Professional Documents
Culture Documents
What follows is simply one mans meagre offering and attempt to challenge the
power of the State that chooses to directly or indirectly derogate individual rights
and freedoms. Some of it may be of interest as a curiosity. Some parts may be
helpful in developing an appreciation for the frustrations of dealing with Bulgarian
authorities.
This is a draft only, and I therefore plead for your tolerance when undertaking to
read it.
I have separated certain more relevant parts as separate files on this disk.
Best wishes and I pray for your success,
Michael Kapoustin
Between
Appellants
(Plaintiffs)
And
REPUBLIC OF BULGARIA, et al
Respondents
(Defendants)
Table of Contents
1. Preamble................................................................................................................................. ..........8
1.1. Parallels in Canadian Case Law...............................................................................................................8
1.2. Relevance of the Cited Gwynne Supra...................................................................................................10
1.3. Factors Existing In Aggravation of the Circumstances..........................................................................10
1.4. The Appeal...............................................................................................................................................11
1.5. Relevant Law...........................................................................................................................................12
1.6. Interpretation and Factors.......................................................................................................................12
1.7. Reliance on Canadian Justice.................................................................................................................12
2. Applicant's Reasoning.................................................................................................................... .12
2.1. Objectives................................................................................................................................................12
2.2. Rights Relied On.....................................................................................................................................13
2.3. Prior Petitions..........................................................................................................................................13
3. End of Preamble.................................................................................................... .........................13
PART II.
STATEMENT OF FACTS...........................................................................................................13
"9. I have and continue to experience deep emotional and physical anxiety over the personal
injury caused my son by the Defendant and am in constant anguish over my utter
helplessness in the past and at the present moment to end or relieve my son’s sorrow and
pain. And the Defendant still persists in acts connected to my son and I in the province that I
do verily believe to be unlawful, abusive, unreasonable, cruel, and inhuman. Such acts
further aggravating and adding to the personal injury, damages and losses my son and I have
already wrongly sustained.
"10. That my persistent emotional trauma and unstable health is as a direct result of what I
do verily believe to be the utterly unreasonable and abusive conduct of the Defendant and the
unlawful and often cruel and inhuman acts that it continues to inflict on myself and my
family.
"11. As a result of the aforestated, I am unable to attend the July 13th 2001 hearing fixed by
the Defendant before this Honorable Court. My son’s need for constant medical supervision
and care takes precedent over the need of the Defendant who persists in its wrongful and
abusive acts and threats against my husband, my son and I.
"12. That my son and my emotional and physical health as aforestated does further preclude
my personally attending any hearing in the absence of my husband and the facts and
evidence collected by him and that he is able to present to this Honorable Court. The Plaintiff
Nicholas Kapoustin and I are unable to stand-alone and be subjected to any further
defamation, slander and other falsehoods as intentionally manufactured by the Defendant to
deliberately cause us further personal injury and loss.
[13]The words of this Applicant's wife and father, as those of Gwynne, act only to amplify to this
Honourable Court of Appeal that justice and humanity remain ideals imperfectly practised in many
parts of the world, even in Canada, and the United States. As it can be seen from Gwynne, despite all
the constitutional protections offered, the ideals of humanity, equality and justice still fail to be fully
practised, even in the two most advanced of democracies of the free world, what then can be said for
the agencies of a former totalitarian state?
[14]The conditions this Applicant' continues to suffer after 6 years, without benefit of final sentence, in a
prison of the Defendant/Respondent Bulgaria, have improved, yet still remain far harsher than those
considered by the Appeal Court in Gwynne supra.
[15]The plaintiffs' law suit, the present applications, and the intended appeal, each prove a test of
physical, and mental, stamina of the family of the Applicant who continue to suffer from the post
traumatic stress of the first years of his beatings and torture as reported in the Bulgarian media. As
Canadians, the plaintiffs seek to lawfully prevail over the defendant Bulgaria's continued interference
with this Applicant, and those fundamental rights guaranteed to him under international and
Canadian law.
[16]The proceedings before the trial court and the present applications before the Appeal Court each
represent a test. It is the right of the individual to prevail against historically oppressive agencies of a
foreign state determined to frustrate, or break, the plaintiffs from their pursuit of any legal remedy
under Canadian law.
"I conclude the standard of review in this court is one at the high end of deference accorded
to tribunals subject to judicial review…[sic]….Canada is a party to a considerable number of
these treaties and its interests are often those of a requesting state. See: Operation Dismantle
Inc. et al. v. Canada et al. , [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th)
481; 12 Admin. L.R. 16, at p. 450-454 for a discussion of analogous problems arising out of
the conduct of foreign relations."
[18]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."
[19]Again at §30:
"But the matter does not stop there. Mr. Gwynne's affidavit of his incarceration in Alabama
(annexed to my colleague's reasons for judgment) and the supporting materials reveal
conditions that were degrading, dangerous and apparently endemic within the prison
system of that state. It is the cumulative effect of the combination of the harshness of the
sentence and the apparent conditions under which it is to be served, including the
prospects of parole which may have been diminished almost to the point of irrelevance by
virtue of his escape, that must be weighed in terms of the Charter requirements."
[20]As in Gwynne, the court here is asked to consider the aggravating affects seen in the "supporting
materials [that] reveal conditions that were degrading, dangerous and apparently endemic within the
prison system” of a foreign state. The present case concerns those prisons under the control of the
Respondent/Defendant government of Bulgaria, and the "cumulative effect of the combination of the
harshness…and the apparent conditions under which" the Applicant is placed by the Defendant
Bulgaria. The court asked by the Applicant to closely examine the deleterious affects such conditions
have on the time needed in bringing the present applications, and the subsequent quality of the actual
appeal itself.
[21]The learned justices are asked to weight the international rights of a Canadian citizen in a foreign
prison, under conditions far more despicable than those ever seen by Gwynne. Harshness, brutality,
indifference and oppression the hallmark of prisons in the former communist Eastern European
countries, among which the defendant Republic of Bulgaria is counted. The circumstances of this
Speaker, unlike Gwynne, remain in the present tense, having not yet formed a part of his past.
[22]The Appeal Court is asked to find as it did in Gwynne, that there are sufficient factual grounds to
grant this Applicant the time needed, and leave, to appeal as it did Mr. Gwynne, and for
fundamentally the same reasons as Gwynne experienced, and feared facing at the hands of the foreign
state Respondent.
2.Applicant's Reasoning.
2.1. Objectives
[40]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.
[41]The object of the present applications, and the intended appeal, can be efficiently, and quickly,
disposed of as long as the Applicant's reasoning is not overly flawed, and conforms in some part to
the reasoning found in the practice of law.
[42]The single objective of the intended appeal is only to secure from the court the right of a prisoner to
have his applications, and arguments, judicially heard in writing by the trial court.
[43]The Applicant has used what little reason remains to him after 6 years of imprisonment by the
Defendant/Respondent Bulgaria. From the prevailing international law, and laws of Canada, and
Bulgaria, it appears to be within the legal rights of this Applicant to demand; (1) the possibility to
fully prosecute his civil claims; (2) to have his arguments heard, in writing if necessary, and to; (3)
obtain a judicial ruling that makes its determination on the merits of the available facts, evidence and
arguments.
[44]Reason suggests that there can be no justice if one party, here the defendant Bulgaria, is allowed to
deny another party, here the plaintiff Kapoustin, and the right to be heard by a court of law. It
appears, at least in principle, to be inherently wrong.
3.End of Preamble
[54]If all reasonable enlightened men and women, together with the international community, know the
foregoing to be true, then why did the Duty Master, and later, on appeal, the Chambers Judge, fail to
recognise the truth before them? Such are the questions the Appeal Court Justices are ultimately
asked to answer, should they find merit to admit these applications.
Part II.
STATEMENT OF FACTS
[55]Following is a history of the proceedings before the trial court, including relevant events leading up to
the commencement of the law suit and the present applications before the Appeal Court.
1. Desk orders to enter judgement against all the Defendant's in default of appearance, with the
exception of the defendant, the Government of the Republic of Bulgaria and defendant
Doornbos.
3. An ex parte order to require each party of record comply with Rule 13(12)(c), Rules of Court
and the Hague Convention of the Service Abroad of Judicial and Extra Judicial Documents
in Civil or Commercial Matters ("Hague Convention"), at once respecting and observing the
declarations made to the Hague Convention by the Republic of Bulgaria. This to include
officials or agencies of the Respondent responsible for delivering documents to this
Applicant.
4. An ex parte order requiring the Respondent have its agencies (1) conduct the Speaker in
custody to any hearing as may be fixed by the Respondent or at any trial before the SCBC; or
(2) to alternatively permit the incarcerated Speaker to communicate electronically or
transmit in writing his pleadings on any applications the court required be spoken to. This
order in particular relied on the inherent jurisdiction of a court of Canada to guarantee all
litigants their s. 15(1) Charter of Rights and Freedoms, (hereinafter the "Charter") and the
procedural relief available from the Rules of Court as found under Rules 40 and 59,
particular attention placed on the provisions in 40(4), 40(40), 59(3) and 59(4).
5. An order declaring the Speaker indigent, the court asked to provide him the appropriate
relief from court fees.
[69]On January 21st 2001 the Speaker's applications were again returned by the trial court [SCBC
Registrar]. The Registrar requiring, inter alia, that the applications made be spoken to before a
Master or Chambers Judge by a legal representative of the Speaker and payment of the $62.00 court
fee per application. This was asked of the Speaker, as petitioner, by the trial court, although being
made clear from the petitions themselves and affidavits, that the Speaker could not appear and had no
funds to pay the fees.
[70]By February 8th, 2001 only one appearance had been filed with the provincial court, that of the
Respondent.
[71]On February 24th, 2001 the Speaker learned of the Respondent's having retained its present Vancouver
legal counsel and filing an appearance.
[72]No other defendant has since filed an appearance or offered a defence before the trial court.
[73]For the third time, on or about April 2001, the Speaker again amended and re-filed his petitions to the
trial court [SCBC Registrar], having asked his father to pay the $62 dollar fee to at least have the
Speaker's indigence application reviewed and judicially ruled upon. All petitions identified the
circumstances of the petitioner’s incarceration and poverty, requesting under such circumstances that
the Duty Master hear the Speaker pleadings only in writing and ex parte of the Respondent.
6. To order the Defendant Bulgaria to agree to conduct in custody the Plaintiff Kapoustin (the
Speaker), as the respondent to its motion, to the hearings. The issue of costs to be agreed
between the parties.
8. To accept the 4 Volumes of the factum, and the affidavits and other exhibits placed into
evidence by the plaintiff in response to the defendant Bulgaria's simpliciter and forum non
conveniens applications.
9. To first hear the plaintiffs' cross applications to set aside the defendant Bulgaria's ex juris
service of documents on plaintiffs in Bulgaria. Plaintiffs relying on Rules 13 and 14, and the
Hague Convention as previously cited.
10. To order joinder of three SCBC Vancouver Registry law suits, C974299, S004040 and
S005440 where the defendant Bulgaria is named as defendant.
11. To grant leave to the plaintiffs to amend their claims, adding the Ministry of the Attorney
General of British Columbia as a defendant, plaintiffs relying on the Crown Liability and
Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21.
[99]After inspecting the three volumes of the Speaker's materials the Master adjourned the matter
generally and advised counsel for the defendant Bulgaria to fix a full day to hear its applications.
[100]The Speaker regularly enquires of the defendant Bulgaria and its legal counsel. Such written enquiry
includes a request to the said defendant in co-operating to fix a date and prepare a joint filing of
materials to be placed before a Master at the next hearing.
[101]As of the date of this Memorandum no reply has been forth coming from the defendant Bulgaria or its
counsel in Vancouver. The defendant Bulgaria continues to refuse to reply to the plaintiff’s
correspondences. It remains not only uncooperative but actively obstructive of the Speaker in his
efforts to provide full answer in response to its originating jurisdiction motion.
[102]The issues raised by the defendant Bulgaria [jurisdiction simpliciter and jurisdiction forum non
conveniens] remain outstanding before the trial court. These issues are relevant to the intended appeal
although not the subject of it.
2.1. Background
[109]Much of the law suit was prepared and written by the Speaker while in solitary confinement. The Writ
and Statement of Claim, prepared over a year, were finally filed with the Supreme Court of British
Columbia, Vancouver Registry in July 2000, this in the midst of the Speaker's criminal trial before the
Bulgarian district court.
[110]There are allegations before the trial court on the part of the defendant Bulgaria of a discursive
statement of claim. The Speaker had not denied such a possibility, having explained his
discursiveness the result of confusion and disorientation immediately arising after his having ended a
solitary confinement that commenced on September of 1996. Alleging in later affidavits that this
long, and uninterrupted, period of physical and psychological torment had a severe negative impact
on all the plaintiffs' state of mind and health, particularly that of the Speaker.
1.Difficulties in Bringing the Law Suit
[111]The natures of the problems in bringing the case against the defendants to trial are diverse in
character, slowly overcome with the passage of time, persistence and resilience. Among the many
difficulties experienced there was the plaintiffs need to access records or other documents under the
defendant Bulgaria's control. The plaintiffs written requests to the defendant Bulgaria for access to
evidence under its control are routinely refused.
[112]It is documented by the plaintiffs that at the time of preparing their statement of claim the defendant
Bulgaria denied this Speaker the possibilities or alternatively the facilities needed to affect exchanges
of information, facts or the collection of evidential materials necessary to the successful prosecution of
his civil claim against the defendant Bulgaria. It common knowledge, and a part of the international
human rights record of the defendant Bulgaria, that attempts by prisoners to bring legal action, civil
or criminal, against officials of the defendant Bulgaria, its instrumentalities or agencies, are usually
met in prison with severe physical and psychological consequences for the prisoner. The experiences
of the Speaker confirm such a practice.
[113]In such circumstances it had been, and remains today, impossible for the plaintiffs to determine,
exactly among other things; the name of an official ordering a contract with the plaintiffs to be
breached; or having approved a tortious abuse of process; or undertaken a quasi-criminal act against
the plaintiffs person or property.
[114]A reasonable person, in the absence of the defendant state's cooperation, simply could not fully
realise, or hold, the information necessary to formulate a claim exactly identifying who, within the
government of the defendant Bulgaria, having ordered or approved, inter alia tortious acts, or what,
inter alia, actual property damages the plaintiffs suffered as a result of their assets having been
unlawfully converted by the defendants.
[115]Other practical difficulties existed, among them the problems of language and the refusal of the
defendant Bulgaria's to allow this Speaker to interact or come in contact with his interpreters, making
independent action impossible. Such facts are before the trial court, and documented in the Affidavits
of, inter alio, Ms. Marianna Radoulova, Anatol Lukanov, Robert Kap, Ada Gogova and this Speaker,
as having been placed before a Master of the SCBC on August 24th 2001.
[116]The Speaker had first successfully overcome a part of such obstructions by the defendant Bulgaria on
or about March 2000. This only after the passing of many of years and with great difficulty.
[117]The facts of the case show that those difficulties mentioned thus far are further aggravated by a
practice of the defendant Bulgaria to forbid detainees or prisoners any form of telephone contact. This
made impossible to consult other plaintiffs and organise a plan of action.
2.8.7.1.The Indictment
2.8.7.3.The Acquittal
[278]On August 2nd 2001, on appeal, the Speaker was acquitted of the charge of embezzlement, the
appellate court ruling that the first court had erred in law and in fact when allowing the new charges
and elements of embezzlement as brought on January 14th 2000.
[279]The Appeal court re-qualified the factual elements as having the character of a general fraud and
convicted the Speaker, sentencing him to 9 years. The maximum sentence for fraud is 10 years.
"The Government generally respects basic human freedoms, but serious human rights
problems remain. Police are not sufficiently accountable for abuses, including the beating
and practices."
[286]In that same year Amnesty International reported [see: AI Index: EUR 15/07/96 DISTR:SC/CO/GR]:
"Human rights violations persisted in Bulgaria: they include shootings, torture, beating and
all forms of ill-treatment of detainees, sometimes resulting in death. The rising number and
regional distribution of the reported cases indicate that they are numerous and widespread.
Daily accounts of such incidents reveal a pattern of casual violence and illegal acts by police
officers throughout the country.
