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Before the Honourable Members of Parliament 2004

THE KAPOUSTIN REPORT


CHARTER VIOLATIONS and UNLAWFUL COMMISSIONS
OF
THE ROYAL CANADIAN MOUNTED POLICE and THE ATTORNEY GENERAL OF CANADA

THE CASE OF MICHAEL KAPOUSTIN

AND

THE REPUBLIC OF BULGARIA


THE MALICIOUS FOREIGN PROSECUTIONS AND TORTURE OF CANADA ’S CITIZENS

THE SUBJECT OF THIS REPORT IS A PRIVATE CITIZEN’S UNSOLICITED EXPOSE INTO A LEGISLATIVELY UNREGULATED CULTURE OF
DISINFORMATION AND SECRET FOREIGN COMMISSIONS OF THE ROYAL CANADIAN MOUNTED POLICE INTERNATIONAL LIAISON
AND FEDERAL EXECUTIVE SERVICES AND THE ATTORNEY GENERAL OF CANADA WHEN REQUESTING FOREIGN POLICE AND
PROSECUTION OFFICIALS OBTAIN INFORMATION BY ARRESTING, PROSECUTING AND COERCIVELY QUESTIONING AND TORTURING
CITIZENS OF CANADA WHO TRAVEL OR WORK ABROAD.

THE REPORT DOCUMENTS BEFORE THE HONOURABLE MEMBERS OF THIS PARLIAMENT ANOTHER CASE SIMILAR TO THAT OF
ARAR. IN BOTH CASES THE ROYAL CANADIAN MOUNTED POLICE INTERNATIONAL LIAISON AND FEDERAL EXECUTIVE SERVICES
AND THE ATTORNEY GENERAL OF CANADA HAVE ACTED TO INTENTIONALLY COMPROMISE THE PROFESSIONAL ETHICS AND
INTEGRITY OF FOREIGN POLICE AND PROSECUTION OFFICIALS BY SHIELDING MALICIOUSLY MANUFACTURED FALSEHOODS AND
MISREPRESENTED OR UNVERIFIED CANADIAN POLICE FACTS BEHIND WORDS OF TRUST VERBA PRECARIA. THESE UNLAWFUL AND
MALICIOUS RCMP CRIMINAL PROSECUTIONS ARE THEN SANCTIFIED IN SECRET CROWN INDICTMENTS DELIVERED TO FOREIGN
STATES AND SHIELDED BEHIND THE MANTEL OF CANADIAN SOVEREIGNTY AND GOVERNMENT INTEGRITY. IN ARAR AND
KAPOUSTIN THE EXTRADITING STATES HAVE BEEN SECRETLY ADVISED BY CANADA THAT IT HAS NO INTEREST IN REPATRIATING
ONE OF ITS NATURALIZED CITIZENS.

IN THE KAPOUSTIN CASE, THE CROWN PROMISED MONEY TO BULGARIAN POLICE IN EXCHANGE FOR INFORMATION TO BE
OBTAINED AFTER THE FACT OF BULGARIA ARRESTING, QUESTIONING, THEN PROSECUTING AND CONVICTING KAPOUSTIN, A
NATURALIZED CITIZEN OF CANADA. IN BOTH ARAR AND KAPOSUTIN THE RCMP NEVER EXPRESSES ANY CONCERNS IF THE
INFORMATION REQUESTED BY IT WAS TO BE OBTAINED BY MEANS INVOLVING THE PHYSICAL OR PHYSIOLOGICAL TORTURE OF A
CITIZEN OF CANADA .

THIS REPORT ALSO DOCUMENTS HOW CANADA’S DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE REFUSED TO
TAKE THE RESPONSIBILITY OF COMMUNICATING TO OTHER CANADIAN GOVERNMENT AGENCIES KAPOUSTIN’S CONCERN OVER
HIS MALICIOUS PROSECUTION BY A CROWN SERVANT AND THE OTHER MALFEASENCES COMMITTED BY THE RCMP. FOREIGN
AFFAIRS OFFICIALS REPREATEDLY EXCUSING WHAT IS A MALICIOUS PROSECUTION AND THE ACTS OF TORTURE AND INHUMANE
TREATMENT OF CANADIAN CITIZENS AS SOVEREIGN RIGHTS. CROWN OFFICIALS HAVING GONE SO FAR AS TO HAVE REQUESTED
THE KAPOUSTIN FAMILY COMPROMISE THEIR CHARTER PROTECTIONS AND OTHER LEGAL RIGHTS IN AND OUTSIDE OF CANADA
ONLY SO CANADA FOREIGN AFFAIRS COULD SECURE TREATY COOPERATION FROM BULGARIAN OFFICIALS. THE REPORT SEEKS AN
INVESTIGATION INTO THIS CULTURE OF APPEASEMENT.

THE OBJECT OF THIS REPORT IS TO PRECIPITATE FURTHER ENQUIRY BY THE HONOURABLE MEMEBERS OF PARLIAMENT INTO THE
ALLEGATIONS MADE HERE AND INTO A POSSIBLE LEGISLATIVE GAP, LEGES LACUNA, PERMITTING THE ROYAL CANADIAN
MOUNTED POLICE INTERNATIONAL LIAISON AND FEDERAL EXECUTIVE SERVICES AND THE ATTORNEY GENERAL OF CANADA TO
VIOLATE IN SECRET AND OUTSIDE OF CANADA THEIR CHARTER COVENANTS AND PRE-EXISTING POSITIVE LEGAL DUTIES TO
CITIZENS OF CANADA WHO ARE UNABLE TO ACT FREELEY UNDER THE CIRCUMSTANCES OF THEIR FOREGN DETNETION.

Written Comments Prepared by:

Dr. Donald Kommers, Science and Professor of Law Notre Dame Law School and others [to be requested]
TABLE OF CONTENTS

CHAPTER I The Author .................................................................................................................................4


CHAPTER II Introduction ..............................................................................................................................5
CHAPTER III THE FACTS...........................................................................................................................16
SECTION A R.C.M.P. Contacts and Exchanges in Bulgaria ....................................................................16
SECTION B Arrest and Extradition of KAPOUSTIN...............................................................................19
1. Part 1 7 February 1996 Frankfurt International Airport
19
2. Part 2 Bulgarian Information as Provided to Interpol
20
3. Part 3 R.C.M.P. “INFORMATION” Released to Mass Media
22
SECTION C Government of Canada Denials............................................................................................28
SECTION D Physical and Mental Torture of Kapoustin...........................................................................29
4. Part 1 Applicants Earlier Complaints 40
.1 April 1st 2000 Complaint as filed with Office of Canada's Prime Minister..................40
.2 June 23rd 2000 Civil Action against DOORNBOS and other filed in British Columbia
Supreme Court........................................................................................................40
.3 May 3rd 2001 Refusal of Embassy of Canada to serve complaint to R.C.M.P. and
DOORNBOS...........................................................................................................40
.4 May 3rd 2001 Complaint to R.C.M.P. against DOORNBOS and Cover Letter............40
.5 May 3rd 2001 Complaint to General Director of DRAIT Mr. Gar Pardy.....................40
.6 May 19th 2001 Complaint to Attorney General of British Columbia ..........................40
.7 May 19th 2001 Complaint to the Honourable Anne McLellan the Minister of Justice Canada40
.8 May 21st 2001 Complaint and Request to the Attorney General of British Columbia for Legal
Aid ..........................................................................................................................40
.9 May 27th 2001 Letter to DOORNBOS.........................................................................40
SECTION E Legal Grounds.......................................................................................................................40
5. Part 1 For Earlier Complaints 40
SECTION F NATURE OF THE COMPLAINT........................................................................................44
6. Part 1 –The Allegations 44
SECTION G Discussion.............................................................................................................................49
7. Part 1 Preamble 49
SECTION H What is Apparent from the Evidence....................................................................................50
8. Part 1 Outstanding Facts Not Open to Dispute
50
9. Part 2 Malicious Prosecution 53
10. Part 3 Crown Misrepresentations and Undue Influence
54
11. Part 4 Criminal and Quasi-Criminal Extortion
54

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SECTION I Criminal Defamation - Slander and Libel..............................................................................55
12. Part 1 The Element of Slander - Offensive and Untrue Words Spoken by a Crown Servant
55
13. Part 2 The Element of Libel - Offensive and Untrue Words Written by the Government of
Canada 58
14. Part 3 Reproduction of the Slander and Libel
59
15. Part 4 Intent and Malice - "Mens Rea" 60
16. Part 5 Relevant Law 60
17. Part 6 Reliance on Canadian Justice 60
18. Part 7 Interpretation and Factors 61
19. Part 8 Crown Reliance on the Conviction of KAPOUSTIN; fair comment or qualified
privilege 61
.10 What, If Any, Relevance to the Trial Court Surrounding the Criminal Proceedings...62
20. Part 9 Respondent's Reliance on its Criminal Prosecution of Speaker.
63
21. Part 10 What Are the Facts of the Criminal Case The Defendant Bulgaria Relies On?
64
22. Part 11 Complaints to the Government of Canada
65
23. Part 12 A Question of Law, Not Facts 66
24. Part 13 Parallels in Canadian Case Law67
25. Part 14 Relevance of the Cited Gwynne Supra
69
.11 The Existing Judicial Consideration of the Rules........................................................89
.12 Judicial Review............................................................................................................94
.13 Does the Impugned Act (Rules) Offend Section 15(1)?..............................................94
.14 Vagueness....................................................................................................................98
.15 S. 1 Overbreadth..........................................................................................................99
.16 Rationality..................................................................................................................104
.17 Proportionality...........................................................................................................105
26. Part 16 Factors Existing In Aggravation of the Circumstances
114
SECTION J Complainant's Reasoning.....................................................................................................117
27. Part 1 Objectives 117
28. Part 2 Rights Relied On. 117
29. Part 3 Prior Petitions 118
30. Part 4 Background to Bringing the Complaint
119
31. Part 5 Speaker's Arrest and Extradition120
.18 Speaker's Arraignment and Trial................................................................................122

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SECTION K Practices of the Defendant Bulgaria Existing In Aggravation of the Claims ....................124
CHAPTER IV ARGUMENT AND ANALYSIS..........................................................................................124
SECTION A The Arguments Evolution ..................................................................................................124
32. Part 1 Law and Enactment Relied On. 126
SECTION B A Priori................................................................................................................................127
33. Part 1 The Rights of Individuals 127
34. Part 2 Access to A Court 129
35. Part 3 Reverse Onus and Procedural Fairness.
131
36. Part 4 A Priori Rights in a "Suit in Law"
132
SECTION C A Posteriori..........................................................................................................................133
37. Part 1 A Prisoner's "Other Status" 133
38. Part 2 A State's Positive Obligation and Duty To A Person Deprived Of Liberty.
135
39. Part 3 Positive Obligation and Duty of Bulgaria
138
40. Part 4 The Master's Positive Obligation 138
41. Part 5 Procedures, Conflicts and Comity
145

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CHAPTER IThe Author

The Author is a 53 year old citizen of Canada and resident of British Columbia. He and his wife
Tracy have been married 17 years. Together they have a 12 year old diabetic son. Nicholas is
named after the author’s late Jewish grandfather Dr. Nicholas Kapusto. The Authors father,
Robert is an 82 year old retired soccer coach and artist. In the 7th year of the Author’s
imprisonment his mother Tatiana died of complications arising from her Alzheimer’s. The
Author and his mother never had the chance to speak before her death. The Author has one
sister, Sonja and her husband Frank.

It has been ten years since the author has not seen any member of his family. The Bulgarian
government continues to unreasonably refuse all pleas for the Authors repatriation to Canada.

The Author is a political prisoner for the 21st century.

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CHAPTER IIIntroduction

The Report concerns itself solely with facts the Author alleges to establish indictable offences
Canada under Canada’s Criminal Code as committed against a citizen of Canada by Crown
Servants while outside of Canada and in the exercise of their duty.

The facts in this Report are upon personal knowledge of the Author as to himself and to his acts
and as to all others upon information and belief based on, inter alia, the investigation made by
the Author and his family through his attorneys, including inquires by them to the Ministry of
Foreign Affairs, Canada and Ministry of Justice, Republic of Bulgaria and a review of filings of
the Sofia City District Criminal Court, Sofia, Republic of Bulgaria under Bulgarian criminal
case No c.c.c.c 1403/98 as well as published and televised reports and news articles.

In 1992 the Author and a number of other Canadian investors formed a limited partnership for
the marketing and development of clinical drugs. That partnership’s General Partner entered
into a series of contracts and agreements with commercial agencies and institutions owned and
operated by the Government of the Republic of Bulgaria.

It was in 1993 and for the purpose of consolidation and refinancing of the commercial
activities, contracts and agreements concluded with the Government of the Republic of
Bulgaria in 1992 that the Author incorporated the Bulgarian corporation “LifeChoice.

As a part of the planned refinancing the Bulgarian company would privately and publicly offer
a variety of corporate securities that would not legally encumber its assets or dilute its shares.
No shares of the Author’s Bulgarian company were sold and it remains closely held by the
Arthur to this day. To this day the value of Company assets still under distrain by the
Government of the Republic of Bulgaria exceeds liabilities of the Company.

During the period in question the Republic of Bulgaria had no legislation or agency regulating
the selling or trading of corporate securities. Sales and trades in corporate securities of the
Company from August 1993 to July 1994 exceeded all expectations, the Author and his
Company becoming Bulgarian household names, at first famous and later infamous. It was in
early 1995 that the first articles appeared in the Bulgarian press claiming an unidentified

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Canadian source for the information on the Author’s criminal activities in Bulgaria and Canada.
The Author had no idea at the time that the source of that information was the Crown.

This Report documents events as they secretly unfold in mid 1995 when on May 15th of that
year a Crown Servant assigned to the Embassy of Canada in the City of Vienna, Austria
traveled at Government of Canada expense to the City of Sofia, the Republic of Bulgaria. This
is not the first such meeting, anecdotal evidence suggesting several earlier such meetings and an
unidentified number of official correspondences. It is however the first confirmed meeting
having occurred at an exact time and place.

The objective of the May 15th 1995 and other Government of Canada diplomatic missions to
Bulgaria and the Crown Servant himself was to make a presentation to representatives of the
Government of Bulgarian Ministry of Interior Police – Organized Crime Division or department
on what the Crown knew to manufactured and unverified Canadian “police conclusions”
designed to deceive and incite the Bulgarians. With its’ false or unverified police “facts” and
information the Crown hoped to secure the agreement of Bulgarian police and prosecutors to
issue a criminal indictment upon the Crown information and so commence the prosecution in
Bulgaria of a citizen of Canada currently operating the Company named by the Crown. That
citizen is the Author.

However, once again anecdotal evidence suggests that on May 15th 1995 the Bulgarian
authorities refused to proceed to the criminal prosecution of the Author without first receiving a
written criminal indictment issued by the Crown. The Crown indictment of the Author was to
set out the nature of the specific criminal allegations as made by the Crown against him and as
alleged by the Crown to have been committed by him in the Republic of Bulgaria and Canada.
This official Government of Canada document was further to set out for the Bulgarian
authorities that if the Bulgarian criminal prosecution of the Author was successful, then the
Republic of Bulgaria would receive a substantial portion of at least 16,000,000 U.S. dollars
alleged by the Crown to have been deposited to banks in Canada by the Author.

On July 7th 1995 the same Crown Servant assigned to the Embassy of Canada in the City of
Vienna, Austria once more traveled at Government of Canada expense to the City of Sofia, the
Republic of Bulgaria and delivered to Bulgarian authorities the Crown’s secret criminal
indictment of the Author, its written request for his criminal prosecution in Bulgaria and a
promise of money if that prosecution is successful.

The Crown’s involvement and cooperation with Bulgarian authorities in the malicious
prosecution, torture and wrongful conviction of the Author began in early 1995 and abruptly
ended in August of 1997 when Bulgarian prosecutors failed to produce the information
originally demanded in the Crown indictment of July 7th 1995. Needless to say the Crown was

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not unsuccessful in confiscating the 16,000,000 U.S. dollars of alleged criminal proceeds
originating from Bulgaria

The Government of Bulgaria did not receive its payment of a cash reward as promised by the
Government of Canada, and this notwithstanding that the Government of Bulgaria had keeps its
bargain with the Crown by prosecuting, questioning and torturing the Author as the Crown had
requested.

It was seven years and two months, three re-indictments, four judicial decisions, two
convictions, one overturned conviction and two acquittals before the Bulgarian Criminal Court
of Appeals finally settled on a final indictment and criminal conviction that the judges believed
would settle the public outcry for the Authors conviction. The judicial controversy only ended
when this Author was assured by Canada Foreign Affairs that the best course of action to return
him to his family in Canada was to withdraw his appeal and accepting a criminal conviction of
17 years with the understanding he would be transferred to a prison in Canada..

Somebody lied and the Author has spent 10 years in a Bulgarian prison. Of these the Author has
spent 2 years and 2 months in an isolation cell were he had no contact with anyone except his
interrogators and Bulgarian attorneys. Bulgarian isolation cells as a rule have no toilets,
windows and are lit 24 hours. Offenders are not allowed outside their cells for exercise.
Beatings are regular, showers and visits with attorneys are not. Watches, radios and phone calls
are not permitted

O the following 7 years there have been only cold showers and overcrowded prison cell having
no toilet facilities or running water. Drinking water coming from inside a used plastic Coca
Cola bottle inmates refill three or four times a time.

The Author faces the prospect of addition 7 more years away from Canada.

All the suffering of his family and all the lost years are largely if not exclusively due only to the
malfeasances of Crown Servants who sought in secret and in scienter with the Attorney General
for Canada to incite hatred against the Author solely in order to advance the criminal
investigation of a religious organization in Canada and the possible criminal indictment of its
members.

In 2004 and only after the threat of civil litigation, public exposure and appeals to the President
of the Republic of Bulgaria the Author succeeded to circumvent corrupt prison Wardens to force
an inspection of his prison cell. As a result the Author and 98 other foreign inmates were
transferred to recently renovated cells.

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In 2004 Bulgarian

The Author had no direct or indirect association with the Kaballarian Society of Canada.
Apparently his only crime was to have friends and business associates in Canada who were
apparently among its members.

The facts show that the malicious indictment and prosecution of KAPOUSTIN and the
offensive words as first spoken by DOORNBOS occurred before the May 15th 1996 operative
meeting organised by the Crown in Sofia, Bulgaria with Bulgarian police officials.

The mens rea for the defamations and malicious prosecution of KAPOUSTIN by a servant of
the Crown and servants to the Republic of Bulgaria is their self-reward, advancement and in
Bulgaria the self-enrichment of certain officials who are acting without regard to the law or the
physical, psychological and material harm and consequences to be inflicted upon KAPOUSTIN
and his family.

History of Complaints

On January 23rd 2004, by E-Mail, KAPOUSTIN filed a preliminary complaint with


Commission for Public Complaints against the RCMP, Ms. Shirley Heafey Commissioner 60
Queen Street 3rd Floor Ottawa, Ontario Canada

The complaint filed is against a Crown Servant, one Derek A. DOORNBOS and unknown
others employed by the ROYAL CANADIAN MOUNTED POLICE INTERNATIONAL
LIAISON AND FEDERAL EXECUTIVE SERVICES. Derek A. DOORNBOS having at the
time of the offences alleged against a Staff Sgt and the Command Liaison Officer assigned by
the R.C.M.P. to the Embassy of Canada to Austria.

From the period of April 1995 to the present there is only anecdotal evidence to suggest that the
Ministry of the Attorney General of Canada or the Minister of Foreign Affairs Canada had in
any way been aware of the actions of DOORNBOS or his conduct in Bulgaria.

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From April 1995 to August 1998 DOORNBOS exploited the facilities, ways and means of the
Embassy of Canada to Austria to intentionally and unlawfully cause injury and harm to
KAPOUSTIN and his family. The facilities of the Embassy were made available to
DOORNBOS in his capacity as a servant of the Crown. All actions of DOORNBOS are
therefore directly attributable to the Crown.

Crown servant DOORNBOS is responsible for accessing and collecting private and police
information and data concerning KAPOUSTIN and others in Canada and then delivering it to
Bulgaria police and prosecution officials. This includes but is not limited to what has been set
out below under SECTION “A” “FACTS”.

Crown police information and conclusions collected in Canada are “volunteered” by


DOORNBOS to police and prosecution officials of the Republic of Bulgaria, this without any
request from the Government of Bulgaria.

The Crown knowingly provides reports about KAPOUSTIN to Bulgarian police and
prosecution officials that are “false or erroneous or defective in material particulars and
intended to mislead” Bulgarian authorities and the general public into believing KAPOUSTIN
is a convicted felon and organiser of criminal activities in 6 (six) countries. These false or
erroneous or defective in material particulars proliferate in the written record of Crown
correspondence with Bulgarian authorities. Such actions run foul of Canadian law.

There is no indication that the actions of DOORNBOS are in any way controlled, directed,
ordered or otherwise condoned by a court of Canada.

DOORNBOS, traveled repeatedly to the Republic of Bulgaria for the Crown. The singular
purpose of DOORNBOS traveling to Bulgaria for the Crown is to have KAPOUSTIN, a citizen
of Canada, arrested and prosecuted by Bulgarian authorities. Insodoing, the Crown hoped to
realize its objective of obtaining information for a criminal investigation in Canada and the
eventual confiscation by the Crown of assets and property in Canada valued by the Crown at
more than 16,000,000 United States Dollars.

The DOORNBOS slanders, criminal indictment and malicious prosecution of KAPOUSTIN are
committed while performing official duties for the Crown.

Anecdotal and circumstantial evidence strongly suggests that prior to May 15th 1995 there
existed an earlier agreement between the Crown and the Republic of Bulgaria [See index
“Inspectors”; “Bulgarian National Bank”; “Tax Department”; “Sofia Regional Prosecutor”].

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Available documents show that the Crown and the police and prosecution officials of Bulgaria
were jointly and severally intent on sharing in the seizure and confiscation of millions of dollars
in Canada and represented by the Crown to the Government of Bulgaria as proceeds of the
crimes committed by KAPOUSTIN in Bulgaria.

From April 1995 to September 1997 the Crown repeatedly pressured Bulgarian police and
prosecution officials to collect documents and facts on the funds transferred by KAPOUSTIN
out of Bulgaria. This fact is significant because KAPOUSTIN is to later be acquitted of all
original charges found in the Bulgarian police warrants of 28.11.1995 and 13.02.1996 and is
instead convicted and sentenced in August of 2002 for having otherwise lawfully transferred
funds to third part bank accounts outside of Bulgaria.

The pre-May 15th 1995 requests by the Crown to the Government of Bulgaria result in
unannounced and unexpected inspections of the offices of KAPOUSTIN and LIFECHOICE by
auditors and regulators of the BULGARIAN NATIONAL BANK DEPARTMENT FOR
FINANCIAL AUDITS (SUPERVISING) MR. SASHO RUSSEV. This inspection is unusual in
that LIFECHOICE is not licensed in Bulgaria as a banking or non-banking financial institution
or corporation and therefore is not legally subject to such inspections.

The Crown reduced its intent to writing on July 7th 1995. To circumvent Canadian law, the
Crown would have KAPOUSTIN indicted outside of Canada on the charges of fraud and
misappropriation of Bulgarian public funds as identified in a July 7th 1995 indictment. At the
request of the Crown, KAPOUSTIN is to be arrested and prosecuted by Bulgaria police and
prosecutors on the accusations and charges identified by the Crown as police facts and
conclusions. Bulgarian police and prosecutors are to secure information for the Crown once
taking custody of KAPOUSTIN.

The Crown is relying on the arrest and detention of KAPOUSTIN by Bulgarian police and
prosecutors as a means to make it “relatively easy” for the Crown to “obtain in Canada” a
court order allowing the Crown to seize important documents and cash in excess of
“16,000,000 dollars” identified by the Crown to be in banks accounts in Canada and a part of
the “criminal proceeds” that KAPOUSTIN transferred from his accounts in the Republic of
Bulgaria.

KAPOUSTIN is arrested on February 7th 1996 and delivered into Bulgarian custody by German
police on September 2nd 1996.

On September 17th 1996, Bulgarian authorities place KAPOUSTIN into solitary confinement.
The cell is windowless, unventilated and illuminated 24hrs a day by a single 40 Watt light.

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Bulgarian police investigators then begin to seek information from KAPOUSTIN for the
Crown. At no time is KAPOUSTIN, a citizen of Canada, informed that the charges against him
and the questions put to him are a result of a Crown criminal indictment. KAPOUSTIN is only
told that “Canada does not like you”.

KAPOUSTIN is to remain in solitary confinement for two years and two months before being
transferred to a regular remand facility and into the general inmate population.

The Crown had no reasonable or lawful justification or excuse for requesting or permitting the
police and prosecution officials of a foreign state, the Republic of Bulgaria, to use threats,
accusations, menaces, drugs and violence to secure information from KAPOUSTIN concerning
a criminal investigation in Canada and the proceeds of crime alleged to be in banks of Canada.

As a result, during the period of October 1996 and August 1997 KAPOUSTIN was unlawfully
deprived of his liberty and summarily and repeatedly beaten by Bulgarian Ministry of Interior
police.

The Crown “secret commission” to Bulgarian police and prosecutors allowed for the use of
“threats, accusations, menaces or violence” against KAPOUSTIN.

On December 13th 1995 DOORNBOS agreed to share “any reward advantage or benefit of any
kind as consideration” resulting from a successful criminal prosecution and conviction of
KAPOUSTIN in Bulgaria and the seizures of property and cash in Bulgaria and Canada.

The malicious indictment and prosecution of KAPOUSTIN, the actionable and offensive words
of DOORNBOS are first partially reproduced in writing by the Crown on July 7th 1995.

The sole purpose for the Republic of Bulgaria to arrest and prosecute a citizen of Canada
(KAPOUSTIN) at the request of the Crown is to aid in an unrelated R.C.M.P. criminal
investigation being conducted in Canada [See index “Shearing”]. The Crown criminal
indictment and INFORMATION of July 7th 1995 formally requests that KAPOUSTIN be
arrested and prosecuted on criminal charges described by the Crown as being the commission
of frauds and misappropriations in Bulgaria, the proceeds of which the Crown will find “easy to
prove” deposited to bank accounts in Canada.

The Crown is directly responsible for the malicious prosecution of KAPOUSTIN and is the
principal author of the offensive and humiliatingly injurious falsehoods spoken as slanders and
reproduced as part of a maliciously untrue and libellous Crown criminal indictment of
KAPOUSTIN and his Bulgarian company LIFECHOICE.

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On July 8th 1995 and again on August 1st 1996 the actionable and offensive words of
DOORNBOS are publicly reproduced in the mass media at the request of Bulgarian authorities
and are attributed to the Crown by Bulgarian prosecution officials.

The Crown is publicly credited by police and prosecution of Bulgaria as having indicted
KAPOUSTIN, a citizen of Canada, before Bulgarian authorities and the public as an
international criminal, a convicted pedophile and a pseudo-religious cult leader. Bulgarian and
international media repeat all or part of the malicious Crown indictment of KAPOUSTIN. The
Crown is identified as the single source for the reproduced slanders and libels that are
injuriously offensive and untrue humiliating words. The Republic of Bulgaria repeatedly
attributes the words to the “Canadian authorities”.

The misleadingly false and libellous contents of the July 7th 1995 Crown indictment are
reproduced thousand of times in the national and international media between May of 1995 and
to August of 1998.

The Crown is also directly responsible for having caused the unlawful seizure of private
property lawfully belonging to and acquired by the Bulgarian company owned by
KAPOUSTIN and other citizens of Canada. The Crown is therefore directly liable to the
company LIFECHOICE for any subsequent injuries resulting from its loss of property and
income in Bulgaria and elsewhere.

The conduct of DOORNBOS is in breach of the Canada’s laws and the Charter rights of
KAPOUSTIN and his family.

According to oral and written representations made to KAPOUSTIN and his family by the
Department of Foreign Affairs and International Trade (DFAIT) or Ministry of Foreign Affairs
Canada, the swearing of the July 7th 1995 Crown indictment and information prepared and
delivered by DOORNBOS to Bulgarian authorities in Sofia Bulgaria is not acknowledged by
the immediate superiors of DOORNBOS. The indictment therefore violates the principles and
procedures of Canadian law under the Mutual Legal Assistance In Criminal Matters Act”,
Chapter M – 13.6 (RS 1985, c. 30 (4th supp.)) 1988, c. 37, assented to 28 July.

It is significant to note that on 21.08.1996 the Interpol Section of the R.C.M.P. writes the
Republic of Bulgaria to “…take corrective action to assure the proper authorities that Mr.
Kapoustin was not involved in any such activity to our knowledge in Canada.”, but only two
days later on 23.08.1996, the Crown sends the following faxed message to Bulgarian police and
prosecutors requesting that “…this be passed to Mr. GUEORGIEV [proper spelling - Georgiev -
this is the police official having issued the international arrest warrants for KAPOUSTIN ] and
ask that he [Georgiev] in turn pass any comments he may have on to me directly. I am still very

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much interested in any indication he has that any of Kapoustin gains [transfers] from the
fraud in Bulgaria ended up in Canada [the accounts of Mr. Ivon Shearing]”.

The July 7th 1995 “INFORMATION” is therefore an unlawful Canadian criminal indictment of
KAPOUSTIN issued and sworn to be true by a servant of the Crown before the police and
prosecution agencies of a foreign state, the Government of the Republic of Bulgaria. However,
the July 7th 1995 Crown INFORMATION is taken at face value by the Republic of Bulgaria
despite it being false and misleading in every respect.

It is also significant that in a May 25th 1997 DFAIT CASE NOTE prepared by a Mr. Adcock,
he writes that “the Embassy understands that the original arrest warrant dates back to July
1995” could that be July 7th 1995 ?

From July of 1995 until August 2002 KAPOUSTIN remained criminally charged for the same
fraud and the misappropriation of public funds as alleged in the Crown indictment of July 7th
1995.

In August 2002, KAPOUSTIN and indirectly his company LIFECHOICE were acquitted a
Bulgarian Court of Appeal of fraud and the criminal misappropriation of public funds. The
Court of Appeal instead introduced a new indictment charging KAPOUSTIN with
embezzlement for having transferred his company’s funds out of Bulgaria, notwithstanding that
the lawful patrimony of the transferred funds belonged to the private company of
KAPOUSTIN, LIFECHOICE and that the transfers are made in the ordinary course of its
lawful business and with the full knowledge and consent of its Board of Directors and
shareholders of which there are two, KAPOUSTIN controlling 100% of the all issued common
shares.

The Crown has ruthlessly pursued its own agenda without regard for the laws of Canada or the
natural rights of KAPOUSTIN and the members of his family as citizens of Canada. These
rights, protection and obligation of the Crown are enshrined in the principles of the Charter.

Each act of DOORNBOS inter alia swearing out evidence against a citizen of Canada before a
foreign criminal court; collecting police data and facts in Canada and delivering it to a foreign
state; providing manufactured falsehoods as if fact or unverified facts as if police conclusions to
mislead a foreign state; allowing media reproduction of his slanderous remarks and libellous
correspondences to be attributed to the Crown; swearing out a criminal indictment and
information requesting a citizen of Canada be arrested and prosecuted in a foreign state on
behalf of the Crown and permitting the continued use of an unlawful detention and torture of a
citizen of Canada to secure information for the Crown are jointly and severally serious breaches

19178560.doc Page 13 of 160


of Canadian law and Canada’s Charter and other rights of KAPOUSTIN. The actions of
DOORNBOS are therefore unlawful.

Much of the acts and transactions of DOORNBOS are in scienter with police and prosecution
officials of the Republic of Bulgarian. The objective of DOORNBOS and Bulgarian police and
prosecutors is to secure a conviction of KAPOUSTIN in Bulgaria is solely to confiscate money
and property in Canada and Bulgaria.

Should the Members of Parliament choose to closely and carefully read the records and
evidence in the criminal trial of KAPOUSTIN and before a civil court of Canada, they will find
that inter alio Police Investigator S. Georgiev; Deputy District Attorney Mario Stoyanov; and
Bulgarian Deputy Minister of Justice Mario Dimitrov have repeatedly represented before
representatives of the Government of Canada that any transfer or release of KAPOUSTIN will
require his family to first pay money to any Bulgarian national who claims to have made a
“loan” or “deposit” with KAPOUSTIN. These individuals are not identified in the criminal case
against KAPOUSTIN and those appearing in Canada are “referred” to the family and friends of
KAPOUSTIN by among others Police Investigator Georgiev or then Attorney General IVAN
TATARCHEV. Requests for such payments are that the must be made in cash and are directly
associated to the transfer or release of KAPOUSTIN. Requests are accompanied by threats that
failure to pay will result in the continued detention of KAPOUSTIN in Bulgaria.

According to Canadian criminal law these facts provide a prima facie case having a genus of an
attempted extortion committed against KAPOUSTIN and his family in Canada. The attempted
extortion of cash and private property from KAPOUSTIN is recorded in the repeated demands
by Bulgarian police and politically appointed judicial officials. There is no proof any individual
in Bulgaria having “loaned” money to KAPOUSTIN.

Despite repeated written notices by KAPOUSTIN to the Crown and the responsible supervisory
bodies of the R.C.M.P., no action or effort was or has been undertaken to interpret in a manner
consistent with prevailing international and Canadian law the lawfulness or unlawful and
damaging consequences of a premeditated and calculated misconduct and misdeed of a Crown
agency and servant in what are obvious breaches of the laws of Canada.

According to the principles of international law, the Crown violated the fundamental and legal
rights of KAPOUSTIN.

The representations made in the REPORT are factually accurate and complete in as far as is
possible from the documents available to its Writer.

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What follows is a chronological presentation of the facts established by documents obtained by
KAPOUSTIN from agencies of the Government of the Republic of Bulgaria. Additional
documents have been requested.

19178560.doc Page 15 of 160


CHAPTER IIITHE FACTS

SECTION AR.C.M.P. Contacts and Exchanges in Bulgaria

1. On May 15, 1995, in Sofia, Bulgaria, R.C.M.P. Staff Sgt. DOORNBOS met with
Bulgarian Ministry of Interior official Mr. Miroslav Genov.

2. The need to pre-arrange such a meeting suggests earlier contacts between the R.C.M.P.
and the Bulgarian Ministry of Interior. Anecdotal evidence, other facts and evidences
suggest earlier contacts. This possibility is discussed later in the REPORT.

3. It unclear what exactly is the “AGREEMENT” reached on May 15th 1995 between the
R.C.M.P. and the Bulgarian Ministry of Interior.

4. The Writer has no document to prove or to suggest that the R.C.M.P. was requested by the
Bulgarian Government to send its representative to Sofia, Bulgaria. It is therefore
concluded that the R.C.M.P. initiated contact with officers of the Bulgarian Ministry of
Interior. In fact the alternative is true.

5. On December 15th 1999, the Bulgarian Ministry of Justice and Legal Euro-integration
provided criminal defence counsel for KAPOUSTIN, Mr. Anatol Lukanov, a letter
confirming that at no time had the Government of Bulgaria, the Ministry of Justice,
entered into an agreement to collect or exchange police data investigative. The relevant
part of this correspondence reads;

“No request was made by a Minister…From the Canadian Ministry of Justcie we


in the Ministry of Justice and Legal Euro-integration have not received judicial
papers referring Mr. Kapoustin…”

6. The December 15th 1999 and other anecdotal evidence strongly suggests it is the Crown
that initiated a clandestine contact with the Bulgarian Ministry of Interior. The R.C.M.P.
and DOORNBOS circumventing not only Canada’s Ministers of Justice and Foreign
Affairs but also the Bulgarian Minister of Justice.

7. It is the Crown that suggested to Bulgarian police and prosecution officials that the
activities of KAPOUSTIN and his company in Bulgaria are part of a criminal organization
operating internationally out of Canada. There is no evidence of Bulgaria police and
prosecution officials contacting the Crown and submitting to the Crown the charges and
alleged facts found in the July 7th 1995 Crown indictment.

19178560.doc Page 16 of 160


8. There is no evidence to suggest that before May 15th 1995 Bulgarian police or prosecution
authorities had any reason to suspect KAPOUSTIN of criminal misconduct in Bulgaria.
This conclusion is supported by the fact that in September 1994 the Office of the
Solicitor-Attorney General [Main Public Prosecutor] of the Republic of Bulgaria
conducted an investigation of LIFECHOICE and in 1995 inspectors of the Bulgarian
National Bank conducted a separate investigation of the Bulgarian company
LIFECHOICE.

9. Anecdotal and circumstantial evidence strongly suggests that this later inspection by the
Bulgarian National Bank inspectors is directly precipitated by the interest of the Crown in
transfers made by KAPOUSTIN out of Bulgaria.

10. Both investigations concluded that there is no criminal activity on the part of
KAPOUSTIN or LIFECHOICE.

11. On April 14th 1995 the Bulgarian Deputy Minister of Finance Mr. B. Slavkov concluded
that each Depositary Receipt transaction between LIFECHOICE and a Bulgarian citizen
in Bulgaria is subject to Value Added Tax. Usually, foreign governments do not impose
taxes on activities they consider to be criminal in character.

12. According to the cited August 9th 1996 Verbal Note [see §C] issued to the Government of
Germany by Canada Foreign Affairs, the Minister of Foreign Affairs Canada appears
unaware of any R.C.M.P. involvement or the May 15th 1995 “AGREEMENT”. This
suggests that there is a violation of Canadian law arising from this “Agreement from May
15, 1995” and that any preceding or subsequent acts by the R.C.M.P. and DOORNBOS
are therefore unlawful.

13. The Republic of Bulgaria is not a “signatory” to the Mutual Legal Assistance in Criminal
Matters Act", chapter M-13.6 (R.S. 1985, c30 (4th supp.)) 1988, c.37 or a party to any
other treaty with Canada for the exchange of police information or police assistance in a
criminal matter.

14. Mr. Miroslav Genov is identified by the R.C.M.P. and DOORNBOS as being responsible
for the May 15, 1995 “AGREEMENT” with the Government of Canada.

15. Mr. Genov is not an official of the Ministry of Justice of the Republic of Bulgaria and
therefore does not have authority to enter into an agreement with Canada.

16. The Bulgarian Ministry of Interior, the Minister, who employs Mr. Genov. The Bulgarian
Ministry of Interior is not a legally competent Bulgarian government authority under
Article 464 para (2) of the Bulgarian Criminal Code of Procedure in force in May of 1995
and cannot have lawfully submitted a request to the Crown or have implemented a request
from the Crown for legal assistance in criminal matter.

