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Court of Appeal File No.

___________
Court of Appeal Registry Vancouver

Supreme Court File NO. S004040


Supreme Court Registry Vancouver

In the British Columbia Court of Appeal


(The Supreme Court of British Columbia)

Between

MICHAEL KAPOUSTIN, et al.

Appellants
(Plaintiffs)

And

REPUBLIC OF BULGARIA

Respondents
(Defendants)

MEMORANDUM OF FACTS AND LAW


[1] COMES NOW, MICHAEL KAPOUSTIN, the Plaintiff ("Speaker") in the above styled cause of action,
and presents on his application to the British Columbia Appeal Court ("B.C.A.C.") this Memorandum.
This document must speak before the Appeal Court in the form of prosopopoeia, it is all that is left to a
person deprived of his liberty and isolated from the court of law. The burden on the Speaker is more
than an intellectual exercise, it is an intellectual odyssey, it is a prisoner's quest for the most
fundamental of his individual civil rights, the right to be heard and freed from the torment of a helpless
silence.

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".

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[5] In Gwynne the Appeal Court had occasion to consider foreign law, Canada's international treaty
obligations examined together with Charter and non-charter issues related to a prisoners fundamental
right. Among such rights is the right, to a meaningful judicial review of complaints. Here the Appeal
Court is now asked again to do the much the same but under somewhat different circumstances. The
prisoner involved, this Speaker, is attempting to secure for himself in Canada his right to judicial review
and procedural remedies in aid of prosecuting his claims as made for his wife and son, mother and
father who are residents in British Columbia. and himself. This petitioner's concerns for his wife and son
in British Columbia are best expressed in the July 1st 2001 affidavit of Tracy Coburn Kapoustin, his wife,
at §9 to §12:

"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."

[7] And at [29]:

"If this matter revealed no other circumstance than service of the unexpired portion of an
admittedly harsh sentence, but one imposed by law, and the allegation of procedural
unfairness on the part of the Minister, I would not be prepared to conclude he had
exercised his discretion in a manner which would permit this court to interfere on either
Charter or non- Charter grounds."

[8] Again at [30]:

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"But the matter does not stop there. Mr. Gwynne's affidavit of his incarceration in
Alabama (annexed to my colleague's reasons for judgment) and the supporting
materials reveal conditions that were degrading, dangerous and apparently
endemic within the prison system of that state. It is the cumulative effect of the
combination of the harshness of the sentence and the apparent conditions under
which it is to be served, including the prospects of parole which may have been
diminished almost to the point of irrelevance by virtue of his escape, that must be
weighed in terms of the Charter requirements."

[Emphasis Added - Mine]

[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.

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[15] The significance of this appeal to the course of the proceeding before the trial court will become
apparent, as will its significance to the practice generally.
[16] The intended appeal turns on the responsibility of governments to secure for their prisoners the
fundamental right to be heard by a civil or criminal court of law. Further, and more onerous, is the
proposition of there being a constitutional duty for the learned Justices of the trial courts to secure such
rights for prisoners when enactment or the government fails or refuses.
[17] The intended appeal, and this Memorandum, raises questions and seek relief under, inter alia,
Canada's Bill or Rights 1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c. 26, s. 105; 1992, c. 1, s.
144(F), the Constitution Act, 1982 (79) enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c.
11, which came into force on April 17, 1982, "Canadian Charter of Rights and Freedoms"; the Canadian
Human Rights Act 1976-77, c. 33, s. 1; and the Constitutional Question Act [RSBC 1996] c. 68.
[18] It is respectfully asked that the Honourable Court afford a broad interpretation to the factors effecting
the time needed to submit and prepare the present applications. The court asked to recognise the
inherent practical difficulties confronting a prisoner required by his circumstances to act on his own
before a civil or criminal court, it recalled that confinement is by its very nature limiting, and to those
Canadian's deprived of their liberty in a foreign state time becomes the principal, if not predominate,
factor effecting any petition, notwithstanding its legal or factual merits and the individual qualities of
intelligence, reason or education to be found there.
[19] It is not disputed that these applications have taken an exceptional amount of time to prepare and
deliver to this Honourable Court. That fact alone is sufficient cause the Appeal Court to proceed no
further. However, would it be reasonable and fair to refuse to hear complaints delayed not by the
petitioner but by the afflictive nature of his imprisonment?
[20] The circumstances before the Appeal Court are exceptional and imprisonment, sine die, of any
individual Canadian in any foreign penal institution, removed from his family, home and culture must be,
at its very core, a cruel punishment on those effected Canadian families.
[21] The Speaker asks this court's Honourable and learned Justices to closely examine the painfully long
and frustratingly circuitous route the Speaker was forced to follow. One fraught with real, not imaged
risks to him and those who aided him in the Republic of Bulgaria. The fact that the applications are at all
even before the Appeal Court is itself a minor miracle in the great scheme of suffering found in
Bulgarian prisons. The law suit before the trial court and these applications represent no mean feat for
those involved in bringing about the reality as opposed to the dream.
[22] For the above reasons the Speaker relies on Canadian justice, and courts not to demur on the
technicalities of time, form, or style when such complaints are made by a lay litigant who finds himself
abroad and deprived of his liberty. The Appeal Court hearing the facts and poor arguments, such as they
are, then finding in then the essence of what is right and just. The Speaker relying not so much on his
own poor abilities, but instead on the historic fact of the fairness of Canada's courts, and the humanity
and compassion of his fellow citizens, the people of Canada.

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.

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[26] The Speaker uses his reason to explain his assertions, and therefore what he believes to be his
rights under law to demand the (1) possibility to fully prosecute his civil claims, (2) to have his
arguments heard, in writing if necessary and to (3) obtain a judicial decision that makes a determination
on the merits of the facts, evidence and arguments brought in the case before the trial court. Reason
says there is no justice if one party is allowed to deny another party the right to be heard. It appears, at
least in principle, to be wrong.
[27] In Canada it is an incontrovertible right to sue or to be sued. The one caveat being that the civil
complaint is not vexatious, frivolous or an abuse of the courts processes. In the absence of such caveat
then the right to prosecute a law suit is unequivocal. The plaintiffs have "documentary evidence" [see:
Interpretation Act c. I-21 R.S., c. I-23, s. 1] to support their claims and rely primarily on such evidence.
The principles of international law as reviewed later on provide some basis to plaintiffs' and Speaker's
claims, and prove them not be as frivolous as they might, on first blush, appear to the court.
[28] The Speaker is only insisting on his rights as a person deprived of liberty at being allowed some
means to access Canada's courts of justice. This seems reasonable, as does the fundament
requirement of justice that all parties appearing before a civil or criminal court of law in Canada are
equal under law. Such a right is among the guarantees within the ambit of s. 15(1) of the Charter. Each
person is to have equal rights before the courts. Any limits placed on such rights are to be prescribed in
law and are subject to a test of reasonableness under s. 1 of the Charter.
[29] The Speaker believes, and his intended appeal asserts, that one such right that is not subject to
unreasonable limits is the right to prosecute or defend ones civil claims, and having ones petitions and
arguments reviewed and determined by a court of law.
[30] It is unreasonable that there can be permitted to exist an order or enactment that makes a distinction
to a persons status such that it acts to limit or deny such a person, directly or indirectly, any of the
foresaid rights before the courts of law. Such order or enactment must be an intrinsically a wrong one in
principle and therefore invalid. If that proves true in case before the Court of Appeal then a
"constitutional remedy" is available under the Constitutional Question Act [RSBC 1996] c. 68, s. 8(1)
to the court.
[31] The Speaker's petitions, past and present, have sought only such remedy that may be seen to be
reasonable under the circumstances of the disability or financial hardship claimed by the party effected.
Any relief granted to have a legal affect of being seen to do justice to all parties and be applicable to the
circumstances.
[32] If reason is to prevail then justice cannot be seen to be done by any judicial order or legislative
enactment that has as its effect to deny the one party the relief appropriate to their difficult
circumstances. The international community and Canada have recognised imprisonment as an
"afflictive” social status and prison a difficult and harsh place from which to conduct ones affairs, much
less to prosecute or defend ones civil claims.
[33] If all reasonable enlightened men and women, together with the international community know the
foregoing to be true, then why did the Duty Master and later, on appeal, the Chambers Judge fail to
understand exactly that truth? Such is the question the Court of Appeal is ultimately asked to answer
should it find merit to admit the applications and to grant the time and leave petitioned. The only tools
available to the Speaker are those of reason and logic.

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.

1. Course of the Proceedings.


1.1. The Law Suit.

1.Originating The Proceedings

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[35] On July 25th 2000, the Speaker together with his wife and son, the "Plaintiffs", as residents of the
province and citizens of Canada, brought a civil action in the British Columbia Supreme Court
("B.C.S.C.") jointly and severally against residents of the Republic of Bulgaria Mr. Stefcho Georgiev, Mr.
Mario Stoyanov, Ms. Emilia Mitkova, Ms. Kina Dimitrova, Ms. Iveta Anadolska, Mr. Dimitar Shackle and
the Republic of Bulgaria, Mr. Muravei Radev in his capacity as Minister of Finance.
[36] Also named as a joint and several defendant in the law suit is a resident and citizen of Canada, Mr.
Derek Doornbos an employee of the R.C.M.P. and servant of the crown at its Embassy to Austria at
Vienna.
[37] All Defendants have received originating documents. In the case of defendant Doornbos service
was effected through the facilities of his employer, the Government of Canada, R.C.M.P., at Ottawa and
its office at the Embassy of Canada to Austria.
[38] By November 15th 2000 all the Bulgarian defendants cited above were in default of appearance. As
of this application neither the defendant, Doornbos, nor the Crown as his employer, has filed any
appearance in the above styled cause of action.

2.Applications to the Registrar.

[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.

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[2] An ex parte order to require each party of record, where appropriate or required under
national or international law, comply with Rule 13(12)(c), Rules of Court and the Hague
Convention of the Service Abroad of Judicial and Extra Judicial Documents in Civil or
Commercial Matters ("Hague Convention") and to respect and observe the declarations made
to the Hague Convention by the Republic of Bulgaria, this included officials or agencies of the
Respondent.

[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.

1.2. Decisions of the Duty Master and Chambers Judge


[53] On April 18th 2001, the Duty Master reviewed all the applications and again ordered them returned.
The learned Master required that all applications be fixed for a hearing and spoken to by the Speaker or
his legal representative.
[54] On June 5th 2001, relying on s. 24(1) of the Charter and form 61 Rule 53(7), Rules of Court, the
Speaker petitioned the trial court for relief from the Duty Master's order.
[55] As grounds to the learned Chambers Judge for the relief sought, the Speaker made reference to his
rights as guaranteed under s. 15(1) of the Charter, the Duty Master's order having the effect, if not
intent, of breaching his fundamental rights.
[56] The argument set out on appeal from the Master may be summarised as an assertion that the order
made was demonstrably and "exceptionally" prejudiced against one party, the Speaker, more than it
would be against any other citizen, and solely because the Speaker is incarcerated and indigent.

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[57] The Speaker's assertion to the Chambers Judge was that the Master's application of Rule
41(16.5(b)) to him or any citizen in a similar situation [deprivation of liberty and indigence a
consequence of a long period of foreign incarceration] had the affect of being discriminatory. Particularly
in the circumstances where the one party in the proceeding before the trial court is incarcerated by
another party to the same proceeding that has a legal interest adverse to that of the petitioner.
[58] The Speaker asserted to the Chambers Judge that the Duty Master's order to the petitioner [appear
or hire a lawyer] was unreasonable in that the Master's order was in the nature of requiring one party, a
person deprived of liberty, to do something that was beyond his or her self-determination to do and so
impossible for them to do. As a result such an order must in principle be wrong in law as it would be
seen to be prejudiced against the one party suffering an afflictive status [loss of personal liberty and
property], as a result the order wrongly favours the adverse party responsible for the afflictive status of
the petitioner. The defendant Bulgaria providing the cause for the afflictive state and so producing for
itself the desired and desirable effect of silencing the petitioner.
[59] It was identified to the learned Chambers Judge that the party most effected by the Master's order,
the imprisoned petitioner, was being kept by the adverse party from complying to the terms fixed in the
order, If allowed to stand unmodified it would have the affect of prejudicing not only the s. 15(1) Charter
rights of one party, the Speaker, but bring the very outcome of any trial court proceeding into question
as to procedural fairness.
[60] On appeal the Speaker insisted to the Chambers Judge that the factors of incarceration and
indigence created a disadvantaged class of person [citizen] by the very fact of his or her imprisonment.
That these factors, when combined, acted as a very real legal disability and required a special standard
of judicial review and care necessary to procedural fairness, the Duty Master having had the
constitutional duty and jurisdiction to review and answer all complaints under s. 24(1) of the Charter, an
indigent prisoner only able to speak in writing before the court. The petitioner, this Speaker, claimed to
the Chamber Judge that his Charter grievances under s. 15(1) were real and not imagined, asking the
court to exercise procedural possibilities under the Rules of Court, enactments and international treaties
to secure his rights before the trial court as a prisoner.
[61] On June 11th 2001 the learned Chambers Judge, His Lordship E.R.A. Edwards, returned the appeal
of the Speaker, requiring the appeal and all other petitions be spoken to before the court, either by the
Speaker, as petitioner or his legal representative.
[62] On June 23rd 2001, the SCBC Registrar advised the Speaker of His Lordship's decision.
[63] His Lordship Edwards J., in his decision, provided no direction to the incarcerated and indigent
petitioner on how exactly he was supposed to comply with the terms of the order that applications be
spoken to before the court. His Lordship, like the Duty Master, on review of the Speaker's petitions, had
known, or at least should have known, that the petitioner had been deprived of his self-determination
and could not appear of his own free before the court.
[64] Further, it was clear or should have been clear, to His Lordship Edwards, J., that the petitioner, a
prisoner of the Defendant/Respondent, had been unsuccessful in having the defendant's state agencies
agree to undertake to secure his appearance in custody before the trial court.
[65] Furthermore, His Lordship Edwards J., provided no direction to the petitioner how or where he
should secure the funds or legal aid necessary to retain an attorney to represent him, in proprio persona,
at a hearing of his petitions. The court had known, or should have known, that as a rule and practice
legal aid is not available to incarcerated persons in pursuit of their civil claims.
[66] On June 25th 2001 the Speaker advised the SCBC Registrar that he intended to appeal the order of
His Lordship Edwards to the British Columbia Appeal Court.
[67] On June 26th 2001 the SCBC Registrar advised the Speaker he had received the letter notifying
him of the Speaker's intention to appeal. Also the SCBC Registrar advised the Speaker that only the
defendant Republic of Bulgaria had to that date filed an appearance, other defendants remained in
default.

1.3. First Hearing - July 13th 2001.

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[68] The date of the first hearing before the trial court was fixed by the defendant Bulgaria's lawyer for
July 13th 2001 before a Master, the defendant relied on the provisions of Rule 65, Rules of Court. After
learning of the hearing date fixed the Speaker contacted the SCBC Registrar.
[69] On July 5th 2001 the Speaker contacted the Registrar of the British Columbia Appeal Court
("B.C.A.C"), advising the Registrar of the nature of the Applicants appeal, and the practical
consequences of his incarceration and indigence. The Speaker asked the Registrar to provide him with
some direction as to the procedures and practice of the B.C.A.C., the Registrar graciously consented
and has provided the Speaker with the badly needed direction.
[70] On July 6th 2001 the Speaker enquired with the SCBC Registrar on how he should proceed under
circumstances of the Duty Master's order requiring he appear or retain an attorney. Would the Master at
the July 13th court session "hear" the Speaker, as plaintiff/respondent, in writing? The
defendant/applicant Bulgaria having refused to conduct the plaintiff/respondent, this Speaker, in custody
to the hearing fixed by its legal counsel. Neither the court [providing procedural relief], or alternatively
the Respondent [providing escorted conduct] was prepared to undertake measures to facilitate the
Speaker's physical possibilities to bring his arguments or alternatively himself to the hearing scheduled
before a Master.
[71] The SCBC Registrar provided no answer to the Speaker except that he would be willing to deliver
any documents the Speaker cared to have set before the court at the scheduled hearing. The Master
would make the determination of what to do next.
[72] On or about the same time in July the Speaker contacted the defendant Bulgaria's Ministry of
Justice and its legal counsel in Vancouver. The Speaker advised both the Respondent and its counsel of
his intention to appeal the decision of His Lordship Edwards, further advising of his intention to bring
several applications and additional arguments with new evidence in response to the jurisdiction
simpliciter and forum non conveniens petitions. In order to do so the Speaker required additional time
from the defendant Bulgaria.
[73] The Speaker also made a written plea to the newly elected government of Bulgaria, asking it to
direct the counsel in Vancouver to fix a later date for the hearing.
[74] The July 13th hearing was adjourned by consent of the parties to August 24th 2001.

1.4. Second Hearing - August 24th 2001.


[75] On August 24th 2001 legal counsel for the defendant Bulgaria appeared before a Master on the
defendant's jurisdiction simpliciter and forum non conveniens applications. The plaintiffs, including the
Speaker, were unable to obtain legal aid and were not represented. Counsel had fixed the hearing for
approximately 2 hours.
[76] Earlier the Speaker's (plaintiff/respondent) had advised counsel of his objections to so short a time,
issues of jurisdiction simpliciter and forum non conveniens turned on more than just points of law, the
factual matrix of the cause of action before the trial court had to be examined in detail by the trial court.
The Speaker's principal argument was that the Master's review required he undertake an analysis of all
the facts on display, here exclusively by the plaintiffs. Available case law provided clear precedent to the
Master and required His Lordship, to take a decision, to examine all the materials relied on by the
plaintiffs. This was represented hundreds of pages of documentary evidence filed with the trial court, as
well as numerous affidavits the plaintiffs had collected before the trial court in an effort to objectively
establish a nexus, if any, to British Columbia and prima facie evidence of a case fit to be tried. It was
emphasised such a judicial review would require not less than one, possibly more than a day.
[77] At the hearing (August 24th 2001) the SCBC Registrar, as promised, placed before the Master the
Speaker's three (3) volume Factum, and appendices of contracts, affidavits and other evidence.
[78] A Notice of Motion was faxed for the Speaker to the Duty Master scheduled for the August 24th
hearing. The petitions to the Master may be summarised as the following:

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.

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2. In the alternative to grant leave to the plaintiff/respondent imprisoned by the
defendant/applicant Bulgaria to have his applications spoken to in writing until such
time as the defendant/applicant government of Bulgaria consented to escorted conduct
of the prisoner, the plaintiff/respondent Kapoustin (the Speaker), before the Master on
all those applications as brought by the defendant/applicant Government of Bulgaria.

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.

1.5. Present Applications At Bar


[84] It can be seen from the correspondence with the Registrar of the Appeal Court and the Speaker's
notice of motion that he is at this present time petitioning the Appeal Court for orders; (1) extending the
time for him to appeal; (2) accepting his indigence application and granting him the appropriate relief,
and; (3) granting him leave to appeal the order of the Duty Master, and the later decision of the
Chambers Judge.
[85] The Speaker asserts, and seeks leave to appeal an order he believes to be an error in judgement.
[86] The Speaker further asserts, and therefore also seeks leave to raise a constitutional question on the
discriminatory effect (as opposed to intent) that the Court Rules Act [RSBC 1996] Chapter 80, Rules of
Court (Rule 41(16.5)(a)) solely on civil litigants who are deprived of their liberty but are nonetheless
required by the Rules and practice of the trial court to secure their own appearance before a Master of
Chamber Judge. Failing to do so results in such persons being denied by a Master or Chamber Judge
their right under law to prosecute or defend a law suit.

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[87] The Speaker furthermore asserts, and seeks leave to appeal, that the Master's order is
unreasonable, and therefore the Chambers Judge decision wrong, in observing a rule that has the
practical effect of denying one party a fundament right protected in law solely because he or she is
incarcerated and indigent. It is the Speaker's claim that the impugned act (Rules) and order are
discriminatory in their effect on his guaranteed rights. The discriminatory effect aggravated by the
Respondent governments uncooperative conduct and observable refusal to respect its obligations to the
principles of international law or the processes of a court of Canada.

2. Facts of the Case.


2. 1. Background.
[88] Much of the law suit was prepared and written by the Speaker while in solitary confinement. The
Writ and Statement of Claim, prepared over a year, were finally filed with the Supreme Court of British
Columbia, Vancouver Registry in July 2000, this in the midst of the Speaker's criminal trial before the
Bulgarian district court.
[89] There are allegations before the trial court on the part of the defendant Bulgaria of a discursive
statement of claim. The Speaker does not deny such a possibility, explaining it as a result of the his
confusion and disorientation after having ended a solitary confinement imposed on him since
September of 1996. This long and uninterrupted period of physical and psychological torment had a
severe negative impact on all the plaintiffs' state of mind and health, particularly that of the Speaker.

2. 2. Difficulties In Bringing the Law Suit.


[90] The nature of the problems in bringing the case against the defendants to the trial are diverse in
character, and were slowly overcome with the passage of time, persistence and resilience. Among the
many difficulties experienced there was the plaintiffs need to access records or other documents under
the defendant Bulgaria's control. Requests for access are regularly and routinely refused and delayed
acquisition of the material facts and documents necessary to bring the law suit within the jurisdiction of a
court of the province.
[91] At the time of preparing the statement of claim there existed a practice of the defendant Bulgaria of
denying detainees and prisoners the possibilities or alternatively the facilities needed to affect
exchanges of information, facts or the collection of evidential materials necessary to the successful
prosecution of a civil claim against the defendant state. Attempts by prisoners to bring legal action, civil
or criminal, against officials of the defendant Bulgaria, its instrumentalities or agencies, are usually met
in prison with severe physical and psychological consequences for the prisoner. The experiences of the
Speaker confirm such a practice.
[92] Other practical difficulties exited, among them the fact that foreign nationals are hampered by
language and the refusal of the defendant Bulgaria's to allow foreigners to interact or come in contact
with their interpreters. This makes independent action by a foreign prisoner impossible. Such facts of
case are before the trial court and documented in the Affidavits of, inter alio, Ms. Marianna Radulova,
Anatol Lukanov, Robert Kap, Ada Gogova and myself, having been placed before a Master of the SCBC
on August 24th 2001. The Speaker had successfully overcome such obstructions by the defendant state
on or about March 2000 and only after the passing of many of years and with great difficulty.

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[93] The facts of the case show that those difficulties already mentioned are further aggravated by a
practice of the defendant Bulgaria to forbid detainees or prisoners any form of telephone contact. This
made it impossible to consult the other plaintiffs and organise a plan of action. The Speaker's family in
British Columbia, in the 6 years of his detention, were permitted to converse with him on only two
occasions, (1) once when the plaintiff Nicholas, his son, was first diagnosed as diabetic and had fallen
into a coma, and (2) the second time in 1997, where, at the direction of police investigators the Speaker
was required to ask that his wife pay $300,000 United States dollars to the Respondent if she and their
son were interested in having the Speaker returned to Canada. During the period in question (Sept.
1996 to August 2001) telephone communication continued to be absolutely forbidden to detainees or
prisoners by the defendant Bulgaria. Only clandestine attempts in late 1999, through hidden cellular
phones, had provided the Speaker with the only means of contact with his family. Capture by prison
officers resulted in severe punitive and administrative measures taken against the Speaker on a number
of occasions.
[94] The facts of the case show the Speaker's wife, son and parents, having at all material times been
permanent residents of the province of British Columbia, who are for all practical purposes completely
isolated from the events in Bulgaria. This isolation of the plaintiffs from the Speaker provided a principal
difficulty in bringing their law suit. Their continued prosecution of those claims before the trial court are
hampered by the extreme physical, emotional and financial consequences they have suffered in the
province. This continues to be a significant hardship on the all plaintiffs.
[95] Facts of the case show the defendant Bulgaria to be uncooperative. In such circumstances it had
been and remains today impossible for the plaintiffs to determine exactly, among other things, the name
of the official that ordered a contract with the plaintiffs to be breached or had approved a tortious abuse
of process or a quasi-criminal act against the plaintiffs person or property. A reasonable person, in the
absence of the defendant state's cooperation, simply could not fully realise or hold the information
necessary to formulate a claim exactly identifying who, within the government of the defendant
Bulgaria, had ordered or approved of tortious acts or what actual property damages the plaintiffs as a
result of their assets having been unlawfully converted. Due to the foresaid the plaintiffs have named as
defendants in their law suit those most obviously responsible or in control of the required information
and of the plaintiffs assets.