"The official statistics on shootings, deaths in custody and complaints of ill treatment are not
made public."
[287]The experiences of this Speaker during his solitary confinement at the hands of the defendant
Bulgaria went unreported. His complaints and attempts at communicating such complaints severely
punished. The AI (Amnesty International) Report for 1996 goes on to say "Lawyers, non-government
organisations monitoring human rights in Bulgaria as well we press frequently report incidents of
torture and ill-treatment." And:
[288]Persistent violations of fundamental civil rights or obligations and corruption are systemic, and
occurred regularly in the context of continued social and economic difficulties. Inadequate legislative
reforms by successive governments of Bulgaria left intact corrupt state institutions and an atmosphere
of lawlessness heightened by the numerous reports of the illicit financial gains of former government
nomenklatura, some of whom were and are still active politicians.
[289]This Honourable Court is asked to recall a significant and outstanding incident involving the 1995 to
1998 co-operation of a Crown servant and diplomatic agent of Canada [see: above references to
defendant Derek Doornbos] with the Regional Department of Internal Affairs Unit for Combating
Organised Crime [the above referenced Ministry of Interior - secret services police]. In the 1996 AI
wrote:
[290]The significance of the foresaid data to the proceedings before the trial court can be found in the
exchanges of data and requests that occurred during operative calls and meetings of Ministry of
Interior agents with Crown servants.
[291]Faxes were exchanged and reports made by the Crown to agents of the Ministry of Interior, including
the foresaid Captain Savov, and his associates, in May of 1995. The Crown inevitably assisting them
in their efforts to cause pecuniary and non-pecuniary injury to the plaintiffs, as well as to extort funds
all or part of the funds identified by the Crown to Captain Savov's Department of Internal Affairs Unit
for Combating Organised Crime.
[292]The situation was summarised by AI as "police officers have traditionally placed the protection of
state interests above universally recognised rights of individuals" having lead to AI's conclusion that
the Bulgarian judicial system routinely practised a policy that failed to safeguard fundamental human
rights.
[293]AI reported, as this Speaker has documented with his own experiences, that the defendant Bulgaria
regularly refuses to provide proof on whether complaints against its officials are processed, or to make
public those documents necessary to prove such complaints against the defendant Bulgaria before
foreign courts or international tribunals. Such conduct has been and continues to be inconsistent with
the UN and European obligations of the Republic of Bulgaria.
[294]AI further reported that year, as this Speaker has insisted to the trial court, that the defendant
Bulgaria does regularly breach the rights of victims of abuse of official powers (police or judicial).
There exist rights, but no effective remedies to secure those rights in Bulgaria; the international law
principle of a legal remedy against state agencies, instrumentalities or officials that abuse their
powers remains virtually non-existent before the Bulgarian courts.
2.1997
[295]In November of 1997, Mr. Peter Stoyanov was elected to President of the Republic of Bulgaria.
Stoyanov is a former attorney and business associate of this Speaker.
[296]Late in 1994 and the beginning of 1995 Stoyanov was paid $15,000 United States Dollars (USD) by
the Speakers British Columbia company. In exchange for these funds, Stoyanov was to obtain
municipal approval for the Speaker's company to install and operate a micro-refinery and oil
treatment plant near the City of Plovdiv. Stoyanov took the funds but never provided the services
promised, prior to the Speakers arrest he had been forcefully demanding that Stoyanov return the
funds. The money in question became a public issue during the Speakers detention and at his trial in
1999.
[297]AI reported that 1997 began much like 1996 with "daily reports of torture and ill-treatment by police
officers" of most criminal suspects, some leading to death. Racial and religious discrimination was
often a predominate factor among police and investigative officers. Medical attention was often
denied victims when still in custody, or alternatively, as in the Speaker's case, medical reports were
provided that were consistent with police claims and not the truth [see case: AI "Deaths In 1997:
Mincho Sartmachev"]. Quoting AI;
[298]Requests for independent medical examinations to verify claims of ill treatment are, as in the
Speaker's case, routinely denied him. All Canadian consular requests for an examination of the
Speaker by a Canadian doctor were routinely refused by the defendant Bulgaria.
[299]Police and investigator violence are a regular pattern utilised to obtain information or extract
confessions from suspects. Prosecutors and Judicial officials fail to pursue allegations against police
and other officials responsible to them under law. As a result human rights violations are committed
with impunity from prosecution or discipline.
[300]Bulgarian authorities failed in most cases to pursue those responsible or adequately investigate reports
despite obligations as a state party under the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment and Punishment.
[301]AI expressed deep concern over the failure of the Ministry of Justice and police to act on complaints,
so much so as to suggest to the government of Bulgaria that it establish a complaints board
independent of these institutions that included the office of the prosecutor and courts.
3.1998
[302]During March of 1998 the Bulgarian government authorised the release of a report prepared by the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment. This report was compiled after the committee had visited the various places of detention
to be found in Bulgaria and concluded that those people detained there "run a significant risk of
being ill treated at the time of their apprehension and/or while in police custody, and that on
occasion resort may be had to severe ill-treatment or torture".
[303]Of significance to the Speaker is that the report went on to state "that conditions of detention in the
National Investigative Service (NIS) facilities could be described as inhuman and degrading",
prisoner are held in isolation, often for years and under an "impoverished regime offering very little
human contact". The court may well recall that the Speaker had been isolated more than two years
(1996 to 1999) by the NIS at facilities described in the European Committee report.
[304]Also during 1998 a United Nations Committee on the Elimination of Racial Discrimination had
expressed alarm at the number of incidents of violence against members of minority groups.
[305]Jews are an invisible minority in Bulgaria society and Bulgaria Jews maintain a low profile due to
Anti-Semitism that is imbued through out Bulgarian society, particularly police and prosecutors.
[306]The court may recall that the Speaker is of Jewish ancestry. Should this Honourable Court have cause
to review the offensive and actionable words complained of as slanders and blasphemous libels,
framed in the tort of defamation, it would become immediately apparent that Anti-Semitism played a
significant part in the way the defendant Bulgaria has treated the Speaker throughout his 6 years of
arrest. There is no exaggeration to the statement made in 1998 by USAID that "Bulgaria needs to
strengthen rule of law; and do more to protect human and minority rights….Anti-corruption efforts
need to be intensified, and functioning of the judicial system improved".
4.1999
[307]During 1999 the Parliamentary Assembly of the Council of Europe decided to continue monitoring
Bulgaria's honouring of its international obligations and commitments [see below: Part 3 "Law and
Enactment Relied On"], assembly rapporteurs expressed concern to the council about continued
police violence.
[308]In May of 1999 the Chief Prosecutor and the Director of NIS both acknowledged there had been
"serious violations of laws, rights and freedoms of citizens" that were becoming ever more, rather
than less, frequent in the practice of the Ministry of Interior.
[309]The Court is asked to recall the 1995 agreement of the Crown with the Ministry of Interior, of the
defendant Bulgaria, the Crown having asked the said defendant to "prosecute for whatever" the
Speaker or his company in Bulgaria.
"The judiciary is independent but suffers from corruption and continues to struggle with
structural and staffing problems.
"Most internal security services are responsible to the Ministry of Interior, including the
Central Service for Combating Organised Crime, the National Security Service (civilian
intelligence), internal security troops, border guards, and special forces. Although
government control over police is improving, it is still not sufficient to ensure full
accountability. The Special Investigative Service (SIS), reduced in size by a recent
reorganisation, is a judicial branch agency and therefore not under direct government
control. Some members of the police committed serious human rights violations"
[316]The US State Department indicated that, as in the prior years, the security forces continued to beat
suspects and prison inmates. The Speaker makes reference to such fact as it is relevant to his past
treatment and the ever present threats under which he exists.
[317]In 1999 accountability remained practically non-existent and prison conditions are "harsh, and pre-
trial detention is often prolonged", it goes on to say that the "judiciary is underpaid, understaffed, and
has a heavy case backlog; corruption is a serious problem. The Government infringed on citizens'
privacy rights…Discrimination against the disabled and religious minorities is a problem."
[318]It can be seen that the defendant Bulgaria's Constitution [see below: Part 3 "Law and Enactment"]
forbids cruel and inhuman treatment or punishment. Despite this the police, well into the year 2000,
commonly beat criminal suspects and members of minorities.
[319]Such tactics (beatings, drugging and intimidation) had been reported in previous years as frequently
used, as with the Speaker, to extract information or false testimony. Human rights groups reported
that complaints are rarely received through official channels.
[320]According to reliable USA State Department sources "Human rights monitors report that they receive
many more complaints from persons who are too intimidated to lodge an official complaint with
authorities", persons deprived of their liberty run significant risks of being mistreated if complaining.
[321]A Bulgaria Helsinki Committee reported survey Bulgaria's prisons, finding that "51 percent of
interviewed prisoners reported that police officers used physical force against them during arrest; 53
percent reported mistreatment at police stations" and seldom are charges against prison guards
investigated, more rarely are they prosecuted..
[322]During 1999 and 2000 conditions in prisons continued to be harsh, "severely overcrowded", places
having "inadequate lavatory facilities, and insufficient heating and ventilation".
"It is alleged that warrants to investigate suspects' private financial records sometimes are
abused to give police broad and openended authority to engage in far-ranging investigations
of a suspects' family and associates. There are regular, albeit not conclusive or systemic,
reports of mail, especially foreign mail, being delayed and/or opened."
[329]The court is asked to recall the facts surrounding the Crown's request to have the Speaker and the
plaintiffs company prosecuted by Bulgarian authorities. It is recalled that the Crown request was in
order to aid the Attorney General of the province to obtain information from Bulgaria for a criminal
investigation in British Columbia [see: "Facts of Case: Malicious Prosecution " - July 7 1995 Crown
Request].
[330]Of some significance to the trial court and the present enquiry are the independent reports that the
"Government exerts an unduly large influence on the media through official channels" and that
"Journalists frequently colour their reports to conform to the views of the political parties or economic
groups that own their newspapers." This report is consistent with plaintiffs’ claims against the
Respondent that sound in the tort of defamation.
[331]The Speaker has made complaints of Anti-Semitism as being a part of the harsh treatment he
experienced after his arrest. This complaint is consistent with the U.S. State Department report of
"discrimination, harassment, and general public intolerance" towards religious minorities not a part
of the traditional mainstream of the Orthodox Church. And that "Numerous articles in a broad range
of newspapers as well as television documentaries, drew lurid and inaccurate pictures of the
activities of non-Orthodox religious groups".
[332]It is to be recalled that numerous articles concerning the plaintiffs were written making reference to
Canadian government sources connecting the Speaker, a Jew, to the culture of Judaic mysticism and
Cabbalistic beliefs. It will be recalled that this connection was provided by the Crown in 1995 to
agents of the Ministry of Interior of the Defendant Bulgaria.
5.2000
"There were reports of ill-treatment and torture by police, and of a death in police custody.
There are also reports that people who complained about torture and ill-treatment by law
enforcement officials were subject to intimidation or further ill-treatment."
"The UN Committee against Torture met in April and May to consider Bulgaria's second
periodic report. The committee found that Bulgarian law lacked a definition of torture and
failed to ensure that all acts of torture are offences under criminal law. The committee
expressed concern about continuing reports of ill-treatment by public officials,
particularly the police, especially of ethnic minorities. The committee also expressed
concern about the deficiencies in the system of investigation of alleged cases of torture
and the failure to bring those allegations before a judge or other appropriate judicial
authority."
· "PART I
· "Article I
"1. For the purposes of this Convention, the term "torture" means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions."
[337]See for further reference as well: The Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res.
3452 (XXX), annex, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975) as follows:
· "Article 1
"2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading
treatment or punishment.
"Article 2
4.Relevance
[338]The foregoing presentation is the particular factual circumstances surrounding the applications
presently before the Appeal Court. The facts of the case combine to form factors that create a set of
unusual circumstances that in the past have limited and complicated the Speaker's practical
possibilities to observe, inter alia, the limitations of time to make appeals or hearing dates or attend
the hearing of various applications. To fully appreciate the significance and magnitude of the
Speaker's difficulties requires additional reflection on the historic and present conditions in the
Republic of Bulgaria as found in reliable international reports.
[339]International comities, and the foreign law of Bulgaria, as naturally flows from the applicable
principles of international law, play key roles in determining the issue of what limitations can
reasonably be placed on the rights of incarcerated and indigent citizens before a court of law.
[340]This Honourable Court is asked to recall that the claims of the plaintiffs Nicholas, Tatiana, Tracy and
Robert are connected to the "cruel, inhuman or degrading treatment or punishment" they suffered in
the province as third parties. On other occasions the plaintiffs in the province were the principle
targets in the attempts by officials of the defendant Bulgaria at coercing money or information as to
money in the province from them, the defendant Bulgaria relying on threats of violence against the
Speaker or promises to end his torture to coerce the plaintiffs to co-operate.
[341]It is again recalled, that the money in question being so aggressively sought after by the Defendant
Bulgaria are those funds having been identified in a written indictment prepared by the Crown
against the plaintiff Kapoustin, a Canadian citizen, without the benefit of the protections and
guarantees found under Canadian law. The Crown having requested the prosecution of the plaintiff
Kapoustin by defendant Bulgaria in May and July of 1995.
12. Did the Master err in law when failing to observe the positive constitutional obligation of the
court under the Charter, and Canada's international commitment to secure for all persons a
guarantee of their fundamental right to equality and fairness before a court of law?
1.1.1.1.The Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc
A/810 at 71 (1948)
"Article 2
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property [indigence], birth or other status
[imprisonment].
"Everyone has the right to recognition everywhere as a person before the law.
"Article 7
"All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination.
"Article 10
"Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his [civil] rights and obligations and of any
criminal charge against him.
"Article 12
"No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
"Article 28
"Everyone is entitled to a social and international order in which the [civil] rights and
freedoms set forth in this Declaration can be fully realized.
"Article 29
"1. …..
"2. In the exercise of his [civil] rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.
"3……
1.1.1.2.International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21
U.N. GAOR Supp. (No. 16) at 52, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171,
entered into force Mar. 23, 1976
"Part II
"Article 2
"2. Where not already provided for by existing legislative or other measures, each State Party
to the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights recognized in
the present Covenant.
"(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective [civil] remedy, notwithstanding that the violation has been committed
by persons acting in an official capacity;
"(b) To ensure that any person claiming such a [civil] remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the
possibilities of judicial remedy;
"(c) To ensure that the competent [judicial] authorities shall enforce such remedies when
granted.
"Article 3
"The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the present Covenant.
"Article 10
"1. All persons deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person.
"Article 14
"1. All persons shall be equal before the [civil and criminal] courts and tribunals. In the
determination of any criminal charge against him, or of his [civil] rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law…….[sic]"
"Article 16
"Everyone shall have the right to recognition everywhere as a person before the law.
"Article 26
1.1.1.3.Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955
by the First United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N.
ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076,
62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977).
"PART II
"Guiding principles
"57.
"Imprisonment and other measures which result in cutting off an offender from the outside
world are afflictive by the very fact of taking from the person the right of self-determination
by depriving him of his liberty. Therefore the prison system shall not, except as incidental to
justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in
such a situation.
"60.
"(1) The regime of the institution should seek to minimize any differences between
prison life and life at liberty which tend to lessen the responsibility of the prisoners or the
respect due to their dignity as human beings.
"61.
"The treatment of prisoners should emphasize not their exclusion from the community, but
their continuing part in it [i.e. appearing before courts of law]. Community agencies should,
therefore, be enlisted wherever possible to assist the staff of the institution in the task of
social rehabilitation of the prisoners. There should be in connection with every institution
social workers charged with the duty of maintaining and improving all desirable relations of
a prisoner with his family and with valuable social agencies. Steps should be taken to
safeguard, to the maximum extent compatible with the law and the sentence, the rights
relating to civil interests, social security rights and other social benefits of prisoners.
1.1.1.4.Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298,
U.N. Doc. A/43/49 (1988)
"These principles apply for the protection of all persons under any form of detention or
imprisonment.
"Principle 3
"There shall be no restriction upon or derogation from any of the human [civil] rights of
persons under any form of detention or imprisonment recognized or existing in any State
pursuant to law, conventions, regulations or custom on the pretext that this Body of
Principles does not recognize such rights or that it recognizes them to a lesser extent.
