Memorandum of Facts and Law DRAFT

Gentlemen,
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.
his Document was never filed and the proceedings before the Court of Appeal abandoned.
The grounds of the Appeal was the Master's decision to not proceed in writing and ex parte
on theMotions filed by me.
What follows is simply therefore only 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 a Canadian offender in dealing with Bulgarian authorities and our own courts.
Other parts simply stupid.
As always, thank you.
Michael Kapoustin
9. Memorandum of Facts and Law In USe Created by Michael Kapoustin Page 1 of 165
Court of Appeal File No.___________
Court of Appeal Registry Vancouver
Supreme Court File №.S004040

Supreme Court Registry Vancouver
In the British Columbia Court of Appeal

(The Supreme Court of British Columbia)
Between
MICHAEL KAPOUSTIN, et al.
Appellants
(Plaintiffs)
And
REPUBLIC OF BULGARIA, et al
Respondents
(Defendants)
MEMORANDUM OF FACTS AND LAW

[1] COMES NOW, MICHAEL KAPOUSTIN, the Plaintiff (hereinafter also referred to as the
"Speaker" or "Applicant”) in the above styled cause of action, and presents on his application to
the British Columbia Appeal Court ("B.C.A.C.") this Memorandum. This document must speak
before the Appeal Court in the form of a prosopopoeia, as this is the only means available to a
person deprived of his liberty and having been denied his access to Canadian courts of law. The
Subject of the Application is the most fundamental right of a citizen; the right to a full judicial
hearing of the facts.
Table of Contents
1. Preamble 9
1.1. Parallels in Canadian Case Law 9
1.2. Relevance of the Cited Gwynne Supra 11
1.3. Factors Existing In Aggravation of the Circumstances 12
1.4. The Appeal 13
1.5. Relevant Law 13
1.6. Interpretation and Factors 13
1.7. Reliance on Canadian Justice 13
2. Applicant's Reasoning. 14
2.1. Objectives 14
2.2. Rights Relied On. 14
2.3. Prior Petitions 15
3. End of Preamble 15
PART II. STATEMENT OF FACTS 15
1. Course of the Proceedings 15

1.1. The Law Suit 15
1. Originating the Proceedings 15
2. Applications to the Registrar 15
1.2. Decisions of the Duty Master and Chambers Judge 17
1.3. First Hearing - July 13th 2001. 18
1.4. Second Hearing - August 24th 2001. 19
1.5. Present Applications At Bar 20
2. Facts of the Case 20
2.1. Background 20
1. Difficulties in Bringing the Law Suit 21
2.2. Cause of Action - Nexus to British Columbia 22
2.3. Claims Framed In Contract. 23
1. Commercial Activities 23
2. History of Transactions - In Summary 24
3. Breach of Contract, Fiduciary and Implied Warranty 24
2.4. Claims Framed In the Tort. 24
1. Defamation - Slander and Libel 24
2. The Element of Slander Offensive and Untrue Words Spoken by a Crown Servant 25
3. The Element of Libel Offensive and Untrue Words Written by the Government of Canada 26
4. Reproduction of the Slander and Libel 27
5. Intent and Malice - "Mens Rea" 28
2.5. Malicious Prosecution 28
2.6. Nature of Claim Framed In Tort of Conversion and Unjust Enrichment. 29
2.7. Nature of Claim Framed In Tort of Misrepresentation and Undue Influence. 29
2.8. Facts in Aggravation of Those Claims Framed In Tort 30
1. Complaints to the Government of Canada 30
2. Criminal and Quasi-Criminal Extortion 30
3. Respondent's Reliance on its Criminal Prosecution of Speaker. 31
4. What, If Any, Relevance to the Trial Court Surrounding the Criminal Proceedings 31
5. What Are the Facts of the Criminal Case The Defendant Bulgaria Relies On? 32
6. Speaker's Arrest and Extradition 33
7. Speaker's Arraignment and Trial 34
2.8.7.1. The Indictment 34
2.8.7.2. The Trial and Conviction 35
2.8.7.3. The Acquittal 35
2.8.7.4. Supreme Court of Bulgaria - Protest and Appeal 35
3. Practices of the Defendant Bulgaria Existing In Aggravation of the Claims 36
3.1. Conditions in the Republic of Bulgaria 36
1. 1996 36
2. 1997 37
3. 1998 38
4. 1999 38
5. 2000 41
3.2. Definitions of Torture 41
4. Relevance 42
PART III. ERRORS IN JUDGEMENT 43
PART IV. ARGUMENT AND ANALYSIS 43
1. The Arguments Evolution 43

1.1. Law and Enactment Relied On. 46
1. International Conventions - A Chronology 46
1.1.1.1. The Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948) 46
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 47
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 1, 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). 49
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) 49
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) 50
2. Canadian Enactment 50
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)]. 50
1.1.2.2. Canadian Human Rights Act [Chapter H-6 1976-77, c. 33, s. 1. 51
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 52
1.1.2.4. Human Rights Code [RSBC 1996] Chapter 210 53
1.1.2.5. Prisons and Reformatories Act Chapter P-20 R.S., c. P-21, s. 1. 54
1.1.2.6. Corrections and Conditional Release Act 1992, c. 20 [Assented to 18th June, 1992] 55
1.1.2.7. Correction Act [RSBC 1996] Chapter 74 56
3. Bulgarian Enactment 56
1.1.3.1. Constitution of the Republic of Bulgaria [S.G. No. 56/13.07/1991] 56
1.1.3.2. Law on Execution of Punishments [Promulgated S.G. No. 30 on April 15, 1969, alt. and add. S.G. No. 34 on
April 30, 1974, No. 84 on Oct. 28, 1977; No. 36 on May 8, 1979; No. 28 on April 9, 1982 in force from July 1,
1982, S.G. No. 27, April 4, 1986; No. 89, Nov. 18, 1986; No. 26, April 5, 1988; No. 21, March 13, 1990; No. 109,
Dec. 28, 1993; No. 50, June 1, 1995; No. 12, Feb. 7, 1997; No. 13, Feb. 11, 1997; No. 73, June 26, 1998; No. 153,
dec. 23, 1998]. 57
1.1.3.3. Criminal Code of Procedure of the Republic of Bulgaria [Promulgated, S.G., No. 89/15 November 1974,
Amended, S.G. No. 99/1974, No., 10/1975, No. 84/1977, No. 52/1980, No. 28 and 38/1982, No. 89/1986, No. 31,
32 and 35/1990, No. 39, 109 and 110/1993, No. 84/1994, No. 50/1995, No. 107 and 110/1996, No. 54 and
95/1997, and No. 21/1998]. 57
2. A Priori 58
2.1. The Rights of Individuals 58
2.2. Access to A Court 59
2.3. Reverse Onus and Procedural Fairness. 60
2.4. A Priori Rights in a "Suit in Law" 61
3. A Posteriori 62
3.1. A Prisoner's "Other Status" 62
3.2. A State's Positive Obligation and Duty To A Person Deprived Of Liberty. 64
3.3. Positive Obligation and Duty of Bulgaria 66
3.4. The Master's Positive Obligation 66
3.5. Procedures, Conflicts and Comity 71
1. Procedures 73
2. Conflicts 73
3. Comity 77
4. Is this Speaker's reasoning simply wrong? 81
4.1. The Fact and Questions 83
1. Fact 83
2. Questions 83
4.2. Analysis 83
1. What is Not on Appeal? 85
5. The Applications 86
5.1. Arguments 86
1. Time 86
2. Indigence 86
3. Leave to Appeal 86
5.2. Issues - There Are Three Applications 88
6. Need To Extend Time. 88
6.1. The prejudice to each party: 89
6.2. Whether the appellant had formed an intention to appeal in the time limits for an appeal: 89
6.3. Was the respondent aware of the appellant's intention to appeal within the time limits? 90
6.4. Whether any ground of substance is raised in the proposed appeal: 90
7. Relief from Court Fees and Costs 92
7.1. "(a) Discloses No Reasonable Claim 92
1. Is the Intended Appeal Reasonable 92
7.1.1.1. In the Law Suit 93
7.1.1.2. Jurisdiction 94
7.1.1.3. Procedures Observed. 95
7.2. "(b) The Appeal Is Scandalous, Frivolous or Vexatious. 95
7.3. "(c) The Application Is Otherwise an Abuse of the Process of the Court 96
8. For Leave to Appeal 97
8.1. Whether the point on appeal is significant both to the litigation before the trial court and to the
practice in general; 97
1. Significance to the Litigation Standards 97
2. Intended Points on Appeal 98
8.2. Whether the appellant has an arguable case of sufficient merit 98
1. Merit 98
2. Might the Law Suit Merited 99
3. Arguable Case 100
4. Discussion 101
8.2.4.1. Affect as Opposed to Intent. 101
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 101
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. 102
8.2.4.4. What Affects Are Truly Apparent? 102
5. International Legal Rights of Persons Deprived of Liberty. 103
8.2.5.1. As to the Defendant Bulgaria 105
8.2.5.2. As to the Crown and Canada 106
8.3. Is the Point on Appeal Arguable 107
1. Constitutional Validity of the Impugned Act's Affect on Indigent Prisoners; 107
8.3.1.1. Constitutional Applicability and Remedy 107
8.3.1.2. Issues 110
2. Is the enactment constitutionally valid under the division of powers established by ss. 91 and 92 of the Constitution
Act, 1867? 112
8.3.2.1. Pith and Substance 112
8.3.2.2. Division of Powers 116
8.3.2.3. Colourability Doctrine 120
3. 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? 124
8.3.3.1. Applying the Charter to Administrative Law or a Quasi-Judicial act 124
8.3.3.2. Discussion 127
8.3.3.3. THE CONSTITUTIONAL LAW ASPECT 128
8.3.3.3.A The Duty Master's Order 129
8.3.3.3.B The Chambers Judge Decision 129
8.3.3.3.C Discussion 131
8.3.3.3.D Is a Charter Challenge the Answer? 132
8.3.3.4. 135
8.3.3.5. Does The Charter Apply? 135
8.3.3.6. Section 52 Charter Values And The Common Law. 135
8.3.3.6.A In The Case at Bar. 136
8.3.3.7. Is There A Deprivation Of A Liberty Protected By S. 7 Of The Charter? 137
4. The Existing Judicial Consideration of the Rules 141
8.3.4.1. Does the Charter Apply? 141
8.3.4.1.A To the Court Rules Act. 141
1. Argument 141
5. Availability of Judicial Review 142
6. What Standard of Review to be applied to Applications of "detached" Members of Society; 144
7. Judicial Review 144
8. Does the Impugned Act (Rules) Offend Section 15(1)? 145
9. Do the Impugned Rules Offend Section 15(1) Beyond the Extent of the Freedom Guaranteed Under Section 1? 146
10. Vagueness 148
11. S. 1 Overbreadth 149
12. Rationality 153
13. Proportionality 153
14. The Reasonableness of the Affect of the Duty Master's Order; 156
15. Duty of Procedural Fairness 158
8.4. The practical benefit to the parties of an appellate decision 162
PART V. THE RELIEF SOUGHT 163
1. Interpretation Act CHAPTER I-21 R.S., c. I-23, s. 1. 163

1.1.1.1. The Intended Appeal 163
1. Preamble
[2] To bring the present case before the Appeal Court has proven a regrettably difficult and time
consuming for someone not fully comprehending the practice of the common law. There will
come moments during this monograph where it appears the Speaker is stating the obvious,
burdening the learned Justices of the Appeal Court with unneeded details, and the foolish of a
layman. However, the Applicant concluded he would be better served to demonstrate by what
method, on what facts, and according to what legislation, he arrived, rightly or wrongly, to the
arguments that follow. Anything less could not possibly serve to adequately convey the personal
difficulties in organising what has proved a complex and difficult thesis to express.
[3] That the present applications have taken an exceptional amount of time to prepare and deliver to
this Honourable Court is alone sufficient cause for the court to proceed no further. However,
would it be reasonable and fair to refuse to hear complaints delayed not by the petitioner but by
the afflictive nature of his imprisonment?
[4] This Applicant asks this court's Honourable and learned Justices to closely examine the painfully
long, and frustratingly circuitous, route he was forced to follow in bringing the present
applications. A route fraught with real, not imaged, risks to him and those who aided him in the
Republic of Bulgaria. The fact that the applications are before the Appeal Court at all is itself a
minor miracle in the greater scheme of suffering found in Bulgarian prisons. The law suit before
the trial court, and the present applications, represent no mean feat for those individuals involved
in bringing about the reality, as opposed to only the dream, of raising such complaints before a
Canadian court of law.
[5] For the above reasons this Applicant is relying on Canadian justice, and courts to not demur on
the technicalities of time, form, or style when such complaints are made by a lay litigant who finds
himself abroad, deprived of his liberty and any other chance of a fair hearing of the facts and his
poor arguments, such as they are. The Appeal Court asked to find in this poor offering the essence
of what is right and just.
1.1. Parallels in Canadian Case Law

[6] Few parallels can be found in Canadian case law that can be said to be "on all fours" with the
circumstances of the present applications. The particulars now before the Appeal Court appear
unfamiliar and the issues untested. However, some parallels can be drawn from the Sowa v. Can.
(2000), 143 B.C.A.C. 223 (CA); 235 W.A.C. 223 and Gwynne v. Can. (1998), 103 B.C.A.C. 1
(CA); 169 W.A.C. 1], having as applicants prisoners petitioning the Appeal Court to protect their
fundamental rights.
[7] In Gwynne, supra, the Appeal Court was given valuable insight into the life of a prisoner in an
Alabama prison. The physical and psychological experiences described in Gwynne supra not all
that different from those of this Applicant. Here, and in the Gwynne the courts are asked by
Canadian citizens to consider their experiences, and treatment in a foreign prison, to be "weighed
in terms of the Charter" [see: Gwynne Supra, Goldie, J.A. at §30].
[8] In case now at bar, unlike Gwynne, the petition to the Appeal Court originates from outside of
Canada, and a prison internationally recognised as being far worse than what Gwynne recalled at
§62 of his affidavit as a: "….memory… so terrible that I live in constant fear.", Gwynne asking
the Appeal Court at §63 of his affidavit: "if you have any compassion, not perhaps for me as a
person, but for my wife who has waited for twelve years hoping for a small ray of sunshine to
come into our lives, if you have any compassion at all, I would ask that you take seriously the
inhumanity of my past treatment…".
[9] In the case at bar parallels to Gwynne are to be found on reviewing the January 2nd 2001 affidavit
No. 1 of Mr. Robert Kap, father of the present Applicant, filed as evidence before the Duty
Master, Mr. Kap saying at §9 of his affidavit that: "…as reported in the daily newspapers in the
city of Sofia, Republic of Bulgaria, my son has been beaten and tortured by officials of the
Defendant, Republic of Bulgaria and I and the Plaintiff's family exist in a state of constant anxiety
and fear for my son who seeks to exercise his legal rights as a Canadian citizen before a court of
law in the Province of British Columbia".
[10] In Gwynne the Appeal Court had occasion to consider foreign law, and to consider Canada's
international treaty obligations together with Charter and non-charter issues related to a prisoners
fundamental human and civil rights. Among such rights is a right to a meaningful judicial review
of his complaints. The Appeal Court here is asked to do the much the same as it did in Gwynne
supra, but under somewhat different circumstances and having other objectives.
[11] The Applicant here is a prisoner attempting to secure for himself, before a Canadian court, his
right to a judicial review and procedural remedies to aid him in the prosecuting of his claims, and
those of his wife, son, mother and father who are resident in British Columbia.
[12] The Applicant's concerns for his wife and son in British Columbia are best expressed in the July
1st 2001 affidavit of Mrs. Tracy Coburn Kapoustin, his wife, at §9 to §12:
"9. I have and continue to experience deep emotional and physical anxiety over the personal
injury caused my son by the Defendant and am in constant anguish over my utter helplessness
in the past and at the present moment to end or relieve my son’s sorrow and pain. And the
Defendant still persists in acts connected to my son and I in the province that I do verily
believe to be unlawful, abusive, unreasonable, cruel, and inhuman. Such acts further
aggravating and adding to the personal injury, damages and losses my son and I have already
wrongly sustained.
"10. That my persistent emotional trauma and unstable health is as a direct result of what I do
verily believe to be the utterly unreasonable and abusive conduct of the Defendant and the
unlawful and often cruel and inhuman acts that it continues to inflict on myself and my
family.
"11. As a result of the aforestated, I am unable to attend the July 13th 2001 hearing fixed by
the Defendant before this Honorable Court. My son’s need for constant medical supervision
and care takes precedent over the need of the Defendant who persists in its wrongful and
abusive acts and threats against my husband, my son and I.
"12. That my son and my emotional and physical health as aforestated does further preclude
my personally attending any hearing in the absence of my husband and the facts and evidence
collected by him and that he is able to present to this Honorable Court. The Plaintiff Nicholas
Kapoustin and I are unable to stand-alone and be subjected to any further defamation, slander
and other falsehoods as intentionally manufactured by the Defendant to deliberately cause us
further personal injury and loss.
[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.
1.2. Relevance of the Cited Gwynne Supra

[17] In the case at Bar the Honourable Justices of the Appeal Court are asked to apply the same
reasoning of the learned Goldie, J.A. to the circumstances of the present Applicant's incarceration,
and the conduct of the present Respondent(s), as His Lordship applied when writing in Gwynne,
supra, beginning at §24:
"I conclude the standard of review in this court is one at the high end of deference accorded
to tribunals subject to judicial review…[sic]….Canada is a party to a considerable number of
these treaties and its interests are often those of a requesting state. See: Operation Dismantle
Inc. et al. v. Canada et al. , [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th)
481; 12 Admin. L.R. 16, at p. 450-454 for a discussion of analogous problems arising out of
the conduct of foreign relations."
[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."
[Emphasis Added - Mine]
[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.
1.3. Factors Existing In Aggravation of the Circumstances

[23] While not of primary significance to the present enquiry it is nonetheless worthy to draw attention
to certain facts existing in aggravation of the Charter rights alleged to be breached by a practice,
procedure, and order of the trial court.
[24] The following factors must impact on what standard of review a Master or Chambers Judge is to
apply on a prisoners' application under the circumstances as immediately described here, and as
set out later in the following Part 1: Statement of facts.
[25] Among the factors that this Applicant believes must be considered are the "allegation(s) of
procedural unfairness " on the part of the Minister, Ministry of the Attorney General, and
grounded allegations of, inter alia, a possible malicious prosecution of the Applicant by the
Crown.
[26] Not unlike those circumstances to be found in Gwynne supra, the Appeal Court here is asked,
mutatis mutandis, to consider the Charter, and other constitutional implications, of a decision(s)
by the Minister, Ministry of the Attorney General of Canada (the "Minister").
[27] This court is asked to consider the implications of the Minister making a written request, and
providing data, to the Defendant Bulgaria, for the arrest, and prosecution, of this Applicant, a
Canadian citizen. The July 7th 1995 Crown request leading to the present, and on going,
incarceration abroad of this Applicant/Plaintiff. The Crown is documented as having criminally
indicted this Applicant before a foreign state with a view to his arrest, and seizure of records and
assets, in aid of a criminal investigation in the province of British Columbia.
[28] A further factor is extradition. Where the court in Gwynne supra, was concerned with a decision
of the Minister to proceed with extraditing a Canadian to a foreign state (the United State of
American, the state of Alabama), the case now at Bar raises the alternative question, and
constitutional implications, of the Minister's refusal to extradite, to Canada, a Canadian Citizen
arrested, and prosecuted, on a written, and sworn, "information" provided by a Crown servant to
police, and prosecution officials, of the Republic of Bulgaria.
[29] From the foregoing factual circumstances arises a further question, the Minister's refusal to
intervene on behalf of a Canadian citizen criminally indicted by his Ministry, having repeatedly
demurred from observing, or securing, for this Applicant his constitutional, and international law
rights before a court of Canada.
[30] There are applications by this Speaker, and other plaintiffs, to the Attorney General of the
Province of British Columbia concerning his bringing to trial, in British Columbia, a more than
five year old indictment. The Attorney General of British Columbia repeatedly refusing to do so
since first asked in 1996.
[31] There are applications by this Speaker, and other plaintiffs, to the Attorney General of Canada,
concerning a complaint of allegedly criminal misconduct by a Crown servant while on duty
outside of Canada. The Minister refusing to reply to the earliest written petitions of the plaintiffs
dating back to 1996, requiring the plaintiffs to bring a civil action against the alleged Crown
servant alleged to have perpetrated crimes against their person. The civil complaints before the
trial court brought in the nature of a criminal proceeding against a Crown servant, the defendant
Derek A. Doornbos, and others.
[32] Each of the foresaid applications requested a subpoenaing of this Applicant, as a principal witness
and party to the proceedings against the Crown servant, requiring the Minister to intervene in
facilitating a temporary extradition of this Applicant under custody from Bulgaria to Canada. Such
a request, although procedural possible under the laws of both Canada, and the Republic of
Bulgaria, and in accordance with the principles of international comity and reciprocity between
nations, is an admittedly unlikely possibility in the absence of the Minister's intervention.
[33] The Appeal Court is not asked by this Applicant "to go into the weight the Minister is required to
give the issues arising under [extradition] treaties [see, Goldie, J.A. at §24 in the cited Gwynne,
supra]. However, the learned justices are asked to consider the foregoing circumstances in
aggravation of those applications brought here, and the primary point on appeal.
1.4. The Appeal

[34] The intended appeal turns on the international and national obligations of democratic governments
to secure for their prisoners the fundamental right to be heard by a civil or criminal court of law.
This Applicant raises a proposition that there exists a constitutional duty of the justices of the trial
courts to secure such rights for prisoners when an enactment, the government, or the party having
legal custody of another party, fails or refuses to secure for them their rights of access to the
courts.
1.5. Relevant Law

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

[36] The circumstances now before the Appeal Court are exceptional, and imprisonment, sine die, of
any individual Canadian in any foreign penal institution, removed from his family, home and
culture must be, at its very core, a cruel punishment on those Canadian families touched by such
circumstances.
[37] The constituent elements of the present factors are believed to be sufficient to ask this Honourable
Court to afford as broad an interpretation to the elements having affected the time needed to
submit and prepare the present applications. The learned justices asked to recognise the inherent
practical difficulties confronting a prisoner required acting on his own before a civil or criminal
court, recalling that confinement, by its very nature, is limiting for those Canadian's deprived of
their liberty.
[38] Application to the court from a foreign prison makes time a principal, if not predominate, factor
affecting any petition, notwithstanding its legal or factual merits and a petitioner's individual
qualities of intelligence, reason or education.
1.7. Reliance on Canadian Justice
[39] The Applicant, as a Canadian, relies not so much on his own poor abilities, but instead on the
historic fact of the fairness of Canada's courts, and the humanity and compassion of his fellow
citizens, the people of Canada.
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.
[45] The principles of private law suggest, to this Applicant, that there exists an incontrovertible right
to sue or to be sued. Limitations on such a right appear in law only in the case of a complaint
found to be vexatious, frivolous or an abuse of the courts processes. Thus, in the absence of such a
finding, the right to prosecute or defend in a law suit appears to be an unequivocal one.
[46] In the case before the trial court the plaintiffs have produced "documentary evidence" [see:
Interpretation Act c. I-21 R.S., c. I-23, s. 1] in support of their claims, and rely primarily on such
evidence in proving their claims against a defendant foreign government to not be as frivolous or
vexatious as they might on first blush appear to the trial court.
2.2. Rights Relied On.

[47] Among the guarantees found within the ambit of s. 15(1) of the Charter, and of significance to the
present enquiry, is this Applicant's insistence on his right, as an indigent person deprived of his
liberty, to be allowed some means to "equally" access Canada's courts of justice. This seems
reasonable as it is a fundament, a priori, requirement of justice for all parties appearing before a
civil or criminal court of law in Canada to be found equal under law before it. Any limits to be
placed on such rights, i.e. access to a court of law, are to be prescribed only in law, and inherently
subject to a test of reasonableness under s. 1 of the Charter.
[48] The Applicant here believes, and his intended appeal asserts, that his right to prosecute or defend
civil claims, and to have petitions and arguments reviewed judicially by a court of law, are not
subject to limitation solely on account of his indigence and deprivation of liberty.
[49] It is unreasonable that there can be permitted to exist an order, or enactment, that makes a
distinction as to a person's status, and acts to limit, or deny, one person, directly or indirectly, a
right before a court of law, while allowing it to another person. Such an order, or enactment, must
be as a principle and practice, an intrinsically wrong one and therefore invalid.
[50] If that foregoing reasoning is grounded in the common law, then a "constitutional remedy" is
available to this Applicant under the Constitutional Question Act [RSBC 1996] c. 68, s. 8(1).
2.3. Prior Petitions

[51] The Applicant's petitions, past and present, have sought only such remedy that may be seen to be
reasonable under the circumstances of a combined disabilities, indigence and incarceration, as
claimed by the party affected. Any relief thus far sought from the trial court to have the legal
affect of being seen to do justice to all parties and to be applicable in the specific circumstances.
[52] If reason is to prevail then justice cannot be seen to be done by any judicial order or legislative
enactment that has as its effect to deny the one party the relief appropriate to their difficult
circumstances. The international community, and Canada, having recognised imprisonment as an
"afflictive” social status.
[53] It is asserted that prison is a difficult and harsh place from which to conduct ones affairs, much
less to prosecute or defend ones civil claims.
3. End of Preamble
[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. Course of the Proceedings
1.1. The Law Suit

1. Originating the Proceedings
[56] On July 25th 2000, the Speaker together with his wife and son, the "Plaintiffs", as residents of the
province and citizens of Canada, brought a civil action in the British Columbia Supreme Court
("B.C.S.C.") jointly and severally against residents of the Republic of Bulgaria Mr. Stephcho
Georgiev, Mr. Mario Stoyanov, Ms. Emilia Mitkova, Ms. Kina Dimitrova, Ms. Iveta Anadolska,
Mr. Dimitar Shackle and the Republic of Bulgaria, Mr. Muravei Radev in his capacity as Minister
of Finance.
[57] Also named as a joint and several defendant in the law suit is a resident and citizen of Canada, Mr.
Derek Doornbos an employee of the R.C.M.P. and servant of the crown at its Embassy to Austria
at Vienna.
[58] All Defendants have received originating documents. In the case of defendant Doornbos service
was affected through the facilities of his employer, the Government of Canada, R.C.M.P., at
Ottawa and its office at the Embassy of Canada to Austria.
[59] By November 15th 2000 all the Bulgarian defendants cited above were in default of appearance.
As of this application neither the defendant, Doornbos, nor the Crown as his employer, has filed
any appearance in the above styled cause of action.
2. Applications to the Registrar
[60] On or about November 23rd 2000 the Speaker delivered a number of Rule 17, Rules of Court, and
applications to the SCBC Registrar. The plaintiffs applied for desk orders entering judgement for
an unspecified amount, jointly and severally, against those defendants found in default of
appearance.
[61] These applications were returned. The SCBC registrar remarked the affidavits of service and
attached documentation was deficient. The Speaker undertook to address the deficiencies.
[62] On December 7th 2000, the defendant Bulgaria, prepared a defence in the form of a letter from the
Ministry of Justice, Republic of Bulgaria, the deputy minister Z. Rousseva responding to the
plaintiff's statement of claim and writ.
[63] On December 9th 2000 the Speaker was served by prisoner administrators of the Sofia Central
Penitentiary the prepared statement of defence of the Respondent Bulgaria.
[64] On December 29th 2000 the Speaker filed with the trial court [SCBC Registrar] a copy of the
defendant government's (Republic of Bulgaria) written defence. The statement of defence was
discursive, its form and style not conforming to the court's practice.
[65] The Speaker prepared a Reply and a separate Notice to Admit of facts and documents in the form
required by the Rules of Court and served them on the Respondent, Ministry of Justice, in the time
as fixed by the Rules of Court.
[66] No response has been forthcoming to the plaintiffs' Reply or their Notice to Admit.
[67] In January 2001 or thereabouts the Speaker corrected the previous deficiencies identified by the
trial court [SCBC Registrar] in November 2000. Again the applications for desk orders were
submitted. The Speaker, as plaintiff, requested orders that declared all the Bulgarian defendants in
default of appearance, and seeking judgement for an unspecified amount. The defendant, Republic
of Bulgaria was excluded from the plaintiff’s petitions, having served a defence to the plaintiffs
on December 9th 2000.
[68] As well the Speaker brought other applications before the trial court raising issues for, inter alia,
extending the time for service and response, the manner of ex juris service, and the question on
how the Speaker, an indigent person deprived of his liberty, is to appear or otherwise be
represented in proprio persona before the trial court. The following orders were sought:
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.
2. An ex parte order extending time, by 90 days, for all parties to affect any acts required under
the Rules of Court.
3. An ex parte order 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.
1.2. Decisions of the Duty Master and Chambers Judge

[74] On April 18th 2001, the Duty Master reviewed all the applications and again ordered them
returned. The learned Master required that all applications be fixed for a hearing and spoken to by
the Speaker or his legal representative.
[75] On June 5th 2001, relying on s. 24(1) of the Charter and form 61 Rule 53(7), Rules of Court, and
the Speaker then petitioned the trial court for relief from the Duty Master's order.
[76] As grounds to the learned Chambers Judge for the relief sought, the Speaker made reference to his
rights as guaranteed under s. 15(1) of the Charter, the Duty Master's order having the effect, if not
intent, of breaching his fundamental rights.
[77] The argument set out on appeal from the Master may be summarised as an assertion that the Duty
Master's order as made had proved demonstrably, on application to a person having the status of
someone deprived of his liberty, to "exceptionally" prejudice the rights of the one party, the
plaintiff, more than it would any other person, and solely because of the plaintiff's distinct status.
[78] The Speaker's assertion to the Chambers Judge was that the Master's application of Rule
41(16.5(b)) to him or any citizen in a similar situation [deprivation of liberty and indigence a
consequence of a long period of foreign incarceration] had the affect of being discriminatory.
Particularly in the circumstances where the one party in the proceeding before the trial court is
incarcerated by another party to the same suit at law and that has a legal interest adverse to that of
the incarcerated petitioner.
[79] The Speaker asserted to the Chambers Judge that the Duty Master's order to the petitioner [appear
or hire a lawyer] was unreasonable in that the Master's order was in the nature of requiring one
party, a person deprived of liberty, to do something that was beyond his or her self-determination
to do and so impossible for them to do. As a result such an order must in principle be wrong in
law as it would be seen to be prejudiced against the one party suffering an afflictive status [loss of
personal liberty and property].
[80] It was identified to the learned Chambers Judge that the party most affected by the Master's order,
the imprisoned petitioner, was being kept by the adverse party from complying with the terms
fixed in the Duty Master's order.
[81] This Applicant argued to the Chambers Judge that if defendant Bulgaria remained unchecked, or
the order remained unmodified, the affect would be the continued prejudicing of not only the
petitioner's s. 15(1) Charter rights but would bring the very outcome of any future trial court
proceeding into question as to its procedural fairness.
[82] On appeal the Speaker insisted to the Chambers Judge that the factors of incarceration and
indigence created a disadvantaged class of person [citizen] by the very fact of his or her
imprisonment. That these factors, when combined, acted as a very real legal disability and
required a special standard of judicial review and care necessary to procedural fairness, the Duty
Master having had the constitutional duty and jurisdiction to review and answer all complaints
under s. 24(1) of the Charter, an indigent prisoner only able to speak in writing before the court.
[83] The petitioner, this Speaker, claimed to the Chamber Judge that his Charter grievances were
within the ambit of s. 15(1). They are real, not imagined, and the court asked to exercise its
procedural possibilities under the Rules of Court, enactments and international treaties to secure
the petitioner's rights before the trial court as a person deprived of his liberty and property by a
defendant.
[84] For the reasons given above the order wrongly favoured the adverse party responsible for the
afflictive status of the petitioner. The defendant Bulgaria had caused the afflictive state, and so by
refusing this Applicant access to the trial court it produced the desired, and desirable, affect of
silencing the petitioner.
[85] On June 11th 2001 the learned Chambers Judge, His Lordship E.R.A. Edwards, returned the
appeal of the Speaker, requiring the appeal and all other petitions be spoken to before the court,
either by the Speaker, as petitioner or his legal representative.
[86] It had been made clear, or should have been clear, to His Lordship Edwards, J., that this plaintiff
had been unsuccessful in having the defendant Bulgaria's state agencies to agree undertaking to
secure his appearance in custody before the trial court.
[87] It had further been made clear to His Lordship Edwards J., that the petitioner could not afford an
attorney. His Lordship provided no direction to the petitioner how, or where, he could secure the
funds or legal aid necessary to retain an attorney to represent him, in proprio persona, at a hearing
of his petitions. The court had known, or should have known, that as a rule and practice legal aid
is not available to incarcerated persons in pursuit of their civil claims.
1.3. First Hearing - July 13th 2001.

[88] The date of the first hearing before the trial court was fixed by the defendant Bulgaria's lawyer for
July 13th 2001 before a Master; the defendant relied on the provisions of Rule 65, Rules of Court.
[89] On July 6th 2001 the Speaker enquired with the SCBC Registrar on how he should proceed under
circumstances of the Duty Master's order requiring he appear or retain an attorney. Would the
Master at the July 13th court session "hear" the Speaker, as plaintiff/respondent, in writing? The
defendant/applicant Bulgaria having refused to conduct the plaintiff/respondent, this Speaker, in
custody to the hearing fixed by its legal counsel. Neither the court [providing procedural relief], or
alternatively the Respondent [providing escorted conduct] was prepared to undertake measures to
facilitate the Speaker's physical possibilities to bring his arguments or alternatively himself to the
hearing scheduled before a Master.
[90] The SCBC Registrar provided no answer to the Speaker except a willingness to deliver any
documents the Speaker cared to file and have set before the court at the scheduled hearing. The
Master would make the determination of what to do next.
[91] On or about the same time in July the Speaker contacted the defendant Bulgaria's Ministry of
Justice and its legal counsel in Vancouver. The Speaker advised both the Defendant Bulgaria, and
its Vancouver counsel, of his intention to appeal the decision of His Lordship Edwards J., further
advising of an intention to bring several other applications, and additional arguments, with new
evidence in response to the Rule 13, jurisdiction simpliciter, and Rule 14, forum non conveniens,
motions of the said defendant fixed for July 13th 2001. In order to do so the Speaker required
additional time from the defendant Bulgaria, having made a written plea to the newly elected
government of the Republic of Bulgaria asking it to direct the former government's counsel in
Vancouver to fix a later date for the hearing.
[92] The July 13th hearing was adjourned, by consent, to August 24th 2001.
1.4. Second Hearing - August 24th 2001.