2. 3. Cause of Action - Nexus to British Columbia


[96] What is of significance to the present enquiry and forms the needed nexus to the province are the
facts of the case that support claims brought before the trial court that sound in contract and in tort.
Such claims are limited by the plaintiffs only to those having resulted in damages and personal injuries
suffered occurred in or connected to the province and its residents. The allegations against, inter alio,
the defendant Bulgaria, result from, inter alia, breach of contract, breach of fiduciary and warranty,
unlawful conversion and enrichment, undue influence, official corruption, abuse of power, and attempted
extortion suffered by residents of the province.
[97] The defendant Bulgaria has itself raised in the proceedings before the trial court what it alleges to be
facts of the criminal case in Bulgaria against the Speaker, claiming such facts are relevant to the law
suit against it in Canada. The assertions made, by the defendant Bulgaria, are that the plaintiffs claims,
particularly those of the Speaker, fall under the jurisdiction of an international tribunal and not a court of
Canada.
[98] Such a response by the Defendant Bulgaria is understandable. It is a fact, and admittedly one will
find among detainees and prisoners in Bulgarian penitentiaries, that the far more common and frequent
civil allegations brought by prisoners against the defendant state are connected to police and judicial
abuses of their fundamental human and civil rights. These are typically heard and defended by the
Republic of Bulgaria before the European Court of Human Rights. Families of prisoners, or the prisoner
themselves, more often than not bring up civil clams against the defendant Bulgaria typically alleging
beatings, drugging, extra-judicial killings, unreasonable detentions and judicial corruption experienced
during their pre-trial arrest, detention and later institutionalisation. For the most part these are seen by
the defendant Bulgaria as "moral" claims to be brought before the international tribunal of the European
Court. Few, if any, such civil claims are filed by present or former prisoners before the national courts of
the defendant Bulgaria, the state being immune from moral (non-pecuniary) damages.

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[99] It is at present without exception that for all practical purposes civil claims against an official, agency
or instrumentality of the defendant government are impossible to effectively prosecute in Bulgaria.
Foreign or international courts provide for most Bulgarian citizens the one and only effective venue to
escape the corrupt influence of the accused official, agency of instrumentality of the defendant
government., the consensus being that outside of Bulgaria it is impossible for officials or institutions to
exercise undue political or other influence on justices to delay or dismiss their claims or make
meaningless awards. Constitutional Independence of the judiciary has not proven a deterrent against
undue influence.
[100] What is significant to the proceeding before the trial court, as the facts of the case show in the
Factum filed by the plaintiffs, are that the allegations and claims brought against the defendant Bulgaria
in the province are framed in contract and tort law, the damages and injury suffered having been
documented and limited by the plaintiffs to those occurring in or being clearly connected to them and
the province.
[101] Of further significant here, the plaintiffs' claims and pleadings before the trial court, nowhere seek
any damages from the defendant Bulgaria for the personal injuries suffered by the Speaker in a Bulgaria
arrest or penitentiary facility. The facts of the case show the plaintiffs denying any interest at this time to
civilly prosecute the defendants in Canada for the Speaker's injuries suffered in solitary confinement or
the other abuses of administrative, quasi-judicial or judicial power in Bulgaria during his pre-trial, trial
and imprisonment. The Speaker having left any such allegation to be considered by the European
Court.
[102] Any reliance by either the plaintiffs or the defendant Bulgaria before the a trial court of the province
on the criminal proceedings in Bulgaria is questionable to its relevance. At best the facts of the criminal
proceedings and treatment of the Speaker in a Bulgaria's prison can exist only in aggravation or
mitigation of any petition, say for time, or the need for the trial court to permit the Speaker to proceed
only in writing. Possibly, and by no means is it assured, the facts of the Speaker's treatment may act in
aggravation to a jury when calculating any award for damages and personal injuries suffered by the
plaintiffs in the province.

2. 4. Nature of Claims Framed In Contract.


[103] The plaintiffs have claims, grounded in the province that sound in contract. Such claims are
premised on the commercial activities of Bulgarian state scientific institutions and commercial
companies belonging to the defendant Bulgaria. The facts of the case, found in the plaintiffs' Factum
before the trial court, identify the particular transactions or contracts relied on and document the
defendant Bulgaria's having done business in or connected to the province with the plaintiffs. The
documentary evidence before the trial court is nexus to the province to needed to provide for the trial
court's jurisdiction over the defendant Bulgaria.
[104] The facts of the case document the existence of a number of exclusive contracts and licenses for
services and distribution between the plaintiffs and the defendant Bulgaria. These are concluded in or
somehow connected to the province, some having been reduced to writing. Copies have been provided
to the trial court in the plaintiffs Factum.
[105] From the documentary evidence it can be identified that the British Columbia plaintiffs have
engaged the commercial and scientific services of defendant government institutions, agencies or other
instrumentalities that belong to the defendant Bulgaria.

1.The Commercial Activities.

[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.

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2.History of Transactions - In Summary

[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.

3.Breach of Contract, Fiduciary and Implied Warranty.

[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.

1.6. Nature of Claims Framed In the Tort of Defamation.


[110] As stated here previously it was In March of 1999 that the Speaker was able to exercise, even in a
rudimentary way, the due diligence necessary to develop the plaintiffs' cause of action. This is
particularly true for those claims framed in tort by the plaintiffs. The tort actions began to accrue as of
their discoverability in early 2000.

4.Defamation - Slander and Libel

[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.

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[7] The facts of the case show that the plaintiffs presumed that some damage would flow in the ordinary
course of events from the mere invasion of their rights as a result of the public slander or libel clearly in
evidence around them. However, until the defendant Bulgaria relented in its isolation of the Speaker
from the other plaintiffs (his family) he was unable to show that the words reproduced in the media or
printed in documents were actionable by alleging and proving special damages in material or temporal
loss suffered jointly or severally in the province by the plaintiffs, either as pecuniary damages or other
damages and capable of being estimated in money. Something the Speaker could only begin to do on
obtaining a court order in Bulgaria allowing him access to his interpreter and corporate or other
documents under the control of the defendant Bulgaria.
[8] The specific issues of defamation sound in tort, inter alia, personal injury, loss of reputation and
income damages that apply to claims of mental distress, permanent physical disabilities, public
humiliation and loss of reputation and opportunity suffered by members of the Speaker's family in the
province when publicly confronted with the malicious and untrue slanders recklessly spoken or written
by a Crown servant in the course of his duties. The injury and damages suffered by the plaintiffs are
aggravated by the defendant Bulgaria having publicly repeated and published the slanders or libels first
attributable to a servant of the Crown, then adding its own twist to the actionable words.
[9] The facts of the case before the trail court raise issues of the individual plaintiffs having suffered
psychological and physical injuries in the province and the damages and costs resulting from their
experiencing deep humiliation, public insults and emotional distress. In the cases of plaintiffs Nicholas,
Tatiana and Tracy so severe as to require them to obtain on going medical care under the provincial
health care plan.

5.The Element of Slander


Offensive and Untrue Words Spoken by a Crown Servant.

[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.

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[14] In one form or another the actionable words representing the slander and libel attributable to the
Government of Canada have been publicly repeated or reproduced from July of 1995 to as recently as
October 2001 and form a principal element of the plaintiffs' slander allegations before the trial court.
[15] The defendant Bulgaria's liability in tort arises from its collusion with the Defendant Doornbos, to
publicly repeat or have the offensive and untrue words of defendant Doornbos reproduced to mean, and
was understood by the defendants Bulgaria and Doornbos, including the public at large to mean, that
the Speaker was a cold blooded sexual predator against children, without any sense of morality, and
was a detestable human being.
[16] A further element in defamation proceedings before the trial court is that the defendants knew their
words and later public allegations contained not a morsel of truth and not a measure of public value.
The words spoken by them could only have been calculated to destroy the reputation of the plaintiffs,
and so ruin their personal and business relationship with their clients, and foreclosing to the plaintiffs
any possibility for their companies in British Columbia, or elsewhere, to continue pursuing lucrative
contracts that relied on the commercial activities with the defendant Bulgaria, and the public goodwill
and popular image of the plaintiffs companies and the Speaker.
[17] Any untrue, false or injuriously offensive words spoken by a Crown servant, in private or publicly, in
the course of his duties in Bulgaria where he represents to others as if fact, although knowing it not be
true that, inter alia, the Speaker's involvement and conviction in the sexual molestation of adolescents,
his religious beliefs and Jewish faith, and the criminal nature of the plaintiffs companies in British
Columbia or Bulgaria, prove to be nothing more than a vicious, deliberately false and calculated verbal
attack by defendants Doornbos and Bulgaria on the plaintiffs who have no public persona. Such words
are actionable against the crown, and there can be no defence on the part of the Government of
Canada or the defendant Bulgaria of fair comment, qualified privilege or saving exception under an
enactment.

6.The Element of Libel


Offensive and Untrue Words Written by the Government of Canada.

[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.

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[22] The stated purpose written into the letter was to indict the plaintiffs company and Speaker in
Bulgaria, the Crown stating again in no uncertain terms, for the defendant Bulgaria's to lay the charges
of fraud and misappropriation as identified by the Crown.
[23] The Crown advised the defendant Bulgaria a court order could be obtained in Canada, or so said the
writer, the defendant Doornbos, on the defendant Bulgaria initiating its criminal proceeding against the
Speaker, such a prosecution by the defendant Bulgaria helpful to the Attorney General of British
Columbia to seize the money proceeds identified in provincial banks. And afterward, according to the
Crown, a significant part of the criminal proceeds found in banks of the province would be easily
identified as the money of Bulgarian victims and could to be shared with the Defendant government.
The Crown estimated the amount to be around $20,000,000 (million) USD.
[24] The Crown directed the defendant Bulgaria, in the strongest terms, to have its agencies undertake
every effort to somehow prosecuted the Speaker, depriving him, a Canadian citizen, of his liberty while
still in Bulgaria.
[25] The Crown request was made as an indictment formulated in the province of British Columbia,
written at its embassy in Austria and personally delivered by a Crown servant for execution by agency of
a foreign power.
[26] The facts of the case before the trial court show that the aforesaid July 7th 1995 Crown document
and the conclusions and requests its words embodied, proved to be the principle reason for the
beatings, drugging and other torment the Speaker suffered under the solitary isolation imposed by the
defendant Bulgaria from September of 1996 to 1999.

7.Reproduction of the Slander and Libel.

[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.

8.Intent and Malice - "Mens Rea".

[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.

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[115] The facts of the case strongly suggest to the plaintiffs that the intended purpose of the Crown's July
7th 1995 letter and its unverified or untrue representations to the defendant Bulgaria and the public, are
formulated not to display the truth but only to provide a cause to initiate criminal proceedings against the
Speaker in Bulgaria. It was the Crown that acted in May and July of 1995 to initiate criminal proceeding
against the Speaker in Bulgaria. The July letter of the Crown acted as an incitement to the defendant
Bulgaria interior police to seek the indictment and prosecution of a Canadian citizen in Bulgaria.
[116] The facts of the case prove the Crown letter to be directly responsible for the July 17 th 1995 order
of the defendant Bulgaria's interior police to the national police and prosecutor, to deprive a Canadian
citizen of his liberty. The National Investigative Service (national police) acted only on the Crown
request.
[117] Neither the Crown or the defendant Bulgaria engaged any judicial supervision or other due process
of law before a court of competent jurisdiction. The Crown deliberately, recklessly or negligently failed to
adhere to Canadian law in engaging itself in the bringing of criminal charges against a Canadian citizen
in Bulgaria on what was known, or should have been known, at the time to servants of the Crown to be
untrue and maliciously false representations.
[118] The facts of the case show that the Crown failed to observe or otherwise be bound by its
constitutional guarantees to a person accused of a crime (this Speaker) by Canadian authorities. The
Crown violating the Charter guarantees of the Speaker when having its servant, the defendant
Doornbos, travel to Sofia, Bulgaria in May 1995, July 1995, December 1995, August 1996, December
1996 and finally in December 1998 where a Crown servant swore out in the Bulgaria language an
information against the Speaker, deliver with it documents and dated collected by the Attorney General
of the Province of British Columbia.
[28] The foresaid forms the factual background for plaintiffs to bring a motion before the trial court to
incorporate an allegation of malicious prosecution against the Crown, amending their claims that sound
in tort to include, inter alia, a deliberate, reckless or negligent failure of the Crown to adhere to Canadian
and international law, causing the plaintiffs to suffer damages in the province resulting from personal
injury, including mental distress and physical anxiety, and damage to their reputation and ability to earn
an income.

2. 6. Nature of Claim Framed In Tort of Conversion and Unjust Enrichment.


[119] The facts of the case show that the defendant Bulgaria has in its possession the plaintiffs tangible
and intangible assets located on the territory of Bulgaria. The plaintiffs determined to sue the defendant
Bulgaria, jointly and severally with the other Bulgarian defendants for, inter alia, conversion of their
tangible and intangible property. However, in the absence of co-operation of the defendant government,
or the availability of the process of discovery before the trial court, it is impossible to determine the
exact degree of positive and intentional acts of interference by the other defendants with the plaintiffs'
legal rights in international law to possession of their goods, equipment and intellectual or license rights.
[120] The facts of the case before the trial court provide documentary evidence of judicial officers and
political officials, among other employees of the defendant Bulgaria agencies or institutions, taking the
steps to unconscionably and unjustly enrich themselves or those connected to them with the proceeds
from assets of the plaintiffs or the asset itself. The specific issues of such a claim are, inter alia, ones of
physical property loss and business interruption damages that apply to the commercial relationship
between the parties in or connected to the province, sounding in tort.
[121] The plaintiffs are unable to determine the extent of the unjust enrichment, wrongful taking, using,
or destroying of goods or equipment belonging to the plaintiffs or the exercise of dominion over such
goods or equipment of the plaintiffs by appointed representatives or officials or agencies of the
defendant government Bulgaria and inconsistent with the title or interests of the plaintiffs as the owners.

2. 7. Nature of Claim Framed In Tort of Misrepresentation and Undue Influence.

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[122] Plaintiffs as well provide facts before the trial court they allege prove misrepresentation, undue
influence, and unconscionability, claiming that the defendant Bulgaria had a duty of care to the plaintiffs
and their customers to be responsive to abuses of vulnerable people in transactions with the officials of
the defendant government's institutions, agencies or instrumentalities. The facts outlined before the trial
court show that during the course of plaintiffs commercial relationship with the defendant Bulgaria its
officials had made material misrepresentations and untrue warranties to the plaintiffs and their clients in
or connected to the province. On being confronted by the alleged misrepresentations or untrue warranty,
the defendant Bulgaria's officials used their position to exert undue influence over others under their
control and so influence or order the termination of contracts and agreements, having no reasonable
cause to do so, in the process breaching all agreements with or obligations to the plaintiffs and their
clients.

2. 8. Facts In Aggravation of Those Claims Framed In Tort.

9.Complaints to the Government of Canada.

[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.

10.Criminal and Quasi-Criminal Extortion

[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.

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[129] The claims so formed are in aggravation of those other claims that sound in tort and the fact that
the governments of Canada and the defendant Bulgaria had not apologised and continue, in their
silence, to reaffirm the defamation and criminal misconduct of police and prosecutors in performance of
their duties.

11.Respondent's Reliance on its Criminal Prosecution of Speaker.

[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].

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[141] A principal fact of law relied on by the Speaker is that person whose liberty has been deprived still
retains his or her civil rights that flow naturally from principles found in international law according to
specific conventions that are binding on both the "lex loci delecti" of the defendant Bulgaria and the "lex
fori" of the provincial trial court. These internationally recognised principles prescribe equal rights for
prisoners before all the courts of member states, including, inter alia, the right to access a civil
proceeding before any court of a member state, Canada included.
[142] The facts of the case show the Speaker is asserting that his fundamental civil rights, i.e. access to
this Honourable Court's processes and jurisdiction, and that such rights cannot be limited by the
defendant Bulgaria, its officials, agencies or instrumentalities, since no such limitation is prescribed in
the law of the "lex loci delecti", any such limitation, were it to exist as law, would be in conflict with the
accepted principles and obligations of international law and is therefore invalid.
[143] That said, then how can the events of the criminal proceedings be relevant to the defendant
Bulgaria limiting the Speaker's other civil rights? They cannot and any such attempt by the defendant
Bulgaria to justify the restrictions it has placed on the Speaker are doomed to fail.

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.

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[151] To fully effect the above, the defendant Bulgaria, on October 26th 1995, had the national police
services of the defendant Bulgaria, know as the "National Investigative Service" ("NIS"), a defendant in
these proceeding, issue orders to police agencies to seize all other assets and records in Bulgaria of the
Speaker, his company and of any associated parties, having formally charged the Speaker, in absentia
,of the crime of embezzlement through a "pyramidal fraud", and relying solely on the July 1995
representations of the Crown.

14.Speaker's Arrest and Extradition

[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.

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[161] On September 2nd 1996, at the order of the German federal prosecutor, prison medical staff
removed the Speaker's intravenous feeding. German police officers arrived at the prison and carried the
Speaker, unconscious, to an awaiting vehicle.
[162] After a medical examination at Frankfurt international airport the Speaker was taken by airport
ambulance and physically carried to an awaiting Bulgarian Balkan Airlines aircraft. On arrival in Sofia,
Bulgaria, the Speaker was hospitalised by the defendant Bulgaria for an additional 16 days.
[163] On September 18th 1996 the Speaker was at first placed by the defendant Bulgaria in solitary
confinement at a police detention facility in Sofia, Bulgaria, where he had remained alone and isolated
in an unventilated cell for a period of two (2) years. The average maximum detention in such facilities is
typically six (6) months. The Speaker continues to hold the Respondent's record for the longest period in
solitary confinement at a police arrest facility since 1991.
[164] On September 7th 1998 the Speaker was moved by the Respondent and placed in the solitary
confinement facilities of the Sofia Penitentiary where he remained for an additional 6 months. When not
in prison's high security isolation wing the Speaker would be hospitalised as a result of his hunger
strikes.

15.Speaker's Arraignment and Trial

[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.

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[171] On August 22nd 2001 the Speaker appealed, citing that the appeal court had erred in law in, inter
alia failing to observe applicable principles of international law when bringing new elements to a charge
of fraud different from those for which the Speaker had been extradited. Having also erred in fact in
finding, inter alia, that the Speaker had personally effected, at different times and places, each of the
alleged misrepresentations, through intermediaries, and thereby defrauded more than 2,500 individuals.
[172] As of October 7, 2001 six (6) years and five (5) months have passed since the defendant Bulgaria
acted on the July 7th 1995 request of the Crown to prosecute the Speaker, its criminal investigation. Five
(5) years and nine (9) months have passes since the Speaker's arrest.
[173] As of the moment of this memorandum there is no final verdict or determination on what charges
the Speaker will ultimately be sentenced or retried by the defendant Bulgaria. Such an indeterminate
judicial state of an accused is consistent with the practice of the defendant Bulgaria.
[174] International comity, and the foreign law of Bulgaria, as naturally flows from the applicable
principles of international law, play key roles in determining the issue of what limitations can reasonably
be placed on the rights of incarcerated and indigent citizens before a court of law.
[175] The foregoing presentation are the particular factual circumstances surrounding the applications
presently before the Appeal Court. The facts of the case combine to form factors that create a set of
unusual circumstances that in the past have limited and complicated the Speaker's practical possibilities
to observe, inter alia, the limitations of time to make appeals or hearing dates or attend the hearing of
various applications. To fully appreciate the significance and magnitude of the Speaker's difficulties
requires additional reflection on the historic and present conditions in the Republic of Bulgaria as found
in reliable international reports.

3. Facts Existing In Aggravation of the Claims.


3.1. Conditions In The Republic of Bulgaria

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:

"The Government generally respects basic human freedoms, but serious


human rights problems remain. Police are not sufficiently accountable for
abuses, including the beating and death of detainees, and the resultant
climate of impunity is a major obstacle to ending these practices."

[178] In that same year Amnesty International reported [see: AI Index:EUR 15/07/96 DISTR:SC/CO/GR]:

"Human rights violations persisted in Bulgaria: they include shootings,


torture, beating and all forms of ill-treatment of detainees, sometimes
resulting in death. The rising number and regional distribution of the reported
cases indicate that they are numerous and widespread. Daily accounts of
such incidents reveal a pattern of casual violence and illegal acts by police
officers throughout the country.

"The official statistics on shootings, deaths in custody and complaints of ill


treatment are not made public."

[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:

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"The deteriorating human rights situation is further compounded by a pattern
of impunity of law enforcement officers responsible for human rights
violations. International standards require prompt, thorough and impartial
investigations into reports of human rights violations by law enforcement
officers. However, the information on such investigations is seldom made
public…..Failure to bring to justice those responsible for human rights
violations is in itself a violation of international obligations. Furthermore in
order to prevent such human rights violations from reoccurring, the
Bulgarian authorities need to clearly indicate that such conduct is totally
unacceptable."

[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:

"In January 1994 a series of gangland killings culminated in an incident in


the Beli Brezi in Sofia in which riot police, reportedly trailing an underground
suspect, shot dead two anti-terror officers by mistake. The killed officers
were allegedly guarding a meeting between government officials and
members of the criminal underworld. In January 1996 [one month prior to
the Speakers arrest] two police officers responsible for the killing were
brought to trial, in which the hearings were held in camera. Their superior
officer at the time, Captain Khristo Savov, later chief of the Regional
Department of Internal Affairs Unit for Combating Organised Crime,
and another police officer were arrested on 26 February 1996 in Sofia
on charges of racketeering….The Ministry of Interior then reportedly
initiated an inquiry into possible links between police and the criminal
underworld but there was no information as to whether it was completed and
if so with what results."

[Emphasis and [ ] Added - Mine]

[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.

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[184] AI further reported that year, as this Speaker has insisted to the trial court, that the defendant
Bulgaria does regularly breach the rights of victims of abuse of official powers (police or judicial). There
exists rights, but no effective remedies to secure those right in Bulgaria, the international law principle of
a legal remedy against state agencies, instrumentalities or officials that abuse their powers remains
virtually non-existent before the Bulgarian courts.

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.

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[191] Also during 1998 a United Nations Committee on the Elimination of Racial Discrimination had
expressed alarm at the number of incidents of violence against members of minority groups. Jews are
invisible minority in Bulgaria society and Bulgaria Jews maintain a low profile due to Anti-Semitism that
is imbued through out Bulgarian society, particularly police and prosecutors.
[192] The court may recall that the Speaker is of Jewish ancestry. Should this Honourable Court have
cause to review the offensive and actionable words complained of as slanders and blasphemous libels,
framed in the tort of defamation, it would become immediately apparent that Anti-Semitism played a
significant part in the way the defendant Bulgaria has treated the Speaker throughout his 6 years of
arrest. There is no exaggeration to the statement made in 1998 by USAID that "Bulgaria needs to
strengthen rule of law; and do more to protect human and minority rights….Anti-corruption efforts need
to be intensified, and functioning of the judicial system improved".