Principle 5
"1. These principles shall be applied to all persons within the territory of any given
State, without distinction of any kind, such as race, colour, sex, language, religion or
religious belief, political or other opinion, national, ethnic or social origin, property
[indigence], birth or other status [imprisonment].
"Principle 36
"1……
"2. The arrest or detention of such a person pending investigation and trial shall be carried
out only for the purposes of the administration of justice on grounds and under conditions
and procedures specified by law. The imposition of restrictions upon such a person which
are not strictly required for the purpose of the detention or to prevent hindrance to the
process of investigation or the administration of justice, or for the maintenance of
security and good order in the place of detention shall be forbidden.
1.1.1.5.Basic Principles for the Treatment of Prisoners, G.A. res. 45/111, annex, 45 U.N.
GAOR Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990)
"5. Except for those limitations that are demonstrably necessitated by the fact of
incarceration, all prisoners shall retain the human [civil] rights and fundamental [civil]
freedoms set out in the Universal Declaration of Human Rights, and, where the State
concerned is a party, the International Covenant on Economic, Social and Cultural Rights,
and the International Covenant on Civil and Political Rights and the Optional Protocol
thereto, as well as such other rights as are set out in other United Nations covenants.
2.Canadian Enactment
[365]The foregoing international principles of law are incorporated into the Canadian legal landscape as
follows.
1.1.2.1.Canadian Bill of Rights, [1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c. 26,
s. 105; 1992, c. 1, s. 144(F)].
"An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms
BILL OF RIGHTS
"1. It is hereby recognized and declared that in Canada there have existed and shall continue
to exist without discrimination by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
"(a) ….
"(b) the right of the individual to equality before the law and the protection of the law;
"2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of
Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to authorize the abrogation,
abridgment or infringement of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be construed or applied so as to;
"(a) ……;
"(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
"(c)……..;
"(d) …..;
"(e) deprive a person of the right to a fair [civil] hearing in accordance with the principles of
fundamental justice for the determination of his rights and obligations;
"PURPOSE OF ACT
"2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview
of matters coming within the legislative authority of Parliament, to the principle that all
individuals should have an opportunity equal with other individuals to make for
themselves the lives that they are able and wish to have and to have their needs
accommodated, consistent with their duties and obligations as members of society,
without being hindered in or prevented from doing so by discriminatory practices based
on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital
status, family status, disability or conviction for an offence for which a pardon has been
granted.
"3.1 For greater certainty, a discriminatory practice includes a practice based on one or more
prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.
"Discriminatory Practices
"(a) to deny, or to deny access to, any such good, service, facility or accommodation to any
individual, or
1976-77, c. 33, s. 5.
"disability" means any previous or existing mental or physical disability and includes
disfigurement and previous or existing dependence on alcohol or a drug.
PART III
"39. For the purposes of this Part, a "discriminatory practice" means any practice that is a
discriminatory practice within the meaning of sections 5 to 14.1.
1.1.2.3.Constitution Act, 1982 (79) Enacted as Schedule B to the Canada Act 1982 (U.K.)
1982, c. 11, which came into force on April 17, 1982 - Canadian charter of rights
and freedoms
"PART I
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
"15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
"26. The guarantee in this Charter of certain rights and freedoms shall not be construed as
denying the existence of any other rights or freedoms that exist in Canada.
"b) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.
"Definitions
"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a) or (b), 10 (1) (a),
11, 13 (1) (a) or (2), 14 (a) or (b) or 43;
"2 Discrimination in contravention of this Code does not require an intention to contravene
this Code.
"Purposes
"(a) to foster a society in British Columbia in which there are no impediments to full and
free participation in the economic, social, political and cultural life of British Columbia;
"(b) to promote a climate of understanding and mutual respect where all are equal in dignity
and rights;
"(d) to identify and eliminate persistent patterns of inequality associated with discrimination
prohibited by this Code;
"(e) to provide a means of redress for those persons who are discriminated against contrary
to this Code;
Code prevails
"4 If there is a conflict between this Code and any other enactment, this Code prevails.
"8 (1) A person must not, without a bona fide and reasonable justification,
"(a) deny to a person or class of persons [prisoners] any accommodation, service or facility
customarily available to the public [access to the courts services], or
"TEMPORARY ABSENCE
"7. The purpose of a temporary absence program is to contribute to the maintenance of a just,
peaceful and safe society by facilitating, through decisions on the timing and conditions of
absence, the rehabilitation of prisoners and their reintegration into the community as law-
abiding citizens.
R.S., 1985, c. P-20, s. 7; 1992, c. 20, s. 207; 1995, c. 42, ss. 71(F), 72(F); 1997, c. 2, s. 2.
Principles
"7.1 The principles that shall guide designated authorities in achieving the purpose of a
temporary absence program are
"(a) that the least restrictive decision that is consistent with the protection of society and the
prisoner's rehabilitation and reintegration into the community be made;
"(b) that all available information that is relevant to the case be taken into account;
"(c) that prisoners be provided with relevant information, reasons for decisions and access to
the review of decisions in order to ensure a fair and understandable temporary absence
process; and
"(d) that the designated authority provide for the timely exchange of relevant information
with other participants in the criminal justice system and make information about temporary
absence programs and policies available to prisoners, victims and the public.
1997, c. 2, s. 2.
"7.3 (1) A designated authority may authorize a prisoner to be absent from prison with or
without escort, subject to any conditions that the authority considers appropriate, where it is
necessary or desirable in the authority's opinion
"(a)…;
"(b) in order to facilitate the prisoner's rehabilitation or reintegration into the community; or
"(c) for any other purpose, consistent with the purpose and principles set out in section 7
and 7.1, that may be established by the laws of the province respecting the authorization of
temporary absences of prisoners who have contravened provincial law.
1.1.2.6.Corrections and Conditional Release Act 1992, c. 20 [Assented to 18th June, 1992]
"4. The principles that shall guide the Service in achieving the purpose referred to in section
3 are
"(a)…;
"(b)…;
"(c)…;
"(d) that the Service use the least restrictive measures consistent with the protection of the
public, staff members and offenders;
"(e) that offenders retain the rights and privileges of all members of society, except those
rights and privileges that are necessarily removed or restricted as a consequence of the
sentence;
"(a) an inmate will not, by reoffending, present an undue risk to society during an absence
authorized under this section,
"(b) it is desirable for the inmate to be absent from penitentiary, escorted by a staff member
or other person authorized by the institutional head, for medical, administrative, community
service, family contact, personal development for rehabilitative purposes, or compassionate
reasons, including parental responsibilities,
"(c) the inmate's behaviour while under sentence does not preclude authorizing the absence,
and
"(d) a structured plan for the absence has been prepared, the absence may, subject to section
746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act and subsection
15(2) of the Crimes Against Humanity and War Crimes Act, be authorized by the
institutional head
"Temporary absences
3.Bulgarian Enactment
[366]The Government of the Republic of Bulgaria took an alternative approach from that of Canada when
incorporating the previously cited international law. The defendant government relies on its'
constitution to incorporate, by way of reference, all international instruments ratified by its
legislation, making such international law the supreme law of the country.
"Article 5
"(4) Any international instruments which have been ratified by the constitutionally
established procedure, promulgated and having come into force with respect to the Republic
of Bulgaria, shall be considered part of the domestic legislation of the country. They shall
supersede any domestic legislation stipulating otherwise.
"Article 57
"The Constitution
"Article 31
"(5) Prisoners shall be kept in conditions conducive to the exercise of those of their
fundamental rights which are not restricted by virtue of their sentence.
[367]Unlike the comprehensive legislation of Canada, the subject of a prisoner's right to temporary
absences for attending to his fundamental rights and obligations before a court in a suit at law are
treated in a very limited way by the defendant Bulgaria as follows;
"Article 23. Incarcerated persons may avail themselves of (enjoy) all rights established by
law with the exception of the following:
"c) Rights, the exercising of which is incompatible with the execution of the punishment.
[368]The foregoing Art. 2(c) having made all limitations lawful if they are "incompatible with the
execution of the punishment" leaves open to very broad interpretation what fundamental rights may
be administratively denied solely due to a person having been deprived of his liberty in Bulgaria. The
only limiting provision appears to be the cited Art. 5§4 of the Bulgarian Constitution, it having
created a positive obligation for State agencies to observe the international agreements of Bulgaria as
incorporated, by reference, as a part of the lex fori of Bulgarian.
[369]Of particular significance to this review is the following Art. 463§2 of the Criminal Code of
Procedure, Republic of Bulgaria, having a provision permitting a prisoner the right, or obligation to
appear under the custody of a foreign State authority, in proprio persona, before a court of that State
in any proceeding where attendance is required to protect his legal interests, or that of other persons
involved in a foreign judicial proceedings. The context of the provision's text makes no distinction if
the procedure before the foreign court foreign is a suit at law or criminal proceeding. The enactment
and text are as follows:
"Article 463
"(1)…[Sic]
2.A Priori
3.A Posteriori
[404]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.
[405]Pivotal to this discussion, and the later applications, 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.
14. 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.
16. 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.
[415]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".
[416]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.
[417]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.
[418]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.
[419]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 Applicant, 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.
"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."
[447]The said Principle 57 clearly expresses what the Applicant 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 Applicant's
petitions to observe its positive obligation and duty to him as its prisoner.
[448]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.
[449]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.
"(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.
[454]It is recalled that the Applicant's petitions to the Master and Chambers Judge had raised all the
forgoing issues, having in part relied on Rule 40(40). The Applicant petitioned the Master to provide
a subpoena or order for the Defendant Bulgaria to produce the Applicant. This would be seen by the
defendant Bulgaria as the "paper(s) submitted by the other Country" [see the above cited: CCP Art.
463] to allow a "district court" of Bulgaria to consider the Applicant's request of temporary escorted
conduct to appear before the court. Much of the Applicant's frustration is derived from being refused a
judicial review of his requests for an escorted appearance before the trial court in British Columbia,
despite that the minimum rights of persons deprived of liberty happen to include the possibly under
both Bulgarian, and Canadian national law to bring and prosecute to the full extent of the law a civil
claim. Even against the very State, or its institution and officials, having deprived him of liberty and
property.
[455]These respective provisions of the national laws of Bulgaria and British Columbia, and principles of
international law, were are relied on by the Applicant when petitioning the Defendant Bulgaria, the
Ministry of Justice, and then the Master and Chambers Judge of the provincial court.
[456]Had the fact of the defendant Bulgaria being in breach of international law been established on
hearing the petition of the Applicant, it would be bound to have raised appropriate and very real
questions in the mind of the court as to the purpose of the coercive measures and interference
employed by the said defendant. The negative restrictions as well as positive obligations and duty of
the defendant Bulgaria under international law should not have been overlooked by either the Master
or Chambers Judge on their review of the Applicant's complaints.
[457]Principally what is immediately apparent to the Applicant 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.
[458]To this Applicant 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.
17. First, a practice and procedure under the Court Rules Act, Rules of Court, is being impugned
by this Applicant, it indirectly discriminating solely on the basis of a person's status of
property and self-determination.
18. 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.
19. 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.
20. This "other status" is one made inherently afflictive by an act of law, it therefore warranted a
positive legislative remedy.
21. 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.
22. The groups Charter, and a priori rights as flow from the principles of international law are as
a result unreasonably limited in a suit at law by the impugned Act. The present practice and
procedures indirectly and unintentionally barring all members of the group from accessing
the courts powers or obtaining a judicial remedy bar solely due to their poverty, and the
distinct disadvantage of having been deprived of liberty.
23. Second, the observable facts and circumstances of this Applicant's "other status" make the
Duty Master's order unreasonable, and Chambers Judge findings incorrect.
24. 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.
25. 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.
27. 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.
28. 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.
29. 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.
[480]The Applicant attempted to resolve, from three standpoints, the Duty Master's order, and Chambers
Judge Decision. It is significant to recall that the Applicant was not provided any written reasons for
the Duty Master's order.
[481]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.
1.Procedures
[482]Earlier the Applicant made reference to the practices and procedures available under the SCBC Rules
of Court at Rule 40, and under the Criminal Code of Procedure, Republic of Bulgaria, at Art. 436,
both having provisions allowing for persons deprived of their liberty to appear before a court of
competent jurisdiction.
[483]It is apparent from both the cited enactments that there exists no negative restriction in either to
allowing a person under custody to be either summoned, or alternatively permitted, to appear as a
"witness” or "expert" on subpoena before a foreign court.
[484]What is apparent under both the cited enactments is the positive procedural obligation and duty of the
State and the summoning court to act responsively and responsibly in securing the appearance of the
person required before the court.
[485]This Applicant's final reasoning before the competent non-judicial authority of the defendant
Bulgaria, and before the Chambers Judge of the trial court, relied on the observable fact that the
hearing was fixed by the defendant Bulgaria, and he was named as a Respondent in the Notice of
Hearing. Ergo, it only reasonable the defendant Bulgaria undertake arrangements for his conduct in
custody to and from the hearing.
2.Conflicts
30. It appears as incontrovertible that Canada, and Bulgaria have a positive obligation and duty,
independent of each other, to all persons imprisoned on their respective territory, and to
citizens imprisoned abroad.
31. It appears as equally incontrovertible that the courts of Canada, and Bulgaria are
constitutionally endowed with a positive obligation, and duty, to vigorously as opposed to
passively secure to all persons before the law within their respective jurisdictions the a priori
rights that naturally form a part of the international commitments of each government,
notwithstanding the "other status" of the person, i.e. an indigent foreign prisoner.
32. It is incontrovertible that no provision is to be found under international law, or the national
"lex fori" of Canada, or that of Bulgaria, having a legislated exception preventing a person
from developing an effective judicial remedy in a suit at law solely due to his "other status"
as an indigent person deprived of his liberty. The courts having a obligation, and duty to be
positively responsive to the material, and other afflictions of a petitioner with a status -
imprisonment - that by its very nature is afflictive.
[494]One proposition found under the cited international, and national laws is the negative restriction on a
State's non-judicial and judicial bodies in limiting the fundamental rights of a prisoner beyond what
is absolutely necessary to public safety, and order. The Applicant again recalling UDHR Article 29§2,
and SMR Principle 61.
[495]On the basis of the foregoing, if there is to be any conflict of laws at all, it appears to be one limited
only to interpretation and practice of a priori justice as opposed to its substance. Both legal traditions
of Canada and Bulgaria, in sharing the same a priori principles of international law, cannot be in
conflict on a question of a person's fundamental right to protection from direct or indirect
discrimination. There can not exist in law a conflict on the self proposition of a person's right to a
judicial determination of his complaints, rights or obligation in a suit at law by the court of competent
jurisdiction.
[496]The present discussion will therefore attempt to concern itself with interpreting the positive obligation
and duty of judicial and non-judicial bodies to an indigent Canadian citizen deprived of his liberty on
the territory of Bulgaria.
[497]Foremost the Applicant believes the common law interprets the constitutional obligation and duty of
Canada's courts to be a positive one in any observable circumstance of a practice, or procedure that
indirectly discriminates by creating an unreasonable barrier to the obtaining justice - judicial review
-only for a distinct group of disadvantaged persons.
[498]What remains is to consider how reasonable it is for a court of Canada to extend its jurisdiction in a
suit at law to the "territory of any given state" when responding to its positive constitutional
obligation and duty to a citizen having a other status. Notwithstanding the State in question is party
to the cited treaties, and a defendant in the proceedings before the provincial court.
[499]To continue this discussion it is necessary once again to summarise the observable facts within the
context of the self evident propositions previously listed. The following is recalled:
35. The Defendant Bulgaria is a foreign government against whom the Applicant and other
plaintiffs have framed their claims within the province to sound in contract and in tort.
Included among the causes of action are personal - physical and mental - injury claims
having occurred in, or otherwise connected to the province. As previously mentioned the
provincial court's juridicition relied on the exceptions found under Canada's State Immunity
Act and the available jurisprudence of the courts Canada, England and the United States of
America.
36. The defendant having filed an appearance, and its applications for judicial determination on
the questions of jurisdiction simpliciter and forum non conveniens remain live issues before
the trial court.