[93] On August 24th 2001 legal counsel for the defendant Bulgaria appeared before a Master on the
said defendant's jurisdiction simpliciter and forum non conveniens applications. The plaintiffs,
including the Speaker, were unable to obtain legal aid and were not represented. Counsel had
fixed the hearing for approximately 2 hours.
[94] The Speaker (plaintiff/respondent) had previously made his objections to so short a time known to
Vancouver counsel. Having advised him, and the defendant Bulgaria, that issues of jurisdiction
simpliciter and forum non conveniens turned on more than the points of law raised in the
defendant's Rules 13 and 14 applications. The factual matrix leading to the causes of action before
the trial court was complex and to be examined quantitatively by the Master if not qualitatively.
The Speaker's principal argument was that the practice found in the common law required the
plaintiffs display all the facts, and documental evidence they relied on, available case law
providing clear precedents to guide the Master on the standard of review and procedural fairness
expected when reviewing jurisdiction applications.
[95] The Speaker, prior to the hearing date, had posted to the court (4) four bound volumes consisting
of approximately 500 pages each of documentary evidence of, inter alia, contracts, cash, bank and
other transaction with the Defendant Bulgaria connected to the province and the plaintiffs.
[96] To establish a nexus to British Columbia the plaintiffs had included in the said four volumes
numerous third party affidavits, together with their documentary evidence, that provided
sufficient, prima facie evidence of a case fit for trial. It was emphasised to the defendant
Bulgaria's Vancouver counsel that any hearing must require not less than one, and possibly more
than a day.
[97] At the hearing (August 24th 2001) the SCBC Registrar, as promised, placed before the Master the
Speaker's four (4) volume Factum, and appendices of contracts, affidavits and other evidence.
[98] The Speaker, as Plaintiff/Respondent, faxed a Notice of Motion to the presiding Master scheduled
for the August 24th hearing. The petitions to the Master may be summarised as the following:
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.
7. In the alternative to grant leave to a person deprived of his liberty by the defendant/applicant
Bulgaria to have his applications spoken to in writing. The court so ordering until such time
as the defendant government of Bulgaria agrees to allow an escorted conduct of its prisoner to
hearings before the courts of law in Vancouver.
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.
1.5. Present Applications At Bar

[103] This Speaker seeks leave to appeal, an order he believes to be an error in judgement, and a
practice and procedure of the SCBC he believes to be discriminatory on its application to an
indigent person deprived of his or her liberty as follows.
[104] It is asserted there exits a constitutional question to be answered by the Appeal Court. The
controversy arises over what is alleged to be the discriminatory affect (as opposed to intent) of a
practice and procedure under the Court Rules Act [RSBC 1996] Chapter 80, Rules of Court (Rule
41(16.5) (a)) acting to unreasonably limit the legal rights of all indigent person deprived of their
liberty solely because they are indigent and deprived of their self-determination.
[105] The impugned practice and procedure in question places a reverse onus on the affected party,
requiring persons belonging to a distinct group and having a visible disadvantage, i.e. deprived of
their liberty, to secure their own appearance at any hearing before a Master of Chamber Judge, or
alternatively, although indigent, to secure at their own expense representation by legal counsel.
[106] Until the affected person meets the courts reverse onus, the impugned practice and procedure is to
deny members of the disadvantaged group their right under law to prosecute or defend their legal
and property interests in a law suit.
[107] The Master's order must be, as a consequence of the foresaid, is unreasonable, and therefore the
Chambers Judge decision wrong. The order and decision have the practical effect of limiting a
fundament right protected in law solely because one litigant is incarcerated and indigent.
[108] The discriminatory affect of the impugned practice and procedure is further aggravated by the
Respondent Bulgaria's uncooperative conduct and observable refusals to respect its international
treaty obligations or the processes of a court of Canada.
2. Facts of the Case
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.
[118] The Speaker's family was in British Columbia. In the 6 years of the Speaker's detention he was
permitted by the Defendant Bulgaria to converse with his family in British only on two occasions.
First, (1) when the plaintiff Nicholas, his son, was first diagnosed as diabetic and had fallen into a
coma, and second (2) in 1997 on the occasion in 1997 where, at the direction of prosecution
investigators, the Speaker was required to ask that his wife pay $300,000 United States dollars to
an account of the defendant Bulgaria if she and their son were interested in having the Speaker
returned to Canada.
[119] During the period in question (Sept. 1996 to August 2001) telephone communication continued to
be absolutely forbidden to the Speaker, and impossible. Only clandestine attempts in late 1999,
through hidden cellular phones, had provided the Speaker with a means of contact with his family.
Any capture by prison guards resulted in severe punitive, and administrative, measures taken
against the Speaker on a number of occasions.
[120] The facts of the case show the Speaker's wife, son and parents, having at all material times been
permanent residents of the province of British Columbia. For all practical purposes, with the
exception of the Speaker, all other plaintiffs were, and remain, completely isolated from the
events in Bulgaria. Isolation and extreme physical, emotional and financial consequences suffered
in the province by the plaintiffs provided, and continues to provide, the principal difficulty to
bringing the law suit before the trial court. These factors continue to hamper the plaintiff’s
prosecution of their claims.
[121] Due to the foresaid the plaintiffs have named as defendants in their law suit those most obviously
responsible for, or in control of, the required information and of the plaintiff’s assets.
2.2. Cause of Action - Nexus to British Columbia

[122] What is of significance to the present enquiry, and forms the needed nexus to the province, are the
facts of the case that support claims brought before the trial court that sound in contract and in
tort. Such claims framed in contract and in tort are limited by the plaintiffs only to those having
resulted in damages, and personal injuries, suffered or occurring in or connected to the province
and its residents.
[123] The allegations against, inter alio, the defendant Bulgaria, result from, inter alia, breach of
contract, breach of fiduciary and warranty, unlawful conversion and enrichment, undue influence,
official corruption, abuse of power, and attempted extortion suffered by residents of the province.
[124] Of further significant to the present enquiry is the fact that nowhere before the trial court do the
plaintiffs seek any award for the personal injuries suffered by this Speaker during his detention by
the defendant Bulgaria. The facts under the case before the trail court show the plaintiffs as
having made no claim in Canada for injuries suffered outside of Canada by this Speaker, having
left any such allegations to be considered by the European Court.
[125] Any reliance by either the plaintiffs or the defendant Bulgaria before a trial court of the province
on the criminal proceedings in Bulgaria is questionable in its relevance. At best the facts of the
criminal proceedings and treatment of the Speaker in a Bulgaria's prison can exist only in
aggravation or mitigation of any petition, say for time, or the need for the trial court to permit the
Speaker to proceed only in writing.
[126] Possibly, and by no means is it assured, the facts of the Speaker's treatment may act in aggravation
to a jury when calculating any award for damages and personal injuries suffered by the plaintiffs
in the province.
[127] It is the defendant Bulgaria that raises before the trial court what it alleges to be facts under a
criminal proceeding in Bulgaria against the Speaker. Having claimed such facts relevant to the
proceeding before the trial court in Canada. The assertions made, by the defendant Bulgaria are
that the plaintiffs' claims, particularly those of this Speaker, fall under the jurisdiction of an
international tribunal and not a court of Canada.
[128] The plaintiffs, in a written response to the Defendant Bulgaria, found its reliance on the criminal
proceedings in Bulgaria groundless, although understandable for the following reasons.
[129] It is a fact, and admittedly a common one found among all detainees, and sentenced prisoners in
Bulgarian penitentiaries, that civil claims made by persons deprived of their liberty against the
defendant Bulgaria, are in usually in the nature of human and fundamental rights breaches
connected to police and judicial authorities. Primarily for unlawful arrest and unreasonable
detention. As authority the court is referred to European Court judgements in, inter alia, Lukanov
v. Bulgaria, 2-20-1997; Assenov and Others v. Bulgaria, 10-28-1998; and Nikolova v. Bulgaria,
3-25-1999.
[130] Typically claims against the Defendant Bulgaria are heard, and defended by the Republic of
Bulgaria, before the European Court of Human Rights. The plaintiffs on contacting the Registrar
of the European Court found there to be, at the time of this Memorandum, hundreds of private
claims against the defendant Bulgaria alleging beatings, drugging, extra-judicial killings,
unreasonable detentions and judicial corruption experienced during their pre-trial arrest, detention
and later institutionalisation.
[131] For the most claims by persons deprived of their liberty by the defendant Bulgaria are seen by it as
"moral" claims only to be brought before the international tribunal of the European Court. Few, if
any such civil claims, are filed by present or former prisoners before the national courts of the
defendant Bulgaria, the state being immune from moral (non-pecuniary) damages.
[132] It is without exception that civil claims against an official, agency or instrumentality of the
defendant government are impossible to be effectively prosecuted in Bulgaria. Foreign or
international courts provide for most Bulgarian citizens the one, and only, venue to escape the
corrupt influence of an accused official, agency of instrumentality of the defendant government.
[133] The general public and legal profession are of common consensus that in Bulgaria it is possible to
escape from the undue influence that political and other forces have upon justices of Bulgarian
courts of law. International consensus is that the constitutional Independence of the judiciary has
not as yet proven a sufficient deterrent against the undue influence exerted by politicians upon
Bulgarian state prosecutors and the allegedly "independent" members of the Bulgarian judiciary.
2.3. Claims Framed In Contract.

[134] The plaintiffs have claims, grounded in the province that sound in contract. Such claims are
premised on the commercial activities of Bulgarian state scientific institutions and commercial
companies belonging to the defendant Bulgaria. The facts of the case, found in the plaintiffs'
Factum before the trial court, identify the particular transactions or contracts relied on.
[135] The Factum before the trial court documents the defendant Bulgaria as having done business in, or
connected to, the province with the plaintiffs and others. The documentary evidence before the
trial court provides the required legal and factual nexus to the province necessary to the trial court
asserting its jurisdiction over the defendant Bulgaria.
[136] The facts of the case document the existence of a number of exclusive contracts and licenses for
services and distribution between the plaintiffs and the defendant Bulgaria. These are concluded
in or somehow connected to the province, some having been reduced to writing. Copies have been
provided to the trial court in the plaintiffs' Factum.
[137] From the documentary evidence it can be identified that the British Columbia plaintiffs have
engaged, and provided financial consideration, in exchange for commercial and scientific services
of the defendant Bulgaria's institutions, agencies or other instrumentalities belong to it.
1. Commercial Activities
[138] The foresaid commercial activities between the defendant Bulgaria and the plaintiffs in British
Columbia are connected to the pharmaceutical industry and general trade in services and goods to
be provided by Bulgaria to clients of the plaintiffs in Canada, the United States, and elsewhere.
[139] It can be seen from the proceeding before the trial court that the Defendant Bulgaria has not
contested the truth of the plaintiffs' claim of their initial relationship with the said defendant
plaintiffs to be one readily identifiable as commercial and contractual in nature.
[140] These transactions, and contracts, are documented in the Plaintiff's four (4) volume Factum as
filed with the trial court.
2. History of Transactions - In Summary
[141] The first of numerous commercial transactions with the defendant Bulgaria occurred in the
province around October 1991. It involved a transfer of funds and shipments of goods from the
province by the plaintiffs to scientific and commercial institutions in Bulgaria controlled and
managed by the defendant Bulgaria.
[142] The transactions are documented in evidence placed before the trial court. The evidence shows,
and the defendant Bulgaria has not denied, that there exists an exchanges of goods, services and
money between the plaintiffs and the defendant Bulgaria. These commercial exchanges in or
connected to the province continued unabated until about July of 1995.
3. Breach of Contract, Fiduciary and Implied Warranty
[143] On the basis of the their transactions with defendant Bulgaria and distribution or other written
contracts, the plaintiffs have sued the defendant Bulgaria in provincial court, claiming, inter alia,
that the Respondent breached implied as well as written agreements with the plaintiffs; further
alleging that a fiduciary duty and obligation of the defendant Bulgaria arose from the contracts,
Plaintiffs allege a breach of fiduciary by the said defendant.
[144] The transactions connected to the contracts had included certain warranties from the defendant
Bulgaria to the plaintiffs and their customers in or connected to British Columbia. Such as they
were the warranties in question did nonetheless later prove to be false.
2.4. Claims Framed In the Tort.

[145] As stated here previously it was In March of 1999 that the Speaker was able to exercise, even in a
rudimentary way, the due diligence necessary to develop the plaintiffs' cause of action. This is
particularly true for those claims framed in tort by the plaintiffs. The tort actions began to accrue
as of their discoverability in early 2000.
1. Defamation - Slander and Libel
[146] The nexus required for jurisdiction of the provincial court to hear the plaintiffs' claim as framed in
the tort of defamation result from slanderous words, and libellous letters, together with injurious
misrepresentations of fact made in Bulgaria or elsewhere.
[147] The facts of the case show the offensive words were first spoken on May 15th 1995 by a servant of
the Crown, defendant Derek A. Doornbos, ("Doornbos") diplomatic liaison to Austria, and
R.C.M.P. Staff Sgt and are connected to the performance of his official duties for the Ministry of
the Attorney General of the Province of British Columbia.
[148] The facts of the case before the trial court show that on July 7th 1995 the actionable words are, in
part, reproduced in writing and attributed to the Government of Canada.
[149] The plaintiffs' claim is actionable in tort against the Crown under the Crown Proceedings Act
[RSBC 1996] c. 89. Admittedly, the plaintiffs failed to name the Crown, in "Her Majesty the
Queen in right of the Province of British Columbia" as defendant, having instead named the
defendant Doornbos as personally liable as a servant of the Crown.
[150] It is significant to the present enquiry that as a result of the impugned practice and procedure, the
Speaker, is unable to obtain leave from the trial court to amend his statement of claim and writ to
include the Crown.
[151] Of significance to the law suit before the trial court is the plaintiffs having no way to know they
were defamed until the damages manifested themselves, and the damages only manifested
themselves to the other plaintiffs in the province when they were finally able to correspond with
this Speaker in Bulgaria.
[152] Only in early 2000 did the Plaintiffs having a first opportunity to exchange information and to
learn of what actual damages each had jointly, or severely, suffered. In the case of Nicholas
Kapoustin, Tatiana Kap and Tracy Kapoustin the personal injuries suffered were physical as well
as emotional and financial.
[153] The facts of the case show that the plaintiffs presumed that some damage would flow in the
ordinary course of events from the mere invasion of their rights as a result of the public slander or
libel clearly in evidence around them. However, until the defendant Bulgaria relented in its
isolation of the Speaker from the other plaintiffs (his family) he was unable to show that the words
reproduced in the media or printed in documents were actionable by alleging and proving special
damages in material or temporal loss suffered jointly or severally in the province by the plaintiffs,
either as pecuniary damages or other damages and capable of being estimated in money.
Something the Speaker could only begin to do on obtaining a court order in Bulgaria allowing him
access to his interpreter and corporate or other documents under the control of the defendant
Bulgaria.
[154] The specific issues of defamation sound in tort, inter alia, personal injury, loss of reputation and
income damages that apply to claims of mental distress, permanent physical disabilities, public
humiliation and loss of reputation and opportunity suffered by members of the Speaker's family in
the province when publicly confronted with the malicious and untrue slanders recklessly spoken
or written by a Crown servant in the course of his duties.
[155] The injury and damages suffered by the plaintiffs are aggravated by the defendant Bulgaria having
publicly repeated and published the slanders or libels first attributable to a servant of the Crown,
having added its own twist to the actionable words.
[156] The facts of the case before the trial court raise issues of the individual plaintiffs having suffered
psychological, and physical, injuries in the province. The damages and costs to the plaintiffs
having resulted from their experiencing deep humiliation, public insults and emotional distress. In
the cases of plaintiffs Nicholas, Tatiana and Tracy such suffering proved so severe as to require
them to obtain on going medical care under the provincial health care plan.
2. The Element of Slander - Offensive and Untrue Words Spoken by a Crown Servant
[157] Prior to March 2000 it was unknown to the plaintiffs and not fully understood by them as to what
words were spoken and what had occurred on or about May 15th 1995 in Sofia, Bulgaria. It
appears from the facts of the case that on that date the Crown had dispatched its servant, the
defendant Doornbos, to meet secretly with officials from the Interior Ministry (internal secret
police) of the defendant Bulgaria in the city of Sofia, Bulgaria.
[158] What can be evidentially adduced from documentary evidence filed with the trial court and the
written statement of the defendant Bulgaria before the court, together with the available extracts
from press and wire service reports, is the following.
[159] That in May of 1995 the defendant Doornbos made the first, of what proved to be a series, of
slanderously false assertions to officials, and agencies, of the defendant Bulgaria.
[160] The offensive words concerned, inter alia, the religious beliefs, moral character and sexual
deviation of the Speaker and the business activities of the plaintiffs in the province as connected
to Bulgaria.
[161] Among the Crown representation made to the defendant Bulgaria are that the Speaker had been
previously convicted in British Columbia on multiple counts of sexually molesting children.
[162] The Crown further advised the defendant Bulgaria that the plaintiffs’ activities in Bulgaria were a
part of organised crime in the province of British Columbia, and the proceeds collected in
Bulgaria are to be found in banks of the province known to the Crown.
[163] What is significant to the plaintiffs' claim against the Crown are that the actionable words were
spoken and written as facts, not allegations or suspicions.
[164] Any untrue, false or injuriously offensive words spoken by a Crown servant, in private or
publicly, in the course of his duties in Bulgaria where he represents to others as if fact, although
knowing it not be true that, inter alia, the Speaker's involvement and conviction in the sexual
molestation of adolescents, his religious beliefs and Jewish faith, and the criminal nature of the
plaintiffs companies in British Columbia or Bulgaria, prove to be nothing more than a vicious,
deliberately false and calculated verbal attack by defendants Doornbos and Bulgaria on the
plaintiffs who have no public persona. Such words are actionable against the crown, and there can
be no defence on the part of the Government of Canada or the defendant Bulgaria of fair
comment, qualified privilege or saving exception under an enactment.
[165] The words spoken by a Crown servant, the defendant Doornbos, form the basis for the plaintiffs'
allegations against the Government of Canada, among them slander and libel.
[166] The words of the Government of Canada were publicly exploited by agencies of the Defendant
Bulgaria having widely reproduced the actionable words in the mass media as early as July 8th of
1995, four months prior to any criminal complaints being brought against this Speaker.
[167] The most outstanding reproduction and example of the actionable words of the Crown appear in
an August 1st 1996 newspaper interview in "Continent", and later again on state owned television
and radio. The defendant S. Georgiev, lead prosecution investigator for the defendant Bulgaria,
having clearly and in no uncertain terms credited the offensive and actionable words to the
Crown.
[168] The defendant Bulgaria's liability in tort arises from its collusion with the Defendant Doornbos, to
publicly repeat or have the offensive and untrue words of defendant Doornbos reproduced to
mean, and was understood by the defendants Bulgaria and Doornbos, including the public at large
to mean, that the Speaker was a cold blooded sexual predator against children, without any sense
of morality, and was a detestable human being.
[169] A further element in defamation proceedings before the trial court is that the defendants knew
their words and later public allegations contained not a morsel of truth and not a measure of public
value. The words spoken by them could only have been calculated to destroy the reputation of the
plaintiffs, and so ruin their personal and business relationship with their clients, and foreclosing to
the plaintiffs any possibility for their companies in British Columbia, or elsewhere, to continue
pursuing lucrative contracts that relied on the commercial activities with the defendant Bulgaria,
and the public goodwill and popular image of the plaintiffs companies and the Speaker.
[170] In one form or another the actionable words representing the slander and libel are directly
attributable to the Government of Canada as publicly repeated or reproduced by the defendant
Bulgaria from July of 1995 to as recently as October 2001.
[171] The foregoing forms a principal element of the plaintiffs' slander allegations before the trial court.
3. The Element of Libel - Offensive and Untrue Words Written by the Government of Canada
[172] Documentary evidence before the trial court provides the first written proof of the offensive
words, alleged as libel, as first appearing in writing on July 7th 1995 in the form of a letter
delivered by the Government of Canada to the defendant government of Bulgaria.
[173] The defendant Bulgaria refuses to provide the plaintiffs a copy of the original letter sent by the
Embassy of Canada at Austria in July of 1995. What is available to the trial court is a certified
English translation of a copy obtained from the defendant Bulgaria's criminal proceeding against
the Speaker.
[174] The libel claim turns on the words and their context as set out in the foresaid July 7th letter. In no
uncertain terms the Government of Canada had provided agencies of the defendant Bulgaria with
what it (the Crown) claims as Canadian police conclusions arrived at in the province of British
Columbia.
[175] The libellous letter specifically identifies this Speaker as a known criminal to provincial
authorities. It leaves no room for doubt on the reader’s part as to the Speaker's guilt for the
criminal acts and associations identified in the letter by the Crown.
[176] There exists an absolute certainty in the words used and their context as conclusions of the
Crown.
[177] The Crown can be seen to mean, and was understood by agencies of the defendant Bulgaria to
mean, by what was written there, that the plaintiffs' companies in British Columbia and in
Bulgaria are actively engaged in the commission of crimes on Bulgaria territory.
[178] The crimes are described by the Crown as being committed against Bulgarian citizens and
therefore actionable in Bulgaria.
[179] The libellous letter goes on to say, in no uncertain terms, that the money proceeds of the crimes
committed in Bulgaria by this Speaker are being deposited to bank accounts in Canada.
[180] The Crown advises the Defendant Bulgaria, in writing, that the Speaker's criminal activities are
fronted in the province, and internationally, by a pseudo-religious organisation based on the
Judaic mystic belief of the Cabbala. Advising the defendant Bulgaria that the activities of the
Speaker form a part of a larger on going money laundering operation directed from the province
by associates of the plaintiffs.
[181] The libellous words had been clearly written from the Crown to the defendant government of
Bulgaria and leave little doubt as to their character of accusatory conclusions designed to impute
the commission of a criminal offence(s) in Bulgaria as connected to the province.
[182] The stated purpose written into the letter was to criminally indict the plaintiffs company, and
Speaker, in Bulgaria. The Crown stating, in no uncertain terms, for the defendant Bulgaria to lay
the criminal charges of fraud and misappropriation having been identified by the Crown.
[183] The Crown further advised the defendant Bulgaria that on its prosecution of this Speaker in
Bulgaria a court order could be obtained in the province of British Columbia by the Attorney
General of British Columbia to seize the money proceeds identified in provincial banks.
According to the Crown a significant part of the Speaker's criminal proceeds are to be found in
banks of the province and easily identifiable as the proceeds of crimes committed in Bulgaria.
[184] The Crown estimated the amount of criminal proceeds to be around $20,000,000 (million) USD,
and could be shared with agencies of the defendant Bulgaria.
[185] The Crown directed the defendant Bulgaria, in the strongest terms, to have its agencies undertake
every effort to somehow prosecute the Speaker, depriving him, a Canadian citizen, of his liberty
while still in Bulgaria.
[186] The Crown request was made as an indictment formulated in the province of British Columbia,
written at its embassy in Austria and personally delivered by a Crown servant for execution by
agency of a foreign power.
[187] The facts of the case before the trial court show that the aforesaid July 7th 1995 Crown document
and the conclusions and requests its words embody, prove to be the principle reason for the
beatings, drugging and other torment the Speaker suffered under the solitary isolation imposed by
the defendant Bulgaria from September of 1996 to 1999.
4. Reproduction of the Slander and Libel
[188] The facts of the case show that on July 8th 1995, there appeared in newspaper, television and radio
reports the first in a series of egregious and deliberate assassinations of the character and public
image of the plaintiffs' and their company.
[189] The public statements of officials of the defendant government of Bulgaria were overt acts
designed to be insulting, degrading, and humiliating, having later proved to be false in every
particular.
[190] The law suit alleges that the offensive, and insulting publications and television reports appearing
through out the period of July 1995 to April 2001 were malicious in the extreme, having falsely
suggested that the Speaker, the plaintiffs and their companies’ activities were a public menace and
danger.
[191] The libellous publications, and television reports, all relied on the oral and written representations
of the Crown, and the agencies of the Defendant Bulgaria, and calculated to damage the family of
the Speaker, causing them jointly and severally to suffer personal injury and physical harm in the
province as a result of their anguish and emotional trauma, at becoming the subject of public
ridicule in the British Columbia where the family resided, and in Bulgaria where the family had
their investments and assets. What appeared before the public went unexplained by any evidence.
[192] Each defendant named in the law suit shared a collective purpose, to engender hatred and
contempt of the plaintiffs and to invite others to join in doing the plaintiffs’ personal harm. The
overt actions and words of the Crown and defendants Doornbos and Bulgaria, having nothing to
do with the attainment of truth and the common good.
5. Intent and Malice - "Mens Rea"
[193] The plaintiffs claim that the facts of the case establish the presence of "Mens Rea", this providing
a significant factor in aggravation of the damages claimed, the defendants each having prior
knowledge that the words spoken, and later written, first by defendant Doornbos and later
repeated or reproduced by the defendant Bulgaria, were in every way false, and intended only to
promote with certainty a public hatred of the plaintiffs. Injuring the plaintiffs’ reputation, and
exposing them, particularly the Speaker, to further contempt and public ridicule and insult.
2.5. Malicious Prosecution

[194] The facts of the case strongly suggest to the plaintiffs that the intended purpose of the Crown's
July 7th 1995 letter and its unverified or untrue representations to the defendant Bulgaria and the
public are formulated not to display the truth but only to provide a cause to initiate criminal
proceedings against the Speaker in Bulgaria.
[195] It was the Crown that acted in May and July of 1995 to initiate criminal proceeding against the
Speaker in Bulgaria. The July letter of the Crown acted as an incitement to the defendant
Bulgaria's interior police to seek the indictment and prosecution of a Canadian citizen in Bulgaria.
[196] The facts of the case prove the Crown letter to be directly responsible for the July 17th 1995 order
of the defendant Bulgaria's interior police to the national police and prosecutor, to deprive a
Canadian citizen of his liberty. The National Investigative Service (national police) acted only on
the Crown request.
[197] Neither the Crown nor the defendant Bulgaria engaged any judicial supervision or other due
process of law before a court of competent jurisdiction.
[198] The Crown deliberately, recklessly or negligently failed to adhere to Canadian law in engaging
itself in the bringing of criminal charges against a Canadian citizen in Bulgaria on what was
known, or should have been known, at the time to servants of the Crown to be untrue and
maliciously false representations.
[199] The facts of the case show that the Crown failed to observe or otherwise be bound by its
constitutional guarantees to a person accused of a crime (this Speaker) by Canadian authorities.
[200] The Crown violating the Charter guarantees of the Speaker when having its servant, the defendant
Doornbos, travel to Sofia, Bulgaria in May 1995, July 1995, December 1995, August 1996,
December 1996 and finally in December 1998 where a Crown servant swore out, in the Bulgaria
language, an information against the Speaker, having delivered with it documents, and dated,
collected by the Attorney General of the Province of British Columbia in the province.
[201] The foresaid forms the factual background for plaintiffs to bring a motion before the trial court to
incorporate an allegation of malicious prosecution against the Crown, amending their claims that
sound in tort to include, inter alia, a deliberate, reckless or negligent failure of the Crown to
adhere to Canadian and international law, causing the plaintiffs to suffer damages in the province
resulting from personal injury, including mental distress and physical anxiety. The Crown
intentionally seeking to damage the plaintiffs’ reputation, and ability to earn an income in the
province or connected to Bulgaria.
2.6. Nature of Claim Framed In Tort of Conversion and Unjust Enrichment.

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

[208] Plaintiffs as well provide facts before the trial court they allege prove misrepresentation, undue
influence, and unconscionability, claiming that the defendant Bulgaria had a duty of care to the
plaintiffs and their customers to be responsive to abuses of vulnerable people in transactions with
the officials of the defendant government's institutions, agencies or instrumentalities.
[209] The facts outlined before the trial court show that during the course of plaintiffs commercial
relationship with the defendant Bulgaria, its officials had made material misrepresentations and
untrue warranties to the plaintiffs, and their clients in or connected to the province.
[210] On the defendant Bulgaria being confronted by the alleged misrepresentation or untrue warranty,
its' officials used their position to exert undue influence over others under their control and so
influence or order the termination of contracts and agreements, having no reasonable cause to do
so, breaching all the defendant Bulgaria's agreements with, or obligations to, the plaintiffs and
their clients.
2.8. Facts in Aggravation of Those Claims Framed In Tort
1. Complaints to the Government of Canada
[211] In affidavits before the trial court members of the Speaker's family allege that throughout the
period of the Speaker's 6 years of incarceration they have repeatedly and bitterly complained to
the Government of Canada officials that agents of the defendant Bulgaria having breached
Canadian criminal law in or connected to British Columbia.
[212] Family members allege agents of the defendant Bulgaria made repeated attempts to extort money
from family and friends in Canada, either by telephone or through intermediaries visiting Canada.
[213] The money sought from the plaintiffs in the province was in exchange for ending the physical and
psychological torment of the Speaker. The defendant Bulgaria's police, and prosecution officials,
promising the Speaker's safe treatment while in detention, and even possible release on the
payment of substantial sums of money.
[214] The plaintiffs in British Columbia became deeply distressed and anxious about the Speaker's
safety, this caused severe mental, even physical torment to each plaintiff having to endure such
attempts at extortion, knowing they could not pay the defendant Bulgaria's agents the amounts of
money necessary to end, what they knew to be the cruel treatment of the Speaker.
[215] The plaintiffs claim to have maintained a record of each such complaint, including diary entries,
dozens of letters and press statements that suggest the beating, and drugging, of the Speaker
during his solitary confinement in Bulgaria.
[216] This Speaker first complained of his drugging in a small note smuggled to a consular officer, one
Jamie Bell, in August of 1997, having publicly complained of his beatings to Canadian authorities
and the press only after his solitary confinement was ended. The plaintiffs claim the Crown failed
to take concrete steps.
[217] That plaintiffs allege, as facts in aggravation of the damages they seek, that the beatings and
drugging the Speaker endured had a sinister purpose connected to the May and July 1995
demands of the Crown for information on money allegedly in British Columbia banks.
[218] During the Speaker's beating, and other interrogations, it became apparent to him that there was an
ongoing criminal investigation in British Columbia connected to the Bulgarian prosecution and
investigation. These were things that at the time the Speaker knew nothing about and were
impossible for him to connect.
[219] Only later did it become apparent to the Speaker that he was being repeatedly beaten, deprived of
sleep, and apparently drugged, in an effort to force him to disclose the whereabouts of this money
required by the Crown in British Columbia.
[220] On or about August 1998 the beatings and other cruel punishment suffered by the Speaker
abruptly ended.
[221] Facts of the case before the trial court show the physical violence, and mental torment, as having
ended only a short time after the defendant Bulgaria received a fax from Crown servant, the
defendant Doornbos, advising that the Crown would close its 1995 criminal investigation in the
province. The cause given was the defendant Bulgaria's failure in providing the data first sought
after by the Crown in May and July of 1995.
2. Criminal and Quasi-Criminal Extortion
[222] The foresaid forms the basis of allegations in the case before the trial court that officials of the
defendant Bulgaria had unlawfully and repeatedly attempted to extort money from the plaintiffs in
the province with threats of violence against the Speaker in Bulgaria. The specific issues of these
claims are brought by the plaintiffs in the nature of a quasi-criminal proceeding against the
individual Bulgaria defendants named.
[223] The claims so formed are in aggravation of those other claims that sound in tort and the fact that
the governments of Canada and the defendant Bulgaria had not apologised and continue, in their
silence, to reaffirm the defamation and criminal misconduct of police and prosecutors in
performance of their duties.
3. Respondent's Reliance on its Criminal Prosecution of Speaker.
[224] The Speaker considers now, as he did in his written pleadings before the trial court, that the facts
surrounding his arrest and the related charges are immaterial to the proceedings in Canada except
as they might aggravate or alternatively mitigate any damages the plaintiffs suffered in British
Columbia.
[225] It is nonetheless worthwhile to briefly comment on the history of Speaker's prosecution, arrest and
treatment by the Respondent, only in so far as the defendant Bulgaria, in its written pleadings, has
undertaken to make these facts material to the present proceedings before the trial court and relies
on them to support its argument of immunity.
[226] On February 28th 2001 a Ms. Maya Dobreva, Minister Plenipotentiary and Consul ("Dobreva")
for the Respondent's embassy in Canada, in sworn written testimony, introduced to the trial court
facts of the Defendant Bulgaria's criminal prosecution of the Speaker.
[227] The foresaid information was allegedly provided to Dobreva by a third party, a Mr. Dimitar
Tonchev, the then Deputy Minister of Justice, Republic of Bulgaria.
[228] The statement of Dobreva appears to rely on the defendant Bulgaria's sovereign right to criminally
prosecute whom it likes, and relies on the existence of its criminal prosecution of the Speaker as
adequate cause to invoke its state immunity and deny jurisdiction to a court of Canada.
[229] In her affidavit Ms. Dobreva traversed such immaterial averment as the nature of the criminal
charges brought by the state of Bulgaria against the Speaker in 1995, and the participation of the
Crown in the prosecution, location and arrest of the Speaker. This has been detailed above.
[230] Ms. Dobreva failed to provide any factual particulars as to what information or assistance was
provided by the Crown to the defendant Bulgaria.
[231] It appears to this Speaker that the controversy raised by Ms. Dobreva over the jurisdiction of a
court of Canada is a moot issue if, as Dobreva asserts, the Crown jointly conducted investigative
actions in and outside of Canada with the defendant Bulgaria.
[232] According to the said Dobreva, both governments participated in the prosecution and arrest of this
Speaker, having done so on information, and charges, originating from the Crown in British
Columbia.
[233] The fact of the Crown having participated in the indictment, arrest and extradition of the plaintiff
(Kapoustin) are alone sufficient to bring a part of the plaintiffs' claims within the jurisdiction of a
trial court of the province, and to make the defendant Bulgaria a legitimate party to any
proceeding before a trial court of the province, notwithstanding its sovereign immunity.
[234] If this Speaker understands the common law, and the principles of international comity, it is not
for this Honourable Court to make any judgement on the criminal charges raised in the Dobreva
statement for the defendant Bulgaria.
4. What, If Any, Relevance to the Trial Court Surrounding the Criminal Proceedings
[235] A review of the Respondent government's charges and sentence under the criminal law, "lex loci
delicti", of Bulgaria are made relevant to the present facts of the case before the trial court only
insofar as the character of the accusations and nature of the sentence may affect the processes of a
trial court of Canada, and the individual rights of a party under the law of the "lex fori".
[236] Of particular significance to the enquiry here are the facts of the case that document the defendant
Bulgaria obstructing the Speaker's access to a trial court of the province in pursuit of his claims.
[237] The Speaker is asserting that neither the character of criminal charges, or nature of any sentence
under the "lex loci delicti" of Bulgaria do not, and cannot, permit the defendant government's
agencies to hinder, or otherwise limit the fundamental civil rights of a person deprived of liberty
when acting under the "lex fori" of a trial court in Canada.
[238] In the alternative, the Defendant Bulgaria having wrongly claimed before the trial court that
persons deprived of their liberty are also deprived of other fundament civil rights, i.e. to appear
before a civil court to prosecute or defend their legitimate interests and property rights against the
defendant Bulgaria. The court is asked to refer to the May 9th 2001 letter of the defendant Bulgaria
[see Vol 1, Tab. No. 9 of the Plaintiffs Factum].
[239] A principal of law relied on by the plaintiff before the trial court holds that a person whose liberty
has been deprived continues to retain his or her civil rights as naturally flow from principles found
in international law binding on both the "lex loci delicti" of the defendant Bulgaria, and the "lex
fori" of the provincial trial court. International law recognising as equal to other citizens the legal
rights of a prisoner to access a civil proceeding before any court of a member state, Canada
included.
[240] The course of the proceedings before the trial court show the Speaker as only asserting his
fundamental civil right of access to this, or any, court's processes and jurisdiction. That such right
cannot be limited by the defendant Bulgaria, its officials, agencies or instrumentalities, since no
such limitation is prescribed in the law of the "lex loci delicti" of Bulgaria.
[241] If any such limitation on the rights of the Speaker, or other persons deprived of liberty were to
exist as national law, such law would be in conflict with the accepted principles and obligations of
international conventions and therefore invalid.
[242] Having said the above, then how can the events of the criminal proceedings relevant to the
defendant Bulgaria limiting the Speaker's other civil rights? They cannot.
[243] The attempts by the defendant Bulgaria to justify the restrictions it has placed on the Speaker are
doomed to fail before any court of law in Canada or any international tribunal.
5. What Are the Facts of the Criminal Case The Defendant Bulgaria Relies On?
[244] The Speaker, at the risk of being redundant, believes it for the sake of clarity to be worth repeating
the facts of the criminal proceedings initiated by the Republic of Bulgaria against the Speaker in
the context of the civil proceedings initiated by the plaintiffs in Canada. What follows are fact
confirmed by the defendant Bulgaria absent of the following details.
[245] On July 7th 1995 Government of Canada, in a letter to the Respondent, provided it with R.C.M.P.
conclusions, including a statement of facts allegedly collected in British Columbia, of what the
R.C.M.P. concluded was the Speaker's criminal activities in Canada and in Bulgaria. The letter
goes on to identified to the Respondent that the R.C.M.P. had concluded that the activities of the
Speaker and his "LifeChoice" companies are an international criminal organisation operating in
Canada and Europe. The R.C.M.P. concluded that Speaker's activities were criminally qualified
under Canadian law as a major fraud and money laundering businesses operating in British
Columbia and elsewhere.
[246] The foresaid letter made conclusions of a connection between criminal activities in British
Columbia to the Speaker's activities and company in Bulgaria. The Government of Canada
requests the defendant, the Government of Bulgaria, to prosecute the Speaker and his company on
the evidence and conclusions provided in the letter, on doing so to then forward any operative
information to the Attorney General of British Columbia.
[247] On July 8th 1995, defendant government of Bulgaria officials use the facilities of state owned, or
controlled, mass media agencies to publicly distribute the oral, and written, R.C.M.P. conclusions
and information on this Speaker's allegedly criminal activities, his charges and his convictions in
British Columbia. None of the defendant Bulgaria's public statements and distribution of the
information originating from the Crown proved to be true.
[248] On July 17th 1995, as a direct result of the conclusions and request provided by the Crown, the
defendant Bulgaria instructed its agencies to take legal action against the Speaker, his company
and any companies or persons associated to him. The defendant Bulgaria agreed to act on the
Crown request to criminally prosecute the Speaker, having ordered the Main Public Prosecutor of
the Republic of Bulgaria to bring charges and arrest the Speaker.
[249] The defendant Bulgaria also proceeded to order its scientific and commercial enterprises to
terminate all joint commercial activities and contracts with the plaintiffs connected to the Speaker.
[250] Commencing on or about July 1995 the Defendant Bulgaria ordered its tax, customs and police
agencies, to seize all the plaintiffs’ assets, tangible and intangible, and documents in Bulgaria. The
said agencies having placed the plaintiffs’ property under the control of private parties appointed
by it.
[251] On October 26th 1995 the defendant Bulgaria had its national police services, know as the
"National Investigative Service" ("NIS"), seizes the remainder of the plaintiffs’ assets and records
in Bulgaria. The Defendant having charged the Applicant of the crime of embezzlement through a
"pyramidal fraud", and relying solely on the previously mentioned the July 1995 representations
of the Crown.
6. Speaker's Arrest and Extradition
[252] On November 22 1995 the defendant Bulgaria agency, the National Investigative Service (NIS),
ordered police investigator, the defendant S. Georgiev, to issue the international warrant for the
Speaker. Defendant Georgiev relied on the exact words found in the July 1995 Crown request to
indict the Speaker.
[253] Here significance must be attached to the fact that there is no participation whatsoever by any
judge or court in the preparation or authorisation or issuance of a warrant for arrest. Up to very
late in 2000 decisions on matters of habeas corpus having been within the exclusive ambit of
police and prosecution officials who formulated the charge, issued warrant, affected the arrest and
prosecuted the case in the absence of judicial supervision or review. This practice and procedure
was later legislatively amended in 1998, and again in 2000, after a number of European Court
(EC) of Human Rights judgements against Bulgaria, beginning with the seminal case of Assenov
and Others v. Bulgaria, Judgement of 28 October 1998 Reports of Judgements and Decisions
1998, [see among others: Nikolova v. Bulgaria Judgement of 25 March 1999, Reports of
Judgement and Decisions 1999].
[254] The Speaker's first judicial review of his arrest did not occur until more than two years and two
months after his arrest. Furthermore, there existed at the time of the Speaker's arrest no procedure
for appellate court review of a detention order issued by the prosecutor or a district court judge.
[255] The charge brought by Bulgarian police (NIS) in November of 1995 was an alleged
embezzlement by the Speaker as an "official" (director) employed by the Speaker's company in
Bulgaria.
[256] The court will recall it was a servant of the Crown, Defendant Doornbos, having contacted the
defendant Bulgaria in May and July of 1995, and wrongly accusing the plaintiffs' companies as
part of an international criminal organisation operating out of Canada.
[257] It was known at the time of the Crown's indictment of the plaintiff Kapoustin, that its charges
were legally and factual unsupportable, in point of law or fact completely groundless.
[258] The seminal case on this particularly question of fact, an alleged misappropriation, and law, a
collective decision by a management body, was reviewed by the EC of Human Right in Lukanov
v. Bulgaria, judgement of March 20 1997, Reports of Judgements and Decisions 1997-II. There
the court found against the Respondent Bulgaria for bringing accusations of embezzlement against
one official for what had been a collective decision approved by all responsible officials, none of
whom had independently lodged any complaint. In the cited EC judgement the transaction
involved public funds, in the Speaker's circumstances the transaction involved private funds the
patrimony of which, by the defendant Bulgaria's own admission, must devolve to the plaintiffs'
company in British Columbia by way of their 100% ownership of the Bulgarian company's shares.
[259] On February 6th 1996, the Speaker was arrested by German police while in transit to Greece at
Frankfurt International Airport on the very same data as provided by Crown having been
embodied in the defendant Bulgaria's international police warrant.
[260] According to the sworn statement of Ms. Dobreva before the trial court in this proceeding, the
Speaker's location, and arrest, are possible only thanks to the assistance provided by the Crown
and an agency of the Government of Canada.
[261] On February 12th 1996, while detained by German police, the defendant Bulgaria raised new
charges against the Speaker of misappropriation of his company's funds by documentary fraud,
general fraud, and income tax evasion.
[262] On or about August 1st 1996 the Speaker, was hospitalised at the order of prison medical staff in
Germany and placed on intravenous feeding.
[263] On September 2nd 1996, at the order of the German federal prosecutor, prison medical staff
removed the Speaker's intravenous feeding. German police officers arrived at the prison and
carried the Speaker, unconscious, to an awaiting vehicle.
[264] After a medical examination at Frankfurt international airport the Speaker was taken by airport
ambulance, then physically carried to an awaiting Bulgarian Balkan Airlines aircraft. On arrival in
Sofia, Bulgaria, the Speaker was hospitalised by the defendant Bulgaria for an additional 16 days.
[265] On September 18th 1996 the Speaker was relocated by the defendant Bulgaria to a solitary
confinement facility at a police detention facility in Sofia, Bulgaria, he remained there alone. The
cell was unventilated, having no natural light. What was available was a 60 Watt yellow
incandescent bulb. The Speaker experiencing his first beatings here.
[266] On or about the end of October, early November, the Speaker was again relocated to another
facility where he was isolated. His cell there differed little from that of the previous facility except
for toilet facilities and some natural light. The beatings continued, and the Speaker reported to
Canadian authorities having been drugged on more than one occasion. He remained in isolation
here for an additional period of two (2) years.
[267] The average maximum detention in such facilities is typically six (6) months. The Speaker
continues to hold the defendant's record for the longest period in solitary confinement at a police
arrest facility since 1991.
[268] On September 7th 1998 the Speaker was moved by the defendant Bulgaria to solitary confinement
facilities located at the Sofia Penitentiary where he remained an additional 6 months with
intermittent stays at the prisons infirmary.
[269] This Speaker remains remanded at the Sofia Central Penitentiary awaiting a final verdict.
7. Speaker's Arraignment and Trial
2.8.7.1. The Indictment