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:

"The judiciary is independent but suffers from corruption and continues to


struggle with structural and staffing problems.

"Most internal security services are responsible to the Ministry of Interior,


including the Central Service for Combating Organised Crime, the National
Security Service (civilian intelligence), internal security troops, border
guards, and special forces. Although government control over police is
improving, it is still not sufficient to ensure full accountability. The Special
Investigative Service (SIS), reduced in size by a recent reorganisation, is a
judicial branch agency and therefore not under direct government control.
Some members of the police committed serious human rights violations"

[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.

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[199] In 1999 accountability remained practically non-existent and prison conditions are "harsh, and
pretrial detention is often prolonged", it goes on to say that the "judiciary is underpaid, understaffed, and
has a heavy case backlog; corruption is a serious problem. The Government infringed on citizens'
privacy rights…Discrimination against the disabled an religious minorities is a problem."
[200] It can be seen from the Respondent Bulgaria's Constitution [see below: Part 3 "Law and
Enactment"] forbids cruel and inhuman treatment or punishment. Despite this the police, well into the
year 2000, commonly beat criminal suspects and members of minorities. Such tactics, as had been
reported in previous years, were frequently used, as with the Speaker, to extract information or false
testimony. Human rights groups reported that complaints are rarely received through official channels.
[201] According to reliable USA State Department sources "Human rights monitors report that they
receive many more complaints from persons who are to intimidated to lodge an official complaint with
authorities", persons deprived of their liberty run significant risks of being mistreated if complaining.
[202] A Bulgaria Helsinki Committee reported survey Bulgaria's prisons, finding that "51 percent of
interviewed prisoners reported that police officers used physical force against them during arrest; 53
percent reported mistreatment at police stations" and seldom are charges against prison guards
investigated, more rarely are they prosecuted..
[203] During 1999 and 2000 conditions in prisons continued to be harsh, "severely overcrowded", places
having "inadequate lavatory facilities, and insufficient heating and ventilation". Human rights monitors
received from credible sources reports of "numerous cases of brutality committed by prison guards
against inmates" and that "the process by which prisoners may complain of substandard conditions or of
mistreatment does not appear to function effectively". The Speaker has himself briefly documented his
own experiences in Part 1 [see above : "Fact of the Case: Respondent's Reliance on its Criminal
Prosecution of the Speaker"].
[204] The U.S. State Department reported had noted that the Bulgaria Constitution [as cited below]
provided for access to a lawyer at the time of detention. It further observed that the law required that all
pretrial investigation to be completed by the prosecutor in the worst case not more than 9 months.
However, a survey of prisoners and reported cases showed that 54 percent of those arrested were
denied access to an attorney and in practice the simplest investigations took one and even two years to
bring to trial. Even then, the State Department reports, cases were returned by prosecutors or judges for
more investigation or as a result of violations of a detainees rights of defence. The court may recall the
speakers case took more than 3 years to investigate, of which he spent the better part of those years in
solitary confinement.
[205] Local observers reported to U.S. State Department sources that organised crime influences the
prosecutors office. This report reinforces Amnesty International and Human Rights Watch reports that
the judiciary has "antiquated procedures", a heavy backlog of case and there continues to be wide
spread corruption.
[206] The Observation Committee of the Parliamentary Assembly of the Council of Europe in December
of 1998 prior to its dissolution related concerns that there were "inadequate safeguards for the
independence of the judiciary in the country."
[207] Of significance to the case before the trial court and the present enquiry into the conditions from
which the Speaker must prosecute his law suit are the words found in a U.S. State Department report:

"It is alleged that warrants to investigate suspects' private financial


records sometimes are abused to give police broad and openended
authority to engage in far-ranging investigations of a suspects' family
and associates. There are regular, albeit not conclusive or systemic,
reports of mail, especially foreign mail, being delayed and/or opened."

[Emphasis Added - Mine]

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[208] The court is asked to recall the facts surrounding the Crown's request to have the Speaker and the
plaintiffs company prosecuted by Bulgarian authorities. It is recalled that the Crown request was in order
to aid the Attorney General of the province to obtain information from Bulgaria for a criminal
investigation in British Columbia [see: "Facts of Case: Malicious Prosecution " - July 7 1995 Crown
Request].
[209] Of some significance to the trial court and the present enquiry are the independent reports that the
"Government exerts an unduly large influence on the media through official channels" and that
"Journalists frequently colour their reports to conform with the views of the political parties or economic
groups that own their newspapers." This report is consistent with plaintiffs claims against the
Respondent that sound in the tort of defamation.
[210] The Speaker has made complaints of Anti-Semitism being a part of the harsh treatment he
experienced after his arrest. This complaint is consistent with the U.S. State Department report of
"discrimination, harassment, and general public intolerance" towards religious minorities not a part of the
traditional mainstream of the Orthodox Church. And that "Numerous articles in a broad range of
newspapers as well as television documentaries, drew lurid and inaccurate pictures of the activities of
non-Orthodox religious groups". Numerous articles were written making reference to Canadian
government sources connecting the Speaker, a Jew, to the culture of Judaic mysticism and Kabbalistic
beliefs. It will be recalled that this connection was provided by the Crown in 1995 to agents of the
Ministry of Interior of the Defendant Bulgaria.

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:

"There were reports of ill-treatment and torture by police, and of a death in


police custody. There are also reports that people who complained about
torture and ill-treatment by law enforcement officials were subject to
intimidation or further ill-treatment."

"The UN Committee against Torture met in April and May to consider


Bulgaria's second periodic report. The committee found that Bulgarian law
lacked a definition of torture and failed to ensure that all acts of torture are
offences under criminal law. The committee expressed concern about
continuing reports of ill-treatment by public officials, particularly the
police, especially of ethnic minorities. The committee also expressed
concern about the deficiencies in the system of investigation of
alleged cases of torture and the failure to bring those allegations
before a judge or other appropriate judicial authority."

[Emphasis Added - Mine]

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[213] It may be reasonable here to introduce to the court the internationally accepted interpretation given
to the terms "cruel, inhuman or degrading treatment or punishment". It should be interpreted so as to
extend the widest possible protection against abuses, whether physical or mental, including the holding
of a detained or imprisoned person in conditions which deprive him, temporarily or permanently of the
use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing
of time. [see for referance: Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc.
A/39/51 (1984)], entered into force June 26, 1987 as follows:

· "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.

"2. Torture constitutes an aggravated and deliberate form of cruel, inhuman


or degrading treatment or punishment.

"Article 2

"Any act of torture or other cruel, inhuman or degrading treatment or


punishment is an offence to human dignity and shall be condemned as a
denial of the purposes of the Charter of the United Nations and as a violation
of the human rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights .

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[215] This Honourable Court is asked to recall that the claims of the plaintiffs Nicholas, Tatiana, Tracy
and Robert are connected to the "cruel, inhuman or degrading treatment or punishment" they suffered in
the province as third parties. On other occasions the plaintiffs in the province were the principle targets
in the attempts by of officials of the defendant Bulgaria at coercing money or information as to money in
the province from them, the defendant Bulgaria relying on threats of violence against the Speaker or
promises to end his torture to coerce the plaintiffs to co-operate. It is again recalled, at the that the
money in question were those funds identified by the Crown in its written report and request to the
defendant Bulgaria and Ministry of Interior officials in May and July of 1995.

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:

"1" To grant leave to appeal the lower courts order.

"2" To extend the time in which to appeal.

"3" To recognise the Speaker's indigence.

[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.

1.2. The Argument's Evolution


[220] The use of exclusion to achieve simplicity and clarity will belie the complexity of the actual issues
and the difficulty of the questions the Speaker is required to answer.
[221] No pretence is made of fully understanding the relevant law as it may apply to the issues the
Speaker raises. Nonetheless it is respectfully submitted that the issues in his applications and the order
appealed ultimately turn on a comparative review of reasonableness of what the common law, Canada's
enactments and international law have prescribed as being "reasonable limits" applied to the right of
equal access to justice and the civil courts, i.e. for incarcerated and indigent persons, as opposed to the
limits placed on persons having their liberty.

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[222] The Speaker's reasoning and argument evolve from the principles of international law. Some time
must be spent on a review and analysis of relevant principles on the treatment of prisoners as
recognised by all free and democratic states. It is recalled that such fundamental civil and human rights
principles are equally applicable to the government of the defendant Bulgaria as they are to that of
Canada.
[223] Any analysis of documentary and other evidence placed before the trail court and referred to here
are only to prove how prisoners are as a practice treated by the defendant government of Bulgaria.
Such practices are significant factors that ultimately influence the Speaker's need for all three of the
applications placed before the Appeal Court.
[224] The conduct of the Defendant Bulgaria is significant to the present enquiries. As a party to the
proceedings before the trial court the defendant's behaviour is subject to independent evaluation by the
court when, as a party to the proceedings, it appears, as would the Crown, in the capacity of a "person",
having rights and obligations equal to, and not more than any other party.
[225] The defendant governments co-operation or lack of co-operation, its' effecting physical or other
coercion against another party in order to interfere with or deter them from the processes of the court,
are all violations of the trial court's inherent jurisdiction, Canadian law and the defendant government's
obligations and duty to the principles of international law as relied on by the international community.
For these reasons the Speaker has undertaken to bring the defendant Bulgaria's conduct under analysis.
[226] Ultimately the Speaker's argument must turn on the one point raised earlier: Are the equality rights
of a prisoner before a civil court in some way limited, internationally or nationally, by law or enactment,
in such a way so as to permit an officer of the court to refuse to hear or otherwise act on requests for
judicial review or relief or such other judicial remedy if sought only by written application in a law suit.
[227] To fully appreciate this issue the Speak elected, more for himself than this Honourable Court, to
review the historic development of civil rights protections under international law and how such
principles are incorporated into the national legislation of Canada and the Respondent government
Bulgaria.
[228] The review that follows is done in the attempt to answer a second, and equally important question
to the Speaker's enquiry and reasoning. Are the rights available to prisoners under international law the
same as those available to them under Canadian and Bulgarian law? If so, then why are such rights
being denied the Speaker as a result of his location.

1.3. Law and Enactment Relied On.

1.International Conventions - A Chronology.

[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].

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"Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which
a person belongs, whether it be independent, trust, non-self-governing or
under any other limitation of sovereignty.

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 6

"Everyone has the right to recognition everywhere as a person before


the law.

"Article 7

"All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this Declaration and
against any incitement to such discrimination.

[Emphasis Added - Mine]

"Article 10

"Everyone is entitled in full equality to a fair and public hearing by an


independent and impartial tribunal, in the determination of his [civil]
rights and obligations and of any criminal charge against him.

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 12

"No one shall be subjected to arbitrary interference with his privacy,


family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against
such interference or attacks.

[Emphasis Added - Mine]

"Article 28

"Everyone is entitled to a social and international order in which the [civil]


rights and freedoms set forth in this Declaration can be fully realized.

"Article 29

"1. …..

"2. In the exercise of his [civil] rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society.

"3……

[Emphasis Added - "[ ] " - Mine]

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1.3.1.2.International Covenant on Civil and Political Rights, G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999
U.N.T.S. 171, entered into force Mar. 23, 1976.
"Part II

"Article 2

"1. Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property [indigence], birth or other status
[imprisonment].

"2. Where not already provided for by existing legislative or other


measures, each State Party to the present Covenant undertakes to take
the necessary steps, in accordance with its constitutional processes
and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the
rights recognized in the present Covenant.

"3. Each State Party to the present Covenant undertakes:

"(a) To ensure that any person whose rights or freedoms as herein


recognized are violated shall have an effective [civil] remedy,
notwithstanding that the violation has been committed by persons acting in
an official capacity;

"(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.

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 3

"The States Parties to the present Covenant undertake to ensure the


equal right of men and women to the enjoyment of all civil and political
rights set forth in the present Covenant.

[Emphasis Added - Mine]

"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

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"1. All persons shall be equal before the [civil] courts and tribunals. In
the determination of any criminal charge against him, or of his [civil]
rights and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal
established by law…….[sic]"

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 16

"Everyone shall have the right to recognition everywhere as a person


before the law.

[Emphasis Added - Mine]

"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].

[Emphasis Added - Inserted "[ ] " and Text Mine]

1.3.1.3.Standard Minimum Rules for the Treatment of Prisoners, adopted Aug.


30, 1955 by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I,
E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048
(1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35,
U.N. Doc. E/5988 (1977).
"PART II

"RULES APPLICABLE TO SPECIAL CATEGORIES

"A. PRISONERS UNDER SENTENCE

"Guiding principles

"57.

"Imprisonment and other measures which result in cutting off an


offender from the outside world are afflictive by the very fact of taking
from the person the right of self-determination by depriving him of his
liberty. Therefore the prison system shall not, except as incidental to
justifiable segregation or the maintenance of discipline, aggravate the
suffering inherent in such a situation.

[Emphasis Added - Mine]

"60.

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"(1) The regime of the institution should seek to minimize any
differences between prison life and life at liberty which tend to lessen the
responsibility of the prisoners or the respect due to their dignity as human
beings.

[Emphasis Added - Mine]

"61.

"The treatment of prisoners should emphasize not their exclusion from


the community, but their continuing part in it [i.e. appearing before
courts of law]. Community agencies should, therefore, be enlisted
wherever possible to assist the staff of the institution in the task of social
rehabilitation of the prisoners. There should be in connection with every
institution social workers charged with the duty of maintaining and improving
all desirable relations of a prisoner with his family and with valuable social
agencies. Steps should be taken to safeguard, to the maximum extent
compatible with the law and the sentence, the rights relating to civil
interests, social security rights and other social benefits of prisoners.

[Emphasis Added - Inserted "[ ] " and Text Mine]

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

"There shall be no restriction upon or derogation from any of the


human [civil] rights of persons under any form of detention or
imprisonment recognized or existing in any State pursuant to law,
conventions, regulations or custom on the pretext that this Body of
Principles does not recognize such rights or that it recognizes them to a
lesser extent.

[Emphasis Added - Inserted "[ ] " and Text Mine]

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].

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Principle 36

"1……

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"2. The arrest or detention of such a person pending investigation and trial
shall be carried out only for the purposes of the administration of justice on
grounds and under conditions and procedures specified by law. The
imposition of restrictions upon such a person which are not strictly
required for the purpose of the detention or to prevent hindrance to
the process of investigation or the administration of justice, or for the
maintenance of security and good order in the place of detention shall
be forbidden.

[Emphasis Added - Mine]

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.

[Emphasis Added - Inserted "[ ] " and Text Mine]

2.Canadian Enactment.

[230] The foregoing international principles of law were incorporated by legislators into the Canadian
legal landscape as follows.

1.3.2.1.Canadian Bill of Rights, [1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985,


c. 26, s. 105; 1992, c. 1, s. 144(F)].
"An Act for the Recognition and Protection of Human Rights and
Fundamental Freedoms

"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;

[Emphasis Added - Mine]

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"2. Every law of Canada shall, unless it is expressly declared by an Act
of the Parliament of Canada that it shall operate notwithstanding the
Canadian Bill of Rights, be so construed and applied as not to abrogate,
abridge or infringe or to authorize the abrogation, abridgment or
infringement of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be construed or applied
so as to;

"(a) ……;

"(b) impose or authorize the imposition of cruel and unusual treatment or


punishment;

"(c)……..;

"(d) …..;

"(e) deprive a person of the right to a fair [civil] hearing in accordance


with the principles of fundamental justice for the determination of his
rights and obligations;

[Emphasis Added - Inserted "[ ] " and Text Mine]

1.3.2.2.Canadian Human Rights Act [Chapter H-6 1976-77, c. 33, s. 1.

"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.

R.S., 1985, c. H-6, s. 2; 1996, c. 14, s. 1; 1998, c. 9, s. 9.

[Emphasis Added - Mine]

"Multiple grounds of discrimination

"3.1 For greater certainty, a discriminatory practice includes a practice based


on one or more prohibited grounds of discrimination or on the effect of a
combination of prohibited grounds.

"Discriminatory Practices

”Denial of goods, service, facility or accommodation

"5. It is a discriminatory practice in the provision of goods, services,


facilities or accommodation customarily available to the general public

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"(a) to deny, or to deny access to, any such good, service, facility or
accommodation to any individual, or

"(b) to differentiate adversely in relation to any individual, on a


prohibited ground of discrimination.

1976-77, c. 33, s. 5.

[Emphasis Added - Mine]

"25. In this Act,

"disability" means any previous or existing mental or physical disability and


includes disfigurement and previous or existing dependence on alcohol or a
drug.

PART III

DISCRIMINATORY PRACTICES AND GENERAL PROVISIONS

"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.

R.S., 1985, c. H-6, s. 39; 1998, c. 9, s. 22.

1.3.2.3.Constitution Act, 1982 (79) Enacted as Schedule B to the Canada Act


1982 (U.K.) 1982, c. 11, which came into force on April 17, 1982 -
Canadian charter of rights and freedoms
"PART I

"Canadian charter of rights and freedoms

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.

"15. (1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.

"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter,


have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just
in the circumstances.

"26. The guarantee in this Charter of certain rights and freedoms shall
not be construed as denying the existence of any other rights or
freedoms that exist in Canada.

[Emphasis Added - Mine]

"32(1)This Charter applies

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"a) to the Parliament and government of Canada in respect of all matters
within the authority of Parliament including all matters relating to the Yukon
Territory and Northwest Territories; and

"b) to the legislature and government of each province in respect of all


matters within the authority of the legislature of each province.

1.3.2.4. Human Rights Code [RSBC 1996] Chapter 210

"Definitions

"1 In this Code:

"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a)


or (b), 10 (1) (a), 11, 13 (1) (a) or (2), 14 (a) or (b) or 43;

"Discrimination and intent

"2 Discrimination in contravention of this Code does not require an


intention to contravene this Code.

[Emphasis Added - Mine]

"Purposes

"3 The purposes of this Code are as follows:

"(a) to foster a society in British Columbia in which there are no


impediments to full and free participation in the economic, social,
political and cultural life of British Columbia;

"(b) to promote a climate of understanding and mutual respect where


all are equal in dignity and rights;

"(c) to prevent discrimination prohibited by this Code;

"(d) to identify and eliminate persistent patterns of inequality


associated with discrimination prohibited by this Code;

"(e) to provide a means of redress for those persons who are discriminated
against contrary to this Code;

[Emphasis Added - Mine]

Code prevails

"4 If there is a conflict between this Code and any other enactment,
this Code prevails.

[Emphasis Added - Mine]

"Discrimination in accommodation, service and facility

"8 (1) A person must not, without a bona fide and reasonable
justification,

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"(a) deny to a person or class of persons [prisoners] any accommodation,
service or facility customarily available to the public [access to the
courts services], or

"(b) discriminate against a person or class of persons [prisoners]


regarding any accommodation, service or facility customarily available
to the public because of the race, colour, ancestry, place of origin, religion,
marital status, family status, physical or mental disability, sex or sexual
orientation of that person or class of persons [prisoners].

[Emphasis Added - Inserted "[ ] " and Text Mine]

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.

1.3.3.1.Constitution of the Republic of Bulgaria [S.G. No. 56/13.07/1991]

"Article 5

"(4) Any international instruments which have been ratified by the


constitutionally established procedure, promulgated and having come into
force with respect to the Republic of Bulgaria, shall be considered part of the
domestic legislation of the country. They shall supersede any domestic
legislation stipulating otherwise.

"Article 57

"(1) The fundamental civil rights shall be irrevocable"

1.4. The Rights of Person Deprived of Liberty.


[232] The foregoing establishes the pattern taken by the national legislatures of both Canada and that of
the Respondent, Republic of Bulgaria. Review the principles of international law clearly demonstrate
that civil rights and the facilities necessary to a prisoner attempting to exercise such fundamental rights
are not to be revoked, denied or limited by government or the courts in either by the "lex fori" of Canada
or that of the Defendant, the Republic of Bulgaria, beyond what is required by his or her sentence and
what is required for social order and the safety of society. There is little in law, or in fact, to make any
argument in the alternative by a state party even remotely plausible.
[233] That having been said, it is then only reasonable that petitions to a court of law for a civil remedy
and the possibility to attend a hearing or trial, in proprio persona, before such court having jurisdiction in
a civil proceeding is sine quo non a fundamental right of a prisoner. Such right guaranteed and
protected under international law as well as the laws of forum, "lex fori", of British Columbia and
Bulgaria.
[234] It is further an incontrovertibly fact that it is the "lex fori" of the trial court that prevails over
procedural issues and is to secure the possibility for a prisoner to exercise his or her fundamental rights
before it as guaranteed to them under law.
[235] It is further in the alternative equally as incontrovertible that government agencies, not the courts,
are directly responsible for a prisoner's care and the conformance of prison officials to the requirements
of international law. The very nature of incarceration and the allowance for the temporarily absence of a
prisoner, with or without escort, to attend to his civil rights and obligations under law falls first within the
ambit of the responsible government penal agency.

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[236] Such specific obligations, i.e. to secure appearance before a court of law, are a duty of the state
party. In the case at Bar both the governments of Canada and the Republic of Bulgaria have such
obligation and duty to observe and guarantee such rights under law to persons deprived of their liberty,
being international principles having been incorporated into the laws of Canada and Bulgarian by the
legislative enactments that follow.

1.Canada

1.4.1.1.Prisons and Reformatories Act Chapter P-20 R.S., c. P-21, s. 1.

"TEMPORARY ABSENCE

"Purpose and Principles

"Purpose of temporary absence

"7. The purpose of a temporary absence program is to contribute to the


maintenance of a just, peaceful and safe society by facilitating, through
decisions on the timing and conditions of absence, the rehabilitation of
prisoners and their reintegration into the community as law-abiding
citizens.

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

"7.1 The principles that shall guide designated authorities in achieving


the purpose of a temporary absence program are

"(a) that the least restrictive decision that is consistent with the
protection of society and the prisoner's rehabilitation and reintegration
into the community be made;

"(b) that all available information that is relevant to the case be taken
into account;

"(c) that prisoners be provided with relevant information, reasons for


decisions and access to the review of decisions in order to ensure a fair and
understandable temporary absence process; and

"(d) that the designated authority provide for the timely exchange of relevant
information with other participants in the criminal justice system and make
information about temporary absence programs and policies available to
prisoners, victims and the public.

1997, c. 2, s. 2.

[Emphasis Added - Mine]

"Authorization of temporary absence

"7.3 (1) A designated authority may authorize a prisoner to be absent


from prison with or without escort, subject to any conditions that the
authority considers appropriate, where it is necessary or desirable in the
authority's opinion

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"(a)…;

"(b) in order to facilitate the prisoner's rehabilitation or reintegration into


the community; or

"(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.

[Emphasis Added - Mine]

1.4.1.2.Corrections and Conditional Release Act 1992, c. 20 [Assented to 18th


June, 1992]
Principles that guide the Service

"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;

1992, c. 20, s. 4; 1995, c. 42, s. 2(F).

[Emphasis Added - Mine]

Escorted Temporary Absences

Temporary absences may be authorized

"17. (1) Where, in the opinion of the institutional head,

"(a) an inmate will not, by reoffending, present an undue risk to society


during an absence authorized under this section,

"(b) it is desirable for the inmate to be absent from penitentiary,


escorted by a staff member or other person authorized by the
institutional head, for medical, administrative, community service, family
contact, personal development for rehabilitative purposes, or compassionate
reasons, including parental responsibilities,

"(c) the inmate's behaviour while under sentence does not preclude
authorizing the absence, and

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"(d) a structured plan for the absence has been prepared, the absence may,
subject to section 746.1 of the Criminal Code, subsection 140.3(2) of the
National Defence Act and subsection 15(2) of the Crimes Against Humanity
and War Crimes Act, be authorized by the institutional head

"(e) for an unlimited period for medical reasons, or

"(f) for reasons other than medical,

1.4.1.3.Correction Act [RSBC 1996] Chapter 74

"Temporary absences

"15 (1) The minister may authorize an inmate to be absent from a


correctional centre with or without escort, subject to any conditions that the
minister considers appropriate, if in the minister's opinion the absence is
necessary or desirable

"(a) for medical, educational or humanitarian reasons, or

"(b) to assist in the rehabilitation of the inmate.