37. At this present stage of the proceedings the provincial court of British Columbia remains the
competent jurisdiction to determine, according to the facts and law, the rights and
obligations of the defendant Bulgaria, and the plaintiff within Canada. The provincial court
therefore has inherent jurisdiction to determine all questions of procedural fairness.
39. The Applicant, relying on relevant international law and enactments of Bulgaria, and
Canada, petitioned the responsible government agency of the defendant Bulgaria to contact
the responsible agency of Canada. The Defendant Bulgaria to arrange the Applicant's
conduct in custody to, and from hearings as fixed by it before the provincial court. Reference
was made to the defendant Bulgaria's motion to the Master, and its notice of hearing -
subpoena - requiring the Applicant to appear, as respondent, to defend his interests in a suit
at law. The responsible agency of the defendant, the Ministry of Justice Republic of Bulgaria,
refused its positive obligation and duty to contact Canadian authorities, on petition of the
Applicant.
40. In the alternative the Applicant, again relying on international law, and enactments of
Bulgaria and Canada, again petitioned the foresaid responsible government agency of the
defendant Bulgaria to obtain its consent to a motion having the Master order the proceedings
be conducted only in writing for as long as alternative the defendant Bulgaria refused to
conduct the Applicant to hearings before the court. No reply was forthcoming.
41. On having exhausted all possible administrative remedies available to the Applicant under
Bulgarian law as a foreign person deprived of liberty, and believing it sine quo non for the
trial court to act responsively to any arbitrary interference with a party's legal rights, he did
petition the Master of the provincial court for a judicial remedy. The petition requested
procedural relief from the defendant Bulgaria's continued interference with the Applicant's
legal rights as a person under law before the provincial court. The application relied on
international law, and Canada's Constitution Act, the Human Rights Act, the Bill of Rights,
and the provincial Court Rules Act, Rules of Court. The petition as filed sought a procedural
remedy in two forms. First directing the defendant Bulgaria arrange to conduct of the
Applicant, in custody, to a hearing it had scheduled with the Master. Second, in the
alternative, an interlocutory order was proposed to have all pre-trial hearings conducted in
writing only, the court to obtain assurances from the Defendant Bulgaria to allow the
Applicant sufficient time, and facilities. The court asked to require the said Defendant to see
to its agencies end interfering with the Applicant, his facilities, and the materials necessary
to his prosecuting or defending his right and obligations before the court.
42. The Duty Master refused to judicially review or hear the Applicant's petition(s), or to
determine the legal affect of the courts order. The Master placing a reverse onus on the
Applicant to appear or retain an attorney to bring his applications before the court.
43. Chambers Judge Edwards J. refused to judicially review or hear the Applicant's appeal on the
reasonableness a Duty Master's reverse onus. His Lordship's took a decision to not review the
Applicant's constitutional complaint that the Master's order and a practice and procedure of
the court breached his Charter rights and the a priori principles of international law by
indirectly discriminting to deny him the courts services solely due to his status as an indigent
Canadina citizen deprived of his liberty abroad.
[500]That the defendant Bulgaria abnegating its positive international obligation, and duty to the
Applicant is a matter of the evidential record before the trial court. There is simply no law, or saving
international principle that appears to relieve the State of Bulgaria from its positive obligations and
human responsibilities to a person it has deprived of liberty.
44. A court of Canada has inherent jurisdiction over its own processes, this is incontrovertible.
45. A court of Canada has limited jurisdiction over a foreign state, this is made fact by the State
Immunity Act, S.C. 1980-81-82-83 c. 95 (now R.S.C. 1985, c. S-18).
46. The defendant government of Bulgaria is named as a state party to a suit in law before a
court of Canada. Therefore, until there is a judicial determination to the alternative the State
defendant is subject to the jurisdiction, practices and procedural processes of that court and
the laws of Canada.
47. A court of Canada has a positive obligation and constitutional duty, as naturally flow from
the principles of international law, to provide a remedy in law seen to guarantee in practice,
and not only in principle, the right of all parties to procedural fairness in a suit at law.
48. The defendant government of Bulgaria, and this plaintiff have, under law, equal procedural
rights and obligations in a suit at law before the provincial court.
50. The principles of international law, as flow from treaties and conventions ratified by the
governments of both Canada and Bulgaria, provide no saving provision exempting a State
from its positive international obligation, and duty to act responsively to guarantee
fundamental civil and human rights to persons it has deprived of liberty.
51. The principles of international law, and the national laws of both Bulgaria, and Canada
provide for a person deprived of liberty to be allowed or secured a means to access the courts
of law. Attendance in a judicial proceeding is a priori the right of all persons where his or
her legal or property interests, or those of others, are to be affected, notwithstanding the
foreign jurisdiction where such interests are to be prosecuted or defended.
[516]It appears, that the government and agencies of a state, any state, including Bulgaria, clearly incur a
legal - not only moral - liability, and duty to any person the State deprives of liberty. The principles of
comity and reciprocity within the international community require Bulgaria to observe its
international commitments in practice, not only in principle, Bulgaria having a positive obligation
and duty to respect the fundamental rights of foreign citizens before their own courts.
[517]International comity and reciprocity suggest, at least to this ignorant Applicant, there exists a positive
obligation and duty of Bulgaria found under law, to arrange with the responsible authorities of
Canada this Applicant's conduct in custody to the trail court. Absent a practice or procedure to do so,
Bulgaria to secure or allow a reasonable and effective alternative to the Applicant's appearance.
[518]The State of Bulgaria by refusing its international commitments to comity and reciprocity as well as
refusing to observe a practice and procedure under its national law has reversed the onus from itself
to the Applicant. The Defendant Bulgaria requiring the Applicant seek from prison his rights to
procedural fairness by intervention of the trial court, and to obtain the co-operation of the government
of Canada to secure his conduct in custody from the agencies of the said Defendant. The Applicant to
rely on the same international agreements, comity and reciprocity binding on Bulgaria when now
applying to Canada. The defendant government of Bulgaria apparently having taken comfort from the
fact of international comity and reciprocity making both the provincial court, and government of
Canada, in practice, understandably reticent to assist the Applicant.
[519]In the present enquiry comity and reciprocity can also serve the present Applicant and other plaintiffs.
The principle of comity appearing to be inoperable in saving the defendant Bulgaria for having
refused its international treaty obligations.
[520]The preceding discussion provides both context, and causus, to the Applicant having petitioned the
Master and Chambers Judge for judicial relief in the form of a subpoena and interlocutory order. It
only natural that the Applicant, a Canadian citizen and resident of British Columbia, would turn to
the jurisdiction of a provincial court to protect his and his family's legal and property interests.
[521]It is recalled that this enquiry into comity commenced with a question in the Applicant's mind if it
was reasonable to ask the Appeal Court to review, as a part of its enquiry, the Defendant Bulgaria's
conduct. This leading to a discussion on comity and reciprocity.
[522]There exists another more local element, the participation of a Crown servant as a defendant in the
proceedings before the trial court, and the negative restrictions as well as positive obligations of the
government of Canada under the present circumstances.
[523]What affects do the facts of the case at Bar, that admittedly appear somewhat extraordinary, to have
on the questions of international comity, reciprocity and the jurisdiction of the Appeal Court to hear
the complaints of the Defendant obstructing justice.
2.Questions
52. Do indigent Canadian citizens deprived of liberty abroad continue to retain their
constitutionally guaranteed rights in Canada?
53. Is it constitutional - lawful - for a practice and procedure of the court to create a property and
social barrier to a Canadian citizen's right to judicial review and remedy in a suit at law?
55. Are the international commitments of the defendant. the Republic of Bulgaria, and its
national law equally as binding on agencies of the government of Bulgaria when before the
lex fori of a British Columbia court, as party to a suit at law, as they would be binding on the
agency before the lex loci delecti of the Applicant's imprisonment?
4.2. Analysis
[558]There is no doubt the international community considers deprivation of liberty by its very nature to
poses special problems to the person affected. The "afflictive" nature of imprisonment recognisably
creating many of the negative restrictions as well as positive obligations of governments and the
courts discussed above. It is apparent these are a priori principles applicable to all democratic and
free states, Canada and Bulgaria being no exception.
[559]It is apparent from this discussion that deprivation of liberty poses severe handicaps to all indigent
prisoners attempting to develop a judicial remedy, and prosecute a civil complaint before the court of
competent jurisdiction. If indigence and imprisonment do not complicate matters enough for a
provincial trial court then we need only to add the factual circumstances to be found under the case
now before the Bar, inter alia, (1) a principle plaintiff and primary expert witness is a Canadian
citizen imprisoned outside of Canada, (2) one defendant before the provincial court is the foreign
State responsible for the said plaintiff's imprisonment, and the his family's person injuries and
property loses as suffered in British Columbia, (3) the Crown is alleged to be a party, and vicariously
responsible for the injuries and damages suffered by the plaintiffs in or connected to the province, (4)
the foreign State defendant has applied to the court insisting on its "absolute", not "restrictive"
immunity, the Defendant State refuses to recognise the jurisdiction of the provincial court or (5) its
positive international obligation and duty to arrange conduct before the court of the party opposing its
motion, and (6) the Crown, refuses to intervene despite the repeated petitions of the imprisoned
Plaintiff.
[560]The six (6) points become aggravated and even more complicated when adding into this already
extensive mix of controversies the real or imaged public interests of the defendant government of
Bulgaria. The said defendant conscious of the possible negative affects to its defence should it permit
the Canadian plaintiffs to fully realise their procedural rights under the "lex fori" and applicable
principles of international law to require the said defendant produce the Applicant, in custody, before
the court.
5.The Applications
5.1. Arguments
[574]In layman's terms the applications and the argument are along the following lines.
[575]The applications for additional time and indigent are reasonable, a posteriori, solely due to the
observable factual elements before the Appeal Court.
[576]The application for leave to appeal made reasonable due to the significance of the a priori rights
affected by the Master's order, and a practice and procedure impugned by its affect on a distinct and
disadvantaged group a part of Canadian society.
[577]Before proceeding to the Applications themselves it seems prudent to recall the following parts of the
preceding discussion within the context of the applications.
1.Time
"2. Whether the appellant had formed an intention to appeal within the time limits for
making an appeal;
"3. Whether the respondent was aware of the appellant's intention to appeal within the time
limits; and
"4. Whether any ground of substance was raised in the proposed appeal.
6.2. Whether the appellant had formed an intention to appeal in the time limits for an appeal:
[600]The Applicant formed his intention to appeal believing he had been the victim of indirect
discrimination, his rights as a litigant in Canada having been unfairly restricted solely as a result of
his indigence and deprivation of liberty.
[601]From June 25th 2001 [see § ] onward the Applicant communicated his intention in writing to the
SCBC Registrar, the Attorney General of British Columbia and the defendant Bulgaria. Later also
informing the Registrar of the B.C.A.C. by letter and substantive other electronic correspondence
from the Applicant's intermediaries in Bulgaria as well as several telephone conversations regarding
the intention of the Applicant.
[602]On the above cited date the Applicant posted as well as faxed the Legal Aid Society of British
Columbia. In his letter the Applicant formed his reasons to appeal the decision of His Lordship
Edwards, J. and was seeking legal aid counsel to pursue his appeal. Similar letters were posted to
other legal aid services in British Columbia. These requests went unanswered except for the Legal
Aid Society having rejecting the Applicant's request to provide its services to a prisoner in a suit at
law.
[603]It is apparent a posteriori that the Applicant's intention to appeal was formed immediately on his
learning, in Bulgaria, of His Lordship Edwards J. decision holding the Duty Master's reverse onus as
a reasonable limitation on the right to judicial review when petitioned by an indigent person deprived
of his liberty abroad.
[604]Counsel for the Defendant Bulgaria in Vancouver has at no time accused or protested to the Applicant
of attempting to "bushwhack" his client with the intended appeal.
6.3. Was the respondent aware of the appellant's intention to appeal within the time limits?
[605]For the reasons and circumstances cited above, and as a practical matter, it is unreasonable to
conclude that the defendant Bulgaria was unaware of Speaker's intention to appeal within the time
limits. The Speaker's written complaints of interference are evidence of his losing battle with
Bulgarian officials to meet to the time limits. There is the additional fact of all correspondence with
the B.C.A.C. Registrar on the subject of the appeal having been copied to the counsel for the
Defendant Bulgaria in Vancouver.
[606]Furthermore in his June 25th 2001 letter to the SCBC the Applicant identified the issues to be
appealed having copied the Ministry of Justice for the Defendant, the Deputy Minister Dimitar
Tonchev in Sofia, Bulgaria.
[607]Again on July 6th 2001 the intermediaries of the Applicant in Bulgaria provided Vancouver counsel
for the defendant Bulgaria copies of the Applicant's correspondence with officials of its government in
Sofia, Bulgaria. In particular Vancouver counsel was provided copies of correspondence exchanged
with the Defendant's Ministry of Justice regarding the Applicant's intention to clarify or vary the trial
Duty Master's order.
"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."
7.1.1.2.Jurisdiction
[631]The jurisdiction of the provincial courts of British Columbia and those of Canada over the defendant
Bulgaria are found in the exceptions to state immunity as established in the State Immunity Act [R.S.
1985, c. S-18], s. 9; 1995, c. 5, s.27 ("State Immunity Act"). The common law is clear on the
principles of restricted immunity. The trial court and Appeal Court have jurisdiction over officials,
agencies, instrumentalities or institutions of the Defendant, Government of the Republic of Bulgaria.
The exceptions relied on by the plaintiff(s) are found under the provisions of s. 4, s. 5, s.6 and s. 18 of
the State Immunity act. Case law noted by the plaintiffs includes, inter alio, Zodiac International
Products Inc. v. Polish Peoples Republic, (1977)C.A. 366, Kaufman, J.A. at p. 371 and Amanat Khan
v. Fredson Travel Inc. (No.2) (1982), 36 O.R.(2.d) 17, Steele. J.; also see House of Lords in: I
Congreso del Partido, [1983], A.C. 244(H.L.), Lord Wilberforce at. 262; and for American law see:
De Snachez v. Banco Central de Nicaragua (1985), 770 F.2d 1385, at p. 1393, Rush-Presbyterian-St.
Luke's Medical Centre v. Hellenic Republic (1989), 877 F.2.d 574, the courts there supporting the
principle of restrictive immunity over that of the absolute immunity claimed by the defendant
Bulgaria.
[632]The trial court's jurisdiction over the individual foreign defendants and defendant Bulgaria are found
in the exceptions provided under Rule 13(1), Rules of Court. Exceptions are provided, in jurisdiction
simpliciter for all claims that sound in contract or in tort that are connected to the province. The
plaintiff(s), on the basis of their documentary evidence, have collected and placed before the trail
court what amounts to a good prima facie arguable case and reasonable claims framed in contract or
tort, see: Huddart J., Northland Properties v. Equitable Trust Co, 1992, 71 B.C.L.R. (2d) 124
(B.C.S.C.); also see: Bushnell v. T & N plc (1992), 67 B.C.L.R. (2d) 33, 336 at 342 [1002] B.C.D.
Civ. 3714-03(C.A.).
7.1.1.3.Procedures Observed.
[635]The plaintiffs have exhausted every reasonable means to inform all the defendants, including the
defendant government of Bulgaria, and to afford the Crown the opportunity to respond should it seek
to do so.
[636]For service outside Canada to individual defendants on the territory of Bulgaria the Plaintiffs relied
on Rule 13(12)(c), Rules of Court, the Hague Convention of the Service Abroad of Judicial and Extra
Judicial Documents in Civil or Commercial Matters ("Hague Convention"). The Plaintiffs, when
effecting service of any documents or notice were sure to observe the declarations to the Hague
Convention as made by the Republic of Bulgaria.
[637]For direct service on the Defendant government agency of the Ministry of Finance, Republic of
Bulgaria, on the territory of Bulgaria, the Plaintiffs relied on the exceptions provided for in Canada's
State Immunity Act [R.S. 1985, c. S-18], s. 9; 1995, c. 5, s.27 ("State Immunity Act"), and that
procedure agreed to and legislated by the Republic of Bulgaria's under its (Bulgarian) State
Responsibility for Injuries Caused to Citizens Act, S.G. No. 60 August 5th 1988 and under its
(Bulgarian) Code on Civil Procedure Code Article 18(3).