[270] On December 10th 1998 the defendant Bulgaria brought final charges, having entered an
indictment for an embezzlement aided by a fraud.
[271] It was alleged by the defendant Bulgaria that the Speaker had misappropriated funds he had first
defrauded from 4831 individuals. The alleged subject of the indicted crime, embezzlement, was
the same subject of the preceding crime, the fraud, it being alleged that to get the funds to be
embezzled later the Speaker had to first defraud others of the funds. Needless to say the Speaker
and his attorneys at the time were completely confused by the indictments legal construction.
[272] The Speaker argued estoppel, contending that since the subject of the alleged two
misappropriations was one and the same property, the act misappropriation by embezzlement
could not be linked to the preceding act of misappropriation by fraud.
2.8.7.2. The Trial and Conviction

[273] On April 16th 1999, three (3) years and three (3) months after his arrest, the Speaker was
arraigned for the first time before a justice of the Sofia City Court.
[274] The district court allowed bring new elements in the indictment different from those brought at the
time the Speaker was arrested on February 7th 1996 and for which Germany later extradited the
Speaker on September 2nd 1996.
[275] A repeated defence thesis during the Speaker's arraignment was that an alteration of the
extradition elements of the charge violated international law -the European Convention on
Extradition - in the absence of the extraditing state - German - consent.
[276] On January 14th 2000, the defendant Bulgaria withdrew the April 16th 1999 indictment and
original accusations against the Speaker, raising instead a new charge, having different
circumstantial and factual elements but the same criminal code qualification, the presiding judge
allowing the new charges.
[277] On March 13th 2001 the Sofia City Court convicted the Speaker of embezzlement of his
company’s funds and sentenced him to 23 years of hard time. The maximum sentence for
embezzlement is 30 years. The only victim of the crime identified by prosecution and the
convicting court was the plaintiffs' wholly owned subsidiary company, "LifeChoice" incorporated
by the plaintiffs and the Speaker in Bulgaria.
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.
2.8.7.4. Supreme Court of Bulgaria - Protest and Appeal

[280] On August 20th 2001 the defendant Bulgaria ordered its prosecutor to protest to the Supreme
Court of the Republic of Bulgaria that the appellate court had erred in law and fact when
acquitting the Speaker. The defendant Bulgaria seeking the Supreme Court of Bulgaria to declare
the acquittal invalid, setting aside the appellate decision and returning the Speaker for a new trial
before the first or second instance courts.
[281] On August 22nd 2001 the Speaker appealed his innocence, and the appeal court having in part
erred in law when, inter alia failing to observe applicable principles of international law on
bringing new elements to a charge of fraud different from those for which the Speaker had been
extradited. Having also erred in fact when finding, inter alia, that the Speaker had personally
affected, at different times and places, each of the alleged misrepresentations, through
intermediaries, and thereby having alone defrauded more than 2,500 individuals.
[282] As of October 7, 2001 six (6) years and five (5) months have passed since the defendant Bulgaria
acted on the July 7th 1995 request of the Crown to prosecute the Speaker, its criminal
investigation. Five (5) years and nine (9) months have passes since the Speaker's arrest.
[283] As of the moment of this memorandum there is no final verdict or determination on what charges
the Speaker will ultimately be sentenced on, or retried, by the defendant Bulgaria. Such an
indeterminate judicial state of an accused is consistent with the practice of the defendant Bulgaria.
3. Practices of the Defendant Bulgaria Existing In Aggravation of the Claims
3.1. Conditions in the Republic of Bulgaria

1. 1996
[284] As the Court may recall the Speaker began his detention in Bulgaria on 2nd September 1996.
[285] The conditions in Bulgaria and the treatment the Speaker could expect and did later encounter
were set out in 1996 by USAID [see: www.usaid.gov/countries/bg/bulseed.htm] it reported:
"The Government generally respects basic human freedoms, but serious human rights
problems remain. Police are not sufficiently accountable for abuses, including the beating and
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:
"The deteriorating human rights situation is further compounded by a pattern of impunity of

law enforcement officers responsible for human rights violations. International standards
require prompt, thorough and impartial investigations into reports of human rights violations
by law enforcement officers. However, the information on such investigations is seldom
made public…..Failure to bring to justice those responsible for human rights violations is in
itself a violation of international obligations. Furthermore in order to prevent such human
rights violations from reoccurring, the Bulgarian authorities need to clearly indicate that such
conduct is totally unacceptable."
[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:
"In January 1994 a series of gangland killings culminated in an incident in the Beli Brezi in
Sofia in which riot police, reportedly trailing an underground suspect, shot dead two anti-
terror officers by mistake. The killed officers were allegedly guarding a meeting between
government officials and members of the criminal underworld. In January 1996 [one month
prior to the Speakers arrest] two police officers responsible for the killing were brought to
trial, in which the hearings were held in camera. Their superior officer at the time, Captain
Khristo Savov, later chief of the Regional Department of Internal Affairs Unit for
Combating Organised Crime, and another police officer were arrested on 26 February
1996 in Sofia on charges of racketeering….The Ministry of Interior then reportedly
initiated an inquiry into possible links between police and the criminal underworld but there
was no information as to whether it was completed and if so with what results."
[Emphasis and [ ] Added - Mine]
[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;
"Ill treatment and beatings in police custody are common in Bulgaria and there now exists a
pattern of almost casual violence which Amnesty International believes must urgently be
addressed….Violence on the part of the police at the time of detention is also frequent."
[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.
[310] It is recalled from the AI report of 1996 that the defendant Bulgaria's interior police was known to
be co-operating with, and protecting, high ranking members of organised crime.
[311] The Ministry of Interior continues its practice of not co-operating in complaints against its officers
or facilities under its control. It may be remembered that the Ministry of Interior affected all the
seizure of property belonging to the plaintiffs in Bulgaria, and records of their companies.
[312] The Ministry of Interior was responsible for efforts in Bulgaria connected to the discovery of the
whereabouts of funds the Crown had advised the said ministry of on July 7th 1995 as having been
located in the province.
[313] We find from the facts placed before the trial court that the Crown was actively engaged with
members of an agency of the defendant Bulgaria having been indicted by international community
for gross violations of human and civil rights.
[314] The plaintiffs are alleging before the trial court, in aggravation of their claims against the
defendant Bulgaria and the Crown, that the beating of the Speaker, and attempts in Canada to
extort money from the plaintiffs are organised by officers of the Internal Affairs Unit for
Combating Organised Crime, Ministry of Interior of the defendant Bulgaria.
[315] On February 25th 2000, the United States State Department "1999 Country Reports on Human
Rights Practices" [see: www.state.gov/www/global/human_rights/1999] wrote:
"The judiciary is independent but suffers from corruption and continues to struggle with
structural and staffing problems.
"Most internal security services are responsible to the Ministry of Interior, including the
Central Service for Combating Organised Crime, the National Security Service (civilian
intelligence), internal security troops, border guards, and special forces. Although
government control over police is improving, it is still not sufficient to ensure full
accountability. The Special Investigative Service (SIS), reduced in size by a recent
reorganisation, is a judicial branch agency and therefore not under direct government control.
Some members of the police committed serious human rights violations"
[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".
[323] Human rights monitors received from credible sources reports of "numerous cases of brutality
committed by prison guards against inmates" and that "the process by which prisoners may
complain of substandard conditions or of mistreatment does not appear to function effectively".
The Speaker has himself briefly documented his own experiences in Part 1 [see above: "Fact of
the Case: Respondent's Reliance on its Criminal Prosecution of the Speaker"].
[324] The U.S. State Department reported noting that the Bulgaria Constitution [as cited below]
provided for access to a lawyer at the time of detention. It further observed that the law required
that all pre-trial investigation to be completed by the prosecutor in the worst case not more than 9
months.
[325] However, a survey of prisoners and reported cases showed that 54 percent of those arrested were
denied access to an attorney and in practice the simplest investigations took one and even two
years to bring to trial. Even then, the State Department reports, cases were returned by prosecutors
or judges for more investigation or as a result of violations of a detainee’s right to defence. The
court may recall the speaker’s case took more than 3 years to investigate, of which he spent the
better part of those years in solitary confinement.
[326] Local observers reported to U.S. State Department sources that organised crime influences the
prosecutors’ office. This report reinforces Amnesty International and Human Rights Watch
reports that the judiciary has "antiquated procedures", a heavy backlog of case and there
continues to be wide spread corruption.
[327] The Observation Committee of the Parliamentary Assembly of the Council of Europe in
December of 1998 prior to its dissolution related concerns that there were "inadequate safeguards
for the independence of the judiciary in the country."
[328] Of significance to the case before the trial court and the present enquiry into the conditions from
which the Speaker must prosecute his law suit are the words found in a U.S. State Department
report:
"It is alleged that warrants to investigate suspects' private financial records sometimes are
abused to give police broad and openended authority to engage in far-ranging investigations
of a suspects' family and associates. There are regular, albeit not conclusive or systemic,
reports of mail, especially foreign mail, being delayed and/or opened."
[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
[333] AI continued to express concerns in its August 2000 report about the continuing "high incidence
of reports of ill-treatment by Bulgarian police officers. A questionnaire survey conducted among
nearly 1000 convicts in Bulgaria's prison system on behalf of the Bulgarian Helsinki Committee in
early 1999 revealed over half claimed that they were tortured or ill treated during arrest", causing
AI to conclude that ill treatment continued to be a "systemic, institutional problem".
[334] The Bulgaria government agencies continue to refuse to provide human rights organisations with
reports into case of torture or ill treatment... AI writing that such refusals "cast doubt on their
conduct". The AI Annual Report 2000 made the following conclusions that are significant to the
trial court proceedings and present applications before the Court of Appeal:
"There were reports of ill-treatment and torture by police, and of a death in police custody.
There are also reports that people who complained about torture and ill-treatment by law
enforcement officials were subject to intimidation or further ill-treatment."
"The UN Committee against Torture met in April and May to consider Bulgaria's second
periodic report. The committee found that Bulgarian law lacked a definition of torture and
failed to ensure that all acts of torture are offences under criminal law. The committee
expressed concern about continuing reports of ill-treatment by public officials,
particularly the police, especially of ethnic minorities. The committee also expressed
concern about the deficiencies in the system of investigation of alleged cases of torture
and the failure to bring those allegations before a judge or other appropriate judicial
authority."
3.2. Definitions of Torture

[335] It may be reasonable here to introduce to the court the internationally accepted interpretation
given to the terms "cruel, inhuman or degrading treatment or punishment".
[336] The Appeal Court is asked to extend the widest possible interpretation to the international
obligation of states, and the duty of the judiciary in protecting against abuses, whether physical or
mental, including the holding of a detained or imprisoned person in conditions which deprive him,
temporarily or permanently of the use of any of his natural senses, such as sight or hearing, or of
his awareness of place and the passing of time. [See for reference: Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N.
GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987 as
follows:
· "PART I
· "Article I
"1. For the purposes of this Convention, the term "torture" means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions."
[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
"1. For the purpose of this Declaration, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a
public official on a person for such purposes as obtaining from him or a third person
information or confession, punishing him for an act he has committed or is suspected of
having committed, or intimidating him or other persons. It does not include pain or suffering
arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with
the Standard Minimum Rules for the Treatment of Prisoners.
"2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading
treatment or punishment.
"Article 2
"Any act of torture or other cruel, inhuman or degrading treatment or punishment is an

offence to human dignity and shall be condemned as a denial of the purposes of the Charter
of the United Nations and as a violation of the human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights .
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.
Part III. ERRORS IN JUDGEMENT

[342] The untrained lay applicant risks much when attempting the practice of law. Among these risks
there exists the embarrassment and foolishness of making statements or arriving at conclusions
that are inconsistent with the practice of the common law or intent of the enactment relied on.
[343] If simplicity and clarity of purpose are twin virtues to the practice of any science, including law,
then at the risk of appearing foolish this Speaker respectfully puts to this Honourable Court that
the error in judgement is on a point of law, and might well be thus expressed:
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?
13. Did the Master err in judgement when failing to observe the negative consitutional restriction
under the Charter on any practice and procedure that directly or indirectly discriminates
solely due to a persons "other status" in Canadian society? i.e. as an indigent person having
been deprived of his liberty abroad. The Master failed to be senitive to the negative legal
affects of an order inevitably and unreasonably prejudicing the legitimate interests, and lawful
rights of a citizen of Canada solely due to his other status. The Master's order unresponsive to
the three observable elements representing insurmountable fiscal, physical and other practical
barrieiers acting to jointly and severally bar a citizen in the exercise of his fundamental rights
before the court.
Part IV. ARGUMENT AND ANALYSIS
1. The Arguments Evolution

[344] The use of exclusion in achieving simplicity, and clarity, can only belie the complexity of issues,
and the difficulty of the questions to be answer.
[345] No pretence is made to fully understanding the relevant law as it may apply to the issues raised.
However, not withstanding the inadequacy of the present Writer the attempt must nonetheless be
made.
[346] This effort may prove incompetent in its individual parts. However, collectively the course and
development of this Writer's layman reasoning appears to be consistent with the self evident
propositions that flow naturally from the principles of international law.
[347] This Writer believes that his rights as a citizen of Canada are wrongly limited by a Master or
Chambers Judge when petitioning a provincial court from prison. This limitation solely due to his
indigent property status, and the loss of his self-determination.
[348] Ultimately, the significant issues rose in discussion, and the present applications, must in the end
turn on a comparative review on what the common law, and Canada's enactments have to say
about "reasonable limitations" on the rights of a citizen having an "other status" to equally access
the civil courts and justice. Particular emphasis is placed on discussing the international status, in
Canadian society, of an indigent citizen deprived of his liberty abroad.
[349] A central controversy in this enquiry arises from the occasion of a practice, and procedure of the
trial court found by the Applicant to indirectly apply unreasonable limits on his legal rights, and
those of others having an "other status" in Canadian society. The imitations are imposed by
reverse onus and result solely due to the observable fact of a person’s status as an indigent
prisoner.
[350] In the present discussion the Writer approaches the problem first from the a priori rights of all
members of a free and democratic society. Developing from such self evident propositions his
own reasoning, and conclusions that evolve a posteriori, from the facts and circumstances of the
case at Bar. The observable facts demonstrate, when placed against the self evident propositions
advanced under the principles of international law, and common law practice of Canada, that
unreasonable limitations are being imposed on a distinct group solely due to their status in
society.
[351] To advance the Writer's hypothesis that his a priori rights are unreasonably limited it is first
necessary to illuminate the similarities to be found under both the national laws of Canada and
Bulgaria. Significant, although not surprising, is that both national laws guarantee the same
fundamental a priori principles of civil and human rights. Central to this discussion is the
observable fact of both national laws having applied these a priori rights equally to proceedings
before the courts in suits in law - civil - as to those having criminal causes of action. The
governments of both Bulgaria, and Canada, having imposed negative restrictions on their
agencies, instrumentalities and courts from unreasonably limiting fundamental individual rights,
and creating a positive constitutional obligation, and duty of the courts under the respective lex
fori to guarantee fundamental a priori rights to all persons found to be under the sphere of duty of
either one of the two governments.
[352] It is compelling to recall that the civil and socialist law traditions of the Republic of Bulgaria have
in principle attempted to embody the same a priori rights as historically found in the common law.
However, recent history and a posteriori reasoning show that principle has yet to become fully
integrated into Bulgarian practice. An analysis of the Defendant Bulgaria's observance of its
international obligations to individual rights, and the rule of law is discussed later.
[353] This discussion examines the historic and current conduct of the Defendant Bulgaria as a
contributing factor to the unreasonable limitations of the Applicant's a prior rights having
ultimately a factor affected his procedural possibilities as a party before a trial court in British
Columbia.
[354] In aggravation of this Applicant's circumstances is the defendant Bulgaria's co-operation or lack
of co-operation with the plaintiffs during the course of the proceedings before the trial court. The
defendant Bulgaria's practice of using physical, or other means of coercion against persons it has
deprived of liberty are representative of this Applicant's own experience of having the said
defendant interfere with, or attempt to deter, him from prosecuting his law suit, or appeals, before
the court in British Columbia. Each such incident on record is representative of a breach of the
trial court's processes, Canadian law, and the defendant Bulgaria's positive international obligation
and duty to guarantee all persons their individual rights. Central to the discussion is a
consideration of what amount of coercive influence is reasonable on the part of defendant
Bulgaria, as a "private person", to limiting a plaintiff's a priori rights in a suit at law before a
court of Canada.
[355] Significant to this discussion is the legal obligation of all "private person(s)" appearing before a
court of law to not use interference, hindrance, obstruction or other forms of coercion to obtain
any advantage in a private law proceeding before a court of Canada. It is recalled that a state party
appearing in a private law proceeding, appears only in the capacity of a "private person", having
rights, and obligations equal to, and not more than, any other party, including the person it has
deprived of property and liberty. This leads inevitably to a discussion on a Master or Chambers
Judge constitutional duty to judicially examine, on petition, any complaint alleging a coercive
act(s) by a party interfering with the legal rights of the other party proceeding in a suit at law.
[356] What is immediately significant to any enquiry into coercive activities of a State's agencies is the
incontrovertible principle that a State must be aware of, and accountable for, the actions of its
officials, agencies, and instrumentalities. Equally incontrovertible is the fact of international
jurisprudence showing Bulgaria as not yet integrating this fundamental principle into its practices
as have the other free nations of Europe [As authority see European Court in Lukanov v. Bulgaria,
judgement 20-2-1997 at §40 par. 2].
[357] The historic and current practices of the defendant government of Bulgaria, its officials, agencies,
and instrumentalities provide compelling causus to bringing all three of the applications now
before the Appeal Court. For these reasons the Writer has undertaken to bring the defendant
Bulgaria's conduct under analysis, and within the ambit of the Appeal Court's jurisdiction when
considering this Writer's applications to extend time, recognise his indigence, and ultimately grant
him the relief he seeks in his intended appeal.
[358] The main issue here is of course the a priori rights of a litigant, and what limitations on those
rights are reasonable in a suit at law before a British Columbia trial court. The significant factor
appears to be the litigants "other status" in Canadian society, that of an indigent person deprived
of liberty, and the practice and procedure having employed a reverse onus to limit a persons
procedural possibilities to prosecute, or defend claims, notwithstanding the suit at law is against a
foreign state.
[359] From this point forward the purpose of this Writer's discussion attempts to logically prove his
thesis of the Charter placing a negative restriction on a Master, or Chambers Judge as well a
positive obligation, and duty to being responsive in guaranteeing the fundamental rights of
persons having an "other status" in Canadian society. The common law courts were conceived to
be sensitive to all administrative or executive body practices, and procedures that derogate from
the fundamental rights of persons having afflictions, and disabilities, the courts responsive as
defenders of their fundamental liberties. The Writer advancing within his thesis, a hypothesis.
That on the observable conditions of a petitioner having no property means, and no access to the
court solely due to an afflictive "other status", these conditions aggravated by allegedly coercive
acts of a defendant, among them obstruction of the processes of international justice. Are
conditions that act together in creating a positive constitutional obligation and special standard of
care and duty a Master or Chambers Judge when applying any practice and procedure affecting
the fundamental a priori rights of the petitioner? The Applicant's a posteriori reasoning is as
follows.
1.1. Law and Enactment Relied On.
[360] The Writer's argument will turn on the one point raised earlier: Are the equality rights of a
prisoner before a civil court in some way limited, internationally or nationally, by law or
enactment in such a way so as to permit a Master or Chambers Judge of the provincial court to
refuse to hear, or otherwise act positively on a written application of a indigent prisoner for
judicial review, and relief as a party to a suit in law.
[361] To fully develop his reasoning the Writer elected, more for himself than this Honourable Court, to
first review the historic development of fundamental, a priori, rights found under international
law. Later examining how such guarantees are incorporated, jointly and severally, into the
national legislation of both Canada, and the defendant government Bulgaria.
[362] After having examined these a priori propositions of international law, the Writer then attempts to
place them into the context of his judicial applications under the lex fori of Canada, and his
fundamental rights under the lex fori of the defendant Bulgaria as an indigent prisoner.
1. International Conventions - A Chronology
[363] Through the course of the proceedings before the trial court, the Speaker as a litigant and prisoner
has had to rely on certain principles of international law found to be binding jointly and severally
on the governments of Canada and the Defendant, the Republic of Bulgaria.
[364] What follows is a chronological review of international instruments, and national enactments
conceived for protecting the fundamental rights of all persons, notwithstanding the particular
territory or jurisdiction of the State where such person may be found. Certain of the documents
reviewed are conceived with the particular intention of establishing what are reasonable
legislative and judicial limitations to the fundamental rights of persons deprived of their liberty.
The provisions cited below are what the Applicant believes relevant to his thesis. The Applicant
having emphasised the particular part of a provision directly applicable to the development of his
arguments.
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].
"Furthermore, no distinction shall be made on the basis of the political, jurisdictional or

international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.
[Emphasis Added - Inserted "[ ] " and Text Mine]
"Article 6
"Everyone has the right to recognition everywhere as a person before the law.
"Article 7
"All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination.
"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……
[Emphasis Added - "[ ] " - Mine]
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
"1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property [indigence], birth or
other status [imprisonment].
"2. Where not already provided for by existing legislative or other measures, each State Party
to the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.
"3. Each State Party to the present Covenant undertakes:
"(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective [civil] remedy, notwithstanding that the violation has been committed
by persons acting in an official capacity;
"(b) To ensure that any person claiming such a [civil] remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the
possibilities of judicial remedy;
"(c) To ensure that the competent [judicial] authorities shall enforce such remedies when
granted.
"Article 3
"The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the present Covenant.
"Article 10
"1. All persons deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person.
"Article 14
"1. All persons shall be equal before the [civil and criminal] courts and tribunals. In the
determination of any criminal charge against him, or of his [civil] rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law…….[sic]"
"Article 16
"Everyone shall have the right to recognition everywhere as a person before the law.
"Article 26
"All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion, national or social origin,
property [indigence], birth or other status [imprisonment].
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
"RULES APPLICABLE TO SPECIAL CATEGORIES
"A. PRISONERS UNDER SENTENCE
"Guiding principles
"57.
"Imprisonment and other measures which result in cutting off an offender from the outside
world are afflictive by the very fact of taking from the person the right of self-determination
by depriving him of his liberty. Therefore the prison system shall not, except as incidental to
justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in
such a situation.
"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)
"SCOPE OF THE BODY OF PRINCIPLES
"These principles apply for the protection of all persons under any form of detention or
imprisonment.
"Principle 3
"There shall be no restriction upon or derogation from any of the human [civil] rights
of persons under any form of detention or imprisonment recognized or existing in any State
pursuant to law, conventions, regulations or custom on the pretext that this Body of Principles
does not recognize such rights or that it recognizes them to a lesser extent.
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
"PART I
BILL OF RIGHTS
"1. It is hereby recognized and declared that in Canada there have existed and shall continue
to exist without discrimination by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
"(a) ….
"(b) the right of the individual to equality before the law and the protection of the law;
"2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of
Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and
applied as not to abrogate, abridge or infringe or to authorize the abrogation,
abridgment or infringement of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be construed or applied so as to;
"(a) ……;
"(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;
1.1.2.2. Canadian Human Rights Act [Chapter H-6 1976-77, c. 33, s. 1.
"PURPOSE OF ACT
"2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview
of matters coming within the legislative authority of Parliament, to the principle that all
individuals should have an opportunity equal with other individuals to make for
themselves the lives that they are able and wish to have and to have their needs
accommodated, consistent with their duties and obligations as members of society,
without being hindered in or prevented from doing so by discriminatory practices based
on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status,
family status, disability or conviction for an offence for which a pardon has been granted.
R.S., 1985, c. H-6, s. 2; 1996, c. 14, s. 1; 1998, c. 9, s. 9.
"Multiple grounds of discrimination
"3.1 For greater certainty, a discriminatory practice includes a practice based on one or more
prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.
"Discriminatory Practices
”Denial of goods, service, facility or accommodation
"5. It is a discriminatory practice in the provision of goods, services, facilities or

accommodation customarily available to the general public
"(a) to deny, or to deny access to, any such good, service, facility or accommodation to any
individual, or
"(b) to differentiate adversely in relation to any individual, on a prohibited ground of

discrimination.
1976-77, c. 33, s. 5.
"25. In this Act,
"disability" means any previous or existing mental or physical disability and includes
disfigurement and previous or existing dependence on alcohol or a drug.
PART III
DISCRIMINATORY PRACTICES AND GENERAL PROVISIONS
"39. For the purposes of this Part, a "discriminatory practice" means any practice that is a
discriminatory practice within the meaning of sections 5 to 14.1.
R.S., 1985, c. H-6, s. 39; 1998, c. 9, s. 22.
1.1.2.3. 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
"Canadian charter of rights and freedoms
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
"15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
"26. The guarantee in this Charter of certain rights and freedoms shall not be construed as
denying the existence of any other rights or freedoms that exist in Canada.
"32(1)This Charter applies
"a) to the Parliament and government of Canada in respect of all matters within the authority
of Parliament including all matters relating to the Yukon Territory and Northwest Territories;
and
"b) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.
1.1.2.4. Human Rights Code [RSBC 1996] Chapter 210
"Definitions
"1 In this Code:
"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a) or (b), 10 (1) (a),
11, 13 (1) (a) or (2), 14 (a) or (b) or 43;
"Discrimination and intent
"2 Discrimination in contravention of this Code does not require an intention to contravene
this Code.
"Purposes
"3 The purposes of this Code are as follows:
"(a) to foster a society in British Columbia in which there are no impediments to full and free
participation in the economic, social, political and cultural life of British Columbia;
"(b) to promote a climate of understanding and mutual respect where all are equal in dignity
and rights;
"(c) to prevent discrimination prohibited by this Code;
"(d) to identify and eliminate persistent patterns of inequality associated with discrimination
prohibited by this Code;
"(e) to provide a means of redress for those persons who are discriminated against contrary to
this Code;
Code prevails
"4 If there is a conflict between this Code and any other enactment, this Code prevails.
"Discrimination in accommodation, service and facility
"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
"(b) discriminate against a person or class of persons [prisoners] regarding any

accommodation, service or facility customarily available to the public because of the race,
colour, ancestry, place of origin, religion, marital status, family status, physical or mental
disability, sex or sexual orientation of that person or class of persons [prisoners].
1.1.2.5. Prisons and Reformatories Act Chapter P-20 R.S., c. P-21, s. 1.
"TEMPORARY ABSENCE
"Purpose and Principles
"Purpose of temporary absence
"7. The purpose of a temporary absence program is to contribute to the maintenance of a just,
peaceful and safe society by facilitating, through decisions on the timing and conditions of
absence, the rehabilitation of prisoners and their reintegration into the community as law-
abiding citizens.
R.S., 1985, c. P-20, s. 7; 1992, c. 20, s. 207; 1995, c. 42, ss. 71(F), 72(F); 1997, c. 2, s. 2.
Principles
"7.1 The principles that shall guide designated authorities in achieving the purpose of a
temporary absence program are
"(a) that the least restrictive decision that is consistent with the protection of society and the
prisoner's rehabilitation and reintegration into the community be made;
"(b) that all available information that is relevant to the case be taken into account;
"(c) that prisoners be provided with relevant information, reasons for decisions and access to
the review of decisions in order to ensure a fair and understandable temporary absence
process; and
"(d) that the designated authority provide for the timely exchange of relevant information
with other participants in the criminal justice system and make information about temporary
absence programs and policies available to prisoners, victims and the public.
1997, c. 2, s. 2.
"Authorization of temporary absence
"7.3 (1) A designated authority may authorize a prisoner to be absent from prison with or
without escort, subject to any conditions that the authority considers appropriate, where it is
necessary or desirable in the authority's opinion
"(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]
Principles that guide the Service
"4. The principles that shall guide the Service in achieving the purpose referred to in section 3
are
"(a)…;
"(b)…;
"(c)…;
"(d) that the Service use the least restrictive measures consistent with the protection of the
public, staff members and offenders;
"(e) that offenders retain the rights and privileges of all members of society, except those
rights and privileges that are necessarily removed or restricted as a consequence of the
sentence;
1992, c. 20, s. 4; 1995, c. 42, s. 2(F).
Escorted Temporary Absences
Temporary absences may be authorized
"17. (1) Where, in the opinion of the institutional head,
"(a) an inmate will not, by reoffending, present an undue risk to society during an absence
authorized under this section,
"(b) it is desirable for the inmate to be absent from penitentiary, escorted by a staff member or
other person authorized by the institutional head, for medical, administrative, community
service, family contact, personal development for rehabilitative purposes, or compassionate
reasons, including parental responsibilities,
"(c) the inmate's behaviour while under sentence does not preclude authorizing the absence,
and
"(d) a structured plan for the absence has been prepared, the absence may, subject to section
746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act and subsection
15(2) of the Crimes Against Humanity and War Crimes Act, be authorized by the institutional
head
"(e) for an unlimited period for medical reasons, or
"(f) for reasons other than medical,
1.1.2.7. Correction Act [RSBC 1996] Chapter 74
"Temporary absences
"15 (1) The minister may authorize an inmate to be absent from a correctional centre with or
without escort, subject to any conditions that the minister considers appropriate, if in the
minister's opinion the absence is necessary or desirable
"(a) for medical, educational or humanitarian reasons, or
"(b) to assist in the rehabilitation of the inmate.
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.
1.1.3.1. Constitution of the Republic of Bulgaria [S.G. No. 56/13.07/1991]
"Article 5
"(4) Any international instruments which have been ratified by the constitutionally
established procedure, promulgated and having come into force with respect to the Republic
of Bulgaria, shall be considered part of the domestic legislation of the country. They shall
supersede any domestic legislation stipulating otherwise.
"Article 57
"(1) The fundamental civil rights shall be irrevocable"
"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;
1.1.3.2. Law on Execution of Punishments
[Promulgated S.G. No. 30 on April 15, 1969, alt. and add. S.G. No. 34 on April
30, 1974, No. 84 on Oct. 28, 1977; No. 36 on May 8, 1979; No. 28 on April 9,
1982 in force from July 1, 1982, S.G. No. 27, April 4, 1986; No. 89, Nov. 18,
1986; No. 26, April 5, 1988; No. 21, March 13, 1990; No. 109, Dec. 28, 1993;
No. 50, June 1, 1995; No. 12, Feb. 7, 1997; No. 13, Feb. 11, 1997; No. 73, June
26, 1998; No. 153, dec. 23, 1998].
"Chapter Two
"LEGAL STATUS OF INCARCERATED PERSONS
"Article 23. Incarcerated persons may avail themselves of (enjoy) all rights established by law
with the exception of the following:
"a) The rights they have been deprived of by a verdict;
"b) The rights, which have been denied to them or have been explicitly restricted by a law or
another enactment and
"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:
1.1.3.3. Criminal Code of Procedure of the Republic of Bulgaria

[Promulgated, S.G., No. 89/15 November 1974, Amended, S.G. No. 99/1974,
No., 10/1975, No. 84/1977, No. 52/1980, No. 28 and 38/1982, No. 89/1986, No.
31, 32 and 35/1990, No. 39, 109 and 110/1993, No. 84/1994, No. 50/1995, No.
107 and 110/1996, No. 54 and 95/1997, and No. 21/1998].
"Chapter 22
"Section VI Legal Assistance in Criminal Matters (new S.G. 64/1997)
"Appearance of Witness and Expert before a Foreign Court.
"Article 463
"(1)…[Sic]
"(2) Extradition of persons detained in custody to be interrogated as witnesses or experts shall
be allowed only in exceptional cases by discretion of composition of the respective district
court, on the grounds of papers submitted [ court subpoena] by the other country, provided
the person gives his consent for extradition, and the stay in the other country shall not exceed
the term of his detention in custody.
[Emphasis Added and [ ] Mine]
2. A Priori
2.1. The Rights of Individuals