2.Bulgaria

1.4.2.1.The Constitutional Law ;

"The Constitution

"Article 31

"(5) Prisoners shall be kept in conditions conducive to the exercise of those


of their fundamental rights which are not restricted by virtue of their
sentence.

[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;

1.4.2.2.Law on Execution of Punishments


[ Promulgated S.G. No. 30 on April 15, 1969, alt. and add. S.G. No. 34
on April 30, 1974, No. 84 on Oct. 28, 1977; No. 36 on May 8, 1979; No.
28 on April 9, 1982 in force from July 1, 1982, S.G. No. 27, April 4, 1986;
No. 89, Nov. 18, 1986; No. 26, April 5, 1988; No. 21, March 13, 1990; No.
109, Dec. 28, 1993; No. 50, June 1, 1995; No. 12, Feb. 7, 1997; No. 13,
Feb. 11, 1997; No. 73, June 26, 1998; No. 153, dec. 23, 1998].
"Chapter Two

"LEGAL STATUS OF INCARCERATED PERSONS

"Article 23. Incarcerated persons may avail themselves of (enjoy) all


rights established by law with the exception of the following:

"a) The rights they have been deprived of by a verdict;

"b) The rights, which have been denied to them or have been explicitly
restricted by a law or another enactment and

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"c) Rights, the exercising of which is incompatible with the execution of the
punishment.

[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:

1.4.2.3.Criminal Code of Procedure of the Republic of Bulgaria


[Promulgated, S.G., No. 89/15 November 1974, Amended, S.G. No.
99/1974, No., 10/1975, No. 84/1977, No. 52/1980, No. 28 and 38/1982,
No. 89/1986, No. 31, 32 and 35/1990, No. 39, 109 and 110/1993, No.
84/1994, No. 50/1995, No. 107 and 110/1996, No. 54 and 95/1997, and
No. 21/1998].
"Chapter 22

"Section VI Legal Assistance in Criminal Matters (new S.G. 64/1997)

"Appearance of Witness and Expert before a Foreign Court.

"Article 463

"(1)…[Sic]

"(2) Extradition of persons detained in custody to be interrogated as


witnesses or experts shall be allowed only in exceptional cases by
discretion of composition of the respective district court, on the
grounds of papers submitted by the other country, provided the person
gives his consent for extradition, and the stay in the other country shall not
exceed the term of his detention in custody.

1.5. Analysis of Rights or Obligations of Prisoners.


[239] The principal international human rights documents clearly indicate those fundamental human and
civil rights that should be protected by the national laws of member states. The seminal document
appears to be the cited Universal Declaration of Human Rights of 1948 (UDHR).
[240] UDHR Article 2 provides guarantees of rights and freedoms "without distinction of any kind" due to
social or property "status" and no distinction made "on the basis of the political, jurisdiction or
international status of the country…or any other limitation of sovereignty". The Speaker maintains
throughout this enquiry that an indigent prisoner has a distinct "property or social status" unlike that of
other citizens. There can be little doubt that this small percentage of the general population makes up a
disadvantaged group that is subject to, and exclusively dependent on the observance of international
law by a member states.
[241] A principle point in the argument the Speaker attempts to place before the Appeal Court is that
prisoners have no self determination on account of the State. The burden is therefore on the State to
see possibilities are made available for a prisoner to prosecute or defend his or her petitions for a
judicial remedy.
[242] Law makers have a responsibility to see prisoners civil rights are observed, not just in principle but
to be seen to be done in fact and generally conformed to in the practice of law, a priori, the observance
and application of equal justice.

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[243] While prisoners are not distinctly incorporated into the seminal UCHR it is reasonable to conclude
prisoners are members of society having "other status" and as such are entitled under UDHR Article 6 to
"recognition everywhere as a person before the law" and entitled to the "full equality to a fair and public
hearing….in determination of his rights and obligations…" as guaranteed under Article 10.
[244] The point the Speaker seeks to make to this Honourable Court relies on the interpretation given
"other status", such interpretation must include within its' ambit persons deprived of their liberty and
having no property.
[245] A further interpretation of the term "Rights and obligations" must as well be afforded a meaning that
includes those rights and obligations found under civil law. It then becomes clear that there can be no
limit to such rights or obligations of a prisoner except those prescribed under the national criminal codes
of states party to the UDHR and other treaties. Such limits, if they exist, must be by virtue of a sentence
of a court in force against that prisoner.
[246] In the absence of such a prescribed limit, the direct or indirect restriction of a persons rights by way
of an administrative act, judicial order or practice, is invalid since its effect is solely on account of a loss
of self determination and property. It is impugned by virtue of its effect.
[247] As an aside the Honourable Court is asked to recall the character of the plaintiffs claims before the
trail court, as well as his complaints of against the defendant Bulgaria of interfering with the his access
to the courts of law. The interferences complained of are in direct breach of the Respondent's
international obligations under UDHR Articles 12 and 28, and the laws of Canada against, "arbitrary
interference" and attacks on a persons "honour and reputation," [see above: "Facts of the Case:
Malicious Prosecution; Defamation: Criminal Extortion"]. These protections are an international
obligation to be "fully realised" in all member states. It is well documented in the evidence before the
trial court that there are breaches of these protections by the defendant Bulgaria and a Crown servant
(defendant Doornbos) having occurred in 1995, immediately prior to the Speaker's arrest, and
continuing upto as recently as July of 2001.
[248] It is significant to the proceedings before the trial court that the documented breaches of protected
rights under UDHR Art. 12 and 28 had involved a servant of the Crown, acting directly in Sofia, Bulgaria
and in Vancouver, British Columbia. The documentary evidence placed before the trial court can leave
little doubt that the Crown acted in a foreign State, Bulgaria, and in the province. The Crown provided
the motives necessary to cause the arrest and prosecution of the Speaker by the defendant Bulgaria.
[249] The correspondences between the Crown and the Respondent from 1995 upto 1998 are
documented and provide one of several nexus to the province. Such links are deemed necessary in the
common law to bring the present lawsuit within the jurisdiction of the provincial trial court. Alone this
questionable conduct of a Crown servant would be enough to make British Columbia the jurisdiction
forum conveniens to hear the plaintiffs complaints against the defendants who participated in the series
of unlawful acts alleged by the plaintiffs as first initiated by a Crown servant acting, unlawfully, in
Bulgaria.
[250] The Speaker now return to the main point in the present analysis. The principles embodied in the
UDHR were reaffirmed by all the member states, including the governments of Canada and the
Republic of Bulgaria on their ratifying the International Covenant on Civil and Political Rights
(ICCPR). For the first time mention is made concerning the rights of prisoners in Article 10 of the
ICCPR, that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person."
[251] Particularly relevant and more to the point is ICCPR Article 14 declaring that "All persons shall be
equal before the courts and tribunals. In the determination of ….his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing", no where does the ICCPR make an exception to
prisoners. The ICCPR does not define the deprivation of a persons right to liberty as an exception
permitting member States to derogate from other rights or to limit such rights or obligations of such a
person if engaged as party to a law suit.
[252] That leads to the main question of why persons deprived of their liberty (the Speaker) are being
limited by a Duty Master or a Chambers Judge in their ICCPR rights to fully prosecute or defend a law
suit they have brought before a provincial court of British Columbia? More on this later.

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[253] The scope of principles and a state's obligations as enshrined in the cited international law are "on
all fours" with the Speaker's reasoning that there is to be no derogation of his rights solely because he is
a prisoner who happens to be the party prosecuting a civil suit. The Speaker's fundamental legal rights,
even as a prisoner, are preserved and are to be no less than they should be for any other citizen or
resident of Canada or the defendant, the Republic of Bulgaria.
[254] Clearly, a significant body of international law reviewed thus far has established that the
governments and courts of Canada and Bulgaria appear to have equal duties and obligations to protect
the rights of persons deprived of their liberty. It therefore appears that the governments of both states
have an equal duty and obligation to this Speaker, as a prisoner of one state, Bulgaria, and a citizen of
the other state, Canada, to see his rights under law are observed. One such right would appear to be the
right to a judicial review and remedy before a court of law equal to that of other citizens, notwithstanding
that such court is in British Columbia.
[255] In the alternative, and a principle point of the Speaker's argument, is that courts of British
Columbia have a constitutional duty that goes beyond the law making capacity of the government.
Canada's courts have jurisdiction under international law and Canada's constitutional guarantees to
secure and protect the equal rights of all parties to a law suit, notwithstanding the status of one party is
that of a prisoner of the other party, being a foreign government. Leading to another question of why
that jurisdiction was not exercised by the Master.
[256] This constitutional duty and jurisdiction of the courts extends equally to those persons deprived of
their liberty and indigent as it does other persons coming before the courts. This duty must therefore
extend to and include the Speaker. Such judicial duty to procedural fairness naturally flows from the
foregoing body international and national law. The obligation of a state are regardless of the nationality
of the person effected or the territory in which that person is to be found. This was given broad
consideration in Principle 5§1 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment previously cited by the Speaker.
[257] The international community has recognised that the identified principles " shall be applied to all
persons within the territory of any given State". This is consistent with the Speaker's reasoning and
insistence that there exists a set of homogenous international legal principles applicable to the "lex fori"
of both the trial court of Canada and the international obligations and duties of the defendant foreign
State, Bulgaria.
[258] The Speaker had argued before the trial court that the principles of international law are
enforceable on the defendant Bulgaria's legal representative(s) within the jurisdiction of the trial court in
Canada. No assertion is being made in the present enquiry for the trial court to exert its jurisdiction
beyond the confines of British Columbia or Canada, but rather within its' borders and on those
representative accessible to the court.
[259] There is no conflict of law between the "lex fori" of British Columbia and Bulgaria, both have
provisions that provide for prisoners to appear before national or foreign courts of law. Neither "lex fori"
can be a reason for a Master or Chambers Judge to refuse jurisdiction on the purely procedural question
of how the Speaker might be permitted by the defendant Bulgaria to present his case before the trial
court or later the trier of the facts.
[260] Should any conflict of law issue exist it might only be found in interpreting to what degree a court of
Canada might extend its jurisdiction to the "territory of any given state". The question asked in the
context of that State having become a party to a civil proceeding before a provincial court. International
comity is often invoked as an argument and relied on by the foreign state as a saving provision before
the common law courts of Canada.
[261] However, to the reasoning of the Speaker this principle of comity seems in the proceeding before
the trial court to be inoperable as a saving provision. International comity might well be applied in the
context of a states obligations and duties under international law to the equal rights before a court of law
of those persons whom are deprived of their liberty.

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[262] In the guarded opinion of the Speaker, international comity affords him greater benefit of argument
as to why the Respondent Bulgaria ought to observe its international obligations and duty to guarantee a
prisoners rights before the courts of a foreign state. The defendant Bulgaria's insistence that
international comity provides it unfettered sovereign rights is erroneous, the defendant state cannot
reasonably ask a court of Canada to not discharge its obligations and duties under international and
national law on account of the fact that one party to a civil proceeding is a foreign state.
[263] The courts of both Bulgaria and Canada are bound by the same international laws as are the
governments of both states. International comity plays a dual role, like a knife it that might well cut both
ways, requiring he courts of the province to respect the restricted sovereignty of the defendant Bulgaria,
and requiring the defendant Bulgaria to equally respect the processes of the provinces courts. The
defendant Bulgaria ought not act to hinder or obstruct those processes.

1.International Comity - An UnCooperative Defendant State

[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:

"Imprisonment and other measures which result in cutting off an offender


from the outside world are afflictive by the very fact of taking from the
person the right of self-determination by depriving him of his liberty.
Therefore the prison system shall not, except as incidental to justifiable
segregation or the maintenance of discipline, aggravate the suffering
inherent in such a situation."

[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.

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[271] Having said the foregoing raise again the question why the Speaker, a Canadian citizen is, for all
practical purposes, being restrained from accessing or being heard by the trial court in Canada where
his property and other civil interests are most effected by the defendants? The answer to the Speaker is
an obvious one, the defendant states fear of a civil prosecution that may lead to public exposure of
abuses of power and corruption of public officials. To the plaintiffs no other explanation is plausible.

1.6. Application of the Above to the Case at Bar.


[272] The cited International documents flesh out the human rights of persons deprived of liberty and
provide guidance as to how governments may comply with their international legal obligations. In the
case at Bar it is most significantly the right of a timely and effective means of access to the trial court
and facilities that are jeopardised by the defendant Bulgaria's actions outside of court. The facts of the
case show the Speaker is hindered in being able to fully prosecute or defend his claims in Canada
against the defendant Bulgaria. His international law rights as a person deprived of liberty are being
regularly breached by the defendant Bulgaria's agents who are attempting to coerce the plaintiffs from
proceeding with their claims. The defendant Bulgaria refusing to allow the Speaker to attend judicial
hearings in Canada or, as an alternative, to consent to allowing the Speaker the additional time,
facilities or other resources needed to protect his fundamental rights to access justice and seek
remedies before the trial courts of Canada.
[273] It is further recalled that on pleading to a Master for a remedy to the foresaid, the Master failed or
refused to recognise the Speaker's imprisonment as "afflictive" in nature, ordering the return of all the
Speaker's petitions. The Master effectively and unreasonably limiting the Speaker's in seeking his lawful
right to a judicial review and remedy under law. The legal effect of the Master's order (as opposed to its'
intent) was to declare the Speaker, a person deprived of his liberty and property, as persona non grata
before a provincial. The Master demanding the Speaker appear or alternatively pay for a lawyer to
appear and have his applications "spoken to" before the court, something the Master knew, or should
have known to be impossible.
[274] It is furthermore recalled that the Speaker appealed from the Duty Master's order, seeking judicial
review and relief. The Speaker relied on his Charter right of remedy under s. 24(1), and brought his
appeal in a form set out under the provisions of Rule 53(6), Rules of Court. The Speaker petitioning the
learned Chambers Judge, to secure for him, as a inmate of a penal institution, such relief as considered
under SMR Principle 61 to be "the maximum extent compatible with law" and necessary to see the
Speaker's "rights relating to [his] civil interests" in Canada are safeguarded before the trial court having
jurisdiction over the proceedings.
[275] It is recalled that the learned Edward, J. failed or refused to recognise the "afflictive" nature of
imprisonment and the legal effect of the impugned order of the Master on the petitioner's Charter rights.
The Chambers Judge ruling to return the Speaker's appeal, finding that all applications of the plaintiff,
this Speaker, were to be returned to him. The learned Edwards, J. holding, that an inmate in the custody
of the defendant Bulgaria appear before the Chambers Judge and have his s. 24(1) application "spoken
to" or to alternatively pay for a lawyer to do this for him. His Lordship Edwards, J. ordering a stay to any
judicial review of any application made by this Speaker. The Duty Master's order to remain in affect until
such time as the Speaker could appear or retain a lawyer bring the applications before the court. This
was an obviously impossible requirement made of the Speaker.
[276] The effect of the impugned Master's order and decision of His Lordship Edwards, J. had the
practical result of making unrealisable a prisoner and a Canadian citizen's right to apply for and obtain a
remedy under s. 24(1) of the Charter that reads:

"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter,


have been infringed or denied may apply to a court of competent jurisdiction
to obtain such remedy as the court considers appropriate and just in the
circumstances.

[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.

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[278] The legal effect of the impugned order and decision was to limit the procedural means for a person
deprived of liberty to "obtain such remedy as the court considers appropriate and just in the
circumstances" under the Charter when seeking to exercise his "rights or obligation" in a law suit before
the trial court.
[279] There are other documents relevant to the Master or Chambers Judge evaluating a prisoners'
minimal and fundamental right before it, this includes The Body of Principles for the Protection of All
Persons Under Any Form of Detention or Imprisonment and The Basic Principles for the
Treatment of Prisoners previously touched on. Like the SMRs, these instruments are binding on
governments and the provide guidance to the courts to the extent that the norms set out in them
explicate the broader standards contained in human rights treaties. They provide a valuable points of
international reference for the courts on the intent of the relevant international law, and are documents
that clearly reaffirm to the courts the tenet that prisoners retain fundamental human and civil rights.
[280] As the most recent of these documents, the Basic Principles for the Treatment of Prisoners,
declares in Principle 5:

"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:

"Not only may persons deprived of their liberty not be subjected to


[torture or other cruel, inhuman or degrading treatment or punishment],
including medical or scientific experimentation, but neither may they be
subjected to any hardship or constraint other than that resulting from
the deprivation of liberty; respect for the dignity of such persons must be
guaranteed under the same conditions as for that of free persons. Persons
deprived of their liberty enjoy all the rights set forth in the [ICCPR],
subject to the restrictions that are unavoidable in a closed
environment [see: U.N. Human Rights Committee, General Comment 21,
paragraph 3. The Human Rights Committee provides authoritative
interpretations of the ICCPR though the periodic issuance of General
Comments].

[Emphasis Added - Mine]

[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.

1.7. Returning to The Defendant Bulgaria.

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[283] It is of significant to any of analysis when reviewing the conduct of the defendant Bulgaria to recall
that the United Nations Human Rights Committee has stressed on more than one occasion that the
obligation of states is to treat persons deprived of their liberty with dignity and humanity is a
fundamental and universally applicable rule, not dependent on the material resources available to the
state party [see: Ibid., paragraph 4; see also Mukong v. Cameroon (No. 458/1991) (August 10, 1994),
U.N. Doc. CCPR/C/51/D/458/1991 (stating that minimum requirements regarding floor space, sanitary
facilities, provision of food, etc., must be observed, "even if economic or budgetary considerations may
make compliance with these obligations difficult")], mutatis mutandis, difficulties or costs encountered by
the defendant Bulgaria to meet its international duty to conduct a prisoner to a foreign state for a judicial
hearing. Financial difficulties are not sufficient cause to refuse a person deprived of their liberty his or
her right to attend or otherwise access a foreign court to prosecute or defend civil claims.
[284] It is recalled that many of the defendant Bulgaria's refusals to the Speaker to conduct him were
groundless and mostly deferred to budgetary difficulties of the agency responsible for escorting
prisoners to judicial sittings.
[285] It would appear from the above body of international law that both the governments' of Canada and
Bulgaria are required to secure the right of a prisoner to bring his or her complaints and claims before
the civil and criminal courts. However, this obligation and duty does not end with the bringing of a
prisoners' claim before the court trial court.

1.8. Practical Consequences.


[286] If there is to be any practical meaning to the body of law and principles reviewed here then there
must exist a continuing duty of States, the likes of Bulgaria and respected democracies the likes of
Canada, to secure such rights, and therefore the practical possibility, for those persons the states have
deprived of their liberty to also prosecute their civil claims against the very States themselves. And to
do so beyond the filing of any originating writ or claim. The State's assistance, be it Canada or Bulgaria,
must continue until there comes into force a final judicial decision by the respective court of civil trial
and the later courts of appeal.
[287] For the reasons given above the Speaker has concluded that there exists under international law a
further principle and onus on governments to arrange for their prisoners, as wards of the State, to
appear before the courts in proprio person. Such appearance can be made in a manner appropriate to
their circumstance of imprisonment and the danger they pose to society. Alternatively the governments
must provide an effective means or appropriate relief so that such civil complaints and claims made by
prisoners, against the very states themselves, might be spoken to before the courts in an affective
manner by the very men and women having been deprived of their liberty.
[288] Finally, what can so far be adduced from the above? Foremost to the present Speaker's reasoning
and his applications before the Appeal Court is that it is not only wrong, but in fact unlawful, for
government agencies to hinder, deter or deny prisoners the possibility to prosecute complaints before
courts of law on any territory of a state having ratified the cited conventions. International law makes no
distinction as to the territory on which the prisoner is to be found or what government is responsible for
his or her imprisonment and therefore his or her rights before a court.
[289] Next, it is apparent that the analysis and argument of the Speaker before the Appeal Court must
rely on the foregoing body of international and national law, it having a direct influence on how the
present proceeding before the Appeal Court, and any later proceedings before the trial court, are to be
conducted by the learned Justices of both courts. The proceedings before the trial court are without
doubt complicated by the matrix of facts and international circumstances of the law suit itself. The
complexity of the proceedings is all the more vexing due to the "other status" of the Speaker as a
prisoner of the defendant Bulgaria. It is a fact that the Speaker will be and is unable to further prosecute
his civil claims and Charter complaints if the courts of the province chose to abstain from applying the
above cited body of laws to the present proceeding.

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[290] It is for this reason the Speaker has turned to the Appeal Court, the relied on principles of
international law are substantial to the principles of natural justice in the common law, and are equally
relevant to the civil law tradition of the Respondent Bulgaria. It would then appear that the Appeal Court
may find sufficient grounds to assist the Speaker in securing from the trial court his right to be present
his case before a Master or Judge, and finally the trier of the facts, in a manner considerate of his
circumstances and relationship with the defendant government of Bulgaria and the Crown. This is in fact
so obvious that the Speaker is embarrassed by the apparent need of any analysis.
[291] However, the legal effect of the impugned Duty Master's order is equally, if not more obvious, as is
the obviously afflictive and vulnerable state of a prisoner. The Master order contravenes the very a prior
element of equality and fairness imbued through each and every international and national instrument
the Speaker has cited above. The impugned order is contrary to the principles of natural justice and
traditions of civil law, it (the order) can only been seen for its absolute nature of denying a prisoner, this
Speaker, access to a court of law in Canada. There are no other practical or reasonable legal effects
attributable to the Master's order when applied to those deprived of their liberty. Yet, such an order
exists, having been confirmed as to its reasonableness by a Chamber Judge.

1.9. Is this Speaker's reasoning simply wrong?


[292] The Speaker has asked himself this question repeatedly. Is he wrong to seek relief from a
Canadian court on a subject that require a Master or Chambers Judge to review applicable international
law and established standards for the treatment of prisoners. Was it wrong to raise the issues of the
applicable foreign law of the Bulgaria as binding on the defendant Government of Bulgaria. On
reflection, the decision to do so was taken as a result of the conformity of the two "lex fori", that of
Canada and Bulgaria, and not their differences.
[293] Earlier the Speaker wrote that the "lex fori" of British Columbia does not differ in principle from the
"lex fori" of the Respondent. There is no conflict in any part of either of the two national laws to where it
can be said that British Columbia law requiring a prisoner to be produced before a court of Canada does
in someway effectively contravene that Bulgaria law guaranteeing a prisoner his or her right to act in
proprio person before a court. Notwithstanding that such court is a foreign court. Any differences of the
two "lex fori" , if any, would resolve themselves through the trial process or hearing of an application by
the trial court of British Columbia on applying the body of principles found under the law cited above.
Applying it to both jurisdictions, the place of the trial and the place of the Speaker's imprisonment..
[294] Therefore sovereign right cannot have been a consideration of the learned Master or Chambers
Judge when refusing to summon, through the defendant Bulgaria, this Speaker or to possibly require the
defendant Bulgaria to secure an appropriate alternative for this Speaker to continue the prosecution or
defence of his claims before the trial court. State immunity was not nor could be argued against an
application made for an order by the trial court of Canada directing the Defendant government Bulgaria
to deliver this Speaker in custody to a civil proceeding before a Canadian court or to provide alternative
facilities to the Speaker as satisfactory to the trial court to see that justice was being done.
[295] As the Speaker reviewed earlier international comity plays no role as a prohibition to a court of
Canada requesting a foreign government, Bulgaria, to arrange possibilities such that permit a Canadian
citizen to prosecute his claim against that foreign State in Canada and to act out his fundamental rights
under the "lex fori" of the trial court. The body of law submitted above demonstrates no international or
national law that would hinder a Master or Chambers Judge of a court of Canada from having provided
the relief the Speaker had requested in his various petitions to the court and later appeals.
[296] The importance of the Respondent's role in the proceedings before the trial court cannot be
overstated. As a state it has a duty to secure such rights for the Speaker before the Honourable Courts
of Canada that are no less than the duty of Canada's government were it similarly disposed. This duty of
the Respondent Bulgaria as a State should not have been overlooked by either the Master or Chambers
Judge.