[638]For diplomatic service, where called for, to the Defendant, the Government of the Republic of
Bulgaria, the Plaintiffs relied on s. 9(2) of the State Immunity Act, and engaged the services of
Canada's Ministry of Foreign Affairs.
[639]Plaintiff(s) claims against the Crown rely on the Crown Liability and Proceedings Act R.S., 1985, c.
C-50, s. 1; 1990, c. 8, s. 21, the Speaker having served the Deputy Attorney General of Canada with a
copy of his notices and petitions. Furthermore, on issues of constitutional validity the Speaker has
relied on the Constitutional Question Act [RSBC 1996] c. 68, having served the Attorney General of
the Province of British Columbia with copy of his notices and petitions.
[641]The Applicant does not believe his reasons and arguments before the Master as well as before the
Chambers Judge of the trial court or now intended Appeal Court are vexatious. Each petition
attempted to first address a serious and complex question of what constitutional duty the Master or
Chambers Judge had to observe a special standard of review, and duty to procedural fairness, when
practising and applying the Rules of Court in cases where a petitioner deprived of his or her liberty
and property would, as a result of a rules application, be extremely prejudiced or discriminated
against more than another person.
[642]Secondly, each of the Speaker's petitions raised before a Master or Chambers Judge, in aggravation of
the petitioners circumstances, certain facts proving a party to the proceeding (defendant Bulgaria) had
unacceptably acted to intimidate or otherwise obstruct the petitioner from exercising his or her rights
as a litigant before the court. Issues of obstruction of justice cannot be a subject matter to be taken
lightly under circumstances such as those found in the case at bar, being neither scandalous, frivolous
or vexatious, but of serious concern to the practice of law and application of equal justice.
[643]The proceedings before the trial court, on the one hand, concern contract rights and the commercial
activities engaged in by the parties in or connected to the province. On the other hand the proceedings
also concern pecuniary and non-pecuniary personal injuries suffered by the plaintiffs in the province.
The intended appeal concerns fundamental civil rights and obligations enshrined under a significant
body of principles to be found flowing from international law, composing the very essence of the most
primary of rights guaranteed to person deprived of their liberty under the government of a democracy.
[644]Canada's laws and the international community recognise the right of a person deprived of liberty to
protect his own legal rights and that of his families and their mutual property interests from unlawful
interference, encroachment or conversion by private or state parties as having been named in a suit at
law. These rights are not to be derogated from a person deprived of liberty any more than are the
rights of any other person a part of Canadian society, notwithstanding that he is at present
involuntarily detached from his home and Canada.
[645]The written petitions, and the intended appeal of the Speaker are a dialogue into the very nature of
the democratic and free state that Canada represents, one ruled by the principles of law as such
principles must always be moderated by the Canadian sense of fair play, equality, reason and
humanity. It cannot be scandalous, frivolous, or vexation to bring such a dialogue before the Appeal
Court.
7.3. "(c) The Application Is Otherwise an Abuse of the Process of the Court
[646]The Speaker and plaintiffs are also of the opinion that they have a good causes of action before the
trial court that sound in tort and in contract against the all the defendants, including the defendant
Bulgaria. The Applicant having attempted to disclose reasonable grounds for the claim in subsection
(a) above.
[647]The Speaker maintains that albeit he is a lay person and not trained or experienced in the practice of
law, he is nonetheless attempting to act responsibly towards the processes of the court. He attempts, in
full, often admittedly painful, detail to carefully lay out to the Appeal Court his research and
reasoning, hopeful the court will not view his efforts as an abuse of its processes.
[648]As seen from subsection (a), there is no merit to the claims by the defendant Bulgaria that the law suit
is an abuse of the courts process on the grounds of the its having absolute immunity before courts of
the province, ergo the law suit cannot possibly succeed. Any such argument by the defendant Bulgaria
is doomed to fail. The plaintiffs are residents of the province, they are its lawful resource users and so
entitled to prosecute their legitimate claims before its courts and to seek access as well as avail
themselves of the exceptional powers and inherent jurisdiction of the court. Under such circumstance
no reasonable action of the Applicant can be seen as an abuse of the courts processes.
"1. Whether the point on appeal is significant both to the litigation before the trial court and
to the practice in general;
"4. Most importantly, whether the appeal will unduly hinder the progress of the proceeding
in the trial court.
8.1. Whether the point on appeal is significant both to the litigation before the trial court and
to the practice in general;
1.Significance to the Litigation Standards
[651]This Applicant, as a layperson and one deprived of his liberty at that, makes no pretence to having
understood from a prison cell the historic and legal complexity of the points he raises. What the
Applicant can easily understand is the significance of the moral and practical consequences to family
members relying on him. Beyond the clarity of such human import remains the need to apply reason
where education are wanting, and so determine what significance, if any, the Applicant’s points have
to the practice.
[652]The intended appeal turns on what appear to be points of law. Expressed in the simple language of
the ignorant, the facts suggest the following.
[653]First, impugned by its affect is a legislation and common law rule. The exceptional prejudice and
wrong complained of having occurred on application of the legislation and rule to indigent Canadian
citizens deprived of liberty abroad. The constitutional question having two contexts, the provincial
legislation appearing ultra vires on its application to persons under criminal law jurisdiction, and the
common law rule, on application to the same group, maintaining a discriminatory practice based
solely on property or social status standard determined against presumed group characteristics. By
omission, the provincial legislation fails to accommodate the distinct characteristics of the affected
group. Its application to indigent citizens imprisoned abroad failing to satisfy minimal Charter
standards of negative restrictions as well as positive obligations found within the ambit of Federal
legislation. Indigent citizens deprived of their liberty abroad find themselves unable to gain access to
the provincial court to continue or defend their legal rights and obligations in a suit at law. The
Applicant relying on, inter alia, on the principles found in the cited Meiorin decision.
[654]Secondly, as further and in the alternative, the Duty Master as well as the Chambers Judge failed in
their positive duty to procedural fairness. No order or decision is reasonable, fair or just when
requiring one party (the Plaintiff) to do a certain thing or act that the other party (the Defendant)
wrongly restrains him or her from doing. This decision is made all the more unreasonable when
placing an onus compelling a person (the Plaintiff) deprived of liberty to appear or when indigent to
retain an attorney in order to continue or defend in a suit at law. Any judicial or non-judicial barrier
to the exercise of the fundamental and absolute right and liberty to seek judicial redress for a wrong is
by nature intrinsically flawed. Moreover, it is manifestly unjust to apply compulsion or coercion to a
detached member of Canadian society to overcome a property as well as self-determination standard
when in pursuit of his or her legal and property rights. To do so solely for the reason of he or she
being indigent and imprisoned abroad is manifestly ill founded.
7. The Legal Affect of the Order and Decision on Citizens of "other status";
"I am of the view that the proper approach to the threshold test of merit is that enunciated by
Lambert, J.A. in Rogers Foods (1982) Ltd. v. Federal Business Development Bank et al.
(1984), 57 B.C.L.R. 344 (C.A.). From that judgment I conclude that if the grounds of
appeal raised by the appellant have sufficient merit that it could not be said that the
appeal has no prospect of success, then the so-called "merit test" is met. That seems to
me to be akin to the "fair question to be tried" test which is applied on an application for
an interlocutory injunction, and that is the approach which I think should be taken in this
case."
[658]The Applicant submits that the points of his intended appeal meet the "fair question to be tried" test
enunciated by Wood J.A. in Mikado, supra. The Appeal Court here is asked to determine the merit of
the Applicant's appeal from the affects of a Duty Master's order. The order appealed having observed
a questionable practice and procedure standard of applying a reverse onus that a distinct group cannot
reasonably meet. The Applicant's maintains he is a member of a distinct disadvantaged group unable
to meet the discriminatory standards maintained by the courts practice and procedure. The foregoing
gives to the case at bar an arguable constitutional component having more than a reasonable prospect
of succeeding for the following reasons.
2.Might the Law Suit Merited
8.2.4.2.First, in its present form, the order as appealed acts to limit the legal rights of only
one party, the plaintiff
[677]The practice and procedure questioned grants discretionary power to a Master or Chambers Judge to
require prior to any judicial review or remedy (1) that the petitioner first appear, or (2) retain legal
counsel to appear for him. The power to order the petitioner to do so is clearly apparent as is the
power to limit his legal rights by ordering a stay on any further judicial actions until having complied
with the order. However, the order's reverse onus observably maintains a discriminatory standard on a
presumed set of characteristics based on the petitioner's status of self determination as well as
property.
[678]The Appellant found he could not meet the discriminatory standards of the Duty Master's order. On
petitioning the Master for some form of supplemental procedural accommodation the Appellant found
himself barred by the Duty Master from any further applications attempting to develop a judicial
remedy as well as limited in his right to continue or defend in the proceedings.
[679]On exercising his right of appeal to a Chambers Judge the Appellant objected to the Master's
application of an administrative practice and procedure maintaining a discriminatory property and
social standard that acts as a bar as well as a limit to his right as a citizen to prosecute or defend in a
suit at law. The Appellant was outside the presumed characteristics of the administrative standard
applied to him, having asked the Chambers Judge to assess him according to his personal
circumstances rather than the courts presumed characteristics. His Lordship asked to vary the Duty
Master's order to incorporate an accommodation having considered the hardships as well as
limitations of the Appellant.
[680]Not surprisingly His Lordship Edwards, J. maintained the discriminatory standards of the enactments
practice and procedure having found the affects of the Duty Master's order as reasonable. This bar as
well as limit to the Applicant's fundamental rights in a suit at law are apparently justified
notwithstanding the Applicant's having been deprived of his liberty and self determination as well as
property by the Defendant Bulgaria. The bar as well as limitations are to remain until the Appellant
as plaintiff could meet the discriminatory standards apparently fixed under the Court Rules Act.
8.2.4.3.Second, the practice and procedure applied to the case before the trial court acts to
unintentionally aid a state party that finds itself a defendant to a law suit.
[681]The petitioner alleged in writing before both a Master and Chambers Judge of the trial court that the
state defendant, the government of Bulgaria, had permitted its agencies to use physical and
psychological coercion to unlawfully deter or delay him in continuing or defending in the proceeding.
The plaintiffs and others have documented before the trial court the Defendant's acts of obstruction
and intimidation of the Appellant's family. The defendant Bulgaria's agencies using non-judicial
coercion as an unlawful means to succeed in the proceedings before the trial court.
[682]The distinction between intent and affect is again made. It is not suggested the practice and procedure
of the court as having a sole legislated purpose to bar as well as unreasonably limit legal rights to
plaintiffs deprived of liberty. Furthermore, under no circumstances is there a suggestion of a Master
or Chamber Judge having a personal prejudice in favour a State defendant's legal rights over the
rights of an indigent Canadian citizen deprived of liberty. However, the unreasonable limiting affects
on application of the court's discriminatory standard to this distinct group are incontrovertible.
[683]What is more disturbing to the plaintiffs is the trial court having favoured the defendant Bulgaria on
application of discriminatory standards the Appellant cannot possibly meet. The presumed
characteristics on self determination and property are standards the Master as well as Chambers
Judge knew or should have known as exceptionally as well as unreasonably prejudicing the Appellant.
On barring the Appellant from his fundamental right to develop a judicial remedy the Defendant
Bulgaria found no cause to cease and desist from any unacceptable interference with his legal rights
in the proceedings.
"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.
[695]Application of a reverse onus having at least limited one of two standard accommodations - appear or
hire a lawyer - unreasonably and unfairly limits incorporating a supplemental accommodation for a
group unable to meet the discriminatory standards. The Court Rules Act, Rules of Court fails, as we
have seen, to provide a necessary accommodation for a person deprived of liberty to "obtain such
remedy as the court considers appropriate and just in the circumstances" when seeking to exercise
his "rights or obligation" in a suit at law.
[696]Helpful to the court interpreting what a prisoners' minimal and fundamental rights are in a suit at law
are The Body of Principles for the Protection of All Persons Under Any Form of Detention or
Imprisonment as well as The Basic Principles for the Treatment of Prisoners previously touched on.
Like the SMRs, these instruments are binding on governments, including Canada, and provide
guidance to the courts to the extent that the norms set out in them and explicate the broader standards
contained in human rights treaties. They provide valuable points of international reference for the
courts on the intent of the relevant international law, and are documents that clearly reaffirm to the
courts the tenet that prisoners retain fundamental human and civil rights.
[697]As the most recent of these documents, the Basic Principles for the Treatment of Prisoners,
declares in Principle 5:
"Except for those limitations that are demonstrably necessitated by the fact of incarceration,
all prisoners shall retain the human rights and fundamental freedoms set out in the Universal
Declaration of Human Rights, and, where the State concerned is a party, the International
Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil
and Political Rights and the Optional Protocol thereto, as well as such other rights as are set
out in other United Nations covenants."
[698]Endorsing this philosophy in 1992, the United Nations Human Rights Committee explained that
states have "a positive obligation toward persons who are particularly vulnerable because of their
status as persons deprived of liberty", stating:
[699]The learned Chambers Judge ruled the Appellant's appeal and other applications be returned to him.
The learned Edwards J. having apparently found it reasonable to judge the Appellant against
presumed group characteristics, notwithstanding him being in the impoverished as well as harsh
custody of the defendant Bulgaria. A Master or Chambers Judge knew or should have known this to
be an impossible task and one that contravenes the very a prior element of equality and fairness
imbued through in Canadian human rights legislation as well as every international agreement cited..
[700]Apparently an order barring an indigent person deprived of his liberty from any future possibility to
develop a judicial remedy as well as continue or defend in a proceeding against a foreign State or the
Crown is reasonable for as long as he is unable to appear, or alternatively to pay for a lawyer to his
applications "spoken to." Both the learned Master as well as Chambers Judge Edwards, J. failed to
recognise the "hardship and constraint" that the order had on the Appellant or their "positive
obligation" towards a group made "particularly vulnerable because" of an obviously afflictive and
vulnerable status.
[701]Furthermore the order as well as impugned enactment is contrary to the principles of natural justice
and traditions of common law. The Duty Master's order can only been seen for its absolute nature of
denying a prisoner access to a court of law in Canada. There are no other practical or reasonable legal
affects attributable to the discriminatory standards the Master's order applies to those citizens
deprived of their liberty. Yet, such an order exists as well as having been confirmed in its
reasonableness by the Chamber Judge.
10. The Constitutional Rights of a Citizen Having an "other status" to Judicial Review;
15. The Legal Affect of the Order and Decision on Citizens of "other status";
"constitutional remedy" means a remedy under section 24 (1) of the Canadian Charter of
Rights and Freedoms other than a remedy consisting of the exclusion of evidence or
consequential on such exclusion;
the law must not be held to be invalid or inapplicable and the remedy must not be granted
until after notice of the challenge or application has been served on the Attorney General of
Canada and the Attorney General of British Columbia in accordance with this section.
[719]The Applicant recognised, before turning in earnest to the constitutional question, that at least in his
view any challenge on an administrative law basis has probably been largely foreclosed by decisions
of the courts of this province and others. By its nature an order or judgement made under the
Legislation according to Rule 41(16.5) (b) is pre-qualified to be eminently reasonable and just when
judged solely against presumed group characteristics. It is this "inherent reasonableness" that makes
any such administrative or quasi judicial decision so ill suited to challenge by the affected party or
judicial review by the appellate court.
8.3.1.2.Issues
[729]The Applicant's notification to the Attorney General of British Columbia was in compliance with s. 3
and s. 8(4) of the cited Constitutional Questions Act that read:
"3. In case the matter referred relates to the constitutional validity of all or part of an Act, the
Attorney General of Canada must be notified of the hearing, and must be heard if the
Attorney General of Canada sees fit.
(b) state
(c) state the day on which the challenge or application under subsection (2) or (3) is
to be argued, and
(5) The notice must be served at least 14 days before the day of argument unless the court
authorizes a shorter notice.
17. Is the Legislation constitutionally valid under the division of powers established by ss. 91
and 92 of the Constitution Act, 1867?
18. If the enactment is within the legislative competence of the Provincial Government under s.
92 of the Constitution Act, 1867, is there nevertheless a deprivation of a liberty protected by
s. 7 as well as a discriminatory practice restricted by s. 15(1) of the Charter of Rights and
Freedoms (the "Charter") on application to a distinct group?