17. From 1995 to December 2000 there is no “administrative arrangement” concerning


KAPOUSTIN between the governments of Canada and Bulgaria.

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18. It is apparent from the July 7th 1995 indictment that on June 13th, 1995 the Crown faxed a
request to the Bulgarian Ministry of Interior requesting a criminal background check on 4
(four) Bulgarian citizens and business associates of KAPOUSTIN. They are Dr. Ph.D.
MD. NENKOV, Dr. Ph.D. MD. PETRUNOV, Mr. NINOV B.S. and corporate attorney
and 25% shareholder in LIFECHOICE Ms. POPOVA.

19. On July 7th 1995, in compliance with an agreement dated 15 May 1995, the Crown orders
command liaison officer, S. Sgt. Derek A. DOORNBOS, Embassy of Canada, Vienna,
Austria, to provide a written indictment and swear out an “INFORMATION” before Mr.
Levicharov of the Bulgarian Ministry of Interior and the Director of [the] Central Service
for [the] Fight Against Organized Delinquency [Centralna slujba za borba s organiziranata
prestapnost – CSBOP].

20. The July 7th 1995 indictment and “INFORMATION” presents what are alleged by the
Crown to be Canadian police conclusions and a prosecutable criminal charge of
misappropriation (fraud). The English translations of alleged police data and conclusions
in its relevant parts reads:

“… [Sic]… The latter [Ivon Shearing] is a partner of MAXWELL and a former


accomplice of KAPOUSTIN to his questionable operations [unidentified] at the
Vancouver stock exchange [British Columbia, Canada]…[sic]…It was established
that last year [1994] 4 million and 12 million USD had been transferred to
several bank accounts [in Canada] of [Ivon] SHEARING …[sic]…It was
established as well that other accounts of SHEARING had been credited with
amounts of about 100,000 USD per day”

“… [Sic]… It is considered [by the R.C.M.P.] as well that most probably a


considerable part of these amounts come from the funds [cash] accumulated in
Bulgaria by KAPOUSTIN through large-scale financial frauds carried out by
his pyramidal structure “LIFECHOICE” [LCIAD]

“Besides this it is established that the transfers go through banks in the Caribbean
Island.”

([ ] and emphasis Mine)

21. The July 7th 1995 indictment is a Crown request that Bulgaria criminally prosecute
KAPOUSTIN “Can a criminal prosecution of any character at all [nakazatelno
proizvodstvo ot kakavto I da bilo harakter] be started against Kapoustin or Life Choice
[LCIAD]?”

22. The July 7th 1995 indictment sets out in clear and certain terms an agreement that if
Bulgarian police and prosecutors comply with the Crown request to arrest and prosecute
KAPOUSTIN, the Crown could then immediately have police obtain a warrant in Canada
to search and seize the property and cash of KAPOUSTIN and the other Canadian citizens
named in the July 7th 1995 indictment. The English translation of the relevant parts reads:

19178560.doc Page 18 of 160


“Now each piece of information or even only supposition [by Bulgaria]
whatsoever about eventual breach of Bulgarian Law by Kapoustin [Applicant]
connected with LifeChoice that your service [CSBOP] could submit [to Canada],
is of special importance for the investigation in Vancouver [Ivon Shearing]. In this
instance our service [RCMP] in Vancouver would be able to obtain search
warrants of the office premises and houses of the aforesaid subjects. In this
situation we [the R.C.M.P.] consider there is every possibility we can successfully
conduct a large scale joint investigation as a result of which the assets
[16,000,000 USD] of SHEARING & Co [Applicant] in Canada will be
confiscated and it would be comparatively easy [for the R.C.M.P.] to prove in
front of the [Canadian] court that these are proceeds from criminal activities [of
KAPOUSTIN in Bulgaria].

… [Sic]

Can a criminal prosecution of any character at all [nakazatelno proizvodstvo ot


kakavto I da bilo harakter] be started against Kapoustin or Life Choice
[LCIAD]?”

([ ] and emphasis mine)

23. The July 7th 1995 Crown indictment also requests that Mr. Levicharov and the Bulgarian
Ministry of Interior “NSBOP” interrogate KAPOUSTIN to obtain data and facts required
by the Crown. Translated from the Bulgarian it reads:

“Have you any additional data or operational information in what direction the
funds obtained by LifeChoice [LCIAD] are being transferred out of Bulgaria?”

([ ] and emphasis mine)

24. The above is significant in that the question repeatedly asked by the Crown [see §A] to
Bulgarian police and prosecution officials and repeated by them to KAPOUSTIN during
his repeated beatings by Bulgarian Ministry of Interior police concerns money located in
banks of Canada. The physical beating and psychological tormenting of KAPOUSTIN
was a frequent routine from September 18th 1996 and ended on or about August 1997.

SECTION BArrest and Extradition of KAPOUSTIN


Part 1 7 February 1996 Frankfurt International Airport

25. On 7 February 1996, KAPOUSTIN was in transit at Frankfurt International Airport to his
family in Kavala, Republic of Greece.

26. KAPOUSTIN was placed under arrested by airport police during the passport verification
process.

27. The arrest of KAPOUSTIN was at the request of German Interpol.

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28. Kapoustin was remanded in police custody in accordance with Article 16§1 of the
European Convention on Extradition (“ECE”).

29. On 2 September1996, the 56th day of his hunger strike, KAPOUSTIN was non-
ambulatory. To be extradited it was necessary that KAPOUSTIN be physically carried
from his prison hospital bed by German police and transported to Frankfurt International
airport. On the same day KAPOUSTIN was extradited to the Republic of Bulgaria.

30. Bulgarian extradition documents alleged that KAPOUSTIN was to face trial in Bulgaria
on the accusations and charges embodied in the 28 November 1995 and 12 February 1996
Order(s) of Detention [warrants of arrest] issued by one police investigator S. Georgiev of
the Bulgarian National Investigative Service (“NIS”) and authorized by the supervising
prosecutor M. Stoyanov of the Sofia District Attorney’s (Prosecutor’s) Office (“SCPO”).

31. The Extradition documents presented to German police, prosecution and judicial
authorities charge KAPOUSTIN with fraud, forgery, tax evasion and embezzlement of
PUBLIC property. The Bulgarian documents were presented in an effort to comply with
Article 12§2(a) of the same European Convention on Extradition (“ECE”).

32. All charges in the Bulgarian extradition request are later dropped or KAPOUSTIN
acquitted. The facts or dispositive of the conviction are amended to a charge of
embezzlement altered from misappropriation of funds belonging and defrauded from the
Bulgarian public to a misappropriation of private property belonging to the Bulgarian
company owned by KAPOUSTIN, “LIFECHOICE INTERNATIONAL A.D.”.
KAPOUSTIN having been “RE-INDICTED” and sentenced to 17 years of hard time. The
factual circumstances and allegations represented in the Bulgarian extradition request and
those found in the conviction are not the same.

33. KAPOUSTIN has served more than 8 years of his 17 year sentence. He is waiting more
than one year for the Government of Bulgarian, Ministry of Justice, to approve a
Corrections Canada request for his transfer to a prison in Canada. The transfer request is
made according the Convention on the Transfer of Sentenced Persons. The Government of
Bulgaria has not provided an official reason for its not agreeing to the transfer of
KAPOUSTIN under the Convention.

34. KAPOUSTIN, according to Article 70 of the Bulgarian Criminal Code and is eligible for
parole in Bulgaria on July 7th 2004.

Part 2 Bulgarian Information as Provided to Interpol

35. On 30 November 1995 Bulgarian NIS investigator Georgiev directed a request to


Bulgarian Interpol. The request is predicated on Article 133 of the Bulgarian Criminal
Code of Procedure. Interpol as in force on November 1995. Police investigator Georgiev
requests Interpol issue an international arrest warrant for KAPOUSTIN with the objective
to extradite him to Bulgarian.

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36. According to Bulgarian national law the police and prosecution are not required to secure
a bench warrant from a Bulgarian criminal court of law or a judge. The 28 November
1995 police warrant is approved by a deputy Sofia District Attorney and raises a criminal
charge alleging the embezzlement of public funds. The criminal charge is qualified under
Article 203 para (1) of the Bulgarian Criminal Code as in force in November of 1995.

37. The data appearing in the international arrest warrant and provided to Interpol and
relevant to this REPORT and Complaint before the Commissioner reads as follows:

"We dispose of the following established and concrete data:

… [Sic];

Some data [unidentified] exists that MICHAEL KAPOUSTIN has developed his
“Pyramidal structures” in the territory of five countries – Canada, USA,
Bulgaria, Greece and Georgia;

… [Sic] …;

We dispose of data that MICHAEL KAPOUSTIN and his wife TRACY


KAPOUSTIN live at present in Greece in the town of Kavala in an apartment on
14-B,Plio St. he has bought a villa on 16,Yadras St.

Being an executive director (Chief Executive Officer) of Life Choice Int. AD in


Sofia his last address in Sofia is Sofia, 96-A, Rakovska St., first floor. He has
offices in Sofia on 16,Knyaz Battenberg St., entrance V, fl. 6, apt. 27 as well as on
3,Krakra St. – premises of the National Institute of Infectious and Parasitic
Diseases. Such an office he has got in Plovdiv on 52, Ruski Blvd.

The investigation under inv. case 195/95 as per the schedule of the National
Investigation Service is being carried out in the absence of the accused MICHAEL
KAPOUSTIN at present by virtue of article 217a and under the conditions of
article 268 par.3 and 4 of CCP [Criminal Code of Procedure] of Bulgarian
Republic.

We received data from the Central Service for Fight against Organized
Delinquency, their ref. 3233/July 17th, 1995 [the R.C.M.P. INFORMATION
subject to this complaint] that the Canadian police in Vancouver are interested
in the international malfeasant activities of M. Kapoustin and his subsidiary
companies, some of them have been registered in the commercial register of
British Columbia province since 1991, and in the following persons [Canadian
citizens]:

KARIN UTE BERGSON, born on July 15th, 1942

DONALD MAXWELL, born on Oct. 23rd, 1950

RADKA K. MILANOVA, born on Jan.1st, 1954, living in Vancouver, Canada

ARTHUR L. MORRISON, born on Jan. 12th, 1935

19178560.doc Page 21 of 160


MARY SLOAN, born on may 5th, 1947

IVON SHEARING, born on April 12th 1928 – an associate of KAPOUSTIN and


MAXWELL in their questionable operations at the Vancouver stock exchange in
Canada. At present SHEARING is the manager of a pseudo-religious organization
called “CABALISTIC PHILOSOPHY”. It was found out that in 1994 only 16
million USD had been transferred to several bank accounts of SHEARING. Most
of the transfers came from Western Europe. Other accounts of SHEARING with
local banks in Vancouver are being credited with amounts of about 100.000 USD
per day.

Most probably large-scale “money laundering” operations are going on. The
Canadian source of this information supposes that it is most likely that a
considerable part of these amounts come namely from the funds accumulated in
Bulgaria by KAPOUSTIN through the large-scale financial frauds carried out
by his pyramidal structure “LIFE CHOICE”. The transfers are affected through
Caribbean banks.

Further to the aforesaid we ask for your assistance before Interpol for arranging
of bilateral meetings with the Canadian competent authorities aiming at
conveying information of mutual interest to both parties.

At the end we ask you for urgent and active search of the accused MICHAEL
KAPOUSTIN through the structures of Interpol throughout the world. There are
data that the latter has circumvented Bulgarian and Canadian Tax Legislation
by cash transfers of large amounts in USD and DM.

A conclusion should be drawn that through the”pyramidal structure” of Life


Choice and by registering of “dead souls” as clients of the latter large amounts
of “dirty money have been laundered”.

([], and emphasis mine]

38. This November 30 1995 Bulgarian police request to Interpol repeats, almost verbatim the July
7th 1995 Crown indictment of KAPOUSTIN.

Part 3 R.C.M.P. “INFORMATION” Released to Mass Media

39. On August 1st 1996, Bulgarian police and prosecution representatives make an public
official statement with the particulars of the KAPOUSTIN case according to details and
police facts provided by the CROWN. Details of the May 15th 1995 meeting with Crown
servant DOORNBOS and the July 7th 1995 Crown indictment of KAPOUSTIN are made
public by supervising police investigator [sledovatel] and arresting officer, S. Georgiev
and Sofia District Attorney Prosecutor Nestor Nestorov. This occurred while
KAPOUSTIN was still remanded to a German prison hospital awaiting his extradition.

40. The most significant of the hundreds of press and electronic media releases is the August
1st 1996 article published by the Bulgarian national daily “Continent” [“Kontinent”]. The
headline reads:

19178560.doc Page 22 of 160


“KAPOUSTIN IS AN INTERNATIONAL SWINDLER
Insists the chief of the Economical Department of the National Investigation
Service, Mr. Stefcho Georgiev.”

41. Sofia District Attorney Nestorov confirms to journalists that the governments of Canada
and Bulgaria are mutually interest in criminally charging KAPOUSTIN. This is confirmed
in the official minutes of the December 13th 1995 operative meeting in Sofia, Bulgaria
attended by Crown servant DOORNBOS. The English translation of the press
announcement reads:

“Mr. Nestorov said ‘that Canada and Bulgaria will struggle [as to] which country
is going to bring action against him [KAPOUSTIN]’”

([], and emphasis mine]

42. In the same interview, police investigator Georgiev confirms to journalists that his
investigative conclusions and the charges against KAPOUSTIN are due to data and facts
provided by authorities of the Government Canada.

43. Georgiev is quoted by journalists as having confirming that the Crown provided him
police data on KAPOUSTIN. The English translation of the relevant parts of this
interview and the R.C.M.P. “INFORMATION” reads:

"[Sic]… [KAPOUSTIN is] a well known fraud for Interpol according to the
Canadian Government”

“[Sic]… [KAPOUSTIN] effected sexual offences against minors [infants, child


abuses] according information from the Canadian authorities”… ([] inserted by
translator.

“[Sic]… [and was] already deceiving others in Georgia”

"[Sic]… [KAPOUSTIN has charges in Canada that] "are old and unclear"

"[Sic]… [KAPOUSTIN] did not form LifeChoice [in Canada] and didn’t dare to
lie to people that insolently [in Canada]”

"[Sic]… Kapoustin should be responsible for over 18,000,000 USD, which he


managed to steal away from Bulgaria" [and that according to Canadian
authorities the is money stolen from Bulgaria citizens] “[KAPOUSTIN sent to
Canada through] the Caribbean islands”

([], and emphasis mine]

44. KAPOUSTIN and his family in Canada submitted a request that the Government of
Canada immediately clarify if the Bulgarian public statement of Canadian government
(R.C.M.P.) involvement was true. KAPOUSTIN and his family sought to immediately
learn what official of the Government of Canada was responsible for having uttered the

19178560.doc Page 23 of 160


maliciously injurious lies that according to Canadian authorities KAPOUSTIN was
among other things a convicted child molester.

45. These slander and libels of the Crown are reproduced in, but are not limited to, the
following Bulgarian media:

• May 17-23, 1995, Newspaper "Nosten Zhivot" (Night Life)


• June 7, 1995, Newspaper "Trud"
• June 19-25, 1995, Newspaper "Capital"
• June 26, 1995, Newspaper "Trud"
• July 8, 1995, Newspaper "24 Chasa" (24 Hours)
• July 13, 1995, Newspaper "Continent"
• July 14, 1995, Newspaper "24 Chasa" (24 Hours)
• July 18, 1995, Newspaper "Pari" (Money)
• July 19, 1995, Newspaper "Cash" No 19
• July 20, 1995, Newspaper "24 Chasa" (24 Hours)
• July 24, 1995, Newspaper "24 Chasa" (24 Hours)
• July 24-30, 1995, Newspaper "Capital"
• July 31, 1995, Newspaper "Continent"
• August 1, 1995, Newspaper "Trud" (Labour)
• October 15, 1995, Newspaper "Weekly Standard"
• December 5, 1995, Newspaper "24 Chasa" (24 Hours)
• December 8, 1995, Newspaper "24 Chasa" (24 Hours)
• December 18, 1995, Newspaper "24 Chasa" (24 Hours)
• December 23, 1995, Newspaper "Pari" (Money)
• Newspaper "Nedelen Novinar" ?
• July 8, 1995, Newspaper "24 Chasa" (24 Hours)
• July 13, 1995, Newspaper "Continent"
• July 14,1995, Newspaper "Trud" (Labour)
• July 18, 1995, Newspaper "Pari" (Money)
• July 19, 1995, Newspaper "Cash" No 29
• July 20, 1995, Newspaper "24 Chasa" (24 Hours)
• July 24, 1995, Newspaper "Business Trud"
• July 24-30, 1995, Newspaper "Capital"
• July 31, 1995, Newspaper "Continent"

19178560.doc Page 24 of 160


• August 1, 1995, Newspaper "Trud" (Labour)
• August 8, 1996, Newspaper "Standard"
• September 5, 1995, Newspaper "Trud" (Labour)
• October 15, 1995, Newspaper "Weekly Standard"
• December 5, 1995, Newspaper "24 Chasa" (24 Hours)
• December 18, 1995, Newspaper "24 Chasa" (24 Hours)
• December 23, 1995, Newspaper "Pari" (Money)
• February 14, 1996, Newspaper "Standard"
• February 15, 1996, Newspaper "Standard"
• February 22, 1996, Newspaper "Standard"
• February 24, 1996, Newspaper "Standard"
• June 25-27, 1996, Newspaper "Cash" No 25
• July 22, 1996, Newspaper "24 Chasa" (24 Hours)
• July 31, 1996, Newspaper "Continent"
• August 1, 1996, Newspaper "Continent"
• August 8, 1996, Newspaper "Standard"
• August 21, 1996, Newspaper "Novinar"
• August 21, 1996, Newspaper "24 Chasa" (24 Hours)
• August 21, 1996, Newspaper "Trud" (Labour)
• August 22, 1996, Newspaper "24 Chasa" (24 Hours)
• August 23, 1996, Newspaper "Standard"
• November 11, 1996, Newspaper "24 Chasa" (24 Hours)
• November 23, 1996, Newspaper "24 Chasa" (24 Hours)
• February 23-March 1, 1998, Newspaper "Banker"
• May 25-31, 1998, Newspaper "Banker"
• December 7-13, 1998, Newspaper "Banker"
• March 5, 1999, Newspaper "Trud" (Labour)
• March 5, 1999, Newspaper "24 Chasa" (24 Hours)
• March 26, 1999, Newspaper "Trud" (Labour)
• April 14, 1999, Newspaper "Duma" (Word)
• April 16, 1999, Newspaper "24 Chasa" (24 Hours)
• April 17, 1999, Newspaper "24 Chasa" (24 Hours)
• April 17, 1999, Newspaper "Trud" (Labour)

19178560.doc Page 25 of 160


• May 3-9, 1999, Newspaper "Banker"
• September 8, 1999, Newspaper "Trud" (Labour)
• October 18-24, 1999, Newspaper "Banker"
• December 15, 1999, Newspaper "Trud" (Labour)
• December 16, 1999, Newspaper "Cash"
• January 11, 2000, Newspaper "Monitor"
• January 11, 2000, Newspaper "Sega" (Now)
• January 11, 2000, Newspaper "Trud" (Labour)
• January 12, 2000, Newspaper "24 Chasa" (24 Hours)
• January 12, 2000, Newspaper "Sega" (Now)
• January 12, 2000, Newspaper "Standard"
• January 12, 2000, Newspaper "Monitor"
• January 12, 2000, Newspaper "Trud" (Labour)
• January 15, 2000, Newspaper "Trud" (Labour)
• January 15, 2000, Newspaper "24 Chasa" (24 Hours)
• January 18, 2000, Newspaper "Trud" (Labour)
• January 18, 2000, Newspaper "24 Chasa" (24 Hours)
• January 18, 2000, Newspaper "Sega" (Now)
• January 18, 2000, Newspaper "Novinar"
• January 18, 2000, Newspaper "Novinar"
• January 25, 2000, "Democracia" (Democracy)
• February 29, 2000, Newspaper "Sega" (Now)
• March, 3, 2000, Newspaper "Sega" (Now)
• March 17, 2000, Newspaper "Cash", No. 11
• April 8, 2000, Newspaper "Monitor"
• April 11, 2000, Newspaper "Monitor"
• April 11, 2000, Newspaper "Standard"
• April 11, 2000, Newspaper "24 Chasa" (24 Hours)
• April 11, 2000, Newspaper "Trud" (Labour)
• April 11, 2000, Newspaper "Sega" (Now)
• April 11, 2000, Newspaper "Standard"
• April 25, 2000, Newspaper "Monitor"
• April 25, 2000, Newspaper "Trud" (Labour)

19178560.doc Page 26 of 160


• June 6, 2000, Newspaper "Duma" (Word)
• June 6, 2000, Newspaper "Trud" (Labour)
• July 4, 2000, Newspaper "Novinar"
• July 4, 2000, Newspaper "Standard"
• July 4, 2000, Newspaper "Trud" (Labour)
• July 6, 2000, Newspaper "Standard"
• July 7, 2000, Newspaper "24 Chasa" (24 Hours)
• July 7, 2000, Newspaper "Standard"
• July 7, 2000, Newspaper "Trud" (Labour)
• Sept. 5, 2000, Newspaper "24 Chasa" (24 Hours)
• September 5, 2000, Newspaper "Novinar"
• September 5, 2000, Newspaper "Sega" (Now)
• September 5, 2000, Newspaper "Standard"
• September 8, 2000, Newspaper "Novinar"
• September 8, 2000, Newspaper "Monitor"
• September 8, 2000, Newspaper "Sega" (Now)
• September 8, 2000, Newspaper "Trud" (Labour)
• September 9, 2000, Newspaper "Trud" (Labour)
• September 26, 2000, Newspaper "Sega" (Now)
• September 26, 2000, "Democracia" (Democracy)
• September 26, 2000, Newspaper "Novinar"
• September 2000, Magazine "Society and Law", No. 3
• October 24, 2000, Newspaper "Standard"
• October 24, 2000, Newspaper "Trud" (Labour)
• October 24, 2000, Newspaper "Novinar"
• October 24, 2000, Newspaper "Sega" (Now)
• October 24, 2000, Newspaper "Monitor"
• November 22, 2000, Newspaper "Novinar"
• November 22, 2000, Newspaper "Trud" (Labour)
• November 24, 2000, Newspaper "Novinar"
• December 6, 2000, Newspaper "Novinar"
• December 22, Newspaper "Cash", No. 51
• January 6-12, 2001, Newspaper "Banker", No. 1

19178560.doc Page 27 of 160


• January 13-19, 2001, Newspaper "Capital"
• January 9, 2001, Newspaper "Trud" (Labour)
• January 14, 2001, Newspaper "Trud" (Labour)
• January 16, 2001, Newspaper "Novinar"
• January 16, 2001, Newspaper "Sega" (Now)
• January 16, 2001, Newspaper "24 Chasa" (24 Hours)
• January 18, 2001, Newspaper "Sega" (Now)
• January 18, 2001, Newspaper "Standard"
• January 20-26, 2001, Newspaper "Banker", No. 3
• February 3-9, 2001, Newspaper "Banker", No. 5
• February 17, 2001, Newspaper "Novinar"
• March 14, 2001, Newspaper "Monitor"
• March 14, 2001, Newspaper "24 Chasa" (24 Hours)
• March 14, 2001, Newspaper "Standard"
• March 14, 2001, Newspaper "Trud" (Labour)
• March 14, 2001, Newspaper "Novinar"
• March 14, 2001, Newspaper "Sega" (Now)
• March 16, 2001, Newspaper "24 Chasa" (24 Hours)
• March 16, 2001, Newspaper "Cash", No. 11
• March 17-23, 2001, Newspaper "Capital"
• March 17-23, 2001, Newspaper "Banker", No. 11

SECTION CGovernment of Canada Denials

46. On August 9th 1996, Canada’s Embassy to the FRG, Bonn, issued a statement to the
governments of Germany and Bulgaria. In part the “Note Verbal” to the German Foreign
Ministry reads:

“… [Sic] …

The Canadian Embassy would also like to draw to the attention of the Foreign
Ministry an article that was published in the Bulgarian newspaper Kontinent on
01 August 1996 which quotes the Chief of the Economic Crimes department of the
National Investigation Department, Mr. Stefcho Georgiev, as stating that Michael
Kapoustin ‘committed sexual assaults against minors, according to information
received from the Canadian authorities’. This statement is not substantiated.

19178560.doc Page 28 of 160


The department of Foreign Affairs and International Trade of Canada has
consulted Canadian and International police authorities, and confirm there are
no records of this nature in Canada regarding Mr. Kapoustin.

Considering the above, the Canadian Embassy again expresses its concern with
the climate that is being created in Bulgaria by the authorities in anticipation of
extradition, and asks the German authorities to confirm that they are satisfied that
Mr. Kapoustin would receive fair and equitable treatment within the Bulgarian
legal process, were he to be extradited.

… [Sic] …”

([], and emphasis mine]

SECTION DPhysical and Mental Torture of Kapoustin

47. Beginning on or about September 17th 1996 This physical and mental torture involved
KAPUSTIN being beaten about the shoulders, back, buttocks and legs. The sound of the
blows was muffled through blankets and effected by hard, yet flexible, plastic or rubber
clubs.

48. Each beating incident involved 4-6 masked individuals one of whom repeatedly
interrogated KAPOUSTIN in poor English concerning funds purported to be ensconced in
Canada with criminal associates identified to the Government of Bulgaria by agencies of
the Government of Canada.

49. Subsequent to these beatings KAPOUSTIN was kept in isolation for days, often weeks,
without any contact except the investigator supervising the case. A beating might last as
little as 5 minutes with the longest being approximately 10 minutes.

50. During the 1996 and 1997 episodes of abuse KAPOUSTIN was repeatedly given, without
his knowledge, psychotropic drugs to disorient and deprive him of sleep. This induced
moods of extreme depression, helplessness and hallucinations.

51. Subsequent to these episodes KAPOUSTIN would again be interrogated upon the subject
matter of the funds in Canada and his returning those funds to the Republic of Bulgaria.

52. Each time KAPOUSTIN denied having any knowledge of the funds he encountered
assurances by his interrogators that the information was accurate and provided by
Canadian authorities who sought together with Bulgaria the return of these funds.

53. Bulgarian interrogators were certain KAPOUSTIN was lying and therefore extended their
beatings. Their investigation of KAPOUSTIN continued for more than 4 years before
committing KAPOUSTIN to trial. There was no judicial supervision prior to trial.

54. The Government of Bulgaria and Bulgarian citizens continue to this day to believe that
there are funds in Canada as represented to them by the DOORNBOS “INFORMATION”.

19178560.doc Page 29 of 160


Bulgarian authorities and citizens persistently demand that KAPOUSTIN forward to
Bulgaria the money in Canada. There is documented evidence that the Bulgarian Deputy
Minister of Justice, Mr. Mario Dimitrov and the Bulgarian Solicitor General Filchev are
maintaining before Canada Foreign Affairs that KAPOUSTIN does in deed have
DOORNBOS “millions” as cited in the “INFORMATION” and that KAPOUSTIN must
pay this money to the State of Bulgaria and Bulgarian citizens before any transfer to a
prison of Canada or his release on parole. This notwithstanding his acquittal on the
allegation found in the DOORNBOS “INFORMATION”.

55. The R.C.M.P. “INFORMATION” was translated from English and presented to the
Ministry of Interior by a Mr. A. Kosev, “KMC” [phonetic], Ministry of Interior
[Ministerstvo na vatreshnite raboti].

56. On 17 July 1995, the Bulgarian Ministry of Interior Ref. № 3233, the Minister agreeded
to accept the sworn R.C.M.P. “INFORMATION” provided by DOORNBOS.
KAPOUSTIN and his company LIFECHOICE would be prosecuted solely on the data
and other “police facts and conclusions” made by the R.C.M.P. in the sworn
“INFORMATION”. At the order of “M”, as countersigned “MV”, the Bulgarian Ministry
of Interior, Central Service For [the] Fight Against Organized Crime [CSBOP] ordered
Bulgarian prosecutors to “Take legal Action” or “Open a prosecution case” against
KAPOUSTIN [Da se zavede delo].

57. On 7 September 1995 Prosecutor Mindova of the Sofia District Attorney’s Office
provided the Sofia Department of the Bulgarian Ministry of Interior Economic Police
Sector 02 material containing data for fraud [in Bulgaria] as provided from the
Canadian Embassy, Vienna, Austria through the offices of the Bulgarian Solicitor
General [Main Public Prosecutor].

58. It is apparent from this document that the arrest and prosecution of KAPOUSTIN in
Bulgarian is the direct result of the R.C.M.P. “INFORMATION”. This is supported by the
fact that the 7 September 1995 letter of Deputy Sofia District Attorney Mindova instructs
police investigators to act on the charges and police facts in the R.C.M.P.
“INFORMATION”. The English translation of the letter reads:

“Herewith enclosed we send you a translation from English language of a


material sent [the R.C.M.P. “INFORMATION] to MPPO [Solicitor General] of
RB [Republic of Bulgaria] by the Central Service for Fight against Organized
Delinquency – MHA [Bulgarian Ministry of Interior] according to information
from the Canadian Embassy in the Republic of Austria
[DOORNBOS]concerning the activities of company Life Choice Int. AD. This
material contains data for fraud by Michael Kapoustin and other persons. To be
attached to the correspondence and verified.

We send you a letter from the Finance Ministry – Sofia Tax Administration as well
to be attached to the correspondence.

Enclosure: as per text”

19178560.doc Page 30 of 160


([ ] and emphasis mine)

59. On October 29th 1995, the National Investigative Service, Investigator Georgiev, began
the “OFFICIAL” criminal investigation of KAPOUSTIN and his company based on the
R.C.M.P. “INFORMATION” of July 7th 1995. As a result, all the offices of KAPOUSTIN
where seized and closed, as was all the property and bank accounts of his Company
LIFECHOICE.

60. On 28 November 1995, police investigator (sledovatel) S. Georgiev brought a charge of


embezzlement qualified according to Article 203§1 of the Bulgarian Criminal Code. In
English the accusation against KAPOUSTIN reads:

" I Stefcho Georgiev, prosecution investigator upon the National Prosecution


Investigation Service, Sofia, today 27th day of November 1995, in the city of Sofia
and with referring to the evidences pertinent to the criminal case registered under
file number 195/1995 in the register of the National Prosecution Investigation
Service, have established that the person being investigated, named MIHAIL
KAPOUSTIN, born November 06, 1952, in Canada, address Sofia, 96-A
Rakovska" street., fl. 1 - central office, has committed criminal offences (offences
to be specified - where, when and how each of them has been perpetrated). In his
official capacity of executive director of the company LifeChoice International
Share Holding Company [LCIAD] and with the conditions of constantly
perpetrated crime, for the period of time April 1, 1993 till August 1, 1995, has
embezzled the corporate money as placed in his care and running under the said
capacity of him, and has misused of this money for his own or of another personal
benefit, this embezzlement in the sum of more than USD 5 million. Having an
especially great value and representing an especially aggravated case.

The committed offence is found under Article 203, § 1 ref. Article 26,§ 1 of the
Penal [Criminal] Code.

and with considering the degree of the danger to society of the offences
committed, the personality of the perpetrator, the possibility of his non-attendance
and other facts: the great degree of the danger to society - damaged in the amount
of more than 5 million. USD were thousands of Bulgarian citizens - investors of
the LifeChoice International Share Holding Company [LCIAD], Sofia and in
compliance with the prescriptions of the p.5 of the Directions Letter of the District
Attorney of Sofia [Sofia City Prosecutor's Office - phonetic SGP - Sofiiska
Gradska Prokuratura] according to Articles 146 - 148, 152, 207, 209, 212,of the
Penal Procedure Code [Criminal Procedure Code (CPC)]

HAVE RULED:

1. To bring a charge against MIHAIL KAPOUSTIN as accused for the criminal


offences stated herewith as per Article 203, § 1, ref. Article 201, ref. Article 26 § 1
of the Criminal Code of Republic of Bulgaria.

2. … [Sic]

19178560.doc Page 31 of 160


61. On 30 November 1995 NIS investigator Georgiev brought his request to Interpol [see
above §2]. The Commissioner is requested to closely examine the data and facts presented
to Interpol on November 30th 1995; repeated again in the international warrant of February
7th 1996 [see above §1] and the R.C.M.P. “INFORMATION” of July 7th 1995 [see above
§A].

62. NCB Interpol refused the November 30th 1995 request of NIS investigator Georgiev

63. On 15 December 1995, Bulgaria’s Deputy Solicitor General Prosecutor Doichev presented
a second request to the Head of NCB Interpol Sofia, a Mr. Hristov. This “request” was
actually an “ORDER” and directed Interpol Sofia to issue an International Arrest Warrant
for KAPOUSTIN. Interpol representatives were to give no consideration to the merits or
quality of facts or compliance with international law. Interpol NCB Sofia was to abnegate
its independence, if any, as part of an international organization. The English translation
of the “ORDER” reads:

"I ORDER:

"NCB "INTERPOL" - MHA to inform the bureaus of "INTERPOL" of the member


countries in order to trace (discover) MICHAEL KAPOUSTIN. After finding him
the latter to be detained (arrested) because of the crime committed by him in the
Republic of Bulgaria and the Bulgarian party to be notified about this in order to
send the necessary procedural documents to extradite MICHAEL KAPOUSTIN to
the Republic of Bulgaria.

"You are requested to notify the Main Public Prosecutor's Office after effecting the
actions in connection with my order.

64. On 13 December 1995, in Sofia, the R.C.M.P. (DOORNBOS) held a tactical meeting with
Bulgaria police and prosecution officials to discuss KAPOUSTIN. This occurred
immediately after Bulgarian authorities issued national and international arrest warrants
and confirmed to the R.C.M.P. that the Bulgarian Government had agreed with the
R.C.M.P. request to arrest and prosecute KAPOUSTIN on the charges and facts found in
the “INFORMATION”.

65. KAPOUSTIN would be prosecuted according to the R.C.M.P. request under Bulgarian
criminal law. It was agreed that Bulgarian police and prosecution officials would collect
from KAPOUSTIN and his company LIFECHOICE the information requested by
DOORNBOS.

66. In attendance on December 13th 1995 at the offices of A. Alexandrov were, inter alio,
Anatolii Kosev - department of “International Relations”, Bulgarian Ministry of Interior;
Miroslav Genov, Central Service for [the] Fight Against Organized Delinquency; Roumen
Andreev, deputy chief, National Investigative Service and police investigator [sledovatel]
S. Georgiev and DOORNBOS.

19178560.doc Page 32 of 160


67. A Memorandum of this tactical meeting was directed to Mr. Rashkov, Head of the
National Investigative Service. The English translations of parts relevant to the complaint
before the Commission read:

Mr. Rashkov,

… [Sic]…

… [Sic] …

… [Sic] …

During the conversations held in an operative order we specified that it is of


mutual interest for the Bulgarian and Canadian authorities to establish the entire
criminal activity of Michael Kapoustin in his large scale financial frauds and the
incoming to Canadian and Caribbean banks of millions of USD from East and
West Europe.

Mr. DOORNBOS submitted a visiting card and the fax message on which we
could ask our questions to the Canadian Economic Police in Vancouver and
they would send a response on what they had done in an operative order through
CSFAOD or NIS.

… [Sic] …

([ ] and emphasis mine)

68. On 1 April 1996, the R.C.M.P. faxed Bulgarian police and prosecution officials. This
correspondence occurred subsequent to the arrest of KAPOUSTIN in Germany. The fax
was sent by R.C.M.P. Command Liaison Attaché, S. Sgt. DOORNBOS from the Embassy
of Canada, Vienna Austria to Mr. Roumen Andreev, Deputy Director of the National
[Prosecution] Investigative Service. The fax reads:

“You will recall that we met in December [13th]1995 in the office of Mr. Stefan
Gueorgiev Deputy Chief of the Economic Division. I am aware that Kapoustin has
been arrested on your behalf in Germany some weeks ago. I am advised by the
police in Sofia that the case of Kapoustin now falls entirely within your
jurisdiction.

Could you advise please if your further investigation had determined [the where,
how or end destination of the money which Kapoustin defrauded from
[Bulgarian investors]

Were you able to identify offshore banking institutions, account numbers


[illegible?]

I am asking this as it is a very real possibility, as suggested in December that


some of the funds may have been eventually transferred to Canada. If you have

19178560.doc Page 33 of 160


any information in this regard please advise. If not we will close our file with
respect to Kapoustin and LifeChoice.”

([ ] and emphasis Applicant’s)

69. On 1 August 1996, the particulars of R.C.M.P. involvement in the arrest and prosecution
KAPOUSTIN became public in the mass media [see above §3].

70. The R.C.M.P. and DOORNBOS are the obvious source of “information from the
Canadian authorities” referenced in the August 1st 1996 interviews.

71. On or about 9 August 1996, the Government of Canada, Embassy to the FDRG, Bonn,
issued its “Note Verbal” [see above §C].

72. On 14 August 1996, R.C.M.P. Command Liaison, S. Sgt. D. A. DOORNBOS replied to a


31 July 1996 faxed inquiry from Bulgarian Ministry of Interior Officer Colonel D.
Vangelov the Director of “CSCOC [acronym unknown]”. The R.C.M.P. faxed reply
concerned a Bulgarian request for an investigation in Canada of the company
“International Pharmaceutical Suppliers [Inc.]”. The relevant parts of the R.C.M.P. fax
reads:

“Further to your fax 389/31.07.96 I passed the information therein onto our
Proceeds of Crime Unit in Vancouver. … The firm … is not/not known in police
indices in Canada … [sic] … For any criminal traces of this company in Texas
inquiries would have to be made by your prosecutors’ office with USA authorities.

Aside from the Canada wide criminal warrants [unidentified] of arrest for
Kapoustin [Applicant] Vancouver POC [Proceeds of Crime] has confirmed that
several civil lawsuits have also been filed against Kapoustin [Applicant],
LifeChoice and Don Maxwell in the courts in British Columbia.

Could you please pass this information to Mr. Stefan Georgiev [Georgiev] of the
National Prosecution Investigative Bureau [agency unknown] and ask him to
please advise us when or if any information is found regarding Kapoustin
[Applicant] having transferred monies to Canada.”