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[297] That the Respondent was clearly in breach of the very principles of international law to which it is
bound should have raised questions in the mind of the court. The principles of reasonable limits on
prisoners civil rights are found in the previously cited Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, Principle 36(2), the international community of nations
agreeing to forbid any member state from imposing "restrictions upon such a person which are not
strictly required for the purpose of the detention". Yet the Respondent imposes such restrictions on the
Speaker, a fact the Master and Chambers Judge elected to ignor.
[298] Again, at the risk of being redundant, it appears that the SCBC had a duty to the Speaker to
recognise the physical limitation of his status, first as a person deprived of his liberty, second as indigent
and third, in aggravation of the first two, as a prisoner of the party responsible for his imprisonment and
indigence, the defendant Bulgaria.
[299] There was a further duty and a right of the courts' inherent jurisdiction, that required the Master or
Chambers Judge to express themselves on a matter of international law when such law is compelling
and applicable to proceedings before the court, and a treaty obligation of the governments of both
Canada and Defendant Bulgaria.
[300] The Speaker has attempted to proceed logically, concluding that the Duty Master and Chambers
Judge erred in judgement in failing to consider the petitions before them in the full context of the
Speaker's circumstances. Then proceeding to limit the means available to the Speaker to prosecute his
applications before the courts from prison, insodoing impugned order restricted the Speaker's right as a
citizen to seek judicial remedies after having applied for such relief in writing to the Chambers Judge
under s. 24(1) of the Charter, having done so solely because of the circumstances under which the
application had to be brought.
[301] The hardships of prison are so obvious a fact that the very existence of the impugned order has
given cause to the Speaker enquiry as to why the Court Rules Act [RSBC 1996] Chapter 80 permits
such a limitation be imposed on a Charter right in the first place.
[302] More disturbing is that and the Duty Master and Chambers Judge failed or refused to provide for
any of the remedies to be found under the Rules of Court , in the common law or under the legislative
enactment as follows.

1.10. Analysis Governing Prisoners Temporary Escorted Absences.


[303] Canadian legislation, unlike that of the Republic of Bulgaria, is substantially clearer on the subject
of temporary escorted absences of prisoners. This is reviewed under s. 7.3 of The Prisons and
Reformatories Act Chapter P-20 R.S., c. P-21. Such absences are directly incorporated as a right of
prisoners in Canada for "reintegration into the community".
[304] The Corrections and Conditional Release Act 1992, c. 20 goes even further under s.4 to instruct
"the Service use the least restrictive measures" and that "offenders retain the rights and privileges of all
members of society". Temporary escorted absences are provisions of s. 17(1), persons absences to be
permitted for "administrative", "rehabilitative" or "reasons other than medical".
[305] The Correction Act [RSBC 1996] Chapter 74 s. 15(1) further allows the Minister to request and
authorise temporary absences of prisoners.
[306] It can as well be seen from the Rules of Court, Rule 40(40) that the trial court has the jurisdiction to
order the temporary absence of a prisoner as follows:

"Order for attendance of witness in custody

"(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].

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[308] Admittedly the legal landscape of Bulgaria is bereft of any substantive applications or practice of
international law . Even the procedure prescribed under its Criminal Code of Procedure (CCP) Art. 463
as previously cited are of little or no practical use. The Bulgaria's CCP, not unlike the foresaid Canadian
acts, prescribes the possibilities for temporary escorted absences of prisoners, and incorporates into this
one provision the same principle of the previously cited Rule 40(40), Rules of Court. These respective
provisions of the national laws of Bulgaria and British Columbia, are relied on by the Speaker in
applications to the Respondent Bulgaria, the Ministry of Justice, and before the Master and Chambers
Judge of the provincial court to be escorted to court.
[309] It is recalled that the Speaker's applications to the Master and Chambers Judge had raised all the
forgoing issues, having in part relied on Rule 40(40). The Speaker's petitioned asked of the Master to
provided an, as the "paper(s) submitted by the other Country" [see the above cited: CCP Art. 463] to
allow a "district court" of Respondent Bulgaria to consider the Speaker's request of temporary escorted
conduct to appear before a court of Canada. Much of the Speaker's frustration is derived from being
refused a judicial review of his requests for an escorted appearance before the trial court in British
Columbia.

1.11. The Fact, the Questions and the Common Issue.

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.

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[314] Matters become even more complicated when we add into this already extensive mix of
controversies the real or imaged negative financial and public image interests of the government of the
Respondent State if it permits the Speaker to fully exercise his rights before the "lex fori" of Canada. Not
to mention the effects should the Speaker prevail in his claims.
[315] The Appeal Court is being asked not only to ponder on the foreseeable effects of imprisonment as
they impact on the present applications before the Bar, among them the distances involved, the
Speaker's poverty and incarceration. But to also deliberate on the not inconsiderable physical and
psychological effects on the Speaker as found in a Bulgarian prison. These are conditions that exist in
aggravation of the ordinary problems of imprisonment. The effects of such conditions are that they
make a prisoner's ability to put his case before a court of law far more difficult in practical and personal
terms. Such stresses aggravating the ever present difficulties for the Speaker as a prisoner to comply
with orders of the trial court, including the time constraints fixed by the Rules of Court. There are even
harsher realities that the Speaker is required to overcome when confronting officials and agencies of the
Respondent opposed to his legal action against the defendant Bulgaria.
[316] The facts of the case and the human rights reports reviewed in Part 1 [see: "Part 1: Facts Existing
In Aggravation of the Claims: Conditions In The Republic of Bulgaria"] incontrovertibly show that
prisoners of the defendant government Bulgaria exist in a constant state of anxiety and fear over the
significant physical and psychological consequences each of them, including this Speaker, face when
attempting to access international justice. The Speaker has documented before the trial court that he is
no stranger to these physical and psychological abuses as the consequence of pursuing his civil rights.
If, or better said when, such consequences again manifest themselves they shall inevitably result in this
Speaker once more losing contact with the trial court. In such an eventuality the Speaker must rely on
this Honourable Court to determine how to proceed.
[317] The applications to the Appeal Court on the issues of extending time and a declaration of indigence
would be far less convoluted if it were not for the nature and character of the defendant Bulgaria's
conduct that leads to the bringing of the present applications. Incarceration, poverty, fear, uncooperative
officials of the Respondents, including the offices of the Ministry of the Attorney General of Canada,
have complicated the issues of the applications, even those of time and indigence. The circumstances
of the present applications are not helped by the Speakers lay status and questionable at best legal
abilities. This admittedly makes it difficult to clearly identify and resolve for the Appeal Court the errors
of judgement and issues of law to be discussed in the appeal for which leave is sought.
[318] All the foregoing are live issues and real controversies among the parties to the proceeding before
the trial court.

4.What is Not On Appeal.

[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.

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[322] Second, the Speaker would not dare to suggest for this Honourable Court to extend or otherwise
impose Canada's Charter of Rights and Freedoms beyond the boundary of Canada on the foreign
defendants. The Charter issues raised here are limited to those occasions or circumstances where s.
32(1) of the Charter is applicable and s. 24(1) can be invoked by the Speaker. The case law found in
recent years shows the Supreme Court of Canada closely examined such Charter claims as it relates to
Canadian government actions beyond the boundaries of Canada [see: Schreiber v. Canada (Attorney
General), [1998] 1 S.C.R. 841; 225 N.R. 297; 124 C.C.C.(3d) 129; 158 D.L.R.(4th) 577, Distinguished: R
v Terry, (1996) 2 S.C.R. 207; R. v. Harrer, (1995) 3 S.C.R. 562:; referred to: Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R. v Edwards, (1996) 1 S.C.R. 128;R.
v. Belnavis, (1997) 3 S.C.R. 341; R. v. Stillman, (1997) 1 S.C.R. 607; R. v. Dyment, (1988) 2 S.C.R.
417; R. v. Feeney, (1997) 2 S.C.R. 117; Thomson Newspapers Ltd. v Canada (Director of Investigation
and Research, Restrictive Trade Practices Commission) (1990) 1 S.C.R. 425; Comité paritaire de
l'industrie de la chemise v. Potash, (1994) 2 S.C.R. 406; R. v. Mckinlay Transport Ltd., (1990) 1 S.C.R.
627; R. v. Plant, (1993) 3 S.C.R. 281; R. v. Collins, (1987) 1 S.C.R. 265], the case law appears to
strongly suggest that the Charter cannot be applied to acts committed on a foreign territory if such acts
have no direct affect on the Charter or other rights of citizens of Canada who are in Canada.
[323] However, what this does mean to case before the trial court is that the Charter can be applied in
respect to all acts alleged as effecting the plaintiffs Nicholas, Tatiana, Tracy and Robert as family
members of the Speaker in the province. And to all acts effecting the plaintiffs property and civil
interests in or connected to the province. These are not at present the subject of the appeal, and the
Speaker is far from asking this Honourable Court or any court of Canada to impose its judicial will on the
legitimate pursuits of a sovereign state or its representatives outside of Canada. Yet having said that,
the Speaker does wish to place a certain emphasis on the interpretation of "legitimate" and "lawful", as
these are live issues that concern the activities of a servant of the Crown outside of Canada in co-
operation with agents the Respondent Bulgaria. Applied retrospectively to acts of the Crown the Charter
would appear to apply in the present case.

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.

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3.Leave To Appeal

[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.

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[335] Among the additional arguments of the Speaker is the inherent jurisdiction of the "lex fori" of the
trial court to require the foreign state party, the Respondent, to observe such laws and rights of that
forum where the trial or hearings are to take place. The exercise of such jurisdiction by the court over
the Respondent appears to only require that the direction or order of the trial court not conflict with the
principles of international law and treaty obligations and duty of the foreign state party. Any requirement
made by the trial court to a foreign state defendant need only be harmonious with the requirements of
recognised international law. There exists a constitutional duty for the trial court, in proprio motu, to
exercise its inherent jurisdiction to reasonably guarantee to the Speaker his rights before the trial court

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;

"1. The prejudice to each party

"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.

1.The prejudice to each party:

[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.

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[343] Counsel in Vancouver has not indicated that his client, the defendant Government of Bulgaria, was
concerned that the planned appeal would in someway prejudice its legal interests before the trial court.

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.

4. Whether any ground of substance is raised in the proposed appeal:

[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.

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[29] However, for the purposes of this application the Speaker maintains he has substantial grounds as a
party "exceptionally prejudiced" more than any other citizen by application of the impugned act [the cited
"Court Rules Act [RSBC 1996] c. 80", Rules of Court : Rule 41(16.5(b))] to the Speaker as a person
deprived of his liberty and indigent. It appears the case law found in, inter alio, Smith v. Ontario
(Attorney General), [1924] S.C.R. 331 per Duff J. (later C.J.C.) at 337, and reasons of the Supreme
Court of Canada in Public Service Employee Relations Commission (B.C.) v. British Columbia
Government and Service Employees' Union , [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207
W.A.C. 161 ( MEIORIN), there, McLachlin, J. (for the full court), explained why the court abolished the
distinction between "direct" and "indirect" discrimination, [see also: Entrop et al. v. Imperial Oil Ltd.
(2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.). Again in Superintendent of Motor Vehicles (B.C.) v.
Council of Human Rights ( B.C.) , [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280
( Grismer). McLachlin, J. for the Supreme Court of Canada (for an unanimous 7 judge court), wrote at
p. 880:

"[19] Meiorin announced a unified approach to adjudicating discrimination


claims under human rights legislation. The distinction between direct and
indirect discrimination has been erased. Employers and others governed by
human rights legislation are now required in all cases to accommodate the
characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for
those who cannot meet them. Incorporating accommodation into the
standard itself ensures that each person is assessed according to her or his
own personal abilities, instead of being judged against presumed group
characteristics. Such characteristics are frequently based on bias and
historical prejudice and cannot form the basis of reasonably necessary
standards. While the Meiorin test was developed in the employment
context, it applies to all claims for discrimination under the B.C. Human
Rights Code .

"Once the plaintiff establishes that the standard is prima facie discriminatory,
the onus shifts to the defendant to prove on a balance of probabilities that
the discriminatory standard is a BFOR [a bona fide occupational
requirement] or has a bona fide and reasonable justification. In order to
establish this justification, the defendant must prove that:

"(1) it adopted the standard for a purpose or goal that is rationally connected
to the function being performed;

"(2) it adopted the standard in good faith, in the belief that it is necessary for
the fulfillment of the purpose or goal; and

"(3) the standard is reasonably necessary to accomplish its purpose or goal,


in the sense that the defendant cannot accommodate persons with the
characteristics of the claimant without incurring undue hardship."

[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.

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[355] The Speaker believes, as he is sure the thousands of other Canadian families and those citizens
burdened with a similar status as his own believe, that there are substantial grounds the Appeal Court to
allow the Speaker time to formulate a full argument, prepare his appeal and then file it.

3.2. On The Declaration Of Indigence


[356] This Court's jurisdiction to entertain applications of this type are found in Appendix C, Schedule 1
to the Rules of Court which reads as follows:

. "Notwithstanding anything in this schedule, no fee is payable to the Crown by a person


to commence, defend or continue a proceeding if the court, on summary application
before or after the commencement of the proceeding, finds that the person is indigent
unless the court considers that the claim or defence

. "(a) discloses no reasonable claim or defence as the case may be,

. "(b) is scandalous, frivolous or vexatious, or

. "(c) is otherwise an abuse of the process of the court."

1."(a) Discloses No Reasonable Claim

3.2.1.1.Is the Intended Appeal Reasonable


[357] As set out in the previous section the Speaker believes that inter alio, the cited Smith supra, and
the Supreme Court of Canada in Public Service Employee Relations Commission (B.C.) v. British
Columbia Government and Service Employees' Union supra, ( MEIORIN), Entrop et al. supra, and
Superintendent of Motor Vehicles (B.C.) supra, provide the speaker adequate tests to show that his
intended appeal has disclosed factual circumstances suggesting a real possibility of indirect and
unintentional discrimination. In brief, such a claim is factually made reasonable for the reasons that
follow.
[358] At the risk of being redundant the Speaker again places emphasis on the incontrovertible fact that
a prisoner deprived of his self-determination is unable to access the facilities of a provincial court of his
own free will. In the case at Bar there is the equally incontrovertible reality that a Duty Master or
Chambers Judge failed or refused to acknowledge the afflictive nature of the foresaid incontrovertible
fact.
[359] It appears from the foregoing that the Rules of Court are impugned because they fail to
contemplate or have intentionally omitted their affect on persons living under the circumstances of
imprisonment and poverty, the Rules having no provisions for procedural relief from the incontrovertible
affects a persons constitutional rights when a Duty Master or Chambers Judge observing the impugned
Rules chooses to deny such a person his or her right to a full judicial review of his complaint.
[360] Under such unreasonable circumstances as created by the impugned rules, a reasonable claim is
raised by the Speaker as to the ultimate consequences to the Charter or other rights of the affected
group when applying before a Master or Chambers Judge of the Supreme Court of British Columbia,
who then relies on and applies the impugned part of the Rules (41(16.5)(b)).
[361] From a reading the impugned Rules it is clearly apparent that Lieutenant Governor had omitted to
provide procedural relief to the affected group or a direction to a Master or Chambers Judge of the
provincial court to secure for members of the affected group some form of reasonable remedy when a
party to a law suit. At present the impugned Rules and practice of the SCBC provides for a Master or
Chambers Judge to refuse any judicial review of a petition in the absence of the applicant or an
attorney. No remedy whatsoever is provided to the affected group that cannot reasonably be expected
to attend or secure an attorney.

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[362] It is reasonable to claim indirect discrimination resulting from the affected group not being provided
under the Rules of Court some form of procedural recognition or remedy whereby a Master or
Chambers Judge is to take into account their difficult circumstances, and act according to those
circumstances.
[363] The omission of procedural recognition or remedy under the Rules for the affected group leaves
them no practical possibility to exercise their individual constitutional rights as litigants before the
Supreme Court of British Columbia. More disturbing is that under the present Rules and practice of a
Master or Chambers Judge, the affected group is absolutely deterred and virtually unable to apply to the
SCBC under s. 24(1) of the Charter. The very Rules enacted to protect the individual rights of litigants
are as a result of an unintentional omission acting to indirectly discriminate against the affected group
by denying them very rights the Rules are enacted to protect.
[364] The Speaker's claim to the Appeal Court is reasonable. It results from the Chambers Judge
decision to refuse his application for a judicial review and remedy. His petition to the learned Chambers
Judge. Edwards, J., did not have the desired affect of an s. 1 review of the s. 15(1) rights of a person
deprived of his liberty, despite having raised the issue of the Duty Master's order indirectly
discriminating against him by "unreasonably limiting" or "infringing" on his litigation and procedural
rights as a party before the trial court. The petition claimed as unreasonable and wrong to limit or deny
the procedural rights of judicial review and remedy by virtue of very factual circumstances
(imprisonment and poverty) that had precipitated the need for a petition and judicial and remedy. It
argued that a Duty Master or Chambers Judge, in having a constitutional duty to procedural fairness,
are required to provide some form of practical remedy from the difficulties arising for a party living in
prison and poverty.

3.2.1.1.A In the Law Suit


[365] As stated in Part 1 the claims against the Respondent/Defendant sound in tort and in contract. The
commercial activities of the Respondent are well documented and its contractual relationship to the
plaintiffs are in evidence before the trial court.
[366] The plaintiffs have further provided the trial court a substantial amount of written material in
support of their claims that sound in tort. The plaintiffs and Speaker assert their claims against the
Respondent are on the basis of the material evidence before the trial court, not solely only on opinions
or pleadings.
[367] The facts of the case provided in Part 1 and the documents to be found before the trial court reveal
the plaintiffs have restricted their cause of action framed in contract only those claims they believe are
proved in documentary evidence of commercial transactions, written agreements and official
correspondences found in the records of agencies of the Respondent.
[368] Claims framed in tort, inter alia defamation, as alleged in the lawsuit and later pleadings find the
offensive or actionable words reproduced in hundreds of public news articles that repeat the slander and
reproduce the liable as alleged against the defendants. The personal injury suffered results from, inter
alia, physical anxiety and psychological torment and the plaintiffs permanent physical and mental
disabilities as inflicted or resulting in the province. These are fully documented before the trial court by
independent medical practitioners.
[369] The Speaker therefore asserts before the Appeal Court that the plaintiffs and his complaints
against all the defendants in the law suit, including the defendant Bulgaria and the Crown, are
reasonable claims sufficient for trial.
[370] However, questions of jurisdiction do arise, the plaintiff(s) have sued a foreign state, the Republic
of Bulgaria, and counsel for the defendant government, to test the reasonableness of the plaintiff(s)'s
claims, relies on issues of state immunity, jurisdiction simpliciter and forma non conveniens. As a result
it becomes necessary for the present enquiry as into a "reasonable claim" to also consider procedures
and exceptions found in the enactments relied on by the plaintiff(s) as bringing their claims against a
foreign state within the jurisdiction of a trial court of the province. Always keeping in mind the common
law applied to such instances as those before the trial court, and presently at Bar.

3.2.1.1.B Jurisdiction

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[371] The jurisdiction of the provincial courts of British Columbia and those of Canada over the
defendant Bulgaria are found in the exceptions to state immunity as established in the State Immunity
Act [R.S. 1985, c. S-18], s. 9; 1995, c. 5, s.27 ("State Immunity Act"). The common law is clear on the
principles of restricted immunity. The trial court and Appeal Court have jurisdiction over officials,
agencies, instrumentalities or institutions of the Defendant, Government of the Republic of Bulgaria.
The exceptions relied on by the plaintiff(s) are found under the provisions of s. 4, s. 5, s.6 and s. 18 of
the State Immunity act. Case law noted by the plaintiffs includes, inter alio, Zodiac International
Products Inc. v. Polish Peoples Republic, (1977)C.A. 366, Kaufman, J.A. at p. 371 and Amanat Khan v.
Fredson Travel Inc. (No.2) (1982), 36 O.R.(2.d) 17, Steele. J.; also see House of Lords in: I Congreso
del Partido, [1983], A.C. 244(H.L.), Lord Wilberforce at. 262; and for American law see: De Snachez v.
Banco Central de Nicaragua (1985), 770 F.2d 1385, at p. 1393, Rush-Presbyterian-St. Luke's Medical
Centre v. Hellenic Republic (1989), 877 F.2.d 574, the courts supporting the principle of restrictive
immunity over that of the absolute immunity claimed by the defendant Bulgaria.
[372] The trial court's jurisdiction over the individual foreign defendants and defendant Bulgaria are
found in the exceptions provided under Rule 13(1), Rules of Court. Exceptions are provided, in
jurisdiction simpliciter for all claims that sound in contract or in tort that are connected to the province.
The plaintiff(s), on the basis of their documentary evidence, on have collected and placed before the
trail court what amounts to a good prima facie arguable case and reasonable claims framed in contract
or tort, see: Huddart J., Northland Properties v. Equitable Trust Co, 1992, 71 B.C.L.R. (2d) 124
(B.C.S.C.); also see: Bushnell v. T & N plc (1992), 67 B.C.L.R. (2d) 33, 336 at 342 [1002] B.C.D. Civ.
3714-03(C.A.).
[373] State immunity, and jurisdiction simpliciter, once resolved, leaves only the question to of the trial
court and Court of Appeal as to being the forum conveniens to hear the matter. Case law shows the
forum non conveniens argument is resolved on the merit of the plaintiffs' claims as found in those facts
that can materially demonstrate a connection to the province and can be placed before the trail court as
documentary evidence to be later made available to the trier of the facts. The alleged proof must be
sufficient to show the court that the plaintiffs and this Speaker intend to rely on more than simple
pleadings or opinion evidence when going before the trier of the facts [see Bushnell supra, and inter alio
Amin Rasheed Shipping v. Kuwait Insurance Co. [1983] 2 All E.R. 884; Spiliada Maritime Corp. v.
Cansulex Ltd. [1986] 2 All E.R. 843; Valmet Paper Machinery Inc. v. Hapag-Lloyd AG., unreported,
December 23, 1996 (B.C.S.C.) at p.4; Stern v. Dove Audio Inc., unreported, April 15, 1994 (B.C.S.C.) at
p. 16; Cook v. Parcel, Mauro, Junltin & Spaanstra, P.C. (1997), 31 B.C.L.R. (3d) 24 (C.A.); CRS Forestal
v. Boise Cascade Corporation, Vancouver Registry No. C983201, August 13, 1999 (B.C.S.C.),
Sigurdson, J; .G.W.L. Properties Ltd. v. W.R. Grace & Company - Conn. (1990), 50 B.C.L.R. (2d) 260
(C.A.); Leisure Time Distributors Ltd. v. Calzaturificio S.C.A.R.P.A. - S.P.A. (1996), 5 C.P.C. (4th) 320
(B.C.S.C.) at p. 3; J. Michael Jensen Boat Sales Ltd. v. McAfee (1997) 12 C.P.C. (4th) 210 (B.C.S.C.);
Bangkok Bank of Commerce Public Co. v. City Trading Corp. (1997), 13 C.P.C. (4th) 324 (B.C.S.C.)].
[374] It then follows from the case law found in, inter alio, United Oil Seed Products Ltd. v Royal Bank of
Canada (1988), 87 A.R. 337 (C.A.), at 344, that the onus is placed on the defendant Bulgaria to show a
more convenient forum to hear the plaintiff(s) claims framed in contract or tort other than the trial court
of British Columbia, the plaintiffs having asserted before the trial court of having met the usual factors
necessary to determine the most convenient forum. See: Camco International (Canada Limited) v.
Porodo (18 November 1997), Calgary 9601-08706 (Q.B.), at p. 7, and special emphasis on Morguard
Investments Ltd. v. DeSavoye, (1993) S.C.R. 1077, at p. 1111, the court writing: "There is nothing, then,
to prevent the plaintiff from bringing such an action and thereby taking advantage of the rules of private
international law as they evolve over time".