19.
20. If there is a deprivation of a liberty protected by s. 7 as well as s. 15(1) of the Charter, does
the deprivation offend the principles of fundamental justice within the ambit of s. 7 as well
as s. 15(1) of the Charter?
21. If there is a breach of either or both a s. 7 as well as s. 15(1) Charter right, is the Legislation
nevertheless saved by s. 1 of the Charter?
22. If the right or liberty limited are ones saved by s. 1 of the Charter are the outstanding issues
that remain then based on administrative law principles pursuant to the Judicial Review
Procedure Act [RSBC 1996] c. 241?
23. If the Judicial Review Procedure Act (the "Act") applies, are then indigent Canadian citizen
deprived of liberty abroad limited or prohibited under s.4 of the Act from bringing a
proceeding referred to in s. 2?
24. Is it reasonable for a Duty Master or correct for a Chambers Judge to limit the nature of
applications from persons deprived of liberty, as well as the standard of their of review in a
proceeding under s. 2(1) of the Act for any reason other than those setout in s. 3 and s. 4 of
the Act?
25. If a common law rule permits application of a discriminatory standard prohibiting the nature
of applications under s. 2 of the Act as well as a limitating the standard of their review, is it
then reasonabe and correct to apply this discriminatory standard to indigent citizens
deprived of their liberty abroad when solely based on a his or her personal ability or inability
on application to meet presumed group characteristics of other applicants.?
26. If the application of a property and social discriminatory standard is in and of itself
reasonable and correct under the common law, notwhithstanding that indivdual assessment
of personal abilities and limitations would prove otherwise, are its legal affects according to
prevailing human rights legislation and superior court decisions as equally reasonable and
correct when applied to indigent Canadian citizens deprived of their libery abroad who
cannot meet presumed group characteristics?
2.Is the enactment constitutionally valid under the division of powers established by ss. 91 and 92
of the Constitution Act, 1867?
A law's "matter" is its leading feature or true character, often described as its pith and
substance: Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.), at p.
587; see also Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286. There is no single test
for a law's pith and substance. The approach must be flexible and a technical, formalistic
approach is to be avoided. See Hogg, Constitutional Law of Canada (3rd ed.) 1992), vol. 1,
at p. 15-13. While both the purpose and effect of the law are relevant considerations in the
process of characterization (see, e.g., Attorney-General for Alberta v. Attorney-General for
Canada, [1939] A.C. 117 (P.C.) (the Alberta Bank Taxation Reference), at p. 130; Starr v.
Houlden, [1990] 1 S.C.R. 1366, at pp. 1389, 1392), it is often the case that the legislation's
dominant purpose or aim is the key to constitutional validity. Rand J. put it this way in
Switzman v. Elbling, [1957] S.C.R. 285, at pp. 302-3:
"The detailed distribution made by ss. 91 and 92 places limits to direct and immediate
purposes of provincial action. The settled principle that calls for a determination of the "real
character", the "pith and substance", of what purports to be enacted and whether it is
"colourable" or is intended to effect its ostensible object, means that the true nature of the
legislative act, its substance in purpose, must lie within s. 92 or some other endowment of
provincial power."
[732]A reading of the impugned part of the Court Rules Act is Section 1 seems a good place to start an
enquiry into the matter of the law in the Court Rules Act:
Rules Of Court
"1 (1) The Lieutenant Governor in Council may, by regulation, make rules that the
Lieutenant Governor in Council considers necessary or advisable governing the conduct of
proceedings in the Court of Appeal, the Supreme Court and the Provincial Court.
"(2) Without limiting subsection (1), the rules may govern one or more of the following:
"(b) the means by which particular facts may be proved and the mode by which evidence
may be given;
"(b.2) ….
"(16.5) If an application is referred by the registrar to a judge or master under subrule (16.2)
or (16.4), the judge or master to whom the application is referred may
[735]Briefly stated, Rule 41 has a purpose or aim to establish a practice and procedure for the settlement of
orders. It is usually under the rule for counsel or the lay litigant (the "Applicant"), seeking to settle an
order, to take out an appointment before the registrar and serve opposing counsel if required.
[736]Apparently sub-rule (16.5) [Rule 41] is applied in cases where a Registrar is either unable to make a
determination, and will reasonably not attempt interpreting the petitions, instead referring the matter
to the judge or master who can make such a determination [See Abbott v. Andrews (1882), 8 Q.B.D.
648; Avery & Son v. Parks (1917), 35 D.L.R. 71 (Ont. C.A.)] or alternatively, once satisfied an
application is complete will then refer it for determination.
[737]The impugned Legislation allows under provision (b) under sub-rule (16.5) [Rule 41] for a Master or
Chambers Judge unprepared to judicially review or determine application(s) in a petitioner's (the
"Applicant's") absence to require the application be "spoken to.", in proprio persona before the court.
The Court Rules Act appears to make compulsory the application of a discriminatory standard in the
form of a reverse onus on the petitioner to comply with presumed group characteristics as well as
what appears to be a common law rule to limit or prohibit further any action to continue or defend in
proceedings, making exception only those petitioners who are able to meet presumed group property
and social characteristics. The Legislation as well engages the statutory power of compulsion or
coercion when prohibiting or limiting a petitioner (the "Applicant") from any further right of
application.
[738]It is observable the Legislation, Rules of Court, provide no off setting supplemental accommodation to
individually assess those Canadian citizens unable to meet the discriminatory standards of presumed
group characteristics. Also unclear from the Legislation is what legal principle or common law rule is
operating to permit a discriminatory standard solely based on a persons presumed property and social
characteristics as well as to use compulsion or coercion to maintain the standards.
[739]Provisions under Rule 40 [subrules 40(8) and 40(40)] and Rule 56, Rules of Court do provide a
limited form of supplemental accommodation to obtain evidence from witnesses unable to appear as
well as allowing a Master or Chambers Judge to summon an incarcerated witness or hear an urgent
matter electronically. However, these particular procedures are not helpful in overcoming the
discriminatory standards.
"In determining the background, context and purpose of challenged legislation, the court is
entitled to refer to extrinsic evidence of various kinds provided it is relevant and not
inherently unreliable: Reference re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at
p. 723, per Dickson J.
This clearly includes related legislation (such as, in this case, the March regulations and
the former s. 251 of the Criminal Code), and evidence of the "mischief" at which the
legislation is directed: Alberta Bank Taxation Reference, supra, at pp. 130-33. It also
includes legislative history, in the sense of the events that occurred during drafting and
enactment; as Ritchie J., concurring in Reference re Anti-Inflation Act, supra, wrote at p.
437, it is "not only permissible but essential" to consider the material the legislature
had before it when the statute was enacted.
[749]The Applicant's much earlier discussion on the development of international law as later incorporated
into Canada's legislative landscape was developed as significant "related legislation" and "essential"
when judging Federal Government policies as well as applicable legal principles in determining the
fundamental rights and liberties of all persons in a suit at law, notwithstanding that they are indigent
citizens deprived of liberty abroad.
[750]The Applicant's extrinsic background evidence of the sort referred to by Sopinka J. in Morgentaler
supra, as detailed in Part I of this Memorandum is the evidence of the "mischief" of bias and
historical prejudice towards a distinct group having "other status." If understanding Sopinka J.
properly then the "mischief" at which Federal legislation as well as international human rights
agreements are directed are materials the Lieutenant Governor in Council had before him when
establishing a practice and procedure policy of maintaining as well as applying a discriminatory
standard of presumed group characteristics to indigent persons deprived of liberty.
8.3.2.2.Division of Powers
[752]The Applicant, in his naiveté, considered the division of powers issue in the following way.
[753]The Legislation on its face is intra vires the Province. However, it must be recalled that the Applicant
is a Canadian citizen deprived of his self determination solely due to criminal law, notwithstanding it
is done so by a foreign State. Furthermore, any specific restriction on a citizen's fundamental rights
and liberties when under incarceration, including civil and property rights in a suit at law, appear to
be the dominate purpose or aim of criminal law and therefore a paramount function within the
exclusive jurisdiction of Parliament under s. 91(27) of the Constitution Act, 1867.
[754]The affects on the Applicant of the impugned part of the Legislation's practice and procedure require
little discussion as they are readily made apparent by the facts before the court. To determine the pith
and substance of a law, as well as its true colouring, requires close examining of the impugned
Legislation in the context of its affects on application to a distinct group and not only the dominate
purpose or aim set down in s.1.
[755]What is significant? First that the Legislation maintains, although it does not expressly allow, a
discriminatory standard based solely on presumed group characteristics of property and self-
determination within the main stream of Canadian society.
[756]Second and equally as significant is that the Legislation omits, although it does not expressly forbid, a
positive obligation for individual assessment of applications for judicial review as well as an
accommodation standard providing procedural relief to those persons who cannot meet presumed
group characteristics of personal property and self determination.
[757]Thirdly, and significant to the division of powers enquiry, is that the Legislation makes it compulsory,
although not expressly so stating, to apply to any person who cannot meet presumed group
characteristics a sanction, penalty or punishment in the form of a prohibition from, or limitation on
the right of judicial review as well as to future applications to continue or defend in a proceeding to
be lifted solely on the affected party having met the order's discriminatory onus.
[758]Fourth, and particularly significant to the division of powers enquiry, is that the Legislation omits,
although it does not expressly forbid, a negative restriction on application of its discriminatory
standard as well as any consequential sanction, penalty or punishment, to those persons whose
fundamental rights and liberties are determined under criminal law as well as other federal
jurisdiction. The application to indigent persons deprived of liberty of an administrative or quasi-
judicial sanction; penalty or punishment solely determined on their ability to meet one of two
discriminatory standards - property or self-determination - proves when they cannot meet them, a
form of addition punitive censure in excess of that already prescribed under criminal law.
[759]The Applicant's division of powers argument turns on the fact that the Legislation is administrative
law and must restrict its immediate purpose as well as direct and indirect affects to individual
property and civil rights under private law. The Legislation is open to constitutional challenge when
an administrative, quasi-judicial or judicial order under the Legislation acts to create a precondition
as well as a additional censure derogating beyond what is already prescribed by federal law the
fundamental rights and liberties of persons under criminal law jurisdiction. The Legislation, as well
as common law rule, is open to Charter challenge for maintaining a discriminatory standard engaging
the statutory power of compulsion to censure persons who cannot meet presumed group
characteristics.
" Definitions
"(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or
"(b)….
"(c) to require a person to do or to refrain from doing an act or thing that, but for that
requirement, the person would not be required by law to do or to refrain from doing,
"(d)….
"(e) to make an investigation or inquiry into a person's legal right, power, privilege,
immunity, duty or liability;
[761]Finding themselves outside presumed group characteristics the affected person is censured by a
Master or Chambers Judge Order prohibiting the affected party from continuing or defending their
property and civil rights interests in a suit at law. The Legislation's exceptional prejudice is solely due
to a person's property status as an indigent citizen detached from the main stream of Canadian
society.
[762]What is of significance to the present constitutional enquiry is this statutory power of compulsion
"[1(c)] to require a person to do or to refrain from doing an act or thing that, but for the
requirement, the person would not be required by law to do or to refrain from doing." The Master
derived this authority under a statue found under the Supreme Court Act [RSBC 1996] c. 443, as
follows:
"Definitions
"Masters
"(7) A master has, subject to the limitations of section 96 of the Constitution Act, 1867, the
same jurisdiction under any enactment or the Rules of Court as a judge in chambers
unless, in respect of any matter, the Chief Justice has given a direction that a master is not to
exercise that jurisdiction.
8.3.2.3.Colourability Doctrine
[773]The "colourability" doctrine is described by Professor Hogg, in Constitutional Law of Canada, 4th ed.
(Toronto: Carswell 1997) at 392, "[t]he `colourability' doctrine is involved when a statute bears the
formal trappings of a matter within jurisdiction but in reality is addressed to matter outside
jurisdiction." The Applicant attempts to apply this doctrine to the present context as follows.
[774]At the risk of being redundant the Applicant recalls as having established from the facts that the
impugned Legislation observably maintains a discriminatory standard where applicants are assessed
not individually but only against presumed group characteristics. This discriminatory standard is
applied by a Master or Chambers Judge when making a determination under Rule 41, Rules of Court,
on the hearing of any petition under s.2 of the Judicial Review Procedures Act as well as any
applications under the Rules to continue or defend in proceeding. The common law rule and practice
under the impugned Legislation is for a Master or Chambers Judge, after a quasi-judicial review of
the petition or application of a party, to fix an order of absolute prohibition on any further petitions
for judicial review or applications to continue or defend in a proceeding until the discriminatory
standard is satisfied by the party subject to the order.
"In any event, the colourability doctrine really just restates the basic rule, applicable in
this case as much as any other, that form alone is not controlling in the determination of
constitutional character, and that the court will examine the substance of the legislation to
determine what the legislature is really doing"
[781]As a result of the foregoing the impugned part of the Legislation is ultra vires, the province. What
Legislation "is really doing" is practising a form of indirect discrimination when allocating provincial
court resources. Its net affect is to only sanction, penalise, or punish any distinct group or person who
cannot, for one reason or another, meet presumed group characteristics of property and self-
determination. On application of the foregoing to indigence persons having an alleged criminal
misconduct and as a result remanded to the custody of the State the affects are absolute, taking on the
form of prohibitions or limitation of fundamental rights and liberties beyond what is prescribed under
criminal or correctional services legislation. This is a matter outside provincial jurisdiction and
something the Legislation cannot do directly [see Hogg, Constitutional Law of Canada, supra, at 394]
so does it indirectly. A Master or Chambers Judge exceeds the jurisdiction of the Legislation as well
as its stated aim when ordering derogation from fundamental rights or liberties of indigent
incarcerated persons that are otherwise not prohibited or limited under federal legislation. In pith and
substance determining a form of indirect punishment having a class of subject specified under the
criminal code and other related enactments. This at least suggests, if not proves the Legislation
having thereby invaded the exclusive jurisdiction of Parliament.
"In my view, the purpose and effect of ss. 263.1 and 263.2 are to regulate and control traffic
upon provincial highways and roads and are therefore clearly within the exclusive rights
granted to the Province under s. 92(13) of the Constitution Act, 1867. Provincial legislation
and enactments which have as their purpose the regulation of property and civil rights
and which are not in conflict with express legislation enacted under the Federal
criminal law have been held to be intra vires the provincial legislature. The suspension
of the driver's licence imposed under the sections in question is in my opinion an
administrative act and a civil consequence of one of two wrongs committed by an
individual. It is not punishment such as to bring the matter within the exclusive
jurisdiction of the Federal Parliament. (See Ross v. Registrar of Motor Vehicles and the
Attorney General of Ontario (1973), 14 C.C.C. (2d) 322 (S.C.C.).)
"I therefore hold that the impugned sections of the Act are in pith and substance property
and civil rights. The sections do not impinge upon and are not in conflict with Federal
legislation and are thus intra vires the jurisdiction of the Province of Manitoba. (See
Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R., 161; R. v. Francis, [1988] 1 S.C.R.
1025; Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.), [1958] S.C.R. 608.)
Charter
"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.
[795]There natural follows a need to find some respected authority that will support the Applicant's
suppositions to what the Charter may be applied.
[796]For better or worse the Applicant developed his own order of hierarchy. The first of issue to be
established having turned on if the Charter could be applied to impugned legislation. The question to
be satisfied is if not only is it reasonable to apply the Charter, but is it a part of the practice generally
to do so.
[797]The Applicant 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."
[798]In order of hierarchy, according to the Applicant's reasoning, there is a question of applying the
Charter to a common law rule employed under the impugned Legislation. Here the Applicant 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:
"(a) interpretating the common law in light of the values underlying the Charter
"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."
[799]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."
[800]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."
"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.
...
...
[802]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."
[803]Last in the Applicant's order of hierarchy, as well as the last in the chain of events leading to the
intended appeal, are the consequential orders or decisions grounded in the common law rule flowing
from s.1 of the impugned Legislation. Here, the practice and procedure of applying a discriminatory
standard relies on a common law rule having engaged the coercive power and compulsory over an
individual in the nature of an order fixed by a Master or Chambers Judge. Mr. Hogg in his
Constitution Law (supra) writes that it is this power of coercion that provides the source for
application of the Charter, (p. 34-12):
"The Charter applies to the exercise of statutory authority regardless of whether the actor is
part of the government or is controlled by the government. It is the exertion of a power of
compulsion granted by statute that causes the Charter to apply."
