with respect to the impugned parts of Rule 41, it appears to the Speaker that one intended
purpose was to prohibit abuses of the courts resources and to serve justice by requiring certain
applications be brought in proprio person of the applicant before a Master or Judge and then "spoken
to", the impugned part of Rule 41 promulgated as one constituent element in the administrative
dispensation of frivolous applications. The purpose of the impugned Rules is plainly to create a barrier
or prohibition to frivolous procedural activity by lay litigants and to limit the courts need to process such
applications. But even if that is not right, the unquestioned effect of Rules 41(16.5)(b) on its application
to the indigent prisoner is to prohibit him or her from prosecuting their law suit to the fullest extend
provided for in law, this prohibition having no regard, as indicated, to the merits of any such returned
application, instead it relies on an appearance presence before the court. Indeed, on application to an
indigent prisoner, such a prohibition is virtually absolute in its effect.
[492] The view from the Speaker's perspective as a lay litigant and the effected party, is that on any
application of the Rules of Court by a Master or Chambers Judge, there should always be adopted a
broad purposive approach [see: Interpretation Act c. I-21 R.S., c. I-23 Section 12] to give full effect to
the intent of any provision found in the Rules [see, mutatis mutandis: Association of Professional
Engineers, Geologists and Geophysicists ( Alta.) v. Interprovincial Pipeline Ltd. (1988), 88 A.R. 395
(C.A.)] and the possible effects of its application.
[493] This purposive approach, the Speaker believes, should be employed in the present enquiry on
interpreting the intent and the effect of the impugned provision ( Rule 4(16.5)(b)) of the Court Rules Act
[RSBC 1996] c. 80, Rules of Court, or alternatively any decision or practice (the Duty Masters Order)
grounded on the impugned part of the provision applied. Always bearing in mind the considerations
given by the Supreme Court of Canada to any such analysis of intent or effect.
[494] A point on appeal is that the impugned enactment proves an absolute administrative deterrence. It
appears, from the case at bar, that this deterrence is the standard practice of a Master or Chambers
Judge. and indirectly discriminates only against a person deprived his liberty and property. Such person
is provided no procedural remedy by the impugned enactment, and is refused any means to deterred
from prosecuting or defending as a party to a law suit before a trial court of Canada. There can be no
doubt to the Speaker as to the significance of the point to the proceeding before the trial court.
3.3.2.6.Vagueness
[495] Vagueness is an additional factor that influences the Speaker's present inquire into the impugned
Rules, a law may be so vague as to be found to be unconstitutional if it "so lacks in precision as to not
give sufficient guidance for legal debate", or "does not sufficiently delineate any area of risk, and thus
can provide neither fair notice to the citizen nor a limitation of enforcement discretion" as enunciated by
Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 639, 643. The Court
says at 630:
and at 632:
"(a) the need for flexibility and the interpretative role of the courts;
[496] A further analysis is found in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at 1070,
Gonthier J. added a further feature:
[497] Vaguness was considered with overbreadth in R. v. Heywood, [1994] 3 S.C.R. 761, there the
Supreme Court of Canada said at p. 792:
[498] The Speaker believes the words found in Rule 41(16.5)(b) that "applications be spoken to" are
most certainly and intentionally vague, when applied to the circumstances of an indigent prisoner the
words become ambiguous, confusing and "so lacks in precision as to not give sufficient guidance for
legal debate” as to the method "applications be spoken to" by an indigent prisoner. There few such
methods are found among the provisions of the impugned Rules as to how a indigent and imprisoned
person is to comply with the words. It is this reason the Speaker believes the factors enunciated by
Gonthier J. in R., supra, items (a), (b) and (c) are satisfied. At least to this Speaker he can say the
impugned part of Rule 41 is "vague" since it puts forth no identifiable or intelligible means of compliance
for a prisoner stripped of his self-determination and living in poverty.
3.3.2.7.Overbreadth
"Obviously, where other means present themselves which would achieve the
same objective with less intrusion upon entrenched constitutional interests,
such means are to be preferred."