3.2.1.1.C Procedures Observed.


[30] The plaintiffs have exhausted every reasonable means to keep informed all the defendants,
including the defendant government of Bulgaria, and to afford the Crown the opportunity to respond
should it seek to do so.

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[31] For service outside Canada to individual defendants on the territory of Bulgaria the Plaintiffs relied
on Rule 13(12)(c), Rules of Court, the Hague Convention of the Service Abroad of Judicial and Extra
Judicial Documents in Civil or Commercial Matters ("Hague Convention"). The Plaintiffs, when effecting
service of any documents or notice were sure to observe the declarations to the Hague Convention as
made by the Republic of Bulgaria.
[32] For direct service on the Respondent/Defendant government agency of the Ministry of Finance,
Republic of Bulgaria, on the territory of Bulgaria, the Plaintiffs relied on the exceptions provided for in
Canada's State Immunity Act [R.S. 1985, c. S-18], s. 9; 1995, c. 5, s.27 ("State Immunity Act"), and that
procedure agreed to and legislated by the Republic of Bulgaria's under its (Bulgarian) State
Responsibility for Injuries Caused to Citizens Act, S.G. No. 60 August 5th 1988 and under its (Bulgarian)
Code on Civil Procedure Code Article 18(3).
[33] For diplomatic service, where called for, to the Respondent/Defendant, the Government of the
Republic of Bulgaria, the Plaintiffs relied on s. 9(2) of the State Immunity Act, and engaged the services
of Canada's Ministry of Foreign Affairs.
[34] Plaintiff(s) claims against the Crown rely on the Crown Liability and Proceedings Act R.S., 1985, c.
C-50, s. 1; 1990, c. 8, s. 21, the Speaker having served the Deputy Attorney General of Canada with a
copy of his notices and petitions. Furthermore, on issues of constitutional validity the Speaker has relied
on the Constitutional Question Act [RSBC 1996] c. 68, having served the Attorney General of the
Province of British Columbia with copy of his notices and petitions.

2."(b) The Appeal Is Scandalous, Frivolous or Vexatious.

[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.

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[379] The written petitions, and the intended appeal of the Speaker are a dialogue into the very nature of
the democratic and free state that Canada represents, one ruled by the principles of law as such
principles must always be moderated by the Canadian sense of fair play, equality, reason and humanity.
It cannot be scandalous, frivolous, or vexation to bring such a dialogue before the Appeal Court.

3."(c) The Application Is Otherwise An Abuse of the Process of the Court

[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.

3.3. On The Application For Leave To Appeal


[384] The factors to be considered by Speaker in determining if his application for leave to appeal should
be granted him were set out in the case of Hockin v. Bank of British Columbia (1989), 37 B.C.L.R. (2d)
139 (C.A.) and they are as follows:

1. Whether the point on appeal is significant both to the litigation before the trial court and
to the practice in general;

2. Whether the appellant has an arguable case of sufficient merit;

3. The practical benefit to the parties of an appellate decision; and

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;

3.3.1.1.Significant to the Litigation Standards

3.3.1.1.A Intended Point on Appeal - One of Law.


[385] The intended point on appeal is one of law, the appellant insisting there is an error in law. As a lay
person, and one deprived of his liberty at that, this Speaker makes no pretence to having understood, in
a matter of weeks from a prison cell in Bulgaria, the historic and legal complexity of the points he raises
here. What can be understand are the moral and practical consequences to his family and him, the rest
must be left to reason, and logic were education and experience are wanting.

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[386] Earlier the Speaker considered simplicity a virtue. If such were the case, then as a layman his
points to the Appeal Court are that his status as an indigent person deprived of his liberty has made him
a "persona non grata" before a Master or Chamber Judge of trial court. It seems reasonable here to
briefly review, in lay terms, a few of the points significant to the party affected.

3.3.1.1.B Appealed - Affect as Opposed to Intent.


[387] In the previous discussion little doubt was expressed on the part of the intended appellant as to the
just and fair "purpose" of the Master's order. The present enquiry understands the "intent" of the order to
be fair, just and economical.
[388] What is significant to the litigation is that the "intent" of the order, and the enactment relied on,
[see: Court Rules Act], are for "justice and economy". However, the legal and practical "affect" of the
order are in complete conflict with its perceived "intent" in the following two ways.
[389] First, in its present form, the order acts unreasonably to absolutely bar any indigent person
deprived of his liberty from petitioning for a judicial review or otherwise prosecuting or defending his
claims as a party to a law suit. In the case at Bar the affected party is this plaintiff.
[390] Second, the order acts in aid of a state party to the law suit. The plaintiffs' petitions to the Duty
Master had alleged the state defendant as having used physical coercion to unlawfully deter the
petitioner, a person it had deprived of liberty, from prosecuting or defending his civil claims before the
trial court. Here, the Speaker as appellant, again makes the distinction between intent and affect. It is
recognised the Duty Master had no intention to discriminate against a plaintiff deprived of his liberty. As
previous mentioned, the order appealed did not intend to bar the plaintiff from the possibility of
prosecuting or defending his claims against the state defendant in the law suit. Under no circumstances
is it suggested to the Appeal Court the Duty Master as having been prejudiced in favour of a state
defendant's rights over the rights of a person deprived of his liberty. However, the best and most
principled of intentions of the Duty Master's order do not alter the reality of the actual affect of the order
to be appealed.
[391] From the foregoing it can be seen the intended purposes of the Court Rules Act, to observe "justice
and economy", are in conflict with the actual affect of the enactment or the Duty Master's order on
application to an indigent person deprived of his liberty. This creates two points significant to the
litigation before the trial court and the practice in general. One (1), the Duty Master's order acts to
effectively bar beyond reasonable limits the litigation rights of one party to the law suit, the plaintiff,
solely because of having been deprived of his liberty, in the case at Bar by the defendant, and having
no means to pay for a lawyer, and two (2), the enactment, has by omission, acts to indirectly
discriminate against all indigent persons deprived of their liberty by not providing any "practices and
procedures" to remedy the unintended, and extreme prejudicing of the litigation rights of the distinct
group affected by on application to them on a Master or Chambers Judge's administration of the court's
services.
[392] Their Lordships application of the impugned part of the Rules (Rule 41(16.5)(b)) of Court, and their
common practice of requiring a petitioner to appear before them or retain counsel to do so, proves itself
a form of indirect discrimination and unintended prejudice against this distinct group. Their Lordships
know, or should know, that the application of impugned part of the Rules, and the common practice, is
discriminatory and prejudicial in the extreme against the litigation rights of all indigent petitioners
deprived of their liberty.

3.3.1.1.C The Intended Appeal.


[393] It is believed, for the reasons stated above, that the Duty Master's order, the Chamber Judge
decision, and the impugned "practices and procedures" of the Court Rules Act, are respectively,
unreasonable, incorrect, discriminatory and finally invalid on their application to indigent persons
deprived of their liberty. To express the above in a context more in keeping with the legal language of
the court, the Speaker, at the risk of embarrassment, has struggled to formulate the following points:

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1. That the Duty Master erred in judgement on application of Rule 41(16.5)(b), Rules of
Court, Court Rules Act [RSBC 1996] c. 80 ("Act" or "Rules" or "Rule") to a person
deprived of his liberty on petitions for a declaration of indigence or other procedural or
Charter remedy. The Master's order, as made, was unreasonable in its affect as it acted
as an absolute bar to the petitioner right to judicial review or remedy.

2. Alternatively, the Master erred in judgement on failing or refusing to consider other


methods of judicial review available as a remedy to a person deprived of his liberty.
The Master had a duty to obverse a special standard of review and a constitutional
duty of procedural fairness and care on petition of an indigent person deprived of his
liberty. The course of the proceedings prove the Duty Master failed or refused to
observe the minimum standard and duty expected of him as an officer of the court to
secure a judicial review on petition of a person deprived of his self-determination. The
Master's order was impossible, it breached the minimum Charter guarantees of the
petitioner, exceeding the reasonable limits prescribed by the practices and procedures
enacted under law. The order appealed having a further unacceptable affect of
punishing the petitioner for having been deprived of his liberty and being to poor to
retain a lawyer.

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.

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6. In the further alternative, the Chambers Judge erred in holding a person deprived of his
liberty had no standing to bring a petition for judicial review of a Charter or other
constitutional question, either as a person aggrieved by the Duty Master's order, or as
one satisfying the test for public interest standing, the Charter applying to both the
order and the enactment. His Lordship's was wrong in deciding the Charter did not
apply to the order applied or to the impugned Rule 41(16.5)(b), Rules of Court, both
demonstrating the common practice and procedure of the court that precedes any
judicial review or remedy. It requiring a petitioner to appear, or retain a lawyer and
have his petitions spoken to. His Lordship knew, or should have known, that such a
practice acts to indirectly discriminate on its application to indigent persons deprived of
liberty, the procedure exceptional prejudicing the Charter and other legal rights of this
distinct group more than it might any other person.

2.Whether the appellant has an arguable case of sufficient merit

[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."

[Emphasis Added - Mine]

[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. A Constitutional Analysis of the Impugned Act - Affect on Indigent Prisoners;

2. The Right to Judicial Review

3. The Standard of Review Applied Applications;

4. The Master's Duty of Procedural Fairness

5. The Reasonableness of the Effect of the Duty Master's Order ;

6. The Correctness of the Chambers Judge's Decision;

7. The Legal Effect of the Order and Decision;

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8. The Question of Exceptional Prejudice

3.3.2.1.Constitutional Validity of Impugned Rules and Affect on Prisoners;


[397] 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? To answer this question the Speaker considered the following.

3.3.2.1.A Impugned - Practice and Procedures


The Court Rules Act [RSBC 1996] c. 80, Rules of Court.
[398] The intended appeal, to succeed, requires a finding in the affirmative that the impugned part of the
cited Court Rules Act that, by either an error or omission, has unintentionally or indirectly allowed a
practice and procedure that discriminates against a small and very distinct group of persons by
unreasonably limiting their access to the court's powers of judicial review and remedy in a civil process.
[399] Furthermore, for the intended appeal to succeed required a finding in the affirmative that the
Charter applies equally to any practice and procedure of the court under the cited Court Rules Act, as it
applies to the acts [order] of a Duty Master or Chambers Judge [decision] when advancing the
governmental regulatory scheme under the impugned enactment when administering of the courts of
law.
[400] For the purposes of this enquiry the terms, "impugned act ", "impugned rules", "Court Rules Act",
"Rules of Court" and "Rules" are to be used interchangeably, one with the other, [see: Interpretation Act
[RSBC 1996]c. 238, Expressions Defined - "Rules of Court", "when used in relation to a court, means
rules made under: (a) the Court Rules Act, or (b) under any other enactment that empowers the making
of rules governing practice and procedure in that court"] and deemed to mean the same enactment. The
Speaker has little information on the legislative history of this act or the Rules of Court, however what
can be adduced from the impugned act itself are the following.

1. Analysis of Enactment.

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[401] The Court Rules Act exists to allow the Lieutenant Governor of British Columbia to provide practice
and procedure directions on how proceedings before the provincial courts ought to be conducted for just
and economic results. Section 1 reads:

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:

"(a) practice and procedure in each of those courts;

"(b) the means by which particular facts may be proved and the
mode by which evidence may be given;

"(b.1) appearances and applications by telephone or other


means of telecommunication before each of those courts;

"(b.2) ….

[Emphasis Added - Mine]

[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.

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[405] The present enquiry concerns a derogation of the fundamental rights in a civil law suit of indigent
persons deprived of their liberty, the Charter analysis or constitutional question is premised on those
guarantees found under the ambit of s. 1, s. 15(1) of the Charter.
[406] The right to apply the Charter to the present enquiry before the Appeal Court begins with s. 24(1) of
the Charter, and s. 8 of the Constitutional Questions Act [RSBC 1996] c. 68. These read as follows:

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."

Section 15(1) provides:

"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 24(1) provides:

"24. (1) Anyone whose rights or freedoms, as guaranteed by this


Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.

Constitutional Questions Act

"Section .8 provides:

"Notice of questions of validity or applicability

"8 (1) In this section:

"constitutional remedy" means a remedy under section 24(1) of the


Canadian Charter of Rights and Freedoms other than a remedy
consisting of the exclusion of evidence or consequential on such
exclusion;

"law" includes an enactment and an enactment within the meaning of


the Interpretation Act (Canada).

"(2) If in a cause, matter or other proceeding (

"a) the constitutional validity or constitutional applicability of any


law is challenged, or

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"(b) an application is made for a constitutional remedy, the law
must not be held to be invalid or inapplicable and the remedy
must not be granted until after notice of the challenge or
application has been served on the Attorney General of Canada
and the Attorney General of British Columbia in accordance with
this section.

[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.

3.3.2.1.B Does the Charter Apply - Analysis?


1. To the Court Rules Act, Rules of Court - Practice and Procedure.
[408] There is little doubt in the Speaker's mind that the Charter applies to the impugned enactment. It is
governmental in nature, therefore so are the Rules of Court, as are the impugned "practice and
procedure" having the role of advancing the governmental regulatory scheme. It is maintained that
Charter considerations must arise when the regulatory provisions of an act or law impact on persons
beyond the ambit of the legislation's intent. The impugned provision of the Rules of Court are "law"
according to the Court Rules Act and must fall under Charter scrutiny by reason of being the product of
action by a government or an emanation of government. All appear to be subject to Charter analysis.
[409] Applying the Charter to an enactment is confirmed explained by Mr. Peter W. Hogg, in his
Constitutional Law of Canada, vol. 1 (Toronto: Carswell, 1992) on discussing where application of the
Charter was appropriate, at 34-11 he wrote:

"... 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."

2. To an Order or Decision of a Master or Chambers Judge.

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[410] The Charter appears to also apply to any judicial order, or decision that enforces the governmental
regulatory scheme. In the present enquiry the Charter is applied to a judicial order and decision limiting
the quantitative means of a party to accessing their right of judicial review and remedy. Application of
the Charter to an order or decision of a Duty Master of Chambers Judge appears reasonable due to the
direct, and indirect, public dimension of their roles when carrying out the government's scheme of
regulations for administrating the courts of law, at once engaging the coercive judicial powers of the
court and advancing the regulatory scheme of the government.
[411] The Speaker's right to apply the Charter to the order or decision of a Master or Chambers Judge as
is intended to be appealed, is derived from their power to exercise coercion on the individual, as
Professor Hogg identifies, it is this power of coercion that provides the source for application of the
Charter, (p. 34-12):

"The Charter applies to the exercise of statutory authority regardless of


whether the actor is part of the government or is controlled by the
government. It is the exertion of a power of compulsion granted by statute
that causes the Charter to apply."

[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

"1 In this Act:

"decision" includes a determination or order;

"statutory power of decision" means a power or right conferred by an


enactment to make a decision deciding or prescribing

"(a) the legal rights, powers, privileges, immunities, duties or liabilities


of a person, or

"(b)….

"and includes the powers of the Provincial Court;

"statutory power" means a power or right conferred by an enactment

"(a) to make a regulation, rule, bylaw or order,

"(b) to exercise a statutory power of decision,

"(c) to require a person to do or to refrain from doing an act or


thing that, but for that requirement, the person would not be
required by law to do or to refrain from doing,

"(d)….

"(e) to make an investigation or inquiry into a person's legal right,


power, privilege, immunity, duty or liability;

[Emphasis Added - Mine]

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[413] What is of significance to the present enquiry is the statutory power granted a [Duty] Master to, by
coercion, "1(c) to require a person to do or to refrain from doing an act or thing that, but for the
requirement, the person would not be required by law to do or to refrain from doing," having derived his
authority under a statue enacted by the provincial legislature, the Supreme Court Act [RSBC 1996] c.
443 as follows:

"Definitions

"Masters

"11 (1) On the recommendation of the Attorney General after


consultation with the Chief Justice, the Lieutenant Governor in Council may
appoint one or more masters of the court.

"(7) A master has, subject to the limitations of section 96 of the


Constitution Act, 1867, the same jurisdiction under any enactment or
the Rules of Court as a judge in chambers unless, in respect of any
matter, the Chief Justice has given a direction that a master is not to
exercise that jurisdiction.

[Emphasis Added - Mine]

[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.

2.A The Duty Master's Order

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[417] In Part 1: Statement of facts, the Speaker can be seen during the course of the proceedings to
have filed, as plaintiff, a number of requests for desk, and other interlocutory orders. All petitions being
later referred by the Registrar to a Master.
[418] On or about April 18th 2001 a notice of the Duty Master's order was provided by the Registrar in
care of the father of the Speaker, Mr. Robert Kap, reading as follows:

"April 18th, 2001

"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.

2.B The Chambers Judge Decision

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[421] On first opportunity from prison, May 28th 2001, the Speaker appealed the Duty Master's order,
applying to Judge of the court under s. 24(1) of the Charter. The appellant (the Speaker) applied the
Charter to the Master's order, asking a Judge of the trial court for judicial relief from the order's coercive
nature, it having placed an unreasonable reverse onus on a petitioner deprived of his liberty and living
in poverty.
[422] The petitioner requested judicial review and direction on how the his petitions might be "spoken to"
from prison. Among a number of points raised on appeal to the Chambers Judge the following four are
believed significant for the purposes of this analysis.

Starting at the third paragraph of the appeal:

"Judicial direction is sought from His Honour as to the practical matter of


how best might the Charter rights of the Plaintiff be guaranteed."

Among the points for review:

"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:

"April 18th, 2001

"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.

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"As I stated in previous correspondence, one of the following agencies may
be able to assist you in this matter. [List of legal aid agencies follows]"

[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:

"Powers to judges and court officers

"19 (1) If by an enactment judicial or quasi judicial powers are given to


a judge or officer of a court, the judge or officer in exercising the powers
does so in his or her official capacity and representing the court.

"(2)….

"Application of definitions in Supreme Court Act to other enactments

"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.

[Emphasis Added - Mine]

[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:

" Rule 41 – Orders

"Disposition of referred applications

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(16.5) If an application is referred by the registrar to a judge or
master under subrule (16.2) or (16.4), the judge or master to whom the
application is referred may

(a) make the order, or

(b) direct that the application be spoken to.

[en. B.C. Reg. 161/98, s. 12 (c).]

(17) Repealed. [B.C. Reg. 174/95, s. 4.]

3. To Rule 41

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[431] The rule seems to pertain to the practice for the settlement of orders, the procedure under the Rule
is usually for counsel or the lay litigant, seeking to settle an order, take out an appointment before the
registrar and serve opposing counsel if required.
[432] Apparently sub-rule (16.5) [Rule 41] is applied on after a request to the Registrar for a desk order. If
the registrar is unable to make a determination, the registrar will not attempt interpreting the petitions
but will rather refer the matter back to the judge or master who can make such a determination [See
Abbott v. Andrews (1882), 8 Q.B.D. 648; Avery & Son v. Parks (1917), 35 D.L.R. 71 (Ont. C.A.)]. For the
purposes of this enquiry it appears to matter little that the procedure of a Master or Chambers Judge
process was not initiated by an appointment as required under Rule 41.
[433] The Rule appears to be completely discretionary, and a reasonable requirement of fairness and
economy in the administration of the courts resources of time and money. For the purposes of the
present enquiry it is agreed that it would be unreasonable for any party to a proceeding to require or to
expect a Master or Chambers Judge of the trial court to take a decision on often unclear, sometimes
legitimately complex, lay applications where a petitioner is unprepared to appear and explain his or her
case in court. The provisions of Rule 41 appear to have a noble intent of prohibiting a practice that
could readily lead to abuse by lay litigants filing numerous petitions to be processed where the
petitioners are unprepared or unwilling to appear. Here, the discretionary "practice and procedure" of
Rule 41 appear an effective and proper means to ensure to members of the public that the their court's
resources are only applied to those cases where the parties are prepared to appear to prosecute or
defend their legitimate interests. There exists no doubt or controversy that the discretionary powers and
practice under Rule 41(16.5)(b), to require a party appear, is a reasonable limitation on the right of
judicial review of a petitioners applications.
[434] Argument
[435] However, on a Master or Chambers Judge applying his coercive powers of limitation under the
Court Rules Act, without making any distinction between a person physically handicapped or, as in the
present case at bar a person deprived of his liberty and indigent, and a person physically able and at
liberty, does thereby indirectly discriminate and prejudice the legal interests of a distinct and clearly
disadvantaged person or group.
[436] The Charter must apply when determining the reasonableness of such "practices and procedures"
under the Court Rules Act, and the coercive measures ordered by a Master or Chambers Judge to
enforce it.
[437]
[438] The outstanding question the Speaker is attempting to resolve here turns on one point and one
alone, that is the Master's absolute prohibition against applications to be "spoken to" in any other form
except in proprio persona of the petitioner or a lawyer before the court. This is absolute, the impugned
enactment providing no provisions for exception of persons deprived of their liberty and having no
financial resources to retain an attorney.
[439] In the Duty Master's order, or the later decisions rendered and the subject of this enquiry, nowhere
is the rationale provided for the applying Rule 41(16.5) to an incarcerated and indigent applicant.
[440]
[441] Little more discussion seems necessary to reach a conclusion that the Duty Master, in the case at
bar, acted administratively, and not judicially, exercising the statutory powers granted to him under the
Supreme Court Act to issue an "order" as a part of his quasi-judicial role in administering the courts
processes. The "order" apparently is only to enforce this administrative "practice" of the courts, and to
require a petitioner present his applications, in proprio persona, before the court. Apparently, the
"procedure" does not require a Master to judicially review the facts or law relied on by the petitioner.
That said, another question then arises, did the petitioner have a right to have his applications judicially
reviewed?

3.3.2.2.Availability of Judicial Review.

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[442] To answer this question the Speaker turned to the Judicial Review Procedure Act [RSBC 1996] c.
241:

"Definitions

"1 In this Act:

"application for judicial review" means an application under section 2;

Application for judicial review

"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:

"(a) relief in the nature of mandamus, prohibition or certiorari;

"(b) a declaration or injunction, or both, in relation to the


exercise, refusal to exercise, or proposed or purported exercise,
of a statutory power.

"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.

"Power to set aside decision

"7 If an applicant is entitled to a declaration that a decision made in the


exercise of a statutory power of decision is unauthorized or otherwise
invalid, the court may set aside the decision instead of making a declaration.

"Defects in form, technical irregularities

"9(1) On application for judicial review of a statutory power of decision, may


refuse relief if

"(a) the sole ground for relief established is a defect in form or a


technical irregularity, and

"(b) the court finds no substantial wrong or miscarriage of


justice occurred.

"(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.

"No time limit for applications

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"11 An application for judicial review is not barred by passage of time unless

"(a) an enactment otherwise provides, and

"(b) the court considers that substantial prejudice or hardship will result
to any other person affected by reason of delay.

"Summary disposition of proceedings

"13 (1) On the application of a party to a proceeding for a declaration or


injunction, the court may direct that any issue about the exercise, refusal to
exercise or proposed or purported exercise of a statutory power be disposed
of summarily, as if it were an application for judicial review.