[370] The foregoing body of international law represents both the negative restrictions on the State as
well as positive obligations, and duties of its national courts, as guarantors, to all persons of those
fundamental rights considered a prior as established through the process of international comity.
The community of nations having created a clear set of self evident propositions on fundamental
civil and human rights considered sine quo non in guiding member States, and the national courts
when determining the rights of all individuals.
[371] In particular there is created among the cited international agreements a set of principles to guide
member States in the treatment and fundament guarantees to all persons deprived of liberty. The
documents reviewed thus far having provisions allowing for prisoners to obtain their rights, or
fulfil their obligations before the court in a suit in law. It sine quo non a negative restriction the
State to not be seen to revoke, deny, or limit such rights beyond what is necessary to public safety,
and solely on account of a person's status as an indigent prisoner. This self evident proposition
notwithstanding that the rights and obligations in question are before a court of foreign
jurisdiction.
[372] It is equally a self evident proposition, and sine quo non positive obligation and duty of a State to
guaranteed to all persons, including those it has deprived of liberty, their a priori right to develop
a judicial remedy to their complaints, and to attend or be represented at judicial hearings in
proprio persona before any court having competent jurisdiction to make a determination of their
legal or property interests.
[373] There appears little within the provisions of international law, or its practice, that would appear to
suggest any argument even remotely plausible for an alternative to the cited negative restrictions
as well as positive obligations of a State once ratifying the cited international agreements, and
having incorporated the a priori principles found there into the national law.
[374] The previously cited body of international law, and the a priori principles found there, have long
ago been made an integral, and immutable part of the historically pattern followed by the peoples
of Canada, England and the United States. These self-evident propositions are woven into the very
fabric of the common law.
[375] What is significant to the present enquiry is that the cited international law embodies new negative
restrictions, as well as positive obligations of the defendant, Republic of Bulgaria to individual
rights. It worthy to recall in this discussion that the defendant Bulgaria's commitment to the right
of the individual is directly opposed to its historic development as a civil law nation. First as a
monarchy, then as a fascist, and most recently as a socialist state. Each historic permutation
having been geared towards a limited form of "structural" judicial review rather than the
protection of individual rights.
[376] The Defendant Bulgaria's historic practice of legislature supremacy in law as opposed to that of
judicial review continues today. Its current practice of rejecting the notion of judicial precedent
producing a diffuse system of limited judicial review inevitably having radically inconsistent
decisions rendered on identical constitutional issues [see as authority: Cappelletti, Judicial Review
in the Contemporary World 34 (1971) at p. 53-66]. This inconsistency is particularly observable
on judicial application of international law, and the a priori fundament rights that constitutionally
[see: Constitution Republic of Bulgaria, Art. 5§4 reprinted in Blaustein and Flanz, Constitutions
of the World] flow into Bulgaria's national law. This has produced significant problems for
persons deprived of liberty by the Defendant Bulgaria to secure from its agencies,
instrumentalities and institutions their fundamental rights. There exists a powerful tension
between Bulgaria's positive obligation and international duty to protect individual rights, and the
capability of its agencies or institutions to provide that protection effectively [see as authority: The
Judicial Role in Bulgaria's Struggle for Human Rights," by Albert Melone and Carol Hays, p.
248].
2.2. Access to A Court

[377] It is incontrovertible that non-judicial agencies of a State are directly responsible for a prisoner's
care, and the compliance of prison officials with the requirements of the previously cited
international law.
[378] The previously cited Prisons and Reformations Act, Corrections and Conditional Release Act, and
Correction Act embody the negative restrictions as well as positive practices, and procedures to be
observed by all responsible agencies of Canada when determining the fundamental a priori rights
to be denied or limited a person deprived of liberty.
[379] The previously cited constitutional law of Bulgaria, and by incorporation all Bulgaria's
international treaties, conventions or declarations, as well as its Law On Execution of
Punishments and Criminal Code of Procedure are the full embodiment of the negative restrictions,
as well as positive practices and procedures, to be observed by all responsible Bulgaria agencies
when determining the fundamental a priori rights to be denied or limited to a person deprived of
liberty.
[380] The international proposition of a judicial "remedy", and access to "competent
judicial…authorities" are guaranteed, and intended as the positive obligation and duty of the State
under Article 2§3 of the cited ICCPR.
[381] The Applicant reasons, a posteriori, there to be a further and fundamental element incorporated
into any interpretation of the positive obligation and duty of a State to provide access to a
"remedy" as flows naturally from international law. Articles 6, 7 and 10 of the UDHR, and
Articles 2, 14§1, 16 and 26 of the ICCPR are to guarantee to all persons the sine qua non element
of a "fair and public hearing" in any judicial determination of their rights and obligations in a suit
at law, notwithstanding their property status or deprivation of liberty. On the basis of which it is
only reasonable a person deprived of liberty first petition the State agency having a positive
obligation and duty to secure for him the means to physically access a court of competent
jurisdiction when having to prosecute or defend his interests. Here, the competent judicial
authority to determine the Applicant's judicial remedy and his legal and property rights in Canada
is incontrovertibly a court of the province of British Columbia.
[382] The positive expectations of a person deprived of liberty to be conducted by the State to any
hearing or trial where his legitimate interests may be negatively affected is more than a reasonable
one. The Writer recalling the cited UDHR as particularly significant when interpreting
reasonableness, the international community having declared at Art. 29§2 that "In the exercise of
his rights and freedoms, everyone shall be subject only to such limitations as are determined by
law solely for the purpose of securing due recognition for the rights of and freedoms of others and
of meeting the just requirements of morality, public order and the general welfare in a democratic
society."
[383] The self evident proposition that a prisoner retains, a priori, the right of access and attendance to
court in a suit at law is made reasonable by virtue of the very nature of incarceration as recognised
by the international community. Canada and Bulgaria having both made allowances under
national law for the temporarily absence of a prisoner, with or without escort, to attend in person
any hearing or trial judicially determining his rights, and other obligations under a suit at law. A
proposition reinforced by Principle 36§2 of the United Nations 1988 resolution on a Body of
Principles for Protection of All Persons under Any Form of Detention or Imprisonment that
declares: "The imposition of restrictions upon such persons which are not strictly required for the
purpose of detention or to prevent hindrance to the process of investigation or the administration
of justice, or for the maintenance of security and good order in the place of detention shall be
forbidden."
[384] In 1990 the United Nations additionally adopted the Basic Principles for the Treatment of
Prisoners. Of significance to the present enquiry is the declaration in Article 5 that "Except for
those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners
shall retain the human and fundamental freedoms set out" in the UDHR and the ICCPR.
[385] Canada and Bulgaria have as well embraced, at least in principle, the international tenets found in
the previously cited Standard Minimum Rules for Treatment of Prisoners (SMR). Significant to
this enquiry is Principle Rule 61 declaring that positive "Steps should be taken" by responsible
State agencies "to safeguard, to the maximum extent compatible with the law and the sentence, the
rights relating to civil interests….of prisoners."
[386] From the foregoing it would appear a prisoner retains his a priori rights in a suit at law. The State
having in principal agreed to negative restrictions, and in practice positive obligations. It the duty
of the judiciary to see the rights of prisoners when seeking a judicial remedy from the courts are
equal to the rights of other members of society, except only in so far as they must be limited under
a provision prescribed under law or by virtue of a sentence. However, as we have seen, the
prescribed limits under a sentence cannot be seen to unreasonably to limit a prisoner's sine quo
non right to legal redress for his grievances, and to access the competent judicial authority to do
so. There appears to be no exception, notwithstanding that the court of competent jurisdiction is
beyond the territorial reach of the State.
[387] It appears that the significant body of law, and principles reviewed thus far strongly suggest the
following. That the application of any practice or procedure by a State judicial or non-judicial
authority is wrong when having an affect that directly or indirectly restricts a prisoner's
fundamental rights or obligations before a court. The international community having voiced
strongly that it is not justifiable in a free and democratic society to have an administrative practice,
or procedure, limiting the legal and procedural rights of one individual solely due to the fact of his
or her other status, having lost of their self determination - liberty - and property. Any such
practice or procedure must be impugned and found invalid by virtue of its affect.
[388] On the basis of the above, that Applicant believed he had a right and the Defendant State of
Bulgaria a positive obligation to any person it deprived of liberty, to seek from the agency of the
Ministry of Justice, of the Republic of Bulgaria, to undertake its positive obligation to arrange
conduct custody of the Applicant to a judicial hearing. It is to be recalled the hearing in question
is one where the Applicant's legal, and property interests were to be affected, having been fixed by
the government of Bulgaria before the foreign jurisdiction of British Columbia.
[389] The Defendant Bulgaria's recognition of the provincial court of British Columbia as being the
only judicial authority able to make a determination of the rights and obligations of the parties is
of significant to the later enquiry.
2.3. Reverse Onus and Procedural Fairness.

[390] In the proceedings before the trial court in British Columbia the Defendant Bulgaria, in the case of
this Applicant, abnegated the foresaid positive international obligation and duty.
[391] The Ministry of Justice, Republic of Bulgaria, Deputy Minister Dimitar Tonchev, advised the
Applicant on four different occasions [see Vol. 1 Tabs 5, 11, 12, and 14 of Plaintiffs Factum as
filed] of the following. That Bulgaria has no positive international obligation, or duty to allow or
secure for a Canadian citizen person deprived of liberty, what are, a prior, legal rights
guaranteed under international law whenever there is a suit at law before a court having
competent jurisdiction. Canada and Bulgaria having no bi-lateral agreement to allow the
Applicant access to a Canadian court of law. Conduct in custody to British Columbia was
impossible. It finally up to the trial court of British Columbia to decide to act on any positive
obligation and duty, if any, that Canada might have to its citizen's a priori rights in a suit at law.
Canada's positive obligation and duty flowing from its national and international commitments to
its citizens.
[392] On having abnegated its positive international obligations, and duty to guarantee individual rights
for which Bulgaria is accountable under its international agreements, the said defendant Bulgaria
has wrongly placed a reverse onus on the Applicant and Canada.
[393] This reverse onus required the Applicant, a person deprived of his property and liberty by the said
State, to attempt to engage from prison, the trial court of British Columbia, and government of
Canada, to act where in fact international agreements appear to require agencies of Bulgaria to act.
[394] By virtue of its action or inaction, the Defendant Bulgaria knowingly placed a reverse onus on a
person it has deprived of liberty. The prisoner required to undertake what is otherwise a State's
positive obligation and duty. Its agencies expected to provide a prisoner the means of accessing
the judicial authority competent to determine his rights and obligations in a suit at law.
[395] The forgoing made it necessary and reasonable for the Applicant to attempt to develop a judicial
remedy to the Defendant Bulgaria's refusals and its reverse onus. To do so the Applicant
complained directly to the trial court of the coercive measures employed by the defendant
Bulgaria. Petitioning the Master to judicially review his complaints as a citizen of the province,
and party to a suit at law in the province. The Applicant seeking a judicial review and reasonable
remedy to the defendant's - Bulgaria - reverse onus, and coercive acts obstructing, or hindering the
Applicant in his lawful right to effectively access the trial court. It stressed to the Master that in
the absence of form of procedural relief the Applicant's prosecuting, or defending his legal
interests before the court would be nearly impossible.
[396] Application to the provincial court relied on what was believed to be an incontrovertible principle
in law of the trial court in a suit at law, as the lex fori of the proceedings, having inherent
jurisdiction to determine all questions of fact affecting the procedural fairness of any hearing or
trial. Having this in mind the Applicant relied on a Master or Chambers Judge having, a priori, a
constitution duty and positive obligation to judicially review his petitions from prison. The
Applicant believing only the nature of the judicial remedy to be discretionary, if there was to be
one.
2.4. A Priori Rights in a "Suit in Law"

[397] The foregoing leads naturally to a question in the mind of the Writer; Can either the government
of Bulgaria, or that of Canada, deny the means and facilities necessary to its indigent foreign
prisoners to fully prosecute, or defend, a law suit brought before a foreign court?
[398] Also aroused in the mind of this Applicant was if the common law interpreted the a priori
principles of international law as incorporated under the Canadian Bill of Rights, Human Rights
Act and Constitutional Act, to apply only to criminal proceedings, and not to a suit at law.
[399] The a priori principles of international law reviewed strongly suggested to this Applicant the Sate
having the same negative restrictions as well as positive obligations in a suit at law as it does in a
criminal proceeding. The previously cited ICCPR proved particularly significant to the present
enquiry, Article 14§1 reading: "All persons shall be equal before the courts and tribunals. In the
determination of ….his rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing."
[400] The ICCPR has legally, and morally, bound the judicial, and non-judicial officials of agencies, or
instrumentalities of the governments of Canada, and Bulgaria, to an incontrovertible positive
obligation, and duty to apply to any "suit at law" - a civil proceeding - the same a priori rights
having earlier been set out in the UDHR.
[401] The ICCPR ended all confusion, at least in the Applicant's mind, and providing him the
international instrument necessary to his establishing a nexus between his "suit at law" in British
Columbia, and his incontrovertible a prior rights under international law as an indigent person
deprived of his liberty when party to a civil proceeding. Ending the apparent confusion on the
right of a prisoner to demand participating in the prosecution or defence of a suit in law.
[402] The ICCPR is significance in another way. There does not appear within its text any exception, or
saving provision, permitting a State to derogate from, or unreasonably limit a person in the
exercise of his procedural rights, or obligations, in ”a suit at law" solely due to the fact he is a
person deprived of liberty.
[403] The cited international agreements all have one overriding a priori principle as a negative
restriction on all democratic governments in unreasonably limiting or denying the fundamental
rights, or obligations of a person, whether engaged in a criminal proceeding or a suit at law
affecting a person's legitimate legal and property interests, notwithstanding that person to be the
States prisoner.
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.
[406] A person's status in society is a significant factor in determination of his rights. Property or other
status may pose significant barriers in the exercising of the fundamental rights other citizens of a
democracy otherwise take for granted. The positive international obligations and duty of a State,
as opposed to negative restrictions, is to be sensitive and responsive to those persons having a
property or other status that derogates from their fundamental a priori rights i.e. to develop a
judicial remedy before a court in a suit at law.
[407] Later, a positive judicial obligation and constitutional duty of the courts appears to develop on
complaint of a person, or distinct group of persons against the State or some other party. The
courts appear required to judicially determine, a posteriori, if rights and obligations under law to a
particular person, or group of persons, somehow result in direct, or indirect discrimination solely
due to a disadvantage of property or other status. Any such a determination is only possible on a
review of the facts and circumstances placed in evidence before the court. Only afterward, is it
possible to discuss the positive obligations, and duty of a government and the courts to a person
having a status so different from others that it acts to negatively impact on his a priori rights.
3.1. A Prisoner's "Other Status"

[408] International law includes a negative restriction strictly forbidding a State to use a "distinction of
any kind" based on property, nationality or other status to limit a persons a priori right to access a
judicial remedy.
[409] The elements significant here to determining "other status" are those of a persons "property", here
indigence, and his "self determination", here deprivation of liberty. The issue being what affect
such elements have on the practice and procedure to be followed in a suit at law.
[410] Therefore it is significant to the present enquiry to determine the status of an indigent prisoner in
society as one requiring a positive obligation, and duty from the judiciary to be responsive in
guaranteeing the a priori rights of all persons having this "other status" when petitioning the
courts for a judicial review and remedy.
[411] While prisoners are not distinctly incorporated into the seminal UDHR, and the later ICCPR as
having "other status", it nonetheless appears reasonable to conclude, a posteriori, the drafters of
these declarations having prisoners in mind when broadly including "other status" at the end of
"race, colour, sex, language, religion, political or other opinion, national or social status…".
[412] Clearly other status must be one given a sufficiently broad interpretation to encompass within its
ambit any individual, or group of individuals having some distinct nature, or character. One
sufficiently afflictive, or disadvantageous to a particular group that there exists a real, or perceived
potential for direct, or indirect discrimination solely due to it members having a status different
from the rest of society. The potential for the abuse of individual rights, and freedoms of indigent
persons deprived of liberty within the Republic of Bulgaria are discussed in some detail
previously under in Part 1: Statement of Facts: Practice.
[413] The Applicant's analysis and argument, a posteriori, relies on the court accepting the proposition
of a prisoner belonging to a distinct, and disadvantaged group having the acquired "other status",
within the context found under UDHR Article 2, when declaring: "Everyone is entitled to all the
rights and freedoms set forth in this Declaration, without distinction of…property.. or other
status.”, and ICCPR Article 2§1 that declares "…the present Convention undertakes to respect
and ensure to all individuals within its territory and subject to its jurisdiction the rights
recognised…without distinction of any kind such as…property…or other status."
[414] Independently the elements of "property” and "self determination" are not enough to derogate, or
otherwise limit, the a priori rights of a person to develop his legal remedy in a suit at law. The
following reasoning appears to apply to judicial practice and procedure in both Canada and
Bulgaria:
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.
15. A person deprived of self determination by a State on having been deprived of liberty, yet
retaining property, may engage a legal representative to appear on his behalf in a suit at law
to prosecute, or defend his legal and property interests before the court. Alternatively, where
it is necessary for some reason for the prisoner to attend, the State has a positive obligation
and duty to allow or secure a reasonable and necessary means for him to appear and protect
his interests before the court.
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.
3.2. A State's Positive Obligation and Duty To A Person Deprived Of Liberty.

[420] As has been discussed earlier, there is inclusive with any of the other positive international
obligations of Canada, and Bulgaria, the duty of government agencies to secure the means for a
person of "other status" - deprived of liberty - to access justice. The right to have petitions, and
arguments heard and judicially decided is sine quo non a right in any adversarial proceeding
before a court of competent jurisdiction. Where the person is a prisoner, the responsibility in
securing that right belongs to the State.
[421] It follows naturally from the previous discussion that a State's law makers have the responsibility
to set out practices, and procedures for agencies and instrumentalities to observe in practice what
has been set down in principle. Both judicial and non-judicial bodies are required to react
responsively to the State's positive international obligation and duty to guarantee to prisoner
“recognition".
[422] In principle, as we have seen, there exists a negative restriction to a State limiting a prisoner's
fundamental rights beyond what is necessary for public order and safety or solely due to the
competent jurisdiction, forum conveniens, happening to be a foreign trial court - British Columbia.
What is of significance here is the obligation that exists to be react positively and responsively to
circumstances that indirectly limit fundamental rights solely due to the "other status" of the
person.
[423] There appears to be no rule under law, practice or procedure that proved a legal obstruction under
Bulgaria or Canadian law or the SCBC Rules of Court and the principles of international law, for
one party, a Canadian citizen and resident of the province, to be barred from a provincial court of
British Columbia solely due to having been deprived of his liberty in the Republic of Bulgaria by
the other party, the Defendant government of Bulgaria.
[424] Furthermore, there appears no provision under international law, or the laws of Canada or
Bulgaria, that might exculpate either of the two governments, or the trial court of British
Columbia from allowing, or the positive duty of securing, a prisoner his access to the trial court.
[425] Clearly, at least to this Applicant, both Canada, and Bulgaria, have made international
commitments to guarantee to any person, including this Applicant, a right of access to a court -
Canada - and to "full equality to a fair and public hearing" before the court, notwithstanding that
the Applicant is a prisoner of one state, the defendant Bulgaria, and a citizen of the other state,
Canada. The international community recognising the principles of international law “shall be
applied to all persons within the territory of any given State".
[426] The foregoing is consistent with the Speaker's reasoning that there exists a set of homogenous
international legal principles applicable to the "lex fori" of the trial court of Canada, and the
international obligations and duties of the defendant foreign state, Bulgaria.
[427] Significant to the present enquiry, and worthy of special consideration, is the negative restriction
found under Article 2 of the UDHR. It requires a State to make "no distinction…on the basis
of…jurisdictional…status of the country to which a person belongs…" when determining persons'
fundamental rights and obligation, or the competence of a judicial authorities' jurisdiction to
determine such rights and obligations. This appears to make moot any argument that the foreign or
international jurisdiction of a court acts as a bar in any way to the fundament rights of a person
before that court, notwithstanding they are deprived of liberty and refused access.
[428] This positive obligation and duty of a Canada or Bulgaria are not limited to the nationality of the
person affected or on whose territory that person is to be found. This was given broad
consideration in Principle 5§1 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment as previously cited by the Speaker.
[429] When applying the discussion's a posteriori reasoning thus far to the circumstances of the case
now at bar the following appears. The Applicant having lost his property and self determination
due solely to acts of the Republic of Bulgaria placed a special positive onus, and duty on Bulgaria,
to make available the means necessary for him to prosecute, or defend his interests from its prison.
This positive onus was owed to the Applicant as a person having "other status", notwithstanding
his nationality as a Canadian citizen, or for having named the State of Bulgaria as a defendant
before the foreign jurisdiction a British Columbia court.
[430] However, as has been previously identified, the defendant Bulgaria has, in the case of a Canadian
citizen, abnegated its international commitment by refusing its positive obligation and duty to a
foreign prisoner. The foregoing causes this Applicant to recall the following recurring theme
found throughout all the cited international agreements, the responsibility of an independent
judiciary.
[431] The a priori principles of international law provides that the national law of a State must allow a
judicial remedy to all persons whose fundament rights are believed directly or indirectly derogated
by a practice and procedure of a State.
[432] Figuring significant in this is ICCPR Article 2§3(a) reading, in its relevant part there to be "an
effective remedy, not withstanding that the violation has been committed by persons acting in an
official capacity", the judiciary named as one of the competent authorities charged with the
obligation, and positive duty to ascertain, a posteriori, if government agencies have observed their
negative restrictions as well as positive obligations when discharging their duty to guaranteeing a
prisoner his a priori rights before the a court of law.
[433] The foregoing suggests Canada as having a joint and several obligation, and duty, to this
Applicant - as its citizen - equal to, or greater than, that of Bulgaria, to be responsive and to act
positively- jointly or severally with or without Bulgaria - to see that its citizens "rights and
obligations" in "a suit at law" before a court in Canada - are guaranteed to him. This conclusion is
arrived at first from multilateral agreements that clearly express the a priori rights and freedoms
as set forth earlier are made available everywhere, and second on the basis of the applicable laws
of Canada.
3.3. Positive Obligation and Duty of Bulgaria

[434] This was discussed in detail earlier under the heading of A Priori: Access to A Court. However,
before proceeding to a discussion on developing a judicial remedy before a court of the province,
it seem reasonable to enquiry into the positive administrative obligation and duty of the State of
Bulgaria to a foreign person having "other status" on its territory.
[435] The fact of international law as it exits, and the defendant Bulgaria having observably ratified that
law, strongly suggests, a posteriori, Bulgaria to have the positive obligation, and duty to observe
such law in practice.
[436] Applying these a priori principles to the present case at bar places the onus squarely on the
defendant Bulgaria to secure, or allow the Applicant's appearance before a Canadian court. This
responsibility going exclusively to the non-judicial agencies of the State of Bulgaria charged with
the positive obligation of guaranteeing the rights of a person imprisoned on Bulgarian territory.
[437] It is to be recalled that the penal administration agency of the defendant Bulgaria is its Ministry of
Justice, Republic of Bulgaria, having the positive administrative obligation and duty to be
sensitive and responsive in guaranteeing the fundamental right of a prisoner to attend to, prosecute
or defend his interests in a suit at law.
[438] To confirm this positive obligation and duty of Bulgaria to prisoners only requires recalling
Article 31§5 of the Bulgarian Constitution that reads "Prisoners shall be kept in conditions
conducive to the exercise of their fundamental rights which are not restricted by virtue of their
sentence", and Article 57§1 of the Constitution declaring that a persons "fundamental rights shall
be irrevocable." These two constitutional principles are confirmed under the cited Bulgarian Law
on Execution of Punishments, Chapter Two Article 23 on the Legal Status of Incarcerated Person.
[439] Clearly, in principle the Applicant enjoys the full rights of any other person in a suit at law.
However, in practice it is equally as clear that the defendant Bulgaria is unprepared to make good
on its international commitments. For this reason the Applicant turned to the provincial court to
develop a judicial remedy.
3.4. The Master's Positive Obligation

[440] The discussion has made apparent, at least to the Applicant, that there exists a body of
international law that sets out the positive obligations and duties of State governments.
Incorporated in the obligation and duty of a State is the self evident proposition that all persons
are to have the possibility to develop a judicial remedy. It sine quo non the right of every person
to have his grievances judicially reviewed in an equal, and open adversarial hearing before a court
of law.
[441] It flows from international law that the national - provincial - courts have jurisdiction, and a
positive obligation to be sensitive, and a duty to be responsive in observing the equal rights of all
persons' party to a "suit in law", notwithstanding the "other status" of one party as a prisoner of
the other party, a foreign government. A court's practices and procedures acting to guarantee to all
persons a fundamentally equal availability of the rights provided for under law in a "suit at law",
notwithstanding the person belongs to a distinct and disadvantaged group having a "other status",
i.e. indigent and deprived of liberty.
[442] These a priori principles of international law are a part of the common law and the historic
tradition of the Canadian sense of what is right. It suggests that there must exist a role for a
Master, or Chambers Judge of the provincial court when observing the negative restriction
extending equally to all persons the right to have their grievances adjudicated in a suit at law, to
also observing as well a positive obligation and duty to act ex proprio motu in removing any
obstacles to extending this or other fundamental rights to a person afflicted by a other status
directly or indirectly affecting his rights.
[443] The importance of the defendant Bulgaria's role in the proceedings before the trial court cannot be
overstated. As a State it had a duty to observe the rights of the Applicant before the Honourable
Courts of Canada no less than it is the duty of Canada's government were it similarly disposed.
[444] The principles of reasonable limits on a prisoner's fundamental rights are discussed in the
previously cited Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, Principle 36(2), the international community agreeing on the negative
restrictions to be observed by a member state to include not placing "restrictions upon such a
person which are not strictly required for the purpose of the detention".
[445] The Applicant can find no saving provision or principle under the cited principles of international
law and comity that appear to permit an agency of a foreign state to directly, or indirectly,
interfere with the judicial processes of another state, or for that matter to interfere with the
standard minimum limits for prisoners as recognised by the international community.
[446] The most comprehensive of the international documents dealing with the positive obligation and
duty of a state to its prisoners happens to be the United Nations Standard Minimum Rules for
the Treatment of Prisoners (known as the Standard Minimum Rules), adopted by the U.N.
Economic and Social Council in 1957. It should be noted that although the Standard Minimum
Rules ("SMR") are not a treaty, they constitute an authoritative guide to the binding treaty
standards recited above. Part II Principle 57 is most instructive:
"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.
[450] If the Master and Chambers Judge had difficulty with the lex loci delicti of the Applicant's
imprisonment, they were at least familiar with Canadian legislation, and able to be guided by the
principles to be found there. Unlike that of the Republic of Bulgaria, Canada's enactments are
substantially clearer on the subject of temporary escorted absences of prisoners. This is reviewed
earlier as a provision of s. 7.3 of The Prisons and Reformatories Act Chapter P-20 R.S., c. P-
21. Prisoner's temporary absences directly incorporated as a right of prisoners in Canada for
"reintegration into the community".
[451] The Corrections and Conditional Release Act 1992, c. 20 goes even further under s.4 to instruct
"the Service use the least restrictive measures" and that "offenders retain the rights and privileges
of all members of society". Temporary escorted absences are provisions of s. 17(1), prisoners’
absences to be permitted for "administrative", "rehabilitative" or "reasons other than medical".
[452] The Correction Act [RSBC 1996] Chapter 74 s. 15(1) further allows the Minister to request and
authorise temporary absences of prisoners.
[453] It can as well be seen from the Rules of Court, Rule 40(40) that the trial court has the jurisdiction
to order the temporary absence of a prisoner as follows:
"Order for attendance of witness in custody
"(40) The court may order the attendance of a witness who is in the lawful custody of another
person, including the custodian of a penal institution.
[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.
[459] It appears, from the available body of law relied on by this Applicant, that both the governments
of Canada, and Bulgaria, are required to secure for this Applicant his right to access some
practical means of prosecuting, or defending, his legal interests in a law suit. It goes without
saying that the alternative of hindering, or obstructing, the Applicant, a prisoner, is an
unacceptable proposition, notwithstanding that it is in the States' interests to do so.
[460] The onus appears to be on the government to identify the means to be allowed, or provided
persons having been deprived of liberty to appear before the courts in a manner appropriate to
their circumstance of imprisonment, and the danger they pose to society.
[461] In the alternative, where a government - Bulgaria -refuses to conduct a person deprived of liberty
before a court of law, the onus falls on it to identify, and provide an effective alternative to
appearing in proprio persona before the court. Say electronically or in writing, and sufficient to
allow for an adequate possibility of effectively prosecuting, or defending a law suit, again not
withstanding that the government is named as a defendant.
[462] For these reasons the Applicant petitioned a Master and a Chambers Judge, in the name of
procedural fairness, to exert the courts inherent jurisdiction in Canada over the defendant
Bulgaria. The court to require, in the name of international comity, the Defendant, Bulgaria to
observe the negative restrictions as well as positive obligations as evidenced by its international
commitments. The said Defendant to require its agencies to secure, or allow the Applicant, a
Canadian citizen, his a priori fundamental rights as guaranteed to all persons deprived of liberty
i.e. to develop his judicial remedy and attend to his rights and obligations before a court of
Canada.
[463] The Applicant, in written pleadings to the provincial trial court, expressed an opinion that the
court had an enforceable right of jurisdiction over any legal representative of the defendant
Bulgaria to be found in Canada. The very fact of Bulgaria having ratified the previously cited
international documents allowing the court could seek Bulgarian cooperation on the subject of the
Applicant's complaints of interference with his rights and obligations in Canada.
[464] Furthermore the elements of the proceedings before the trial court, inter alia the plaintiffs' causes
of action, the nature and character of the injuries they suffered, and the relief sought, are again
prima facie evidence that the court of competent jurisdiction to determine the rights and
obligations of the litigants proves be a trial court of British Columbia. The Applicant believes this
makes the positive constitutional duty of a Master or Chambers Judge more apparent, it therefore
standing to reason, a posteriori, the court to extend its jurisdiction to include the complaints and
applications of this Applicant, notwithstanding its prison origins are outside of Canada.
[465] The Applicant argued to the trial court that the scope of a state's positive obligation, and duty, to
persons deprived of liberty, appeared to be "on all fours" with his a posteriori reasoning. There
can to be no reasonably justifiable derogation or limiting of the Applicant's rights in a "suit at
law" solely because he is a prisoner, and happens to be a necessary party to prosecuting or
defending his own interests and that of other plaintiffs before a court of British Columbia.
[466] At the risk of being redundant the Applicant recited to the Master the practice and procedure of
the Defendant Bulgaria's Criminal Code of Procedure, under Art. 436 allowing: "...persons
detained in custody to be interrogated as witnesses or experts shall be allowed….on the grounds
of the papers submitted by the other country…", and the allowances made under the Rules of
Court, Rule 40(40) that reads: "The court may order the attendance of a witness who is in the
lawful custody of another person, including the custodian of a penal institution."
[467] No assertion was made before the Master, or is now made in the present enquiry, that a court of
Canada exerts its jurisdiction beyond the boundaries of Canada. Instead, the Applicant had
suggested the Master be responsive to his circumstances, and act positively by providing a
reasonable remedy. Only exerting the court's jurisdiction on a procedural matter - to subpoena and
order the attendance of a person in custody of the defendant - Bulgaria to appear together before
the court. Such an order appeared within the ambit of the civil proceedings before the Master, it
requiring the court only exert its jurisdiction within Canada's boundaries. The defendant Bulgaria
having legal representatives accessible to the court, and to be found in the province.
[468] The laws of Canada do not appear to provide for, or allow a saving provision permitting a Duty
Master or Chambers Judge to abrogate the courts duty to procedural fairness, and Canada's
obligations, to a prisoner's a priori rights under international law.
[469] The fact that indigent prisoners are not specifically designated under the Court Rules Act, Rules
of Court, or other enactment of Canada, as persons of "other status" having an observable
afflictive legal "disability” did not act as a bar to a Master or Chambers Judge in being responsive
to the difficulties of the afflicted person. Omission from the Court Rules Act of persons having
"other status" i.e. indigent prisoners does not alter the fact of the Master having a special duty to
be responsive to the extraordinary difficulties of the Applicant by virtue of his circumstances.
[470] The cited ICCPR Article 5§2 is more direct when stating: "There shall be no restriction upon or
derogation from any of the fundamental human rights recognized or existing in any State Party to
the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a lesser extent
".
[471] Having said the foregoing raises again another question. Why is the Speaker, a Canadian citizen,
being restrained from accessing or being heard by a trial court in Canada, the jurisdiction where
his property and other civil interests are most affected by the defendants? The answer, at least to
the plaintiffs, is an obvious one. The defendant state fears a civil prosecution may lead to a public
exposure of institutional abuses of human rights, official powers and corruption the likes of that
reported by NGO's, the UN, the EC (European Court) and US State Department [see: Part 1: facts
Existing In Aggravation of the Claim]. To the plaintiffs no other explanation is plausible.
[472] The present enquiry's a posteriori reasoning also suggests a reason why the Master or Chambers
Judge would not judicially review the Applicant's Charter and other complaints. Therefore a
standing practice and procedure must exist in order for the Master or Chambers Judge to have
placed a reverse onus on any party in a suit at law upon applying for judicial review of their
application. The Master leaving it to them to secure their a priori rights, inter alia, of access to the
court to have their application heard, and to develop their judicial remedy before the court.
[473] The Master's reverse onus having two elements, either the applicant must appear personally, or
must secure an attorney to appear. The Master or Chambers Judge proving insensitive and
unresponsive to any petitioning on extraordinary facts, or afflictive circumstances acting to
involuntarily obstruct the petitioner from complying with onus imposed by the Master's Order.
[474] The Master’s Order clearly observed the negative restrictions placed on the court to not deny the
petitioner his right to develop a legal remedy before it, these restrictions flowing naturally from
the cited international law and constitutional duty of the Master. However, the Master wrongly
and unreasonably reversed the onus of the courts positive obligation to react responsively to all
persons having an observable affliction. The Master failed to observe his and the Court’s positive
constitutional duty to procedural fairness. Under the circumstances to observe his duty the Master
was required, ex proprio motu, to act where and when it is becomes apparent that the a priori
rights of an Applicant are about to be indirectly denied by the Master’s observing certain Rules of
the Court or common practices in what are unusual circumstances. This resulted in an indirect
discrimination based solely upon the other status of the Applicant in society who happens to be an
indigent Canadian citizen deprived of his liberty in a - Bulgaria - prison.
[475] The Applicant's circumstances, already aggravated by the Defendant Bulgaria are now made
impossible by the Master's order. The defendant Bulgaria able to continue with impunity to
interfere with the Applicant's right to develop his judicial remedy in Canada, and able to maintain
its unwillingness to allow the Applicant access to the court in British Columbia in the absence of a
Master of Chambers Judge order.
[476] Could a Duty Master or the Chambers Judge of the trial court have therefore erred in judgement
when placing a reverse onus on this Applicant to secure his a priori rights otherwise guaranteed to
him by the international commitments of both Bulgaria, and Canada?
3.5. Procedures, Conflicts and Comity