[504] In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at 889: "[T]here must be a
proportionality between the deleterious effects of the measures which are responsible for limiting the
rights and freedoms in question and the objective, and there must be a proportionality between the
deleterious and salutary effects of the measures" The Speaker's position that Rule 41(16.5)(b) on
application to an indigent prisoner cannot be said to be proportional to its legislative objective, this
reasoning comes from applying a negative test. The deleterious effect is that there is a real potential
that persons who do not poses their liberty freedom or property are being curtailed simply because of
the negative test itself. That is, because they were simply unable, given their lack of resources, their
liberty, funds, etc., to discharge the burden that Rule 41(16.5)(b) places upon them.
[510] Further analysis is required, and with respect to an s. 1 inquiry the Supreme Court of Canada in R.
v. Oakes, [1986] 1 S.C.R. 103 at 135-39. Rocket, supra, and RJR- MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199 ("RJR") provides instructive structured illustrations in the context of
violations of freedom of expression, s. 2(b). This structured analysis appears to apply to the present
enquire, its provides two central criteria that the Speaker considers he should address: rationality and
proportionality.
[511] Before proceeding it is significant to identify what, exactly, is the freedom the impugned Rule is
supposed to limit. Here the process is complicated by the fact that no freedom is offended by the
impugned part of the Rules except in the rare occasion of its application to a prisoner who happens to
be indigent or seeks to act before the court in his or her own behalf. Only then does the offence against
the Charter guaranteed freedoms of s. 15(1) manifest itself in the effect of the application. Only then
does it become subject to s. 1 analysis.
[512] The Speaker found, mutatis mutandis, the conclusion of the Honourable Cromwell, J.A. most
illuminating as to the difficulties of prisoners, in R. v. Wood (J.D.) (1999), 180 N.S.R.(2d) 110 (CA); 557
A.P.R. 110, His Lordship of the Nova Scotia Court of Appeal said; "The appellant is not represented by
counsel and, therefore, it being a prisoner's appeal, it is the responsibility of the Crown to prepare the
appeal book for use of the court." In a civil proceeding the Crown, rightly, has no such burden, but
instead a duty to avoid legislation so vague or overbroad as to have a deleterious effect only on a
prisoners' fundamental rights.
Do the measures impair the freedom in question in the least drastic manner
necessary to achieve the objective; and,
[514] 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):
"That the s. 1 analysis takes into account the context in which the particular
law is situate should hardly surprise us. The s. 1 inquiry is by its very nature
a fact-specific inquiry. In determining whether the objective of the law is
sufficiently important to be capable of overriding a guaranteed right, the
Court must examine the actual objective of the law. In determining
proportionality, it must determine the actual connection between the
objective and what the law will in fact achieve; the actual degree to which it
impairs the right; and whether the actual benefit which the law is calculated
to achieve outweighs the actual seriousness of the limitation of the right. In
short, s. 1 is an exercise based on the facts of the law at issue and the proof
offered of its justification, not on abstractions.
[515] 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.
[516] 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 a 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.
[517] 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):
[518] 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.
[519] 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.
[520] 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 upto and including any trial before a court of British Columbia or Canada for that matter-- our free
and democratic society.
[521] 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.
[522] This is not a wholly unreasonable proposition. On first reflection the effect and omission of
remedies to prisoners under the impugned Rules appear to run in opposition to the constitutional and
international law guarantees afforded prisoners found in both Canadian and Bulgarian legislative acts.
[523] The Speaker now returns to the two criteria of rationality and proportionality.
3.3.2.8.Rationality
3.3.2.9.Proportionality
[527] At the outset of my s. 1 inquiry, there were three questions to determining if the measure employed
by the Duty Master in application of the impugned part of the Rule is proportional to its objective. A
rational connection has been established to its application. The objective is accepted as rational.
[528] The question now is whether the measures employed on an indigent prisoner furthered the
objective of the Court Rules Act, Rules of Court, in a rational way. Here the Speaker's answer to the
Court of Appeal must be a flat and absolute: No. The most laudable of goals can not save an ineffective
or irrational attempt to achieve them. Under no circumstances can it be an effective or rational
application of a measure of administrative or judicial discretion to apply a Rule having as its' sole
rational or objective to require an appearance before the court of a person no longer possessed of his or
her self-determination, or to have a person possessed of no property retain an attorney to appear, its
application having as its' sole effect only to virtually deny the existence of a prisoners s. 15(1) Charter
rights before the courts. There appears nor can there be any public benefit to do so.