"(2) Subsection (1) applies whether or not the proceeding for a


declaration or injunction includes a claim for other relief.

"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.

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[447] The Speaker hopes to persuade the Court of Appeal to disagree with the conclusion of His Lordship
Edwards, J., finding it to have been an error in judgement to have allowed, as a condition to judicial
review hearing, the requirement that an indigent prisoner either appear before the court or hire a lawyer
to do so, His Lordship wrongly holding that a Rule 53(6), Rules of Court, application and an s. 24(1)
Charter complaint are not open to judicial review under the Rules of Court if persons are unable to
appear or retain an attorney solely on account of imprisonment and indigence.
[448] The Speaker reasons that a person deprived of liberty makes his or her application for judicial relief
as an attempt to speak in a prosopopoeia form to the court. The government does not afford prisoners
any other practical possibility. Ergo the legal effect of the Master's order was unreasonable since it
asked the impossible, therefore the Chambers Judge judgement was in error, the order and decision
denied the Speaker, a prisoner, a Charter guaranteed right to prosecute or obligation to defendant his
interests in a law suit before the trial court.
[449] It is not disputed by the Speaker that under any other circumstances the application by a Master of
Rule 41(16.5)(b), as cited below, to any other citizen would be reasonable and the judgement of a
Chambers Judge under Rule 53, also cited below, a correct one. By its nature such an order or
judgement is eminently reasonable and just when the effected party retains his or her right of self
determination. It is this "inherent reasonableness" that makes any such administrative or quasi judicial
decision so ill suited to challenge by the affected party or judicial review by the appellate court.
[450] It was instructive to the Speaker to read the learned L'Heureux-Dubé, J., in R. v. Power (E.) ,
[1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, at 15
[C.C.C.], from where it appears that prosecutorial discretion also "is especially ill- suited to judicial
review". The finding in Osiowy v. Linn, P.C.J. (1989), 77 Sask.R. 1; 50 C.C.C.(3d) 189 (C.A.), and the
Saskatchewan Court of Appeal that the discretion of the Attorney General to stay a private prosecution
is not reviewable "in the absence of some flagrant impropriety on the part of the Crown officers" (per
Vancise, J.A., at 191 [C.C.C.]). This case law leads the Speaker to reason that the discretion exercised
by the Duty Master under the impugned Rule 41(16.5)(b)) is in many ways analogous to the
prosecutorial discretion found in the criminal process, and to be especially ill suited to appellate review.
The language under which the Duty Master made his decision required the Master only make a choice
between making an order (Rule 41(16.5)(a)) on the application or requiring the application "spoken to"
(Rule 41(16.5)(b)) in proprio person of the applicant. This requirement is applied to all persons at the
discretion of the Master. However, equal application does not guarantee equal results on application to
all circumstances, and on application to prisoners the effect of application defeats the intent of the
legislation, practical limitations of prisoner demand that a prisoner to first prosopopoeia before the court.
[451] The Duty Master's order in effect terminated any further possible prosecution or defence of the law
suit by the Speaker before the trial court. The Chamber Judge had already made the same
determination.
[452] Judicial Review
[453] The availability of judicial review on the reasonableness of the Master's order is by appeal and set
out in Rule 53 as follows:

"Appeal from master, registrar or special referee

"(6) A person affected by an order or decision of a master, registrar or


special referee may appeal the order or the decision to the court."

"Idem

"(7)…..

"Notice

"(8) Unless otherwise ordered, there shall be at least 2 days between the
service of the notice and the hearing."

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[Emphasis Added - Mine]

[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):

"He recognizes that statutory interpretation cannot be founded on the


wording of the legislation alone. At p. 87 he states:

'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."

[455] The Supreme Court of Canada in Nicholson v. Haldimand-Norfolk Regional Board of


Commissioners of Police and Ontario (Attorney General) , [1979] 1 S.C.R. 311; 23 N.R. 410 and
Martineau v. Matsqui Institution Disciplinary Board , [1980] 1 S.C.R. 602; 30 N.R. 119, held that judicial
review is available with respect to any decision affecting rights, liberties, privileges, or property,
irrespective of its classification as an administrative or quasi- judicial function: see Knight v. Board of
Education of Indian Head School Division No. 19 , [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81 and
Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817; 243 N.R. 22. The
Speaker had a right to a judicial review of his applications conducted according to circumstances of his
imprisonment.
[456] In Rizzo & Rizzo Shoes Ltd. supra, the learned Iacobucci, J found, as the Speaker is attempting to
enunciate here, cannot be interpreted "on the wording of the legislation alone" as found in the rules the
Chamber Judge refused the Speaker a judicial review of his appeal from the Master's unreasonable
order. In Nicholson supra, and Knight supra, the Supreme Court of Canada held that "judicial review is
available with respect to any decision affecting rights, liberties, privileges, or property, irrespective of its
classification as an administrative or quasi- judicial function". The Master order and application of the
said Rule 41(16.5)(b) to the Speaker was a quasi-judicial decision. It acted to deter, in fact to absolutely
deny, a prisoner, this Speaker, from the availability of his right to judicial review of applications or
complaints.
[457] What is of significance to the present constitutional enquiry, and to the practice generally, is that
there is the appearance, if not intent, of the impugned Rules, to systematically deny judicial review to a
prisoners' petitions before the trial courts in a civil proceeding. This deterrence appears legislated into
the Rules of Court as an effect of the previously discussed administrative or quasi-judicial practice of
the trial court found under Rule 41(16.5)(b) and Rule 53, Rules of Court, when read with Rule 52 (12.1)
the effect of these :

"Orders without notice

"(12.1) If the nature of the application or the circumstances render


service of a petition or notice of motion impracticable or unnecessary,
in the case of urgency, the court may make an order without notice."

[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.

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[459] To challenge the impugned enactment and provision of the Rules there appears only one possible
ground for the Speaker to claim standing to a petition for judicial review under the circumstances, that
as a private party having status to challenge the Rules because it is "exceptionally prejudiced" by their
application [Smith v. Ontario (AG), supra at 337]. The impugned Rules do affect prisoners more than
any other citizen, certainly to the exceptional degree necessary for standing. The Speaker maintains
that the Court has a discretion to decide a point of public importance which has been fully argued
despite a questionable standing: Smith at 338 as cited in Professional Institute of the Public Service of
Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 per Sopinka J. at 400.
[460] [15] Accepting that to be so, I do consider this to be an instance where the court should consider
discretion to be exercised because the Speaker, who is imprisoned abroad, may not have the standing
needed in the province to bring a constitutional question, the Courts granting discretionary public
interest standing only where no other private litigant could step forward to challenge the law: Minister of
Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575; Canadian Council of Churches v. Canada (Minister
of Employment and Immigration), [1992] 1 S.C.R. 236. Here, the Speaker in principle should have
standing, as a practical matter he is prevented from being able and better placed to challenge the Rules
and have done so.
[461] If the foresaid is true, and there is much to suggest that it is, then the Charter applies, and further
analysis and argument must now proceed to the other Charter questions. All enquiry now turning on
whether or not the prescribed limits on individual rights - s. 15(1) - that form a part of the "practices and
procedures" of the Court Rules Act and the "government's objective" of the court's operating cost and
speed, are reasonable - s. 1 - in a free and democratic society. A principle argument of the Speaker is
that speedy and cost effective dispensation of justice is not always a fair and equal application of justice
to persons having lost their self-determination.

3.3.2.4.Does the Impugned Act (Rules) Offend Section 15(1)?


[462] In considering this question the Speaker relied on the general proposition the Charter is a
purposive document, to be granted a "large and liberal interpretation", see: Hunter v. Southam, [1984] 2
S.C.R. 145 at 156-57; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at 766-67, and that the
Courts should extend the benefit of Charter rights in a generous and wide manner. Using the words of
Dickson C.J.C. in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344:

"The interpretation should be, as the judgment in Southam emphasizes, a


generous rather than a legalistic one, aimed at fulfilling the purpose of the
guarantee and securing for individuals the full benefit of the Charter's
protection."

[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.

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[467] The Speaker recognises that the Act, and the impugned part of Rule 41, Rules of Court, do not
prohibit the civil activity of indigent prisoners to prosecute their law suits per se. It is reasoned by the
writer that the impugned rules were promulgated in the interests of justice and as a public service to
prohibit abuses of the courts resources. The Registrar, Duty Master and Chambers Judge having a
statutory duty to regulate such resources and balance them with the interests of the public and those of
equal and fair justice.
[468] However, according to this Speaker, the Rules as a whole fail to recognise or provide for the
afflictive character of imprisonment on such civil activity as fully prosecuting a law suit from a prison
cell. And that this failure, or the appearance of such, creates a conflict, or the appearance of a conflict,
of interest, between the requirements of the "government's objective of cost effective and expeditious
administration of judicial proceedings and other processes of the courts in the name of the well-being of
the public" and the courts duty to a standard of review, procedural fairness and reasonableness in its
conduct of a law suit brought by an indigent prisoner.
[469] The Speaker's argument is that the derogation of a person's fundamental rights under natural
justice are not the same as prohibiting an abuse of the courts resources. Neither in purpose or effect are
the Rules of Court to be allowed to derogate from such fundamental rights. However, the Speaker would
say that the Duty Master's application of Rule 41(16.5)(b) to indigent prisoners amounts to more than a
prohibition against abuses of the courts resources, and the courts practice of doing so is not in keeping
with the Charter standard of equality under s. 15(1) i.e., the Rules are not aimed at prohibiting the civil
activity of prisoners in prosecuting their law suits, however it in fact appears that the Rules do so.
[470] The Speaker believes the analytical framework to apply where a violation of s. 15 of the Charter as
he has alleged is set out in Law v. Minister of Employment and Immigration , [1999] 1 S.C.R. 497; 236
N.R. 1; 170 D.L.R.(4th) 1, at para. 88. In evaluating a claim of discrimination under s. 15(1) a court
should make and answer three broad inquiries as follows:

"(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:

"(B) Is the claimant subject to differential treatment based on one or more


enumerated and analogous grounds?

and

"(C) Does the differential treatment discriminate, by imposing a burden upon


or withholding a benefit from the claimant in a manner which reflects the
stereotypical application of presumed group or personal characteristics, or
which otherwise has the effect of perpetuating or promoting the view that the
individual is less capable or worthy of recognition or value as a human being
or as a member of Canadian society, equally deserving of concern, respect,
and consideration?"

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[472] To both inquires the Speaker again answers "YES", (b) indigent prisoners are treated as persona
non grata as a result of their having been deprived of their self-determination by the state and due to
their poverty status, each prisoner subjected to differential treatment by court while pursuing his civil or
property rights before the courts, and (c) the impugned, Rules either by omission or effect, are
withholding from indigent prisoners their equal right to be heard and apply the law to their claims or the
equal possibility to derive benefit from the law of judicial review and procedural fairness in pursuit of a
remedy for their complaints or the procedural possibility to place such claims as they might prove before
the trier of the facts.
[473] Events during the course of the proceedings show that the Speaker has on the face of the facts
demonstrated that the treatment he is experiencing, as most likely others in similar circumstances would
have experienced, fall within this analysis. The procedures any indigent prisoner, including the Speaker,
is subject to by virtue of the application of the impugned part of the Rules are different than those
applicable to other citizens who are at liberty or prisoners who have financial resources. It is argued that
the facts demonstrate the effect of impugned Rules is based on one or more of the grounds enumerated
in s. 15 or on analogous grounds. The threshold requirement to engage s. 15 of the Charter has
therefore been met in this case.
[474] The Speaker has maintained the impugned Rules failed to take into account the practical
prohibitions of incarcerated and indigent parties to a party in a civil proceeding. The Speaker argues that
the provisions of Rule 41 were promulgated to provide the court and litigants with a set of provisions to
address different circumstances as they arose, and not prohibit incarcerated and indigent citizens from
prosecuting their civil complaints or bringing Charter applications. Furthermore the Master or Chambers
Judge has a statutory duty to regulate from practising real or perceived discrimination against a party
placed at a legal disability by government. According to the Speaker the impugned Rules fail to
recognise that some types of circumstance may create a conflict, or the appearance of a conflict, of
interest, between the principles of equal justice and the economic and efficient dispensing of civil
proceedings, and has the effect, if not the purpose, of creating a prohibition against a small group of
citizens in participating in the processes of the court.
[475] The Speaker's explanation or reasoning may not be as clear it could be, but there can be no doubt
as to the effect of applying Rule 41(16.5)(b) to a prisoner. It ultimately prohibits an indigent prisoner
from exercising or even applying for available procedural remedies in his law suit or other forms of
judicial relief remedy as is made available to the other parties to the law suit who are able to comply
with the impugned rule. It is for this reason the Speaker has concluded that the impugned Rules offend
s. 15(1) of the Charter. They have the effect, if not the purpose, of prohibiting indigent prisoners from
the exercise of civil activities, the rights to bring and to defend in a law suit, that fall within the scope of
the freedoms enshrined in that section of the Charter and not limited by a persons property status or that
of a person as a prisoner.
[476] As audacious as such a conclusion sounds when coming from an untrained lay litigant, it is one
that nonetheless appears, at least on the surface and to the untrained eye, to be a conclusion that would
flow naturally when applying to the present facts the relevant national and international law and
recognised principles of fair and equal justice.
[477] It appears, at least to this simple Speaker, that there are several fundamental questions of law that
he would tender as follows:
[478] Do incarcerated and indigent citizens of Canada constitute a separate and distinct minority in
Canadians society?
[479] If the answer to such a question is "Yes", then does a constitutional question arise when it becomes
apparent on the face of the facts that a particular practice of the court, a rule of court or other enactment
of Canada, is so broad and wide sweeping, or in the alternative so limiting, that it results, as a practical
matter, in the indirect and unintended discrimination by the government against this particular minority's
fundamental rights to equality before and under the law, and to equal protection and benefit from the
law? The restriction or reduction of these rights solely arising on the basis of the minority status of these
Canadians as incarcerated and indigent persons.

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[480] It has been the position of the Speaker that the scheme of the impugned Rules and practice is
procedurally flawed so that on its applications to prisoners it is manifestly unfair in substance and
offends against Section 15(1) of the Charter. That although the criterion of the impugned Rules is the
same to all potential litigants the undesignated group of indigent prisoners protected by the Charter are
unfairly effected, this constituted constructive or adverse effect discrimination.
[481] The Speaker, before proceeding to the s. 1 Charter question, as the Honourable Court recall the
September 9, 1999, reason released by the Supreme Court of Canada in Public Service Employee
Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union , [1999] 3
S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161 ( MEIORIN). Madam Justice, McLachlin, J.
(for the full court), in her reasons did once and for all abolished distinctions between "direct" and
"indirect" discrimination. Again on December 16, 1999, the Supreme Court of Canada released its
decision in Superintendent of Motor Vehicles (B.C.) v. Council of Human Rights ( B.C.) , [1999] 3 S.C.R.
868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280 ( Grismer). McLachlin, J. (for an unanimous 7
judge court), enunciate that [at p. 880, quote unverified by the speaker]:

"Meiorin announced a unified approach to adjudicating discrimination claims


under human rights legislation. The distinction between direct and indirect
discrimination has been erased. Employers and others governed by human
rights legislation are now required in all cases to accommodate the
characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for
those who cannot meet them. Incorporating accommodation into the
standard itself ensures that each person is assessed according to her or his
own personal abilities, instead of being judged against presumed group
characteristics. Such characteristics are frequently based on bias and
historical prejudice and cannot form the basis of reasonably necessary
standards. While the Meiorin test was developed in the employment context,
it applies to all claims for discrimination under the B.C. Human Rights
Code."

"Once the plaintiff establishes that the standard is prima facie discriminatory,
the onus shifts to the defendant to prove on a balance of probabilities that
the discriminatory standard is a BFOR [a bona fide occupational
requirement] or has a bona fide and reasonable justification. In order to
establish this justification, the defendant must prove that:

"(1) it adopted the standard for a purpose or goal that is rationally connected
to the function being performed;

"(2) it adopted the standard in good faith, in the belief that it is necessary for
the fulfillment of the purpose or goal; and

"(3) the standard is reasonably necessary to accomplish its purpose or goal,


in the sense that the defendant cannot accommodate persons with the
characteristics of the claimant without incurring undue hardship." [See also:
Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18
(C.A.).]

[Emphasis and [ ] Added - Mine]

[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.

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[483] It is for these reasons the Speaker suggests this first factor: Whether the point on appeal is
significant both to the litigation before the trial court and to the practice in general can be disposed of by
relying on the previously cited Smith v. Ontario (AG) supra. The intended point advances to the Court of
Appeal a theory that the Speaker is a member of a small group of incarcerated and impoverished
Canadian citizens that are "exceptionally prejudiced", more than any other citizen, in the application of
the impugned Rule 41(16.5)(b), Rules of the Court.

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:

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"In my view, both purpose and effect are relevant in determining
constitutionality; either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation. All legislation is animated by an object the
legislature intends to achieve. This object is realized through the impact
produced by the operation and application of the legislation. Purpose and
effect respectively, in the sense of the legislation's object and its ultimate
impact, are clearly linked, if not indivisible. Intended and actual effects have
often been looked to for guidance in assessing the legislation's object and
thus, its validity.

[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:

"For the sake of clarity, I would prefer to reserve the term


"vagueness" for the most serious degree of vagueness, where a law is so
vague as not to constitute a "limit prescribed by law" under s.1."

and at 632:

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"As was said by this Court in Osborne and Butler, the threshold for
finding a law vague is relatively high. So far discussion of the content of the
notion has evolved around intelligibility."

Again at 627 the factors to be considered in determining whether a law is


vague:

"(a) the need for flexibility and the interpretative role of the courts;

"(b) the impossibility of achieving absolute certainty, a standard of


intelligibility being more appropriate; and

"(c) the possibility that many varying judicial interpretations of a


given disposition may exist and perhaps coexist.

[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:

"Vagueness must be assessed within a larger interpretive context developed


through an analysis of considerations such as the purpose, subject matter
and nature of the impugned provision, societal values, related legislative
provisions, and prior judicial interpretations of the provision.'

[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:

"Overbreadth and vagueness are different concepts, but are sometimes


related in particular cases. As the Ontario Court of Appeal observed in R. v.
Zundel (1987), 58 O.R. (2d) 129, at pp.157-58, cited with approval by
Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, supra, the meaning
of a law may be unambiguous and thus the law will not be vague; however, it
may still be overly broad. Where a law is vague, it may also be overly broad,
to the extent that the ambit of its application is difficult to define.
Overbreadth and vagueness are related in that both are the result of a lack
of sufficient precision by a legislature in the means used to accomplish an
objective. In the case of vagueness, the means are not clearly defined. In
the case of overbreadth the means are too sweeping in relation to the
objective."

[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

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[499] Another argument is overbreath and this comes down to a concern by the Speaker that at any time
a person is deprived of his or her liberty by way of judicial order or sentence, he or she, following the
loss their liberty, does not under any provision of the impugned Rules or other enactment retain those
procedural possibilities or civil liberties available to other citizens, such as the right to represent oneself
in a law suit or to prosecute ones civil claims or complaints before a Master or Judge, the impugned
Rules, as law, are so over broad as to omit procedures for indigent prisoners to have a means to comply
with that law, and are unable to regain their civil liberties to sue or respond in a law suit or other
procedural rights before the court until regaining their liberty or a Master or Chambers Judge reached
the opinion in proprio motu that a prisoner is a significant party to his or her own law suit to be order
summoned under provision of Rule 40(40), Rules of Court as a witness to the proceedings.
[500] At the risk of being redundant this is truth and heart of the present inquiry, prisoners who bring law
suits, whether they may or may not have a reasonable claim or possibility for their law suit to succeed
before the trier of the facts, are nonetheless absolutely prevented from pursuing or responding to any
such claim before the courts, notwithstanding the merits. This process of deterrence of prisoners in
prosecuting civil law suits appears to be predicated on the assumption that all "applications be spoken
to" only in the person of the prisoner or a lawyer, otherwise not at all or until such time a Duty Master or
Chambers Judge decides otherwise.
[501] Any overbreadth analysis must look at the means in relation to its purpose. Are the methods
chosen necessary to achieve a state's objective? Here the Duty Master, and it can be said the "State",
pursued a legitimate objective under the impugned Rules. However, its is the State that has allowed the
impugned provisions of Rule 41(16.5)(b) to be much to broadly applied to all members of society, far
more than what is necessary or even possible to accomplish the objective of the Rules as previously
mentioned. This overbreath effects individuals, even groups, in different ways, and results in the case of
indigent prisoners in the principles of fundamental justice being violated because the individual's rights
will have been limited for no reason. The effect of overbreadth is that in some applications the law is
arbitrary or, as is the case here, the effect is disproportionate.
[502] What is at issue in the enquire here is the balancing of the State interest against that of the
individual, see inter alia authorities: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R.
519, per Sopinka J., at pp.592-95; R. v. Jones, [1986] 2 S.C.R. 284, per La Forest J., at p.298; R. v.
Lyons, supra, per La Forest J., at pp.327-29; R. v. Beare, [1988] 2 S.C.R. 387, at pp.402-3; Thomson
Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices
Commission), [1990] 1 S.C.R. 425, at pp.538-39; and Cunningham v. Canada, [1993] 2 S.C.R. 143, at
pp.151-53. However, where an independent principle of fundamental justice is violated, as the right to
natural justice, then the balancing of the interests must take place under s.1 of the Charter, see as
authority: Re B.C. Motor Vehicle Act, supra, at p.517; R. v. Swain, [1991] 1 S.C.R. p.933, at p.977.
[503] The Speaker argues in the alternative that if s.1 could not justify such a violation on the basis of
the vagueness or overbreadth arguments, it could on the basis of onus. In Lavigne v. Ontario Public
Service Employees Union, [1991] 2 S.C.R. 211 at 292, Madam Justice Wilson said:

"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.

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[505] This deleterious effect on the Speaker or any person having the same status obviously far
outweighs any benefit that the courts or might society receive. In the Speaker's lay opinion a
reformulated positive test would, from his perspective as the effected party, could just as successfully
achieve the legislative objective.
[506] A question to the Court of Appeal might well be the amount of deference it should give to the
Rules. The court in Irwin Toy Ltd. v. Quebec (Attorney-General), [1989] 1 S.C.R. 927, appears to say
that the deference afforded to the State might vary if the competing interests are between individuals or
groups or, the state and an individual as it might be in an ordinary criminal law case were the deference
is generally greater [see: R.J.R. MacDonald v. Canada (Attorney-General), [1995] 3 S.C.R. 199 and in
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.]
[507] Rule 41(16.5)(b) imposes no greater as onus on the effected party except to "speak" to his or her
application. The Speaker has recognised this throughout his analysis and argument. What he argues is
this seemingly benign requirement of this provision creates the "effect" of a reverse onus on
presentation of this requirement to indigent prisoners who are physically (no liberty) or financially
disadvantaged, and unable to do more than furnish evidence or information as necessary in writing for a
judicial review, and the Master or Chambers Judge should be satisfied with this as the only affordable
possibility to the prisoner. The following from R. v. Lyons (1987), 37 C.C.C. (3d) 1 at p. 45, 44 D.L.R.
(4th) 193, [1987] 2 S.C.R. 309 is helpful: "It is also clear that the requirements of fundamental justice
are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain
procedural protections might be constitutionally mandated in one context but not in another."
[508] As has been discusses early imprisonment is a distinct and afflictive state. On application of the
impugned Rules this distinction imposes a disproportionate burden, obligation or disadvantage that is
not imposed upon others. In other words, as the Speaker has claimed previously it is discriminatory.
[509] According to the learned LaForest J. that is not the end of the matter. Writing in Egan, [1995] 2
S.C.R. 513 at p. 529:

"Not all distinctions resulting in disadvantage to a particular group will


constitute discrimination. It would bring the legitimate work of our legislative
bodies to a standstill if the courts were to question every distinction that had
a disadvantageous effect on an enumerated or analogous group. This would
open up a s. 1 inquiry in every case involving a protected group.