[477] It is recognised, for the purposes of the enquiry to follow that the order or decision of a Master or
Chambers Judge is discretionary, having followed a practice and procedure of the court in
determining to have applications "spoken to" by a petitioner or his legal representative.
[478] It should be recalled the Applicant petitioned the trial court for some reasonable form of
procedural relief from the defendant Bulgaria's obstruction of his a priori right as a person
deprived of liberty to develop a judicial remedy, and to prosecute, or defend his interests in a suit
at law.
[479] It is reasonable to again recall the Applicant's complaint to the Appeal Court before attempting to
resolve the practice and procedure available under the Court Rules Act, or that applied by the
Master to the observable facts before the court. The Master reasoning a posteriori, what is or is
not to be an a priori right of an indigent litigant deprived of liberty. The intended appeal maybe
summarised as follows:
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.
26. The Master proved insensitive, and unresponsive to the inherent afflictions of the petitioner's
"other status", and the affect to his procedural rights on the application of a practice and
procedure of the Master in a suit at law. In electing to place a reverse onus on the Petitioner in
place of the courts positive constitutional obligation and duty, the Master acted to effectively
bar the petitioner's access to the courts procedural powers.
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
[486] An attempt is made here to resolve on what grounds a Master or Chambers Judge might have for
refusing the Applicant's petition to have the defendant Bulgaria conduct him in custody to and
from a hearing fixed by said defendant.
[487] The Writer first considered a possible conflict between the two national laws. That of the
defendant Bulgaria's civil and socialist law traditions, against that of the "lex fori", the trial court
of British Columbia and its common law traditions.
[488] What is significant to the discussion here are what conflicts exists, if any, with provisions found
under the two legal traditions and the a priori principles of international law.
[489] The Applicant considered his imprisonment abroad, and the defendant Bulgaria's status as a
foreign State as possibly acting jointly or severally to bar the Master from exercising the court's
positive obligation and duty to procedural fairness, as opposed to only observing its negative
restrictions.
[490] Earlier the Applicant reviewed, and discussed the cited international law, including the United
Nations tenets on the treatment of prisoners. The Applicant believing the principles found there as
having established a set of a priori propositions binding on both Canada and Bulgaria. The fact
such guiding principles exist gave the Applicant reason to believe there cannot be any conflict of
law where fundamental a priori rights are concerned. The parliament of British Columbia, and
that of Bulgaria each having separately enacted their own negative restrictions as well as positive
obligations guaranteeing, at least in principle, to all persons their right of inter alia equality before
the courts in determination of their rights and obligations in a suit at law.
[491] On a reading of relevant Canadian and Bulgaria enactments as cited here it becomes clear to the
Applicant that both governments made commitments to protecting all persons from direct, or
indirect discrimination solely due to inter alia a persons property status, or for having a distinct
"other status" in society i.e. deprived of their liberty. It is also observable the cited enactments
have provisions recognising the sine quo non right of a prisoner to develop a civil remedy before a
competent - judicial -authority. This applying equally to a criminal justice proceeding as it would
to a prisoner's prosecution, or defence of his legal rights, or property interests in a suit at law.
There is intrinsic to such right inter alia the possibility to be recognised as a person before the
court, to have the equal protection of the court, and the possibility to have ones grievances equally
heard, as any other person, in an open court with all parties in attendance.
[492] What is therefore significant to the present enquiry are not the a priori legal rights allowed a
person of other status - prisoners - by Canada, or Bulgaria before a court of law. It is instead a
question of what a priori rights are unintentionally or intentionally barred to persons of other
status - prisoners - by virtue of a practice and procedure under a Canadian or Bulgaria enactment.
[493] Previously the Applicant enquired into the role afforded the national non-judicial and judicial
authorities of a State in securing the procedural rights of prisoners as persons having an afflictive
"other status" in society. What appears from this earlier discussion are the following self evident
propositions:
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.
33. It is also incontrovertible that the courts of Canada and Bulgaria have constitutionally
authority to judicially determine, within their jurisdiction, an effective remedy, or other relief
on application of a person believing his legal, or property rights under international or
national law are somehow violated by a government agency.
34. It is incontrovertible where a prisoner is denied, without lawful reason, access by a

government agency to a civil court of competent jurisdiction, it is the positive obligation, and
duty to procedural fairness of the respective court to develop a remedy guaranteeing the
prisoner's a priori right to attend, in custody, any hearings or trial affecting his legal rights
amd interests, or to allow for some other practical and equally fair means for him to
prosecute, or defend his legal interests in a suit at law.
[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.
38. The Applicant, has a "other status" of being an indigent Canadian citizen deprived of his
liberty abroad. The agencies of the defendant Bulgaria are responsible for his imprisonment,
and equally responsible for his a priori rights as flow from the principles of international law
previously discussed. The Applicant is imprisoned six (6) years, and still awaits a final
sentence. There exists no provision of Bulgarian national acting to limit or bar a person
deprived of liberty from prosecuting or defending his rights and obligation in a suit at law,
notwithstanding the foreign jurisdiction of the competent court. The Criminal Code of
Bulgaria having no provision to deprive a sentenced person of his rights and obligation in a
suit at law, it in fact allows for a practice and procedure to extradite -conduct - a person
deprived of liberty to testify before to a foreign court.
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.
[501] The State of Bulgaria had a duty to observe its international agreements. This required its agencies
to provide conduct to and from the court, or at worst to allow the practical means to the Applicant
necessary to his developing a judicial remedy against the Republic of Bulgaria as a defendant.
[502] The agencies of the State of Bulgaria had to not only observe the negative restrictions but as well
the positive obligations intrinsic to the practice and application of fundamental law. The defendant
Bulgaria having a duty to respect Applicant's a priori rights, notwithstanding that the court having
competent jurisdiction to determine his rights, and those of others in a suit at law happened to be
outside of Bulgaria.
[503] The government of the State of Bulgaria consciously choosing to not observe its international
commitments to persons it deprives of liberty is not a matter of law for the Appeal Court to
determine. However, this decision of the defendant Bulgaria is a matter of significant fact that
exists in aggravation of the observable abridging affects on the procedural rights of the Applicant
before the provincial court.
[504] To access a court of law, by whatever reasonable means are available, is far more than the
procedure discretion of a Master or Chambers Judge, it is the immediate and prime a priori
element to the determining any other right and obligation of a person under law. Any judicial, or
non-judicial action that directly or indirectly acts to arbitrarily obstruct, hinder, or deny the
possibility for a person to develop and prosecute or defend a judicial remedy cannot be justifiable
in a free and democratic society.
[505] Furthermore, on a reading of the international commitments of Canada, and the enactments of
parliament, there does not appear any conflict of law question on the a priori rights found flowing
from the international law. There are no apparent conflicts of provincial law with any principle of
international law. No saving provision can be found under any enactment of Canada, or British
Columbia, permitting the courts to deny citizens of Canada a right to develop a judicial remedy in
a suit at law, where and when they discover their legal or property rights breached. This right is
not to be limited solely due to a party's disadvantaged and afflictive "other status" in Canadian
society.
[506] The foresaid are significant in any attempt to determine the positive obligation and duty of the
court, or government of Canada to the Applicant. There can be no procedural fairness or "fair
trial" in British Columbia where a defendant is permitted to openly, and wrongly, deny or
interfere with another party's rights in a suit at law before a court.
[507] Ultimately it will remain for the Appeal Court to finally determine the extent of a Master or
Chambers Judge's positive constitutional obligations, and duties to procedural fairness when the
question is one on the a priori rights of a Canadian citizen. The court finding the defendant before
it to be a foreign state, and the principle plaintiff and witness an indigent citizen the said
defendant has, lawfully or unlawfully deprived of property and liberty. The plaintiffs complaining
of unreasonable, possibly unlawful, coercive measures employed by agencies the State defendant
to interfere with the legal rights of one or more of them when before the court in British
Columbia. While it is significant that that the alleged acts of interference occur outside of Canada,
it is the processes of the provincial court that are interfered with.
[508] The international treaty obligations of Bulgaria must speak to the lawfulness of its coercive
measures against this Applicant or any person it holds under detention. It recalled the defendant
government having incorporated international law as its supreme national law [see previously
cited Constitution Republic of Bulgaria Art. 5§4]. What is significant to any provincial court
review of coercive acts of the a party outside of Canada claimed by the other party as interfering
his rights in Canada is the common law tradition permitting the court of the lex fori to apply the
lex loci delicti - here international treaties - to the facts before it when undertaking a determination
of lawfulness i.e. are the coercive measure of the Defendant Bulgaria lawful and reasonable when
interfering with the processes of the court and the fundamental a priori rights of the Applicant and
other plaintiffs?
3. Comity
[509] On a re-reading the foregoing discussion this Applicant believes the conflict question, if any,
appears to be more in the nature of the international comity and reciprocity between Canada and
Bulgaria, not one of the a priori principles of international law found binding on both States.
[510] There is no question in the Applicant's mind that had any defendant other than a foreign State -
Bulgaria - acted to gain advantage in a suit at law by obstructing or interfering with the procedural
rights of a Plaintiff through an act of physical or psychological coercion, the Master or Chambers
Judge would be sensitive and responsive to such complaints. Acting decisively by exerting the
courts inherent jurisdiction over its own processes to put an end to the defendant's coercive
conduct or measures.
[511] There is no question in the Applicant's mind the Master or Chambers Judge would be equally, if
not more, decisive had it been a Crown agency or a Crown servant that applied coercively
measure to a person under custody solely to gain advantage in a suit at law.
[512] However, having said that it appears important to settle a significant question in this Applicant's
mind: Does the Appeal Court have jurisdiction to hear facts and arguments on the defendant
Bulgaria's allegedly unlawful interference with the Applicant rights and its unreasonable coercive
measures - as a sovereign state - when determining the reasonableness of the Master's order, and
the correctness of the Chambers Judge decision?
[513] To answer this question requires first recalling that throughout the course of the proceedings the
defendant government Bulgaria provided argument to the trial court that turned on only one point,
and one fact existing in aggravation of the plaintiffs' causes of action. The State defendant
insisting on (1) its absolute sovereign immunity, it was not subject to jurisdiction of a foreign
court, and (2) the plaintiffs' claims against it arise from an on going criminal proceeding outside
the jurisdiction of a court of Canada. Admittedly this last issue appears on first blush to not have
any particularly direct connection to the point of law raised as a constitutional question, or on
appealing an issue of procedural fairness. However, it is incontrovertible that the defendant
Bulgaria's conduct while having this plaintiff under its physical, and psychological control during
its 6 year criminal investigation is itself physically and psychologically a coercive force exerted
on the Applicant and other plaintiffs.
[514] The lawfulness of the Defendant Bulgaria's coercive measures and their affects are significant
elements to be factored into any determination on the time it has taken to bring the present
applications before the Appeal Court and Attorney General, and to the reasonableness of the Duty
Master's having placed a reverse onus on the Applicant to appear before the court or retain legal
representation to do.
[515] Thus far the Applicant finds as relevant to the discussion of comity and reciprocity the following:
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.
49. The defendant government of Bulgaria has a positive international obligation, and
constitutional duty under its national law, as naturally flow from the principles of
international law, to provide a remedy in law seen to guarantee in practice, not only in
principle, the fundament civil rights of a person it has deprived of liberty. The defendant State
required to be sensitive and responsive to the requirements of procedural fairness in a suit at
law, notwithstanding the other status of a person as a prisoner, or a foreign court having
competent jurisdiction.
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.
[524] The documentary evidence placed before the trial court leave little doubt of the Crown having
acted in a foreign State, Bulgaria. The Crown having provided the motives, and indictment or
"information", to cause the arrest, and prosecution of the Applicant by defendant Bulgaria.
[525] The Crown indictment, and information having further precipitated the later acts of the defendant
Bulgaria that give rise to the other causes of action identified in the law suit no before the
provincial court.
[526] The correspondences between the Crown, and the defendant Bulgaria, begins in 1995, and
continued to the end of 1998. These are documented by the plaintiffs before the trial court with
the purpose of establishing a factual nexuses to the province, and the Crown.
[527] This incriminating trail of Crown telephone conversations; of meetings; letters; faxes and finally
an indictment, provides the plaintiffs the evidential means to prove prima facie their allegations
against the Crown, and the defendant Bulgaria, for malicious prosecution, slander, libel, and
public defamation. These causes of action are relied on for bringing joint and several claims
against the Crown, and the defendant Bulgaria.
[528] It is believed that this one nexus of Crown involvement is sufficient to bring the present
applications, and the defendant Bulgaria's conduct within the jurisdiction of both the trial court
and Appeal Court.
[529] Alone, the questionable acts of the Crown appear enough to make British Columbia the
jurisdiction forum conveniens. The provincial court having competent jurisdiction to hear the
plaintiffs’ complaints against the defendants who participated with the Crown in a series of what
are alleged to be unlawful acts. First initiated by a Crown servant acting in the province, and then
later in Bulgaria.
[530] It appears on the basis of the foregoing that both questions of jurisdiction simpliciter and forum
conveniens are at first blush dispensed with. Jurisdiction not solely depend on the plaintiff's other
claims that sound in contract and tort.
[531] The Applicant recognises that his reasoning does not alter the hard fact of a provincial court's
reticent born of international comity and reciprocity. It is in practice difficult to have a provincial
court exert its jurisdiction in Canada over a foreign State, no matter how uncooperative or
obstructive Bulgarian agencies may be. International comity and reciprocity often invoked as an
argument in the common law that restrains a court of Canada from applying Canada's laws,
practices, and social values beyond the territorial jurisdiction of Canada. Where a foreign state is
named as a defendant comity among States is often invoked before the courts of Canada.
Undoubtedly international comity plays a role, having been a part of numerous arguments to
found in the common law for the courts of Canada to not interfere in the processes jure imperii of
a sovereign state.
[532] The defendant Bulgaria is within its rights to rely on international comity and reciprocity. Yet,
Bulgaria must also recognising that comity, and its international commitments as a State, must
operate as binding propositions upon Bulgaria equally as it acts to bind a court of Canada.
[533] Comity and reciprocity are principles to be observed notwithstanding that the defendant Bulgaria's
chances for success in a suit at law may be diminished as a result.
[534] The defendant Bulgaria, as a party to a suit at law cannot reasonably expect international comity
to be adequate causus for a court of Canada to not discharge its obligations, and duties under
international and national law to one of its citizen. And solely because the defendant state had
previously caused injuries and damages in the province after having deprived a citizen of Canada
of his property and liberty, having refused to allow him access to the provincial court as a result.
[535] The courts of Bulgaria and Canada are bound by the same principles of international law as are
the governments of both states. International comity and reciprocity play crucial roles, yet ones
having two sides. Comity, and reciprocity like a knife, must cut both ways.
[536] The understandable reticence of a Master or Chambers Judge cannot reasonable stand as a lone
qualification in balance to the rule of law. The defendant Bulgaria is a party to judicial proceeding
before the court. There exits one hard fact among many of a Crown servant involved in allegedly
unlawfully acts in, and outside the province in scienter with servants of the defendant Bulgaria.
The Crown Servant, who is subject to the court's jurisdiction, brings the Defendant Bulgaria
within the jurisdiction of the trial court through its alleged relationship and joint activities with
representatives a servant of the Crown.
[537] There are limits to the applications of the principles of international comity and reciprocity to
restraining a court of law in doing that for which it is constituted. The requirements of justice and
equity must be balanced with the niceties of diplomacy or administrative interests of State
agencies.
[538] In the case before the trial court, and now at Bar, comity might well be better applied in another
context, that of Bulgaria's positive obligation and duty under international law to guarantee to all
persons equal right to access a court of law. Notwithstanding that the person happens to be
someone the State has deprived of liberty.
[539] Co-operation of the defendant Bulgaria with a trial court in Canada to secure a person his rights
under law should be seen by the Master as a positive obligation - international comity - of the
government of Bulgaria to its international agreements. A State's co-operation with another State
is the very embodiment of comity, and respect for the judicial processes of another state must
include recognition of the prevailing lex fori of the process.
[540] The Master should have recognised that as a part of comity, and reciprocity there inherent respect
for the jurisdiction and processes of a Canadian trial court. Any act by a party to a suit at law
having derogated from the rights of other parties, and therefore the procedural fairness of a
Canadian court's own processes is within the jurisdiction of a Master or Chambers Judge to
determine. Notwithstanding that the offending party happens to be the agency of a foreign state.
[541] In the guarded opinion of the Applicant, international comity affords a person deprived of his
liberty greater protection under the principles of international law than it might act in providing
the questionable shield of absolute immunity to the Defendant Bulgaria from civil prosecution in
Canada.
[542] One final fact is worth recalling here. The Defendant Bulgaria has petitioned a learned Master to
consider what it apparently believes is its absolute sovereignty immunity. The Master is asked to
do within the context of international comity and reciprocity.
[543] However, it is within the same context of international comity and reciprocity that the Applicant
believes as requiring the defendant Bulgaria to respect its multilateral agreements, and the a priori
rights of a Canadian citizen before the lex fori of a court of Canada. A requirement that may find,
in the name of international comity, and the self evident principles of international law and mutual
reciprocity, the Defendant Bulgaria subject to observing a judicial order or direction of a
Canadian trial court. The Master or Chambers Judge recalling the principles of international law,
and Bulgaria's positive obligations to a Canadian citizen it deprived of liberty. Notwithstanding
that the citizen in question and his family have brought a suit in law against the Republic of
Bulgaria.
[544] The Applicant believes the defendant Bulgaria is ill informed, and the Master erroneous if it is
insisted that international comity and reciprocity exist only to provide a State - Bulgaria - to apply,
unfettered, its sovereign right to all acts be they lawful or unlawful.
4. Is this Speaker's reasoning simply wrong?
[545] The Applicant has asked himself this question repeatedly. Is he wrong to seek relief from a
Canadian court on a subject that requires a Master, or Chambers Judge, to review applicable
international law and established international principles in the treatment of prisoners?
[546] Was it wrong to raise the issues of the applicable lex loci delicti of the Republic of Bulgaria? Its
national law and international treaties binding it to respect the Applicant's rights as a person under
law in a suit at law. Bulgaria and Canada both have a practice and procedure to conduct him, in
custody, before any court - British Columbia -where his legal and property interests or those of
others required his appearance?
[547] The body of law reviewed provided no provision in international or national law that would
hinder a Master or Chambers Judge of the provincial from having provided the Applicant the
relief he requested in his various petitions and now on appeal. That being so, then why did the
Duty Master and Chambers Judge both refuse to provide any of the suggested procedural
remedies to be found under the Rules of Court, in the common law, or under other legislative
enactment?
[548] Again, at the risk of being redundant, it appears that the SCBC had a duty to the Applicant to
recognise the physical limitation of his status, first as a person deprived of his liberty, second as
indigent person and third, in aggravation of the first two, his status as a prisoner of the Defendant
- Bulgaria - alleged to have unlawful caused the Applicant and others financial losses, personal
injury, and property damage in British Columbia. However, it remains a fact that the court failed
to recognise this duty to him.
[549] There also appeared to be a duty of a Master or Chambers Judge to judicially express themselves
on the legal affects of their order or decision. Particularly on a matter of international law when
such law is compelling, and applicable to proceedings before the court. Both failed to do so,
having provided no written decision to guide the Applicant in his understanding.
[550] The Applicant had attempted to proceed logically to his conclusion that the Duty Master, and
Chambers Judge erred in judgement when failing to consider his petitions as before them in the
full context of the circumstances of his bringing the complaints from a foreign prison. The
Chambers Judge, on later limiting the Applicant's right to petition - from prison - acted to
unreasonably restrict citizens constitutional right to a full judicial review after having applied for
one under s. 24(1) of the Charter.
[551] The hardships of prison are so obvious a fact that the very existence of the Master's order in its
present form has given cause to the Speaker enquiry as to why the Court Rules Act [RSBC 1996]
c. 80 permits such a limitation to be imposed on a Charter right in the first place.
[552] It has been discussed earlier that international comity and reciprocity play no role as prohibitions
to a court of Canada to request a foreign government - Bulgaria - to arrange practical means that
permit a Canadian citizen to prosecute or defend his claim against the defendant Bulgaria in
Canada.
[553] Simply the Applicant could not find a reason in law for denying him a judicial review of his
Charter complaints as well as determination of the procedural remedies he first proposed to the
Master, then later to the Chambers Judge.
[554] The Applicant is admittedly ignorant to the exact practice and procedure in such matters.
However, the observable fact of the Order's affects on him cannot be satisfactorily reconciled with
the principles and practices of the common law as well as the self evident propositions of
Canada's international agreements. The derogating affects of the Master's order remain for the
Appeal Court to reconcile to the body of law discussed earlier.
[555] As well the Applicant may be wrong in believing his practical and procedural difficulties as an
indigent and imprisoned litigant are readily apparent from his petitions to the Master as well as on
appeal to the Chambers Judge. He may be equally as wrong in believing his practical difficulties
to be surmountable by a provincial court. However, it appears the demands of justice, and right
equality as persons under law for his family and himself provide adequate causus for any person
of conscience to at least attempt to overcome the indirect discrimination being suffered by a
distinct group of Canadian citizens. Citizens who incontrovertibly are, together with their families,
seriously afflicted and disadvantaged by their other status in Canada and abroad.
[556] To illuminate the problem of this Applicant and other Canadian citizens like him it requires the
present enquiry to now proceed to a discussion on what practical meaning can be adduced from
the preceding discussion when applied under the common law.
4.1. The Fact and Questions

[557] What is the principle point for the Appeal Court to consider as is ascertainable from the
Applicant's discussion? The court is asked by the Applicant to determine the legal status and
rights of a Canadian citizen in a suit at law when indigent and deprived of his liberty abroad. This
enquiry is made significant by the observable affects of a practice and procedure in Canada having
acted to indirectly discriminate by creating a barrier solely affecting this distinct and
disadvantaged group’s right to judicial review and remedy before a provincial court. The fact and
question are as follows:
1. Fact
. The Order of the Duty Master creates a practical barrier making it impossible for the Applicant,
a Canadian citizen, to prosecute or defend his rights and obligations in a suit at law solely due
to his other status in Canadian society. The Applicant is indirectly barred from the court's
services by the Master solely due to this other status. The practice and procedure under the
Court Rules Act having created a financial and social barrier to the Applicant, and others, in
prosecuting or defending any claims made before the court against the Defendant Bulgaria and
inter alio the Crown. The legal affects of the Master's Order, and of the practice and procedure
under the Act, are a form of indirect discrimination having unintentionally selected to offer the
courts services and facilities solely based on a petitioner's ability to meet the Master's revere
onus of a person having property - they retain an attorney - or acceptable social status - they
have retained their liberty.
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?
54. Do the international commitments of the government of Canada to negative restrictions as

well the positive obligations to persons deprived of liberty also extend to the Master or
Chambers Judge of a provincial court 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.
[561] The Applicant's discussion requires the Appeal Court to ponder on the foreseeable affects of the
six (6) points listed and the other facts that exist in aggravation of the Master Order as well as the
practice and procedure applied in a suit at law to persons having other status. What is significant
to the applications before the Appeal Court are the considerable distances involved, the
Applicant's poverty and incarceration, and the not inconsiderable physical and psychological
affects to be found when incarcerate in a Bulgarian prison.
[562] These are foregoing are conditions that exist in aggravation of the ordinary problems of
imprisonment. The affects of such conditions are that they make a persons ability to put his case
before a court of law far more difficult in practical and personal terms. Such stresses aggravating
the ever present difficulties for the Applicant to comply with orders of the trial court, including
the time constraints fixed by the Rules of Court.
[563] There are even harsher realities that the Applicant must overcome when confronting officials and
agencies of the Defendant Bulgaria who are aggressively opposed to his legal action in Canada
against the State. The facts of the case and the human rights reports reviewed in Part 1 [see: "Part
1: Facts Existing In Aggravation of the Claims: Conditions In The Republic of Bulgaria"]
incontrovertibly establish, notwithstanding any protestation of the Defendant Bulgaria, that
prisoners under the control of its agencies exist in a constant state of anxiety and fear. Prisoners
face significant physical and psychological consequences when attempting to develop a judicial
remedy against the State of Bulgaria before a judicial authority beyond political control or
corruption.
[564] The Applicant, his family and third parties have documented before the trial court that the
Applicant is no stranger to the physical and psychological abuses consequenced by his pursuing
judicial remedies against officials, agencies and instrumentalities of the Defendant Bulgaria. If, or
better said when, such consequences again manifest themselves they shall inevitably result in this
Applicant once more losing contact with the trial court. In such an eventuality the Applicant must
rely on this Honourable Court to determine it positive obligations to procedural fairness and to
him, as a Canadian citizen, having an afflictive other status.
[565] The applications to the Appeal Court on the issues of extending time and a declaration of
indigence would be far less convoluted if it were not for the nature and character of the defendant
Bulgaria's conduct. Incarceration, poverty, fear, and obstruction by uncooperative officials of the
Defendant State have complicated the issues, even of time and indigence.
[566] The circumstances before the Appeal Court are not helped by the Applicant's lay status and
questionable understanding, it admittedly making difficult to clearly identify and resolve the
errors of judgement and issues of law to be discussed. A fact that will undoubtedly cause
consternation to the legal profession.
1. What is Not on Appeal?
[567] To avoid any misunderstanding of the Applicant's attempts at reasoning it may be prudent, at this
juncture to identify what points are not to be determined here or by the trial court.
[568] As much as the Applicant might wish to have the lawfulness of his arrest, and detention by a
foreign State tested by a court of Canada he recognises that to not be possible. Clearly this issue is
not open to this or any trial court in Canada to determine. However, it is reasonable to make
averment to such facts only in aggravation of those points as legitimately are laid before the trial
court.
[569] The arrest and continued detention of the Applicant, its reasons, lawful or unlawful are not nor are
intended to be points of the plaintiffs’ law suit. Most definitely they are not the object of the
intended appeal here. Such facts are substantive only to an understanding of the plaintiffs' full
case, and if any, to its merits.
[570] Furthermore, the Applicant does not dare to suggest for this Honourable Court to extend or
otherwise impose Canada's Charter of Rights and Freedoms beyond its boundaries to that of a
foreign State. The Charter issues raised here are limited to those occasions or circumstances where
s. 32(1) of the Charter is applicable and s. 24(1) can be invoked by the Applicant. The case law
found in recent years shows the Supreme Court of Canada closely examined Charter claims
relating to Canadian government actions beyond the boundaries of Canada [see: Schreiber v.
Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297; 124 C.C.C.(3d) 129; 158
D.L.R.(4th) 577, Distinguished: R v Terry, (1996) 2 S.C.R. 207; R. v. Harrer, (1995) 3 S.C.R.
562:; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S.
347 (1967); R. v Edwards, (1996) 1 S.C.R. 128;R. v. Belnavis, (1997) 3 S.C.R. 341; R. v.
Stillman, (1997) 1 S.C.R. 607; R. v. Dyment, (1988) 2 S.C.R. 417; R. v. Feeney, (1997) 2 S.C.R.
117; Thomson Newspapers Ltd. v Canada (Director of Investigation and Research, Restrictive
Trade Practices Commission) (1990) 1 S.C.R. 425; Comité paritaire de l'industrie de la chemise v.
Potash, (1994) 2 S.C.R. 406; R. v. Mckinlay Transport Ltd., (1990) 1 S.C.R. 627; R. v. Plant,
(1993) 3 S.C.R. 281; R. v. Collins, (1987) 1 S.C.R. 265], its case law appears to strongly suggest
that the Charter cannot be applied to acts committed by servants of the Crown on foreign territory
with the exception being only if such acts have a direct affect on the Charter or other legal rights
and obligation of citizens of Canada who are in Canada.
[571] What does the preceding reasoning of the high court mean to case now before the Bar?
Apparently the Charter can be applied in respect to all Crown acts outside Canada alleged as
directly or vicariously affecting the legal and property rights of the plaintiffs Nicholas, Tatiana,
Tracy and Robert as family members of the Applicant who remained in Canada. It also appears
from the above cited case law that the Charter applies to all Crown acts directly or vicariously
affecting the plaintiffs’ property rights and other civil interests in or connected to Canada.
[572] Applications of these particular constitutional questions are at present not the subject of the
appeal. Presently the Applicant is far from asking this Honourable Court or any court of Canada
to impose its judicial will on the legitimate pursuits of the Crown or a sovereign state or its
representatives outside of Canada. Yet having said that, a certain emphasis must be placed on the
Appeal Court's interpretation of "legitimate" and "lawful", as these are live issues that concern the
activities of a servant of the Crown outside of Canada when, in co-operation with agents of the
Defendant Bulgaria, acted to knowingly cause injury and to interfere with the plaintiffs legal
rights and property interests in or connected to the province.
[573] The Charter, applied retrospectively to acts of the Crown, appears to apply in the case before the
trial 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
[578] The Defendant Bulgaria's conduct is a factual element existing in aggravation of the time needed
to develop a judicial remedy and bring the application before the Appeal Court. Agencies of the
Defendant Bulgaria failed to observe its international commitments to the negative restrictions on
a State. Bulgaria knowingly limiting the Applicant's fundamental right as a person deprived of
liberty to develop his judicial remedy in a suit at law before a court of competent jurisdiction.
Notwithstanding that delays are as a part of the nature of incarceration it is as well alleged the
defendant Bulgaria acted with mens rea having knowledge and intent to obstruct the Applicant
from his timely access to the both the trial court and Appeal court of Canada. It is observable from
the facts the Applicant cannot be held fully accountable for the delays in bringing his applications,
the extension of time should therefore be allowed.
2. Indigence
[579] Judicial relief from the fees and costs of the court are reasonable as no other remedy is available
or likely to manifest itself and so enable the Applicant to proceed in a way other than in forma
pauperis before the provinces courts of British Columbia. The Applicant's poverty and
deprivation of liberty act as dual impairments to realising his constitutional right to apply under s.
24(1) of the Charter for a determination of his Charter and other complaints. Deprivation of
liberty by its nature is an "afflictive" status having deprived the Applicant of self determination in
his financial and other personal affairs. Conditions in the prisons of the Respondent Bulgaria are
such that the suffering already inherent in losing ones liberty are severely aggravated by extreme
and harsh conditions that prevail. The poverty of state institutions of Bulgaria and the absence of
prison employment opportunities or the possibility to arrange for an alternate form of income
having the cumulative effect that after 6 years of imprisonment the Applicant is living in absolute
poverty. The recognition of the Applicant's indigence is primogenitor to recognition of his other
fundament rights.
3. Leave to Appeal
[580] The a priori principles of international justice, its negative restrictions as well as positive
obligations flow naturally into the collectively laws and legal traditions of Canada. This strongly
suggests that the rights of indigent citizens in a suit at law are not to be derogated from solely due
to a State depriving a person liberty, notwithstanding the person is a Canadian citizen imprisoned
abroad.
[581] If the foregoing is in principle true, then leave to appeal seems reasonable where there exists
prima facie evidence suggesting the alternative having occurred due to a practice and procedure as
well as the legal affects of a Master or Chambers Judge's reverse onus. It seems reasonable to
recall in support of the Applicant's proposition that leave to appeal is grounded the following.
[582] The facts of the case at Bar show that the Applicant, as an indigent person deprived of his liberty,
is indirectly barred by his property and social status from realising the positive obligations and
duty of the provincial court under s. 24(1) of the Charter. A review of the facts of the case reveal,
a posteriori, the application of a reverse onus that indirectly discriminates solely due to a
petitioner's other status in Canadian society. The Master or Chambers Judge having observed the
negative restriction that all persons have a right to Charter application under s. 24(1), yet failed in
their positive obligation under s. 15(1) of the Charter to be sensitive as well as reactive to the
hardships and afflictive circumstances of a citizens other status.
[583] The Duty Master's reverse onus indirectly affected the Applicant's s. 15(1) Charter rights. The
Applicant's rights will remain unreasonably limited by the Master's reverse onus for as long as the
Applicant is to be barred by time, indigence and the defendant Bulgaria from petitioning the
Appeal Court to lift what are the observably impossible demands of the Duty Master's Order
under the prevailing circumstances.
[584] The intended appeal is reasonably brought in the nature of a constitutional application under s.
24(1) of Charter. The appeal intends to raises questions of a priori law supported by material
evidence necessary to a proper interpreting of the affects of the Master's Order. The intended
appeal as well advances questions under the Constitutional Questions Act [RSBC 1996] c. 68. No
pretence is made to the quality of the Applicant's analysis or argument; fortunately the facts of the
case now at bar speak well for themselves.
[585] This discussion has considered the affects as opposed to the intent of the impugned enactment as
well as having questioned the reasonableness of the Duty Master's Order and correctness of the
Chamber Judge decision. Both the Order, and practice and procedure under the Court Rules Act
[RSBC 1996] c. 80, Rules Of Court are impugned by having allegedly prejudiced the Charter
rights of the Applicant more so than if applied to any other citizen. The enactment and Order act
to selectively discriminate according to a person's other status. The affects, though unintentional,
are nonetheless ones that discriminate solely due to a small group’s distinct status as Canadian
citizen having lost property and liberty to a foreign state. It prejudicial affects are due to a set of
rules and a practice that at first appears to be the reasonable judicial application of a reverse onus
on a private party to a suit at law. However, the application of this same reverse onus because an
unreasonable limitation when applied to the identified group - indigent persons deprived of liberty
- such that it fails to meet the test of reasonableness found in s. 1 of the Charter. A Master or
Chambers Judge of the provincial court having known or ought to have known that the otherwise
reasonable limitation of their reverse onus becomes an absolute and insurmountable barrier on
application to this distinct and disadvantaged group. The impugned Act - it is believed Rule
41(16.5)(b), Rules of Court - having created by omission an administrative barrier to all indigent
prisoners when applying from prison for access to the services and facilities of the provincial
court in a suit at law.
[586] The intended appeal attempts to recognise the additional element of sovereign right. Every State
lawfully and reasonably entitled to deprive members of its society of liberty when, and only if,
they fail to observe the rights of others. However, what the intended appeal suggests is that it is
wrong for a State to deprive any member of society of those rights not otherwise limited by law or
the specific nature of the sentence imposed on the affected party.
[587] From the preceding discussion it is apparent that fundamental a priori rights are regarded by
Canadian society, and the common law to be the reasonable and inalienable natural law rights of
all persons. The practice of the common law is one seen as not derogating from natural justice
solely due to persons indigence, his deprivation of liberty, nationality or the jurisdiction of the
administrative act or judicial order having the practical affect of denying natural justice to a
person solely for having lost his or her self-determination.
[588] It has been discussed that one fundamental right of natural justice, in the opinion of the Applicant,
is the right and obligation to prosecute or defend claims in a suit at law. The Applicant believing it
to be intrinsically wrong when a State agency or a officer of the court directly or indirectly denies
a person the reasonable opportunity as well as facility to responsibly and conscientiously exercise
his right to judicial remedy as a "detached" member of society.
[589] The Applicant earlier raised as relevant the question of the inherent jurisdiction of the "lex fori" of
the trial court in requesting a foreign State party to observe such laws, and rights of that forum
where the trial or hearings are to take place. The exercise of such jurisdiction, ex proprio motu, by
a provincial court over a foreign State defendant appears only to require the observance of any
judicial direction or order not in conflict with the otherwise harmonious principles of comity and
reciprocity as recognised under international law. The question of comity and reciprocity turning
on a question of fundamental a priori rights: Are the rights of a Bulgarian deprived of his liberty
in Canada considered to be lesser or greater than the rights of a Canadian if both are party to a suit
at law before a Canadian Court? Ergo, are the rights of a Canadian deprived of his liberty in
Bulgaria to be lesser or greater than the rights of the State of Bulgaria in a suit at law before a
Canadian Court? The answers, in principle. Are obvious ones. However, the practice in the case
now before bar proves all together something different, and one this Applicant humbly believes
worthy of consideration by the British Columbia Appeal Court.
5.2. Issues - There Are Three Applications

[590] The applications before the Appeal Court are as follows:
"1" To extend the time in which to appeal.
"2" To recognise the Speaker's indigence.
"3" To grant leave to appeal.
[591] The lesser applications of time and indigence are moot if there is no arguable point on appeal. It is
for that reason the nature of the appeal was discussed first and at some length in the Applicant
analysis.
6. Need To Extend Time.