([ ] and emphasis Applicant’s)

73. On 23 August 1996, R.C.M.P. Command Liaison S. Sgt. DOORNBOS provided Colonel
D. Vangelov, Director, Central Service for Combating Organized Crime (CSCOC)
(CSBOP) a 6 page investigative police report and conclusions prepared by R.C.M.P. S.
Sgt. Vander Graff (Acting) Officer in Charge, Proceeds of Crime Section, Vancouver,
British Columbia. Relevant parts of the faxed investigative report reads:

“Re: Michael Kapoustin [Applicant

As noted … [sic] … the purpose of receiving civil files to determine information


contained in them may be relevant to the criminal investigations in Canada and
Bulgaria with respect to Kapoustin, et al [others, underlined].

19178560.doc Page 34 of 160


… [sic] …

… [sic]…

… [sic] …

Detective Desmarais has not approached Don Maxwell and requested an


interview as yet. Maxwell was obviously very involved in the LifeChoice [Canada]
business as well as other business ventures involving Kapoustin until their
apparent ‘falling out’. Maxwell also is likely in possession of information with
respect to the Kabalarian funds transfer [Ivon Shearing] which, as you know,
was the original precipitator of the Vancouver PCS [Proceeds of Crime Section]
investigation. At present, there does not appear to be a substantial likelihood of
charges [against KAPOUSTIN] arising from the Kabalarian [Canadian] side of
the investigation however to properly complete the investigation Maxwell should
be interviewed.

The Def. Desmarais is prepared to conduct the interview of Maxwell and direct
whatever questions the Bulgarian authorities may have to Maxwell, however
because of the volume of material in the civil court registry as well as the
complicated nature of the Bulgarian fraud investigation, some consideration
should be given to a Bulgarian investigator attending Vancouver …[sic]”

([ ] and emphasis Applicant’s)

74. In the 23 August 1996 fax RCMP Command Liaison, S. Sgt. DOORNBOS requests that
Col. D. Vangelov forward a message to police investigator S. Georgiev. That faxed
message reads:

“The attached message (page 2 thru 7) was received from the Vancouver RCMP
Proceeds of Crime Unit. There is some information therein that may be useful for
Mr. Stefan GUEORGIEV [Georgiev] of the National Prosecution Investigation
Bureau [no such agency, obviously the National Investigative Service] with
respect to Kapoustin and companies and accounts that he had in the Caribbean.

Could this be passed to Mr. GUEORGIEV [Georgiev] and ask that he in turn pass
any comments he may have on to me directly. I am still very much interested in
any indication he has that any of Kapoustin gains [transfers] from the fraud in
Bulgaria ended up in Canada.”

([ ] and emphasis Applicant’s)

75. On September 2nd 1996, KAPOUSTIN was extradited to Bulgaria [see above §1].
KAPOUSTIN was hospitalized in Bulgaria from September 2 to September 16th 1996.

76. On September 16th 1996, KAPOUSTIN was removed to a high security solitary
confinement remand facility operated by the Bulgarian National Investigative Services.

77. On September 18th 1996, the beatings and interrogation of KAPOUSTIN commenced.

19178560.doc Page 35 of 160


78. Central to Bulgarian police employing physical (beatings) and psychological coercion
(isolation and sense deprivation) [See Beatings and Circumstances of Bulgarian Arrest]
was their desire to provide the R.C.M.P. with the data and facts repeatedly requested by
DOORNBOS concerning the bank accounts and transfers of funds made by KAPOUSTIN
to Canada and the Caribbean. This enquiry is repeated again and again by DOORNBOS
and the R.C.M.P. Vancouver Proceeds of Crime Unit communications to Bulgarian police
and prosecution officials [See above §§A, D, D, D, D, D, and D; See Index “transfers”]

79. The repeated and intense requests by DOORNBOS for the information concerning bank
transfers made by KAPOUSTIN from Bulgaria to Canada is what precipitated the
beatings and torture of KAPOUSTIN.

80. Bulgaria police and prosecution officials proved anxious to obtain the information from
KAPOUSTIN. This information was requested by the Government of Canada on what we
know to be the following dates; May 15, July 7, September 7 and December 13 of 1995
and again on April 1, August 14 and August 23 of 1996 and lastly on July 2 1997.

81. On July 2nd 1997, R.C.M.P. Command Liaison, S. Sgt. DOORNBOS provided to Bulgaria
police and prosecution officials a copy of a British Columbia Civil Action where
KAPOUSTIN is representing several corporate plaintiffs. This document was provided in
response to a 25 June 1997 telephone call and 26 June 1997 fax from Bulgarian police and
prosecutors to DOORNBOS. In a fax message of the same date the DOORNBOS ends his
letter with a request to the Bulgarian authorities that reads:

“Subject: Michael KAPOUSTIN (Kapoustin) et al

… [Sic] …

I am still awaiting in writing, confirmation, information and a Rogatory


Request promised by Mr. Stefan GUEORGIEV [Georgiev] regarding funds that
Kapoustin transferred [transfer] to Canada, specifically to the law office of
McCandless, Morrison & Verdicchio.

Please advise this regard.”

([ ] and emphasis Applicant’s)

82. The beatings and isolation of KAPOUSTIN is common knowledge to Bulgarians familiar
with the interrogation techniques of the Bulgarian National Investigative Service and
Bulgarian Ministry of Interior Treatment of Detainees and Conditions in Bulgaria.

83. On November 1st 1996, the Embassy of Canada to Bucharest, Romania, received a formal
request to assist Bulgarian “investors” and the alleged “victims”. The request shows
concerned over the physical safety and health of KAPOUSTIN and asks the Government
of Canada to arrange a visit with KAPOUSTIN. Bulgarian police and prosecution officials
refuse KAPOUSTIN all visitors. The letter is signed by 16 Bulgarian citizens and reads:

19178560.doc Page 36 of 160


“We are writing you on the occasion of the detention of the Canadian citizen Mr.
Mihail Kapoustin.

We are investors in “LifeChoice International” – AD, Bulgaria, whose executive


director Mihail Kapoustin is. We are sincerely concern[ed] about his health
condition. We think that his detention causes serious damages to the activities of
the company and our interests.

We are asking for your help in obtaining a permission to visit Mr. Mihail
Kapoustin, as so far, regardless our repeating requests to the appropriate
authorities, we have no[t] received any answer.”

([ ] and emphasis Applicant’s)

84. On 15 May 1997 the Canadian Government presented Bulgarian Minister of Foreign
Affairs a diplomatic note protesting. inter alia, the legal maximum period [according to
the Bulgarian Criminal Code of Procedure] that KAPOUSTIN can remain in remand will
expire on 1 June 1997; concerns that detention of KAPOUSTIN will be further extended;
the investigation’s already considerable length of more than 2 years; that arrest warrants
date back to 17 July 1995; the investigation was conducted as well during Applicant’s
detention in the FRG plus nine (9) months since KAPOUSTIN was extradited; that 26
months to investigate was adequate time to fix the final charges and order trial or
alternatively release KAPOUSTIN pending same; further investigation and detention
amounts to punishment without trial; all others similarly charged to KAPOUSTIN in other
cases are released and therefore the KAPOUSTIN should be released on bail [security]
pending trial.

85. On 23 May 1997 Canada Foreign Affairs received a case note (Note sur le cas)
concerning the Applicant’s arrest/detention, the relevant parts read:

“Consul and HonCon visited subj 15 May. Subj appeared to be in good physical
condition but was mentally distressed as a result of his continued detention and
lack of news concerning setting of trial date. Legal counsel has advised him that
trial date (if there is to be one) may take another one or two years. It proved
impossible to obtain any corroborating info from investigator’s office.

Corruption abounds within the prosecutor’s office according to local news


reports. Investigator Georgiev has been removed from office with a replacement
to be named in coming weeks. Whether this will or will not delay proceedings
remains to be seen. Legal counsel advises they are having access problems as a
result of a more rigorous application of existing law; they will pursue matter of
access with prosecutor’s office. Subj. also complained that since consul’s last visit
18 March he had been denied access to exercise facility on a regular basis.
Temporary investigator/replacement (deputy?) stated that the problem would be
resolved. HonCon has been asked to follow up on a regular basis during the
period June/September and will forward reports via cons/[illegible] Bucst.

Subj. has requested CANADA advise him as to what steps/process may be used to
hasten investigation and trial. According to him and his legal counsel Bulgaria

19178560.doc Page 37 of 160


has already been taken to the European Court of Justice in Strasbourg for a case
of illegal detention. Court decision approx. 2 months was in favor of the plaintiff
against Bulgaria. Subj wishes to follow same route and legal counsel stated they
may file suit in July. Subj has also requested German authorities be advised that
he is not being tried for offences for which he was extradited and has asked for
Germany to assist with having case more speedily brought to trial. Subj has
requested that you keep Mr. Kap informed of all measures taken.

Diplo note which follows was presented to MFA 15 May. Ambassador Duguay will
pursue matter with MFA and Prosecutor during visit scheduled for 11 – 13 June.

… [sic] …”

([ ] and emphasis Applicant’s)

86. On July 2, 1997, DOORNBOS personally appears in Sofia, Bulgaria to give evidence
against KAPOUSTIN. DOORNBOS appears with court certified documents collected by
the R.C.M.P. in Canada and to be used in an effort to secure the conviction of
KAPOUSTIN by a Bulgarian criminal court. This occurs more than two years from the
initial R.C.M.P. contact and request that KAPOUSTIN be prosecuted by Bulgarian police
and prosecution authorities.

87. DOORNBOS swears to and personally delivers in Sofia, Bulgaria evidence against
KAPOUSTIN before Bulgarian “magistrate” [investigator] R. Kirov. This done without
the implementation or administration of the either Canada’s Solicitor General and
Minister of Justice or Canada’s Minister of Foreign Affairs. The evidence DOORNBOS
has collected in Canada is done without supervision by a competent court of Canada.
According to DOORNBOS this document might help convict KAPOUTSIN.

88. The 7 July 1995 R.C.M.P. “INFORMATION” and investigative conclusions prove a
formal request and charge provided by the Government of Canada to the Government of
Bulgaria. This “INFORMATION” and the related correspondence qualify the suppositions
and unverified conclusions of DOORNBOS to the elevated status of “official police facts”
and “investigative conclusions” of the R.C.M.P.

89. On 25 July 2000, the family of the KAPOUSTIN brought civil action in British Columbia
Supreme Court civil Action No, S004040, and Vancouver Registry against RCMP
Command Liaison S. Sgt. DOORNBOS and others.

90. The claim, inter alia, alleges that Canada Charter of Rights and Freedoms and
Consolidated Federal and Provincial Privacy Act(s) [R.S.C. 1985, R.S.B.C. 1996] have
been breached by DOORNBOS. No action against the Government of Canada appeared
possible on account that at the time KAPOUSTIN believed DOORNBOS had acted alone.

91. The lawsuit was brought immediately after KAPOUSTIN learned of the R.C.M.P.
“INFORMATION” and other exchanges between the R.C.M.P. and police and prosecution

19178560.doc Page 38 of 160


officials of the Republic of Bulgaria. Paragraphs 41 and 42 of the KAPOUSTIN
Statement of Claim read:

§41“The Plaintiffs have not asserted that the Claim falls within the purview of
Section 32 (1) of the Canadian Charter of Rights and Freedoms (the “Charter”).
Had the Plaintiffs so elected they would allege breaches of s. 15 (1) which
triggered “a situation that is simply unacceptable” [ see USA v. Arllard (1991), 64
C.C.C. (3d) 159 at p. 522] under s. 12 of the Charter, the acts in question and
consequences thereof offending the Canadian sense of what is fair, right and just
under s. 11 (a) and (d), s. 9, s. 8 and s. 7 of the Charter in relationship to the
nature of the cause and considerations of comity and security, and after having
granted due latitude and having maintained a perspective for the reasonable
requirements of law enforcement as demonstrately justifiable in a free and
democratic society. The breaches of Charter rights arise from the violations of law
pleaded herein. This court, in such instance, would have competent jurisdiction in
this district over the subject matter of this claim pursuant to s. 24 (1) of the
Charter. Plaintiffs would then claim that the officials, agencies and
instrumentalities of the Government of Canada did violate the law promulgated
under the (Provincial) Protection of Privacy Act [R.S.B.C. 1996] Chapter 165,
Section 15 (h), S. 30 and S. 28 in conjunction with S. 22 (1); the (Federal) Privacy
Act [R.S.C. 1985] Section 8 (1) and further re-allege that the acts and
transactions of, inter alia, preparation of false, misleading and slanderous
materials; the sending abroad of same; causing the public distribution and
publication of information protected by law and the preparation and delivery
abroad of official reports and documents was adequate proof of common law torts
of privacy, defamation and slander as having occurred in this Court’s district.

§42Plaintiffs would further allege that violations of law and the Charter arise
from acts affected by a foreign state, its agents, agencies and instrumentalities
against the person and property of citizens of Canada, in Canada and abroad, the
conduct of said agents, agencies and instrumentalities, directly and vicariously
causing, inter alia, threats, accusations, menaces and violence without reasonable
justification or excuse; cruel and unusual treatment and punishment; deprivation
of security of person and right to life; discrimination on account of national or
ethnic origin and religion; disclosures of information to the public harmful to the
individual and a violation of the right to privacy; threats to safety, mental and
physical health; disclosures of information to the public resulting in undue
financial loss and burden; disclosures of information to the public which were
knowingly inaccurate, incomplete and unreliable, thus damaging unfairly the
reputation of the person(s) referred to therein and having been compiled and
identified as a part of a Canadian investigation into a possible violation of law in
Canada; disclosures of information to the public which inaccurately, unreliably
and slanderously indicated untrue sexual orientation, religious belief or
association of the person(s) named therein and Plaintiffs would claim vicarious
liability on the part of the Government of Canada for its participation in aiding
and abetting the violations of law alleged and for having subjected to cruel and
unusual treatment the Plaintiffs. In one instance the liberty and security of person
is denied in an alleged violation of fundamental and civil rights apparently with
the direct participation of a peace officer and diplomat of Canada.”

([ ] and emphasis Applicant’s)

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Part 1 Applicants Earlier Complaints
.1 April 1st 2000 Complaint as filed with Office of Canada's Prime Minister
.2 June 23rd 2000 Civil Action against DOORNBOS and other filed in British
Columbia Supreme Court
.3 May 3rd 2001 Refusal of Embassy of Canada to serve complaint to R.C.M.P. and
DOORNBOS
.4 May 3rd 2001 Complaint to R.C.M.P. against DOORNBOS and Cover Letter
.5 May 3rd 2001 Complaint to General Director of DRAIT Mr. Gar Pardy
.6 May 19th 2001 Complaint to Attorney General of British Columbia
.7 May 19th 2001 Complaint to the Honourable Anne McLellan the Minister of
Justice Canada
.8 May 21st 2001 Complaint and Request to the Attorney General of British Columbia
for Legal Aid
.9 May 27th 2001 Letter to DOORNBOS

SECTION ELegal Grounds


Part 1 For Earlier Complaints

92. Complaints at the level of the federal government are proper since jurisdiction over the
interpretation of the subject matter of this Complaint is awarded to the Minister of Justice
and Attorney General of Canada (the “Minister") under Article I para (1) of the "Mutual
Legal Assistance in Criminal Matters Act", chapter M-13.6 (R.S. 1985, c30 (4th supp.))
1988, c.37 assented to 28 July (hereinafter the "Act") wherein under the Minister is
designated as the "competent authority" to effect provisions of the Act.

93. The Complaints asserted that provisions of the Act have been unlawfully effected by an
authority and Crown Servant not competent to do so.

94. The venue of the complaint, the Office of Minister, is proper under Article 7 para (1) of
the Act. The Minister embodies the legal competence to assess the lawfulness of actions
effected by agents or agencies of Canada under provisions provided for and the conditions
considered by the Act.

95. The complaints asserted the Minister, as Attorney General, had proper jurisdiction and
venue to ascertain the penal or administrative liability, if any, of DOORNBOS and
possibly others alleged to be responsible for the acts set out above in the SECTION
“FACTS” and give rise to the complaint cause of allegations that Canadian law and the
Charter rights of KAPOUSTIN have been violated by an unlawful and unauthorized
implementation and administration of the Act and by the slander and deep humiliation of
KAPOUSTIN and his family through a malicious indictment, offensive words and
misdeeds of the a Crown Servant, DOORNBOS .

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96. The complaints made are said to be violations of Canada’s basic law and are within the
purview of the Charter of Rights and Freedoms.

97. The Attorney General of Canada has venue in that the rights of the individual as provided
for and protected in the Charter cover those actions by a Crown Servant, including police
activity and investigation, as conducted or affected by them through the agencies of or
directly by them in a foreign state. The consequences of such activity by a Crown Servant
having a direct and far reaching impact upon a citizen of Canada’s rights identified under
the Charter. Such actions are subject to review by the Minister.

98. The Attorney General of Canada as the competent authority must assess if DOORNBOS
did commit prosecutable acts against the person of KAPOUSTIN and against justice by
successfully denying KAPOUSTIN his right to due process and law while DOORNBOS
was in pursuit of a Canadian criminal investigation outside of Canada.

99. It is alleged a violation of law arises from DOORNBOS engaging on his behalf the
agencies and instrumentalities of a foreign state, the Republic of Bulgaria, to successfully
circumvent the procedures and law embodied in the Act, the Charter and other laws of
Canada.

100.The acts complained of herein as alleged are inter alia, violations of Article 17 para (1)
and Article 18 para (1) of the Act.

101.There exists no instance or document in evidence that the Minister either received or in
the alternative approved a lawful request, under Article 11 para (1) of the Act.

102.At no time did the Republic of Bulgaria utilize diplomatic channels to obtain in Canada
on its behalf the facts and data provided by DOORNBOS to Bulgaria’s police and
prosecution officials.

103.There is no instance or document in evidence to suggest that police and prosecution


officials of Bulgaria requested police facts or conclusions or reports from the R.C.M.P.
The R.C.M.P. “INFORMATION” and DOORNBOS indicts KAPOUSTIN for what it
alleges are criminal offences under Bulgarian criminal law and over which the Republic
of Bulgaria has proper and sovereign jurisdiction. The R.C.M.P. “INFORMATION” is an
indictment of KAPOUSTIN on a charge of fraud allegedly committed by KAPOUSTIN
on the territory of Bulgaria, and the proceeds of that fraud, according to the R.C.M.P.
“INFORMATION” are in Canada thank to transfer effected by KAPOUSTIN in his legal
capacity as the lawful representative of a Bulgarian company owned and managed by him,
LIFECHOICE.

104.There exists no application or order from a judge in Canada of complement jurisdiction


and authorizing the gathering of evidence against KAPOUSTIN in or outside of Canada,
or for the preparation of police reports or evidence and their sending abroad to a foreign
police agency or court.

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105.The documents referenced in the SECTION “FACTS” and attached to the Complaint
prove that DOORNBOS and possibly other officials of the R.C.M.P. violated Article 20 of
the Act, and therefore Canadian law when unlawfully collecting, preparing and delivering
to agencies of a foreign state, the Republic of Bulgaria, evidence and data concerning
KAPOUSTIN and other Canadian citizens. This information and evidence to be used
against KAPOUSTIN in a Bulgarian criminal court.

106.DOORNBOS at all times knew of the Act, the Privacy Act, the Freedom of Information
Act, the Charter and his obligation under law to them. The actions of DOORNBOS show
that as a police official operating outside of Canada and diplomatic representative of the
Government of Canada DOORNBOS did not feel bound by Canada’s laws.

107.The complaint reveals that the Minister could not give affect or means to the provision
under Part I of the Act on account that the Republic of Bulgaria is not a party to the treaty
under which the Act is promulgated and is therefore not entitled, under Article 8 of the
Act, to mutual legal assistance in a criminal matter without the direct consent of the
Minister of Foreign Affairs, Canada.

108.Article 6 para (1) of the Act requires an "administrative arrangement" be instituted with
any non treaty foreign state on a case by case basis by the Minister of Foreign Affairs,
Canada.

109.Inquiries and court records reveal no administrative arrangement is affected by the


Ministers of Foreign Affairs, Canada and Foreign Affairs, Bulgaria upon the subject
matter of KAPOUSTIN.

110.DOORNBOS and others also violated the laws of the Republic of Bulgaria. The alleged
violation arises from Article 464 para (2) of the Bulgaria’s Criminal Code of Procedure
and reads:

“464 (1)…

(2) The request for legal assistance shall be forwarded to the Ministry of Justice
and Legal Euro- Integration (Bulgaria), unless another procedure is provided by
international treaty to which the Republic of Bulgaria is a party.”

111.Government of Canada and the Ministry of Justice of Bulgaria have no record of such a
request for legal assistance in the matter of KAPOUSTIN having ever been made in
compliance with laws of the Republic of Bulgaria or for that matter the laws of Canada.

112.This Complaint to the Ministry of the Attorney General asserted that it falls within the
purview of Section 32 (1) of the Canadian Charter of Rights and Freedoms (the
“Charter”). KAPOUSTIN alleged breaches of s. 15 (1) which triggered “a situation that
is simply unacceptable” [ see USA v. Arllard (1991), 64 C.C.C. (3d) 159 at p. 522] under
s. 12 of the Charter, the acts in question and consequences thereof offending the Canadian
sense of what is fair, right and just under s. 11 (a) and (d), s. 9, s. 8 and s. 7 of the Charter

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in relationship to the nature of the cause and considerations of comity and security, and
after having granted due latitude and having maintained a perspective for the reasonable
requirements of law enforcement as demonstrate justifiable in a free and democratic
society.

113.The breaches of the Charter rights of KAPOUSTIN arise from the violations of the laws
of Canada some have been identified in this Complaint. In such an instance the Attorney
General would have competent jurisdiction over the subject matter of this claim pursuant
to s. 24 (1) of the Charter.

114.KAPOUSTIN claimed that the DOORNBOS and the R.C.M.P. violate the law
promulgated under the (Provincial) Protection of Privacy Act [R.S.B.C. 1996] Chapter
165, Section 15 (h), S. 30 and S. 28 in conjunction with S. 22 (1); the (Federal) Privacy
Act [R.S.C. 1985] Section 8 (1) and he further alleged that the acts and transactions of,
inter alia, preparation of false, misleading and slanderous materials; the sending abroad of
same; causing the public distribution and publication of information protected by law and
the preparation and delivery abroad of official reports and documents was adequate proof
of common law torts of privacy, defamation and slander as having occurred in Canada
even though having been transmitted abroad.

115.KAPOUSTIN complained that violations of law and the Charter arise from acts affected
in a foreign state by an agency of the Government of Canada against the person and
property of a citizen of Canada. The conduct of DOORNBOS directly and vicariously
caused, inter alia, threats, accusations, menaces and violence without reasonable
justification or excuse; cruel and unusual treatment and punishment; deprivation of
security of person and right to life; discrimination on account of national or ethnic origin
and religion; disclosures of information to the public harmful to the individual and a
violation of the right to privacy; threats to safety, mental and physical health; disclosures
of information to the public resulting in undue financial loss and burden; the disclosure of
information to the public which were knowingly inaccurate, incomplete and unreliable,
thus damaging unfairly the reputation of KAPOUSTIN who is the person(s) referred to
therein and having been compiled and identified as a part of a Canadian investigation into
a possible violation of law in Canada; disclosures of information to the public which
inaccurately, unreliably and slanderously indicated untrue sexual orientation, religious
belief or association of KAPOSUTIN as the person(s) named.

116.KAPOUSTIN claimed the vicarious liability on the part of the Government of Canada for
its participation in aiding and abetting the violations of law alleged and for having been
the direct cause for KAPOUSTIN to be cruel and unusual treatment in Bulgaria. The
physical and psychological coercion and torture of KAPOUSTIN being for the singular
purpose of securing data and facts for Canada’s R.C.M.P. The rights of KAPOUSTIN as a
citizen of Canada to enjoy his fundamental right to liberty and security of person are
denied to him in violation of his fundamental and civil rights.

117.The breaches of the Charter rights of KAPOUSTIN are with the direct knowledge and
participation of a peace officer, and Crown Servant Derek DOORNBOS.

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118.All these earlier complaints established in documents the accountability of DOORNBOS
for at least the common law torts of privacy, defamation and slander arising DOORBOS
having made, inter alia, preparation of false, misleading and slanderous materials; the
sending abroad of unverified and untrue information; making of false accusations before
officials of justice; production of false evidence before a court of law; distributing and
causing the public distribution and publication of slanderous remarks embodied in official
correspondence and reports protected under law; impugning the character, integrity and
honour of the subject with the intent to cause cruel or unusual treatment and punishment;
intimidation and harassment with intent to inflict material harm, mental and physical
suffering and emotional distress.

SECTION FNATURE OF THE COMPLAINT


Part 1 –The Allegations

119.This complaint seeks to pursue remedies for a malicious prosecution of KAPOUSTIN by


the R.C.M.P. and identity the injuries and damages suffered by KAPOUSTIN from what
are deliberate acts of defamation by libel and slander during the years of 1995, 1996, 1997
and 1998.

120.The complaint alleges KAPOUSTIN suffered physical injury, mental anguish, deep
humiliation, emotional distress and financial loss from the materially false, misleading
and deliberately libellous and slanderous statements and injurious lies that DOORNBOS
prepared and formed as part conclusions of police investigations provided as a record of
criminal activity in Canada and elsewhere.

121.DOORNBOS, then wilfully in oral statements to the public and written reports did cause
the same to be repeatedly printed in the press and announced on radio and television.
Insodoing DOORNBOS was able to secure the arrest and prosecution of KAPOUTSIN by
Bulgarian police and prosecution officials.

122.The complaint before the Commission may be summarised as alleging that the malicious
foreign prosecution on a charge of fraud, and the physical and psychological coercion of a
Canadian citizen, KAPOUSTIN, is directly the result of a written request of the R.C.M.P.
submitted to the Republic of Bulgaria on July 7th 1995 and the subsequent unlawful
actions of one Derek DOORNBOS.

123.The complaint alleges there is a conscious violation of Canada’s Charter and the Act
when an “administrative arrangement” is made between DOORNBOS, an Officer of the
Royal Canadian Mounted Police and an agency of a foreign state, the Republic of
Bulgaria.

124.That on or about May 15, 1995 without the knowledge, consent or participation of the
respective parties of Canada’s Minister of Foreign Affairs, Minister of Justice and Office
of the Attorney General of Canada, DOORNDOS entered into an unlawful agreement for

19178560.doc Page 44 of 160


the Republic of Bulgaria to arrest and prosecute KAPOUSTIN on the charges,
information and data provided by DOORNBOS.

125.The complaint alleges that the injuries caused KAPOUSTIN and his family would not
have been otherwise possible if not for the means and instrumentalities available to
DOORNBOS as an official at Government of Canada. The facilities situated at the
Embassy of Canada, Vienna, Austria, and if not for the instrumentalities and secure
telecommunications, diplomatic mails and other facilities of the Royal Canadian Mounted
Police, Ottawa, Ontario and Vancouver, British Columbia.

126.It is alleged a violation of law arises from DOORNBOS ’use of these resources of the
Federal Government of Canada on behalf of the Republic of Bulgaria.

127.It is alleged that commencing on or about May 15, 1995 and including but not limited to
the dates of June 13, 1995; July 7, 1995; September 7, 1995; December 13, 1995; April 1,
1996; August 14, 1996; August 23, 1996 and July 2, 1997, DOORNBOS, an employee of
the Government of Canada, did meet or have contact with Stefcho Georgiev and other
officials of the Republic of Bulgaria with the purpose and intent to officially and publicly
humiliate, degrade and damage the reputation as well as the financial well being of
KAPOUSTIN by knowingly, with malice and aforethought, uttering untrue, false and
slanderous remarks concerning the personality, character and business activities of the
KAPOUSTIN.

128.DOORNBOS knew or should have known that the representations made by him are
untrue and his criminal indictment of KAPOUSTIN on a charge of a fraud committed in
Bulgaria to be false.

129.DOORNBOS knew the ultimate results of his conduct. Yet DOORNBOS acted
intentionally to represent what he knew to false and slanderous remarks to police and
prosecution officials of Bulgaria DOORNBOS intended that Bulgarian authorities and the
public at large would believe that, inter alia, KAPOUSTIN is convicted in Canada for the
sexual rape of children; was an internationally recognized swindler and fraud and
swindler known to be a close associate of one Ivon Shearing and a participant and
financial supporter of Mr. Shearing and his “pseudo – religious cult” the “Kabalarian
Society” of Canada; that KAPOUSTIN is a criminal and his company “LifeChoice” is a
criminal operation and large scale fraud that transferred 16 million United States dollars to
Canada; that all or a substantial part of these criminal proceeds comes from citizens of the
Republic of Bulgaria. DOORNBOS knew his “police facts” to be untrue.

130.From the period of May 31, 1995 to the present the aforesaid misrepresentations and
slander appeared repeatedly in hundreds of national newspaper articles, television and
radio programs and official documents throughout the Republic of Bulgaria as well as on
a number of occasions in parts of Canada and Europe via electronic news services. The
aforesaid is best represented and evidenced by a published interview with Georgiev in
Continent newspaper, Sofia, Bulgaria, on August 1, 1996.

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131.DOORNBUS knowingly acted to humiliate KAPOUSTIN by publicly accusing him of
acts of moral perversion with the real expectation that this would further facilitate the
arrest and prosecution of KAPOUSTIN.

132.The DOORNBOS’ caused KAPOUSTIN and his family to suffer pecuniary and non-
pecuniary injuries inter alia, from the seizure and destruction of property, loss of income,
the extortion of cash, physical torture; permanent injury derived of emotional and
psychological trauma and public humiliation and loss of reputation.

133.DOORNBOS, to elicit the cooperation of Bulgarian police and prosecution officials,


mislead and misrepresented to them that all or a substantial part of 16 million United
States dollars alleged to be criminal proceeds of KAPOUTSIN in Canada is to be shared
between Canada and Bulgaria.

134.It is alleged the slander, misrepresentation, misstatements and other misinformation


prepared by DOORNBOS as subsequently transmitted from Canada’s embassy at Vienna,
Austria and its public release to agencies of a foreign state, Bulgaria, was undertaken to
make such information ultimately public. The slanders, misrepresentation, misstatements
and manufacture conclusions of DOORNBOS manifest acts which are a breach the rights
of KAPOUSTIN and his family under the Privacy Act and Freedom of Information Act.
DOORNBOS failed to comply with the law and procedure incumbent upon them under
law.

135.It is alleged the said data provided Bulgaria by DOORNBOS on behalf of the
Government of Canada, and the cause of this complaint is submitted to Bulgarian police
and prosecution officials in the full knowledge that it was to be made public, and was to
be used to secure the arrest and prosecution of KAPOUSTIN, a citizen of Canada.

136.DOORNBOS stated his purpose and intent to Bulgarian and police officials was to have
Bulgaria prosecute KAPOUSTIN to aid and facilitate the criminal investigation of one
Ivon Shearing and the Kabalarian society. An investigation and subsequent penal
proceeding to which the Claimant was neither a party, a witness to nor a subject of any
possible future indictment of Shearing.

137.The interactions complained of here and recorded in official documents establish


DOORNBOS to be irresponsible and his behaviour unlawful.

138.Subsequent events prove the conduct of DOORNBOS to be the product of a criminal


malfeasance designed by DOORNBOS to secure for himself professional prestige and
financial gain, at the expense of the honour, integrity and property of KAPOUSTIN.

139.The Complaint before the Commissioner alleges that the arrest, detention and torture of
KAPOUSTIN by agencies and instrumentalities of the Republic of Bulgaria is directly on
account of the unlawful implementation of the Act and the effecting of its provisions by
DOORNBOS. The exchanges and other transactions with Bulgaria when affected under
the Act did cause the preparation and dissemination to the mass media of official

19178560.doc Page 46 of 160


Government of Canada correspondence, reports and evidence which was known by
DOORNBOS to be false, misleading, suggestive and intentionally slanderous.
DOORNBOS intended his misrepresentations and misstatements to cause and in fact did
cause in substantial part the prosecution, arrest, extradition and torture of the
KAPOUSTIN by agencies of Bulgaria with whom DOORNBOS and the Government of
Canada unlawfully interacted.

140.On account of Government of Canada assurances offered by DOORNBOS to Bulgarian


authorities, and due to the Bulgarian belief and the DOORNBOS promise of a financial
reward, Bulgaria police and prosecutors did not subject the DOORNBOS representations
to any proper legal test as was incumbent upon it.

141.DOORNBOS provided the data and the only confirmation to Bulgarian authorities of his
“Canadian police facts and conclusion”. This was all that was needed to secure Bulgarian
cooperation in the arrest, prosecution and public humiliation of KAPOUSTIN and the
seizure of his property.

142.DOORNBOS knowingly acted to cause Bulgarian agencies to embark upon an official


campaign to induce in the minds of the public enmity, hostility, antipathy, rancour, malice,
discrimination and bias against KAPOUSTIN with the intent to cause loss of reputation
and goodwill.

143.The R.C.M.P. “INFORMATION” provided by DOORNBOS is directly responsible for


arrest and prosecution of KAPOUSTIN.

144.The R.C.M.P. “INFORMATION” provided by DOORNBOS is directly responsible for


precipitating both official and public acrimony in Bulgaria towards KAPOUSTIN. In
particular the slanderous and libellous assertions of Canadian “police fact” that are
directly attributed to the R.C.M.P. (“Canadian authorities”) in the August 1st 1996 public
statement of Bulgarian police and prosecutors lead directly to KAPOUSTIN being beaten
and tortured by Bulgarian Ministry of Interior police and his continued imprisonment by
Bulgarian prosecutors and judges without possibility of bail or transfer.

145.The R.C.M.P. “INFORMATION” provided by DOORNBOS as well as statement


attributed to him by Bulgarian police and prosecution officials are the substance and
provides the content and foundation for all the slanders and libels of KAPOUSTIN in
Canada, Bulgaria and internationally.

146.DOORNBOS and the RCMP knowing acted to secure a maliciously prosecution of


KAPOUSTIN by the police and prosecution officials of a foreign State, the Republic of
Bulgaria.

147.DOORNBOS and the R.C.M.P., by conduct and according to official documents issued
by them are clearly and directly responsible for the unlawful arrest, extradition, detention,
public humiliation, psychological and physical torment, beatings and unlawful conviction
of KAPOUSTIN by Bulgarian police and prosecution officials acting on their information.

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148.The DOORNBOS “INFORMATION” makes false and malicious representation against
KAPOUSTIN as if they are true and verified Canadian police facts, which they are not.
DOORNBOS and the R.C.M.P. knew their representation to Bulgarian police and
prosecution officials to be unverified conjecture at best and are at worst criminally false
and the charges levelled against KAPOUSTIN untrue.

149.The sole intended purpose of the “INFORMATION” and the false criminal charges and
misrepresentations set out therein is to cause Bulgarian police and prosecution officials to
arrest, prosecute and question KAPOUSTIN according to Bulgarian criminal law. The
R.C.M.P. seeking to avoid the limitation imposed on it under Canada’s laws and insodoing
to aid an R.C.M.P. investigation in Canada by having Bulgarian police and prosecution
officials arrest and question KAPOUSTIN..

150.DOORNBOS and the R.C.M.P. knew KAPOUSTIN would be held in remand


indefinitely, without benefit of habeas corpus or other judicial control of his remand and
that he would be confined to a solitary cell.

151.DOORNBOS and the R.C.M.P. knew that according to international reports on conditions
within Bulgaria’s criminal justice system and remand facilities KAPOUSTIN, a Canadian
citizen, would be likely subjected to psychological and physical coercion as part of the
interrogation procedure. The facts and data sought after by the R.C.M.P. would most
probably be obtained only through the torture of KAPOUTSIN.

152.DOORNBOS, to aid of an R.C.M.P. investigation unrelated to KAPOUSTIN, did


knowingly with malice and forethought, commit official malfeasances by assisting
Bulgarian police and prosecution officials in the public humiliation and defamation of
KAPOUSTIN and his family.

153.DOORNBOS is the “Official Canadian Source” providing Bulgarian police and


prosecution officials with the slanders and libels appearing and continuing to appear in the
Bulgarian and international media.

154.DOORNBOS, in aid of an R.C.M.P. investigation unrelated to KAPOUSTIN, did violate


Canada’s Privacy Act, the Access to Information Act and Canada’s Charter of Rights and
Freedoms.

155.DOORNBOS, in aid an R.C.M.P. investigation unrelated to KAPOUSTIN, unlawfully


implemented the "Mutual Legal Assistance in Criminal Matters Act" as an official of the
Government of Canada.

156.DOORNBOS was neither authorized nor legally competent according to the Canadian
legislation at the time to affect legal assistance with the Republic of Bulgaria in a criminal
matter for the R.C.M.P. or for the benefit of a foreign government or agency, the Republic
of Bulgaria.

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SECTION GDiscussion
Part 1 Preamble

157.To bring the present case before the Commissioner has proven regrettably difficult and
time consuming for someone not fully comprehending the practice of the law. There will
come moments during this discussion where it appears the Complainant is stating the
obvious, burdening the learned Commissioner with unneeded details, and the foolishness
of a layman. However, the Complainant concluded he would be better served to
demonstrate to the Commission by what method, on what facts, and according to what
legislation, and logic he arrive, rightly or wrongly, at this Complaint and the arguments
that follow. Anything less could not possibly serve to adequately convey the personal
difficulties in organising what has proved a complex and difficult thesis to express.

158.This Complaint to the Commissioner has been long in coming and comes from a great
distance, geographically and philosophically.

159.The Complaint is unusual in that it comes from a citizen of Canada incarcerated abroad
and still suffering, after 8 years, physical, psychological and material consequences from
the unlawful conducts of a Crown Servant, DOORNBOS.

160.This fact of time, distance and my absence from Canada may cause the Commissioner,
like the other agencies and officials of the Government of Canada before her, to not act on
my Complaint. The Commissioner continuing the practice of the Government of Canada
of being blind and deaf to complaints from citizens of Canada who are prevented by their
circumstances from being present in Canada to persist and prevail in their Complaints.

161.However, is it fair? And, is it reasonable to for the Commissioner or the Commission to


refuse to hear complaints delayed not by the Complainant but by the malicious nature and
long lasting effects of a Crown Servant‘s misconduct outside of Canada and the afflictive
nature of imprisonment? That is a moral question for the Commissioner to ponder
together with the following issues.

162.The Complainant asks the Commissioner and the Commission to closely examine the
painfully long and frustratingly circuitous route followed in bringing the present
Complaint. That route has been and remains one fraught with real, and not imaged risks to
KAPOUSTIN and those who continue to aid him while imprisoned in the Republic of
Bulgaria.

163.The fact that this Complaint is before the Commissioner is itself a minor miracle in the
greater scheme of the suffering of KAPOUSTIN while in Bulgaria’s remand facilities and
its prisons.