[529] Can it be said that the second burden is borne by the Duty Master of the court to establish that the
measure he employed when applying the impugned part of the Rule to a prisoner was only to achieve its
objective in the least intrusive manner that will serve the purpose of the Rules. Again, the Speaker
asserts to the Appeal Court that the application of the impugned rule by the Duty Master fails to meet
the onus it bears. There is adduced no evidence to discharge the Duty Master or the courts
constitutional burden and duty to the Speaker. The court is faced with unanswered evidence based on
the experiences in the Bulgaria with the Respondent government and the conduct of its agencies. This
evidence brought before the trial court appears to the Speaker to be utterly defeating to any possible
argument that the purpose of Rule 41 was satisfied in the least intrusive manner.
[530] The Speaker had submitted to the trial court that the Rules of Court, and principles of international
law , offered far less drastic and more nuanced means of securing the Court Rules Act and the Duty
Master's goal far better than a blanket prohibition by him against any hearing of all pre-trial application
made by an indigent prisoner except in that manner prescribed by the court in virtually all other
circumstances.
[531] The third and final element the Speaker must analyse as a part of this enquiry, is the balancing of
the benefit achieved by the application of the impugned Rules against the negative effect of the
infringed s. 15(1) Charter freedom on a prisoner. This appears as the least developed and most difficult
jurisprudence because it is either non-existent or usually redundant. As McLachlin J. stated in RJR
(para. 175):
[532] It is difficult for the Speaker to rationally conclude that the application of impugned part of the
Rules to an indigent prisoner are proportional to its objectives. Indeed, on the evidence the Speaker has
adduced and the clear effect of such an application on him, it becomes only to apparent that the
application of Rule 41(16.5)(b) to a prisoner is not proportional. It follows that the virtually absolute
infringement on a prisoners s. 15(1) Charter rights created on application of the impugned part of the
Rule cannot be reasonable and demonstrably justifiable in a free and democratic society.
[533] Simply put, the court cannot have it both ways. It cannot be heard to say that the interest of justice
requires an application be "spoken to" but then not provide the means to the applicant to be heard. Nor
can it say that it is necessary to prohibit the Speaker from being heard in writing so in the one instance
to achieve the objective of economic and efficient dispensing of justice to best serve the public interest
but in the other fail to consider the legal affect on an s. 24(1) Charter application.
[534] There is no evidence that a the objective of the Rules could not have been met by permitting the
applications to be spoken to in writing. The court is no stranger to such a practice when it is the only
means made available to a party and will see the objectives sought to be realized. It offers a far less
drastic and more nuanced means of securing the goals of the Rules than a blanket prohibition against
written applications from virtually all indigent prisoners no matter where he or she is incarcerated.
[535] Further, the impugned Rules fails to consider or provide any quantitative as opposed to qualitative
means of relief needed by the particular disadvantaged group the Speaker identifies with. No where is
there a means provided in the impugned legislation to permit incarcerated and indigent applicants to
participate in civil proceedings, advancing or defending their claims before the trial courts, if need be in
in writing only.
[536] The alternative further "effect" of the impugned legislation is to continue to require all prisoner
applications to the trial courts be "spoken to" in proprio persona of the petitioner or legal counsel, a
practice clearly prejudicing the s. 15(1) and s.24(1) Charter rights of persons whose appearance before
the court is made physically and materially impossible by the government. A prisoner cannot
meaningfully apply under s.24(1) of the Charter, any such petition becoming a meaningless exercise in
futility as the court will require, as the Chambers Judge here has done here, that such s. 24(1)
applications as well be "spoken to" in proprio persona of the applicant or a lawyer.
[537] All in all, to this Speaker, it would appear that as long as the impugned parts of the Rules continue
to be applied to prisoners without regard to the proof of the circumstances of their imprisonment and
poverty then the effect of the impugned Rules will inevitably and always be an unfair and unequal one
that derogates from the principles of natural justice the Rules are intended to protect.
[538] For analysis of this second factor the Speaker attempted a different approach relying on the fact
the order was made on the basis of the impugned part of Rule 41, Rules of Court, the Court Rules Act
[RSBC 1996] c. 80.