[592] Case law suggests to the Speaker that the factors to be considered by the court when exercising its
discretion in such an application were established in Robinson v. Rouse (1957), 22 W.W.R. 89
(B.C.C.A.) as follows;
"1. The prejudice to each party
"2. Whether the appellant had formed an intention to appeal within the time limits for making
an appeal;
"3. Whether the respondent was aware of the appellant's intention to appeal within the time
limits; and
"4. Whether any ground of substance was raised in the proposed appeal.
6.1. The prejudice to each party:
[593] The nature of the appeal to be brought and its hearing by the Appeal Court do not in any
significant way prejudice the legal rights or interests of the Crown or the defendant Bulgaria. As a
practical matter there can be is no prejudice to the defendants for the reasons that follow.
[594] From the course of the proceedings it can be seen that only one defendant, the Government of
Bulgaria, having filed an appearance. As a result it is difficult to contemplate that granting the
Applicant the time needed to appeal would prejudice the interests of other defendants having
taken a decision to not engage themselves in the processes. This includes jointly and severally the
Crown and its servant the Defendant Derek Doornbos.
[595] According to the course of the proceedings as well as facts of the case, officials and agencies of
the defendant Bulgaria are observably in complete physical control of the Applicant's activities.
The possibilities of to accessing the resources as well as other and facilities of the courts are at the
sole discretion of the defendant Bulgaria. Any delays in the bringing the present applications
before the Appeal Court are directly a consequence of the defendant Bulgaria.
[596] What can also be seen from the course of the proceedings, and the affidavits as filed is the
Applicant, through a variety of intermediaries having attempted from prison to maintain contact
with the defendant Bulgaria's Vancouver counsel, and the office of the Attorney General of
British Columbia. In numerous correspondences as well as affidavits the Applicant and others
raised concerns about the Defendant Bulgaria's conduct obstructing the Applicant in meeting time
constraints. The need of a person deprived of liberty for additional time aggravated as a result of
hostile interference from officials and agencies of the defendant Bulgaria. The delay in bringing
the application not an intentional or irresponsible act of the Applicant.
[597] The Applicant and defendant Bulgaria were both aware of the deadline for making application to
the Appeal Court. The Defendant Bulgaria was also well aware that there would be an appeal, its
knowingly having its agencies imposed restrictions on the Applicants ability as its prisoner to
access the means necessary to his effecting the required due diligence when developing a judicial
remedy before the Appeal Court.
[598] The Defendant's Counsel in Vancouver has not indicated at any time to this Applicant that his
client, the Government of Bulgaria, was concerned that the planned appeal would in someway
prejudice its legal interests before the trial court.
[599] It appears the Applicant and other the plaintiffs will be more severely punished if the present
applications are rejected. If there is any prejudice to the rights of a party to the present proceeding
it appears to be the plaintiffs who will suffer the most harm. Both the defendant Bulgaria, and the
Crown are both State parties having reasonably unlimited human and material resources not
significantly diminished by the passing of time or subject to the same physical hardships and
emotion distress as are the plaintiffs. The Applicant remains under the physical, and it is
reasonable to say psychological and emotional control of the defendant Bulgaria. If there were any
prejudice to the defendant Bulgaria, or the Crown it would be far outweighed by the prejudice the
Applicant would suffer if he is barred from pursuing his appeal solely due to delays - a passage of
time - for which he is not responsible.
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 § Error! Reference source not found.] 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.
6.4. Whether any ground of substance is raised in the proposed appeal:

[608] The question of this particular application to the B.C.A.C. is not to determine whether the
Speaker's case has any merit, but whether a substantial ground has been raised in the proposed
appeal which could result in the order appealed being varied or set aside by the Appeal Court [see:
Shipping Federation of British Columbia and International Longshoremen's and Warehousemen's
Union (1961), 31 D.L.R. (2d) 181 (B.C.S.C.)]. If the answer to that question is "yes", then the
additional time requested by the Speaker is merited.
[609] As there are constitutional and international law questions in the original application(s) to the trial
court that were not adjudicated upon, and the Speaker asserts such questions should have been
adjudicated upon in the full sense, it causes the Speaker to then believe that this Honourable Court
can on appeal revisit the same matter.
[610] The Applicant relies on, and incorporates here by reference, his previous discussion as well as
reasoning, a priori and a posteriori, on the merits of his applications. The application of the
common law is given greater consideration later [see Part 3: Applications: “Leave to Appeal"], the
Applicant hoping to avoid being more redundant than he may already have been on the substance
of the alleged constitutional and international law questions. However, for the purposes of this
application the Applicant maintains having found substantial reasons for his intended grounds as a
party "exceptionally prejudiced" more than any other citizen by application of the impugned act
[the cited "Court Rules Act [RSBC 1996] c. 80", Rules of Court : Rule 41(16.5(b))] to persons
deprived of liberty and indigent. The case law found in, inter alio, Smith v. Ontario (Attorney
General), [1924] S.C.R. 331 per Duff J. (later C.J.C.) at 337, and reasons of the Supreme Court of
Canada in Public Service Employee Relations Commission (B.C.) v. British Columbia
Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161;
207 W.A.C. 161 (MEIORIN), appear to support the Applicant's a posteriori reasoning.
[611] The Applicant found it particular helpful where, McLachlin, J. (for the full court), explained why
the court abolished the distinction between "direct" and "indirect" discrimination, [see also:
Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), and speaking
again in Superintendent of Motor Vehicles (B.C.) v. Council of Human Rights ( B.C.) , [1999] 3
S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280 ( Grismer), McLachlin, J. for the
Supreme Court of Canada (for an unanimous 7 judge court), wrote at p. 880:
"[19] Meiorin announced a unified approach to adjudicating discrimination claims under

human rights legislation. The distinction between direct and indirect discrimination has been
erased. Employers and others governed by human rights legislation are now required in all
cases to accommodate the characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for those who cannot
meet them. Incorporating accommodation into the standard itself ensures that each person is
assessed according to her or his own personal abilities, instead of being judged against
presumed group characteristics. Such characteristics are frequently based on bias and
historical prejudice and cannot form the basis of reasonably necessary standards. While the
Meiorin test was developed in the employment context, it applies to all claims for
discrimination under the B.C. Human Rights Code .
"Once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts
to the defendant to prove on a balance of probabilities that the discriminatory standard is a
BFOR [a bona fide occupational requirement] or has a bona fide and reasonable justification.
In order to establish this justification, the defendant must prove that:
"(1) it adopted the standard for a purpose or goal that is rationally connected to the function
being performed;
"(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of
the purpose or goal; and
"(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that
the defendant cannot accommodate persons with the characteristics of the claimant without
incurring undue hardship."
[612] It is argued that the case at bar as presented to the Appeal Court is one of indirect and
unintentional discrimination. The impugned order is made, and enactment written, in a way that
requires the affected group, persons who are deprived of their liberty and in poverty, to do
something they cannot reasonably be expected to do. Such an order or enactment must be and is
intrinsically wrong when it discriminates solely against one group, no matter how small or
unusual that group may prove to be.
[613] As a result the rights of the Speaker and other incarcerated and indigent citizens are significantly
affected by any such order or enactment having as its only positive affect to deny a prisoner, as it
has the Speaker, his or her guaranteed rights under and before the courts of law as persons having
equal rights in law.
[614] The Speaker believes, as he is sure the thousands of other Canadian families and those citizens
burdened with a similar status as his own believe, that there are substantial grounds the Appeal
Court to allow the Speaker time to formulate a full argument, prepare his appeal and then file it.
7. Relief from Court Fees and Costs

[615] This Court's jurisdiction to entertain applications of this type are found in Appendix C, Schedule 1
to the Rules of Court which reads as follows:
. "Notwithstanding anything in this schedule, no fee is payable to the Crown by a person to

commence, defend or continue a proceeding if the court, on summary application before or after
the commencement of the proceeding, finds that the person is indigent unless the court considers
that the claim or defence
. "(a) discloses no reasonable claim or defence as the case may be,
. "(b) is scandalous, frivolous or vexatious, or
. "(c) Is otherwise an abuse of the process of the court?"
7.1. "(a) Discloses No Reasonable Claim

1. Is the Intended Appeal Reasonable
[616] The Applicant's claim to the Appeal Court is reasonable. It results from the Chambers Judge
decision to refuse to judicially determine the Applicant's petition for a judicial review of the legal
affects of a Duty Master's Order as well as the procedural remedies proposed by the Applicant.
The petition to the learned Chambers Judge. Edwards, J., failed to have the desired affect of an s.
1 review of the s. 15(1) rights of the Applicant as an indigent person deprived of his liberty,
despite the petition having raised the issue of the Duty Master's order indirectly discriminating
against the Applicant by "unreasonably limiting" or "infringing" on his a priori rights and
obligation as a party before the trial court in a suit at law. The petition to the Chambers Judge
claimed it unreasonable and wrong for the Master to limit or deny the procedural right of citizen
of Canada to develop a judicial remedy solely due to very factual circumstances (imprisonment
and poverty) that had precipitated the Applicant's complaints to the Master. The intended appeal
seeks to argue a Duty Master or Chambers Judge as having a positive constitutional duty to
procedural fairness requiring the court to be sensitive as well as responsive to the facts before
them of difficulties arising solely due to a party of adverse interest interfering with the
fundamental rights of an opposing party having been deprived of his property as well as of his
liberty.
[617] As set out in the previous section the Applicant believes that inter alio, the cited Smith supra, and
the Supreme Court of Canada in Public Service Employee Relations Commission (B.C.) v. British
Columbia Government and Service Employees' Union supra, ( MEIORIN), Entrop et al. supra,
and Superintendent of Motor Vehicles (B.C.) supra, provide the speaker adequate tests to show
that his intended appeal has disclosed factual circumstances suggesting a real possibility of
indirect and unintentional discrimination. In brief, such a claim is factually made reasonable for
the reasons that follow.
[618] At the risk of being redundant the Speaker again places emphasis on the incontrovertible and
observable fact that a person deprived of his self-determination is unable of his own free will to
secure an income as well as unable to physically access the facilities of a provincial court. In the
case at Bar it is apparent a Duty Master or Chambers Judge as having failed or refused the
positive constitutional obligation to be sensitive and responsive to a prisoners afflictive and
disadvantaged other status within Canadian society. The Applicant's and other affidavits having
made it observably clear before the Master of his being a Canadian citizen living 6 years in the
utter poverty of a prison belonging to the defendant Bulgaria.
[619] Furthermore the Applicant again incorporates here by reference his previous discussion as to the a
priori and a posteriori reasoning as to why his intended appeal is merited. It is recalled from that
early discussion that the Court Rules Act is impugned due to an error or intentional omission in
contemplating the discriminatory affects of certain practices and procedures on application to
indigent citizens deprived of their liberty, particularly when abroad. The impugned Act having
indirectly discriminated solely due to it not making provision for a negative restriction on a
Master or Chambers Judge's application of a reverse onus to this distinct and disadvantaged
group.
[620] Furthermore it is recalled from the discussions that the Act is as well impugned for indirectly
discriminating due to omitting, as a positive obligation, a procedural provision allowing a Master
or Chambers Judge to be sensitive as well as responsive to the incontrovertible derogation a
persons constitutional rights suffer when barred from judicial review as well as remedy solely due
to the having a property - indigence - and social - imprisonment - impairment within Canadian
society different from a presumed group characteristic. On reading the impugned Act, and Rules
of the Court, it is immediately apparent that Lieutenant Governor had omitted to provide
procedural relief to the affected group or a positive direction to guide a Master or Chambers Judge
of the provincial court to secure for members of the affected group some form of reasonable
remedy when a party to a suit at law.
[621] The Act further omits any recognition of the affected group as having other status in society
different from the presumed characteristics of all other civil litigants. As a result no there is absent
a procedural remedy under the Rules of Court that proves sensitive as well as responsive to the
hardships and disadvantages common to members of this distinct group, and thereby leaving the
affected group with no procedural possibility under the present Rules of Court to exercise their
constitutional right to develop a judicial remedy as citizens of Canada.
[622] The Act applies a practice and procedure that is an absolute deterrent to the affected group, its
members virtually barred from petitioning the SCBC under s. 24(1) of the Charter. The very Rules
of Court enacted to protect the fundament rights of all litigants are on application to the affected
group acting to deny it members the very rights the Rules are enacted to protect.
[623] The Applicant believes his reasoning to find the intended appeal to be on all fours with the
Meiorin test are be found on application of Canadian human rights legislation as well as
application of the a priori principles of international law to the present circumstances. The
foregoing principles are there to guide the courts in determining the negative restrictions as well
as positive obligations of Canada and other States to the fundamental rights of the all persons. A
reasonable claim is raised as to the ultimate consequences to the Charter as well as other rights of
the distinct group affected by the practice and procedure of a Master or Chambers Judge of the
Supreme Court of British Columbia on application of a reverse onus permitted under the
impugned part of the Act [Rules (41(16.5)(b)].
7.1.1.1. In the Law Suit

[624] It may be reasonable to separately and briefly address the question if the law suit of the plaintiffs
has prima facie merit.
[625] As stated in Part 1 - Statement of facts - the claims against the Defendants sound in tort and in
contract. The commercial activities of the Defendant Bulgaria are well documented in evidence
before the trial court as are its contractual relationship and financial exchanges with the plaintiffs.
[626] The plaintiffs have further provided the trial court a substantial amount of written material in
support of their claims that sound in tort. The plaintiffs and Speaker assert their claims against the
Respondent are on the basis of the material evidence before the trial court, not solely only on
opinions or pleadings.
[627] The Statement of Facts as well as the documents to be found before the trial court reveals the
plaintiffs have restricted their cause of action as framed in contract only those claims they believe
are proven by the documentary evidence of commercial transactions, written agreements and
official correspondences with the Defendant Bulgaria and others.
[628] Those claims framed in tort, inter alia defamation as alleged in the lawsuit and in later pleadings,
find the offensive or actionable words reproduced in hundreds of public news articles that repeat
the slander and reproduce the liable as alleged before the trial court. The personal injury suffered
by the plaintiffs results from, inter alia, physical anxiety and psychological torment and the
permanent physical and mental disabilities as resulted in the province. These are fully documented
before the trial court by independent medical practitioners.
[629] The Applicant therefore asserts before the Appeal Court that the plaintiffs and his complaints
against all the defendants in the law suit, including the defendant Bulgaria and the Crown, are
reasonable claims sufficient for trial.
[630] Questions of jurisdiction have arisen. The plaintiff(s) have sued a foreign state, the Republic of
Bulgaria, and counsel for the defendant government, to test the reasonableness of the plaintiffs'
claims, relies on issues of state immunity, jurisdiction simpliciter and forma non conveniens. As a
result it becomes necessary for the present enquiry into a "reasonable claim" to also consider
procedures and exceptions found in the enactments relied on by the plaintiffs to bring their claims
within the jurisdiction of a trial court of the province. Always keeping in mind the common law
applicable to such questions.
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.).
[633] State immunity, and jurisdiction simpliciter, once resolved, leaves only the question to of the trial
court and Court of Appeal as to being the forum conveniens to hear the matter. Case law shows
the forum non conveniens argument is resolved on the merit of the plaintiffs' claims as found in
those facts that can materially demonstrate a connection to the province and can be placed before
the trail court as documentary evidence to be later made available to the trier of the facts. The
alleged proof must be sufficient to show the court that the plaintiffs and this Speaker intend to rely
on more than simple pleadings or opinion evidence when going before the trier of the facts [see
Bushnell supra, and inter alio Amin Rasheed Shipping v. Kuwait Insurance Co. [1983] 2 All E.R.
884; Spiliada Maritime Corp. v. Cansulex Ltd. [1986] 2 All E.R. 843; Valmet Paper Machinery
Inc. v. Hapag-Lloyd AG., unreported, December 23, 1996 (B.C.S.C.) at p.4; Stern v. Dove Audio
Inc., unreported, April 15, 1994 (B.C.S.C.) at p. 16; Cook v. Parcel, Mauro, Junltin & Spaanstra,
P.C. (1997), 31 B.C.L.R. (3d) 24 (C.A.); CRS Forestal v. Boise Cascade Corporation, Vancouver
Registry No. C983201, August 13, 1999 (B.C.S.C.), Sigurdson, J; .G.W.L. Properties Ltd. v.
W.R. Grace & Company - Conn. (1990), 50 B.C.L.R. (2d) 260 (C.A.); Leisure Time Distributors
Ltd. v. Calzaturificio S.C.A.R.P.A. - S.P.A. (1996), 5 C.P.C. (4th) 320 (B.C.S.C.) at p. 3; J.
Michael Jensen Boat Sales Ltd. v. McAfee (1997) 12 C.P.C. (4th) 210 (B.C.S.C.); Bangkok Bank
of Commerce Public Co. v. City Trading Corp. (1997), 13 C.P.C. (4th) 324 (B.C.S.C.)].
[634] It then follows from the case law found in, inter alio, United Oil Seed Products Ltd. v Royal Bank
of Canada (1988), 87 A.R. 337 (C.A.), at 344, that the onus is placed on the defendant Bulgaria to
show a more convenient forum to hear the plaintiff(s) claims framed in contract or tort other than
the trial court of British Columbia, the plaintiffs having asserted before the trial court of having
met the usual factors necessary to determine the most convenient forum. See: Camco International
(Canada Limited) v. Porodo (18 November 1997), Calgary 9601-08706 (Q.B.), at p. 7, and special
emphasis on Morguard Investments Ltd. v. DeSavoye, (1993) S.C.R. 1077, at p. 1111, the court
writing: "There is nothing, then, to prevent the plaintiff from bringing such an action and thereby
taking advantage of the rules of private international law as they evolve over time".
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.
7.2. "(b) The Appeal Is Scandalous, Frivolous or Vexatious.
[640] The Supreme Court Act [RSBC 1996] c. 443, s. 18 interprets a vexatious proceedings as follows:
"18 If, on application by any person, the court is satisfied that a person has habitually,
persistently and without reasonable grounds, instituted vexatious legal proceedings in the
Supreme Court or in the Provincial Court against the same or different persons, the court
may, after hearing that person or giving him or her an opportunity to be heard, order that a
legal proceeding must not, without leave of the court, be instituted by that person in any
court.
[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.
[649] The Appeal Court, for the reasons given, is asked to end the deterrence posed by the courts fees
and to allow the relief petitioned for as necessary to the Speaker to prosecute his appeal before it
and his claims before the trial court. The application for indigent status should be allowed and the
Speaker permitted to proceed against the defendants.
8. For Leave to Appeal

[650] The factors to be considered by the Speaker in motivating an application for leave to appeal were
set out in the case of Hockin v. Bank of British Columbia (1989), 37 B.C.L.R. (2d) 139 (C.A.),
they are as follows:
"1. Whether the point on appeal is significant both to the litigation before the trial court and
to the practice in general;
"2. Whether the appellant has an arguable case of sufficient merit;
"3 The practical benefit to the parties of an appellate decision; and
"4. Most importantly, whether the appeal will unduly hinder the progress of the proceeding in
the trial court.
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.
2. Intended Points on Appeal
[655] The point on appeal is significant not only for affecting the Applicant’s fundamental right to be
heard in the proceeding before the trial court, but to the practice in general. The points raised
potentially affect the legal and property rights each member of a small distinct group of Canadian
citizens who are deprived of their liberty in Canada as well as abroad. If there is any significance
to the present appeal it is the derogation of the Applicant's fundamental rights in the litigation
before the trial court. If such derogation as claimed here holds to be true then the point on appeal
is equally if not more significant to the practice in general, particularly in the area of human rights
law.
[656] Eight (8) points are chosen as significant to any later analysis on merit as well as argument to the
Applicant's intended appeal:
1. Constitutional Validity of the Impugned Act's Affect on Indigent Prisoners;
2. The Constitutional Rights of a Citizen Having an "other status" to Judicial Review;
3. What Standard of Review to be Applied to Applications of "detached" Members of Society;
4. Master or Chambers Judge's Constitutional Duty of Procedural Fairness
5. The Reasonableness of the Affect of the Duty Master's Order ;
6. The Correctness of the Chambers Judge's Decision;
7. The Legal Affect of the Order and Decision on Citizens of "other status";
8. The Question of Exceptional Prejudice;
8.2. Whether the appellant has an arguable case of sufficient merit

1. Merit
[657] To establish merit the Applicant was guided by the "merit test" as set out by Wood, J.A. in
Mikado Resources Ltd. v. Dragoon Resources Ltd. (1990), 46 B.C.L.R. (2d) 354 (C.A.). In that
case, the court was dealing with an application for a stay of proceedings on a judgment ordering
the partition and sale of a property. Wood, J.A. stated as follows at p. 357:
"I am of the view that the proper approach to the threshold test of merit is that enunciated by
Lambert, J.A. in Rogers Foods (1982) Ltd. v. Federal Business Development Bank et al.
(1984), 57 B.C.L.R. 344 (C.A.). From that judgment I conclude that if the grounds of
appeal raised by the appellant have sufficient merit that it could not be said that the
appeal has no prospect of success, then the so-called "merit test" is met. That seems to
me to be akin to the "fair question to be tried" test which is applied on an application for
an interlocutory injunction, and that is the approach which I think should be taken in this
case."
[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
[659] Arguably a case can be made that the principle of international comity make any argument
insufficient where the case before the Bar or point on appeal appears to intrude on the sovereignty
of a foreign government.
[660] The Speaker has not been blind to the Respondent's sovereign rights and complexity of the
questions that arise in his asking a provincial court to exert its jurisdiction over penal institutions
of a foreign state.
[661] Rightly or wrongly the Speaker had suggested to the Duty Master the procedural possibilities
found under Rule 40 and Rule 56, Rules of Court. The provisions found there while not specific to
the circumstances are less intrusive on the Defendant Bulgaria's sovereignty than asking for the
Speaker's production in custody before the court. The Rules fail to provide any truly reasonable
alternative methods for impoverished prisoners to have their applications "spoken to" before the
court. In any event the trial court failed to make any comment whatsoever on the alternatives
offered by the Speaker.
[662] That the application of Rule 41(16.5) (b), Rules of Court to the Speaker in the case at Bar was
clearly wrong in the conjoined circumstances of his incarceration and indigence. Such
circumstances having been made clear to both the learned Master as well as the Chambers Judge.
[663] The application, as made requested it is spoken to in writing by the Speaker on the grounds that he
was incarcerated and indigent. It requested the Mater to establish for the Speaker what relief, if
any, was available to him to help moderate the combined debilitating effects incarceration,
indigence and an uncooperative adverse state party had on the Speaker's right to continue or
defendant in the proceedings. The basis of the applications relied mainly on the s. 15(1) Charter
guarantees to equality and protection in and under the law. Argument against the Master's order
were made to His Lordship Edwards, J., who knew or should have know it to be physically and
materially impossible for the Speaker to appear himself or to retain legal counsel to appear and
have his applications spoken to. Additional argument was to be found in the conduct of the
Respondent as aggravating the difficulties of the Speaker in the exercise of his fundamental rights
before a court of Canada.
[664] The Appellant respectfully argues that Charter as well as international law issues offers one or
more substantial grounds that could result in the order appealed being varied or set aside.
Ultimately, it is difficult for this Appellant to express much confidence in his ability to adequately
argue the merits of his Appeal. As stated earlier he is without any guide, having groped about in
the dark in an attempt to formulate arguments and analysis to merit his appeal. What follows is
presently the Speaker's best effort.
3. Arguable Case
[665] First, on a reading of the Act and the Rules of Court, it is apparent the Lieutenant Governor
omitted a negative restriction to the court applying a practice and procedure standard having a
reverse onus. The onus in question, on application to a distinct group, indirectly maintains an
absolute practical barrier on a citizen's fundamental right to develop a judicial remedy. As well its
application places unreasonable limits on only the affect group's fundamental right to continue or
defend in a suit at law.
[666] The exceptional prejudice resulting from foregoing omission are observable as real affects
occurring on application of the courts reverse onus standards to any indigent citizen deprived of
his or her liberty. A Master or Chambers Judge maintains the discriminatory standard when fixing
an order applying the courts reverse onus practice and procedure. The order indirectly acts as an
absolutely bar to any further access to the court services until the affected person comes within a
discriminatory standard solely based on a set of property and social characteristics. A group of
citizens unable to meet the property as well as social requirements of the courts discriminatory
standards are unreasonably limited from continuing or defending in a proceeding.
[667] What the Appeal court is asked to determine at trial if the practice and procedure standard under
the Court Rules Act demonstrably maintain a discriminatory standard on application to a distinct
group of citizens having no property as well as no liberty. A Master or Chambers Judge, on
application of the standard, unreasonably limits the fundamental rights of a distinct group solely
on the basis of the affected groups’ status as a detached part of Canadian society.
[668] Second, on a further reading of the impugned Act and Rules of Court it is as well apparent the
Lieutenant Governor having observably omitted making quantitative allowances under the Rules
of Court for a set of supplemental procedural accommodations necessary to those persons who
cannot meet the practices discriminatory standards.
[669] The enactment provisions fail to incorporate a necessary accommodation into standards of the
Rules of Court allowing for an appropriate procedural remedy as well as a assessment of each
person within the affected group according "to his or her own abilities, instead of being judged
against a presumed group characteristics" [see McLachlin, J. in the cited Superintendent of
Motor Vehicles (B.C.) supra]. Under the present practice and procedure standards a Duty Master
or Chambers Judge remains insensitive as well as unresponsive to a distinct group's afflictive
property as well as social status characteristics.
[670] The required merit for Appeal Court review may as well be found in the very real and prominent
negative affects due to this second omission. The Applicant, as would any other member of the
affected group, will find no procedural accommodation to supplement the extremely prejudicial
affects of the enactment's discriminatory standards as maintained by a Master or Chambers Judge.
The affected group finds itself absolutely barred by the SCBC from developing a judicial remedy
as well as unreasonably limited to the fundamental right to continue or defend in the proceedings
of a suit at law.
[671] The Appellant believes he has an arguable case significant to the litigation before the trial court.
At least sufficient enough for the Appeal Court to set aside or vary a Duty Master's order having
barred him from a fundamental right to develop a judicial remedy as well as unreasonably limiting
his right to continue or defend in a law suit. A Duty Master or Chambers Judge must have erred in
judgement on application to the Appellant of a discriminatory standard maintained for a presumed
set of group characteristics he cannot possibly meet. The Master having failed in what the
Appellant believes to be a positive constitutional duty to assess the Appellant according to his
own abilities and not a group presumed characteristics.
[672] The Appellant believed he as well has developed an arguable case significant to the practice in
general. The Appeal Court asked to consider at trial the constitutional validity of a practice and
procedure standard under the Court Rules Act that maintains a discriminatory standard solely
affecting a distinct group due to their afflictive property status as well as for being a detached part
of Canadian society. The impugned enactment having omitted negative restrictions as well as
positive obligations necessary to incorporating accommodation into the courts standards for a
person or group unable to meet the courts presumed characteristics. Ultimately the Appeal Court
to determine at trial if the discriminatory standards maintained by a practice and procedure under
the enactment, can or cannot form the basis of reasonably necessary standards when affecting a
property as well as social barrier to access justice.
[673] Are property and social barriers reasonable, and justifiable limits on the affected group's
fundamental rights in a suit at law as prescribed by law in a free and democratic society according
to the inviolable principles of natural justice, and international law? The Appellant believes they
are not.
4. Discussion
8.2.4.1. Affect as Opposed to Intent.

[674] Some additional discussion on the particular circumstances is warranted. The Appellant
understands the just, fair, and economic "intent" of the Court Rules Act, Rules of Court as well as
the Duty Master's order. Under the ordinary day to day circumstances confronting a Master or
Chambers Judge in their administration of the courts' resources, the Order's negative onus
affecting the Applicant would not ordinarily provide grounds open to challenge.
[675] What is significant to the Applicant's argument is that the "affect" of the Order as well as the
discretionary practice and procedure relied on by a Master or Chambers Judge for "justice and
economy" in administration of the court resources. This appears, from the affects, to be in direct
conflict with the perceived legislative "intent" of the enactment.
[676] The Duty Master's reverse onus effectively maintains a discriminatory practice and procedure
standard under the enactment solely based a presumed set of property and social characteristics.
This is true in two ways.
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.
[684] Furthermore, the Defendant Bulgaria is indirectly aided at any hearing in the proceeding. The
Court Rules Act, Rules of Court, having omitted to incorporate a procedural accommodation
permitting persons within the affected group a means to continue or defend in the proceeding.
8.2.4.4. What Affects Are Truly Apparent?

[685] It can been seen from the foresaid that the best and most principled intentions of a court practice
and procedure cannot alter the reality of its disparaging affect when applied to a distinctly
disadvantaged group, i.e. an indigent person deprived his liberty by a party adverse in interest to
them, and intent on obstructing their legal right to a full hearing and due process before a court of
Canada.
[686] The significant point to the practice in general as raised in the present enquiry appears to be that
of a reasonable discriminatory standard maintained by a practice and procedure, i.e., a Master or
Chambers Judge having required the attendance to the court of a litigant and/or his solicitor. The
nature of this discriminatory practice and procedure appears only to advance the governmental
regulatory scheme of "justice and economy" in the administering of the courts services to the
general public. What is arguable is this reasonable standard becomes observably unreasonable
solely on its application to a person who is indigent as well as deprived of his liberty. Maintaining
such a discriminatory standard as a practice and procedure of the court must be impugned by its
affect having exceeding the reasonable limits prescribed by law on application to this distinct
group.
[687] Early it was mentioned that what appeared significant to the practice in general, and the present
litigation, is that the government's intent of "economy" appears to be in conflict with its purpose of
"justice". The enactment, the Court Rules Act, having by omission acted to indirectly discriminate
against all indigent persons deprived of their liberty. It doing so by omitting a "practice and
procedure" to provide some reasonable form of procedural assessment as well as remedy for the
court to apply in those instances where its otherwise reasonable limitations on a persons right to
continue or defend in a suit at law become unreasonable on application to a distinct and
disadvantaged group.
5. International Legal Rights of Persons Deprived of Liberty.
[688] The previously discussions, and the cited international and national documents, flesh out the
human and fundamental rights of persons, including those deprived of liberty. The principle
guarantees found there, and as applicable national laws, are representative of the legal obligations
of states to the men and women the state has deprived of liberty.
[689] To make his case the Appellant has turned to the principles of international law that are
substantially the same as practised under the common law. The a priori principles relied on appear
as equally relevant to the civil law tradition of the Defendant Bulgaria as they do to the common
law traditions of Canada.
[690] The Appeal Court is asked to consider these a priori principles when interpreting factors having
significant dilatory affects on the Appellant's ability to obtain a timely and effective means to
access the trial courts of British Columbia. The obstacles having resulted from a discriminatory
practice and procedure standard followed by a Duty Master of the Supreme Court of British
Columbia. The affects of the Duty Master maintaining as well as applying this standard to the
Appellant are severely aggravated here by the failure of the Republic of Bulgaria to observe its
international commitments. Agencies of the Defendant State refusing to recognise the negative
restrictions as well as positive obligations to be observed in its treatment of any person deprived
of liberty.
[691] The Appeal Court is asked to consider how the a priori principles of international law might
impact on the merits of the Appellant's primary question on a discriminatory practice and
procedure having exceptionally prejudicing the fundamental rights of Canadian citizens part of a
distinct group. The controversy raised within the Appeal Court's jurisdiction is one of
reasonableness as well as correctness in the necessity of a discriminatory practice and procedure
standard.
[692] As discussed earlier from the nature as well as affects of the Duty Master's order there appear a set
of basic presumed property and social characteristics solely bias and historically prejudiced to a
distinct group. Application of the standard to the group derogates from Charter as well as
international principles guaranteeing a right to judicial remedy as well as to continue or defend
legal and property interests in Canada.
[693] The discriminatory standard under the impugned practice and procedure is observable in a reverse
onus applied by the Duty Master as well as the Chamber Judge decision finding the standard of
discrimination reasonable when judged against the presumed characteristics of the Applicant. It is
recalled the Appellant sought judicial review as well as relief from application of a discriminatory
standard he cannot meet. The Appellant relied on his Charter right of remedy under s. 24(1),
having brought his appeal first to the Chambers Judge in a form set out under the provisions of
Rule 53(6), Rules of Court. The Appellant petitioned the learned Chambers Judge to secure for
him as a inmate of a penal institution, such relief as His Lordship considered under SMR Principle
61 to be "the maximum extent compatible with law" and necessary to see the Appellant's "rights
relating to [his] civil interests" in Canada safeguarded before the trial court having jurisdiction
over the proceedings.
[694] The legal effect of engaging this discriminatory standard under the Court Rules Act is one having
the practical affect of denying any possibility to a Canadian citizen deprived of liberty to obtain a
judicial review. The affected group is absolutely barred by this practice and procedure from
applying as well as developing a Charter remedy under s. 24(1) that reads:
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
[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:
"Not only may persons deprived of their liberty not be subjected to [torture or other cruel,
inhuman or degrading treatment or punishment], including medical or scientific
experimentation, but neither may they be subjected to any hardship or constraint other
than that resulting from the deprivation of liberty; respect for the dignity of such persons
must be guaranteed under the same conditions as for that of free persons. Persons deprived
of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions
that are unavoidable in a closed environment [see: U.N. Human Rights Committee,
General Comment 21, paragraph 3. The Human Rights Committee provides authoritative
interpretations of the ICCPR though the periodic issuance of General Comments].
[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.
8.2.5.1. As to the Defendant Bulgaria

[702] The Applicant has alleged throughout the course of the proceedings before the trial court,
including those attempts to bring the present applications before the Appeal Court the following.
[703] That his rights as guaranteed under principles of international as well as the defendant Bulgaria's
national law are persistently breached. The defendant Bulgaria refusing its international
commitments by failing to observe the negative restriction on a State (1) in applying physical as
well as psychologically coercive measures to prevent or delay person deprived of liberty in
developing a judicial remedy as well as continuing or defending in proceedings where the State is
named as a defendant, and for also refusing to meet the positive obligation of a State (2) to
conduct a person it has deprived of liberty to any and all judicial proceedings affecting his legal
interests as well as other rights and obligation in a suit at law, such obligation is notwithstanding
the proceedings to be in a foreign jurisdiction.
[704] Defendant Bulgaria's refusals to conduct the Appellant to hearings in Canada are motivated by
administrative and budgetary difficulties of the agency responsible for escorting prisoners to
judicial sittings. Bulgarian agencies continuing to refuse to identify the substantive law barring the
Appellant from giving argument or evidence against the defendant Bulgaria before a Canadian
court of law. There exists a practice of the United Nations Human Rights Committee that has
stressed on more than one occasion that the obligation of states is to treat persons deprived of their
liberty with dignity and humanity. This a fundamental, and universally applicable rule not
dependent on the material resources available to the state party [see: Ibid., paragraph 4; see also
Mukong v. Cameroon (No. 458/1991) (August 10, 1994), U.N. Doc. CCPR/C/51/D/458/1991
(stating that minimum requirements regarding floor space, sanitary facilities, provision of food,
etc., must be observed, "even if economic or budgetary considerations may make compliance with
these obligations difficult")], mutatis mutandis, difficulties or costs encountered by the defendant
Bulgaria are not an excuse for it to refuse meeting its international duty to conduct a prisoner to a
foreign state for a judicial hearing. Financial difficulties are not sufficient cause for Bulgaria to
refuse a person deprived of his or her liberty their right to attend, or otherwise access a foreign
court when having to prosecute or defend their legal or property interests against it before a civil
court.
[705] The present Appellant has reasoned it not only wrong, but in fact unlawful under prevailing
international law for government agencies to hinder, deter or deny persons deprived of liberty a
means to bring complaints as well as continue or defend their claims before a court. International
law exempts no State government solely on account of the State where the prisoner is to be found,
or the State where a judicial hearing is to be scheduled. The negative restrictions as well positive
obligation of a State retain the same a priori of securing a person deprived of liberty his rights
before all courts.
[706] The complexities of the proceedings are admittedly made more vexing due to the "other status" of
the Appellant as a prisoner of the defendant Bulgaria. Its agencies activities in hindering the
Appellant are documented before the trial court. This strongly suggests, a posteriori, that the
discussed body of national laws as well as a priori international principles do not apply to a
citizen of Canada when proceeding against the government of Bulgaria.
[707] It is on the basis of the conduct of the defendant Bulgaria the Appellant believed he had sufficient
cause for his earlier petitions to secure a form of supplemental accommodation from the Duty
Master. The Appellant, pointing out his personal difficulties with the Defendant Bulgaria,
requested the Duty Master not judge or assess him against presumed group characteristics. Instead
the Appellant asked the Duty Master to allow him an accommodation of time to develop his
judicial remedy as well as conduct or defend his legal interests in writing before a Master or
Chambers Judge and later the trier of the facts. It is for this same reason the Appellant believes he
has adequate cause to petition the Appeal Court for the relief refused him by the Duty Master.
8.2.5.2. As to the Crown and Canada

[708] The proceedings before the trial court are without doubt complicated by the matrix of facts and
international circumstances of a law suit involving, in part, acts of the Crown in, and outside, of
Canada.
[709] Of significance to the present discussion are the principles found under UDHR Art. 12 and 28,
and the Crown's involvement with the defendant Bulgaria in Sofia, Bulgaria as well as in
Vancouver, British Columbia. Due to the Crown's direct as well as vicarious involvement with the
Defendant Bulgaria it appears that an international obligation exists for the Crown to provide a
remedy from "arbitrary interference", and attacks on the "honour and reputation," [see above:
"Facts of the Case: Malicious Prosecution; Defamation: Criminal Extortion"] of the Appellant.
The attacks are alleged as having been perpetrated by the Defendant Bulgaria at the instance as
well as with the assistance of the Crown.
[710] The principles of international law as well as Canada's constitution appear to require a remedy to
be "fully realised" in the lex fori of the provincial court, notwithstanding the foreign lex loci
delicti of the Crown's acts. The court's practice and procedure applying discriminatory standards
to the Appellant strongly suggests a bar on judicial redress against the Crown. This property as
well as social barrier limiting a distinct groups right to continue or defend in a suit at law against
the Crown as well as others will gone for as long as the Lieutenant Governor permits the Court
Rules Act to exceptionally prejudice the fundamental rights of the group. The Lieutenant
Governor having not recognised imprisonment as "afflictive" in nature omitted to provide a
practice and procedure for individual assessment of a prisoner's special needs as well as
quantitative supplemental accommodations to address those needs.
8.3. Is the Point on Appeal Arguable

[711] The Appellant incorporates here by reference his early arguments as well as discussions. It is now
appropriate to turning to review of the earlier enquiry in the context of the eight (8) points
identified as arguable:
10. The Constitutional Rights of a Citizen Having an "other status" to Judicial Review;
11. What Standard of Review to be Applied to Applications of "detached" Members of Society;
12. Master or Chambers Judge's Constitutional Duty of Procedural Fairness
13. The Reasonableness of the Affect of the Duty Master's Order ;
14. The Correctness of the Chambers Judge's Decision;
15. The Legal Affect of the Order and Decision on Citizens of "other status";
16. The Question of Exceptional Prejudice;
8.3.1.1. Constitutional Applicability and Remedy