164.The law suits of KAPOUSTIN, his family and others against DOORNBOS and the State
of Bulgaria before Canada’s trial courts and the present Complaint represent no mean feat

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for KAPOUSTIN to have made a reality, as opposed to only the dream, of raising such
complaints before the Commissioner and Canadian courts of law.

165.For these reasons this KAPOUSTIN and his family are relying on Canadian justice, the
Commissioner and Canada’s law courts to not demur on the technicalities of time, form,
or style when such complaints are made by a lay citizen of Canada who finds himself
abroad, unlawfully deprived of his liberty and any other chance of a fair hearing of the
facts and his complaints such as they are.

166.The Commissioner is therefore asked to find in this poor offering the essence of what is
right and just. The Commissioner is asked to recognise the inherent practical difficulties
confronting a prisoner required to act on his own before the Commission, The
Commissioner recalling that confinement and deprivation of liberty are by their very
nature limiting and an obstruction.

167.The circumstances now before the Commissioner 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 Canadian
families touched by such circumstances. KAPOUSTIN has suffered 8 full years of such
punishment.

168.Application to the Commission by a citizen of Canada incarcerated in a foreign prison


presents certain difficulties. Among these time is a principal if not predominate factor.
Also, the means and facilities for KAPOUSTIN to bring his complaint from prison are
controlled individuals and elements in the Government of Bulgaria, and most probably the
Government of Canada, who seek such complaints to remain non-issues, notwithstanding
their legal or factual merit and the legal right of KAPOUSTIN to the means and facilities
to bring his complaints and to expect a fair hearing on the merits. As a result, there will be
times when KAPOUSTIN will plead for the assistance of the Commissioner in having the
Department of Foreign Affairs and International Trade and the Minister of Foreign Affairs
of Canada assist in removing unreasonable practical obstacles or negative changes in the
present status quo at the Sofia Central Penitentiary that might obstruct the legal rights of
KAPOUSTIN in Canada. The Commissioner never forgetting that the State of Bulgaria is
a Defendant before a civil court of Canada and Bulgaria’s interests are not served by
KAPOUSTIN prevailing before the Commissioner or the courts.

SECTION HWhat is Apparent from the Evidence

169.The following is apparent if only we proceed on the documented evidence submitted with
this Complaint.

Part 1 Outstanding Facts Not Open to Dispute

170.The documented evidence before the Commissioner is part of the trial record of a
Bulgaria criminal court and notorious public knowledge established as “official facts” by
Bulgarian police and prosecutors interviewed and quoted in the Bulgarian media.

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171.That DOORNBOS, the R.C.M.P., the Embassy of Canada to Austria and the Government
of Canada where all involved in the 1995-1998 indictment, arrest and prosecution of
KAPOUSTIN by Bulgarian police and prosecution officials.

172.Records show that DOORNBOS collected of police data and facts in Canada on behalf of
Bulgarian police and prosecution officials and later delivered that data in Bulgaria.

173.That correspondences received by KAPOUSTIN and his family from the Department of
Foreign Affairs and International Trade of Canada suggest that no agency of Government
in Canada was aware of the activities of DOORNBOS in Bulgaria.

174.The documents in evidence to this Complaint objectively demonstrates how Crown


Servant DOORNBOS aggressively pursued a singular objective on behalf of the Crown
and that is to have Bulgaria aid a criminal investigation in Canada by arresting,
prosecuting, convicting and imprisoning a citizen of Canada, KAPOUSTIN.

175.It is a fact that DOORNBOS was concerned with the criminal indictment of one Ivon
Shearing in Canada, and his indictment of KAPOUSTIN before Bulgarian authorities was
to aid the R.C.M.P. investigation, arrest, prosecution and conviction of Shearing.

176.There can be no doubt to any objective observer that DOORNBOS did travel to Sofia,
Bulgaria on or about May 15th 1995 and that this meeting was to discuss the criminal
prosecution of KAPOUSTIN and his Company LIFECHOICE.

177.That DOORNBOS and the R.C.M.P. repeatedly insisted to Bulgarian police and
prosecution authorities that funds transferred by KAPOUTSIN out of Bulgaria are linked
to the alleged criminal activities of one Ivon Shearing and have ended up in Canada.

178.That DOORNBOS and the R.C.M.P. insisted to Bulgarian police and prosecution
authorities that there is a link between the KAPOUSTIN transfers and the criminal
proceeds of one Ivon Shearing in Canada. That it could be easily proven by the R.C.M.P.
that the “substantial” part of Kabalarian proceeds of crime in Canada are from the
“frauds” committed by KAPOUSTIN in Bulgaria. It is fact that DOORNBOS stated this
in writing.

179.That in the July 7th 1995 R.C.M.P. criminal indictment of KAPOUSTIN and in later
faxes, oral communication and at other times, DOORNBOS continuously insisted on
information about funds KAPOUSTIN had transferred funds out of Bulgaria to banks in
the Caribbean and Canada. DOORNBOS insisted to Bulgarian authorities that the cash
transfers by KAPOUSTIN for LIFECHOICE are proceeds of the “frauds” committed by
KAPOUSTIN in Bulgaria and that DOORNBOS could prove “before a Court” these
funds belonged to defrauded Bulgarian citizens.

180.That the numerous R.C.M.P. faxes to Bulgarian police and prosecution officials from
May 15th 1995 to August of 1998, the business card of DOORNBOS, his signature on
evidence presented to a Bulgarian criminal court and the internal “Operative Reports” of

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Bulgarian officials is irrefutably proof establishing that DOORNBOS had numerous
contacts and exchanges of information concerning the “Frauds” of KAPOUSTIN in
Bulgaria.

181.If the Bulgarian language translation of the July 7th 1995 “INFORMATION” is accurate,
then there can be no doubt that DOORNBOS, on behalf of the Government of Canada,
had requested Bulgarian authorities indict and prosecute KAPOUSTIN in Bulgaria on the
criminal charges and facts appearing in the indictment for fraud of KAPOUSTIN as found
in the R.C.M.P. “INFORMATION” or on any other possible criminal charge that leads to
a prosecution of KAPOUSTIN or “HIS COMPANY LIFECHOICE”.

182.It is a documented fact that on July 17th 1995 Bulgarian authorities agreed to the
DOORNBOS request to indict and prosecute KAPOUSTIN and his Company on a
charge(s) of misappropriation of public funds by way of fraud as requested by the
R.C.M.P. “INFORMATION”.

183.It is a fact that on September 9th 1995 the DOORNBOS “INFORMATION” was
submitted to Bulgarian prosecution officials as “Official evidence from Canadian
authorities of frauds” committed by Kapoustin in Bulgaria. A question to the
Commissioner. Why and how did one Crown Servant and R.C.M.P. officer collect and
then provide Bulgarian police and prosecution officials with police R.C.M.P. facts,
evidence and police conclusion sufficient to request Bulgarian authorities prosecute
KAPOUSTIN for frauds the R.C.M.P. concludes have been committed in Bulgaria?

184.There is no doubts that the November 30th 1995 Bulgarian Prosecutors made a written
request for Interpol Sofia to issue an International Arrest Warrant for KAPOUSTIN. There
can be no doubt that the International Arrest Warrant as transmitted by telex on February
7th 1996 to police at Frankfurt International Airport is, like the November 30 th 1995
Bulgarian request to Interpol, are for the most part word for word the criminal indictment
and “police facts” presented by DOORNBOS in the July 7th 1995 sworn
“INFORMATION”.

185.The international arrest warrant for KAPOUSTIN relied if not entirely then at least in
substance and pith on the July 7th 1995 R.C.M.P. “INFORMATION” and not on
Bulgarian police investigative work or conclusions.

186.The available evidence and the numerous contacts between DOORNBOS and Bulgarian
Police Investigator S. Georgiev provide more than circumstantial evidence that
DOORNBOS is the sole Government of Canada authority in contact with Bulgarian
prosecutors and police. DOORNBOS is therefore source of the slanders spoken by
Georgiev and reported by him and District Attorney Nestor Nestorov and Prosecutor
Mario Stoyanov to the Bulgarian media.

187.This DOORNBOS nexus to the years of slanders and libels appearing in the media
against KAPOUSTIN, his family and the Company LIFECHOICE, is established by the
particularly injurious remarks and defamations disguised as Canadian police facts and

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appearing in the August 1st 1996 article published by the Bulgarian newspaper
“Continent”.

188.That all the R.C.M.P. indictment against KAPOUSTIN for fraud, misappropriation of
public funds, money laundering and as an accomplice of one Ivon Shearing in Bulgaria as
appears in the July 7th 1995 “INFORMATION” are proven to be the false and malicious
fabrications of DOORNBOS, KAPOUSTIN having been acquitted.

Part 2 Malicious Prosecution

189.The facts of the Complaint strongly suggest that the intended purpose of the Crown's July
7th 1995 indictment and its unverified or untrue representations to Bulgarian authorities is
formulated not to display the truth but only to provide a cause to initiate criminal
proceedings against the KAPOUSTIN in Bulgaria.

190.It was the Crown that acted in May and July of 1995 to initiate criminal proceeding
against KAPOUSTIN in Bulgaria. The July indictment of KAPOUSTIN by the Crown
acted as an incitement to Bulgaria's interior police to seek the arrest of KAPOUSTIN and
his prosecution in Bulgaria.

191.The facts of the case prove the Crown indictment to be directly responsible for the July
17th 1995 order of the Bulgaria's Ministry of Interior, to ORDER the national police and
prosecutors to deprive a citizen of Canada of his liberty. Bulgarian authorities were acting
on the Crown request to prosecute KAPOUSTIN.

192.No judicial supervision or other due process of law before a court of competent
jurisdiction was involved either by the Crown in Canada or by Bulgarian police or
prosecutors in Bulgaria before or after their joint indictment and arrest of KAPOUSTIN.

193.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.

194.The facts of the Complaint show that the Crown failed to observe or otherwise be bound
by its constitutional guarantees to a person accused of a crime by Canadian authorities.

195.The Crown violated the Charter guarantees of KAPOUSTIN when having Crown Servant
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 KAPUSTIN and delivered with it
documents dated and collected by the Attorney General of the Province of British
Columbia in the province.

196.The foresaid forms the factual background for KAPOUSTIN to bring a Complaint before
the Commissioner and to incorporate in that Complaint the claim of malicious prosecution

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against the Crown to include, inter alia, a deliberate, reckless or negligent failure of the
Crown to adhere to Canadian and international law, causing KAPOUSTIN and his family
to suffer damages in the Canada, the province of British Columbia resulting from personal
injury, including mental distress and physical anxiety.

Part 3 Crown Misrepresentations and Undue Influence

197.The Complaint also provides facts before the Commissioner that prove misrepresentation,
undue influence, and unconscionability, claiming that the Crown and DOORNBOS had a
duty of care to KAPOUSTIN to be responsive to a possible abuse of his Charter
protections and human and legal rights arising from a misrepresentation of fact, the undue
influence of a Crown Servant’s words and the record of unconscionable conduct of
Bulgarian authorities. The failure of the Crown and DOORNBOS to observe its duty of
care had made KAPOUSTIN vulnerable to physical, psychological and legal abuses and
public humiliation.

198.The Complaint also provides facts that the Crown and DOORNBOS confronted
Bulgarian authorities with misrepresentations of police fact and provided an untrue
warranty to Bulgarian authorities as to the accuracy of the DOORNBOS
“INFORMATION”. DOORBOS then used his position as a Crown Servant and R.C.M.P.
official to exert undue influence over Bulgarian police and prosecutors and others under
their control and so influence the decision to arrest, prosecute and indict KAPOUSTIN in
Bulgaria on a charge of misappropriation by fraud. There was no reasonable reason for
DOORNBOS to make his untrue and misleadingly false representation of police fact and
conclusions to Bulgarian authorities except to exert an undue influence in securing
Bulgarian cooperation in the arrest and prosecution of KAPOUSTIN.

Part 4 Criminal and Quasi-Criminal Extortion

199.Complaints of attempted extortion in Canada by Bulgarian nationals visiting Canada and


over phone lines have been reported by the KAPOUSTIN family to Mr. Gar Pardy,
Director General of the Department of Foreign Affairs and International Trade Canada.

200.DOORNBOS claims of KAPOUSTIN having access to millions of dollars of criminal


proceeds deposited in Canadian banks resulted in Bulgarian police and prosecution
officials to unlawfully and repeatedly attempt to extort money from the KAPOUSTIN
family in Canada with threats of violence against KAPOUSTIN who was isolated in
remand.

201.The specific issues of these complaints are brought before the Commissioner in the
nature of a quasi-criminal proceeding and as a fact exiting in aggravation of the
Complaint against DOORNBOS.

202.Furthermore, the Crown intentionally did seek to damage KAPOUSTIN and his family’s
reputation, and ability to earn an income in Canada or connected to Bulgaria as follows.

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SECTION ICriminal Defamation - Slander and Libel
Part 1 The Element of Slander - Offensive and Untrue Words Spoken by a Crown
Servant

203.One nexus to Canada required for jurisdiction of the Commissioner and the Commission
to hear the KAPOUSTIN Complaint against DOORNBOS is also as framed in the
defamation that resulted from a wrongful criminal indictment against KAPOUSTIN
brought by the R.C.M.P. in Bulgaria and the slanderous and libellous words that are
actionable according to Canadian law. The injurious misrepresentations of fact are made
by a Crown Servant in the name of the Government of Canada to Bulgaria authorities and
public;

204.The Complaint formed in criminal defamation is in aggravation of that of malicious


prosecution and those other complaints and the fact that the governments of Canada and
Bulgaria have not apologised to KAPOUSTIN or his family for the defamation and
criminal misconduct of a Crown Servant and Bulgaria police and prosecutors in
performance of their duties. The continued silence only acts to reaffirm the maliciousness
and lack of remorse for the pain and suffering wrongly and unlawfully caused by the
Crown to KAPOUSTIN and his family.

205.Prior to March 2000, KAPOUSTIN and his family could not fully understand what words
were spoken by DOORNBOS and what had occurred on or about May 15th 1995 in Sofia,
Bulgaria.

206.It appears from the facts of this Complaint that on that date the Crown had dispatched its
servant, DOORNBOS, to meet secretly with officials from the Interior Ministry (internal
secret police) of Bulgaria in the city of Sofia, Bulgaria.

207.What can be evidentially adduced from documents filed with the Commissioner and
together with the available extracts from press and wire service reports on KAPOUSTIN
is the following.

208.That in May of 1995 the Crown and DOORNBOS made the first, of what proved to be a
series, of slanderously false assertions to officials, and agencies, of Bulgaria.

209.The facts show the offensive and actionable words were mostly first spoken on May 15th
1995 by Crown Servant Derek A. DOORNBOS, a diplomatic liaison to Austria and
R.C.M.P. Staff Sgt.

210.The offensive and actionable words were spoken by DOORNBOS in connection to


performing his official duties for the Crown and the Ministry of the Attorney General of
the Canada.

211.The offensive words concerned, inter alia, the religious beliefs of KAPOUSTIN, his
moral character and an alleged conviction in British Columbia of KAPOUSTIN on

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multiple counts of sexual perversion and for sexual assault of children and that the
business activities of KAPOUSTIN in the Canada and elsewhere as connected to Bulgaria
are all criminal in character.

212.Bulgarian authorities repeated the offensive and untrue words of DOORNBOS and took
them to mean, and was understood by Bulgarian authorities and the public at large to
mean that KAPOUSTIN was a cold blooded sexual predator who violated children,
without any sense of morality, and was a detestable human being.

213.The Crown further advised Bulgaria authorities that activities of KAPOUSTIN in


Bulgaria were “in fact” part of organised crime in the province of British Columbia, and
the proceeds collected in Bulgaria are to be found in banks of the province known to the
Crown.

214.A further element in defamation complaints before the Commissioner court is that
DOORNBOS knew his words and the later publication of his words did contain not a
morsel of truth and not a measure of public value.

215.What is significant to this Complaint against the Crown is that the actionable words were
spoken and written as facts, not allegations or suspicions.

216.The words spoken by DOORNBOS could only have been calculated to destroy the
reputation of KAPOUSTIN and his family, and so ruin their personal and business
relationship with their clients, and foreclosed to KAPOUSTIN and his family any
possibility for their companies in British Columbia, Bulgaria or elsewhere to continue
pursuing commercial activities. The public goodwill and popular image of KAPOUSTIN
that existed until May 1995 was destroyed by the DOORNBOS words and his maliciously
untrue criminal indictment of KAPOUSTIN.

217.The words of the Government of Canada were publicly exploited by government


agencies and officials of Bulgaria who widely reproduced the actionable words in the
mass media as early as July 8th of 1995, four months prior to any criminal complaints
being brought against this Speaker.

218.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. The defendant S. Georgiev, lead prosecution investigator for
the defendant Bulgaria, having clearly and in no uncertain terms credited the offensive
and actionable words to the Crown.

219.KAPOUSTIN and his family had no way to know KAPOUSTIN had been maliciously
prosecuted for fraud by Bulgarian authorities at the request of the Crown and could not
know they were being publicly defamed solely due to the spoken and written words of a
Crown Servant.

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220.The KAPOUSTIN family was also mislead by the Ministry of Foreign Affairs Canada
having issued a letter to the KAPOUSTIN family that the R.C.M.P. and Crown was not
involved in the indictment and prosecution of KAPOUSTIN by Bulgarian authorities.
This assurance proved false.

221.The actual damages from the criminal defamation of KAPOUSTIN had manifested
themselves, and the damages only manifested themselves to KAPOUSTIN, when they
were finally able to be linked to DOORNBOS acting in Bulgaria.

222.The facts of this Complaint show that KAPOUSTIN presumed that some damage would
flow in the ordinary course of events from the mere invasion of his rights as a result of his
malicious prosecution for fraud and the accompanying public slander or libel clearly in
evidence around him in Bulgaria.

223.However, only when Bulgaria authorities relented in their isolation of KAPOUSTIN was
KAPOUSTIN able to learn and show that the words reproduced in the mass media or
printed in documents were attributable to a Crown Servant and actionable by
KAPOUSTIN alleging and proving special damages in material or temporal loss suffered
by him and his family in Canada, either as pecuniary damages or other damages and
capable of being estimated in money. Something KAPOUSTIN could only begin to do
after obtaining a court order in Bulgaria allowing him access to his interpreter and
corporate or other documents under the control of the Bulgaria authorities.

224.The injury and damages suffered by KAPOUSTIN are aggravated by Bulgaria authorities
having publicly repeated and published the slanders or libels attributable to a servant of
the Crown, DOORNBOS having added his own twist to the actionable words.

225.The facts of the Complaint before the Commissioner raise issues of individual suffering,
psychological and physical injuries. The damages and costs to KAPOUSTIN and his
family having resulted from their experiencing deep humiliation, public insults and
emotional distress.

226.In one form or another the actionable words represent slander and libel and are directly
attributable to the Government of Canada as publicly repeated or reproduced by the
defendant Bulgaria from July of 1995 to as recently as October 2001.

227.KAPOUSTIN claims his Complaint is actionable against the Crown under the Crown
Proceedings Act [RSBC 1996] c. 89. Admittedly, KAPOUSTIN did fail to name the
Crown, in "Her Majesty the Queen in right of the Province of British Columbia" as
defendant, when having filed his lawsuit before the Supreme Court of British Columbia
under docket No. S004040. KAPOUSTIN instead named the defendant DOORNBOS as
personally liable.

228.The foregoing forms a principal element of the Complaint.

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229.The facts of the Complaint before the Commissioner show that on July 7th 1995 the
actionable words are, in part, reproduced to writing and attributed to the Government of
Canada by Bulgarian police and prosecution officials.

Part 2 The Element of Libel - Offensive and Untrue Words Written by the
Government of Canada

230.Documentary evidence before the Commissioner provides the first written proof of the
offensive words, alleged as libel, as first appearing in writing on July 7th 1995 in the form
of a criminal indictment of KAPOUSTIN delivered by the Government of Canada to the
Government of Bulgaria.

231.Bulgaria authorities refuse to provide KAPOUSTIN a copy of the original July 7th 1995
Crown indictment of KAPOUSTIN as sent by the Embassy of Canada at Austria. What is
available to the Commission is a certified English language translation of a copy obtained
from the criminal trial records of the proceeding against KAPOUSTIN in Bulgaria.

232.The libel claim turns on the words and their context as set out in the foresaid July 7th
1995 indictment, the “INFORMATION” sworn to by DOORNBOS.

233.In no uncertain terms the Government of Canada had provided police agencies of
Bulgaria with what the Crown presented as Canadian police conclusions determined by
the R.C.M.P. in Bulgaria and in the province of British Columbia.

234.The libellous Crown indictment specifically identifies KAPOUSTIN as a known criminal


to Canadian police authorities. It leaves no room for doubt on the reader’s part as to the
guilt of KAPOUSTIN for the criminal act identified in the Crown indictment and his
association with a criminal organization in Canada, the Kabalarian Society.

235.There exists an absolute certainty in the words used and their context as conclusions of
the Crown.

236.The Crown 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.

237.The crimes are described by the Crown as being committed against Bulgarian citizens
and therefore actionable in Bulgaria.

238.The libellous letter goes on to say, in no uncertain terms, that the money proceeds of the
crimes committed in Bulgaria by this Complainant are being deposited to bank accounts
in Canada.

239.The Crown advises the Defendant Bulgaria, in writing, that the Speaker's criminal
activities are fronted in the province, and internationally, by a pseudo-religious

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organisation based on the Judaic mystic belief of the Cabbala. Advising the defendant
Bulgaria that the activities of the Complainant form a part of a larger on going money
laundering operation directed from the province by associates of the plaintiffs.

240.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.

241.The stated purpose written into the letter was to criminally indict the plaintiffs company,
and Speaker, in Bulgaria. The Crown stating, in no uncertain terms, for the defendant
Bulgaria to lay the criminal charges of fraud and misappropriation having been identified
by the Crown.

242.The Crown further advised the defendant Bulgaria that on its prosecution of this
Complainant in Bulgaria a court order could be obtained in the province of British
Columbia by the Attorney General of British Columbia to seize the money proceeds
identified in provincial banks. According to the Crown a significant part of the Speaker's
criminal proceeds are to be found in banks of the province and easily identifiable as the
proceeds of crimes committed in Bulgaria.

243. The Crown estimated the amount of criminal proceeds to be around $20,000,000
(million) USD, and could be shared with agencies of the defendant Bulgaria.

244.The Crown directed the defendant Bulgaria, in the strongest terms, to have its agencies
undertake every effort to somehow prosecute the Speaker, depriving him, a Canadian
citizen, of his liberty while still in Bulgaria.

245.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.

246.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 embody, prove to be the principle
reason for the beatings, drugging and other torment the Complainant suffered under the
solitary isolation imposed by the defendant Bulgaria from September of 1996 to 1999.

Part 3 Reproduction of the Slander and Libel

247.The facts of the case show that on July 8th 1995, there appeared in newspaper, television
and radio reports the first in a series of egregious and deliberate assassinations of the
character and public image of the plaintiffs' and their company.

248.The public statements of 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.

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249.The law suit alleges that the offensive, and insulting publications and television reports
appearing 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.

250.The libellous publications, and television reports, all relied on the oral and written
representations of the Crown, and the agencies of the Defendant Bulgaria, and 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 becoming the subject of public ridicule in the British Columbia where the family
resided, and in Bulgaria where the family had their investments and assets. What appeared
before the public went unexplained by any evidence.

251.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.

Part 4 Intent and Malice - "Mens Rea"

252.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 the plaintiffs’ reputation, and exposing them, particularly the Speaker, to further
contempt and public ridicule and insult.

253.

Part 5 Relevant Law

254.This Complaint raises questions, and seeks relief under, inter alia, Canada's Bill or Rights
1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c. 26, s. 105; 1992, c. 1, s. 144(F), the
Constitution Act, 1982 (79) enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c.
11, which came into force on April 17, 1982, "Canadian Charter of Rights and Freedoms";
the Canadian Human Rights Act 1976-77, c. 33, s. 1; the Constitutional Question Act
[RSBC 1996] c. 68; the Judicial Review Procedures Act [RSBC 1996] c. 241; Crown
Liability and Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21.

Part 6 Reliance on Canadian Justice

255.KAPOUSTIN, as a Canadian, relies not so much on his own poor abilities, but instead on
the historic fact of the fairness of Commission, of Canada's courts and the humanity and
compassion of his fellow citizens, the people of Canada.

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Part 7 Interpretation and Factors

256.The constituent elements of the Complaint present factors believed to be sufficient to ask
the Commissioner and the Commission to afford as broad an interpretation of Canada’s
Charter when applying it to this Complaint.

Part 8 Crown Reliance on the Conviction of KAPOUSTIN; fair comment or


qualified privilege

257.Any reliance of before the Commissioner by DOORNBOS or the R.C.M.P. on the August
2002 criminal conviction of KAPOUSTIN in Bulgaria is questionable in its relevance and
groundless, although understandable.

258.The facts of the criminal proceedings and treatment of KAPOUSTIN in a Bulgaria's


prison can exist only in aggravation not mitigation of the Complaint against
DOORNBOS, this is true due to the judicial fact that a Bulgarian Criminal Court of
Appeal acquitted KAPOUSTIN (and his Company LIFECHOICE) of all criminal fraud
charges and allegations as found in the R.C.M.P. indictment of July 7 th 1995.
KAPOUSTIN was convicted for having lawfully transferred funds belonging to his
Company LIFECHOICE to a foreign company and that company is alleged to having
failed to repay the transferred amount to the Company LIFECHOICE. THERE IS NO
ELEMENT OF FRAUD IN THE CONVICTION of KAPOUSTIN.

259.It would be of significant for the Commissioner to review as an authority the European
Court judgement in, inter alia, Lukanov v. Bulgaria, 2-20-1997; Assenov and Others v.
Bulgaria, 10-28-1998; and Nikolova v. Bulgaria, 3-25-1999. Of particular significance is
Lukanov v. Bulgaria, here a former Prime Minister of Bulgaria was arrested and indicted
on exactly the same form of allegation as KAPOUSTIN.

260.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, KAPOSUTIN involvement and conviction
in the sexual molestation of children, his religious beliefs and Jewish faith, and the
criminal nature of KAPOUSTIN companies in British Columbia or Bulgaria, all prove to
be nothing more than a vicious, deliberately false and calculated verbal attack by a Crown
Servant, DOORNBOS on KAPOUSTIN who has no public persona.

261.Such words are actionable against the crown, and there can be no of defence fair
comment, qualified privilege or saving exception under an enactment on the part of the
Government of Canada.

262.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.

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.10 What, If Any, Relevance to the Trial Court Surrounding the Criminal Proceedings

263.A review of the Respondent government's charges and sentence under the criminal law,
"lex loci delicti", of Bulgaria are made relevant to the present facts of the case before the
trial court only insofar as the character of the accusations and nature of the sentence may
affect the processes of a trial court of Canada, and the individual rights of a party under
the law of the "lex fori".

264.Of particular significance to the enquiry here are the facts of the case that document the
defendant Bulgaria obstructing the Speaker's access to a trial court of the province in
pursuit of his claims.

265.The Complainant is asserting that neither the character of criminal charges, or nature of
any sentence under the "lex loci delicti" of Bulgaria do not, and cannot, permit the
defendant government's agencies to hinder, or otherwise limit the fundamental civil rights
of a person deprived of liberty when acting under the "lex fori" of a trial court in Canada.

266.In the alternative, the Defendant Bulgaria having wrongly claimed before the trial court
that persons deprived of their liberty are also deprived of other fundament civil rights, i.e.
to appear before a civil court to prosecute or defend their legitimate interests and property
rights against the defendant Bulgaria. The court is asked to refer to the May 9 th 2001 letter
of the defendant Bulgaria [see Vol 1, Tab. No. 9 of the Plaintiffs Factum].

267.A principal of law relied on by the plaintiff before the trial court holds that a person
whose liberty has been deprived continues to retain his or her civil rights as naturally flow
from principles found in international law binding on both the "lex loci delicti" of the
defendant Bulgaria, and the "lex fori" of the provincial trial court. International law
recognising as equal to other citizens the legal rights of a prisoner to access a civil
proceeding before any court of a member state, Canada included.

268.The course of the proceedings before the trial court show the Complainant as only
asserting his fundamental civil right of access to this, or any, court's processes and
jurisdiction. That such right 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 delicti" of Bulgaria.

269.If any such limitation on the rights of the Speaker, or other persons deprived of liberty
were to exist as national law, such law would be in conflict with the accepted principles
and obligations of international conventions and therefore invalid.

270.Having said the above, then how can the events of the criminal proceedings relevant to
the defendant Bulgaria limiting the Speaker's other civil rights? They cannot.

271.The attempts by the defendant Bulgaria to justify the restrictions it has placed on the
Complainant are doomed to fail before any court of law in Canada or any international
tribunal.

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Part 9 Respondent's Reliance on its Criminal Prosecution of Speaker.

272.The Complainant 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.

273.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.

274.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 Defendant Bulgaria's criminal prosecution of the
Speaker.

275.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.

276.The statement of Dobreva appears to rely on the defendant Bulgaria's sovereign right to
criminally prosecute whom it likes, and relies on the existence of its criminal prosecution
of the Complainant as adequate cause to invoke its state immunity and deny jurisdiction to
a court of Canada.

277.In her affidavit Ms. Dobreva traversed such immaterial averment as the nature of the
criminal charges brought by the state of Bulgaria against the Complainant in 1995, and the
participation of the Crown in the prosecution, location and arrest of the Speaker. This has
been detailed above.

278.Ms. Dobreva failed to provide any factual particulars as to what information or assistance
was provided by the Crown to the defendant Bulgaria.

279.It appears to this Complainant 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.

280.According to the said Dobreva, both governments participated in the prosecution and
arrest of this Speaker, having done so on information, and charges, originating from the
Crown in British Columbia.

281.The fact of the Crown having participated in the indictment, arrest and extradition of the
plaintiff (Kapoustin) are alone sufficient to bring a part of the plaintiffs' claims within the
jurisdiction of a trial court of the province, and to make the defendant Bulgaria a
legitimate party to any proceeding before a trial court of the province, notwithstanding its
sovereign immunity.

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282.If this Complainant understands the common law, and the principles of international
comity, it is not for the Commissioner to make any judgement on the criminal charges
raised in the Dobreva statement for the defendant Bulgaria.

283.

284.

Part 10What Are the Facts of the Criminal Case The Defendant Bulgaria Relies On?

285.The Speaker, at the risk of being redundant, believes it for the sake of clarity to be worth
repeating the facts of the criminal proceedings initiated by the Republic of Bulgaria
against the Complainant in the context of the civil proceedings initiated by the plaintiffs in
Canada. What follows are fact confirmed by the defendant Bulgaria absent of the
following details.

286.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 Complainant 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.

287.The foresaid letter made 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 defendant, the Government of Bulgaria, to prosecute the Complainant
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.

288.On July 8th 1995, defendant government of Bulgaria officials use the facilities of state
owned, or controlled, mass media agencies to publicly distribute the oral, and written,
R.C.M.P. conclusions and information on this Speaker's allegedly criminal activities, his
charges and his convictions in British Columbia. None of the defendant Bulgaria's public
statements and distribution of the information originating from the Crown proved to be
true.

289.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, having
ordered the Main Public Prosecutor of the Republic of Bulgaria to bring charges and arrest
the Speaker.

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290.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.

291.Commencing on or about July 1995 the Defendant Bulgaria ordered its tax, customs and
police agencies, to seize all the plaintiffs’ assets, tangible and intangible, and documents
in Bulgaria. The said agencies having placed the plaintiffs’ property under the control of
private parties appointed by it.

292.On October 26th 1995 the defendant Bulgaria had its national police services, know as
the "National Investigative Service" ("NIS"), seizes the remainder of the plaintiffs’ assets
and records in Bulgaria. The Defendant having charged the Complainant of the crime of
embezzlement through a "pyramidal fraud", and relying solely on the previously
mentioned the July 1995 representations of the Crown.

293.

Part 11Complaints to the Government of Canada

294.In affidavits before the trial court members of the Speaker's family allege that throughout
the period of the Speaker's 6 years of incarceration they have repeatedly and bitterly
complained to the Government of Canada officials that agents of the defendant Bulgaria
having breached Canadian criminal law in or connected to British Columbia.

295.Family members allege agents of the defendant Bulgaria made repeated attempts to extort
money from family and friends in Canada, either by telephone or through intermediaries
visiting Canada.

296.The money sought from the plaintiffs in the province was in exchange for ending the
physical and psychological torment of the Speaker. The defendant Bulgaria's police, and
prosecution officials, promising the Speaker's safe treatment while in detention, and even
possible release on the payment of substantial sums of money.

297.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 having
to endure such attempts at extortion, knowing they could not pay the defendant Bulgaria's
agents the amounts of money necessary to end, what they knew to be the cruel treatment
of the Speaker.

298.The plaintiffs claim to have maintained a record of each such complaint, including diary
entries, dozens of letters and press statements that suggest the beating, and drugging, of
the Complainant during his solitary confinement in Bulgaria.

299.This Complainant first complained of his drugging in a small note smuggled to a consular
officer, one Jamie Bell, in August of 1997, having publicly complained of his beatings to

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Canadian authorities and the press only after his solitary confinement was ended. The
plaintiffs claim the Crown failed to take concrete steps.

300.That plaintiffs allege, as facts in aggravation of the damages they seek, that the beatings
and drugging the Complainant 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.

301.During the Speaker's beating, and other interrogations, it became apparent to him 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
Complainant knew nothing about and were impossible for him to connect.

302.Only later did it become apparent to the Complainant that he was being repeatedly
beaten, deprived of sleep, and apparently drugged, in an effort to force him to disclose the
whereabouts of this money required by the Crown in British Columbia.

303.On or about August 1998 the beatings and other cruel punishment suffered by the
Complainant abruptly ended.

304.Facts of the case before the trial court show the physical violence, and mental torment, as
having ended only a short time after the defendant Bulgaria received a fax from Crown
servant, the defendant DOORNBOS, advising that the Crown would close its 1995
criminal investigation in the province. The cause given was the defendant Bulgaria's
failure in providing the data first sought after by the Crown in May and July of 1995.

305.

Part 12A Question of Law, Not Facts

306.The question before the Commissioner appears more one of law, Charter principles and
the accountability of Crown Servants to the Charter and the laws of Canada when acting
on behalf of the Crown outside of the territorial limits of Canada.

307.There is also a constitutional question on application of the Charter and projecting the
protections of the Charter beyond the territorial limits of Canada.

308.Do the Charter protections extend beyond the borders of Canada and should the Canadian
sense of what is right and justice apply to the treatment of Canadian outside of Canada?

309.There seems no reason to dispute the veracity of the Bulgarian copies of R.C.M.P.
correspondences; the DOORNBOS signature as it appears on certain official Bulgarian
police and court documents or the Bulgarian language translation of the July 7th 1995
“INFORMATION”.

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310.DOORNBOS did what has been alleged as FACT in this Complaint, the question must be
as the following.

311.Is everything that DOORNBOS did lawful?

312.With the exception of the Arar case, few other parallels can be found in the Canadian
experience or in Canadian case law that can be said to be "on all fours" with the
circumstances of the KAPOUSTIN complaints and those made by Mr. Arar to this
Commissioner.

313.The Arar case and KAPOUSTIN bring questions before the Commission that are within
the ambit and legal context of interpreting Canada’s Charter.

314.The fundamental question to for the Commissioner to posit upon is if the Charter rights
and protections of a citizen of Canada extend beyond the territorial limits of Canada and
are elemental protections that representatives of the R.C.M.P. are legally bound and
accountable to even when acting outside of Canada.

315.In my case and that of Mr. Arar we have evidence of an R.C.M.P. that considers Charter
protections extend only to those citizens of Canada still in Canada. Crown Servants, and
the R.C.M.P. limit by the Charter only when its officers are acting within the territory and
jurisdiction of Canada and its courts. R.C.M.P. interpretation of Charter protections is that
they do not apply outside of Canada.

316.It appears from the KAPOUSTIN facts and evidence and that of Mr. Arar that the
R.C.M.P. is not of the opinion that the actions of its officers outside of Canada are to be
restricted according to Canada’s laws. The rights, freedoms and protections of the Charter
do not extend to a citizen of Canada once he or she is beyond Canada’s territorial limits.

317.For years the R.C.M.P. has considers that its’ Officers, like DOORNBOS, are is free to
act as they see fit and without consideration of the Charter or the laws of Canada, only so
long as there is no breach of those laws in Canada.

318.The factual and circumstantial particulars of this and the Arar complaint now before the
Commissioner appear unfamiliar and the issues previously untested by the Commission.
There appear few parallels.

Part 13Parallels in Canadian Case Law

319.However, some parallels can be drawn from Canadian case law and some conclusion
made from these parallels.

320.In some cases before courts of Canada citizens of Canada have asked the Honourable
Justices of Canada to consider how their Charter rights, freedoms and protections might
be affected outside of Canada.

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321.One examples is 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], having as Complainants
prisoners petitioning Canada’s courts to protect their fundamental rights by considering
how those rights would be abused by and in a foreign state.

322.In Gwynne, supra, the Commissioner will be given valuable insight into the life of a
prisoner in an Alabama prison. The physical and psychological experiences described in
Gwynne supra are not at all that different from those of KAPOUSTIN. The court was
asked by Canadian citizen, Gwynne, to consider his earlier experiences and mistreatment
in a foreign prison and that experience and possible future mistreat to be "weighed in
terms of the Charter" [see: Gwynne Supra, Goldie, J.A. at §30

323.In Gwynne supra, a court of Canada had to consider foreign law, and to consider
Canada's international treaty obligations together with Charter and non-charter issues
related to a prisoners fundamental human and civil rights. Among such rights is a right to
a meaningful judicial review of a prisoner’s complaints. The Commissioner here is asked
to do the much the same as the court did in Gwynne supra, but under somewhat different
circumstances and having other objectives.

324.This Complaint asks the Commissioner to consider how and if the rights of a citizen of
Canada are violated by the R.C.M.P. when it acts in and contacts with a foreign state
holding a citizen of Canada on a request for prosecution, facts and data provided by the
R.C.M.P.

325.In Complaint before the Commissioner, unlike Gwynne, the complaints and the petition
originate from outside of Canada, and from a prison internationally recognised as being
far [see Conditions in Bulgarian Prisons] worse than what Gwynne recalled at §62 of his
affidavit in Gwynne supra as a: "….memory… so terrible that I live in constant fear.",
Gwynne asking the 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…".