[804]The learned Cory J. in Manning supra concluded the Charter applied to the common law
notwithstanding if s.32 (1) was engaged, here the Applicant believes government action was involved
for the following reasons.
[805]The nature of the Master's order, its purpose or aim can only be to advance the governmental scheme
developed under s.1 of the impugned Legislation for regulating the courts services, and provides a
second element of s.32 (1) operating to engage the Charter. The Applicant's reasoning is garnered
from a reading of the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General)
(1997), 151 D.L.R. (4th) 577, there the court decided to broadly apply the Charter under the
circumstances of an administrative or quasi-judicial decision or order, mutatis mutandis, not unlike
the Master's order and Chamber Judge decision in the case at bar. This is due in large part to the
direct, and indirect, public dimension of their roles when carrying out the government's scheme of
regulations, regardless of whether the actor is part of the government.
[806]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.
8.3.3.2.Discussion
[810]Applicant'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.
[811]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.
[812]To bring the present preceding before the Appeal Court within the context of a constitutional
challenge it was necessary the Applicant turn to the affects of the Legislation through the practice and
procedure created, as well as omitted, under it.
[813]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).
[814]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 Applicant's grievances.
[815]The consequential order leading to the Applicant's grievances has, as previously discussed, a nature of
an administrative or quasi-judicial practice and procedure.
"The Charter neither provides constitutional protection for all human activities nor a remedy
for every grievance."
[820]From this insight the Applicant 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 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
Speaker is that speedy and cost effective dispensation of justice is not always a fair and equal
application of justice to persons having lost their self-determination, livelihood and property.
[821]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 Applicant.
"Your recent desk order applications were referred to the Duty Master. The Duty Master
reviewed your applications and ordered all your applications must be spoken to. Therefore, I
am returning your applications.
Brent Messenger
Manager, Civil Programs
Vancouver Law Courts"
[824]To the Applicant, it appears from the wording of the Order, that the Duty Master's role here is a
quasi-judicial one advancing a discriminatory standard and regulatory scheme of the government. Its
intent is to compel an appearance before the court of the petitioner or his attorney. The Duty Master
exercises the power of compulsion over a petitioner (the "Applicant") to advance the provincial
government's regulatory scheme. The common law rule is to judge all applicants according to
presumed group characters and to limit the means or mode of access to the court for judicial review of
applications to those applicants who can meet the standards. Neither the nature of the applications or
individual abilities of the applicant are judicially assessed
"Judicial direction is sought from His Honour as to the practical matter of how best might
the Charter rights of the Plaintiff be guaranteed."
"1. The Order manifests as its practical consequence a violation of ss. 15(1) Charter rights of
the plaintiff."
"2. The Order effectively discriminates against a class of litigant that, due to circumstances
beyond his or her control, could not reasonably be expected to attend court of his or her own
initiative or free will and in the absence of financial resources to secure legal counsel."
"3. The Order has a further practical consequence, it obstructs the ss. 24(1) Charter rights of
the Plaintiffs. In the Master requiring the Plaintiff do something that it is apparent from the
facts he cannot possibly do without the court to assist, the Master has imposed, as a vicarious
element of his Order, a procedural obstruction to exercising a Charter guaranteed right."
[829]There is some discrepancy in the dates appearing on the Registrar's correspondence to the Speaker
and the actual date of events. Setting aside what appears a typographical error on the part of the
Registrar, it can be seen from the course of the proceedings that the Speaker was provided the
decision of Chambers Judge also on April 18th 2001. What follows is the notice of the Registrar:
"Dear Sir,
"I referred your Notice of Appeal from the Duty Master to the Honourable Mr. Justice E.R.A.
Edwards. His Lordship reviewed your application and directed no further steps be taken, by
the plaintiff, until a representative of the plaintiff speaks to this matter in Court.
"As I stated in previous correspondence, one of the following agencies may be able to assist
you in this matter. [List of legal aid agencies follows]"
[830]As it can be seen the Chambers Judge agreed with the Master's assessment of the government
regulatory scheme and common law practice and procedure applied to all circumstances as that of the
case now at bar.
8.3.3.3.C Discussion
[831]To use the Registrar's words applications are "reviewed". However, it seems only an extemporaneously
review not having any judicial quality but the "quasi-judicially" one that naturally extends to all
enactments concerned with administering court resources and proceedings. Reference to this "quasi-
judicial" role and power of a Master or Chambers Judge can be found under the Interpretation Act
[RSBC 1996]c. 238:
"19 (1) If by an enactment judicial or quasi judicial powers are given to a judge or
officer of a court, the judge or officer in exercising the powers does so in his or her official
capacity and representing the court.
"(2)….
"39 The definitions section of the Supreme Court Act, so far as the terms defined can be
applied, extends to all enactments relating to legal proceedings.
[832]Apparently, a Duty Master or Chambers Judge, after having made an extemporaneous or quasi-
judicial review of an application, then applies the common law rule allowing a direction to the
Registrar for returning all application(s) to a petitioner. Also the Registrar is directed from accepting
any future applications for judicial review or remedy until such time as the petitioner complies with
the Order that he, or his legal representative, bring in proprio persona the applications before a
Master or Chambers Judge, to have them "spoken to". It appears that the common law rule developed
as a practice and procedure of the Court Rules Act, Rules of Court under the provisions of Rule 41,
subrule 16.5(b) that reads as follows:
[833]The direction to the Registrar and order to the Applicant that "no further steps be taken, by the
plaintiff, until a representative of the plaintiff speaks to this matter in Court" appears only to advance
the interest of the government's regulatory objective of cost effective and expeditious administration
of the courts processes in the name of the well-being of the public.
[834]In the order to the Applicant, the Master does not speaks to its legal affects, and the consequential
decision of the Chambers Judge and his direction to the Registrar proves only to be an administrative
sanction on a right and liberty of the Applicant to seek legal redress through the courts. It to be
recalled the Applicant is barred from bringing applications to continue, or defend in a proceeding, as
well as limited in his right to participate in hearings.
[835]On the basis of the immediately preceding discussion the Applicant arrived at a conclusion that the
Legislation must be constitutionally invalid by virtue of the fact that both the order and decision
affecting the Applicant's rights was not arrived at judicially, notwithstanding that both the order and
decision are taken by a Master or Chambers Judge on the basis of a common law rule.
[836]The point being that both the Duty Master's order and the Chambers Judge decision as applied to the
Applicant have a sole purpose and aim of only furthering a regulatory scheme of the provincial
government. The particular government action in which the Master as well as Chambers Judge were
engaged in the present case is clearly an administrative or quasi-judicial one observing as well as
enforcing the stated purpose or aim of s. 1 of the Court Rules Act. Therefore, when directly
prohibiting as well as limiting certain of the Applicant's fundamental rights and liberties it was done
indirectly under the impugned Legislation solely in order to further a government regulatory scheme.
[837]It is because of the interconnected matrix of the impugned Legislation's immediate purpose or aim to
statutory as well as common law rules and powers that the Applicant chooses to examine each
possible variation on how the Charter might be applied in the case of the Legislation as well as the
common law rule.
"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."
[847]
[848]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
Applicant 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?"
"(B) Is the claimant subject to differential treatment based on one or more enumerated and
analogous grounds?
and
[849]Charter 15.
[850]Returning to the criteria in Law v. Minister, supra.
[851]The Applicant has established evidence to prove the answer to (A)(a) in the case at bar, is "YES", the
impugned Legislation maintains or at best permits a discriminatory standard to be applied to all
persons. The standard, by a reverse onus, indirectly draws a formal distinction on two of the
Applicant's personal characteristics, property and his power of self-determination. The facts and
common sense prove the answer to (A) (b) to as well be "YES", the impugned Legislation clearly fails
or omits taking into account the already afflictive and disadvantaged status of the Applicant as an
indigent Canadian citizen deprived of his liberty abroad. Personal characteristics that must
imminently result in substantially different treatment than that expected by other Canadians who are
able to meet the Legislation's presumed group characteristics.
[852]The answer to (B) must as well be "YES", given that for so long as the grounds enumerated in (A) are
true, and the reverse onus maintaining the discriminatory standard remains in effect. The Applicant is
absolutely prohibited first as a practical matter of his imprisonment and then from affects of the
reverse onus, from petitioning the court as well as limited in any future action to continue or defend
in the proceeding.
[853]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.
[854]The prohibition and limitations placed on the Applicant by the Legislation prove an undeserved
sanction, penalty or punishment, having left the Applicant 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 Applicant that all
indigent Canadian citizens deprived of their liberty abroad are nonetheless equally deserving of
concern, respect, and consideration within 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.
[855]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.
[856]
[857]The Speaker places reliance on this two step approach as had been applied in both the cited cases.
The Court there was considering the right to freedom of expression (s. 2(b)) but the prescribed
method of analysis appears to be of general application and useful to the present enquire into s. 15(1).
[858]
[859]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.
"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."
8.3.3.4.
2. [16] The germane provisions of the Charter relating to defamation law are set out in s.2(b), which
reads:
4. ...
5. (b) freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;"
6. ...
[875]
[876]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 Applicant's second grievance.
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:
"7. Everyone has the right to life, liberty and security of the person and the right not be
deprived thereof except in accordance with the principles of fundamental justice.
"15(1). Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability."
7. 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.
9. 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.
11. Discussion
13. 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:
14. " 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.”
15. Nemetz C.J.B.C. was considering a question that the Applicant finds a lesser “right to liberty”
than that of having his having a right to appear before of Canadian Court of Law;
16. "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.
17. 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.
[879] 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:
[880] "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
[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".
"Definitions
"2 (1) An application for judicial review is an originating application and must be brought by
petition.
"(2) On an application for judicial review, the court may grant any relief that the applicant
would be entitled to in any one or more of the proceedings for:
"Error of law
"3 The court's power to set aside a decision because of error of law on the face of the record
on an application for relief in the nature of certiorari is extended so that it applies to an
application for judicial review in relation to a decision made in the exercise of a statutory
power of decision to the extent it is not limited or precluded by the enactment conferring the
power of decision.
"9(1) On application for judicial review of a statutory power of decision, may refuse relief if
"(a) the sole ground for relief established is a defect in form or a technical irregularity, and
"(2) If the decision has already been made, the court may make an order validating the
decision despite the defect, to have effect from a time and on terms the court considers
appropriate.
"11 An application for judicial review is not barred by passage of time unless
"(b) the court considers that substantial prejudice or hardship will result to any other person
affected by reason of delay.
"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.
[893]The Speaker believes that there existed a statutory duty of care by the Master to judicially review
petitions made by a prisoner for any interlocutory order or such other procedural relief or judgment.
The Master allowing the prisoner's applications according to the circumstances of the petitioner, the
court finding a reasonable judicial remedy and procedural remedy to the limitations imposed by such
circumstances as indigence and the deprivation of liberty. The order, as stated earlier, was
unreasonable in that it placed a reverse onus on a petitioner seeking the procedural relief from an
"afflictive state", such relief first necessary to having his applications heard. The Master directing an
indigent person retain an attorney to speak to an indigence application is mildly somewhat
paradoxical, as it is equally unreasonable to place a reverse onus on a prisoner to find his own way
before the court from a penitentiary. The Master had placed no onus on the state agency responsible
for these factors and a party to the proceedings.
"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;
"(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.).]
[905]The present appeal is brought as a case of indirect discrimination affecting a specific group to which
the Speaker belongs. It was so argued before the Chambers Judge and is done so again now. The
Speaker does not believe that the abolition in MEIORIN of a distinction between direct and indirect
discrimination will greatly affect the result of his appeal, however the words and reasons found there
give substance to his analysis and arguments.
[906]It is for these reasons the Speaker suggests this first factor: Whether the point on appeal is significant
both to the litigation before the trial court and to the practice in general can be disposed of by relying
on the previously cited Smith v. Ontario (AG) supra. The intended point advances to the Court of
Appeal a theory that the Speaker is a member of a small group of incarcerated and impoverished
Canadian citizens that are "exceptionally prejudiced", more than any other citizen, in the application
of the impugned Rule 41(16.5)(b), Rules of the Court.
9.Do the Impugned Rules Offend Section 15(1) Beyond the Extent of the Freedom Guaranteed
Under Section 1?
[907]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.
[908]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.
[909]There is sound reason why the prohibition that applications only be spoken to in person or through
counsel should fall within the sphere of the limits on freedom enshrined in s. 1. Of course, whether,
they should be restricted, and the extent to which they should be restricted, arises later in the Charter
analysis under s. 1.
[910]On the second question to be addressed at this point in the analysis -- neither the purpose nor the
effect of the impugned Rules is to prohibit incarcerated and indigents their access to the courts is, in
my view, only well well-founded as to the issue the effect and not the purpose. The Speaker considers
this line of authority sufficient for him to believe the first question disposed of and what must be
addressed in determining whether the impugned Rules offend s.1. of the Charter.
[911]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?
"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.
[914]At least with respect to the impugned parts of Rule 41, it appears to the Speaker that one intended
purpose was to prohibit abuses of the courts resources and to serve justice by requiring certain
applications be brought in proprio person of the applicant before a Master or Judge and then "spoken
to", the impugned part of Rule 41 promulgated as one constituent element in the administrative
dispensation of frivolous applications. The purpose of the impugned Rules is plainly to create a
barrier or prohibition to frivolous procedural activity by lay litigants and to limit the courts need to
process such applications. But even if that is not right, the unquestioned effect of Rules 41(16.5) (b)
on its application to the indigent prisoner is to prohibit him or her from prosecuting their law suit to
the fullest extend provided for in law, this prohibition having no regard, as indicated, to the merits of
any such returned application, instead it relies on an appearance presence before the court. Indeed, on
application to an indigent prisoner, such a prohibition is virtually absolute in its effect.
[915]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.
[916]This purposive approach, the Speaker believes, should be employed in the present enquiry on
interpreting the intent and the effect of the impugned provision ( Rule 4(16.5)(b)) of the Court Rules
Act [RSBC 1996] c. 80, Rules of Court, or alternatively any decision or practice (the Duty Masters
Order) grounded on the impugned part of the provision applied. Always bearing in mind the
considerations given by the Supreme Court of Canada to any such analysis of intent or effect.
[917]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 Speaker as to the significance of the point to the proceeding before the trial court.
10.Vagueness
[918]Vagueness is an additional factor that influences the Speaker's present inquire into the impugned
Rules, a law may be so vague as to be found to be unconstitutional if it "so lacks in precision as to not
give sufficient guidance for legal debate", or "does not sufficiently delineate any area of risk, and thus
can provide neither fair notice to the citizen nor a limitation of enforcement discretion" as enunciated
by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 639, 643. The
Court says at 630:
and at 632:
"As was said by this Court in Osborne and Butler, the threshold for finding a law
vague is relatively high. So far discussion of the content of the notion has evolved around
intelligibility."
"(a) the need for flexibility and the interpretative role of the courts;
"(c) the possibility that many varying judicial interpretations of a given disposition
may exist and perhaps coexist.
[919]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.'
[920]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:
" 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."
[921]The Speaker believes the words found in Rule 41(16.5) (b) that "applications be spoken to" are most
certainly and intentionally vague, when applied to the circumstances of an indigent prisoner the
words become ambiguous, confusing and "so lacks in precision as to not give sufficient guidance for
legal debate” as to the method "applications be spoken to" by an indigent prisoner. There few such
methods are found among the provisions of the impugned Rules as to how an indigent and
imprisoned person is to comply with the words. It is this reason the Speaker believes the factors
enunciated by Gonthier J. in R., supra, items (a), (b) and (c) are satisfied. At least to this Speaker he
can say the impugned part of Rule 41 is "vague" since it puts forth no identifiable or intelligible
means of compliance for a prisoner stripped of his self-determination and living in poverty.
11.S. 1 Overbreadth
" Obviously, where other means present themselves which would achieve the same
objective with less intrusion upon entrenched constitutional interests, such means are to be
preferred."