[539] here is no direction or guidance under the Rules of Court about the conduct of a judicial review in
camera on an application where the applicant has afflictive circumstances (i.e. a prisoner) and is unable
to comply with the format of the hearing as practised by the Duty Master under Rule 41(16.5)(b) or the
format of review as practices by Chambers Judge under Rule 53(6). There are no express requirement
under Rule 53 that Chambers Judge hold a "hearing" as part of his review although one is implied under
subrule 53(8) of the Rules. If a Chambers Judge elects to receive further submissions from a
complainant in the context of an informal hearing, there is nothing in the Rules, the purpose of the
review, the nature of the issue, or the impact of Chambers Judge's decision on the complainant that
imports a right to be represented by counsel under a Rule 53(6) appeal or to receive reasons for
Chambers Judge's decision. At least none that this Speaker can comprehend.
"I should note that this list of factors is not exhaustive. These principles all
help a court determine whether the procedures that were followed respected
the duty of fairness. Other factors may also be important, particularly when
considering aspects of the duty of fairness unrelated to participatory rights.
The values underlying the duty of procedural fairness relate to the principle
that the individual or individuals affected should have the opportunity to
present their case fully and fairly, and have decisions affecting their rights,
interests or privileges made using a fair, impartial, and open process,
appropriate to the statutory, institutional, and social context of the decision."
[542] The Speaker's position is one of reasonableness, he is asserting his interests were adversely, and
under the circumstances of his imprisonment and poverty unreasonably, impacted by Duty Master's
order and the Chamber Judge's decision. The corresponding duty of fairness would, in the Speakers
view, not be limited to the informal hearing resulting in the in camera decision to return all the
applications and require an indigent prisoner produce a legal representative before the Master. The
afflictive circumstances of the Speaker's imprisonment caused the proceedings to involve what became
a final determination by the Duty Master, and then the Chambers judge of the Speakers rights under
law, as a prisoner, to prosecute his law suit. It placed the Speaker's family, their reputation, their well
being, property or other rights in jeopardy: see, mutatis mutandis, Kane v. Board of Governors of the
University of British Columbia , [1980] 1 S.C.R. 1105; 31 N.R. 214, at 1113 [S.C.R.]; Hutfield v. Fort
Saskatchewan General Hospital District No. 98 (1986), 74 A.R. 180 (Q.B.).
[543] To balance his reasoning the Speaker considered Pagliaro v. College of Psychologists (Alta.)
(1997), 214 A.R. 217 (Q.B.), where the court there held that no duty of procedural fairness was present
in cases where substantive rights, such as employment, are not affected. Going on to say that if there
was a duty of fairness it would be at the low end of the spectrum, such that notice of the hearing and the
opportunity to be heard would be sufficient to satisfy the duty. Here the proceedings before the Duty
Master, and on appeal under Rule 53(6) the Chambers Judge, concerned substantive rights of the
person that flow from the principles of international law into the legal framework of Canadian society,
such that far more was required than a notice and hearing. In the Speaker's analysis of what is
significant is that even this "low end of the spectrum" of duty to fairness, requiring "a notice and
hearing" as referred to in Pagliaro supra, and as contemplated in Rule 53(8), was not satisfied by the
Chambers Judge.
[544] It appears both the Master and the Chambers Judge reached a conclusion that all prisoners who
make applications in civil proceedings will have the possibilities to appear or if unable to appear, then
the financial resources necessary to comply with any requirement to retain an attorney. There is no
evidentiary justification or case law for either the learned Duty Master or Chambers Judge having
reached such a conclusion.
[547] 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.
[548] 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".]
[549] Also see, mutatis mutandis Service Employees' International Union, Local 333 v. Nipawin District
Staff Nurses' Association et al. , [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, Dickson, J. (as he then was), said
at pp. 11-12:
"A tribunal may, on the one hand, have jurisdiction in the narrow sense of
authority to enter upon an inquiry but, in the course of that inquiry, do
something which takes the exercise of its powers outside the protection of
the privative or preclusive clause. Examples of this type of error would
include acting in bad faith ... [and] failing to take relevant factors into
account."