326.The Commission will find parallels in this Complaint to what Gwynne wrote in his
Affidavit.

327.On January 2nd 2001 in affidavit No. 1 of Mr. Robert Kap, the father of KAPOUSTIN,
Kap told the British Columbia Supreme Court in docket No. S004040, at §9 of his
affidavit that: "…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… ".

328.This fear and concern was also expressed in the July 1st 2001 affidavit of Mrs. Tracy
Coburn Kapoustin, the wife of KAPOUSTIN, Ms. Kapoustin wrote to the British
Columbia Supreme Court in docket No. S004040 at §9 to §10:

19178560.doc Page 68 of 160


"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.

329.The words of the wife and father of KAPOUSTIN, like those of Gwynne before the
court, should act to amplify to the Commissioner that justice and humanity remain ideals
imperfectly practised in many parts of the world, even in Canada, and the United States.

330.As it can be seen from Gwynne supra, despite all the constitutional protections offered,
the ideals of humanity, equality and justice still fail to be fully practised, even in the two
most advanced of democracies of the free world.

331.What then can be said for the agencies of a former totalitarian state, the Republic of
Bulgaria?

Part 14Relevance of the Cited Gwynne Supra

332.It is requested the Commissioner apply to this Complaint the same reasoning, mutatis
mutandis, as did the learned Goldie, J.A. in Gwynne supra and the circumstances of
complaints brought before him against the responsible Minister. His Lordship applied the
following reasoning to the complaints of Gwynne against the Minister when writing 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 relation."

And at §29:

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

Again at §30:

19178560.doc Page 69 of 160


"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]

333.As in Gwynne, the Commissioner is asked to consider the aggravating affects seen in the
"supporting materials [that] reveal conditions that were degrading, dangerous and
apparently endemic within the prison system” of a foreign state, Bulgaria.

334.The present complaint concerns those prisons under the control of the government of
Bulgaria, and the "cumulative effect of the combination of the harshness…and the
apparent conditions under which" the Complainant is placed by Bulgaria.

335.The Commissioner is asked by KAPOUSTIN to closely examine the deleterious affects


such conditions have on the time needed in bringing the present complaints against
DOORNBOS, and the subsequent quality of the actual Complaint itself.

336.More important, the Commissioner is asked to consider the following question.

337.Did the R.C.M.P. and the responsible Ministers under the Mutual Legal Assistance in
Criminal Matters Act, chapter M-13.6 (R.S. 1985, c30 (4th supp.)) 1988, c.37 know of the
conditions of prisons and of judicial corruption in Bulgaria when allowing the issuing of
the July 7th 1995 R.C.M.P. “INFORMATION” and requesting that Bulgarian police and
prosecutions officials arrest and criminally indict KAPOUSTIN?

338.Did the R.C.M.P. and the responsible Ministers know that having KAPOUSTIN arrested
and remanded to the custody of Bulgarian police was equivalent to the Government of
Canada consenting to unlawful and indefinite term of detention under conditions far more
despicable than those ever seen by Gwynne and the torturing of a citizen of Canada for
information requested by the R.C.M.P.? Harshness, brutality, indifference, oppression and
corruption the hallmarks of prisons in the former communist Eastern European countries,
among which the defendant Republic of Bulgaria is counted.

339.This is something the R.C.M.P. and DOORNBOS knew and should have considered as a
consequence of the unlawful official request to Bulgarian authorities that they “prosecute
KAPOUSTIN” on the R.C.M.P. indictment of him and the “police facts” sworn to by
DOORNBOS in the July 7th 1995 “INFORMATION”.

340.The learned Commissioner is asked to also weight the rights in Canada and under the
Charter and laws of a Canadian citizen remanded to a foreign prison and to foreign

19178560.doc Page 70 of 160


custody due to the R.C.M.P. issuing a criminal indictment requesting the prosecution of a
citizen of Canada.

341.The Commissioner is asked to find as a court of Canada found in Gwynne, that there are
sufficient factual grounds to grant this Complainant a hearing before the Commission and
for fundamentally the same reasons that Gwynne and Arar experienced.

342.However, the circumstances of KAPOUSTIN are unlike Gwynne or Mr. Arar since the
circumstance of KAPOUSTIN and his family remain in the present tense having not yet
formed a part of his past.

343.As much as the Complainant might wish to have the lawfulness of his arrest, and
detention by a foreign State tested by a court of Canada he recognises that to not be
possible. Clearly this issue is not open to this or any trial court in Canada to determine.
However, it is reasonable to make averment to such facts only in aggravation of those
points as legitimately are laid before the trial court.

344.The arrest and continued detention of the Complainant, its reasons, lawful or unlawful are
not nor are intended to be points of the plaintiffs’ law suit. Most definitely they are not the
object of the intended appeal here. Such facts are substantive only to an understanding of
the plaintiffs' full case, and if any, to its merits.

345.Furthermore, the Complainant does not dare to suggest for the Commissioner to extend or
otherwise impose Canada's Charter of Rights and Freedoms beyond its boundaries to that
of a foreign State. 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 Complainant. The case law found in recent years shows the Supreme Court of Canada
closely examined Charter claims relating 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], its case law appears to strongly
suggest that the Charter cannot be applied to acts committed by servants of the Crown on
foreign territory with the exception being only if such acts have a direct affect on the
Charter or other legal rights and obligation of citizens of Canada who are in Canada.

346.What does the preceding reasoning of the high court mean to case now before the Bar?
Apparently the Charter can be applied in respect to all Crown acts outside Canada alleged
as directly or vicariously affecting the legal and property rights of the plaintiffs Nicholas,
Tatiana, Tracy and Robert as family members of the Complainant who remained in

19178560.doc Page 71 of 160


Canada. It also appears from the above cited case law that the Charter applies to all Crown
acts directly or vicariously affecting the plaintiffs’ property rights and other civil interests
in or connected to Canada.

347.Complaints of these particular constitutional questions are at present not the subject of
the appeal. Presently the Complainant is far from asking the Commissioner or any court of
Canada to impose its judicial will on the legitimate pursuits of the Crown or a sovereign
state or its representatives outside of Canada. Yet having said that, a certain emphasis
must be placed on the Appeal Court's interpretation of "legitimate" and "lawful", as these
are live issues that concern the activities of a servant of the Crown outside of Canada
when, in co-operation with agents of the Defendant Bulgaria, acted to knowingly cause
injury and to interfere with the plaintiffs legal rights and property interests in or connected
to the province.

348.The Charter, applied retrospectively to acts of the Crown, appears to apply in the case
before the trial court.

As to the Crown and Canada

349.The proceedings before the trial court are without doubt complicated by the matrix of
facts and international circumstances of a law suit involving, in part, acts of the Crown in,
and outside, of Canada.

350.Of significance to the present discussion are the principles found under UDHR Art. 12
and 28, and the Crown's involvement with the defendant Bulgaria in Sofia, Bulgaria as
well as in Vancouver, British Columbia. Due to the Crown's direct as well as vicarious
involvement with the Defendant Bulgaria it appears that an international obligation exists
for the Crown to provide a remedy from "arbitrary interference", and attacks on the
"honour and reputation," [see above: "Facts of the Case: Malicious Prosecution;
Defamation: Criminal Extortion"] of the Appellant. The attacks are alleged as having been
perpetrated by the Defendant Bulgaria at the instance as well as with the assistance of the
Crown.

351.The principles of international law as well as Canada's constitution appear to require a


remedy to be "fully realised" in the lex fori of the provincial court, notwithstanding the
foreign lex loci delicti of the Crown's acts. The court's practice and procedure applying
discriminatory standards to the Appellant strongly suggests a bar on judicial redress
against the Crown. This property as well as social barrier limiting a distinct groups right to
continue or defend in a suit at law against the Crown as well as others will gone for as
long as the Lieutenant Governor permits the Court Rules Act to exceptionally prejudice
the fundamental rights of the group. The Lieutenant Governor having not recognised
imprisonment as "afflictive" in nature omitted to provide a practice and procedure for
individual assessment of a prisoner's special needs as well as quantitative supplemental
accommodations to address those needs.

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Applying the Charter to Administrative Law or a Quasi-Judicial act

352.The Complainant finds himself, as a lay person, confronted by an intriguing problem as


to what exactly should he apply the Charter to? And, does the Charter Apply at all?

353.The rational approach for a lay person begins with a reading of his statutory right to
engage the Charter as well as apply for relief. This begins with s. 24(1) of the Charter, and
forms a part of previously cited s. 8 of the Constitutional Questions Act [RSBC 1996] c.
68. Section 24(1) of the Charter reading as follows:

Charter

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.

There natural follows a need to find some respected authority that will support the
Complainant's suppositions to what the Charter may be applied.

For better or worse the Complainant developed his own order of hierarchy. The
first of issue to be established having turned on if the Charter could be applied to
impugned legislation. The question to be satisfied is if not only is it reasonable to
apply the Charter, but is it a part of the practice generally to do so.

The Complainant first turned to the explanation by Mr. Peter W. Hogg, in his
Constitutional Law of Canada, vol. 1 (Toronto: Carswell, 1992) when discussing
where application of the Charter is 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."

354.In order of hierarchy, according to the Complainant's reasoning, there is a question of


applying the Charter to a common law rule employed under the impugned Legislation.
Here the Complainant turned to what case law he had available to him and found the
learned Cory J. when writing for the majority in Manning v. Hill (1995), 126 D.L.R. (4th)
129, discussed the Charter and common law at pp. 152-153:

"(2) Section 52: Charter values and the common law

"(a) interpretating the common law in light of the values underlying the Charter

"(i) Review of the decisions dealing with the


issue

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"This court first considered the application of the Charter to the common law in
Dolphin Delivery, supra , [1986], 33 D.L.R. (4th) 174]; It was held that, pursuant
to s.32( 1) of the Charter, a cause of action could only be based upon the Charter
when particular government action was impugned. Therefore, the
constitutionality of the common law could be scrutinized in those situations where
a case involved government action which was authorized or justified on the basis
of a common law rule which allegedly infringed a Charter right."

[Emphasis Added - Mine]

"However, Dolphin Delivery, supra , also held that the common law could be
subjected to Charter scrutiny in the absence of government action.

In emphasizing that the common law should develop in a manner consistent with
Charter principles, a distinction was drawn between private litigants founding a
cause of action on the Charter and judges exercising their inherent jurisdiction to
develop the common law. At p.198 this was written:

"Where, however, private party "A" sues private party "B" relying on the common
law and where no act of government is relied upon to support the action, the
Charter will not apply. I should make it clear, however, that this is a distinct issue
from the question whether the judiciary ought to apply and develop the principles
of the common law in a manner consistent with the fundamental values enshrined
in the Constitution . The answer to this question must be in the affirmative . In this
sense, then, the Charter is far from irrelevant to private litigants whose disputes
fall to be decided at common law."

[Emphasis Added - Mine]

355.At pp. 153-154, Cory J. endorses the dicta of Iacobucci J, who writing for the court in R.
v. Salituro (1991) 6 C.C.C. (3d) 289 at p.301:

"Judges can and should adapt the common law to reflect the changing social,
moral and economic fabric of the country. Judges should not be quick to
perpetuate rules whose social foundation has long since disappeared. None the
less, there are significant constraints on the power of the judiciary to change the
law. As McLachlin J. indicated in Watkins, supra , in a constitutional democracy
such as ours it is the legislature and not the courts which has the major
responsibility for law reform; and for any changes to the law which may have
complex ramifications, however necessary or desirable such changes may be, they
should be left to the legislature. The judiciary should confine itself to those
incremental changes which are necessary to keep the common law in step with the
dynamic and evolving fabric of our society."

356.At. P.156 Cory J. again referred to the dicta of Iacobucci J. in R. v. Salituro , supra, at
p.307:

"The courts are the custodians of the common law, and it is their duty to see that
the common law reflects the emerging needs and values of our society."

357.At pp. 156-157 in the cited Manning, supra, Cory J. wrote:

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"Historically, the common law evolved as a result of the courts making those
incremental changes which were necessary in order to make the law comply with
current societal values. The Charter represents a restatement of the fundamental
values which guide and shape our democratic society and our legal system. It
follows that it is appropriate for the courts to make such incremental revisions
to the common law as may be necessary to have it comply with the values
enunciated in the Charter.

...

"Courts have traditionally been cautious regarding the extent to which they will
amend the common law. Similarly, they must not go further than is necessary when
taking Charter values into account. Far-reaching changes to the common law
must be left to the legislature."

...

358.Then at p.157 Cory J. set out the framework to be used in a Charter analysis of the
common law in a private dispute:

"It must be remembered that the Charter "challenge" in a case involving private
litigants does not allege the violation of a Charter right. It addresses a conflict
between principles. Therefore, the balancing must be more flexible than the
traditional s.1 analysis undertaken in cases involving governmental action cases.
Charter values, framed in general terms, should be weighed against the principles
which underlie the common law. The Charter values will then provide the
guidelines for any modification to the common law which the court feels is
necessary.

...

The party who is alleging that the common law is inconsistent with the charter
should bear the onus of proving both that the common law fails to comply with
charter values and that, when these values are balanced, the common law should
be modified. It is up to the party challenging the common law to bear the burden
of proving not only that the common law is inconsistent with Charter values but
also that its provisions cannot be justified."

[Emphasis Added - Mine.]

359.Last in the Complainant's order of hierarchy, as well as the last in the chain of events
leading to the intended appeal, are the consequential orders or decisions grounded in the
common law rule flowing from s.1 of the impugned Legislation. Here, the practice and
procedure of applying a discriminatory standard relies on a common law rule having
engaged the coercive power and compulsory over an individual in the nature of an order
fixed by a Master or Chambers Judge. Mr. Hogg in his Constitution Law (supra) writes
that it is this power of coercion that provides the source for application of the Charter, (p.
34-12):

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"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."

360.The learned Cory J. in Manning supra concluded the Charter applied to the common law
notwithstanding if s.32 (1) was engaged, here the Complainant believes government
action was involved for the following reasons.

361.The nature of the Master's order, its purpose or aim can only be to advance the
governmental scheme developed under s.1 of the impugned Legislation for regulating the
courts services, and provides a second element of s.32 (1) operating to engage the Charter.
The Complainant's reasoning is garnered from a reading of the Supreme Court of Canada
in Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577, there
the court decided to broadly apply the Charter under the circumstances of an
administrative or quasi-judicial decision or order, mutatis mutandis, not unlike the
Master's order and Chamber Judge decision in the case at bar. This is due in large part to
the direct, and indirect, public dimension of their roles when carrying out the
government's scheme of regulations, regardless of whether the actor is part of the
government.

362.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.

363.On the basis of Eldridge, supra, it appears reasonable to conclude the Charter will apply
to any administrative order or quasi-judicial decision by a Master or Chambers Judge
undertaken to directly or indirectly advance a governmental regulatory scheme. The
scheme here is a discriminatory standard determined as a practice and procedure under the
Court Rules Act, the Legislation governing the services, as well as practice and procedure
in maintained those services by what appears to be the application of a common law rule.
Like the hospital administration in Eldridge, supra, interpreting government policy when
determining what services are to be made available to whom, here the Master and
Chambers Judge are similarly acting to interpret what courts services are to be made
available to whom and under what conditions. To advancement the governments scheme
certain sanctions can be and are applied as prohibitions or limitations on how someone
may obtain court services. This is judged against presumed group characteristics and
services prove conditional on meeting a certain reverse onus. In the case at bar, and unlike
Eldridge, supra, the sanctions here on application to indigent persons deprived of liberty
abroad prove to be absolute in their affect of depriving a person of one or more
fundamental right or liberty.

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364.The available facts under the present case strongly suggest the Order's only apparent
benefit to be to the provincial court budget, having only advanced the government scheme
for conserving the material and human resources of the provincial courts. The interests of
justice do not appear to be served, notwithstanding they significantly affected. This leads,
a posteriori to the Complainant's assertion that s. 32(1)(b) of the Charter is engaged, and
the Commissioner asked to consider the implications to the practice in general of any
administrative, quasi-judicial or judicial act prohibiting or limiting rights otherwise
guaranteed to all members of society.

365.It is on the basis of the immediately cited Canadian authorities that the Complainant first
arrived at his conclusion the Charter applied not only to the impugned Legislation but to
all other interconnected rules or actions undertaken that lead to the breaches of a priori
law he has alleged.

Discussion

366.Complainant's principal difficulty, has been and continues to be the unavailability in a


Sofia prison of literature and adequate case law on how exactly to interpret the different
parts of the problem under the present analysis. Common sense and reason are not always
adequate tools in the interpretation of law as well as how it is practised and why. The lay
person, or common man if such a term is still allowed, often believes he has certain rights
and liberties only to discover that he either does not or does only under certain conditions.
It is suspected that this particular difficulty of understanding what ones rights actually as
to what one believes they are proved to the father for lady justice to give a very dry birth
to professional advocacy.

367.In the present enquiry the difficulties have arise from the only too apparent fact that the
impugned Legislation (the Court Rules Act) proves a very broad document giving wide
powers to the Lieutenant Governor of the Province in council to create compulsory
practice and procedure rules. There is little in the way of negative restrictions as well as
positive obligations to directly impugn the Legislation.

368.To bring the present preceding before the Commissioner within the context of a
constitutional challenge it was necessary the Complainant turn to the affects of the
Legislation through the practice and procedure created, as well as omitted, under it.

369.Some of the rules to regulate practice and procedure are set down as provisions of the
SCBC Rules of Court. However, it is clearly impossible for the Rules to determine a
practice and procedure provision for each different matrix of fact, law and individual
circumstances that court officers must confront each day having to find a nexus to some
common provision under the Rules. That nexus in the case at bar was Rule 41(16.5) (b).

370.It then appears that where an exact practice and procedure rule is wanting under the Court
Rules Act, Rules of Court, there exists a common law rule to compensate as well as
accommodate the purpose or aim of the impugned Legislation. It is the order fixed in a
common law rule that provides the starting point for the Complainant's grievances.

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371.The consequential order leading to the Complainant's grievances has, as previously
discussed, a nature of an administrative or quasi-judicial practice and procedure.

372.However, the practice and procedure are ones having engaging the statutory power of
compulsion available to a Master or a Chambers Judge without engaging any of the
judicial safeguards requiring the reviewer to judicially determine the facts, circumstances
or to determine the applicable statutory or common law.

373.What has occurred in the case at bar, and appears to occur in the practice generally or
alternative must occur if given the same set of facts and circumstances, is for an
individual Complainant or petitioner to be judged solely against presumed group
characteristics. There is no accommodation for persons to be assessed according to their
own abilities and no accommodation standard for those who cannot meet the minimum
physical or financial characteristics of the presumed group.

374.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 an absolute right or liberty having been wrongly withheld
or unreasonably restricted - s.7 - or 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.

THE CONSTITUTIONAL LAW ASPECT

375.Particularly significant and poignant are the words of Mitchell J.A for the Prince Edward
Island Court of Appeal in P.E.I. (Registrar of Motor Vehicles) v. Rankin (1991), 30 M.V.R.
(2d) 122 having observed at the end of his reasons for judgment of the Court, at 124:

376."The Charter neither provides constitutional protection for all human activities nor a
remedy for every grievance."

377.From this insight the Complainant developed his Charter questions and the direction of
his analysis. Is the activity - liberty - of seeking in a suit at law judicial redress for a
wrong a liberty provided constitutional protection? Furthermore, is it a citizen’s
constitutional right to continue or defend his family's as well as his own property and
legal interests in a civil proceeding before a court of law? Are such rights constitutionally
prohibited or otherwise restricted in someway on the occurrence of a citizen having lost
his property, livelihood and self-determination to the State? Is the Charter as well as the
common law insensitive to the hardships and difficulties in Canada of that distinct
Canadian minority made up indigent citizens imprisoned abroad? Is the Government of
Canada, as represented by the Ministry of the Attorney General, entitled to vacate its
otherwise positive constitutional obligation to protect, within the boundaries of Canada,
the rights of all Canadian citizens? Notwithstanding that they are indigent and imprisoned
abroad. Is the Government of Bulgaria, represented by the Ministry of Justice, entitled to
offend Canada as well as its laws and the rights of a Canadian citizen it has deprived of

19178560.doc Page 78 of 160


liberty and property? Are the courts of Canada entitled to vacate their otherwise positive
constitutional obligation to make an accommodation for those persons who, through no
fault of their own, are unable to appear? Notwithstanding that the jurisdiction of the
incarceration is outside the province or Canada. Are the principles of judicial economy
more sacrosanct than those of the Charter as well as of international law? A principle
argument of the Complainant 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, livelihood and property.

378.A review of the exact events leading to the Order of the Master as well as the wording of
the order itself and the decision of the Chambers Judge are required to provide a factual
foundation for the Charter grieves of the Complainant.

How the Charter Applies.

379.In the case of an impugned legislative act 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. First it is
necessary to determine whether the activity in question falls within the sphere of conduct
that is afforded Charter protection. If so, then to consider whether the purpose or the effect
of the impugned legislation is to restrict a freedom enshrined as a right.
Charter Interpretation of Statutes.

380.The approach to be taken when interpreting the impugned Legislation was enunciated by
Driedger in Construction of Statutes (2nd Ed. 1983), at p. 87 he writes:

"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."

381.In Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1;
170 D.L.R. (4th) 1, an analytical framework was developed where a violation of the
Charter was alleged. The Complainant has taken the approach in Law, supra, when
evaluating his claim under s. 7, that he is denied a right and liberty protected by law, and
of discrimination under s. 15(1), that he is treated unfairly, and exceptionally prejudiced
on application of the Legislation to him more than others. The court in Law considered it
should make and answer three broad inquiries, writing at para. 88:

"(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?"

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"(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?"

Charter 15.

382.Returning to the criteria in Law v. Minister, supra.

383.The Complainant has established evidence to prove the answer to (A)(a) in the case at
bar, is "YES", the impugned Legislation maintains or at best permits a discriminatory
standard to be applied to all persons. The standard, by a reverse onus, indirectly draws a
formal distinction on two of the Complainant's personal characteristics, property and his
power of self-determination. The facts and common sense prove the answer to (A) (b) to
as well be "YES", the impugned Legislation clearly fails or omits taking into account the
already afflictive and disadvantaged status of the Complainant as an indigent Canadian
citizen deprived of his liberty abroad. Personal characteristics that must imminently result
in substantially different treatment than that expected by other Canadians who are able to
meet the Legislation's presumed group characteristics.

384.The answer to (B) must as well be "YES", given that for so long as the grounds
enumerated in (A) are true, and the reverse onus maintaining the discriminatory standard
remains in effect. The Complainant is absolutely prohibited first as a practical matter of
his imprisonment and then from affects of the reverse onus, from petitioning the court as
well as limited in any future action to continue or defend in the proceeding.

385.As to item (C) in Law, supra, the burden of an impossible reverse onus is an absolute one
when having engaged the statutory power of compulsion or coercion. To directly sanction,
or indirectly penalise or punish a person for not doing something that they are prevented
by the State and others from doing is wrong. The withholding of a fundamental right or
liberty in a manner which reflects the stereotypical application of presumed group or
personal characteristics must be wrong when derogating from rights or liberties otherwise
guaranteed by the Charter as well as principles of international law.

386.The prohibition and limitations placed on the Complainant by the Legislation prove an
undeserved sanction, penalty or punishment, having left the Complainant and others to
question his worth or value as a human being or as a member of Canadian society. It is
the opinion of the Complainant that all indigent Canadian citizens deprived of their liberty
abroad are nonetheless equally deserving of concern, respect, and consideration within

19178560.doc Page 80 of 160


Canada and by its courts as is any other person. Having an equal right to continue or
defends his civil or property rights before the courts, notwithstanding that the impugned
Legislation, by omitting a negative restriction in the prohibition or limiting application of
a discriminatory standard as well as omitting a positive obligation to provide an
accommodation standard after first assessing individual abilities.

387.Whatever the reasons for the affects, they are nonetheless undeniable and prove the
Legislation as directly or indirectly acting to withhold 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 as well as the judicial review process and procedural fairness when in pursuit
of a remedy for their complaints before the trier of the facts.

388.

389.The Complainant 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).

390.

391.Following the two step approach of the Supreme Court of Canada found in Irwin, supra,
the first question may be formed as follows; Whether the activity of an indigent prisoner
in prosecuting his law suit before the courts of law is a civil activity protected under s.
15(1) of the Charter; the second question is whether the purpose or the effect of the Rules
(Act) is to restrict that kind of activity.

Interpreting the Charter.

392.In considering this question the Complainant 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."

Does The Charter Apply?

393.S. 7 Rights and Liberties

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394.This argument has evolved rightly or wrongly from an interpretation of relevant federal
legislation as well as the principles of international law cited earlier. On the surface of
these international commitments of the Federal Government, as well as federal legislation,
all persons have what appear to be certain absolute rights and liberties. It is expressly
forbidden to directly or indirectly limit or withdraw such rights except as prescribed under
statutory law, and then only reasonably.

395.

396.Charter.

397.On reading of limited case law available to the Complainant, it was found the Court of
Appeal to be more than slow to strike down administrative law practice and procedure
regulations as developed under s. 1 of the Legislation as unreasonable, leaving such
determinations to the Lieutenant Governor in Council or the Chief Justice of the SCBC.
Having recognised such reticence the second question raised later on is the courts duty to
consider whether the impugned Legislation as well as common law rule when applied in
certain circumstances, was sensitive to the s. 7 and s. 15(1) Charter rights of incarcerated
and indigent citizens, contrasted with the wider mandate conferred by the Charter to that
conferred by the provincial Legislation.

398.Section 1 of the Court Rules Act grants broad powers to the Lieutenant Governor in
Council powers, sufficiently so that "practice and procedure" under the impugned
Legislation can encompass a comprehensive body of regulatory measures governing the
administration of the courts and the practice generally in British Columbia. From time to
time a Registrar, Master or Chambers Judge of the Supreme Court of British Columbia is
called on to perform a role under the Legislation that has an administrative or quasi-
judicial character. That role allows for a discretionary right to apply an administrative or
quasi-judicial sanction, penalty or punishment.

399.Of interest to the present enquiry is the occasion of a Master or Chambers Judge making
a determination and fixing an order guided by the dominate purpose or aim of an
economic and just application of provincial court resources. The Duty Master, taking on
an administrative role, i.e., determining what pre-trial application are to be heard, and the
means or mode required for its hearing. Such a role appears, if not wholly administrative,
then at least not wholly judicial. There is no statutory provision under the Legislation
fixing a practice and procedure to be followed for a judicial assessment of a person's
abilities as well as a review of any individual circumstances as judged against presumed
group characteristics. This apparently left to the common law.

Section 52 Charter Values And The Common Law.

400.The present enquiry into the Complainant's second grievance seeks to develop an
argument sufficient to have the Court find a common law practice and quasi-judicial
procedure to be of no force and effect under s. 52 of the Constitution Act, 1982. The
practice in question violating the Charter when it adds a further sanction, penalty, or

19178560.doc Page 82 of 160


punishment to an already existing restriction on a citizen's fundamental rights and liberties
as imposed under criminal law. It is claimed such a common law practice and procedure is
unfair, having unreasonably punished indigent prisoners by further depriving them of
rights and liberties that are otherwise absolute and inviolable.

401.The sole issue to be resolved by the Commissioner under this second grievance is
whether the combined effects of indigence and a pre-existing criminal sanction - loss of
liberty - having in some unfathomable way collectively acted to create a common law
offence of absolute liability or strict liability sufficient to engage the application of a
sanction, penalty or punishment not found to be found in criminal law or prescribed under
another head of law.

In The Case at Bar.

402.What is significant to the case at Bar and this enquiry results from the "particular
government action" authorised or justified on the basis of what appears a common law
practice and procedure under s.1(2)(b) of the Court Rules Act, Rules of Court Rule
41(16.5)(b). The action engages the statutory power of compulsion or coercion to advance
the provincial governments regulatory scheme to bar a citizen (the "Complainant") from
any further procedural possibility to pursue his judicial remedy in a suit at law as well as
to restrict him from continuing or defending in the proceeding solely until his appearance
or that of a legal representative before the court. The Complainant relies on the following
words of Cory J. in the cited Manning, supra, should the Honourable Court interpret an
order so fixed by a Master or Chambers Judge to not be a government action. Continuing
at pp. 152-153:

403.The Commissioner is asked to recall that there is nothing to dispute the fact that the
Complainant is physically prevented from appearing before the court as well as his having
no financial resources to secure a legal representative. Furthermore, it is incontrovertible
fact that the Defendant Bulgaria refuses to conduct, under custody, the Complainant to
and from the court as well as it is arguable fact the same defendant having used physical
and psychological coercion to deter the Complainant as well as other plaintiffs from
continuing or defending in the proceedings. The Complainant, while complaining of the
Defendant Bulgaria's conduct as questionable he did not raise a Charter issue to the
private law questions at issue in the suit at law against the Defendant foreign State.

404. [16] The germane provisions of the Charter relating to defamation law are set out in
s.2(b), which reads:

"2. Everyone has the following fundamental freedoms:

...

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(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication;"

...

405.This administrative or quasi-judicial role of a Duty Master or Chambers Judge under the
Lieutenant Governor's "practice and procedure" direction is significant as it forms the
basis of the Charter grievance as well as the earlier question on the constitutional validity
of the impugned Legislation. However, this enquiry must turn on a determination of what
are the absolute rights and liberties of all citizens, notwithstanding the status of the person
as one already deprivation of liberty. From there it must proceed beyond the Legislation's
statutory purpose and intend. Examining instead the indirect affects that lead to the
Complainant's second grievance.

406.The Legislation or alternatively the common law practice surrounding the impugned
enactment proves a form of additional sanction, penalty or punishment exiting in addition
to as well as in aggravation of that already provided for under criminal law. Jointly and
severally both the Legislation and apparently common law practice a further derogation of
protected rights and liberties solely on the basis of an existing element of deprived of
liberty. The additional sanction, penalty and punishment, solely affects indigent prisoners
and is the result of a practice and procedure of a Master or Chambers Judge advancing the
provincial governmental regulatory scheme as applied to the just and economic use of its
courts' resources.

407.It is both at once intriguing and confusing to the Complainant to find the conspicuous
absence of a written statutory provision(s) under the Legislation's regulations and rules as
established by the Lieutenant Governor, having allowed the direct or indirect barring of a
person from court as well as restricting a person from continuing or defending a
proceeding solely due to the observable fact the person cannot meet presumed group
characteristics. It then follows that any Charter question is too premised on an apparent
common law - quasi-judicial - practice that solely on the basis of property and social
status determines an additional sanction, penalty or punishment to be added to that already
in place under criminal law. The Charter analysis relevant to the present enquiry are of
those rights and liberties considered to be absolute and guaranteed within the ambits of s.
1, s. 7, and s. 15(1) of the Charter that read:.

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 7 provides:

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"7. Everyone has the right to life, liberty and security of the person and the right
not be deprived thereof except in accordance with the principles of fundamental
justice.

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."

408.In the United Kingdom the constitution is unwritten. It can only be found in common law,
statute and Professor A.V. Dicey's constitutional conventions. Thus, in a sense, British
libel and slander laws stand free from explicit constitutional limitations apart from
potential future interpretations pursuant to Article 10 of the European Convention on
Human Rights by the European Court of Human Rights.

Is There A Deprivation Of A Liberty Protected By S. 7 Of The Charter?


Submission of the Appellant

409.The appellant submitted that it is not only "absolute rights" or "fundamental liberties" that
are protected by s. 7 of the Charter. While recognizing that no liberty or right is absolute,
it is asserted that once a person is granted a "general liberty" or right, such as the right to
be “heard” by the Court, it becomes a right protected by s. 7 of the Charter. The fact that
the "general liberty" is subject to regulation by the Rules of the Court does not reduce the
"general liberty" to a mere privilege.

410.Alternatively, it can be argued that being “heard” by a Court of law in a civil proceeding
is not a "fundamental liberty", a "general liberty" or any other type of right or liberty
protected by s. 7 of the Charter. Permission to be heard or for an incarcerated person to be
transported to the Court are regulated activities which are a privilege - not a right or a
liberty protected by s. 7 of the Charter.

Discussion
Frivolous Prisoners.

411.Comparing provisions of s. 7 of the Charter with the provisions of the Fifth and the
Fourteenth Amendments of the United States Constitution Nemetz C.J.B.C., for the
majority, at 140 stated:

" I adopt, however, those American authorities which do not confine the
definition of liberty to mere freedom from bodily restraint. In Bolling v. Sharpe
(1954), 347 U.S. 497, Chief Justice Warren said, in part: "`Liberty' under law
extends to the full range of conduct which the individual is free to pursue and it
cannot be restrained except for proper governmental objective" (my emphasis). I
am in respectful agreement with this general doctrine.”

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412.Nemetz C.J.B.C. was considering a question that the Complainant finds a lesser “right to
liberty” than that of having his having a right to appear before of Canadian Court of Law;

"Liberty" under the Charter cannot be taken to create an absolute right to


drive. Age, infirmity and other impediments may restrict the granting of drivers'
licences. However, once the licence is granted there becomes attached to it the
general liberty to employ one's skill and ability - in this case the ability to drive.
Accordingly, such liberty constitutes a right under the Charter and a person
cannot be deprived of it except in accordance with the principles of fundamental
justice.

413.Chief Justice Nemetz concluded that the provisions of s.214 (2) offended the principles of
fundamental justice and deprived the appellant of his right or his general liberty under s. 7
of the Charter to drive a motor vehicle. He held that the "road-side suspension law"
contained in s. 214(2) of the Motor Vehicle Act was unconstitutional.

414. In R. v. Neale, [1986] 5 W.W.R. 577 (Alta. C.A.), on the Crown's appeal the Alberta
Court of Appeal the Court wrote of “liberty” at 584-5:

"Liberty" of the person in the Canadian Charter is directed to, or has as its
purpose, the protection of persons in a physical sense. The particular function of
liberty in the trilogy of life, liberty and security of the person touches on the right
of free movement. A person chained in a prison is subject to what the Queen's
Bench judge would describe as "actual physical restraint", clearly a deprivation
of liberty under s. 7. But equally, a person ordered not to leave his home would be
deprived of liberty under s. 7 because the right of free movement is restricted. He
is denied the use of his physical ability to move himself. Whether by chains or by
threat of legal sanction, the deprivation occurs. Broadened Scope of s. 7 of the
Charter

415.[95] The Supreme Court has in some circumstances broadened, the scope of the liberty
protected by s. 7, this was noted by McEachern C.J.B.C. in Blencoe v. British Columbia
(Human Rights Commission) (1998), 160 D.L.R. (4th) 303. At 334 he referred to it as
"the emerging, preferred view in the Supreme Court of Canada".

416.[96] In B. (R.) v. Children's Aid Society, [1995] 1 S.C.R. 315 the scope of the liberty
protected by s. 7 was considered. That case is significant to the present enquiry in that it
also deals with the question of temporary custody. In the present instance at bar the
Complainant in order to appear before the trial court has on a number of occasions request
the Defendant Bulgaria to place him in temporary custody of Canadian authorities until
the end of any trial. In B. (R.) v. Children's Aid Society, [1995] 1 S.C.R. 315 Canadian
police placed a child in temporary custody away from the parents who are members of the
Jehovah Witness faith. For religious reasons the parents had objected to certain medical
procedures being carried out on their infant daughter because the procedures would entail
the giving of a blood transfusion. The Ontario Children's Aid Society intervened and
obtained an order granting temporary wardship during which medical investigations were
conducted. Medical opinion indicated that exploratory surgery was necessary and it would
possibly require a blood transfusion. The temporary wardship was extended by Provincial

19178560.doc Page 86 of 160


Court order. The exploratory surgery was performed. The child received a blood
transfusion. The temporary wardship was terminated and the child was returned to the
care of her parents. The parents asserted that their liberty interests under s. 7 were
infringed by the actions of the Children's Aid Society. There were three separate reasons
for judgment that dealt with the scope of s. 7.

417.[98] Lamer C.J. reiterated the view he had expressed in previous decisions that s. 7
should be restricted to circumstances where the physical liberty of the individual was
involved. At 340-41 he stated:

“With due respect for the contrary opinion, I am still convinced that the nature of
the rights guaranteed by s. 7, taken as a whole, and the close connection
established between those rights and the principles of fundamental justice,
necessarily mean that this constitutional protection is connected with the physical
dimension of the word "liberty", which can be lost through the operation of the
legal system. In a majority of cases, therefore, this protection is specific to our
criminal or penal justice system and is triggered primarily by the operation of that
system. . . . In my view, the principle that must be adopted is that generally
speaking s. 7 was not designed to protect even fundamental individual freedoms if
those freedoms have no connection with the physical dimension of the concept of
"liberty". There are other provisions in the Charter that perform that function.

418.[99] La Forest J., with whom L'Heureux-Dub‚, Gonthier and McLachlin JJ. concurred,
briefly summarized the general issue raised in the appeal by stating, at 351:

This appeal raises the constitutionality of state interference with child-rearing


decisions. The appellants are parents who argue that the Ontario Child Welfare
Act, R.S.O. 1980, c. 66, infringes their right to choose medical treatment for their
infant in accordance with the tenets of their faith. They claim that this right is
protected under both ss. 7 and 2(a) of the Canadian Charter of Rights and
Freedoms.

419.[100] After reviewing a number of authorities in connection with the scope of s. 7 La


Forest J. observed, at 368:

420. The above-cited cases give us an important indication of the meaning of the concept of
liberty. On the one hand, liberty does not mean unconstrained freedom; see Re B.C. Motor
Vehicle Act, [1985] 2 S.C.R. 486 (per Wilson J., at p. 524); R. v. Edwards Books and Art
Ltd., [1986] 2 S.C.R. 713 (per Dickson C.J., at pp. 785-86). Freedom of the individual to
do what he or she wishes must, in any organized society, be subjected to numerous
constraints for the common good. The state undoubtedly has the right to impose many
types of restraints on individual behaviour, and not all limitations will attract Charter
scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint.
In a free and democratic society, the individual must be left room for personal autonomy
to live his or her own life and to make decisions that are of fundamental personal
importance.”

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421. [102] The joint reasons of Iacobucci and Major JJ., with whom Cory J. concurred,
focussed more on the liberty interest of the child than the alleged liberty interest of the
parents. At 431, Justices Iacobucci and Major stated:

422. We note that La Forest J. holds that "liberty" encompasses the right of parents to have
input into the education of their child. In fact, "liberty" may very well permit parents to
choose among equally effective types of medical treatment for their children, but we do
not find it necessary to determine this question in the instant case. We say this because,
assuming without deciding that "liberty" has such a reach, it certainly does not extend to
protect the appellants in the case at bar. There is simply no room within s. 7 for parents to
override the child's right to life and security of the person.