[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.

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[513] This, according to R. v. Oakes supra, requires that first the legislative objective must be
rationalized as being sufficiently pressing and substantial to justify the limitation imposed on the
freedom impaired. The second raises three questions aimed at a determination of whether the measures
chosen are proportional to the objective, those are :

Are the measures rationally connected to the objective;

Do the measures impair the freedom in question in the least drastic manner
necessary to achieve the objective; and,

Do the benefits derived outweigh the inherently deleterious effects of the


infringement on the enshrined freedom.

[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.

[Emphasis Added - Mine]

[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):

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"... care must be taken not to extend the notion of deference too far.
Deference must not be carried to the point of relieving the government of
the burden which the Charter places upon it of demonstrating that the limits
it has imposed on guaranteed rights are reasonable and justifiable.
Parliament has its role: to choose the appropriate response to social
problems within the limiting framework of the Constitution. But the courts
also have a role: to determine, objectively and impartially, whether
Parliament's choice falls within the limiting framework of the Constitution.
The courts are no more permitted to abdicate their responsibility than is
Parliament. To carry judicial deference to the point of accepting Parliament's
view simply on the basis that the problem is serious and the solution difficult,
would be to diminish the role of the courts in the constitutional process and
to weaken the structure of rights upon which our constitution and our nation
is founded."

[Emphasis Added - Mine]

[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

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[524] A legislating body will rarely fail to demonstrate that an impugned prohibition has a pressing and
substantial object., legislative assemblies even more rarely make rules that are prima facia irrational
and devoid of any sound objective. Big M Drug Mart, supra, where the legal imposition of Sunday as a
day of rest was abolished as contrary to the spirit of the Charter, appears the significant exception in the
case law.
[525] Even if the Speaker as a lay litigant cannot comprehend the full legislative history or legal rational
behind the impugned rules, he can at least see that Rule 41(16.5)(b) is rational. This criteria can
therefore be immediately disposed of in the affirmative, the rule in question has a rational intent
consistent with the Court Rules Act's statutory mandate. The Speaker accepts that the first of the two
criteria can be said to be satisfied.
[526] However, it is the argument of the Speaker that impugned Rule 41 falls far short of the second of
the two criteria on the evidence of its effect when applied to indigent prisoners. It is this which the Court
of Appeal is asked by the Speaker as petitioner to decide as a point which is unquestionably of very
great importance to the Speaker's litigation before the trial court, and the Speaker believes the practice
in general.

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):

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"Having found the requirement of minimum impairment is not satisfied it is
unnecessary to proceed to the final stage of the proportionality analysis
under s. 1 -- balancing the negative effects of the infringement of the rights
against the positive benefits associated with the legislative goal. A finding
that the law impairs the right more than required contradicts the assertion
that the infringement is proportionate."

[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.

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[540] The Speaker's position, and the point here, is that the Duty Master did not observe the principles of
fairness in the manner in which he conducted the proceedings and arrived at the decision to return all
the Speaker's applications. The task of the Chambers Judge, on appeal was, in the Speaker's opinion, in
fact twofold. First, His Lordship Edwards, J. had to determine whether judicial review was available in
the circumstances of an indigent prisoner unable to retain counsel when applying for, inter alia, a
remedy under s. 24(1) of the Charter. Second, if it was available, His Lordship had to determine whether
the Duty Master had owed a duty of procedural fairness to the Speaker and, if so, the content of that
duty and whether it had been observed.
[541] The learned L'Heureux-Dubé, J., when she considered the factors appropriate to determining the
content of the duty of procedural fairness in a given set of circumstances by an agency or tribunal, could
be applied, mutatis mutandis to the present case. At paras. 23 - 27 she referred to the following relevant
factors: (i) the nature of the decision; (ii) the nature of the statutory scheme and the terms of the statute
pursuant to which the body operates; (iii) the importance of the decision to the individual or individuals
affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choice of
procedure made, in this instance by the Duty Master or the court itself, particularly where the statute
leaves that choice upto the Master or Chambers Judge. She said at 840-841 [S.C.R.]:

"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.

4. Reasonableness of the Master Order.

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[545] The thesis advanced is that the impugned order is unreasonable under the circumstances of
imprisonment and poverty. It is therefore in principally wrong, for having as its immediate affect a quasi-
judicial or administrative deterrence to all men and women, as the Speaker, whose self-determination
has be taken from them by a person holding them prisoner. The Speaker is effectively excluded from
"participatory rights" in his own law suit, the impugned order acts as a barrier denying even the remotest
possibility to seek a procedural remedy as relief from the practical difficulties of a prisoner to bring his
legitimate claims before the trial court. This effect is solely the result of his status in society as an
indigent and imprisoned person. It is appears on the surface to be not an unreasonable proposition to
suggest that the impugned order, possibly the Court Rules Act [RSBC 1996] c. 80, Rules of Court, as
having unfair effect that limits incarcerated citizens from fully acting out their on right to sue, as well as
their right to defendant a when sued.
[546] The learned Iacobucci, J., in Director of Investigation and Research, Competition Act v. Southam
Inc. et al. , [1997] 1 S.C.R. 748; 209 N.R. 20, at para. 57 discussed reasonableness and explained the
difference between two standards the Speaker is applying to the present review and did so in the
following terms:

"The difference between 'unreasonable' and 'patently unreasonable' lies in


the immediacy or obviousness of the defect. If the defect is apparent on the
face of the tribunal's reasons, then the tribunal's decision is patently
unreasonable. But if it takes significant searching or testing to find the
defect, then the decision is unreasonable but not patently unreasonable."

[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.).

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[551] The Speaker can certainly sympathise with the frustration the Duty Master or any judicial officer
must feel in the face of applications made by lay litigants. To be required, in camera, to review and rule
on all such applications having once been filed with the Registrar is admittedly an inefficient use of time
for a Master or Chambers Judge, inevitably leading to delays in the hearing of applications having
greater qualitative merit. The Master's order to have such applications "spoken to" by the Speaker as
applicant is on the surface a reasonable one. This was discussed earlier.
[552] However, this type of judicial discretion is of the technical, non-substantial type which the Speaker
argues is outside the concept of the Court Rules Act and intent of the Rules to limit wasteful procedures.
It fails to deal with applications on their merits and becomes clearly unreasonable because of the
practical inability of any indigent prisoner to bring his applications before the Master and "spoken to",
even a motion under 24(1) of the Charter is as a result made impossible. In such cases it becomes
inevitable, where imprisonment acts as a physical deterrent, that such an order of the Master will
infringe a basic legal right.
[553] There was a burden on the Speaker as the Applicant/Prisoner to adduce evidence before the
Master to support his motions and requests for procedural relief, he met that burden. There was
adequate evidence put before the Master to allow him, acting judicially, to come to a conclusion that any
order requiring an indigent prisoner to appear before the Master or hire an attorney had to be a "patently
unreasonable" one.
[554] The Duty Master was inflexible, His Lordship exercise of a statutory discretion and as a matter of
law he may not fetter the exercise of that discretion by the adoption of an inflexible policy, see: Lloyd v.
Superintendent of Motor Vehicles (B.C.) (1971), 20 D.L.R.(3d) 181 (B.C.C.A.), Veysey v. Correctional
Service of Canada (1990), 109 N.R. 300; 43 Admin. L.R. 316 (F.C.A.), Kupczak v. Alberta et al. (1993),
146 A.R. 103; 13 Alta L.R.(3d) 284 (Q.B.) and Apotex Inc. v. Ontario (Minister of Health) et al. (1995), 77
O.A.C. 360; 30 Admin. L.R.(2d) 259 (Div. Ct.). The Speaker does not advance a thesis that the adoption
of a general policy that "applications be spoken to" in proprio persona of the applicant or his lawyer
equates with the adoption of an inflexible policy, only that it is essential is that each case be considered
individually on its own merits. The case presently before the Court of Appeal is demonstrative or an
"inflexible" as opposed to "general" policy.

4.1.1.1.Duty Of Procedural Fairness


[555] Although called an "appeal from Master", the right conferred on the Speaker by under Rule 53(6) is
no more than a right to have the administrative or quasi-judicial decisions of the Duty Master under Rule
41(16.5)(b) reviewed by a Chambers Judge. It is, in the Speaker's view, simply an extension of the
administrative or quasi-judicial processes of the court. In such a case the Rules do not expressly or
impliedly require a formal or even an informal hearing. A complainant who elects to seek a judge's
review of such a decision by the Duty Master is apparently not permitted a judicial review or to submit
additional written or oral material by way of written explanation or elaboration of his appeal. It proves,
from the Chambers Judge's decision in the case before the bar, that an indigent prisoner as complainant
is not entitled at this stage to seek any alternative procedural relief in bringing his motions, he is
required to either bring his applications for relief before the court or is to be represented by counsel or is
subject to a general stay on all his motions until he appears before a Master or Judge in order to
substantiate the applications or complaint. Nor is a complainant, here the Speaker, entitled to reasons
for the Chambers Judge decision to confirm the determination of the Duty Master.

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[556] Before the motions judge, the Speaker had submitted on appeal that the Master order under Rule
14(16.5)(b) cannot operate to bar indigent prisoners, like the Speaker, from exercising his right of to
prosecute a law suit to the fullest extent of the law or to bring other complaints or secure judicial
remedies from the trial court, since it offended s. 15 of the Canadian Charter of Rights and Freedoms by
depriving indigent prisoners from judicial recourse against the offending parties; among other remedies
sought by the Speaker, a request that he be conducted in custody before the court by the defendant
government, in the alternative that he be allowed to proceed on his applications and motions only in
writing before the trial court, the court requiring the defendant government allow the Speaker the
facilities he needed in prison and consent to the additional time required by a prisoner to organise his
submissions of argument and evidence, and the motions judge to hold that the Duty Master's order
under Rule 14(16.5)(b) to be of no force and effect with respect to indigent prisoners, this Speaker,
because it would breach a persons equality rights solely for being indigent and in prison.
[557] The motions judge did not deliver to the Speaker any careful or comprehensive reasons for
refusing to review his motions or the Charter grounds of the appeal, this despite the Speaker's reliance
as a prisoner on a judicial remedy under s. 24(1) of the Charter, apparently the motions judge not
required by the Rules to do so when taking a decision to uphold the order of the Duty Master that all the
Speakers applications or motions be spoken or alternatively be stayed.
[558] The Speaker had understood that such a decision of His Lordship Edwards, J. is a discretionary
one, and the Court of Appeal will not substitute its opinion for that of the Chambers Judge unless it can
be shown that he was clearly wrong [see: Morrison v. Bank of Montreal (1985), 69 B.C.L.R. 54 (C.A.)].
The Speaker believes it to be wrong for the preceding and following reasons.
[559] If it is assumed that the Speaker's applications to the Duty Master are amenable to judicial review,
then the issue for determination by the Chambers Judge was whether the applications and complainants
were accorded procedural fairness by the Duty Master in the circumstances of the incarceration and
poverty of the petitioner. Judicial review appears limited to a consideration of the content of Master's
duty of procedural fairness to the complainants and whether the duty was observed. With all due respect
to His Lordship, the learned Edwards, J., the Speaker believes these issues were or should have been
apparent, in that they were clearly before the Chambers Judge and that the Speaker was entitled to a
full judicial review of the Master's order according to the Judicial Review Procedure Act [RSBC 1996] c.
241 as follows:

"Definitions

"1 In this Act:

"application for judicial review" means an application under


section 2;

"Section 2 provides

"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:

"(a) relief in the nature of mandamus, prohibition or


certiorari;

"(b) a declaration or injunction, or both, in relation to the


exercise, refusal to exercise, or proposed or purported exercise, of a
statutory power.

"Power to refuse relief

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"8 (1)....

(2) Despite subsection (1), the court may not refuse to grant
relief in a proceeding referred to in section 2 on the ground that the relief
should have been sought in another proceeding referred to in section 2."

[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.]:

"The existence of a duty of fairness, however, does not determine what


requirements will be applicable in a given set of circumstances. As I wrote in
Knight v. Indian Head School Division No. 19 ... at p. 682, 'the concept of
procedural fairness is eminently variable and its content is to be decided in
the specific context of each case'. All of the circumstances must be
considered in order to determine the content of the duty of procedural
fairness ...

"Although the duty of fairness is flexible and variable, and depends on an


appreciation of the particular statute and the rights affected, it is helpful to
review the criteria that should be used in determining what procedural rights
the duty of fairness requires in a given set of circumstances. I emphasize
that underlying all these factors is the notion that the purpose of the
participatory rights contained within the duty of procedural fairness is to
ensure that administrative decisions are made using a fair and open
procedure, appropriate to the decision being made and its statutory,
institutional, and social context, with an opportunity for those affected by the
decision to put forward their views and evidence fully and have them
considered by the decision- maker."

[Emphasis Added - Mine]

[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.

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[564] In not doing so the Chambers Judge in the trial court erred in principle in the exercise of his
discretion to refuse the courts' inherent jurisdiction to allow an incarcerated citizen to apply to the court
in the only medium left to him or her. The Speaker's circumstances as a prisoner permitted him only one
means of access to the court and of communicating his complaints to the Chambers Judge. All other
avenues to apply under s. 24(1) of the Charter for an appropriate and just remedy in the circumstances
were closed to the Speaker by the Respondent.
[565] The Speaker respectfully advances the theory that questions raised are substantial to the practice
of law generally. The controversies arises over the lower courts' apparent failure not only in the case at
Bar, but generally to refuse to secure or to allow for the practical means necessary to incarcerated
Canadian citizens to (1) pursue their legitimate civil claims and (2) to apply under s. 24(1) Charter by
the only medium left open to them by the state. This refusal to allow citizens to prosecute their civil
complaints or apply under s. 24(1) of the Charter appears to be solely because of their status as
impoverished prisoners.
[566] The impugned order's effect derogated from the rights of the Speaker, it invokes an s. 15(1)
Charter question in that the unintended effect of the rule or enactment is to indirectly and unintentionally
discriminate against the equal rights of a small group of citizens to: (1) access the courts of Canada: (2)
prosecute their claims before the court: (3) obtain a hearing of their Charter grievances, and: (4) obtain
relief from wrongs they have alleged in writing before a justice of the court. The group in question is
discriminated against in the courts literal application of the rule (Rule 41(16.5)(b)) solely due to fact that
the depravation of their liberty prevents them from acting in persona before the court, and their poverty
denies representation in proprio persona of an attorney.
[567] The Charter question turns on the practical as opposed to theoretical equal rights of prisoners
under s. 15(1) to pursue civil claims before a court of Canada. The substance of the intended appeal
first suggests that the order on appeal had the affect, if not the intent, to create a practical legal barrier
to an incarcerated and indigent citizens applicant 's .
[568] The earlier constitutional question turned on the practical barrier being unintentionally legislated
into the rule (Rule 41(16.5)) or enactment (Rules of Court) complained of as acting against the lawful
right of incarcerated and indigent citizens to prosecute their civil claims and to apply under s. 24(1) of
the Charter. Application of the impugned rule or legislation has resulted in an unintended practice of the
courts to discriminate against a party solely because the party applying before it happened to be a
impoverished prisoner and as such their application could not be "spoken to" in proprio persona of the
prisoner or of a paid legal representative.
[569] To put it simply, it is a given that the object of the Rules of Court is to secure just, speedy and
inexpensive determinations of all proceedings before the court. The Speaker has attempted to
appreciate this fact in all his applications. The real question becomes one of priority. Is "speedy and
inexpensive" to take precedence over "just"? There existed in the case at bar a special onus on the trial
court, especially where individual litigants are representing themselves, that any order made by the
Master and later the Chambers Judge should have reflected the legal effect of the order made.
[570] In the Speaker's naive view of the workings of justice there was a requirement of the court not
unlike that in an in absentia pre-trial proceeding. While the Master or Chambers are not to look at all the
material, or review all of it in detail, as the trier of the issues might, there existed such unusual
circumstances in the applications themselves that it should have come, ex proprio motu, to the court's
attention. The facts of the Respondent's conduct, and Speaker's incarceration and indigence having
given the Master and later the learned Chambers Judge sufficient cause to pause and reflect on the
legal effect of the order on the Speaker's s. 15(1) and s. 24(1) Charter rights.
[571] It was suggested that the order and Rule create barriers to equal justice and the practice generally,
raising the potential for conflict between the purposeful dispensation of equal justice and administrative
considerations of the court.

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[572] If the impugned order and Rule violates s. 15(1) and s. 24(1) rights guaranteed by the Charter. The
Speaker's conclusion is, confined to the absolute prohibitions for which the order provides as opposed to
what he considers a fundamental frailty in the Rule being overly broad. The Rule amounts to what is a
blanket prohibition, real or apparent, against virtually any indigent prisoner's civil application whatsoever
from being heard, extending, as they do, to prohibiting them to apply under s.24(1) for Charter relief of
any kind before a Master or Chamber Judge of the Supreme Court of British Columbia.
[573] It does not follow, and the Speaker emphasizes that it would be wrong to imply that there are no
reasonable restrictions on the how applications are to be "spoken to" by prisoners that could be
demonstrably justified in this province. That is obviously not the case, but, to the extent the Court sees
fit to prohibit applications, it must promulgate order and interpret the Rules in such a way that can, if
necessary, be properly proven to be both rationally based and proportionally implemented.
[574] As to what part, or if at all, the whole of the impugned Rule 41(16.5)(b) must be struck down as
invalid pursuant to s. 52 of the Constitution act, 1982 is a matter beyond the Speaker and should, with
deference, be left to this Honourable Court to act as it may see fit based on its assessment of the extent
of the restrictions should be placed on incarcerated and indigent applicants in civil proceedings before
the courts that is dictated by this constitutional challenge.

2.Is the Point on Appeal Arguable.

[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:

4.1.2.1.Might the Law Suit Merited.


[579] Arguably a case can be made that the principle of international comity make any argument
insufficient where the case before the Bar or point on appeal appears to intrude on the sovereignty of a
foreign government.
[580] The Speaker has not been blind to the Respondent's sovereign rights and complexity of the
questions that arise in his asking a provincial court to exert its jurisdiction over penal institutions of a
foreign state.
[581] Rightly or wrongly the Speaker had suggested to the court the possibilities found under Rule 40
and Rule 56, Rules of Court. The provisions found there while not specific to the circumstances are less
intrusive on the Respondent's sovereignty than asking for the Speaker's production in custody before
the court. The Rules fail to provide any truly reasonable alternative methods for impoverished prisoner
to have their applications "spoken to" before the court. In any event the trial court failed to make any
comment whatsoever on the alternatives offered by the Speaker.
[582] The Speaker respectfully argues that the foregoing present this Honourable Court with Charter
rights and international law issues that offer one or more substantial grounds that could result in the
order appealed being varied or set aside.

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[583] Ultimately, it is difficult for this Speaker to express much confidence in his ability to adequately
argue the merits of his Appeal. As stated earlier the Speaker is left to himself without any guide, he
gropes about in the dark in an attempt to formulate arguments and analysis for this Honourable Court to
consider the merits of his appeal. What follows is presently the Speaker's best effort in his struggle to
observe some reasonable periods of time.
[584] The Speaker asserts there is merit in his appeal on the legal affect of the impugned order and
legislation is such that there exists a reasonable possibly for it to be shown in argument as follows.
[585] That the application of Rule 41(16.5)(b), Rules of Court to the Speaker in the case at Bar was
clearly wrong in the conjoined circumstances of incarceration and indigence. Such circumstances
having been made clear to both the learned Master and Chambers Judge.
[586] The application as made, such as it was, requested His Lordship that it to be spoken to in writing by
the Speaker on the grounds that he was incarcerated and indigent. It requested the court to establish for
the Speaker what relief, if any, was available to him to help moderate the combined debilitating effects
that incarceration, indigence and an uncooperative adverse state party had on the Speaker's access to
the court. The basis of the applications relied mainly on the s. 15(1) Charter guarantees to equality and
protection in and under the law.
[587] The Speaker's argument against the order appeal is that His Lordship Edwards, J., knew or should
have know it to be physically and materially impossible for the Speaker to appear himself or to retain
legal counsel to appear and have his applications spoken to. The errors came about in ordering the
party incarcerated by the adverse party to undertake appearing before the court to assert their claims.
His Lordship and the Master before him apparently sharing the view that the fault in failing to have an
application "spoken to" rested with the incarcerated and indigent party. Such a judgement on the courts
part had to be wrong on an occasion where the party subject to the order has no free will or personal
resources to comply with the order as made.
[588] Additional argument is to be found in the conduct of the Respondent as aggravating the difficulties
of the Speaker in the exercise of his civil rights before a court of Canada.

3.The practical benefit to the parties of an appellate decision.

[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.

Part V.The Relief Sought

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[594] The Speaker wishes to comply with the order appealed and to present his case and arguments, in
proprio person, before the court as might any other citizen of the province who cannot or, at their own
peril, does not wish to retain legal counsel. However, the Speaker can not of his own free will comply
with the order since the Respondent wishes under all circumstances to confine the Speaker's to the
territory of the Republic of Bulgaria and deny him access to the court. As a result the Speaker wants to
be able to access the court in writing as this is the only means left open to him by the Respondent and
allowed sufficient time and access to the necessary physical facilities by the Respondent to make his
petitions to the court in Canada from prison. The Respondent has physically and financially limited the
Speaker from directly engaging in the proceeding before a court of Canada. He says that he should be
able to do so even if that means locating in a commercial retail store. He challenges the Master and
Chambers Judge rationale for the prohibiting Rules as being ill-founded and maintains that the Rules
cannot be justified on the basis that the limitations they impose or alternatives they prohibit would lead
to any public perception that commercial interests will serve to compromise professional, independent
advice.
[595] [17] What then is sought is a declaration that the impugned Rules 37, 40, 41(a), (b), (c), and (g),
are invalid and an order quashing the citations against both optometrists and the decisions of the Board
in respect of the citation against Dr. Lee.

1.1.1.1.The Existing Judicial Consideration of the Rules


[596] [18] Before turning to the constitutional question, it is important to recognize that, at least in my
view, any challenge on an administrative law basis has been largely foreclosed by decisions of the
courts of this province and of Ontario.
[597] Concerning the apparent prohibition against applications being spoken to in writing by an
incarcerated party. The petitioner seeks to obtain a declaration that the regulation was ultra vires
because it constituted a restraint on the rights of a litigant, was discriminatory, and deprived a small
group of citizens of fundamental Charter rights possessed by other citizens.
[598] The Court of Appeal has been slow to strike down such regulations as unreasonable, leaving such
decisions for the Lieutenant Governor in Council. The question that is the courts duty to consider is
whether the regulation, in certain circumstance, was sensitive to the s. 15(1) Charter rights of
incarcerated and indigent citizens, contrasted the wider mandate conferred by the Charter to that
conferred by the British Columbia statute.
[599] The petitioner puts his case on constitutional grounds, but they do argue in the alternative that the
impugned Rules are ultra vires.
[600] [25] During the course of argument, I raised the question of whether, as a matter of stare decisis, it
was open to this Court to decide that Rule 37 (41(16.5)(b)) was unconstitutional given there is a decision
by which I am bound holding that it is lawfully promulgated in the sense that it is not ultra vires. The
petitioner points out that there appears to be no case law in determination of the constitutional validity of
the Rule and clearly no s.1 analysis. Indeed it appears to have received almost no judicial
consideration. There is no reason that the impugned Rules cannot be challenged constitutionally despite
their being otherwise lawful.

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.

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