[550] In Danson v. Labour Relations Board (Alta.), Alberta Union of Provincial Employees, Booth and
Palmateer (1983), 47 A.R. 274; 27 Alta. L.R.(2d) 338 (Q.B.), Wachowich, J., adopts the above quotation
and adds at p. 343: " ...the failure of a decision-making body to consider relevant factors can be
'patently unreasonable'." As further authorities see: Hawco, J., in Witral Holding Ltd. v. Assessment
Appeal Board (Alta.) et al. (1996), 189 A.R. 233, at 238 (Q.B.), finding that "[t]he failure of the Board in
this case to take the evidence above referred to into account is also sufficient, in my respectful opinion,
to grant the applicant's order." Rooke, J., also agreed in Foothills Provincial General Hospital v. United
Nurses of Alberta, Local 115 et al. (1993), 140 A.R. 321, at 330 and 339-340 (Q.B.), as did Fraser, J., in
Seneviratne v. Amalgamated Transit Union, Local No. 583 et al. (1992), 130 A.R. 241, at 246 (Q.B.).
"Definitions
"Section 2 provides
(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."
[560] 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.
[561] 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.]:
[562] Key to the Speaker's points on appeal is the principle enunciated in Knight , supra, by the learned
L'Heureux-Dubé, J., that the duty to fairness must be "flexible and variable", appreciating the given set
of circumstances, in the case at bar the relevant afflictive circumstances are imprisonment and poverty,
the particular "rights affected" are the prisoner's' "participatory rights" to "put forward their views and
evidence fully and then considered" by the Duty Master or on appeal the Chambers Judge. The point on
appeal is that the Speaker's "participatory rights" are unreasonably limited by the impugned order and
act.
[563] As additional grounds for his appeal the Speaker asserts that there existed a constitutional duty of
the learned Chambers Judge to at least review and apply the facts of the case to his Charter
complaints. If the facts merited the complaints then His Lordship had a duty to exercise the court's
jurisdiction and secure for the Speaker his Charter rights and those guarantees provided in international
law. The comity of nations not withstanding a Charter or international law challenge.
[575] The intended point on appeal turns on a fair question: Is the Speaker exceptionally prejudiced by
the impugned order or legislation? This was enunciated in the cited Smith v. Ontario supra, the facts of
the case now at Bar support the Speaker's proposition that there is a reviewable error made by His
Lordship Edwards, J. in his declining to accede to requests that applications made during the course of
the proceedings be spoken in writing by the Speaker.
[576] The Speaker holds that His Lordship Edwards, J. incorrectly held not to vary the way in which an
incarcerated Speaker might comply with Rule 41(16.5)(b), and was clearly wrong in his determination
that "spoken to" was prescribed by the legislation to mean only a physical presence before the court of
the Speaker or an attorney retained by him.
[577] In the alternative the Speaker holds that the impugned legislation fails the s. 1 Charter test for
reasonableness. The limits prescribed, if in fact they are such, do unreasonably limit the s. 15(1) and s.
24(1) Charter rights of impoverished prisoners.
[578] The Speaker makes a further claim of a second reviewable error in the decision of His Lordship
Edwards, J. in declining his jurisdiction to accede to hear an s.24(1) Charter complaint. The test to be
applied to a Charter application is set out in:
[589] The practical benefit to the plaintiffs and Speaker is immediately apparent, as is the prejudice to
the Speaker in the absence of an appellant decision and the relief the appeal seeks.
[590] Any practical disadvantage to the Respondent could come only from an appellant court decision to
order the Speaker's appearance in custody at hearings or trial or alternatively to order the Respondent
to secure for the Speaker another means to access the court. The former poses little disadvantage in
that although it is plausible in principle it is unlikely as a practice. The latter, although more like an would
most probably prove unnecessary once the Speaker's right of access are recognised by the court.
[591] In simple terms, the practical benefit of an appellant decision to the practice of justice and to the
case at bar is that an incarcerated and indigent Speaker will be heard, say in writing. More importantly
the Respondent and the trial court will be required to recognise such right of prisoners to be heard as
equal to those of other citizens.
[592] The relief sought from the trial court would allow the Speaker to prosecute his claims before the
court from prison.
[593] Whether the appeal will unduly hinder the progress of the proceeding in the trial court.
It was an abrogation of judicial duty for the lower court to not undertake a
Charter analysis of the impugned Rule, and it is suggested that the Appeal
Court should undertake that Charter analysis now. The Speaker is not able
to refer the court to any case where legislation initially held valid was later
successfully challenged constitutionally, but considers that the case should
now be decided on the issues that have been properly joined and argued.