423. In any event, there is an immense difference between sanctioning some input into a
child's education and protecting a parent's right to refuse their children medical treatment
that a professional adjudges to be necessary and for which there is no legitimate
alternative. The child's right to life must not be so completely subsumed to the parental
liberty to make decisions regarding that child: . . . [Emphasis in original]

424. [107] On the basis of these decisions it is apparent to the Speakers that a more
expansive scope of the liberty interests protected by s. 7 has been advocated by some
members of the Supreme Court.

425.[108] It is recognized that the liberty interests protected by s. 7 may not necessarily be
restricted to the physical liberty of the individual. In appropriate circumstances, those
interests may embrace liberties that are fundamentally or inherently personal to the
individual and go to the root of a person's dignity and independence.

426.[109] The broadened scope of the liberty interest protected by s. 7, as expressed by


some of the members of the Supreme Court appears to extend to those matters that are
fundamental or inherently the right of an individual before a Court of civil law. In the
opinion of the Speaker, the right to be heard and to appear before the Court is a matter that
goes to the root of a person's dignity and independence and to hold otherwise would
trivialize the liberty sought to be protected by s. 7. In the Speaker’s view, the right or
privilege to appear at trial is a liberty protected by s. 7 of the Charter and flows naturally
from international law. The Crown and the Defendant State Bulgaria must observe this
right of the Speaker. Ergo, the Master and Chambers Judge are required to extend their
jurisdiction in such a way as to secure such rights, and any Rules of Court of practice that
acts to obstruct such rights must be deemed ultra vires on a division of powers analysis
and for it does act to deprive this Complainant and other incarcerated Canadian citizens of
a liberty protected by s. 7..

427.. The intended point on appeal turns on a fair question: Is the affected group
exceptionally prejudiced by the impugned enactment? Exception prejudice was
enunciated in the cited Smith v. Ontario supra. The extrinsic facts before court below
support the Complainant's proposition that there is a reviewable error made in the Duty
Master as well as His Lordship Edwards, J. declining to accede to Complainant's petitions

19178560.doc Page 88 of 160


that he be permitted to continue or defend only in writing or that the Defendant Bulgaria
and the Crown conduct him to and from Court.

428.The Complainant holds that the Duty Master as well as His Lordship Edwards, J. both
incorrectly held not to vary the way in which an incarcerated petitioner might comply
with an order under Rule 41(16.5)(b). Both determined that "spoken to" prescribed a
practice and procedure of maintaining a discriminatory standard solely based on presumed
group characteristics of self determination and property. The court unreasonably placing a
reverse onus on an indigent person deprive of liberty to appear or retain legal counsel. The
Appellant believes application of the Meiorin test to the case before the Commissioner
makes his points arguable.

429.Should the Commissioner find the practice and procedure maintaining a reasonable
discriminatory standard, the Appellant then argues the alternative; that application of the
discriminatory standard to indigent persons deprived of liberty fails the s. 1 Charter test
for reasonableness solely due to its exceptionally prejudicial affects. The limits
prescribed, if in fact they are such, unreasonably limiting the s. 7, s. 15(1) and s. 24(1)
Charter rights of impoverished citizens of Canada when deprived of their liberty.

430.The Appellant makes a further claim of a second reviewable error in the decision of His
Lordship Edwards, J. when declining his jurisdiction to accede to hearing an s.24 (1)
Charter complaint in writing.

.11 The Existing Judicial Consideration of the Rules

431.Concerning the apparent prohibition against complaints being spoken to in writing by an


incarcerated party.

432.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 Commissioner should
undertake that Charter analysis now. The Complainant 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.

433.The present enquiry should proceed along what appears to be the traditional lines
established in case law for any Charter analysis: Does the Charter apply at all? Does the
impugned practice and procedure indirectly offend the right of equality - s. 15(1) - on
application to an indigent person deprived of his liberty? If so, does the application of the
impugned practice and procedure offend beyond such reasonable limits as can be
demonstrated to be justified in a free and democratic society - (s. 1)? The Complainant has
considered each in turn.

19178560.doc Page 89 of 160


Does the Charter Apply?
To the Court Rules Act.
Argument

434.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.

435.The outstanding question the Complainant is attempting to resolve here turns on one
point and one alone that is the Master's absolute prohibition against complaints 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.

436.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 Complainant.

437.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
complaints, 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 complaints
judicially reviewed?

438.Availability of Judicial Review

439.To answer this question the Complainant 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

19178560.doc Page 90 of 160


"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
Complainant 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 Complainant 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 complaints

"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

19178560.doc Page 91 of 160


"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.

440.The Complainant 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 complaints 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 complaints 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.

441.On appeal of the Master's order and request for judicial review, it appears that the
principle, if any, procedural grounds for the Chambers Judge to refuse such a review of
the Speaker's petition are to be found under s. 9(1) (b) above, the petition as made having
failed to show adequate grounds. The purpose of the present application before the
Commissioner 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.

442.What Standard of Review to be applied to Complaints of "detached" Members of


Society;

443.The Complainant alleges the Duty Master failed to observe a proper standard of judicial
review when dispensing with the Complainant/Prisoners various interlocutory petitions.
This reasoning on the Speaker's part is on valid if review was available to the
Complainant as he alleges above.

444.Issues of availability of judicial review, the standing of the Complainant to seek review,
and the timeliness of the application are questions of jurisdiction. If judicial review of the

19178560.doc Page 92 of 160


complaints returned by the Master was available to the Complainant 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.

445.The Complainant 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.

446.The Complainant 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.

447.It was instructive to the Complainant 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 Complainant 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 Complainant. 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.

448.The Duty Master's order in effect terminated any further possible prosecution or defence
of the law suit by the Complainant before the trial court. The Chamber Judge had already
made the same determination.

19178560.doc Page 93 of 160


.12 Judicial Review

449.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 (supra), writing for the
court: "He recognizes that statutory interpretation cannot be founded on the wording of
the legislation alone" and goes on to cite 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.

450.The Supreme Court of Canada in Nicholson v. Haldimand-Norfolk Regional Board of


Commissioner s 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 Complainant had a right to a judicial review of his complaints conducted
according to circumstances of his imprisonment.

451.In Rizzo & Rizzo Shoes Ltd. supra, the learned Iacobucci, J found, as the Complainant 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 Complainant 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 Complainant 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 complaints or complaints.
.13 Does the Impugned Act (Rules) Offend Section 15(1)?

452.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]:

19178560.doc Page 94 of 160


"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]

453.The present appeal is brought as a case of indirect discrimination affecting a specific


group to which the Complainant belongs. It was so argued before the Chambers Judge and
is done so again now. The Complainant does not believe that the abolition in MEIORIN of
a distinction between direct and indirect discrimination will greatly affect the result of his
appeal, however the words and reasons found there give substance to his analysis and
arguments.

454.It is for these reasons the Complainant 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 Complainant 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.

19178560.doc Page 95 of 160


455.Do the Impugned Rules Offend Section 15(1) Beyond the Extent of the Freedom
Guaranteed Under Section 1?

456.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.

457.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.

458.There is sound reason why the prohibition that complaints 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.

459.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 Complainant 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.

460.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?

461.The Complainant contends that the reasonable limits imposed by government on


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 government’s 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

19178560.doc Page 96 of 160


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.

462.The importance of this aspect of the analysis was enunciated by Dickson C.J.C. in Big M
Drug Mart, supra, at 331:

"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.

463.At least with respect to the impugned parts of Rule 41, it appears to the Complainant that
one intended purpose was to prohibit abuses of the courts resources and to serve justice by
requiring certain complaints be brought in proprio person of the Complainant 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 complaints. 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 complaints.
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.

464.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.

465.This purposive approach, the Complainant 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.

19178560.doc Page 97 of 160


466.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 the means to prosecute or defend as a party to a law suit before
a trial court of Canada. There can be no doubt to the Complainant as to the significance of
the point to the proceeding before the trial court.

.14 Vagueness

467.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:

"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.

468.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.'

469.Vagueness was considered with overbreadth in R. v. Heywood, [1994] 3 S.C.R. 761, there
the Supreme Court of Canada said at p. 792:

19178560.doc Page 98 of 160


"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."

470.The Complainant believes the words found in Rule 41(16.5) (b) that "complaints 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 "complaints be
spoken to" by an indigent prisoner. There few such methods are found among the
provisions of the impugned Rules as to how an indigent and imprisoned person is to
comply with the words. It is this reason the Complainant believes the factors enunciated
by Gonthier J. in R., supra, items (a), (b) and (c) are satisfied. At least to this Complainant
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.
.15 S. 1 Overbreadth

471.Another argument is overbreadth and this comes down to a concern by the Complainant
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.

472.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 "complaints 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.

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473.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
overbreadth affects 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 complaints the law is arbitrary or, as is the case here, the effect is disproportionate.

474.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.

475.The Complainant 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."

476.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.

477.This deleterious effect on the Complainant or any person having the same status
obviously far outweighs any benefit that the courts or might society receive. In the

19178560.doc Page 100 of 160


Speaker's lay opinion a reformulated positive test would, from his perspective as the
effected party, could just as successfully achieve the legislative objective.

478.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.S.
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.]

479.Rule 41(16.5) (b) imposes no greater as onus on the effected party except to "speak" to
his or her application. The Complainant 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."

480.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 Complainant has
claimed previously it is discriminatory.

481.According to the learned Afforest 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.

482.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, and provides two
central criteria that the Complainant considers he should address: rationality and
proportionality.

19178560.doc Page 101 of 160


483.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.

484.The Complainant 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.

485.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 :

486. Are the measures rationally connected to the objective;

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

488.Do the benefits derived outweigh the inherently deleterious effects of the infringement on
the enshrined freedom.

489.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]

19178560.doc Page 102 of 160


490.The Complainant 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.

491.Here the Speaker, as a lay litigant admits his confusion as to what authority bears the
burden of proving, on a balance of probabilities, the extent to which a Charter freedom of
a prisoner when offended is reasonable and demonstrably justified in a free and
democratic society [see: Oakes, supra. (pp. 136-37)] Thus, in defending the Rules or in the
application of the impugned rule to an indigent prisoner, it appears that some authority
must come forward and prove that all of the elements of the two criteria repeatedly
enunciated by the Supreme Court of Canada as in are satisfied. But, unhappily, this
approach to what appears to be the pivotal question here is absent from the order made by
the Duty Master or the decision of the Chambers Judge. It seems to the Complainant
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.

492.In RJR, McLachlin J. considered that the degree of deference to be afforded a law-
making body must depend on the social context in which the rights are limited, with a
caution that deferential scrutiny may sometimes mean no scrutiny at all (para. 136):

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

[Emphasis Added - Mine]

493.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.

19178560.doc Page 103 of 160


494.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 the Commissioner from striking such rule
down or its application under such circumstances if necessary.

495.The Complainant 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 Complainant believes such an
analysis must be undertaken as well by the Court of Appeal, the evidence referred to by
Complainant 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 Complainant
can advance that would suggest to him that there are for some reason distinguishing
considerations justifying the absolute prohibition on an indigent prisoner in himself
prosecuting his law suit up to and including any trial before a court of British Columbia or
Canada for that matter-- our free and democratic society.

496.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.

497.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.

498.The Complainant now returns to the two criteria of rationality and proportionality.

.16 Rationality

499.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.

19178560.doc Page 104 of 160


500.Even if the Complainant 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 criterion 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 Complainant accepts that the first of the two criteria can be said to be
satisfied.

501.However, it is the argument of the Complainant 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 Complainant 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 Complainant believes the practice in general.

.17 Proportionality

502.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.

503.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 to be no public benefit to do so.

504.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 Complainant asserts to the Commissioner 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 Complainant to be utterly defeating to any
possible argument that the purpose of Rule 41 was satisfied in the least intrusive manner.

505.The Complainant 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

19178560.doc Page 105 of 160


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.

506.The third and final element the Complainant 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):

"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."

507.It is difficult for the Complainant to rationally conclude that the application of impugned
part of the Rules to an indigent prisoner is proportional to its objectives. Indeed, on the
evidence the Complainant has adduced and the clear effect of such an application on him,
it becomes only too 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.

508.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
Complainant to be heard. Nor can it say that it is necessary to prohibit the Complainant
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.

509.There is no evidence that the objective of the Rules could not have been met by
permitting the complaints 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 complaints from virtually all
indigent prisoners no matter where he or she is incarcerated.

510.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 Complainant
identifies with. No where is there a means provided in the impugned legislation to permit
incarcerated and indigent Complainants to participate in civil proceedings, advancing or
defending their claims before the trial courts, if need be in writing only.

511.The alternative further "effect" of the impugned legislation is to continue to require all
prisoner complaints to the trial courts be "spoken to" in proprio persona of the petitioner

19178560.doc Page 106 of 160


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) complaints as well be "spoken
to" in proprio persona of the Complainant or a lawyer.

512.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.

513.For analysis of this second factor the Complainant 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, and the Court Rules Act [RSBC 1996] c. 80.

514.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 Complainant 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 is 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
Complainant can comprehend.

515.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 complaints. 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 Complainant and, if so, the content
of that duty and whether it had been observed.

516.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)

19178560.doc Page 107 of 160


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 up to 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."

517.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 complaints 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.).

518.To balance his reasoning the Complainant 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.

519.It appears both the Master and the Chambers Judge reached a conclusion that all
prisoners who make complaints 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.

19178560.doc Page 108 of 160


520.The Reasonableness of the Affect of the Duty Master's Order;

521.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 Complainant 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.

522.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 Complainant 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."

523.The Complainant 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.

524.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".]

525.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:

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"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."

526.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 Complainant'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.).

527.The Complainant can certainly sympathise with the frustration the Duty Master or any
judicial officer must feel in the face of complaints made by lay litigants. To be required, in
camera, to review and rule on all such complaints 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 complaints having greater qualitative merit.
The Master's order to have such complaints "spoken to" by the Complainant as
Complainant is on the surface a reasonable one. This was discussed earlier.

528.However, this type of judicial discretion is of the technical, non-substantial type which
the Complainant argues is outside the concept of the Court Rules Act and intent of the
Rules to limit wasteful procedures. It fails to deal with complaints on their merits and
becomes clearly unreasonable because of the practical inability of any indigent prisoner to
bring his complaints 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.

529.There was a burden on the Complainant as the Complainant/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.

530.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

19178560.doc Page 110 of 160


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 Complainant does not advance a
thesis that the adoption of a general policy that "complaints be spoken to" in proprio
persona of the Complainant 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.

531.Duty of Procedural Fairness

532.Although called an "appeal from Master", the right conferred on the Complainant 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 complaints 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
complaints 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.

533.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 Complainant under the Charter, inter alia to make full
answer and defence on a Rule 14, Rules of Court motion filed by the Respondent
Bulgaria.

534.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

19178560.doc Page 111 of 160


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]

535.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.

536.As additional grounds for his appeal the Complainant 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 Complainant his Charter
rights and those guarantees provided in international law. The comity of nations not
withstanding a Charter or international law challenge.

537.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
Complainant by the Respondent.

538.The Complainant 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

19178560.doc Page 112 of 160


under s. 24(1) of the Charter appears to be solely because of their status as impoverished
prisoners.

539.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.

540.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 citizen's complaints to the
Court.

541.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 an impoverished prisoner
and as such their application could not be "spoken to" in proprio persona of the prisoner or
of a paid legal representative.

542.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 Complainant has
attempted to appreciate this fact in all his complaints. 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.

543.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 complaints 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.

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544.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.

545.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.

546.It does not follow, and the Complainant emphasizes that it would be wrong to imply that
there are no reasonable restrictions on the how complaints 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 complaints, 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.

547.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
Complainant and should, with deference, be left to the Commissioner to act as it may see
fit based on its assessment of the extent of the restrictions should be placed on
incarcerated and indigent Complainants in civil proceedings before the courts that is
dictated by this constitutional challenge.

548.

Part 15
Part 16Factors Existing In Aggravation of the Circumstances

549.While not of primary significance to the present enquiry it is nonetheless worthy to draw
attention to certain facts existing in aggravation of the Charter rights alleged to be
breached by a practice and procedure employed my the R.C.M.P. in my case and that of
Mr. Arar.

550.The following factors must impact on what standard of review the Commissioner is to
apply on a Complaint submitted by a citizen of Canada who is still a prisoners' under the
very circumstances as have been immediately described above, and as are set in
SECTION A FACTS.

551.Among the factors that KAPOUSTIN believes must be considered are the "allegation(s)
of procedural unfairness " on the part of the Minister, Ministry of the Attorney General,
and grounded allegations of, inter alia, a possible malicious prosecution of KAPOUSTIN
by the Crown.

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552.Not unlike those circumstances to be found in Gwynne supra, the Commissioner here is
asked, mutatis mutandis, to consider the Charter, and other constitutional implications, of
a decision(s) or inaction by the Minister, Ministry of the Attorney General of Canada (the
"Minister").

553.This Commissioner is asked to consider the implications of a Crown Servant and the
R.C.M.P. making a written request, and providing data, to Bulgaria authorities for the
arrest and prosecution of KAPOUSTIN, a Canadian citizen.

554.The Crown is documented as having criminally indicted KAPOUSTIN before a foreign


state with a view to his arrest, and the seizure of his company records and assets in aid of
a criminal investigation in the province of British Columbia.

555.A further factor is the transfer to a Canadian prison of KAPOUSTIN. The Complaint now
before the Commissioner raises a question and constitutional implication of (1) the
R.C.M.P. having acted to secure the arrest, detention, prosecution and conviction of a
citizen of Canada on the grounds of an indictment and information provided by a Crown
Servant to Bulgarian authorities, and; (2) that after 8 years of trial KAPOUSTIN is finally
acquitting of the July 7th 1995 Crown indictment of him before Bulgarian authorities, that
(3) the Ministers of Justice and Foreign Affairs of Canada are still refusing to aggressively
undertake to secure from the Government of Bulgaria the transfer of KAPOUSTIN to
Canada.

556.From the foregoing factual circumstances arises a further question. Why did the Minister
refuse admit the existence of or act to intervene on behalf and in aid of a Canadian citizen
wrongly indicted and charged by a Crown Servant and the R.C.M.P.? There are
complaints by KAPOUSTIN and his family to the Attorney General [see above 1] of
Canada concerning the allegedly criminal misconduct by a Crown Servant while on duty
outside of Canada. However, despite these complaints the Ministers of Justice and Foreign
Affairs of Canada repeatedly demurred from observing or securing for KAPOUSTIN in
Bulgaria or Canada his constitutional and legal rights as a citizen of Canada under
international law and Canada’s treaties to which the Republic of Bulgaria is a party. Why?

557.The Ministers also refused to reply to the earliest written complaints of the Complaint
against the R.C.M.P. These start as early as 1996, and left KAPOUSTIN no alternative but
to bring a civil action against the Crown Servant alleged to have perpetrated crimes
against him and his family. The civil complaints before the trial court of British Columbia
are brought in the nature of a criminal proceeding against a Crown servant, the defendant
Derek A. DOORNBOS, and others.

558.Each of the KAPOUSTIN complaints requested the Minister intervene in facilitating the
transfer of this Complainant to Canada. Such a request, although procedurally possible
under the laws of both Canada, and the Republic of Bulgaria, and in accordance with the
principles of international comity and reciprocity between nations, was an admittedly
unlikely possibility in the absence of the Minister's intervention.

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559.The Commissioner is not asked by KAPOUSTIN "to go into the weight the Minister is
required to give the issues arising under treaties [see, Goldie, J.A. at §24 in the cited
Gwynne, supra]. However, the Commissioner is asked to consider the foregoing
circumstances in aggravation of those complaints brought here, and the primary point of
this Complaint; the accountability of the R.C.M.P. and DOORNBOS to the Charter and
for unlawful acts committed against citizens of Canada who are outside of Canada.

560.This Complaint to the Commissioner must therefore turn on the national and international
obligations of the Government of Canada, its agencies, institutions and instrumentalities,
it’s elected and appointed officials, Crown Servants, and employees to observe and extend
to all citizens of Canada in and outside of Canada what are their fundamental rights and
protections under Canada’s laws and its Charter. This includes the right of KAPOUSTIN
as a citizen incarcerated in a foreign prison to bring and have his complaints heard by the
Commission, and if need be a civil or criminal court of Canada.

561.The present Complaint finds a citizen of Canada and 8 year prisoner of a foreign state
attempting to secure for himself, before the Commissioner in Canada, his legal right to a
review of his complaints and a procedural administrative or judicial remedy to aid him in
the prosecuting of his claims, and those of his wife, son, father and recently deceased
mother against a Crown Servant and official of the R.C.M.P.

562.The British Columbia law suit and the present complaints each proved a test of physical
and mental stamina of the family of KAPOUSTIN who continues to suffer from the post
traumatic stress of his first years of beatings and torture as reported in the Bulgarian
media.

563.As a Canadians, KAPOUSTIN and his family seek to lawfully prevail against what they
consider to be unlawful and morally corrupt actions of DOORNBOS and the R.C.M.P. for
having secured a foreign state to arrest and prosecute a citizen of Canada, imprison and
beat him. This only to aid in the collect of information and data for a criminal
investigation in Canada.

564.This Complainant seeks to raise a proposition to the Commissioner that there exists a
constitutional duty of the Commission and other agencies, institutions and
instrumentalities of the Government of Canada to secure the rights of a citizen of Canada
at least in Canada and notwithstanding that he is still incarcerated in a foreign prison when
the R.C.M.P. have been the primary and initiating cause of that imprisonment.

565.The proceedings before the Commissioner and the present complaints each represent a
test of some very serious questions.

566.Has the Government of Canada allowed the R.C.M.P. to become an oppressive agency?
Permitting it to use foreign police and prosecutors as a proxy to violate with impunity and
without fear of recourse the fundamental rights of citizens of Canada traveling or living
abroad?

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567.Are Crown Servants and the R.C.M.P. not accountable the Charter; the laws or courts of
Canada; or to the citizens of Canada so long as those citizens are not in Canada?

SECTION JComplainant's Reasoning.


Part 1 Objectives

568.Reason is a most admirable trait and one unique to the human species. It is found to
varying degrees in all individuals, and is based on ones education, experience and
ultimately the very personal barrier of our own respective intelligence. Among reasonable,
educated and intelligent members of society different concepts can be quickly, clearly, and
efficiently exchanged.

569.The object of the present complaint can be efficiently and quickly disposed of as long as
the reasoning of KAPOUSTIN is not overly flawed and conforms in some part to the
reasoning found in the practice of law.

570.The single objective of the intended Complaint is to secure from the Commissioner the
right of a citizen of Canada imprisoned abroad to have his complaints and arguments,
heard.

571.KAPOUSTIN has used what little reason remains to him after 8 years of imprisonment in
Bulgaria.

572.From the prevailing international law, and laws of Canada, and Bulgaria, it appears to be
within the legal right of KAPOUSTIN to demand; (1) the possibility to fully prosecute
this complaint and other claims in Canada; (2) to have his arguments heard, in writing if
necessary, and to; (3) obtain a decision from the Commission that makes its determination
on the merits of the available facts, evidence and arguments.

573.Reason suggests that there can be no justice if one party is allowed to deny another party
the right to be heard. It appears, at least in principle, to be inherently wrong and this
Complaint should be heard notwithstanding the absence of KAPOUSTIN from Canada.
Any limitations on such a right appears in law only in the case of a Complaint found to be
vexatious, frivolous or an abuse of the Commissions processes. Thus, in the absence of
such a finding, the right for KAPOUSTIN to prosecute this Complaint from outside of
Canada appears to be an unequivocal one.

574.In the Complaint before the Commissioner KAPOUSTIN has produced "documentary
evidence" [see: Interpretation Act c. I-21 R.S., c. I-23, s. 1] in support of his allegations of
wrong. This Complaint relies primarily on such documentary evidence in proving
complaints against DOORNBOS, the R.C.M.P. and the Government of Canada to not be
frivolous or vexatious as they might on first blush appear.

Part 2 Rights Relied On.

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575.Among the guarantees found within the ambit of s. 15(1) of the Charter, and of
significance to the present enquiry, is the insistence of KAPOUSTIN on his right, as an
indigent person deprived of his liberty, to be allowed some means to "equally" access the
Commission or Canada's courts of justice. This seems reasonable as it is a fundament, a
priori, requirement of justice for all parties in Canada to be found equal under law. Any
limits to be placed on such rights, i.e. access to the Commissioner or a court of law in
Canada are to be prescribed only in law and inherently are subject to a test of
reasonableness under s. 1 of the Charter.

576.KAPOUSTIN believes, and this Complaint asserts that his right to prosecute or defend
his claims against a Crown Servant, and to have his arguments reviewed by the
Commission or later judicially by a court of law, are not subject to limitation solely on
account of his indigence and his deprivation of liberty abroad.

577.It is unreasonable that there can be permitted to exist an order, enactment or practice of
the Commission or a court of Canada that acts to limit, or deny to one person, directly or
indirectly, his or her legal right to have their complaints heard by making a distinction
between citizens of Canada who are imprisoned abroad, and those citizens of Canada
imprisoned in Canada. Such an order, or enactment, should one exist must be as a
principle and practice, intrinsically wrong one and therefore invalid. The rights of
KAPOUSTIN as a citizen of Canada before the Commission in Canada must be the same
as the rights of any other citizen of Canada, notwithstanding that KAPOUSTIN is by his
circumstances to be found outside of Canada.

578.If that foregoing reasoning is grounded in the common law, then a "constitutional
remedy" is available to this Complainant under the Constitutional Question Act [RSBC
1996] c. 68, s. 8(1).

Part 3 Prior Petitions

579.The past complaints and petitions of KAPOUSTIN have sought out such remedies as
may be seen to be reasonable under the circumstances of his combined disabilities of
indigence and incarceration, as claimed by KAPOUSTIN as the party affected by the
unlawful and irresponsible actions of a Crown Servant, DOORNBOS. Any relief
KAPOUSTIN sought from the Solicitor (Attorney )General and Minister of Justice for
Canada, or the Minister for Foreign Affairs Canada have the legal affect of being seen to
do justice to all parties and to be applicable in the specific circumstances.

580.If reason is to prevail then justice cannot be seen to be done by any order, legislative
enactment or practice of the Commission or a court of law in Canada that as its effect is to
deny one party, KAPOUSTIN, the relief appropriate to his difficult circumstances. The
international community, and Canada, having recognised imprisonment as an "afflictive”
social status.

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581.It is asserted that prison is a difficult and harsh place from which to conduct ones affairs,
much less to prosecute or defend ones Complaint before the Commissioner of a court of
Canada.

Part 4 Background to Bringing the Complaint

582.Much of the Complaint was prepared and written by KAPOUSTIN while in solitary
confinement. The confusion and disorientation arising from a solitary confinement that
started on September of 1996 and proved a long and uninterrupted period of physical and
psychological torment has had a severe negative impact on the state of mind and health of
KAPOUSTIN.

583.The natures of the problems in bringing the Complaint are diverse in character, slowly
overcome. Among the many difficulties experienced there was KAPOUSTIN inability to
access records or other documents while in prison and still under the Bulgarian control.
KAPOUSTIN written requests to Bulgaria authorities for access to evidence under its
control are routinely refused.

584.It is documented KAPOUSTIN that at the time of preparing this Complaint Bulgaria
denied authorities were obstructing and denying him the facilities needed to affect
exchanges of information, facts or to collect evidential materials necessary to the
successful prosecution of this Complaint and the civil claim against DOORNBOS and
State of Bulgaria.

585.It common knowledge, and a part of the international human rights record of the
Bulgaria, that attempts by prisoners to bring legal action, civil or criminal against officials
of the Bulgaria, its instrumentalities or agencies, are usually met in prison with severe
physical and psychological consequences for the prisoner. The experiences of
KAPOUSTIN can confirm such practices.

586.Such circumstances would have a more profound effect in bringing this Complaint
against the Crown in Canada. It had been, and remains today, impossible for
KAPOUSTIN to determine, exactly among other things; the name of all the officials
contacting DOORNBOS, ordering the arrest of KAPOUSTIN or having abused the due
process rights of KAPOUSTIN; or undertaken quasi-criminal acts against KAPOUSTIN
or property due to the DOORNBOS request to Bulgarian authorities prosecute
KAPOUSTIN and LIFECHOICE.

587.A reasonable person, in the absence of the Bulgarian state's cooperation, simply could not
fully realise, or hold, the information necessary to formulate in this Complaint exactly
who, within the government of the Bulgaria, ordered or approved, inter alia the arrest of
KAPOUSTIN.

588.Other practical difficulties exist, among them the problems of language and the refusal of
the Bulgarian justice and prison officials to allow KAPOUSTIN to interact or come in
contact with his interpreters, and thereby making independent action impossible.

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589.The above are facts that are before the British Columbia Supreme Court under Docket
Nos. S004040 and S005440 documented in the Affidavits of, inter alio, Ms. Marianna
Radoulova, Anatol Lukanov, Robert Kap and Ada Gogova as placed before a Master of
the Court on August 24th 2001.

Part 5 Speaker's Arrest and Extradition

590.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.

591.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.
Up to very late in 2000 decisions on matters of habeas corpus having been within the
exclusive ambit of police and prosecution officials who formulated the charge, issued
warrant, affected the arrest and prosecuted the case in the absence of judicial supervision
or review. This practice and procedure was later legislatively amended in 1998, and again
in 2000, 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].

592.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.

593.The charge brought by Bulgarian police (NIS) in November of 1995 was an alleged
embezzlement by the Complainant as an "official" (director) employed by the Speaker's
company in Bulgaria.

594.The court will recall it was a servant of the Crown, Defendant DOORNBOS, having
contacted the defendant Bulgaria in May and July of 1995, and wrongly accusing the
plaintiffs' companies as part of an international criminal organisation operating out of
Canada.

595.It was known at the time of the Crown's indictment of the plaintiff Kapoustin, that its
charges were legally and factual unsupportable, in point of law or fact completely
groundless.

596.The seminal case on this particularly question of fact, an alleged misappropriation, and
law, a collective decision by a management body, 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

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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, by
the defendant Bulgaria's own admission, must devolve to the plaintiffs' company in British
Columbia by way of their 100% ownership of the Bulgarian company's shares.

597.On February 6th 1996, the Complainant was arrested by German police while in transit to
Greece at Frankfurt International Airport on the very same data as provided by Crown
having been embodied in the defendant Bulgaria's international police warrant.

598.According to the sworn statement of Ms. Dobreva before the trial court in this
proceeding, the Speaker's location, and arrest, are possible only thanks to the assistance
provided by the Crown and an agency of the Government of Canada.

599.On February 12th 1996, while detained by German police, the defendant Bulgaria raised
new charges against the Complainant of misappropriation of his company's funds by
documentary fraud, general fraud, and income tax evasion.

600.On or about August 1st 1996 the Speaker, was hospitalised at the order of prison medical
staff in Germany and placed on intravenous feeding.

601.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.

602.After a medical examination at Frankfurt international airport the Complainant was taken
by airport ambulance, then physically carried to an awaiting Bulgarian Balkan Airlines
aircraft. On arrival in Sofia, Bulgaria, the Complainant was hospitalised by the defendant
Bulgaria for an additional 16 days.

603.On September 18th 1996 the Complainant was relocated by the defendant Bulgaria to a
solitary confinement facility at a police detention facility in Sofia, Bulgaria, he remained
there alone. The cell was unventilated, having no natural light. What was available was a
60 Watt yellow incandescent bulb. The Complainant experiencing his first beatings here.

604.On or about the end of October, early November, the Complainant was again relocated to
another facility where he was isolated. His cell there differed little from that of the
previous facility except for toilet facilities and some natural light. The beatings continued,
and the Complainant reported to Canadian authorities having been drugged on more than
one occasion. He remained in isolation here for an additional period of two (2) years.

605.The average maximum detention in such facilities is typically six (6) months. The
Complainant continues to hold the defendant's record for the longest period in solitary
confinement at a police arrest facility since 1991.

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606.On September 7th 1998 the Complainant was moved by the defendant Bulgaria to
solitary confinement facilities located at the Sofia Penitentiary where he remained an
additional 6 months with intermittent stays at the prisons infirmary.

607.This Complainant remains remanded at the Sofia Central Penitentiary awaiting a final
verdict.

.18 Speaker's Arraignment and Trial

The Indictment
On December 10th 1998 the defendant Bulgaria brought final charges, having entered an indictment
for an embezzlement aided by a fraud.
It was alleged by the defendant Bulgaria that the Complainant 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 get the funds to be
embezzled later the Complainant had to first defraud others of the funds. Needless to say the
Complainant and his attorneys at the time were completely confused by the indictments legal
construction.
The Complainant argued estoppel, contending that since the subject of the alleged two
misappropriations was one and the same property, the act of misappropriation by embezzlement
could not be linked to the preceding unrelated act of misappropriation by fraud.

The Trial and Conviction

608.On April 16th 1999, three (3) years and three (3) months after his arrest, the Complainant
was arraigned for the first time before a justice of the Sofia City Court.

609.The district court allowed bring new elements in the indictment different from those
brought at the time the Complainant was arrested on February 7th 1996 and for which
Germany later extradited the Complainant on September 2nd 1996.

610.A repeated defence thesis during the Speaker's arraignment was that an alteration of the
extradition elements of the charge violated international law -the European Convention on
Extradition - in the absence of the extraditing state - German - consent.

611.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 the same criminal code qualification, the
presiding judge allowing the new charges.

612.On March 13th 2001 the Sofia City Court convicted the Complainant of embezzlement of
his company’s 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 Complainant in Bulgaria.

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The Acquittal

613.On August 2nd 2001, on appeal, the Complainant 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.

614.The Commissioner 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.

Supreme Court of Bulgaria - Protest and Appeal

615.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 seeking the Supreme Court of
Bulgaria to declare the acquittal invalid, setting aside the appellate decision and returning
the Complainant for a new trial before the first or second instance courts.

616.On August 22nd 2001 the Complainant appealed his innocence, and the Commissioner
having in part erred in law when, inter alia failing to observe applicable principles of
international law on bringing new elements to a charge of fraud different from those for
which the Complainant had been extradited. Having also erred in fact when finding, inter
alia, that the Complainant had personally affected, at different times and places, each of
the alleged misrepresentations, through intermediaries, and thereby having alone
defrauded more than 2,500 individuals.

617.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.

618.As of the moment of this memorandum there is no final verdict or determination on what
charges the Complainant will ultimately be sentenced on, or retried, by the defendant
Bulgaria. Such an indeterminate judicial state of an accused is consistent with the practice
of the defendant Bulgaria.

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SECTION KPractices of the Defendant Bulgaria Existing In Aggravation of
the Claims
CHAPTER IVARGUMENT AND ANALYSIS

SECTION AThe Arguments Evolution

619.The use of exclusion in achieving simplicity, and clarity, can only belie the complexity of
issues, and the difficulty of the questions to be answer.

620.No pretence is made to fully understanding the relevant law as it may apply to the issues
raised. However, not withstanding the inadequacy of the present Writer the attempt must
nonetheless be made.

621.This effort may prove incompetent in its individual parts. However, collectively the
course and development of this Writer's layman reasoning appears to be consistent with
the self evident propositions that flow naturally from the principles of international law.

622.This Writer believes that his rights as a citizen of Canada are wrongly limited by a Master
or Chambers Judge when petitioning a provincial court from prison. This limitation solely
due to his indigent property status, and the loss of his self-determination.

623.Ultimately, the significant issues rose in discussion, and the present complaints, must in
the end turn on a comparative review on what the common law, and Canada's enactments
have to say about "reasonable limitations" on the rights of a citizen having an "other
status" to equally access the civil courts and justice. Particular emphasis is placed on
discussing the international status, in Canadian society, of an indigent citizen deprived of
his liberty abroad.

624.A central controversy in this enquiry arises from the occasion of a practice, and procedure
of the trial court found by the Complainant to indirectly apply unreasonable limits on his
legal rights, and those of others having an "other status" in Canadian society. The
imitations are imposed by reverse onus and result solely due to the observable fact of a
person’s status as an indigent prisoner.

625.In the present discussion the Writer approaches the problem first from the a priori rights
of all members of a free and democratic society. Developing from such self evident
propositions his own reasoning, and conclusions that evolve a posteriori, from the facts
and circumstances of the case at Bar. The observable facts demonstrate, when placed
against the self evident propositions advanced under the principles of international law,

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and common law practice of Canada, that unreasonable limitations are being imposed on
a distinct group solely due to their status in society.

626.To advance the Writer's hypothesis that his a priori rights are unreasonably limited it is
first necessary to illuminate the similarities to be found under both the national laws of
Canada and Bulgaria. Significant, although not surprising, is that both national laws
guarantee the same fundamental a priori principles of civil and human rights. Central to
this discussion is the observable fact of both national laws having applied these a priori
rights equally to proceedings before the courts in suits in law - civil - as to those having
criminal causes of action. The governments of both Bulgaria, and Canada, having
imposed negative restrictions on their agencies, instrumentalities and courts from
unreasonably limiting fundamental individual rights, and creating a positive constitutional
obligation, and duty of the courts under the respective lex fori to guarantee fundamental a
priori rights to all persons found to be under the sphere of duty of either one of the two
governments.

627.It is compelling to recall that the civil and socialist law traditions of the Republic of
Bulgaria have in principle attempted to embody the same a priori rights as historically
found in the common law. However, recent history and a posteriori reasoning show that
principle has yet to become fully integrated into Bulgarian practice. An analysis of the
Defendant Bulgaria's observance of its international obligations to individual rights, and
the rule of law is discussed later.

628.This discussion examines the historic and current conduct of the Defendant Bulgaria as a
contributing factor to the unreasonable limitations of the Complainant's a prior rights
having ultimately a factor affected his procedural possibilities as a party before a trial
court in British Columbia.

629.In aggravation of this Complainant's circumstances is the defendant Bulgaria's co-


operation or lack of co-operation with the plaintiffs during the course of the proceedings
before the trial court. The defendant Bulgaria's practice of using physical, or other means
of coercion against persons it has deprived of liberty are representative of this
Complainant's own experience of having the said defendant interfere with, or attempt to
deter, him from prosecuting his law suit, or appeals, before the court in British Columbia.
Each such incident on record is representative of a breach of the trial court's processes,
Canadian law, and the defendant Bulgaria's positive international obligation and duty to
guarantee all persons their individual rights. Central to the discussion is a consideration of
what amount of coercive influence is reasonable on the part of defendant Bulgaria, as a
"private person", to limiting a plaintiff's a priori rights in a suit at law before a court of
Canada.