[927]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.
[933]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 Speaker considers he should address: rationality
and proportionality.
[934]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.
[935]The Speaker found, mutatis mutandis, the conclusion of the Honourable Cromwell, J.A. most
illuminating as to the difficulties of prisoners, in R. v. Wood (J.D.) (1999), 180 N.S.R. (2d) 110 (CA);
557 A.P.R. 110, His Lordship of the Nova Scotia Court of Appeal said; "The appellant is not
represented by counsel and, therefore, it being a prisoner's appeal, it is the responsibility of the Crown
to prepare the appeal book for use of the court." In a civil proceeding the Crown, rightly, has no such
burden, but instead a duty to avoid legislation so vague or overbroad as to have a deleterious effect
only on a prisoners' fundamental rights.
Do the measures impair the freedom in question in the least drastic manner
necessary to achieve the objective; and,
[937]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.
[938]The Speaker has only his reason and logic to rely on for justification. His constitutional claims are a
matter of the evidentiary proof found in the opprobrious effect that the impugned prohibition has
affected when the Duty Master applied the impugned rule to a prisoner as he would have any other
person.
[939]Here the Speaker, as a lay litigant admits his confusion as to what authority bears the burden of
proving, on a balance of probabilities, the extent to which a Charter freedom of a prisoner when
offended is reasonable and demonstrably justified in a free and democratic society [see: Oakes, supra.
(pp. 136-37)] Thus, in defending the Rules or in the application of the impugned rule to an indigent
prisoner, it appears that some authority must come forward and prove that all of the elements of the
two criteria repeatedly enunciated by the Supreme Court of Canada as in are satisfied. But, unhappily,
this approach to what appears to be the pivotal question here is absent from the order made by the
Duty Master or the decision of the Chambers Judge. It seems to the Speaker somewhat superficial to
deny so absolutely to a prisoner what are his fundamental civil rights and to do so without benefit of
explanation or regard to the legal effect of the order on application of the impugned rules to a person
so obviously unable to comply.
[940]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."
[941]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.
[942]Thus while the importance of regulations and admirable goals of the impugned Rules should be
considered in the s. 1 analysis, McLachlin J. held in RJR it does not relieve either the government or
the court of the burden of demonstrating its justification and application. Here the application of the
impugned rule to indigent prisoners is clearly an invasive one, and there is nothing to prevent this
Honourable Court from striking such rule down or its application under such circumstances if
necessary.
[943]The Speaker has taken a position that his evidence relating to international law and the foreign
jurisdiction of the Respondent is irrelevant and therefore admissible in the present enquiry. Given the
nature of an s. 1 inquiry the Speaker believes such an analysis must be undertaken as well by the
Court of Appeal, the evidence referred to by Speaker is entirely probative of whether the extent to
which the impugned Rules infringe on his s. 15(1) Charter rights in Canada before a Canadian court
can be said to be reasonable and demonstrably justified in a free and democratic society. Here the
conduct of the Respondent Bulgaria, as a "free and democratic society" is evidence that establishes the
existence of similar rules and obligations for the Respondent government equal with those of the
government and courts of Canada and necessary to maintaining standards of equality under law in
both the jurisdictions of Bulgaria and Canada. Any similar practice as that giving rise to this
constitutional challenge and appeal have been found to be an impediment to the fair and equal
dispensation of justice in the Republic of Bulgaria, with no offsetting public interest benefits. There is
no evidentiary reason that the Speaker can advance that would suggest to him that there are for some
reason distinguishing considerations justifying the absolute prohibition on an indigent prisoner in
himself prosecuting his law suit up to and including any trial before a court of British Columbia or
Canada for that matter-- our free and democratic society.
[944]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.
[945]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.
[946]The Speaker now returns to the two criteria of rationality and proportionality.
12.Rationality
[947]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.
[948]Even if the Speaker as a lay litigant cannot comprehend the full legislative history or legal rational
behind the impugned rules, he can at least see that Rule 41(16.5) (b) is rational. This 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 Speaker accepts that the first of the two
criteria can be said to be satisfied.
[955]It is difficult for the Speaker 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 Speaker 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.
[956]Simply put, the court cannot have it both ways. It cannot be heard to say that the interest of justice
requires an application be "spoken to" but then not provide the means to the applicant to be heard.
Nor can it say that it is necessary to prohibit the Speaker from being heard in writing so in the one
instance to achieve the objective of economic and efficient dispensing of justice to best serve the
public interest but in the other fail to consider the legal affect on an s. 24(1) Charter application.
[965]The Speaker's position is one of reasonableness, he is asserting his interests were adversely, and under
the circumstances of his imprisonment and poverty unreasonably, impacted by Duty Master's order
and the Chamber Judge's decision. The corresponding duty of fairness would, in the Speakers view,
not be limited to the informal hearing resulting in the in camera decision to return all the applications
and require an indigent prisoner produce a legal representative before the Master. The afflictive
circumstances of the Speaker's imprisonment caused the proceedings to involve what became a final
determination by the Duty Master, and then the Chambers judge of the Speakers rights under law, as
a prisoner, to prosecute his law suit. It placed the Speaker's family, their reputation, their well being,
property or other rights in jeopardy: see, mutatis mutandis, Kane v. Board of Governors of the
University of British Columbia , [1980] 1 S.C.R. 1105; 31 N.R. 214, at 1113 [S.C.R.]; Hutfield v. Fort
Saskatchewan General Hospital District No. 98 (1986), 74 A.R. 180 (Q.B.).
[966]To balance his reasoning the Speaker considered Pagliaro v. College of Psychologists (Alta.) (1997),
214 A.R. 217 (Q.B.), where the court there held that no duty of procedural fairness was present in
cases where substantive rights, such as employment, are not affected. Going on to say that if there was
a duty of fairness it would be at the low end of the spectrum, such that notice of the hearing and the
opportunity to be heard would be sufficient to satisfy the duty. Here the proceedings before the Duty
Master, and on appeal under Rule 53(6) the Chambers Judge, concerned substantive rights of the
person that flow from the principles of international law into the legal framework of Canadian
society, such that far more was required than a notice and hearing. In the Speaker's analysis of what is
significant is that even this "low end of the spectrum" of duty to fairness, requiring “a notice and
hearing" as referred to in Pagliaro supra, and as contemplated in Rule 53(8), was not satisfied by the
Chambers Judge.
[967]It appears both the Master and the Chambers Judge reached a conclusion that all prisoners who make
applications in civil proceedings will have the possibilities to appear or if unable to appear, then the
financial resources necessary to comply with any requirement to retain an attorney. There is no
evidentiary justification or case law for either the learned Duty Master or Chambers Judge having
reached such a conclusion.
14.The Reasonableness of the Affect of the Duty Master's Order;
[968]The thesis advanced is that the impugned order is unreasonable under the circumstances of
imprisonment and poverty. It is therefore in principally wrong, for having as its immediate affect a
quasi-judicial or administrative deterrence to all men and women, as the Speaker, whose self-
determination has be taken from them by a person holding them prisoner. The Speaker is effectively
excluded from "participatory rights" in his own law suit, the impugned order acts as a barrier denying
even the remotest possibility to seek a procedural remedy as relief from the practical difficulties of a
prisoner to bring his legitimate claims before the trial court. This effect is solely the result of his
status in society as an indigent and imprisoned person. It is appears on the surface to be not an
unreasonable proposition to suggest that the impugned order, possibly the Court Rules Act [RSBC
1996] c. 80, Rules of Court, as having unfair effect that limits incarcerated citizens from fully acting
out their on right to sue, as well as their right to defendant a when sued.
[969]The learned Iacobucci, J., in Director of Investigation and Research, Competition Act v. Southam Inc.
et al. , [1997] 1 S.C.R. 748; 209 N.R. 20, at para. 57 discussed reasonableness and explained the
difference between two standards the Speaker is applying to the present review and did so in the
following terms:
[970]The Speaker argues that the Duty Master's order is not only "unreasonable" but is in fact, according to
the analysis of Iacobucci, J., made "patently unreasonable" on the evidence available to the Master of
the Speaker's imprisonment and indigence.
[971]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".]
[972]Also see, mutatis mutandis Service Employees' International Union, Local 333 v. Nipawin District
Staff Nurses' Association et al. , [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, Dickson, J. (as he then was),
said at pp. 11-12:
" A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority
to enter upon an inquiry but, in the course of that inquiry, do something which takes the
exercise of its powers outside the protection of the privative or preclusive clause. Examples
of this type of error would include acting in bad faith ... [and] failing to take relevant factors
into account."
[973]In Danson v. Labour Relations Board (Alta.), Alberta Union of Provincial Employees, Booth and
Palmateer (1983), 47 A.R. 274; 27 Alta. L.R.(2d) 338 (Q.B.), Wachowich, J., adopts the above
quotation and adds at p. 343: " ...the failure of a decision-making body to consider relevant factors
can be 'patently unreasonable'." As further authorities see: Hawco, J., in Witral Holding Ltd. v.
Assessment Appeal Board (Alta.) et al. (1996), 189 A.R. 233, at 238 (Q.B.), finding that "[t]he failure
of the Board in this case to take the evidence above referred to into account is also sufficient, in my
respectful opinion, to grant the applicant's order." Rooke, J., also agreed in Foothills Provincial
General Hospital v. United Nurses of Alberta, Local 115 et al. (1993), 140 A.R. 321, at 330 and 339-
340 (Q.B.), as did Fraser, J., in Seneviratne v. Amalgamated Transit Union, Local No. 583 et al.
(1992), 130 A.R. 241, at 246 (Q.B.).
[974]The Speaker can certainly sympathise with the frustration the Duty Master or any judicial officer
must feel in the face of applications made by lay litigants. To be required, in camera, to review and
rule on all such applications having once been filed with the Registrar is admittedly an inefficient use
of time for a Master or Chambers Judge, inevitably leading to delays in the hearing of applications
having greater qualitative merit. The Master's order to have such applications "spoken to" by the
Speaker as applicant is on the surface a reasonable one. This was discussed earlier.
[975]However, this type of judicial discretion is of the technical, non-substantial type which the Speaker
argues is outside the concept of the Court Rules Act and intent of the Rules to limit wasteful
procedures. It fails to deal with applications on their merits and becomes clearly unreasonable because
of the practical inability of any indigent prisoner to bring his applications before the Master and
"spoken to"; even a motion under 24(1) of the Charter is as a result made impossible. In such cases it
becomes inevitable, where imprisonment acts as a physical deterrent, that such an order of the Master
will infringe a basic legal right.
"Definitions
"Section 2 provides
"(2) On an application for judicial review, the court may grant any relief
that the applicant would be entitled to in any one or more of the proceedings for:
"8 (1)....
(2) Despite subsection (1), the court may not refuse to grant relief in a
proceeding referred to in section 2 on the ground that the relief should have been sought in
another proceeding referred to in section 2."
[983]What was before the Chambers Judge was an application for judicial review under s. 24(1) of the
Canadian Charter of Rights and Freedoms founded upon an alleged infringement by application of
Rule 41(16.5) (b) to an indigent prisoner by the Duty Master Crown of the right of the Speaker under
the Charter, inter alia to make full answer and defence on a Rule 14, Rules of Court motion filed by
the Respondent Bulgaria.
[984]In Knight , supra, L'Heureux-Dubé, J., observed at 682 [S.C.R.] that the concept of the duty of
procedural fairness there was discussed in the context to be followed by a tribunal. The finding was
that such duty is variable and its content is to be determined "by reference to all the circumstances
under which the tribunal operates". She elaborated in Baker v. Canada (Minister of Citizenship and
Immigration), supra, there the parties had found that a duty of procedural fairness applied to the
proceedings leading to the impugned decision. She said at 837 [S.C.R.]:
" The existence of a duty of fairness, however, does not determine what requirements
will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head
School Division No. 19 ... at p. 682, 'the concept of procedural fairness is eminently variable
and its content is to be decided in the specific context of each case'. All of the circumstances
must be considered in order to determine the content of the duty of procedural fairness ...
[985]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.
[986]As additional grounds for his appeal the Speaker asserts that there existed a constitutional duty of the
learned Chambers Judge to at least review and apply the facts of the case to his Charter complaints. If
the facts merited the complaints then His Lordship had a duty to exercise the court's jurisdiction and
secure for the Speaker his Charter rights and those guarantees provided in international law. The
comity of nations not withstanding a Charter or international law challenge.
[987]In not doing so the Chambers Judge in the trial court erred in principle in the exercise of his
discretion to refuse the courts' inherent jurisdiction to allow an incarcerated citizen to apply to the
court in the only medium left to him or her. The Speaker's circumstances as a prisoner permitted him
only one means of access to the court and of communicating his complaints to the Chambers Judge.
All other avenues to apply under s. 24(1) of the Charter for an appropriate and just remedy in the
circumstances were closed to the Speaker by the Respondent.
[988]The Speaker respectfully advances the theory that questions raised are substantial to the practice of
law generally. The controversies arises over the lower courts' apparent failure not only in the case at
Bar, but generally to refuse to secure or to allow for the practical means necessary to incarcerated
Canadian citizens to (1) pursue their legitimate civil claims and (2) to apply under s. 24(1) Charter by
the only medium left open to them by the state. This refusal to allow citizens to prosecute their civil
complaints or apply under s. 24(1) of the Charter appears to be solely because of their status as
impoverished prisoners.
[989]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.
[990]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 applications to the Court.
INTERPRETATION
"12. Every enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects.
Alternatively, the Master erred in judgement on failing or refusing to consider other methods
of judicial review available as a practice and procedural remedy to indigent persons deprived
of their liberty. The Master had a duty to obverse a special standard of review and a
constitutional duty of procedural fairness and care on a petition for judicial review and
remedy received from a person deprived of his self-determination by a state party. The
Master's order, as made, was impossible, and breached Canada's minimum Charter
guarantees to the petitioner, having exceeded the reasonable limits prescribed as a practice
and procedure of the court. In denying the court's services of judicial review and remedy the
Duty Master was punishing the petitioner for having been deprived of his liberty and being
to poor to retain a lawyer.
In the further alternative, the Duty Master erred in judgement on holding a person deprived
of his liberty, and no resources to retain a lawyer, as having no legal standing to bring or
have his petitions heard, either as a person aggrieved by a defendant in the trial proceeding,
or as a person satisfying the test for an afflictive disability requiring a procedural remedy. It
further follows that:
The Chambers Judge erred in judgement on holding the Duty Master's order as reasonable
on application to a person deprived of his liberty and living in poverty. His Lordship, having
a constitutional duty to procedural fairness, was wrong in refusing the petitioner a judicial
review, and remedy, against the discriminatory and prejudicial affects of the order. It having
absolutely barred any judicial hearing of the petitioner's complaints, and solely because the
petitioner could not appear or a retain a lawyer.
In the alternative His Lordship erred in judgement on holding the petitioner had not brought
his request for a judicial review of the Duty Master's order within the ambit of the Judicial
Review Act or s. 24(1) of the Charter. On the petitioner having appealed under Rule 53,
Rules of Court, His Lordship had a statutory duty to judicially review the reasonableness of
the legal, and practical, affects of the order on the rights of the petitioner. His Lordship was
wrong to hold an indigent person deprived of his liberty as having no procedural right to a
full judicial review of the facts and law, and refusing to proceed further on the matter of
constitutional complaints until the petitioner first complied with the terms of the Master's
order. His Lordship knew, or should have known, the terms fixed by the Duty Master's order,
as a practical matter, to be impossible, notwithstanding that they were lawful.
In the further alternative, His Lordship erred on holding a indigent person deprived of his
liberty had no legal standing to bring a petition for judicial review of a Charter, or other
constitutional question, either as a person aggrieved by the Duty Master's order, or as one
satisfying the test for public interest standing, the Charter applying to both the order and the
practice and procedure under an enactment.
Success of the Applicant's "fair question" on appeal, the so called "merit test", turns on the
argument that later evolves from the 8 points he has previously listed above. The points
raised are made arguable when applying the test found in Meiorin to the observable affects of
the order as well as impugned Act. The Applicant further supporting his later argument with
the cited principles of international law as naturally form a part of Canada's broad
guarantees of equal rights and freedoms under its human rights legislation.
Applicant/Plaintiff