[712] The Applicant raises the issue of the constitutional validity of s. 1(2) (a) of the Court Rules Act
[RSBC 1996] c. 80. As well as a Charter issue over a discriminatory standard and presumed group
characteristics practised as a common law rule under the impugned Legislation.
[713] At the outset the Applicant apologises to the court for any confusion he exhibits on how to
interpret the Lieutenant Governor's practice and procedure regulations, the "rules" as "made "in
council." The Applicant finds the impugned part of the enactment [s.1] sufficiently broad as to
confuse him on how to distinguish the "practice and procedure" the Lieutenant Governor has
made by "regulation" as from one relying upon a common law rule. Is both the provincial
legislation as well as a common law rule impugned? Clearly the power of compulsion, as well as
coercion, is incorporated as a part of the administrative practice and procedure determined by the
Lieutenant Governor. This suggests the enactment is law for it has all the trappings and effects of
law, engaging other statutes as well as common law rules. For these reasons it appears subject to
constitutional challenge as well as libel to a Charter review.
[714] Admittedly the Applicant is ignorant about the finer points of such complex issues, and lacks the
full breath of literature and experience needed to make as refined a distinction as he would like.
What follows is an attempt to develop from available case law and literature as reasoned an
argument and balanced a set of complaints as are possible for the Applicant from prison.
[715] The constitutional question arose on examining the affects of the rules under the Legislation in the
context of its intended purpose. The Charter question arose on a Master or Chambers Judge fixing
an order under Rule 41(16.5)(b), Rules of Court [Court Rules Act] pursuant to a common law rule
applying discriminatory standards to person who cannot meet presumed group characteristics.
[716] The first grievance of constitutional validity there appears to have a valid argument in that the
impugned part of the Court Rules Act [the "Legislation"] may be ultra vires, the provincial
Government, on application to a distinct group. Either due to its colourability, the Legislation
having indirectly allowed addition restrictions on a distinct groups' fundamental rights and
liberties beyond those already enacted against the group under criminal law. The rights and
liberties of the group offended by the Legislation are absolute rights of all persons under law and
not subject to limitation under a property and civil law jurisdiction. Alternatively, although
admittedly less likely, there is the paramountcy doctrine, the Legislation itself having transgressed
the constitutional division of powers between provincial and federal governments.
[717] The Applicant further alleges the application of the Legislation's discriminatory standard as well
as presumed group characteristics having exceptionally prejudiced the absolute rights and liberties
of a distinct group of Canadian citizens. The Legislation permits the exercise of the power of
compulsion as well as coercion to effectively deny a distinct group their access to provincial court
services and judicial review facilities. Restrictions as well as limitations are determined solely on
judging a person against presumed group characteristics of property and self determination.
Application bars the affected person from any further attempts at developing a judicial remedy as
well as to continue or defend in a proceeding already commenced.
[718] The Applicant's right to question the constitutional applicability of the impugned part of the
Legislation as well as to seek Charter relief from its affects is derived from the Constitutional
Question Act [RSBC 1996] c. 68 Section 8 as follows:
"8 (1) In this section:
"constitutional remedy" means a remedy under section 24 (1) of the Canadian Charter of
Rights and Freedoms other than a remedy consisting of the exclusion of evidence or
consequential on such exclusion;
"8 (2) If in a cause, matter or other proceeding
(a) the constitutional validity or constitutional applicability of any law is challenged, or
(b) an application is made for a constitutional remedy,
the law must not be held to be invalid or inapplicable and the remedy must not be granted
until after notice of the challenge or application has been served on the Attorney General of
Canada and the Attorney General of British Columbia in accordance with this section.
(3) If in a cause, matter or other proceeding the validity or applicability of a regulation is

challenged on grounds other than the grounds referred to in subsection (2) (a), the regulation
must not be held to be invalid or inapplicable until after notice of the challenge has been
served on 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.
[720] However, what is of significance to the present constitutional enquiry, and to the practice
generally is that there is the appearance a legislative deterrence having solely affected results in
civil proceedings brought on application or petition of an indigent person deprived of liberty. If
not intent of the impugned Legislation to systematically prohibit or limit judicial review of
prisoner's applications and petitions submitted in civil proceedings, it is most certainly its
observable affect on application to this distinct group.
[721] It is the affect on application of the Legislation as well as its common law rule to indigent persons
deprived of liberty that gives the Applicant a right to claim standing to bring a constitutional
challenge as a private party having been "exceptionally prejudiced" by its application [Smith v.
Ontario (AG), supra at 337]. The Legislation, as applied negatively affects the Applicant
fundamental rights and liberties more than any other citizen, certainly to the exceptional degree
necessary for standing.
[722] However, because the Applicant is in the exceptional circumstances of an indigent Canadian
citizen deprived of his liberty abroad, it makes it necessary to point out that the Appeal Court has
discretion to decide a point of public importance which has been fully argued. Where there is a
questionable standing [see: Smith at 338 as cited in Professional Institute of the Public Service of
Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 per Sopinka J. at 400] the
Courts have granted discretionary public interest standing where no other private litigant who
could step forward to challenge the law [see: Minister of Justice (Canada) v. Borowski, [1981] 2
S.C.R. 575; Canadian Council of Churches v. Canada (Minister of Employment and Immigration),
[1992] 1 S.C.R. 236]. In principle the Applicant as a indigent Canadian citizen deprived of his
liberty would have standing were it not for the fact he is prevented by his indigence as well as by
refusals of agencies of the Crown and the Defendant Bulgaria to apply to him the practice and
procedures under both national laws, as well as applicable principles of international
commitments and reciprocity, that allow for the conduct under police custody of inmates to and
from judicial proceedings, notwithstanding foreign jurisdiction.
[723] The Applicant recognises that the Legislation does not specifically prohibit the civil activity of
indigent prisoners to bring, continue or defend in a proceeding. It is reasoned by the Applicant
that the impugned Legislation was promulgated in the interests of justice and as a public service to
prohibit abuses of the courts resources. The Registrar, Duty Master and Chambers Judge having a
statutory duty to regulate such resources and balance them with the interests of the public and
those of equal and fair justice.
[724] However, according to this Applicant, the Legislation as a whole fails to recognise, or provide for
a reasonable procedural accommodation as a remedy to the afflictive nature of imprisonment. This
failure, or the appearance of such, creates a conflict, or the appearance of a conflict, of interest,
between the requirements of the provincial "government's objective of cost effective and
expeditious administration of judicial proceedings and other processes of the courts in the name
of the well-being of the public" and the criminal law jurisdiction of the federal government as well
as the constitutional duty of all Canadian courts to a proper standard of review, procedural
fairness and reasonableness in its determination of an application or petition brought by an
indigent prisoner.
[725] The Applicant argues that the derogation of a person's fundamental rights and liberties otherwise
guaranteed under natural law are not the same as the Legislation's intended purpose of prohibiting
abuses or regulating the conduct of proceedings Neither in purpose or affect are the practice and
procedure of the Legislation allowed to add to an existing sanction, penalty or punishment under
criminal law or to derogate from such fundamental rights or liberties if not specifically prescribed
by law. The Applicant argues that in the Legislation judging all persons against presumed group
characteristics, without providing an accommodation for those persons who cannot meet them,
amounts to nothing more than a regulation or common law rule indirectly aimed at prohibiting and
limiting judicial review of applications received from indigent citizens deprived of liberty. The
facts demonstrate the affect of impugned Legislation is based on one or more of the grounds
enumerated in s. 7 and s. 15 or on analogous grounds. The threshold requirement to engage s. 7
and s. 15 of the Charter has therefore been met in this case.
[726] There exists as well a statutory duty of a Master or Chambers Judge to regulate from practising
real or perceived discrimination against a person already placed at a legal disability on application
of a government sanction, penalty or punishment under criminal law. According to the Applicant
the impugned Legislation omits recognition of the types of circumstance that may create a
conflict, or the appearance of a conflict, of interest, between the principles of equal justice and the
economic and efficient dispensing of civil proceedings, having as effect if not purpose, the
creation of a prohibition against a small group of citizens from participating in the processes of
the court.
[727] The Applicant's explanations and reasoning may not be as clear they could be, but there can be no
doubt as to the affect of an unrestricted application of a discriminatory standard solely based on
judging all persons against presumed group characteristics of property or social status. A
constitutional question must arise on the face of facts that prove a Legislation to be so broad and
wide sweeping in its application, or in the alternative so limiting, that it results in an indirect and
unintended discrimination against this particular minority's fundamental rights to equality before
and under the law, and to equal protection and benefit from the law. Although the criterion of the
impugned Legislation is the same to all persons, indigent prisoners also protected by the Charter
are unfairly affected, and this constituted constructive or adverse effect discrimination .That the
restriction or reduction of a persons fundamental rights occurs solely a basis of the minority status
of these Canadians is manifestly unfair in substance and offends against Section 7 and 15(1) of the
Charter.
[728] For the purposes of this enquiry any future use of the terms, "impugned act ", "impugned rules",
"Court Rules Act", "Rules of Court", "Rules" and "Legislation" are used interchangeable one with
the other and shall always refer to the Court Rules Act [see: Interpretation Act [RSBC 1996]c.
238, Expressions Defined - "Rules of Court", "when used in relation to a court, means rules made
under: (a) the Court Rules Act, or (b) under any other enactment that empowers the making of
rules governing practice and procedure in that court"] and deemed to mean the same Legislation
unless otherwise stated.
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:
Notice to Attorney General of Canada
"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.
Notice of questions of validity or applicability
"8 (4) The notice must
(a) be headed in the cause, matter or other proceeding,
(b) state
(i) the law in question, or
(ii) the right or freedom alleged to be infringed or denied,
(c) state the day on which the challenge or application under subsection (2) or (3) is
to be argued, and
(d) give particulars necessary to show the point to be argued.
(5) The notice must be served at least 14 days before the day of argument unless the court
authorizes a shorter notice.
[730] The major issues to be resolved in the intended appeal as identified to the Attorney General follow
what appear to be traditional lines of enquiry:
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?
8.3.2.1. Pith and Substance

[731] For the first question as to the constitutional validity of the impugned Legislation the Applicant
turned to the statement of Sopinka J. in R. v. Morgentaler, [1993] 3 S.C.R. 463 (S.C.C.). At 481-2
he wrote:
"Classification of a law for purposes of federalism involves first identifying the "matter" of
the law and then assigning it to one of the "classes of subjects" in respect to which the
federal and provincial governments have legislative authority under ss. 91 and 92 of the
Constitution Act, 1867. This process of classification is "an interlocking one, in which the
British North America Act and the challenged legislation react on one another and fix each
other's meaning": B. Laskin, "Tests for the Validity of Legislation: What's the `Matter'?"
(1955), 11 U.T.L.J. 114, at p. 127. Courts apply considerations of policy along with legal
principle; the task requires "a nice balance of legal skill, respect for established rules, and
plain common sense. It is not and never can be an exact science": F.R. Scott, Civil Liberties
and Canadian Federalism (1959), at p. 26.
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."
{Emphasis Added - Mine]
[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:
"(a) practice and procedure in each of those courts;
"(b) the means by which particular facts may be proved and the mode by which evidence may
be given;
"(b.1) appearances and applications by telephone or other means of telecommunication before

each of those courts;
"(b.2) ….
[733] Using a purely technical and formalistic approach the Applicant adduced that the Legislation was
enacted with a principle purpose or aim of allowing the province to regulate the practice and
procedure of the courts in the just and economic determination of property and civil rights. The
Legislation exists to allow the Lieutenant Governor of British Columbia to develop in Council
policy directions on how proceedings before the provincial courts ought to be conducted, the
dominate purpose being of just and economic results.
[734] The Applicant first attempted to understand the intended purpose and direct affect of impugned
Legislation, in particular practice and procedure as applied to him, as it would be applied to any
other person. It appeared reasonable to first read the particular provision under the Rules of Court
having applied the challenged discriminatory standard allowed under the impugned part of the
Legislation's regulations or a common law rule within the ambit of Rule 41, subrule (16.5(b))
reading as follows:
" Rule 41 – Orders
"Disposition of referred applications
"(16.5) If an application is referred by the registrar to a judge or master under subrule (16.2)
or (16.4), the judge or master to whom the application is referred may
(a) make the order, or
(b) direct that the application be spoken to.
[en. B.C. Reg. 161/98, s. 12 (c).]
[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.
[740] The practice of barring any further applications for judicial review from a particular petitioner (the
"Applicant") proves absolute in its affect. The affected party is denied access to the very judicial
processes otherwise available under s. 2 of the Judicial Review Procedures Act and absolutely
necessary to a hearing of constitutional complaints. Barred by a Master or Chambers Judge order,
there exists no other possibility to develop a reasonable constitutional remedy to what are
unreasonable limitations exceptionally prejudicial to the rights of one party only.
[741] The Legislation's background and its context as well as policy purpose of the practice and
procedure are of noble intent. Its dominate purpose or aim appears to prohibit what could readily
lead to abuse of court services and judicial resources by lay litigants filing numerous applications
having little chance of success and where they are unprepared or unwilling to appear. Here, the
enactments discretionary "practice and procedure" appears as an effective and proper means to
ensure to members of the public that the court's resources are only applied to those cases where
the parties are prepared to appear in proprio persona to continue or defend their interests in a
proceeding. It would be unreasonable for a petitioner (the "Applicant") to expect a Master or
Chambers Judge of the trial court to make a determination on often unclear, sometimes poorly
formulated as well as occasionally legitimately complex lay applications without at least hearing
the petitioner as well as other parties who may be affected.
[742] There exists no doubt or controversy that the discretionary power of compulsion and coercion as
well as the discriminatory standard applied under the Legislation, in particular Rule 41(16.5)(b),
appear on the surface to apply a reasonable limitation to presumed group rights to court services
and judicial review. The discriminatory standard maintained by the Legislation as well meets
presumed group requirements for just and economic administration of their courts services as well
as resources of time and money.
[743] Technically and formalistically the Legislation as well as Rule 41(16.5) (b) are aimed at a class of
subjects regulated by the Lieutenant Governor to achieve the dominate legislative purpose of the
Court Rules Act as previously mentioned. However, the more flexible approach suggested by the
learned Sopinka J. in R. v. Morgentaler, supra, require considering as relevant to any process of
characterisation, the indirect and unintended affects of the Legislation in specific areas of its
application. Of particularly significance to this enquiry are the indirect affects on application to
citizens who are otherwise unable or prohibited from meeting presumed group characteristics.
[744] There appears to be incorporated in s.1(2)(a) of the Legislation a practice and procedure allowing
application of a regulation or common law rule having as its pith and substance an administrative
or quasi-judicial procedure engaging the statutory power of compulsion. The "real character" of
the impugned regulation or common law rule ostensibly allows the Legislation to prohibit or limit
the fundamental right and liberty of a citizen to apply for and obtain court services as well as to
petition for and obtain a judicial review of civil complaints. Here, the determination of the right or
liberty to make application or petition to the provincial court proves to be solely depended on a
discriminatory standard of judging the applicant or petitioner (the "Applicant") against presumed
group characteristics.
[745] The direct and immediate effects on application of this discriminatory standard to indigent persons
deprived of liberty under criminal law are believed to indirectly be a matter of law and class of
subjects solely regulated within the legislative jurisdiction of the federal government as well as by
the principles of international laws.
[746] In the course of developing his argument the Applicant questioned if, as a matter of stare decisis,
it was open to him to request the Appeal Court test the constitutional validity of the impugned part
of the Legislation if there is a prior decision by which the Appeal Court would be bound to hold
the Legislation, as well its practice and procedure directives, as lawfully promulgated in the sense
that it is not ultra vires. It would have proven helpful to the Applicant to have available a history
of the Legislation showing the evolution of both the practice and procedure developed under s.1
or the Legislation as well as the common law rule permitting application of a discriminatory
standard solely dependant on presumed property and social characteristics. It appears from the
Applicant's limited resources that there is no case law determining the constitutional validity of a
practice or procedure regulated under the impugned Legislation. Clearly no s.1 analysis exists of
the direct and indirect affects of the Legislation or common law rule on their application to
indigent persons deprived of liberty abroad. Indeed it appears the Legislation as well as the
common law rule has received almost no judicial consideration whatsoever.
[747] For these reasons the Applicant believes there is no reason that the impugned Legislation cannot
be challenged constitutionally despite its being otherwise lawful. The Applicant seeks to obtain,
inter alia, a declaration that application of a part of the Legislation to indigent persons deprived of
liberty was ultra vires because it constitutes a restraint on the rights of litigants who are prevented
by criminal law from meeting presumed group characteristics, It is was discriminatory as it
deprived a small group of citizens of fundamental Charter right and liberties otherwise the
absolute rights possessed by all other citizens.
[748] To develop his thesis and fix how the impugned Legislation reacts within the context of federal
legislation as well as the principles of international law required the Applicant to rely on the
extrinsic evidence he refereed to earlier in this Memorandum [see Preamble, Part 1 and Part III
Laws and Enactment Relied On] as well as again turn to the words of Sopinka J. in R. v.
Morgentaler , supra, writing at 483-4:
"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.
[Emphasis Added -Mine]
[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.
[751] Additional extrinsic evidence on foreign law (Bulgarian) as well was adduced solely to place the
conduct of the Defendant Bulgaria into the same context of federal policies as well as
international human rights agreements directed at the same kinds of "mischief" of bias and
historical prejudice directed at person having lost their liberty due to a criminal process. This
provides a wholly different perspective than might ordinarily be expected when evaluating the full
matrix of indirect affects of the impugned Legislation According to Sopinka, J. in Mrogentaler,
supra, the Appeal Court is entitled to consider all "relevant and not inherently unreliable"
evidence.
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.
[760] Legislation policy reveals a discriminatory standard and pattern that solely penalises, sanctions, or
punishes indigent Canadian citizens upon the occurrence of he or she having allegedly committed
criminal misconduct, notwithstanding that it has or has not been tried and established in a criminal
court. When considering the foresaid the Applicant has in mind the Legislation's reliance on the
power of coercion of a Master or Chambers Judge to absolutely bar anyone from making further
applications to the court for judicial review under s.2 of the Judicial Review Procedures Act as
well as to petition for a remedy if he or she cannot meet presumed group characteristics of
property or self determination. The Legislation, to maintain its discriminatory standard, requires
engaging the "power of compulsion" of a Master or Chambers Judge. This is derived from the
"statutory authority of decision" defined under the Judicial Review Procedure Act [RSBC 1996]
c. 241, as follows:
" Definitions
"1 In this Act:
"decision" includes a determination or order;
"statutory power of decision" means a power or right conferred by an enactment to make a

decision deciding or prescribing
"(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or
"(b)….
"and includes the powers of the Provincial Court;
"statutory power" means a power or right conferred by an enactment
"(a) to make a regulation, rule, bylaw or order,
"(b) to exercise a statutory power of decision,
"(c) to require a person to do or to refrain from doing an act or thing that, but for that
requirement, the person would not be required by law to do or to refrain from doing,
"(d)….
"(e) to make an investigation or inquiry into a person's legal right, power, privilege,
immunity, duty or liability;
[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
"11 (1) On the recommendation of the Attorney General after consultation with the Chief
Justice, the Lieutenant Governor in Council may appoint one or more masters of the court.
"(7) A master has, subject to the limitations of section 96 of the Constitution Act, 1867, the
same jurisdiction under any enactment or the Rules of Court as a judge in chambers
unless, in respect of any matter, the Chief Justice has given a direction that a master is not to
exercise that jurisdiction.
[763] The discriminatory standard maintained by a Master or Chambers Judge appears to have an
immediate administrative purpose or aim under the Legislation of limiting adjudication of
applications or petitions to only those persons who can meet presumed group characteristics.
[764] The Legislation, on engaging the statutory powers of a Duty Master or Chambers Judge is
employing judicial power to restrict, beyond the existing limitations legislated by parliament, the
fundamental rights and liberties of persons already deprived their right of liberty and self-
determination under a criminal head of law.
[765] It is argued the Legislation, having failed in its constitutional obligation to maintain adequate
negative restrictions as well as positive obligations as safeguards to restrict direct as well as
indirect affects outside the constitutional jurisdiction of administrative and private law, is ultra
vires the province, thus allowing the potential for mischief that Sopinka. J. spoke of in
Morgentaler, supra.
[766] If the Applicant understood the concept as well as context of the mischief Sopinka J. spoke of, it
would manifest itself within the context of the present case as the indirect affects of the
Legislation. The first and most apparent manifestation to the Applicant is the Legislation
indirectly permits a provincial administrative law to add further sanctions, penalties or
punishments in the nature of a prohibition and limitation to fundamental rights and liberties not
already restricted under any existing punishment provided for in criminal law. The Legislation
allows a common law rule engaging the statutory power of compulsion to apply what proves to be
a summary punishment in the form an a reverse onus that is absolute in its affect when applied to
indigent persons already incarcerated by the Crown or a foreign State.
[767] The second manifestation directly applicable to the case at bar is the Legislation indirectly
permitting a defendant, whether the Crown or a foreign State, to embrace the benefits but not the
burdens of criminal law procedure having a strict precondition the State produce, or else the court
secure from the production at all hearings of the incarcerated person (the "Applicant") whose legal
and property rights are to be affected. This strongly suggests the impugned Legislation indirectly
functions as an alternative system of sanctions, penalties and punishments avoiding existing
negative restrictions as well as positive obligations under the criminal code. It is to be recalled the
common law rule and administrative or quasi-judicial Order of compulsion as applied under the s.
1 of the impugned Legislation requires a person appear or retain a legal representative to appear
on petitioning the court under s.2 of the Judicial Review Procedures Act as well as when applying
under a rule of the SCBC Rules of Court to continue or defend in a proceeding. The Legislation
does not allow for individually assessment of a petitioner according to his abilities, it is instead
maintains a discriminatory standard of evaluating petitioners against presumed group
characteristics.
[768] The Applicant does not maintain that the real purpose of the Legislation or its common law rules
are to "stiffen and supplement" the provisions of the criminal law or other correctional legislation
limiting or guaranteeing incarcerated persons' fundamental rights and liberties. Earlier the
Applicant had adduced the dominate purpose or aim of the Legislation was as a whole to provide
for and enhance the just and economic administration of the provincial court services and
administration branch. The purpose of securing the observance of regulations respecting these
matters in the interest of the public generally is clearly committed to the local legislatures.
[769] However, the Applicant believes the Legislation to be pith and substance in the same class of
sanction, penalty or punishment subject considered the exclusive function of criminal heads of
law as well as the previously cited Correction Act, Corrections and Conditional Release Act,
Prisons and Reformatories Act and international commitments of the Federal Government to the
legal principles that flow from international law. A reading of Canada's Bill of Rights and other
seminal human rights legislation proved helpful to ascertaining what fundament rights and
liberties are absolute. This immediately raised the preceding question of the Legislation
improperly encroaching upon the federal jurisdiction under s. 91(27) of the Constitution Act,
1867.
[770] Proof the Legislation is ultra vires the province is not to be found not within its stated legislative
purpose or aim under s. 1. The evidence is solely within the context of the Legislation's
unintended purpose or aim and its indirect affects on application of a common law rule and
practice permitting administrative sanctions, penalties or punishments to be applied to a distinct
group of Canadian citizens. These men and women, like the Applicant, are found outside the
mainstream of Canadian society. The persons most affected on application of this common law
rule are indigent men and women already deprived of their liberty, they are Canadian citizens to
found within the penal institutions of Canada as well as foreign states. Already denied their self-
determination under criminal law, the provincial Legislation indirectly acts to further rob the men
and women of the affected group of what is left of their other fundamental rights and liberties.
The indirect affects of the Legislation exceed the limitations and restrictions prescribed under
federal criminal law and human rights legislation solely for the purpose of maintaining a
questionable discriminatory under an administrative head of law.
[771] The Applicant, after due consideration and to the best of his ability admittedly finds no
controversy as to constitutionally validity of the Legislation as a whole, it is incontrovertibly
within the legislative competence of the province to enact under section 92 of the Constitution
Act, 1867. Its enactment does not, again only as a whole, infringe on any Federal Government's
jurisdiction under section 91(27). If the Applicant understood the relevant case law then the
doctrine of paramountcy cannot be offended. The Legislation is not ultra vires the Federal
Government because in appears in at least its form to be pith and substance a matter within the
legislative competence of the Province under s. 92 of the Constitution Act, 1867.
[772] Yet, in the Applicant's reasoning, a posteriori, the Legislation is impugned by its affects as
opposed to its stated purpose or aim. Accordingly the Applicant turned his enquiry to consider the
question of its colourability. The Legislation in doing something indirectly that it cannot otherwise
do directly is ultra vires, at least to the limited understanding of the Applicant.
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.
[775] The preceding Duty Master or Chambers Judge order appears as an administrative sanction,
penalty or punishment. It having a sole purpose and immediate aim of restricting and limiting the
fundamental right and liberty to seek a judicial hearing of property or civil rights grievances as
well as to continue or defend in a proceeding. The order remains in effect for the indeterminate
period of time it takes a petitioner or applicant to meet presumed group characteristics. The
discriminatory standard requires the affected party to secure his or her attendance personally or in
proprio persona of a legal representative retained to have petitions or applications spoken to
before the court. The compulsion or coercion applied by a Duty Master or Chambers Judge to
meet the discriminatory standard only lifted once the standard itself can be met.
[776] The impugned Legislation has no jurisdiction to create, maintain or directly apply any
discriminatory standard to restrict or limit courts services and resources solely based on the
property resources and social status of a person, it therefore does so indirectly by requiring a
person do a certain acts - appear at court or retain a lawyer to appear - or refrain from doing a
certain things - petitioning for further judicial review of grievances or make new applications to
continue or defend in a proceeding - that the law does not otherwise require a person to do or
refrain from doing.
[777] The impugned Legislation has no jurisdiction to directly effect an administrative, quasi-judicial or
judicial sanction, penalty or punishment to maintain any discriminatory standard, it therefore does
so indirectly by allowing for application of a common law rule and practice engaging the statutory
power of compulsion or decision as granted to a Master under s. 11(7) of the Supreme Court Act
and to a Chambers Judge under s.1 of the Judicial Review Procedures Act. The Master or
Chambers Judge making an order prohibiting the right of further petitions as well as limiting
future applications to continue or defend in a proceeding subject to the affected party meeting the
discriminatory standard.
[778] The impugned Legislation has no jurisdiction to directly create an administrative or quasi-judicial
practice or procedure of sanctions, penalties or punishments that could directly prohibit or limit a
fundamental right or liberty otherwise guaranteed under federal law as well as provincial human
rights legislation [see: s.2 and s.4 Human Rights Code [RSBC 1996] c.210], it therefore does so
indirectly by placing a compulsion or coercion of an impossible reverse requiring a person to do
something that he or she cannot reasonably be expected to do.
[779] The impugned Legislation has no jurisdiction to directly modify by an additional prohibition or
limitation a fundamental right or liberty of persons whose rights and liberties are already pre-
qualified under federal criminal or correctional services legislation, it therefore does so indirectly
by application of a reverse property or civil liberties onus as sanction, penalty or punishment to
indigent persons deprived of liberty who cannot reasonably be expected to meet presumed group
characteristics.
[780] Again returning to the comments of Sopinka J. in Morgentaler, supra, at 496:
"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.
[782] Admittedly, on the surface there appears to be no contradiction between the federal and provincial
legislation and that the latter is intra vires, the province. However, as Sopinka J. wrote in
Morgentaler, supra, "form alone is not controlling in determination of constitutional character."
The policy and legal principle of the Legislation purports to having a dominate purpose or aim of
providing all residents of the province just and economic judicial services. The practice and
procedure as well as common law rules applied under the Legislation having a positive obligation
to make accessible to all persons their absolutely fundamental right and liberty to bring their civil
complaints before a court of competent jurisdiction. It the absolute right of all persons in a
democratic and free society to develop a judicial remedy in a fair and open environment. Earlier
discussion identified the rights and liberties international law considered as absolute. Most
outstanding and significant to the later Charter enquiry is the right to develop a judicial remedy as
well as to access a court of law to continue or defend legal interests in a suit at law.
[783] The a priori principles of natural justice do not make a fundamental right or liberty “less
absolute" if the nature of the proceeding is in a suit at law. It is the net effect of the impugned
Legislation on its application to a distinct group that must ultimately determine its legislative
context as well as purpose for having permitting a sanction, penalty or punishment under
administrative law to derogate further from the absolute rights and liberties of indigent citizens
deprived of liberty.
[784] The problem is therefore the "colourability" of the impugned Legislation. Any legislation, even if
firmly anchored in a provincial head of power, would appear to be ultra vires under the
"colourability doctrine" anytime it applies prohibitions and limitation on fundamental rights and
liberties otherwise determined under a different and federal head of law. It is the colourability of
the Legislation's indirect affect that finds, in pith and substance a Duty Master or Chambers Judge
of a private law court exceeding jurisdiction when indirectly determining a prisoner's rights and
liberties, thereby infringing on the Federal Government's jurisdiction under section 91(27) of the
Constitutional Act, 1867. Solely due to this the Legislation is not intra vires the province.
[785] This Applicant has very limited access to case law, it appearing impossible to find anyone having
constitutionally challenged a part of the provinces Court Rules Act. What was helpful was the
way the constitutional validity question was raised in R. v. Leclair (1990), 67 Man. R. (2d) 265
(Man. Q.B.). Although completely different in context the tests applied were the same. There the
court tested ss. 263.1 and 263.2 of the Manitoba Highway Traffic Act, S.M. 1985-86, c. H-60,
was raised. The applicant there having asserting the Manitoba legislation was ultra vires because
it was in pith and substance criminal law. On the question of the division of powers between the
federal government and the provincial legislature, Hirschfield J. concluded at 274:
"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.)
[786] The Applicant has previously stated in his submission having understood that the province had the
constitutional authority to enact legislation regulating its' court services and resources. The
"paramountcy doctrine" was briefly mentioned in this enquiry. If paramountcy is significant it is
only insofar as it concerns the international commitments of federal government and exclusive
jurisdiction of criminal and correctional legislation. The determination of a practice and procedure
to administer the provincial court services as well as the rules and the power to determine, as well
as regulate, the processes of the civil courts must be held to be intra vires the provincial
legislature. However, only so long as "the sections do not impinge upon and are not in conflict
with Federal legislation" under a different head of law.
[787] Like R. v. Leclair, supra, the impugned practice and procedure as well as common law rule
applied under s. 1 of the Legislation, mutatis mutandis, have as a dominate policy purpose or aim
the regulation of property and civil rights. The Court's policy to suspend services to the Applicant
as well as to suspend his civil right to continue or defend in a suit at law are apparently made a
compulsory practice and procedure by the impugned Rule. It is not intended as punishment such
as to bring the matter within the exclusive jurisdiction of the Federal Parliament. The sanction or
penalty of suspending court services to the Applicant or any other person in similar circumstances
need not be consequenced by "wrongs committed." during the course of the judicial proceedings.
There appears to be no statutory element associated to determining the need for application of a
sanction, penalty or punishment to compel or coerce a person to appear or retain a lawyer. The
sole operative element under the impugned part of the Legislation is a reverse onus. To obtain
review, continue or defend, a petitioner must fall within presumed group characteristics
determined by the Lieutenant Governor in Council within the context of self-determination and
property.
[788] The present form of the Legislation does not incorporate a statutory provision or element
permitting a Master or Chambers Judge of the provincial court to administratively sanction,
penalise or punish a person for his or her consequential failure to meet the Legislation's
discriminatory standard. It is recalled the person is judged against presumed group characteristics
and not according to his or her personal abilities. Furthermore, the inability of a person to meet the
discriminatory standard does not trigger or engage a related statute allowing for an administrative
sanction, penalty or punishment directly or indirectly placing an absolute limit on fundament
rights and liberties otherwise guaranteed under a federal head of law. If the foregoing is all true,
the Legislation is intra vires, the province. Therefore the Applicant's turned his argument to
analysis of this apparently innocuous administrative sanction applied to a party's (the "Applicant")
civil rights in a suit at law. Are an inflexible reliance on presumed group characteristics and the
statutory power of compulsion constitutionally validity if having indirect affects that enter into
conflict with the express arbiters of prisoner rights and liberties, the federal government?
[789] Absolutely no argument or supposition is advanced that questions the Lieutenant Governor's
intended policy purpose of the Legislative, the common law rule applied is as previously stated
reasonable. The common law as well as rules of practice and procedure determined by Lieutenant
Governor has allowed individual freedoms and liberties to be restricted or limited to persons only
for so long as they cannot to meet the Legislation's reverse onus. However, the Legislation omits
an accommodation standard to provide some form of procedural relief to a distinct group who
cannot meet the onus.
[790] The Applicant believes that the Lieutenant Governor of British Columbia unintentionally
exceeded jurisdiction in regulating a practice and procedure in an area occupied by Parliament
under s. 91 of the Constitution Act, 1867. The impugned Legislation is ultra vires, the Province of
British Columbia for having omitted a negative restriction to applying a reverse onus, the indirect
affect of which is to absolutely prohibit or limit a fundamental right and liberty of a distinct group.
It is as well impugned for omitting a positive obligation to individually judge each person by his
or her property and self-determination abilities, and providing an accommodation standard for
those who cannot meet its reverse onus. The doctrine of colourability was offended.
[791] If the Appeal Courts find the Legislation as satisfying its negative restrictions as well as positive
obligations to the constitution, and the indirect affects of the impugned part of the Legislation to
be within provincial legislative competence, then there is a further question. Is the common law
rule as well as the Legislation relying on it unfair in that it offends the concept of fundamental
justice?
[792] The foregoing question may be poorly formulated by this Applicant, yet it is fairy asked and
supported by recalling the facts, and legal principles regulating the rights and liberties of person
incarcerated under criminal law. Application of the impugned common law rule practised under
the Legislation to indigent Canadian citizens deprived of liberty proves utterly absolute in its
discriminatory affects; they find themselves barred from a fundament right and liberty to develop
a judicial remedy in a proceeding against the Crown, and others as private parties. However, these
limitations are constitutional matters to be considered under the fourth issue, if it is decided that
the provisions of s. 7 and s. 15(1) of the Charter are indeed engaged.
3. 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?
8.3.3.1. Applying the Charter to Administrative Law or a Quasi-Judicial act

[793] The Applicant finds himself, as a lay person, confronted by an intriguing problem as to what
exactly should he apply the Charter to? And, does the Charter Apply at all?
[794] The rational approach for a lay person begins with a reading of his statutory right to engage the
Charter as well as apply for relief. This begins with s. 24(1) of the Charter, and forms a part of
previously cited s. 8 of the Constitutional Questions Act [RSBC 1996] c. 68. Section 24(1) of the
Charter reading as follows:
Charter
Section 24(1) provides:
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
[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:
"(2) Section 52: Charter values and the common law
"(a) interpretating the common law in light of the values underlying the Charter
"(i) Review of the decisions dealing with the issue
"This court first considered the application of the Charter to the common law in Dolphin
Delivery, supra , [1986], 33 D.L.R. (4th) 174]; It was held that, pursuant to s.32( 1) of the
Charter, a cause of action could only be based upon the Charter when particular
government action was impugned. Therefore, the constitutionality of the common law
could be scrutinized in those situations where a case involved government action which was
authorized or justified on the basis of a common law rule which allegedly infringed a Charter
right."
"However, Dolphin Delivery, supra , also held that the common law could be subjected to
Charter scrutiny in the absence of government action.
In emphasizing that the common law should develop in a manner consistent with Charter
principles, a distinction was drawn between private litigants founding a cause of action on the
Charter and judges exercising their inherent jurisdiction to develop the common law. At
p.198 this was written:
"Where, however, private party "A" sues private party "B" relying on the common law and
where no act of government is relied upon to support the action, the Charter will not apply. I
should make it clear, however, that this is a distinct issue from the question whether the
judiciary ought to apply and develop the principles of the common law in a manner consistent
with the fundamental values enshrined in the Constitution . The answer to this question must
be in the affirmative . In this sense, then, the Charter is far from irrelevant to private litigants
whose disputes fall to be decided at common law."
[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."
[801] At pp. 156-157 in the cited Manning, supra, Cory J. wrote:
"Historically, the common law evolved as a result of the courts making those incremental
changes which were necessary in order to make the law comply with current societal values.
The Charter represents a restatement of the fundamental values which guide and shape our
democratic society and our legal system. It follows that it is appropriate for the courts to
make such incremental revisions to the common law as may be necessary to have it
comply with the values enunciated in the Charter.
...
"Courts have traditionally been cautious regarding the extent to which they will amend the
common law. Similarly, they must not go further than is necessary when taking Charter
values into account. Far-reaching changes to the common law must be left to the legislature."
...
[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."
[Emphasis Added - Mine.]
[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.
[807] On the basis of Eldridge, supra, it appears reasonable to conclude the Charter will apply to any
administrative order or quasi-judicial decision by a Master or Chambers Judge undertaken to
directly or indirectly advance a governmental regulatory scheme. The scheme here is a
discriminatory standard determined as a practice and procedure under the Court Rules Act, the
Legislation governing the services, as well as practice and procedure in maintained those services
by what appears to be the application of a common law rule. Like the hospital administration in
Eldridge, supra, interpreting government policy when determining what services are to be made
available to whom, here the Master and Chambers Judge are similarly acting to interpret what
courts services are to be made available to whom and under what conditions. To advancement the
governments scheme certain sanctions can be and are applied as prohibitions or limitations on
how someone may obtain court services. This is judged against presumed group characteristics
and services prove conditional on meeting a certain reverse onus. In the case at bar, and unlike
Eldridge, supra, the sanctions here on application to indigent persons deprived of liberty abroad
prove to be absolute in their affect of depriving a person of one or more fundamental right or
liberty.
[808] The available facts under the present case strongly suggest the Order's only apparent benefit to be
to the provincial court budget, having only advanced the government scheme for conserving the
material and human resources of the provincial courts. The interests of justice do not appear to be
served, notwithstanding they significantly affected. This leads, a posteriori to the Applicant's
assertion that s. 32(1)(b) of the Charter is engaged, and the Appeal Court asked to consider the
implications to the practice in general of any administrative, quasi-judicial or judicial act
prohibiting or limiting rights otherwise guaranteed to all members of society.
[809] It is on the basis of the immediately cited Canadian authorities that the Applicant first arrived at
his conclusion the Charter applied not only to the impugned Legislation but to all other
interconnected rules or actions undertaken that lead to the breaches of a priori law he has alleged.
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.
[816] However, the practice and procedure are ones having engaging the statutory power of compulsion
available to a Master or a Chambers Judge without engaging any of the judicial safeguards
requiring the reviewer to judicially determine the facts, circumstances or to determine the
applicable statutory or common law.
[817] What has occurred in the case at bar, and appears to occur in the practice generally or alternative
must occur if given the same set of facts and circumstances, is for an individual applicant or
petitioner to be judged solely against presumed group characteristics. There is no accommodation
for persons to be assessed according to their own abilities and no accommodation standard for
those who cannot meet the minimum physical or financial characteristics of the presumed group.
[818] If the foresaid is true, and there is much to suggest that it is, then the Charter applies, and further
analysis and argument must now proceed to the other Charter questions. All enquiry now turning
on whether an absolute right or liberty having been wrongly withheld or unreasonably restricted -
s.7 - or whether or not the prescribed limits on individual rights - s. 15(1) - that form a part of the
"practices and procedures" of the Court Rules Act and the "government's objective" of the court's
operating cost and speed, are reasonable - s. 1 - in a free and democratic society.
8.3.3.3. THE CONSTITUTIONAL LAW ASPECT