630.Significant to this discussion is the legal obligation of all "private person(s)" appearing
before a court of law to not use interference, hindrance, obstruction or other forms of
coercion to obtain any advantage in a private law proceeding before a court of Canada. It
is recalled that a state party appearing in a private law proceeding, appears only in the
capacity of a "private person", having rights, and obligations equal to, and not more than,

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any other party, including the person it has deprived of property and liberty. This leads
inevitably to a discussion on a Master or Chambers Judge constitutional duty to judicially
examine, on petition, any complaint alleging a coercive act(s) by a party interfering with
the legal rights of the other party proceeding in a suit at law.

631.What is immediately significant to any enquiry into coercive activities of a State's


agencies is the incontrovertible principle that a State must be aware of, and accountable
for, the actions of its officials, agencies, and instrumentalities. Equally incontrovertible is
the fact of international jurisprudence showing Bulgaria as not yet integrating this
fundamental principle into its practices as have the other free nations of Europe [As
authority see European Court in Lukanov v. Bulgaria, judgement 20-2-1997 at §40 par. 2].

632.The historic and current practices of the defendant government of Bulgaria, its officials,
agencies, and instrumentalities provide compelling causus to bringing all three of the
complaints now before the Appeal Court. For these reasons the Writer has undertaken to
bring the defendant Bulgaria's conduct under analysis, and within the ambit of the Appeal
Court's jurisdiction when considering this Writer's complaints to extend time, recognise
his indigence, and ultimately grant him the relief he seeks in his intended appeal.

633.The main issue here is of course the a priori rights of a litigant, and what limitations on
those rights are reasonable in a suit at law before a British Columbia trial court. The
significant factor appears to be the litigants "other status" in Canadian society, that of an
indigent person deprived of liberty, and the practice and procedure having employed a
reverse onus to limit a persons procedural possibilities to prosecute, or defend claims,
notwithstanding the suit at law is against a foreign state.

634.From this point forward the purpose of this Writer's discussion attempts to logically prove
his thesis of the Charter placing a negative restriction on a Master, or Chambers Judge as
well a positive obligation, and duty to being responsive in guaranteeing the fundamental
rights of persons having an "other status" in Canadian society. The common law courts
were conceived to be sensitive to all administrative or executive body practices, and
procedures that derogate from the fundamental rights of persons having afflictions, and
disabilities, the courts responsive as defenders of their fundamental liberties. The Writer
advancing within his thesis, a hypothesis. That on the observable conditions of a petitioner
having no property means, and no access to the court solely due to an afflictive "other
status", these conditions aggravated by allegedly coercive acts of a defendant, among
them obstruction of the processes of international justice. Are conditions that act together
in creating a positive constitutional obligation and special standard of care and duty a
Master or Chambers Judge when applying any practice and procedure affecting the
fundamental a priori rights of the petitioner? The Complainant's a posteriori reasoning is
as follows.

Part 1 Law and Enactment Relied On.

635.The Writer's argument will 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

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enactment in such a way so as to permit a Master or Chambers Judge of the provincial
court to refuse to hear, or otherwise act positively on a written application of a indigent
prisoner for judicial review, and relief as a party to a suit in law.

636.To fully develop his reasoning the Writer elected, more for himself than the
Commissioner, to first review the historic development of fundamental, a priori, rights
found under international law. Later examining how such guarantees are incorporated,
jointly and severally, into the national legislation of both Canada, and the defendant
government Bulgaria.

637.After having examined these a priori propositions of international law, the Writer then
attempts to place them into the context of his judicial complaints under the lex fori of
Canada, and his fundamental rights under the lex fori of the defendant Bulgaria as an
indigent prisoner.

638.International Conventions - A Chronology

639.Through the course of the proceedings before the trial court, the Complainant 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.

640.What follows is a chronological review of international instruments, and national


enactments conceived for protecting the fundamental rights of all persons,
notwithstanding the particular territory or jurisdiction of the State where such person may
be found. Certain of the documents reviewed are conceived with the particular intention
of establishing what are reasonable legislative and judicial limitations to the fundamental
rights of persons deprived of their liberty. The provisions cited below are what the
Complainant believes relevant to his thesis. The Complainant having emphasised the
particular part of a provision directly applicable to the development of his arguments.

SECTION BA Priori
Part 1 The Rights of Individuals

641.The foregoing body of international law represents both the negative restrictions on the
State as well as positive obligations, and duties of its national courts, as guarantors, to all
persons of those fundamental rights considered a prior as established through the process
of international comity. The community of nations having created a clear set of self
evident propositions on fundamental civil and human rights considered sine quo non in
guiding member States, and the national courts when determining the rights of all
individuals.

642.In particular there is created among the cited international agreements a set of principles
to guide member States in the treatment and fundament guarantees to all persons deprived
of liberty. The documents reviewed thus far having provisions allowing for prisoners to

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obtain their rights, or fulfil their obligations before the court in a suit in law. It sine quo
non a negative restriction the State to not be seen to revoke, deny, or limit such rights
beyond what is necessary to public safety, and solely on account of a person's status as an
indigent prisoner. This self evident proposition notwithstanding that the rights and
obligations in question are before a court of foreign jurisdiction.

643.It is equally a self evident proposition, and sine quo non positive obligation and duty of a
State to guaranteed to all persons, including those it has deprived of liberty, their a priori
right to develop a judicial remedy to their complaints, and to attend or be represented at
judicial hearings in proprio persona before any court having competent jurisdiction to
make a determination of their legal or property interests.

644.There appears little within the provisions of international law, or its practice, that would
appear to suggest any argument even remotely plausible for an alternative to the cited
negative restrictions as well as positive obligations of a State once ratifying the cited
international agreements, and having incorporated the a priori principles found there into
the national law.

645.The previously cited body of international law, and the a priori principles found there,
have long ago been made an integral, and immutable part of the historically pattern
followed by the peoples of Canada, England and the United States. These self-evident
propositions are woven into the very fabric of the common law.

646.What is significant to the present enquiry is that the cited international law embodies new
negative restrictions, as well as positive obligations of the defendant, Republic of Bulgaria
to individual rights. It worthy to recall in this discussion that the defendant Bulgaria's
commitment to the right of the individual is directly opposed to its historic development
as a civil law nation. First as a monarchy, then as a fascist, and most recently as a socialist
state. Each historic permutation having been geared towards a limited form of "structural"
judicial review rather than the protection of individual rights.

647.The Defendant Bulgaria's historic practice of legislature supremacy in law as opposed to


that of judicial review continues today. Its current practice of rejecting the notion of
judicial precedent producing a diffuse system of limited judicial review inevitably having
radically inconsistent decisions rendered on identical constitutional issues [see as
authority: Cappelletti, Judicial Review in the Contemporary World 34 (1971) at p. 53-66].
This inconsistency is particularly observable on judicial application of international law,
and the a priori fundament rights that constitutionally [see: Constitution Republic of
Bulgaria, Art. 5§4 reprinted in Blaustein and Flanz, Constitutions of the World] flow into
Bulgaria's national law. This has produced significant problems for persons deprived of
liberty by the Defendant Bulgaria to secure from its agencies, instrumentalities and
institutions their fundamental rights. There exists a powerful tension between Bulgaria's
positive obligation and international duty to protect individual rights, and the capability of
its agencies or institutions to provide that protection effectively [see as authority: The
Judicial Role in Bulgaria's Struggle for Human Rights," by Albert Melone and Carol
Hays, p. 248].

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Part 2 Access to A Court

648.It is incontrovertible that non-judicial agencies of a State are directly responsible for a
prisoner's care, and the compliance of prison officials with the requirements of the
previously cited international law.

649.The previously cited Prisons and Reformations Act, Corrections and Conditional Release
Act, and Correction Act embody the negative restrictions as well as positive practices, and
procedures to be observed by all responsible agencies of Canada when determining the
fundamental a priori rights to be denied or limited a person deprived of liberty.

650.The previously cited constitutional law of Bulgaria, and by incorporation all Bulgaria's
international treaties, conventions or declarations, as well as its Law On Execution of
Punishments and Criminal Code of Procedure are the full embodiment of the negative
restrictions, as well as positive practices and procedures, to be observed by all responsible
Bulgaria agencies when determining the fundamental a priori rights to be denied or
limited to a person deprived of liberty.

651.The international proposition of a judicial "remedy", and access to "competent judicial…


authorities" are guaranteed, and intended as the positive obligation and duty of the State
under Article 2§3 of the cited ICCPR.

652.The Complainant reasons, a posteriori, there to be a further and fundamental element


incorporated into any interpretation of the positive obligation and duty of a State to
provide access to a "remedy" as flows naturally from international law. Articles 6, 7 and
10 of the UDHR, and Articles 2, 14§1, 16 and 26 of the ICCPR are to guarantee to all
persons the sine qua non element of a "fair and public hearing" in any judicial
determination of their rights and obligations in a suit at law, notwithstanding their
property status or deprivation of liberty. On the basis of which it is only reasonable a
person deprived of liberty first petition the State agency having a positive obligation and
duty to secure for him the means to physically access a court of competent jurisdiction
when having to prosecute or defend his interests. Here, the competent judicial authority to
determine the Complainant's judicial remedy and his legal and property rights in Canada
is incontrovertibly a court of the province of British Columbia.

653.The positive expectations of a person deprived of liberty to be conducted by the State to


any hearing or trial where his legitimate interests may be negatively affected is more than
a reasonable one. The Writer recalling the cited UDHR as particularly significant when
interpreting reasonableness, the international community having declared at Art. 29§2 that
"In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition
for the rights of and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society."

654.The self evident proposition that a prisoner retains, a priori, the right of access and
attendance to court in a suit at law is made reasonable by virtue of the very nature of

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incarceration as recognised by the international community. Canada and Bulgaria having
both made allowances under national law for the temporarily absence of a prisoner, with
or without escort, to attend in person any hearing or trial judicially determining his rights,
and other obligations under a suit at law. A proposition reinforced by Principle 36§2 of the
United Nations 1988 resolution on a Body of Principles for Protection of All Persons
under Any Form of Detention or Imprisonment that declares: "The imposition of
restrictions upon such persons which are not strictly required for the purpose of 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."

655.In 1990 the United Nations additionally adopted the Basic Principles for the Treatment of
Prisoners. Of significance to the present enquiry is the declaration in Article 5 that
"Except for those limitations that are demonstrably necessitated by the fact of
incarceration, all prisoners shall retain the human and fundamental freedoms set out" in
the UDHR and the ICCPR.

656.Canada and Bulgaria have as well embraced, at least in principle, the international tenets
found in the previously cited Standard Minimum Rules for Treatment of Prisoners (SMR).
Significant to this enquiry is Principle Rule 61 declaring that positive "Steps should be
taken" by responsible State agencies "to safeguard, to the maximum extent compatible
with the law and the sentence, the rights relating to civil interests….of prisoners."

657.From the foregoing it would appear a prisoner retains his a priori rights in a suit at law.
The State having in principal agreed to negative restrictions, and in practice positive
obligations. It the duty of the judiciary to see the rights of prisoners when seeking a
judicial remedy from the courts are equal to the rights of other members of society, except
only in so far as they must be limited under a provision prescribed under law or by virtue
of a sentence. However, as we have seen, the prescribed limits under a sentence cannot be
seen to unreasonably to limit a prisoner's sine quo non right to legal redress for his
grievances, and to access the competent judicial authority to do so. There appears to be no
exception, notwithstanding that the court of competent jurisdiction is beyond the
territorial reach of the State.

658.It appears that the significant body of law, and principles reviewed thus far strongly
suggest the following. That the application of any practice or procedure by a State judicial
or non-judicial authority is wrong when having an affect that directly or indirectly restricts
a prisoner's fundamental rights or obligations before a court. The international community
having voiced strongly that it is not justifiable in a free and democratic society to have an
administrative practice, or procedure, limiting the legal and procedural rights of one
individual solely due to the fact of his or her other status, having lost of their self
determination - liberty - and property. Any such practice or procedure must be impugned
and found invalid by virtue of its affect.

659.On the basis of the above, that Complainant believed he had a right and the Defendant
State of Bulgaria a positive obligation to any person it deprived of liberty, to seek from the

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agency of the Ministry of Justice, of the Republic of Bulgaria, to undertake its positive
obligation to arrange conduct custody of the Complainant to a judicial hearing. It is to be
recalled the hearing in question is one where the Complainant's legal, and property
interests were to be affected, having been fixed by the government of Bulgaria before the
foreign jurisdiction of British Columbia.

660.The Defendant Bulgaria's recognition of the provincial court of British Columbia as being
the only judicial authority able to make a determination of the rights and obligations of the
parties is of significant to the later enquiry.

Part 3 Reverse Onus and Procedural Fairness.

661.In the proceedings before the trial court in British Columbia the Defendant Bulgaria, in
the case of this Complainant, abnegated the foresaid positive international obligation and
duty.

662.The Ministry of Justice, Republic of Bulgaria, Deputy Minister Dimitar Tonchev, advised
the Complainant on four different occasions [see Vol. 1 Tabs 5, 11, 12, and 14 of Plaintiffs
Factum as filed] of the following. That Bulgaria has no positive international obligation,
or duty to allow or secure for a Canadian citizen person deprived of liberty, what are, a
prior, legal rights guaranteed under international law whenever there is a suit at law
before a court having competent jurisdiction. Canada and Bulgaria having no bi-lateral
agreement to allow the Complainant access to a Canadian court of law. Conduct in
custody to British Columbia was impossible. It finally up to the trial court of British
Columbia to decide to act on any positive obligation and duty, if any, that Canada might
have to its citizen's a priori rights in a suit at law. Canada's positive obligation and duty
flowing from its national and international commitments to its citizens.

663.On having abnegated its positive international obligations, and duty to guarantee
individual rights for which Bulgaria is accountable under its international agreements, the
said defendant Bulgaria has wrongly placed a reverse onus on the Complainant and
Canada.

664.This reverse onus required the Complainant, a person deprived of his property and liberty
by the said State, to attempt to engage from prison, the trial court of British Columbia, and
government of Canada, to act where in fact international agreements appear to require
agencies of Bulgaria to act.

665.By virtue of its action or inaction, the Defendant Bulgaria knowingly placed a reverse
onus on a person it has deprived of liberty. The prisoner required to undertake what is
otherwise a State's positive obligation and duty. Its agencies expected to provide a
prisoner the means of accessing the judicial authority competent to determine his rights
and obligations in a suit at law.

666.The forgoing made it necessary and reasonable for the Complainant to attempt to develop
a judicial remedy to the Defendant Bulgaria's refusals and its reverse onus. To do so the

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Complainant complained directly to the trial court of the coercive measures employed by
the defendant Bulgaria. Petitioning the Master to judicially review his complaints as a
citizen of the province, and party to a suit at law in the province. The Complainant
seeking a judicial review and reasonable remedy to the defendant's - Bulgaria - reverse
onus, and coercive acts obstructing, or hindering the Complainant in his lawful right to
effectively access the trial court. It stressed to the Master that in the absence of form of
procedural relief the Complainant's prosecuting, or defending his legal interests before the
court would be nearly impossible.

667.Application to the provincial court relied on what was believed to be an incontrovertible


principle in law of the trial court in a suit at law, as the lex fori of the proceedings, having
inherent jurisdiction to determine all questions of fact affecting the procedural fairness of
any hearing or trial. Having this in mind the Complainant relied on a Master or Chambers
Judge having, a priori, a constitution duty and positive obligation to judicially review his
petitions from prison. The Complainant believing only the nature of the judicial remedy to
be discretionary, if there was to be one.

Part 4 A Priori Rights in a "Suit in Law"

668.The foregoing leads naturally to a question in the mind of the Writer; Can either the
government of Bulgaria, or that of Canada, deny the means and facilities necessary to its
indigent foreign prisoners to fully prosecute, or defend, a law suit brought before a foreign
court?

669.Also aroused in the mind of this Complainant was if the common law interpreted the a
priori principles of international law as incorporated under the Canadian Bill of Rights,
Human Rights Act and Constitutional Act, to apply only to criminal proceedings, and not
to a suit at law.

670.The a priori principles of international law reviewed strongly suggested to this


Complainant the Sate having the same negative restrictions as well as positive obligations
in a suit at law as it does in a criminal proceeding. The previously cited ICCPR proved
particularly significant to the present enquiry, Article 14§1 reading: "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."

671.The ICCPR has legally, and morally, bound the judicial, and non-judicial officials of
agencies, or instrumentalities of the governments of Canada, and Bulgaria, to an
incontrovertible positive obligation, and duty to apply to any "suit at law" - a civil
proceeding - the same a priori rights having earlier been set out in the UDHR.

672.The ICCPR ended all confusion, at least in the Complainant's mind, and providing him
the international instrument necessary to his establishing a nexus between his "suit at law"
in British Columbia, and his incontrovertible a prior rights under international law as an
indigent person deprived of his liberty when party to a civil proceeding. Ending the

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apparent confusion on the right of a prisoner to demand participating in the prosecution or
defence of a suit in law.

673.The ICCPR is significance in another way. There does not appear within its text any
exception, or saving provision, permitting a State to derogate from, or unreasonably limit
a person in the exercise of his procedural rights, or obligations, in ”a suit at law" solely
due to the fact he is a person deprived of liberty.

674.The cited international agreements all have one overriding a priori principle as a negative
restriction on all democratic governments in unreasonably limiting or denying the
fundamental rights, or obligations of a person, whether engaged in a criminal proceeding
or a suit at law affecting a person's legitimate legal and property interests, notwithstanding
that person to be the States prisoner.

SECTION CA Posteriori

675.The cited international agreements clearly indicate the fundamental human, and civil
rights that should be guaranteed to all persons by the respective national laws of each
State, intended to by their very nature to be self evident propositions. However, these a
priori propositions are open to being broadly interpreted, and their application to
particular set of circumstance can only be reasonably established from the observable
facts.

676.Pivotal to this discussion, and the later complaints, is the status of prisoners in a
democratic and free society. As identified earlier this status is inherently afflictive, one
that is morally and legally liable to direct and indirect discrimination.

677.A person's status in society is a significant factor in determination of his rights. Property
or other status may pose significant barriers in the exercising of the fundamental rights
other citizens of a democracy otherwise take for granted. The positive international
obligations and duty of a State, as opposed to negative restrictions, is to be sensitive and
responsive to those persons having a property or other status that derogates from their
fundamental a priori rights i.e. to develop a judicial remedy before a court in a suit at law.

678.Later, a positive judicial obligation and constitutional duty of the courts appears to
develop on complaint of a person, or distinct group of persons against the State or some
other party. The courts appear required to judicially determine, a posteriori, if rights and
obligations under law to a particular person, or group of persons, somehow result in
direct, or indirect discrimination solely due to a disadvantage of property or other status.
Any such a determination is only possible on a review of the facts and circumstances
placed in evidence before the court. Only afterward, is it possible to discuss the positive
obligations, and duty of a government and the courts to a person having a status so
different from others that it acts to negatively impact on his a priori rights.

Part 1 A Prisoner's "Other Status"

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679.International law includes a negative restriction strictly forbidding a State to use a
"distinction of any kind" based on property, nationality or other status to limit a persons a
priori right to access a judicial remedy.

680.The elements significant here to determining "other status" are those of a persons
"property", here indigence, and his "self determination", here deprivation of liberty. The
issue being what affect such elements have on the practice and procedure to be followed
in a suit at law.

681.Therefore it is significant to the present enquiry to determine the status of an indigent


prisoner in society as one requiring a positive obligation, and duty from the judiciary to be
responsive in guaranteeing the a priori rights of all persons having this "other status"
when petitioning the courts for a judicial review and remedy.

682.While prisoners are not distinctly incorporated into the seminal UDHR, and the later
ICCPR as having "other status", it nonetheless appears reasonable to conclude, a
posteriori, the drafters of these declarations having prisoners in mind when broadly
including "other status" at the end of "race, colour, sex, language, religion, political or
other opinion, national or social status…".

683.Clearly other status must be one given a sufficiently broad interpretation to encompass
within its ambit any individual, or group of individuals having some distinct nature, or
character. One sufficiently afflictive, or disadvantageous to a particular group that there
exists a real, or perceived potential for direct, or indirect discrimination solely due to it
members having a status different from the rest of society. The potential for the abuse of
individual rights, and freedoms of indigent persons deprived of liberty within the Republic
of Bulgaria are discussed in some detail previously under in Part 1: Statement of Facts:
Practice.

684.The Complainant's analysis and argument, a posteriori, relies on the court accepting the
proposition of a prisoner belonging to a distinct, and disadvantaged group having the
acquired "other status", within the context found under UDHR Article 2, when declaring:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of…property.. or other status.”, and ICCPR Article 2§1 that declares "…the
present Convention undertakes to respect and ensure to all individuals within its territory
and subject to its jurisdiction the rights recognised…without distinction of any kind such
as…property…or other status."

685.Independently the elements of "property” and "self determination" are not enough to
derogate, or otherwise limit, the a priori rights of a person to develop his legal remedy in
a suit at law. The following reasoning appears to apply to judicial practice and procedure
in both Canada and Bulgaria:

686.A person having no property may appear before the court in a suit at law, in proprio
persona, to personally prosecute, or defend his legal and property interests before the
court. If sufficiently disadvantaged it is possible to seek the court to waive its costs.

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687.A person deprived of self determination by a State on having been deprived of liberty, yet
retaining property, may engage a legal representative to appear on his behalf in a suit at
law to prosecute, or defend his legal and property interests before the court. Alternatively,
where it is necessary for some reason for the prisoner to attend, the State has a positive
obligation and duty to allow or secure a reasonable and necessary means for him to appear
and protect his interests before the court.

688.A special set circumstances are created on a person having no property, and no self
determination. The State then incurring a special positive obligation, and duty to secure
the means for its prisoner to appear and protect his interests before the court.

689.It is proposition No. 3 above that provides the a posteriori reasoning to find indigent
persons deprived of liberty as owned by the State a positive obligation and duty due to
their distinct "other status".

690.The two elements of a person's property status - indigence - and self-determination


-deprivation of liberty - interact to inevitably produce a distinct group whose members are
observably acquiring a "other status" different from that of the rest of society. Quite
possibly the same a posteriori reasoning operated as a motive for the drafters of the
UDHR to formulate Article 6, requiring all ratifying State governments to guarantee to
those persons having "other status" their "recognition everywhere as a person before the
law". Going on to require under Article 10 (UDHR) the State to guarantee "full equality to
a fair and public hearing….in determination of his rights and obligations…", rights and
obligations being given as broad an interpretation as possible to include, inter alia,
procedural rights, or obligations before a court of law, as well as legal rights, or
obligations, that sound in contract, or in tort.

691.Determining a person or a group "other status" in society will not resolve itself only from
the self evident propositions of Canada's national law as flow naturally from the principles
of international law. These propositions are immutable, and very broadly interpreted.
Instead the answers needed for the present enquiry are to be found from the observable
facts found in the present suit at law before a trial court of British Columbia.

692.The facts in the proceeding before the trail court have demonstrated the immutable a
priori propositions of individual rights under Canadian and international law are not
always seen to be observed as a positive obligation and constitutional duty. This
conclusion appears ex proprio motu from an order of the Duty Master or a decision of the
Chambers Judge failing to recognise an indigent person deprived of liberty as having
acquired a distinct, and afflictive "other status" disadvantaged in Canadian society.

693.The governments of Canada, and Bulgaria, both clearly have a positive obligation, and
duty to a person having an "other status" under international law. The present
Complainant, an indigent person deprived of liberty, is therefore equally entitled to the
guarantees of international law in either of the two states as would be any other person.

Part 2 A State's Positive Obligation and Duty To A Person Deprived Of Liberty.

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694.As has been discussed earlier, there is inclusive with any of the other positive
international obligations of Canada, and Bulgaria, the duty of government agencies to
secure the means for a person of "other status" - deprived of liberty - to access justice.
The right to have petitions, and arguments heard and judicially decided is sine quo non a
right in any adversarial proceeding before a court of competent jurisdiction. Where the
person is a prisoner, the responsibility in securing that right belongs to the State.

695.It follows naturally from the previous discussion that a State's law makers have the
responsibility to set out practices, and procedures for agencies and instrumentalities to
observe in practice what has been set down in principle. Both judicial and non-judicial
bodies are required to react responsively to the State's positive international obligation and
duty to guarantee to prisoner “recognition".

696.In principle, as we have seen, there exists a negative restriction to a State limiting a
prisoner's fundamental rights beyond what is necessary for public order and safety or
solely due to the competent jurisdiction, forum conveniens, happening to be a foreign trial
court - British Columbia. What is of significance here is the obligation that exists to be
react positively and responsively to circumstances that indirectly limit fundamental rights
solely due to the "other status" of the person.

697.There appears to be no rule under law, practice or procedure that proved a legal
obstruction under Bulgaria or Canadian law or the SCBC Rules of Court and the
principles of international law, for one party, a Canadian citizen and resident of the
province, to be barred from a provincial court of British Columbia solely due to having
been deprived of his liberty in the Republic of Bulgaria by the other party, the Defendant
government of Bulgaria.

698.Furthermore, there appears no provision under international law, or the laws of Canada or
Bulgaria, that might exculpate either of the two governments, or the trial court of British
Columbia from allowing, or the positive duty of securing, a prisoner his access to the trial
court.

699.Clearly, at least to this Complainant, both Canada, and Bulgaria, have made international
commitments to guarantee to any person, including this Complainant, a right of access to
a court - Canada - and to "full equality to a fair and public hearing" before the court,
notwithstanding that the Complainant is a prisoner of one state, the defendant Bulgaria,
and a citizen of the other state, Canada. The international community recognising the
principles of international law “shall be applied to all persons within the territory of any
given State".

700.The foregoing is consistent with the Speaker's reasoning that there exists a set of
homogenous international legal principles applicable to the "lex fori" of the trial court of
Canada, and the international obligations and duties of the defendant foreign state,
Bulgaria.

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701.Significant to the present enquiry, and worthy of special consideration, is the negative
restriction found under Article 2 of the UDHR. It requires a State to make "no
distinction…on the basis of…jurisdictional…status of the country to which a person
belongs…" when determining persons' fundamental rights and obligation, or the
competence of a judicial authorities' jurisdiction to determine such rights and obligations.
This appears to make moot any argument that the foreign or international jurisdiction of a
court acts as a bar in any way to the fundament rights of a person before that court,
notwithstanding they are deprived of liberty and refused access.

702.This positive obligation and duty of a Canada or Bulgaria are not limited to the
nationality of the person affected or on whose territory 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 as
previously cited by the Speaker.

703.When applying the discussion's a posteriori reasoning thus far to the circumstances of the
case now at bar the following appears. The Complainant having lost his property and self
determination due solely to acts of the Republic of Bulgaria placed a special positive
onus, and duty on Bulgaria, to make available the means necessary for him to prosecute,
or defend his interests from its prison. This positive onus was owed to the Complainant as
a person having "other status", notwithstanding his nationality as a Canadian citizen, or
for having named the State of Bulgaria as a defendant before the foreign jurisdiction a
British Columbia court.

704.However, as has been previously identified, the defendant Bulgaria has, in the case of a
Canadian citizen, abnegated its international commitment by refusing its positive
obligation and duty to a foreign prisoner. The foregoing causes this Complainant to recall
the following recurring theme found throughout all the cited international agreements, the
responsibility of an independent judiciary.

705.The a priori principles of international law provides that the national law of a State must
allow a judicial remedy to all persons whose fundament rights are believed directly or
indirectly derogated by a practice and procedure of a State.

706.Figuring significant in this is ICCPR Article 2§3(a) reading, in its relevant part there to be
"an effective remedy, not withstanding that the violation has been committed by persons
acting in an official capacity", the judiciary named as one of the competent authorities
charged with the obligation, and positive duty to ascertain, a posteriori, if government
agencies have observed their negative restrictions as well as positive obligations when
discharging their duty to guaranteeing a prisoner his a priori rights before the a court of
law.

707.The foregoing suggests Canada as having a joint and several obligation, and duty, to this
Complainant - as its citizen - equal to, or greater than, that of Bulgaria, to be responsive
and to act positively- jointly or severally with or without Bulgaria - to see that its citizens
"rights and obligations" in "a suit at law" before a court in Canada - are guaranteed to

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him. This conclusion is arrived at first from multilateral agreements that clearly express
the a priori rights and freedoms as set forth earlier are made available everywhere, and
second on the basis of the applicable laws of Canada.

Part 3 Positive Obligation and Duty of Bulgaria

708.This was discussed in detail earlier under the heading of A Priori: Access to A Court.
However, before proceeding to a discussion on developing a judicial remedy before a
court of the province, it seem reasonable to enquiry into the positive administrative
obligation and duty of the State of Bulgaria to a foreign person having "other status" on
its territory.

709.The fact of international law as it exits, and the defendant Bulgaria having observably
ratified that law, strongly suggests, a posteriori, Bulgaria to have the positive obligation,
and duty to observe such law in practice.

710.Applying these a priori principles to the present case at bar places the onus squarely on
the defendant Bulgaria to secure, or allow the Complainant's appearance before a
Canadian court. This responsibility going exclusively to the non-judicial agencies of the
State of Bulgaria charged with the positive obligation of guaranteeing the rights of a
person imprisoned on Bulgarian territory.

711.It is to be recalled that the penal administration agency of the defendant Bulgaria is its
Ministry of Justice, Republic of Bulgaria, having the positive administrative obligation
and duty to be sensitive and responsive in guaranteeing the fundamental right of a
prisoner to attend to, prosecute or defend his interests in a suit at law.

712.To confirm this positive obligation and duty of Bulgaria to prisoners only requires
recalling Article 31§5 of the Bulgarian Constitution that reads "Prisoners shall be kept in
conditions conducive to the exercise of their fundamental rights which are not restricted
by virtue of their sentence", and Article 57§1 of the Constitution declaring that a persons
"fundamental rights shall be irrevocable." These two constitutional principles are
confirmed under the cited Bulgarian Law on Execution of Punishments, Chapter Two
Article 23 on the Legal Status of Incarcerated Person.

713.Clearly, in principle the Complainant enjoys the full rights of any other person in a suit at
law. However, in practice it is equally as clear that the defendant Bulgaria is unprepared to
make good on its international commitments. For this reason the Complainant turned to
the provincial court to develop a judicial remedy.

Part 4 The Master's Positive Obligation

714.The discussion has made apparent, at least to the Complainant, that there exists a body of
international law that sets out the positive obligations and duties of State governments.
Incorporated in the obligation and duty of a State is the self evident proposition that all
persons are to have the possibility to develop a judicial remedy. It sine quo non the right

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of every person to have his grievances judicially reviewed in an equal, and open
adversarial hearing before a court of law.

715.It flows from international law that the national - provincial - courts have jurisdiction,
and a positive obligation to be sensitive, and a duty to be responsive in observing the
equal rights of all persons' party to a "suit in law", notwithstanding the "other status" of
one party as a prisoner of the other party, a foreign government. A court's practices and
procedures acting to guarantee to all persons a fundamentally equal availability of the
rights provided for under law in a "suit at law", notwithstanding the person belongs to a
distinct and disadvantaged group having a "other status", i.e. indigent and deprived of
liberty.

716.These a priori principles of international law are a part of the common law and the
historic tradition of the Canadian sense of what is right. It suggests that there must exist a
role for a Master, or Chambers Judge of the provincial court when observing the negative
restriction extending equally to all persons the right to have their grievances adjudicated
in a suit at law, to also observing as well a positive obligation and duty to act ex proprio
motu in removing any obstacles to extending this or other fundamental rights to a person
afflicted by a other status directly or indirectly affecting his rights.

717.The importance of the defendant Bulgaria's role in the proceedings before the trial court
cannot be overstated. As a State it had a duty to observe the rights of the Complainant
before the Honourable Courts of Canada no less than it is the duty of Canada's
government were it similarly disposed.

718.The principles of reasonable limits on a prisoner's fundamental rights are discussed 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 agreeing on the
negative restrictions to be observed by a member state to include not placing "restrictions
upon such a person which are not strictly required for the purpose of the detention".

719.The Complainant can find no saving provision or principle under the cited principles of
international law and comity 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.

720.The most comprehensive of the international documents dealing with the positive
obligation and duty of a state to its prisoners happens to be the 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:

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"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."

721.The said Principle 57 clearly expresses what the Complainant attempted to identify in his
written petitions to the Master and Chambers Judge of the trial court, "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". According to the SMRs governments
should act positively 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 the
defendant Bulgaria having refused all the Complainant's petitions to observe its positive
obligation and duty to him as its prisoner.

722.It is to be recalled that the Respondent Bulgaria's legislation on the subject of a prisoner's
fundamental rights encompasses all those rights available to others except what is " 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 Defendant Bulgaria's agencies forbidden to restrict such rights
[see: the above cited Art. 23 Law on Execution of Punishments] solely due to
imprisonment.

723.The Bulgaria's Criminal Code of Procedure (CCP), not unlike Canadian enactments,
prescribes the possibilities for temporary escorted absences of prisoners, and incorporates
into this one provision of its CCP the same principle found under of the Rule 40(40),
Rules of Court. Admittedly even the practice and procedure prescribed under the Bulgaria
CCP Art. 463 as previously cited are of little, or no practical use to guide a trial court. The
defendant Bulgaria having never been called on to observe its international agreements, its
legal landscape bereft of any substantive jurisprudence on the application or practice of
the international law principles discussed thus far.

724.If the Master and Chambers Judge had difficulty with the lex loci delicti of the
Complainant's imprisonment, they were at least familiar with Canadian legislation, and
able to be guided by the principles to be found there. Unlike that of the Republic of
Bulgaria, Canada's enactments are substantially clearer on the subject of temporary
escorted absences of prisoners. This is reviewed earlier as a provision of s. 7.3 of The
Prisons and Reformatories Act Chapter P-20 R.S., c. P-21. Prisoner's temporary
absences directly incorporated as a right of prisoners in Canada for "reintegration into the
community".

725.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), prisoners’ absences to be permitted for "administrative",
"rehabilitative" or "reasons other than medical".

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726.The Correction Act [RSBC 1996] Chapter 74 s. 15(1) further allows the Minister to
request and authorise temporary absences of prisoners.

727.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.

728.It is recalled that the Complainant's petitions to the Master and Chambers Judge had
raised all the forgoing issues, having in part relied on Rule 40(40). The Complainant
petitioned the Master to provide a subpoena or order for the Defendant Bulgaria to
produce the Complainant. This would be seen by the defendant Bulgaria as the "paper(s)
submitted by the other Country" [see the above cited: CCP Art. 463] to allow a "district
court" of Bulgaria to consider the Complainant's request of temporary escorted conduct to
appear before the court. Much of the Complainant's frustration is derived from being
refused a judicial review of his requests for an escorted appearance before the trial court
in British Columbia, despite that the minimum rights of persons deprived of liberty
happen to include the possibly under both Bulgarian, and Canadian national law to bring
and prosecute to the full extent of the law a civil claim. Even against the very State, or its
institution and officials, having deprived him of liberty and property.

729.These respective provisions of the national laws of Bulgaria and British Columbia, and
principles of international law, were are relied on by the Complainant when petitioning
the Defendant Bulgaria, the Ministry of Justice, and then the Master and Chambers Judge
of the provincial court.

730.Had the fact of the defendant Bulgaria being in breach of international law been
established on hearing the petition of the Complainant, it would be bound to have raised
appropriate and very real questions in the mind of the court as to the purpose of the
coercive measures and interference employed by the said defendant. The negative
restrictions as well as positive obligations and duty of the defendant Bulgaria under
international law should not have been overlooked by either the Master or Chambers
Judge on their review of the Complainant's complaints.

731.Principally what is immediately apparent to the Complainant is the following; (1) If the
body of principles found in international and national laws are to be at all meaningful,
then there must exist a duty of States, the likes of Bulgaria, and respected democracies the
likes of Canada, to secure for persons deprived of liberty, their individual rights before
courts of law; and (2) individual rights of persons deprived of liberty before the courts of
law can only be guaranteed if agencies of the State allow, or provide this distinct and
disadvantaged group the practical means for equally prosecuting, or defending, their
claims before courts of law.

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732.To this Complainant it appears that for a State's - Canada - assistance to be meaningful it
must go beyond allowing a prisoner his filing of an originating writ, or claim. The State's
assistance must include the possibility of prosecuting or defending of rights and
obligations through the pre-trial and trial proceedings, until there comes into force a final
judgement taken by the respective court.

733.It appears, from the available body of law relied on by this Complainant, that both the
governments of Canada, and Bulgaria, are required to secure for this Complainant his
right to access some practical means of prosecuting, or defending, his legal interests in a
law suit. It goes without saying that the alternative of hindering, or obstructing, the
Complainant, a prisoner, is an unacceptable proposition, notwithstanding that it is in the
States' interests to do so.

734.The onus appears to be on the government to identify the means to be allowed, or


provided persons having been deprived of liberty to appear before the courts in a manner
appropriate to their circumstance of imprisonment, and the danger they pose to society.

735.In the alternative, where a government - Bulgaria -refuses to conduct a person deprived
of liberty before a court of law, the onus falls on it to identify, and provide an effective
alternative to appearing in proprio persona before the court. Say electronically or in
writing, and sufficient to allow for an adequate possibility of effectively prosecuting, or
defending a law suit, again not withstanding that the government is named as a defendant.

736.For these reasons the Complainant petitioned a Master and a Chambers Judge, in the
name of procedural fairness, to exert the courts inherent jurisdiction in Canada over the
defendant Bulgaria. The court to require, in the name of international comity, the
Defendant, Bulgaria to observe the negative restrictions as well as positive obligations as
evidenced by its international commitments. The said Defendant to require its agencies to
secure, or allow the Complainant, a Canadian citizen, his a priori fundamental rights as
guaranteed to all persons deprived of liberty i.e. to develop his judicial remedy and attend
to his rights and obligations before a court of Canada.

737.The Complainant, in written pleadings to the provincial trial court, expressed an opinion
that the court had an enforceable right of jurisdiction over any legal representative of the
defendant Bulgaria to be found in Canada. The very fact of Bulgaria having ratified the
previously cited international documents allowing the court could seek Bulgarian
cooperation on the subject of the Complainant's complaints of interference with his rights
and obligations in Canada.

738.Furthermore the elements of the proceedings before the trial court, inter alia the
plaintiffs' causes of action, the nature and character of the injuries they suffered, and the
relief sought, are again prima facie evidence that the court of competent jurisdiction to
determine the rights and obligations of the litigants proves be a trial court of British
Columbia. The Complainant believes this makes the positive constitutional duty of a
Master or Chambers Judge more apparent, it therefore standing to reason, a posteriori, the

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court to extend its jurisdiction to include the complaints and complaints of this
Complainant, notwithstanding its prison origins are outside of Canada.

739.The Complainant argued to the trial court that the scope of a state's positive obligation,
and duty, to persons deprived of liberty, appeared to be "on all fours" with his a posteriori
reasoning. There can to be no reasonably justifiable derogation or limiting of the
Complainant's rights in a "suit at law" solely because he is a prisoner, and happens to be a
necessary party to prosecuting or defending his own interests and that of other plaintiffs
before a court of British Columbia.

740.At the risk of being redundant the Complainant recited to the Master the practice and
procedure of the Defendant Bulgaria's Criminal Code of Procedure, under Art. 436
allowing: "...persons detained in custody to be interrogated as witnesses or experts shall
be allowed….on the grounds of the papers submitted by the other country…", and the
allowances made under the Rules of Court, Rule 40(40) that reads: "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."

741.No assertion was made before the Master, or is now made in the present enquiry, that a
court of Canada exerts its jurisdiction beyond the boundaries of Canada. Instead, the
Complainant had suggested the Master be responsive to his circumstances, and act
positively by providing a reasonable remedy. Only exerting the court's jurisdiction on a
procedural matter - to subpoena and order the attendance of a person in custody of the
defendant - Bulgaria to appear together before the court. Such an order appeared within
the ambit of the civil proceedings before the Master, it requiring the court only exert its
jurisdiction within Canada's boundaries. The defendant Bulgaria having legal
representatives accessible to the court, and to be found in the province.

742.The laws of Canada do not appear to provide for, or allow a saving provision permitting a
Duty Master or Chambers Judge to abrogate the courts duty to procedural fairness, and
Canada's obligations, to a prisoner's a priori rights under international law.

743.The fact that indigent prisoners are not specifically designated under the Court Rules Act,
Rules of Court, or other enactment of Canada, as persons of "other status" having an
observable afflictive legal "disability” did not act as a bar to a Master or Chambers Judge
in being responsive to the difficulties of the afflicted person. Omission from the Court
Rules Act of persons having "other status" i.e. indigent prisoners does not alter the fact of
the Master having a special duty to be responsive to the extraordinary difficulties of the
Complainant by virtue of his circumstances.

744.The cited ICCPR Article 5§2 is more direct when stating: "There shall be no restriction
upon or derogation from any of the fundamental human rights recognized or existing in
any State Party to the present Covenant pursuant to law, conventions, regulations or
custom on the pretext that the present Covenant does not recognize such rights or
that it recognizes them to a lesser extent ".

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745.Having said the foregoing raises again another question. Why is the Speaker, a Canadian
citizen, being restrained from accessing or being heard by a trial court in Canada, the
jurisdiction where his property and other civil interests are most affected by the
defendants? The answer, at least to the plaintiffs, is an obvious one. The defendant state
fears a civil prosecution may lead to a public exposure of institutional abuses of human
rights, official powers and corruption the likes of that reported by NGO's, the UN, the EC
(European Court) and US State Department [see: Part 1: facts Existing In Aggravation of
the Claim]. To the plaintiffs no other explanation is plausible.

746.The present enquiry's a posteriori reasoning also suggests a reason why the Master or
Chambers Judge would not judicially review the Complainant's Charter and other
complaints. Therefore a standing practice and procedure must exist in order for the Master
or Chambers Judge to have placed a reverse onus on any party in a suit at law upon
applying for judicial review of their application. The Master leaving it to them to secure
their a priori rights, inter alia, of access to the court to have their application heard, and to
develop their judicial remedy before the court.

747.The Master's reverse onus having two elements, either the Complainant must appear
personally, or must secure an attorney to appear. The Master or Chambers Judge proving
insensitive and unresponsive to any petitioning on extraordinary facts, or afflictive
circumstances acting to involuntarily obstruct the petitioner from complying with onus
imposed by the Master's Order.

748.The Master’s Order clearly observed the negative restrictions placed on the court to not
deny the petitioner his right to develop a legal remedy before it, these restrictions flowing
naturally from the cited international law and constitutional duty of the Master. However,
the Master wrongly and unreasonably reversed the onus of the courts positive obligation
to react responsively to all persons having an observable affliction. The Master failed to
observe his and the Court’s positive constitutional duty to procedural fairness. Under the
circumstances to observe his duty the Master was required, ex proprio motu, to act where
and when it is becomes apparent that the a priori rights of an Complainant are about to be
indirectly denied by the Master’s observing certain Rules of the Court or common
practices in what are unusual circumstances. This resulted in an indirect discrimination
based solely upon the other status of the Complainant in society who happens to be an
indigent Canadian citizen deprived of his liberty in a - Bulgaria - prison.

749.The Complainant's circumstances, already aggravated by the Defendant Bulgaria are now
made impossible by the Master's order. The defendant Bulgaria able to continue with
impunity to interfere with the Complainant's right to develop his judicial remedy in
Canada, and able to maintain its unwillingness to allow the Complainant access to the
court in British Columbia in the absence of a Master of Chambers Judge order.

750.Could a Duty Master or the Chambers Judge of the trial court have therefore erred in
judgement when placing a reverse onus on this Complainant to secure his a priori rights
otherwise guaranteed to him by the international commitments of both Bulgaria, and
Canada?

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Part 5 Procedures, Conflicts and Comity

751.It is recognised, for the purposes of the enquiry to follow that the order or decision of a
Master or Chambers Judge is discretionary, having followed a practice and procedure of
the court in determining to have complaints "spoken to" by a petitioner or his legal
representative.

752.It should be recalled the Complainant petitioned the trial court for some reasonable form
of procedural relief from the defendant Bulgaria's obstruction of his a priori right as a
person deprived of liberty to develop a judicial remedy, and to prosecute, or defend his
interests in a suit at law.

753.It is reasonable to again recall the Complainant's complaint to the Commissioner before
attempting to resolve the practice and procedure available under the Court Rules Act, or
that applied by the Master to the observable facts before the court. The Master reasoning
a posteriori, what is or is not to be an a priori right of an indigent litigant deprived of
liberty. The intended appeal maybe summarised as follows:

754.First, a practice and procedure under the Court Rules Act, Rules of Court, is being
impugned by this Complainant, it indirectly discriminating solely on the basis of a
person's status of property and self-determination.

755.The Act is impugned due to an omission, it having failed to distinguish the governments
negative restrictions from its positive constitutional obligations to persons subject to a
regular form of indirect discrimination solely due to the inherent legal disabilities
-disadvantages - i.e. as affects all indigent prisoners.

756.The Act is further impugned for failing to identify indigent persons deprived of their
liberty as belonging to a distinct social group. The courts, on removing a person's right of
self determination having created a distinguishable, and disadvantaged "other status"
different from other indigent members of society.

757.This "other status" is one made inherently afflictive by an act of law, it therefore
warranted a positive legislative remedy.

758.The difficulty arises from the present practices and procedures of the court not being
sensitive to the afflictions, or responsive to the needs of the affected group. As a result all
persons within this distinct, and disadvantaged group are unable to overcome the obvious
indirect discrimination occurring solely due to their unmistakable "other status" in
Canadian society. The impugned practice and procedure acts as an unreasonable barrier
only to members of the group, it barring them from engaging the services of the provincial
courts of law in prosecuting or defending their legitimate interests in a suit at law.

759.The groups Charter, and a priori rights as flow from the principles of international law are
as a result unreasonably limited in a suit at law by the impugned Act. The present practice
and procedures indirectly and unintentionally barring all members of the group from

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accessing the courts powers or obtaining a judicial remedy bar solely due to their poverty,
and the distinct disadvantage of having been deprived of liberty.

760.Second, the observable facts and circumstances of this Complainant's "other status" make
the Duty Master's order unreasonable, and Chambers Judge findings incorrect.

761.Both order, and decision are impugned for failing to recognise, or to be unresponsive to
the petitioner's a priori rights as a member of a distinct, and disadvantaged social group
existing within Canadian society.

762.The Duty Master erring in judgement when having failed to distinguish the courts
positive constitution obligation and duty to procedural fairness to persons having "other
status" from its negative restrictions to limiting the rights of parties in a suit at law.

763.The Master proved insensitive, and unresponsive to the inherent afflictions of the
petitioner's "other status", and the affect to his procedural rights on the application of a
practice and procedure of the Master in a suit at law. In electing to place a reverse onus on
the Petitioner in place of the courts positive constitutional obligation and duty, the Master
acted to effectively bar the petitioner's access to the courts procedural powers.

764.The legal affect of the Duty Master's order was to indirectly discriminate by making the
court's services available to the petitioner only on condition of property - he must have the
means to retain legal counsel - and on a condition of self-determination - he must be able
to appear before the court.

765.The Chambers Judge, the learned Edwards J., erred on finding the Master's order
reasonable. His Lordship's decision proved equally insensitive, and unresponsive to the
petitioner's "other status" in Canadian society. Edwards J. apparently finding poverty, and
the deprivation of liberty, a "other status" having no inherent disadvantage, or affliction
derogating from, or otherwise indirectly discriminating in unreasonably limiting the
petitioner's possibility to exercise his a priori rights. His Lordship failing to make the
distinction between the negative constitution restrictions on the Master as opposed to his
positive obligations to equality and procedural fairness.

766.The learned Master, and Chambers Judge, both erred in their a posteriori reasoning when
finding the petitioner's poverty, and loss of self determination as posing no obstacle to his
appearing before the court, or retaining a legal representative. The order creating a
practical barrier that acted to indirectly discriminate by limiting the petitioner's rights as a
person under law to prosecute, or defend his claims in a suit at law as a citizen of Canada.
The Petitioner's a priori rights to a fair, and open adversarial hearing of the his complaints,
and the facts denied to him by the Master solely due to this other status.

767.The Complainant attempted to resolve, from three standpoints, the Duty Master's order,
and Chambers Judge Decision. It is significant to recall that the Complainant was not
provided any written reasons for the Duty Master's order.

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768.The first possible point appears to concerns the procedural options available to a Master
or Chambers Judge of the provincial court, the second a possible conflict between the
national laws of Canada and Bulgaria acting as a bar to the available procedures, and the
third and final point concerns the comity among nations. The defendant's status as a
foreign State acting to bar the Master in exercising the courts inherent jurisdiction over its
own processes.

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PREFACE

To the Honourable Ladies and Gentlemen Members of Parliament,

I have written and compiled this report from inside a Bulgarian prison cell. Bringing this report before
members of Parliament would have been impossible if it were not for the assistance I received from Dr.
Donald Kommers and other members of the law faculty at Notre Dame Law School and law students
like Tom Messner and the other fine future alumni of Notre Dame who gave so much of their time in
helping me.

The report’s Writer is the victim of the practices he documents. As a citizen of Canada, the Writer
believes the conducts documented in the report are unlawful and have directly and unlawfully derogated
from the legal rights and Charter protections of the Writer.

More significant is the ongoing risk that other naturalized citizens of Canada may suffer malicious
prosecutions and torture because Crown servants and police agencies of Canada do not feel fettered
outside of Canada by Charter covenants and pre-existing positive legal duties to Canadians who travel or
work abroad. When preparing this Report the Writer considered that servants of the Crown have two
fundamental obligations to him and other citizens of Canada. First, as crown servants the ethical
obligation of protecting citizens of Canada. Second, as crown servants the legal obligation to observe the
laws of Canada and its Charter protections. Such are the ethical and legal obligations of the Crown and
they do not fall away once a citizen of Canada leaves the boundaries of Canada’s or when a servant of
the Crown, no longer within Canada deals with officials and agencies of a foreign state.

The Writer considers as a priori the principal that the ethical and legal duty of the Crown and its
servants is first to serve and protect the rights and interests of citizens of Canada, in and outside of
Canada. Not to place the interests of foreign officials and states above the natural law and other rights of
Canada’s citizens.

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This a priori principle must form the premise for the Writer’s report. In its absence the complaints of
this Writer become moot. That is not to say that the interests of democratic societies as a whole and the
common social good are to be subordinated according to ones citizenship, the rule of law demands
otherwise. However, the rules of official conduct and civil protections enacted under Canada’s national
law and binding over Crown servants and agencies cannot come with territorial limitations. The same
laws and oath that bind servants of government in Canada also bind them outside of Canada. Such oaths
and Canada’s national laws, in particular the Charter, do not come with caveats that the rules of conduct
and duty to protect the rights of Canada’s citizens is binding only within Canada.

The Writer never expected for officials of the Republic of Bulgaria to observe his Charter or due process
rights under Canadian law. However, he did expect members of Canada’s Royal Canadian Mounted
Police, the Department of Foreign Affairs and International Trade and other Crown servants to observe
his Charter rights and their legal duty to him as a citizen of Canada. Even beyond the boundaries of
Canada.

Regrettably, it was in 1999 that this Writer first learned a valuable and disappointing lesson in being a
citizen of Canada. Protection from Canadian police abuse and malicious prosecution only extended as
far as the borders of Canada. ARAR learned the same lesson in 2002.

I ask the Honourable members of this Parliament to image the surprise ARAR must have felt and this
Writer still feels when learning that our rights as citizens of Canada exist only for as long as we are in
Canada. More shocking still was to learn that agencies of Canada still considered us “foreigners” and
allowed our extradition preferred to our repatriation to Canada.

The Honourable Members of Parliament may well be asking the following question.

Why is this report being presented to parliament by the family and friends of a citizen of Canada
still incarcerated in the Republic of Bulgaria?

The answer is a simple one.

No agency of the Government of Canada is prepared to assist this Writer or his family in exposing the
truth or in defending the Writer’s legal and fundament rights in Canada or abroad. Even Canada’s
Minister of Foreign Affairs demonstrated an unwillingness to act on irrefutable documents proving that
the Writer’s arrest, prosecution and public humiliation and torture in the Republic of Bulgaria are
directly the result of an agency of the Crown.

So disclosure to Canada’s elected officials is now left to this Writer, his family, a close circle of friends,
sympathetic elected officials and professionals. As a result, the report is presented to the Honourable
Ladies and Gentlemen Members of Canada’s Parliament by the victim.

When preparing this report the Writer posited the following questions.

Is there a cover up?

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Objectively, it is only the Honourable Ladies and Gentlemen Members of Parliament who can eventual
find the correct answer to this question. However, there is strong anecdotal evidence to suggest this to be
the true in both in the Writer’s case and that of ARAR.

The Honourable Members of Parliament can draw their own conclusions from the events documented in
the Report and beginning sometime in February of 1995 in Sofia, Bulgaria.

The Report clearly documents the following.

How in May of 1995 the Royal Canadian Mounted Police International Liaison and Federal Executive
Services and the Attorney General of Canada sent a representative to Sofia, Bulgaria to request
Bulgarian police arrest and prosecute me. At the time I was still in Bulgaria.

On July 7th 1995 this information was reduced to a written criminal indictment issued by the Crown
against me. The indictment stipulates the exact nature of the crime the Writer is alleged to have
committed in Bulgaria and the nature of the charges Bulgarian prosecutors are to bring against the
Writer. In the indictment the Crown requests that after the arrest and prosecution of the Writer Bulgarian
police are to obtain certain information from the Writer and vital to the Crown. In the indictment the
Crown supplies Bulgarian prosecutors with it alleged are Canadian police facts about the crimes the
Writer is said to have committed not only in Bulgaria, but in Canada and elsewhere.

The Crown acted in a calculated fashion to create an atmosphere of intense officially and public enmity
against the Writer, the Crown telling Bulgarian police and prosecutors that the Writer was inter alia “a
well known in Canada and convicted for the molestation and raping of children”. This together with
other maliciously untrue slanders and libels is repeated to other Bulgarian officials and later is reported
in the mass media.

Until 1999, the Writer believed the Reports of Canada’s involvement in his arrest and extradition, the
published reports of Canada Foreign Affairs advising German and Bulgarian authorities that Canada was
not interested in the repatriation of naturalized citizens of Canada like the Writer to be nothing more
than the result of a to fertile an imagination of Bulgarian police investigators and prosecutors. This was
also the Writers opinion towards the malicious slanders attributed by the Bulgarian media to Canadian
police authorities. The Writer would be proven wrong.

In April of 1999, during the course of the Writer’s criminal trial, when Bulgarian prosecutors presented
the trial court with Bulgarian language copies of the secret Crown indictment issued in July of 1995 that
the Writer first learned of the Crown’s direct involvement in having him criminally charged, arrested and
extradited to Bulgaria.. This document, together with “evidence” collected in Canada was prepared and
submitted by a Crown determined to have the Writer convicted and kept in Bulgaria.

During course of his criminal trial, the Writer learned from the Bulgarian Ministries of justice and
foreign affairs that no letters rogatory were issued to Canada’s Minister of Foreign Affairs requesting
legal assistance in a criminal investigation of the Writer. The Crown’s involvement and its evidence
before a Bulgarian criminal court apparently not solicited by the Bulgarian government, but instead
volunteered by Canada’s Royal Canadian Mounted Police International Liaison and Federal Executive
Services and the Attorney General of Canada. It was then, that the Writer and his family began filing

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complaints with Canada’s Department of Foreign Affairs and International Trade and Minister of
Foreign Affairs.

The Report also documents how in 2001 the Writer sent written complaints to Ann McLellan, Canada’s
former Minister of Justice and Attorney General, and to officials of Canada’s Department of Foreign
Affairs and International Trade and then Minister of Foreign Affairs Lloyd Axworthy.

At no time did Canada’s Minister of Foreign Affairs or Minister of Justice and Attorney General address
the facts proving the Writer had been charged by Bulgarian police and prosecutors at the request and on
the initiative of the Crown. The Writer’s arrest, his extradition from German and his detention in
Bulgaria each the result of a secret Crown indictment issued in 1995 and continued Crown involvement
in the Writer’s prosecution until 1998.

No agency of the Government of Canada was prepared to confront the facts or willing to put to a legal
test the complaints of this Writer. The difficult question of why the Crown acted in complete secrecy and
needed to have the Writer arrested and prosecuted in a Bulgaria remains unanswered and a mystery.

Canada’s government agencies and its ministries all remained silent, that silence deafening and the
Writer left to his own wits.

In late 1999 and early 2000, the Writer was contacted by a journalist from the Globe and Mail who had
learned of the secret Crown indictment from the family of the Writer. The story on the Writer and the
Crown complicity in his arrest and torture was killed by an Editor for the Globe and Mail, even after
investing several months in research. The reason given the Writer and his family was that the Globe’s
Chief Editor had been contacted by senior officials of the Royal Canadian Mounted Police International
Liaison and Federal Executive Services and the Attorney General of Canada who asked he kill the story.
The Globe Editor complied because, according to the police information he received the Writer was
“guilty and not worthy of sympathy”.

In 2001 the Writer and his family filed lawsuits in British Columbia Supreme Court against Staff Sgt.
Derek Doornbos, a member of the Royal Canadian Mounted Police claiming among other things a
constitutional tort.

It was also in late 1999 that the substantive and visible assistance from consular officials at Canada’s
Department of Foreign Affairs and International Trade and visits from Canada’s Ambassador to
Romania, the Honourable David Collins and consular services official Jamie Bell also from the Embassy
of Canada in Bucharest. Such visits to Sofia Bulgaria included intensive sessions with German consular
officials who assured Canada’s Consul Bell that the Writer could not be tried in Bulgaria on any new
accusation and the sentence, if any, had to be within the confines of a similar sentence had the Writer
been tried in Germany, consular officials considered 9 years as a maximum prison term, anything else
would precipitate protests from the Government of Germany and Canada.

In March of 2001 the Writer received a first sentence of 23 years at hard labour. The Honourable
Members of Parliament will learn how no protest from Canada or German manifested itself and how
abruptly the visits and assistance to the Writer ended and the requests for capitulation began.

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After the departures of Ambassador Collins and Consul Jamie Bell, the new representatives of Canada’s
foreign affairs to Bulgaria proved uninterested in the Writer’s case, particular the new Canadian
Ambassador whom the Writer never saw. Also, the Department of Foreign Affairs and International
Trade repeatedly requested the family of the Writer convince him to drop any appeals against his
criminal conviction and to also discontinue his civil and human rights complaints against the
government of Bulgaria and a member of the Royal Canadian Mounted Police.

Canada’s Department of Foreign Affairs and International had no desire to confront Bulgarian or
Germany government officials with the Writer’s complaints or to forcefully insist on his legal rights
according to the terms of the Writer’s extradition from Germany in 1996, preferring instead to satisfy
unreasonable Bulgarian demands and to keep the Writer’s story from the people and justices of Canada.

Is this simply a coincidence? Or is it a subtle effort to continue what is a successful suppression of the
Writer’s case? Like ARAR, the present incident proves to be another embarrassment for the Royal
Canadian Mounted Police International Liaison and Federal Executive Services, the Attorney General of
Canada and the Department of Foreign Affairs and International Trade. The latter’s policy of
appeasement recently having failed too secure a Bulgarian agreement to transfer this Writer to a prison
in Canada.

Are the Governments of Canada and the Republic of Bulgaria in silent agreement to delay or
avoid the repatriating the Writer to Canada?

This is a deeply disturbing and alien question for a citizen of Canada to ask the members of this
parliament. But as abstract a concept as this may seem, the unwillingness of the Canada’s Minister of
Foreign Affairs to act and the circumstances of the Crown involvement in the ARAR INCIDENT begs
the question.

Is there a secret or undeclared agreement between the Attorney General of Canada and the Attorney
General of Bulgaria for the Writer to remain in Bulgaria and so kept from publicly prosecuting his
claims in court against the Royal Canadian Mounted Police International Liaison and Federal Executive
Services, the Attorney General of Canada and the Republic of Bulgaria?

So abstract an idea requires that there be something of sufficient consequence to make someone or some
agency of Canada prepared to undertake such unlawful collusion, the idea is far fetched and maybe only
the seed of paranoia finding root in the fertile mind of a man to long imprisoned and separated from his
family and country. But still the Honourable Members of Parliament must ask themselves this.

Why in 1996 did the Royal Canadian Mounted Police International Liaison and Federal Executive
Services and the Attorney General of Canada rely on cloak and dagger antics, secret indictments and
foreign police and prosecutors to prosecute a citizen of Canada and question him?

Is there an official culture and policy of appeasement within Canada’s Department of Foreign
Affairs and International Trade?

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The ARAR AND SAMPSON INCIDENTS, together with the Writer’s case, each document before
Parliament how representatives of Canada’s embassies and consular services in and outside of Canada
insulate themselves from the suffering of Canada’s citizens incarcerated in foreign prisons.

No consular official in the ARAR and SAMPSON cases or that of the Writer’s proved willing or
prepared to confront foreign officials with the complaints of Canada’s citizens. The Department of
Foreign Affairs and International Trade and Canada’s Minister of Foreign Affairs never once having
reacted proactively or positively by confronting foreign officials who violate the international legal and
human rights of Canada’s citizens detained or incarcerated in their country.

The advice of the Department of Foreign Affairs and International Trade to the citizens of Canada takes
the form of subjugation and appeasement, not honour and dignity.

The Writer documents in this Report how Canada’s Department of Foreign Affairs and International
Trade prefers to leave such proactive and positive actions and confrontations to the families of Canada’s
citizens and to any member of Canada’s parliament prepared to help a distressed citizen.

The principle objective of the Department of Foreign Affairs appears only as an administrative one
keeping records of how many citizens of Canada complain of malicious prosecutions, physical and
psychological mistreatment and abuses indirectly are resulting from what is an ineffectual policy of
“silent diplomacy” and has no concrete mandate to proactively pursue such complaints.

Year after painful year citizens of Canada are being told to follow advice and to “trust their government
and the experience of its officials”. The only apparent experience of officials at the Department of
Foreign Affairs and International Trade in Ottawa is how to avoid confronting foreign officials. The
Honourable Members of this Parliament will find instead a documented preference at foreign affairs to
confront and distress Canadian families and not foreign officials.

It is with practiced aloofness, that officials of the Department of Foreign Affairs and International Trade
repeat to Canadian families only what they are told by representatives of the foreign governments.
Never are often questionable legal and factual representations of foreign officials put to any kind of legal
or factual test by the Department of Foreign Affairs. When such representations are openly and
reasonably challenged by Canadian families, then officials of Canada’s Department of Foreign Affairs
fall upon an ancient mantra of sovereign right and immunity, the severity of their loved ones crimes, the
consequences and risk of traveling or working abroad and the need to appease and not confront foreign
officials. The Honourable Members of this Parliament will have the opportunity to read exactly how one
Canadian family finds its confronted by Canadian officials who words appear more to defend the rights
of foreign states and not those of the citizens of Canada they are torturing.

Canadian families are repeatedly and incorrectly advised by the Department of Foreign Affairs and
International Trade that treaties are not legally binding on Canada’s bi-lateral or multi-lateral partners,
and there is no recourse for the Government of Canada against those states refusing to observe or
reasonably apply their treaty obligations to citizens of Canada. Nothing can be done except to satisfy the
demands of foreign officials, no matter how unreasonable, ethically questionable and often unlawful.

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In the 7th year of the Writer’s trial, the Department of Foreign Affairs and International Trade “strongly
advised” he withdraw his most recent an appeal against a wrongful criminal conviction, and that he
surrender all his other legal, property and human rights in Bulgaria. In addition, his family was asked to
pay money to the State of Bulgaria. The Department of Foreign Affairs and International Trade also
“strongly advised” the Writer meet Bulgarian demands that the Writer “of his own free will” withdraw
claims against Bulgaria made before the European Court of human Rights and before civil courts of
Canada and the United States. The Writer was even asked by the Department of Foreign Affairs that
he to provide a declaration to Bulgarian officials that he was not being coerced into giving these
concessions.

Officials of the Department of Foreign Affairs and International Trade gave the reason for making such
requests to the Writer and his family as securing “good-will” from the Bulgaria officials so that the
Department of Foreign Affairs and International Trade could get the cooperation of their Bulgarian
counterparts in the transfer of a citizen of Canada. The report documents exchanges with officials at the
Department of Foreign Affairs and International Trade, who advised the Writer that citizens of Canada
giving up rights not restricted by virtue of a criminal conviction was an acceptable practice in
international law. That these payments of money and the appeasement of these Bulgarian officials would
give Canada’s foreign affairs officials the “diplomatic tools” they need to get the Writer home.

Are other Canadian families asked to do the same?

Canada’s Minister of Foreign Affairs has proven by his silence that Canada’s foreign policy is one
preferring incarcerated Canadian citizens and their families capitulate and appease foreign states rather
than expect Canada’s Foreign Minister and his office to demand or defend their rights for them.

In the Writer’s case, Canada’s Minister of Foreign Affairs has so far been unwilling to confront officials
of Bulgaria’s government with the specific breaches of their written promises found in Bulgarian letters
rogatory delivered to the governments of Canada and Germany.

According to these letters rogatory, the Bulgarian cannot try or convict the Writer on an accusation’s
elements different from that for which he was extradited in 1996. As a result of this Bulgarian promise
the charge of embezzlement brought after the Writer’s his extradition is in breach of the Bulgarian letter
rogatory agreement with the Government of Germany. Furthermore, the elements of the Bulgarian
accusation of embezzlement against the Writer do constitute the elements of a criminal offence in
Germany and therefore would not be extraditable.

Even so Canada’s Minister of Foreign Affairs refuses to act. Instead, officials at Canada’s Department of
Foreign Affairs and International Trade prefer instead to defend the actions and demands of Bulgarian
officials as a sovereign right of the Bulgarian state, notwithstanding the unreasonableness and
incompatibility of such demands with international or law Bulgaria’s basic constitutional law

Why does Canada’s Minister of Foreign Affairs remain silent in the face of the fact of the Republic
of Bulgaria agreeing to the transfer and parole citizens of other states but not a citizen of Canada?

The Report documents letters rogatory and other Bulgarian correspondences between Canada’s
Department of Foreign Affairs and International Trade, Bulgaria and this Writer. Repeatedly, the Writer

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is assured by Canada that Bulgaria will observe its treaty with Canada on transfer of sentenced persons
and transfer the Writer to a Canadian prison.

Recently, as is documented in this Report, the Republic of Bulgaria reneged on its written assurance and
refused the only Canadian request to Bulgaria for a transfer for one of its citizens. Why? When
Bulgaria is routinely approving other transfers for citizens other states.

It remains to be seen if Canada’s new Minister of Foreign Affairs will bring an end to the culture of
appeasement and insulation from confrontation with foreign officials that its officials have been allowed
to enjoy at the expense of Canadian families. Such a practice having flourished for far too long and at a
terrible human cost to ARAR, SAMPSON, this Writer and each of our families who have endured our
pain.

Will Canada’s Minister of Foreign Affairs take the more challenge approach by ending this culture, and
replacing with one prepared to legally and diplomatically confront states like Bulgaria that consider their
treaty obligations “optional” and the keeping of promises unnecessary when the Canadian government is
unwilling to take recourse.

If Canada’s Minister of Foreign Affairs decides to act, then he can bring this Writer home and possibly
other citizens of Canada in similar circumstances.

So, what of the facts?

The Report documents in detail how agencies of the Crown acted outside the scope of their legislated
mandate and breached the due process rights of naturalized citizens of Canada.

Court documents collected in the Republic of Bulgaria by the Writer provide prima facie evidence that
give both pith and substance to the Writer’s complaints. These copies of official Canadian government
correspondences indict the Crown and Royal Canadian Mounted Police for what is now proven to be a
malicious prosecution on untrue allegations of fraud and misappropriation alleged by the Crown to have
occurred in Bulgaria. The Crown responsible for having uttered and made public maliciously injurious
slanders designed and having the sole purpose of creating public enmity against the Writer and so aiding
the Crown’s stated purpose of having the Writer arrested and prosecuted in Bulgaria. The Crown is
responsible for the Writer’s public humiliation, his destroyed reputation and business collapse. The
Writer’s inhumane 29 month detention in solitary confinement and repeated torture are directly a result
of the Crown’s repeated demands for information from police agents and prosecutors in the Republic of
Bulgaria.

The documents identified in this report provide more than anecdotal evidence of what are clandestine
and unregulated practices finding agencies of the Crown acting with both malice and forethought when
violating the Charter rights and freedoms of naturalized citizens of Canada who travel or work abroad.

The documents found in the Report reveal the Crown providing foreign police and prosecutors with
specific criminal charges, factual motives and requests for the criminal prosecution of Canada’s citizens
by foreign prosecutors.

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The Report reveals how the Crown acted in scienter with the police agents and prosecutors of a foreign
state in the malicious prosecution and unlawful detention of a citizen of Canada on criminal charges and
reasons formulated by the Crown.

The official documents made a part of Report are a written record of how to aide an unrelated criminal
investigation in Canada, the Crown turns a blind eye and a deaf ear towards the public humiliation and
physical and psychological torture caused too naturalized citizens of Canada. The Writer’s case and the
MAHER ARAR INCIDENT document to Parliament a willingness of the Crown to tolerate serious
injury and harm coming to citizens of Canada.

Public statements by Bulgarian prosecutors and police together with anecdotal evidence strongly support
the theory that the Crown prefers to unburden itself of naturalized citizens whom it deems undesirable.
The Crown readily extraditing ARAR and the Writer to face criminal charges in the countries they fled
as children. Criminal charges brought at the written request of the Crown.

Similarities to the ARAR Incident

The Report asserts that the MAHER ARAR INCIDENT in the United States and Syria of 2002 and the
MICHAEL KAPOUSTIN INCIDENT in Germany and Bulgaria of 1996 are neither isolated nor
occurred within an official vacuum of the Canada’s Minister of Justice and Attorney General and
Canada’s Department of Foreign Affairs and International Trade.

IN BOTH THE KAPOUSTIN AND ARAR INCIDENTS, Bulgarian and Syrian police FIRST
acted solely upon secret written requests and criminal indictments prepared in Canada by the
Crown and delivered in secret from embassies of Canada.

In both incidents there are secret Crown indictments of naturalized citizens of Canada. Both Bulgarian
and Syrian police and prosecutors relied on the Canadian police conclusions and data provided them.

In the KAPOUSTIN INCIDENT German courts were provided Canadian police data through
Bulgaria’s Attorney General and in the ARAR INCIDENT United States immigration officials arrested
ARAR on Canadian police data provided through SYRIAN police.

In both KAPOUSTIN and ARAR incidents the officials of Germany and the United States were told
Canada was not interested in repatriating KAPOUSTIN or ARAR and told to proceed with extraditions
to their “former homelands” of Bulgaria and Syria. The Report cites a number of official public
statements made by Bulgarian police and prosecution officials and supporting the supposition that the
Royal Canadian Mounted Police and the Minister of Justice and Attorney General of Canada advised
GERMAN and BULGARIA authorities that Canada was not interested in the return of KAPOUSTIN,
a naturalized citizen of Canada.

German and United States officials new the men would be subjected to brutal treatment, including
physical and psychological torture and because of the nature of accusations against them would be keep
indefinitely in solitary confinement without any possibility for a judicial review of their arrest and
prolonged detention. Yet, knowing this both countries proceeded with extraditions that the government
of Canada had requested.

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The KAPOUSTIN and ARAR INCIDENTS each demonstrate how the police and prosecution officials
of the governments of the UNITED STATES, GERMANY, SYRIA and the REPUBLIC OF
BULGARIA had each been blinded by the internationally reputed credibility and honest reputation of
Canada’s Royal Canadian Mounted Police and so failed to subject the Crown’s requests and indictments
of KAPOUSTIN and ARAR to any proper legal tests.

BULGARIAN and SYRIAN police and prosecutors, intoxicated with reputed credibility and honesty of
Canada’s Royal Canadian Mounted Police had moved quickly to arrest and prosecute these two
naturalized citizens of Canada. However, in the fullness of time the Crown indictments proved to be
nothing more than maliciously false criminal allegations, nothing more than fabrications or at best
libellous misrepresentations of fact presented under the guise and mantel of official police work.

Both KAPOUSTIN and ARAR are cleared of the original criminal accusations found in the secret
Crown indictments and the cause of their arrest, questioning, and torture.

In the KAPOUSTIN INCIDENT a malicious prosecution and wrongful conviction remains only
because, through the words of trust offered by the Department of Foreign Affairs and International Trade
the family of the Writer was convinced into withdrawing appeals against his criminal conviction.

The report documents correspondences of Canada’s Department of Foreign Affairs and strongly suggests
that Crown servants routinely withhold information on these secret commissions given by the
Crown to foreign police.

The Honourable members of this Parliament knew nothing of such activities until first exposed in the
ARAR INCIDENT.

In the Writer’s case the Royal Canadian Mounted Police and Bulgarian authorities have proven adept at
successfully suppressing the Writer.

In conclusion what can of the Writer say of his Report?

Only that it objectively proves that beyond Canada’s borders and the inquisitive eyes of its courts and
elected officials, agencies of the Crown have become blinded by their apparent and so far unregulated
freedom of action. To the Writer’s limited knowledge there is no Canadian enactment or judicial
precedent that directly binds or makes criminal or civilly liable an agency or servant of the Crown who
does not observe Canada’s Charter protections or laws beyond its borders. With no legislative fetter to
Canada’s Charter or its national laws or other legislated protections of its citizens, agencies of the Crown
have undertaken a dangerous and questionable practice of secret foreign commissions and indictments
that pursues naturalized citizens of Canada in the countries of their birth, most internationally
recognized for the physical and psychological torture employed in arrest and prison. This Report, seen in
the context of the ARAR INCIDENT, is more than casual proof of the internal culture within the Royal
Canadian Mounted Police International Liaison and Federal Executive Services and the Attorney
General of Canada that finds senior administrators and field operatives outside of Canada acting in
secret scienter with foreign police agencies

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The Report presents to the Honourable Members of Parliament facts and other exigent circumstances
that exist as distinct and separate elements and have not been clouded over or distorted by the Writer’s
desperation, paranoia and personal suffering.

The Writer leaves it to the Honourable Ladies and Gentlemen of Canada’s Parliament to decide.
Arar...................................................................67, 71 Interpol......................................19, 20, 21, 22, 23, 32
arrest warrants...................................................32, 37 investors................................................31, 33, 36, 37
Attorney General of Canada....................8, 40, 41, 44 Kabalarian...................................................35, 45, 46
beaten.................................................................11, 47 Kirov........................................................................38
British Columbia Supreme Court............................38 Levicharov.........................................................18, 19
Bulgarian Criminal Code of Procedure...................37 LIFECHOICE..................................17, 18, 30, 31, 32
Bulgarian Deputy Minister of Justice.....................30 magistrate................................................................38
Bulgarian Minister of Foreign Affairs.....................37 Mario Dimitrov.......................................................30
Bulgarian Minister of Interior.................................30 Ministry of Interior..................................................30
Bulgarian Ministry of Interior. .11, 16, 17, 18, 19, 30, Miroslav Genov...........................................16, 17, 32
32, 34, 36, 47 Mutual Legal Assistance in Criminal Matters Act. 17,
Bulgarian National Investigative Service..........20, 36 40, 48
Canada Foreign Affairs.....................................17, 37 National Investigative Service 31, 32, 33, 35, 65, 120
Central Service for Combating Organized Crime...34 Note Verbal........................................................28, 34
children....................................................................45 Pharmaceutical........................................................34
civil action.......................................................38, 115 Prosecutor Doichev.................................................32
Correction Canada...................................................20 R.C.M.P. S. Sgt. Vander Graff.................................34
Depositary Receipt..................................................17 rape..........................................................................45
Deputy Director of the National [Prosecution] Rashkov...................................................................33
Investigative Service...........................................33 Roumen Andreev...............................................32, 33
Deputy Solicitor General.........................................32 S004040.............................................................38, 68
Filchev.....................................................................30 Shearing...........................................18, 19, 35, 45, 46
fraud....................................13, 18, 20, 23, 30, 35, 45 Sofia District Attorney’s Office...............................30
FRG...................................................................28, 37 swindler...................................................................45
Genov......................................................................17 tortured....................................................................47
Georgiev 12, 20, 22, 23, 28, 31, 32, 34, 35, 36, 37, 45 transfer.....................................................................36
Goldie, J.A.................................................68, 69, 116 transfers...........................................13, 18, 22, 35, 36
Government of Canada.17, 23, 28, 29, 34, 36, 38, 39, Vancouver Proceeds of Crime Unit.........................36
42, 43, 45, 46, 47, 48, 56, 57, 58, 61, 64, 65, 78, Vangelov............................................................34, 35
121 victims.....................................................................36

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