[819] Particularly significant and poignant are the words of Mitchell J.A for the Prince Edward Island
Court of Appeal in P.E.I. (Registrar of Motor Vehicles) v. Rankin (1991), 30 M.V.R. (2d) 122
having observed at the end of his reasons for judgment of the Court, at 124:
"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.
8.3.3.3.A The Duty Master's Order

[822] In Part 1: Statement of facts, the Speaker can be seen during the course of the proceedings to have
filed, and re-filed, as plaintiff, a number of requests for desk, or other interlocutory orders, all
later referred by the Registrar to a Master.
[823] On or about April 18th 2001 a notice of the Duty Master's order was provided by the Registrar to
the plaintiff in care of his father Mr. Robert Kap, it reading as follows:
"April 18th, 2001
"Dear Sir,
"Your recent desk order applications were referred to the Duty Master. The Duty Master
reviewed your applications and ordered all your applications must be spoken to. Therefore, I
am returning your applications.
Brent Messenger
Manager, Civil Programs
Vancouver Law Courts"
[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
8.3.3.3.B The Chambers Judge Decision
[825] On May 28th 2001, the first opportunity the Applicant's had at prison in Sofia, Bulgaria, he
appealed the Duty Master's order.
[826] The appeal to the Chambers Judge relied first on s. 24(1) of the Charter, the Applicant asked His
Lordship apply the Charter when judicially reviewing his appeal from the Duty Master's order.
The principal controversy was the order having exceptionally prejudiced the petitioner's legal
rights. The Appeal procedure before the Chambers Judge relied on the provisions of Rule
[827] The Applicant's grievances at that time to His Lordship were against an administrative or quasi
judicial practice and procedure placing a further sanction on the already severe and harsh
circumstances of the present applicant. A duty of an impossible reverse onus placed on an
indigent person already deprived of liberty must, by its very nature, offend fundamental
guarantees within the ambit under the Charter, - s. 15(1). Furthermore the engaging of coercive
power as a limitation on a person accessing the court's services solely due to being unable to meet
presumed group characteristics proves a form of unlegislated sanction, penalty or punishment
exceeding what is prescribed by law as demonstrably justifiable in a free and democratic society -
s. 1.
[828] Among the points raised in writing before the Chambers Judge the following four are believed
significant for the purposes of this analysis.
Starting at the third paragraph of the Applicant's appeal:
"Judicial direction is sought from His Honour as to the practical matter of how best might the
Charter rights of the Plaintiff be guaranteed."
Among the points for review:
"1. The Order manifests as its practical consequence a violation of ss. 15(1) Charter rights of
the plaintiff."
"2. The Order effectively discriminates against a class of litigant that, due to circumstances
beyond his or her control, could not reasonably be expected to attend court of his or her own
initiative or free will and in the absence of financial resources to secure legal counsel."
"3. The Order has a further practical consequence, it obstructs the ss. 24(1) Charter rights of
the Plaintiffs. In the Master requiring the Plaintiff do something that it is apparent from the
facts he cannot possibly do without the court to assist, the Master has imposed, as a vicarious
element of his Order, a procedural obstruction to exercising a Charter guaranteed right."
"6. The Order is inconsistent with Charter principles and the inherent jurisdiction of the court
for fair and efficient compensation for wrong and deterrence."
[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:
"April 18th, 2001
"Dear Sir,
"I referred your Notice of Appeal from the Duty Master to the Honourable Mr. Justice E.R.A.
Edwards. His Lordship reviewed your application and directed no further steps be taken, by
the plaintiff, until a representative of the plaintiff speaks to this matter in Court.
"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:
"Powers to judges and court officers
"19 (1) If by an enactment judicial or quasi judicial powers are given to a judge or
officer of a court, the judge or officer in exercising the powers does so in his or her official
capacity and representing the court.
"(2)….
"Application of definitions in Supreme Court Act to other enactments
"39 The definitions section of the Supreme Court Act, so far as the terms defined can be
applied, extends to all enactments relating to legal proceedings.
[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:
" Rule 41 – Orders
"Disposition of referred applications
(16.5) If an application is referred by the registrar to a judge or master under subrule (16.2) or
(16.4), the judge or master to whom the application is referred may
(a) make the order, or
(b) direct that the application be spoken to.
[en. B.C. Reg. 161/98, s. 12 (c).]
[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.
8.3.3.3.D Is a Charter Challenge the Answer?

[838] Briefly stated the Applicant's first grievance as raised in the prior enquiry addressed the
constitutionality of provincial legislation having indirectly transgressed the jurisdictional
boundary separating property and civil rights with that of criminal law. Specifically the Applicant
claimed an administrative or quasi-judicial interference with fundamental rights and liberties
when the engaging of a statutory power of compulsion has an affect normally associated with
criminal law, it argued that the Court Rules Act [RSBC 1996] c. 80, Rules of Court was ultra
vires, the province. Among other principle grounds raised was the Lieutenant Governor having
enacted no negative restriction as well as no positive obligation under the Legislation to regulate
the nature of administrative or quasi-judicial orders that directly or indirectly infringe on the
fundamental rights and liberties of citizens already restricted in their self-determination under a
criminal law jurisdiction.
[839] This first argument of the Applicant advanced a thesis the Legislation to be in part invalid and
void ultra vires the province. However, he recognises the weakness of this particular argument in
that there is no statutory provision under the legislation that directly offends the doctrine of
paramountcy. While the Legislation's indirect affects are hypothetically arguable under the
colourability doctrine it appears nonetheless, even to the Applicant, more an issue of a common
law rule infringing on individual Charter rights.
[840] The applicant's earlier reasoning turned on regulatory provisions of an act or law, developed under
common law, impacting on persons beyond the ambit of the impugned Legislation's intent. The
practice and procedure under s. (1) (2) (a) of the Legislation are common law rules applied to
provisions of the Rules of Court and must fall under Charter scrutiny by reason of being the
product of action by government, or an emanation of government. One issue the Appeal Court is
asked to consider is if s. 32(2) of the Charter applies as well as Section 52 Charter values to a
common law rule.
[841] From here the Applicant's continues his second grievance, claiming as absolute and inviolable the
right and liberty to access a court of law to develop a judicial remedy as well as obtain a judicial
review of complaints by a court of competent jurisdiction in Canada. The Applicant argues his
common law as well as Charter rights cannot be restricted or limited by an administrative or
quasi-judicial sanction, notwithstanding that when he is judged against presumed group
characteristics he cannot meet the discriminatory standards apparently developed under the
common law. The Applicant has little information on the legislative history of the impugned
Court Rules Act, Rules of Court, or the common law having developed around the Legislation and
apparently setting the standards and characteristics followed by the practice generally. What can
be adduced, a posteriori, is the following.
[842]
[843] How the Charter Applies.
[844] In the case of an impugned legislative act the Supreme Court of Canada in Irwin Toy Ltd. v.
Quebec (Attorney General), [1989] 1 S.C.R. 927, considered a the two-step approach in
determining if legislation offends a Charter right. The approach was followed in Rocket v. Royal
College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 at 244-45. First it is necessary to
determine whether the activity in question falls within the sphere of conduct that is afforded
Charter protection. If so, then to consider whether the purpose or the effect of the impugned
legislation is to restrict a freedom enshrined as a right.
[845] Charter Interpretation of Statutes.
[846] The approach to be taken when interpreting the impugned Legislation was enunciated by Driedger
in Construction of Statutes (2nd Ed. 1983), at p. 87 he writes:
"Today there is only one principle or approach, namely, the words of an Act are to be read in
their entire context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament."
[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
"(C) Does the differential treatment discriminate, by imposing a burden upon or withholding
a benefit from the claimant in a manner which reflects the stereotypical application of
presumed group or personal characteristics, or which otherwise has the effect of perpetuating
or promoting the view that the individual is less capable or worthy of recognition or value as
a human being or as a member of Canadian society, equally deserving of concern, respect,
and consideration?"
[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.
[860] Interpreting the Charter.
[861] In considering this question the Speaker relied on the general proposition the Charter is a
purposive document, to be granted a "large and liberal interpretation", see: Hunter v. Southam,
[1984] 2 S.C.R. 145 at 156-57; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at 766-
67, and that the Courts should extend the benefit of Charter rights in a generous and wide manner.
Using the words of Dickson C.J.C. in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344:
"The interpretation should be, as the judgment in Southam emphasizes, a generous rather than
a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals
the full benefit of the Charter's protection."
8.3.3.4.
8.3.3.5. Does The Charter Apply?

[862] S. 7 Rights and Liberties
[863] This argument has evolved rightly or wrongly from an interpretation of relevant federal legislation
as well as the principles of international law cited earlier. On the surface of these international
commitments of the Federal Government, as well as federal legislation, all persons have what
appear to be certain absolute rights and liberties. It is expressly forbidden to directly or indirectly
limit or withdraw such rights except as prescribed under statutory law, and then only reasonably.
[864]
[865] Charter.
[866] On reading of limited case law available to the Applicant, it was found the Court of Appeal to be
more than slow to strike down administrative law practice and procedure regulations as developed
under s. 1 of the Legislation as unreasonable, leaving such determinations to the Lieutenant
Governor in Council or the Chief Justice of the SCBC. Having recognised such reticence the
second question raised later on is the courts duty to consider whether the impugned Legislation as
well as common law rule when applied in certain circumstances, was sensitive to the s. 7 and s.
15(1) Charter rights of incarcerated and indigent citizens, contrasted with the wider mandate
conferred by the Charter to that conferred by the provincial Legislation.
[867] Section 1 of the Court Rules Act grants broad powers to the Lieutenant Governor in Council
powers, sufficiently so that "practice and procedure" under the impugned Legislation can
encompass a comprehensive body of regulatory measures governing the administration of the
courts and the practice generally in British Columbia. From time to time a Registrar, Master or
Chambers Judge of the Supreme Court of British Columbia is called on to perform a role under
the Legislation that has an administrative or quasi-judicial character. That role allows for a
discretionary right to apply an administrative or quasi-judicial sanction, penalty or punishment.
[868] Of interest to the present enquiry is the occasion of a Master or Chambers Judge making a
determination and fixing an order guided by the dominate purpose or aim of an economic and just
application of provincial court resources. The Duty Master, taking on an administrative role, i.e.,
determining what pre-trial application are to be heard, and the means or mode required for its
hearing. Such a role appears, if not wholly administrative, then at least not wholly judicial. There
is no statutory provision under the Legislation fixing a practice and procedure to be followed for a
judicial assessment of a person's abilities as well as a review of any individual circumstances as
judged against presumed group characteristics. This apparently left to the common law.
8.3.3.6. Section 52 Charter Values And The Common Law.
[869] The present enquiry into the Applicant's second grievance seeks to develop an argument sufficient
to have the Court find a common law practice and quasi-judicial procedure to be of no force and
effect under s. 52 of the Constitution Act, 1982. The practice in question violating the Charter
when it adds a further sanction, penalty, or punishment to an already existing restriction on a
citizen's fundamental rights and liberties as imposed under criminal law. It is claimed such a
common law practice and procedure is unfair, having unreasonably punished indigent prisoners
by further depriving them of rights and liberties that are otherwise absolute and inviolable.
[870] The sole issue to be resolved by the Appeal Court under this second grievance is whether the
combined effects of indigence and a pre-existing criminal sanction - loss of liberty - having in
some unfathomable way collectively acted to create a common law offence of absolute liability or
strict liability sufficient to engage the application of a sanction, penalty or punishment not found
to be found in criminal law or prescribed under another head of law.
[871]
8.3.3.6.A In The Case at Bar.

[872]
[873] What is significant to the case at Bar and this enquiry results from the "particular government
action" authorised or justified on the basis of what appears a common law practice and procedure
under s.1(2)(b) of the Court Rules Act, Rules of Court Rule 41(16.5)(b). The action engages the
statutory power of compulsion or coercion to advance the provincial governments regulatory
scheme to bar a citizen (the "Applicant") from any further procedural possibility to pursue his
judicial remedy in a suit at law as well as to restrict him from continuing or defending in the
proceeding solely until his appearance or that of a legal representative before the court. The
Applicant relies on the following words of Cory J. in the cited Manning, supra, should the
Honourable Court interpret an order so fixed by a Master or Chambers Judge to not be a
government action. Continuing at pp. 152-153:
[874] The Appeal Court is asked to recall that there is nothing to dispute the fact that the Applicant is
physically prevented from appearing before the court as well as his having no financial resources
to secure a legal representative. Furthermore, it is incontrovertible fact that the Defendant
Bulgaria refuses to conduct, under custody, the Applicant to and from the court as well as it is
arguable fact the same defendant having used physical and psychological coercion to deter the
Applicant as well as other plaintiffs from continuing or defending in the proceedings. The
Applicant, while complaining of the Defendant Bulgaria's conduct as questionable he did not raise
a Charter issue to the private law questions at issue in the suit at law against the Defendant foreign
State.
1. [16] The germane provisions of the Charter relating to defamation law are set out in s.2(b), which
reads:
2. "2. Everyone has the following fundamental freedoms:
3. ...
4. (b) freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;"
5. ...
[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.
[877] The Legislation or alternatively the common law practice surrounding the impugned enactment
proves a form of additional sanction, penalty or punishment exiting in addition to as well as in
aggravation of that already provided for under criminal law. Jointly and severally both the
Legislation and apparently common law practice a further derogation of protected rights and
liberties solely on the basis of an existing element of deprived of liberty. The additional sanction,
penalty and punishment, solely affects indigent prisoners and is the result of a practice and
procedure of a Master or Chambers Judge advancing the provincial governmental regulatory
scheme as applied to the just and economic use of its courts' resources.
[878] It is both at once intriguing and confusing to the Applicant to find the conspicuous absence of a
written statutory provision(s) under the Legislation's regulations and rules as established by the
Lieutenant Governor, having allowed the direct or indirect barring of a person from court as well
as restricting a person from continuing or defending a proceeding solely due to the observable fact
the person cannot meet presumed group characteristics. It then follows that any Charter question
is too premised on an apparent common law - quasi-judicial - practice that solely on the basis of
property and social status determines an additional sanction, penalty or punishment to be added to
that already in place under criminal law. The Charter analysis relevant to the present enquiry are
of those rights and liberties considered to be absolute and guaranteed within the ambits of s. 1, s.
7, and s. 15(1) of the Charter that read:.
Charter
"Section 1 provides:
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society."
Section 7 provides:
"7. Everyone has the right to life, liberty and security of the person and the right not be
deprived thereof except in accordance with the principles of fundamental justice.
Section 15(1) provides:
"15(1). Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability."
6. 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.
8.3.3.7. Is There A Deprivation Of A Liberty Protected By S. 7 Of The Charter?
7. Submission of the Appellant
8. 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.
9. Alternatively, it can be argued that being “heard” by a Court of law in a civil proceeding is not a
"fundamental liberty", a "general liberty" or any other type of right or liberty protected by s. 7 of
the Charter. Permission to be heard or for an incarcerated person to be transported to the Court are
regulated activities which are a privilege - not a right or a liberty protected by s. 7 of the Charter.
10. Discussion
11. Frivolous Prisoners.
12. 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:
13. " 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.”
14. 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;
15. "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.
16. 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".
[96] In B. (R.) v. Children's Aid Society, [1995] 1 S.C.R. 315 the scope of the liberty protected by s. 7
was considered. That case is significant to the present enquiry in that it also deals with the
question of temporary custody. In the present instance at bar the Applicant in order to appear
before the trial court has on a number of occasions request the Defendant Bulgaria to place him in
temporary custody of Canadian authorities until the end of any trial. In B. (R.) v. Children's Aid
Society, [1995] 1 S.C.R. 315 Canadian police placed a child in temporary custody away from the
parents who are members of the Jehovah Witness faith. For religious reasons the parents had
objected to certain medical procedures being carried out on their infant daughter because the
procedures would entail the giving of a blood transfusion. The Ontario Children's Aid Society
intervened and obtained an order granting temporary wardship during which medical
investigations were conducted. Medical opinion indicated that exploratory surgery was necessary
and it would possibly require a blood transfusion. The temporary wardship was extended by
Provincial Court order. The exploratory surgery was performed. The child received a blood
transfusion. The temporary wardship was terminated and the child was returned to the care of her
parents. The parents asserted that their liberty interests under s. 7 were infringed by the actions of
the Children's Aid Society. There were three separate reasons for judgment that dealt with the
scope of s. 7.
[98] Lamer C.J. reiterated the view he had expressed in previous decisions that s. 7 should be
restricted to circumstances where the physical liberty of the individual was involved. At 340-41
he stated:
“With due respect for the contrary opinion, I am still convinced that the nature of the rights guaranteed
by s. 7, taken as a whole, and the close connection established between those rights and the
principles of fundamental justice, necessarily mean that this constitutional protection is connected
with the physical dimension of the word "liberty", which can be lost through the operation of the
legal system. In a majority of cases, therefore, this protection is specific to our criminal or penal
justice system and is triggered primarily by the operation of that system. . . . In my view, the
principle that must be adopted is that generally speaking s. 7 was not designed to protect even
fundamental individual freedoms if those freedoms have no connection with the physical
dimension of the concept of "liberty". There are other provisions in the Charter that perform that
function.
[99] La Forest J., with whom L'Heureux-Dub‚, Gonthier and McLachlin JJ. concurred, briefly
summarized the general issue raised in the appeal by stating, at 351:
This appeal raises the constitutionality of state interference with child-rearing decisions. The
appellants are parents who argue that the Ontario Child Welfare Act, R.S.O. 1980, c. 66, infringes
their right to choose medical treatment for their infant in accordance with the tenets of their faith.
They claim that this right is protected under both ss. 7 and 2(a) of the Canadian Charter of Rights
and Freedoms.
[100] After reviewing a number of authorities in connection with the scope of s. 7 La Forest J.
observed, at 368:
The above-cited cases give us an important indication of the meaning of the concept of liberty. On
the one hand, liberty does not mean unconstrained freedom; see Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486 (per Wilson J., at p. 524); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.
713 (per Dickson C.J., at pp. 785-86). Freedom of the individual to do what he or she wishes
must, in any organized society, be subjected to numerous constraints for the common good. The
state undoubtedly has the right to impose many types of restraints on individual behaviour, and
not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere
freedom from physical restraint. In a free and democratic society, the individual must be left
room for personal autonomy to live his or her own life and to make decisions that are of
fundamental personal importance.”
[102] The joint reasons of Iacobucci and Major JJ., with whom Cory J. concurred, focussed more
on the liberty interest of the child than the alleged liberty interest of the parents. At 431, Justices
Iacobucci and Major stated:
We note that La Forest J. holds that "liberty" encompasses the right of parents to have input into the
education of their child. In fact, "liberty" may very well permit parents to choose among equally
effective types of medical treatment for their children, but we do not find it necessary to determine
this question in the instant case. We say this because, assuming without deciding that "liberty"
has such a reach, it certainly does not extend to protect the appellants in the case at bar. There is
simply no room within s. 7 for parents to override the child's right to life and security of the
person.
In any event, there is an immense difference between sanctioning some input into a child's
education and protecting a parent's right to refuse their children medical treatment that a
professional adjudges to be necessary and for which there is no legitimate alternative. The child's
right to life must not be so completely subsumed to the parental liberty to make decisions
regarding that child: . . . [Emphasis in original]
[107] On the basis of these decisions it is apparent to the Speakers that a more expansive scope of
the liberty interests protected by s. 7 has been advocated by some members of the Supreme Court.
[108] It is recognized that the liberty interests protected by s. 7 may not necessarily be restricted to
the physical liberty of the individual. In appropriate circumstances, those interests may embrace
liberties that are fundamentally or inherently personal to the individual and go to the root of a
person's dignity and independence.
[109] The broadened scope of the liberty interest protected by s. 7, as expressed by some of the
members of the Supreme Court appears to extend to those matters that are fundamental or
inherently the right of an individual before a Court of civil law. In the opinion of the Speaker, the
right to be heard and to appear before the Court is a matter that goes to the root of a person's
dignity and independence and to hold otherwise would trivialize the liberty sought to be protected
by s. 7. In the Speaker’s view, the right or privilege to appear at trial is a liberty protected by s. 7
of the Charter and flows naturally from international law. The Crown and the Defendant State
Bulgaria must observe this right of the Speaker. Ergo, the Master and Chambers Judge are
required to extend their jurisdiction in such a way as to secure such rights, and any Rules of Court
of practice that acts to obstruct such rights must be deemed ultra vires on a division of powers
analysis and for it does act to deprive this Applicant and other incarcerated Canadian citizens of a
liberty protected by s. 7..
[881] . The intended point on appeal turns on a fair question: Is the affected group exceptionally
prejudiced by the impugned enactment? Exception prejudice was enunciated in the cited Smith v.
Ontario supra. The extrinsic facts before court below support the Applicant's proposition that there
is a reviewable error made in the Duty Master as well as His Lordship Edwards, J. declining to
accede to Applicant's petitions that he be permitted to continue or defend only in writing or that
the Defendant Bulgaria and the Crown conduct him to and from Court.
[882] The Applicant holds that the Duty Master as well as His Lordship Edwards, J. both incorrectly
held not to vary the way in which an incarcerated petitioner might comply with an order under
Rule 41(16.5)(b). Both determined that "spoken to" prescribed a practice and procedure of
maintaining a discriminatory standard solely based on presumed group characteristics of self
determination and property. The court unreasonably placing a reverse onus on an indigent person
deprive of liberty to appear or retain legal counsel. The Appellant believes application of the
Meiorin test to the case before the Appeal Court makes his points arguable.
[883] Should the Appeal court find the practice and procedure maintaining a reasonable discriminatory
standard, the Appellant then argues the alternative; that application of the discriminatory standard
to indigent persons deprived of liberty fails the s. 1 Charter test for reasonableness solely due to
its exceptionally prejudicial affects. The limits prescribed, if in fact they are such, unreasonably
limiting the s. 7, s. 15(1) and s. 24(1) Charter rights of impoverished citizens of Canada when
deprived of their liberty.
[884] The Appellant makes a further claim of a second reviewable error in the decision of His Lordship
Edwards, J. when declining his jurisdiction to accede to hearing an s.24 (1) Charter complaint in
writing.
4. The Existing Judicial Consideration of the Rules
[885] Concerning the apparent prohibition against applications being spoken to in writing by an
incarcerated party.
[886] It was an abrogation of judicial duty for the lower court to not undertake a Charter analysis of the
impugned Rule, and it is suggested that the Appeal Court should undertake that Charter analysis
now. The Speaker is not able to refer the court to any case where legislation initially held valid
was later successfully challenged constitutionally, but considers that the case should now be
decided on the issues that have been properly joined and argued.
[887] The present enquiry should proceed along what appears to be the traditional lines established in
case law for any Charter analysis: Does the Charter apply at all? Does the impugned practice and
procedure indirectly offend the right of equality - s. 15(1) - on application to an indigent person
deprived of his liberty? If so, does the application of the impugned practice and procedure offend
beyond such reasonable limits as can be demonstrated to be justified in a free and democratic
society - (s. 1)? The Speaker has considered each in turn.
8.3.4.1. Does the Charter Apply?
8.3.4.1.A To the Court Rules Act.

1. Argument
[888] A Master or Chambers Judge applying his coercive powers of limitation under the Court Rules
Act, without making any distinction between a person physically handicapped or, as in the present
case at bar a person deprived of his liberty and indigent, and a person physically able and at
liberty, does thereby indirectly discriminate and prejudice the legal interests of a distinct and
clearly disadvantaged person or group.
[889] The outstanding question the Speaker is attempting to resolve here turns on one point and one
alone that is the Master's absolute prohibition against applications to be "spoken to" in any other
form except in proprio persona of the petitioner or a lawyer before the court. This is absolute, the
impugned enactment providing no provisions for exception of persons deprived of their liberty
and having no financial resources to retain an attorney.
[890] In the Duty Master's order, or the later decisions rendered and the subject of this enquiry, nowhere
is the rationale provided for the applying Rule 41(16.5) to an incarcerated and indigent applicant.
[891] Little more discussion seems necessary to reach a conclusion that the Duty Master, in the case at
bar, acted administratively, and not judicially, exercising the statutory powers granted to him
under the Supreme Court Act to issue an "order" as a part of his quasi-judicial role in
administering the courts processes. The "order" apparently is only to enforce this administrative
"practice" of the courts, and to require a petitioner present his applications, in proprio persona,
before the court. Apparently, the "procedure" does not require a Master to judicially review the
facts or law relied on by the petitioner. That said, another question then arises; did the petitioner
have a right to have his applications judicially reviewed?
5. Availability of Judicial Review
[892] To answer this question the Speaker turned to the Judicial Review Procedure Act [RSBC 1996] c.
241:
"Definitions
"1 In this Act:
"application for judicial review" means an application under section 2;
Application for judicial review
"2 (1) An application for judicial review is an originating application and must be brought by
petition.
"(2) On an application for judicial review, the court may grant any relief that the applicant
would be entitled to in any one or more of the proceedings for:
"(a) relief in the nature of mandamus, prohibition or certiorari;
"(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or

proposed or purported exercise, of a statutory power.
"Error of law
"3 The court's power to set aside a decision because of error of law on the face of the record
on an application for relief in the nature of certiorari is extended so that it applies to an
application for judicial review in relation to a decision made in the exercise of a statutory
power of decision to the extent it is not limited or precluded by the enactment conferring the
power of decision.
"Power to set aside decision
"7 If an applicant is entitled to a declaration that a decision made in the exercise of a statutory
power of decision is unauthorized or otherwise invalid, the court may set aside the decision
instead of making a declaration.
"Defects in form, technical irregularities
"9(1) On application for judicial review of a statutory power of decision, may refuse relief if
"(a) the sole ground for relief established is a defect in form or a technical irregularity, and
"(b) the court finds no substantial wrong or miscarriage of justice occurred.
"(2) If the decision has already been made, the court may make an order validating the
decision despite the defect, to have effect from a time and on terms the court considers
appropriate.
"No time limit for applications
"11 An application for judicial review is not barred by passage of time unless
"(a) an enactment otherwise provides, and
"(b) the court considers that substantial prejudice or hardship will result to any other person
affected by reason of delay.
"Summary disposition of proceedings
"13 (1) On the application of a party to a proceeding for a declaration or injunction, the court
may direct that any issue about the exercise, refusal to exercise or proposed or purported
exercise of a statutory power be disposed of summarily, as if it were an application for
judicial review.
"(2) Subsection (1) applies whether or not the proceeding for a declaration or injunction
includes a claim for other relief.
"Sufficiency of application
"14 An application for judicial review is sufficient if it sets out the ground on which relief is
sought and the nature of the relief sought, without specifying by which proceeding referred to
in section 2 the claim would have been made before February 1, 1977.
[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.
[894] On appeal of the Master's order and request for judicial review, it appears that the principle, if
any, procedural grounds for the Chambers Judge to refuse such a review of the Speaker's petition
are to be found under s. 9(1) (b) above, the petition as made having failed to show adequate
grounds. The purpose of the present application before the Appeal Court is to demonstrate the
alternative, that the Master's order was unreasonable and therefore substantially wrong and a
miscarriage of justice. The petitioning plaintiff/prisoner should have been provided the judicial
review requested, notwithstanding technical irregularities or the like.
6. What Standard of Review to be applied to Applications of "detached" Members of Society;
[895] The Speaker alleges the Duty Master failed to observe a proper standard of judicial review when
dispensing with the Applicant/Prisoners various interlocutory petitions. This reasoning on the
Speaker's part is on valid if review was available to the Speaker as he alleges above.
[896] Issues of availability of judicial review, the standing of the Speaker to seek review, and the
timeliness of the application are questions of jurisdiction. If judicial review of the applications
returned by the Master was available to the Speaker as a plaintiff, then the scope of review and
whether the Master erred are questions of law. The standard of review of the ruling of the
Chambers Judge is correctness.
[897] The Speaker hopes to persuade the Court of Appeal to disagree with the conclusion of His
Lordship Edwards, J., finding it to have been an error in judgement to have allowed, as a
condition to judicial review hearing, the requirement that an indigent prisoner either appear before
the court or hire a lawyer to do so, His Lordship wrongly holding that a Rule 53(6), Rules of
Court, application and an s. 24(1) Charter complaint are not open to judicial review under the
Rules of Court if persons are unable to appear or retain an attorney solely on account of
imprisonment and indigence.
[898] The Speaker reasons that a person deprived of liberty makes his or her application for judicial
relief as an attempt to speak in a prosopopoeia form to the court. The government does not afford
prisoners any other practical possibility. Ergo the legal effect of the Master's order was
unreasonable since it asked the impossible, therefore the Chambers Judge judgement was in error,
the order and decision denied the Speaker, a prisoner, a Charter guaranteed right to prosecute or
obligation to defendant his interests in a law suit before the trial court.
[899] It was instructive to the Speaker to read the learned L'Heureux-Dubé, J., in R. v. Power (E.) ,
[1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1,
at 15 [C.C.C.], from where it appears that prosecutorial discretion also "is especially ill- suited to
judicial review". The finding in Osiowy v. Linn, P.C.J. (1989), 77 Sask.R. 1; 50 C.C.C. (3d) 189
(C.A.), and the Saskatchewan Court of Appeal that the discretion of the Attorney General to stay a
private prosecution is not reviewable "in the absence of some flagrant impropriety on the part of
the Crown officers" (per Vancise, J.A., at 191 [C.C.C.]). This case law leads the Speaker to reason
that the discretion exercised by the Duty Master under the impugned Rule 41(16.5) (b)) is in many
ways analogous to the prosecutorial discretion found in the criminal process, and to be especially
ill suited to appellate review. The language under which the Duty Master made his decision
required the Master only make a choice between making an order (Rule 41(16.5)(a)) on the
application or requiring the application "spoken to" (Rule 41(16.5)(b)) in proprio person of the
applicant. This requirement is applied to all persons at the discretion of the Master. However,
equal application does not guarantee equal results on application to all circumstances, and on
application to prisoners the effect of application defeats the intent of the legislation, practical
limitations of prisoner demand that a prisoner to first prosopopoeia before the court.
[900] The Duty Master's order in effect terminated any further possible prosecution or defence of the
law suit by the Speaker before the trial court. The Chamber Judge had already made the same
determination.
7. Judicial Review
[901] Availability of Judicial Review is discussed in Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re , [1998]
1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, at 41 [S.C.R.], Iacobucci, J., speaking for the Supreme
Court of Canada, referred with approval to the approach to statutory interpretation enunciated by
Driedger in Construction of Statutes (supra), writing for the court: "He recognizes that statutory
interpretation cannot be founded on the wording of the legislation alone" and goes on to cite R. v.
Hydro-Quebec , [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp. , [1997] 1
S.C.R. 411; Verdun v. Toronto-Dominion Bank , [1996] 3 S.C.R. 550; Friesen v. Canada , [1995]
3 S.C.R. 103.
[902] The Supreme Court of Canada in Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police and Ontario (Attorney General) , [1979] 1 S.C.R. 311; 23 N.R. 410 and
Martineau v. Matsqui Institution Disciplinary Board , [1980] 1 S.C.R. 602; 30 N.R. 119, held that
judicial review is available with respect to any decision affecting rights, liberties, privileges, or
property, irrespective of its classification as an administrative or quasi- judicial function: see
Knight v. Board of Education of Indian Head School Division No. 19 , [1990] 1 S.C.R. 653; 106
N.R. 17; 83 Sask.R. 81 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817; 243 N.R. 22. The Speaker had a right to a judicial review of his applications
conducted according to circumstances of his imprisonment.
[903] In Rizzo & Rizzo Shoes Ltd. supra, the learned Iacobucci, J found, as the Speaker is attempting to
enunciate here, cannot be interpreted "on the wording of the legislation alone" as found in the
rules the Chamber Judge refused the Speaker a judicial review of his appeal from the Master's
unreasonable order. In Nicholson supra, and Knight supra, the Supreme Court of Canada held that
"judicial review is available with respect to any decision affecting rights, liberties, privileges, or
property, irrespective of its classification as an administrative or quasi- judicial function". The
Master order and application of the said Rule 41(16.5) (b) to the Speaker was a quasi-judicial
decision. It acted to deter, in fact to absolutely deny, a prisoner, this Speaker, from the availability
of his right to judicial review of applications or complaints.
8. Does the Impugned Act (Rules) Offend Section 15(1)?
[904] The Speaker, before proceeding to the s. 1 Charter question, as the Honourable Court recall the
September 9, 1999, reason released by the Supreme Court of Canada in Public Service Employee
Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union ,
[1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161 ( MEIORIN). Madam
Justice, McLachlin, J. (for the full court), in her reasons did once and for all abolished distinctions
between "direct" and "indirect" discrimination. Again on December 16, 1999, the Supreme Court
of Canada released its decision in Superintendent of Motor Vehicles (B.C.) v. Council of Human
Rights ( B.C.) , [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280 ( Grismer).
McLachlin, J. (for an unanimous 7 judge court), enunciate that [at p. 880, quote unverified by the
speaker]:
"Meiorin announced a unified approach to adjudicating discrimination claims under human

rights legislation. The distinction between direct and indirect discrimination has been erased.
Employers and others governed by human rights legislation are now required in all cases to
accommodate the characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for those who cannot
meet them. Incorporating accommodation into the standard itself ensures that each person is
assessed according to her or his own personal abilities, instead of being judged against
presumed group characteristics. Such characteristics are frequently based on bias and
historical prejudice and cannot form the basis of reasonably necessary standards. While the
Meiorin test was developed in the employment context, it applies to all claims for
discrimination under the B.C. Human Rights Code."
"Once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts
to the defendant to prove on a balance of probabilities that the discriminatory standard is a
BFOR [a bona fide occupational requirement] or has a bona fide and reasonable justification.
In order to establish this justification, the defendant must prove that:
"(1) it adopted the standard for a purpose or goal that is rationally connected to the function
being performed;
"(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of
the purpose or goal; and
"(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that
the defendant cannot accommodate persons with the characteristics of the claimant without
incurring undue hardship." [See also: Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C.
15; 50 O.R.(3d) 18 (C.A.).]
[Emphasis and [ ] Added - Mine]
[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?
[912] The Speaker contends that the reasonable limits imposed by government on incarcerated citizens’
rights are to deprive him or her of their liberty in pursuit of the common purpose of protecting
society and providing some remedial social benefit. That the government’s right to limit the
Charter right of liberty is not an untrammelled freedom to limit a prisoners other Charter
guarantees. Having been deprived of a right to liberty cannot be regarded as granting a freedom to
other government agencies to pursue a policy having a result to further limit other rights under
law, if it were so, such a freedom would render illusory and wholly ineffective the s. 15(1) Charter
rights that are held to be in the public interest. Such a practice by government would ensure that
only those citizens remaining at liberty or alternatively having financial resources are considered
be equal before the courts of law.
[913] The importance of this aspect of the analysis was enunciated by Dickson C.J.C. in Big M Drug
Mart, supra, at 331:
"In my view, both purpose and effect are relevant in determining constitutionality; either an
unconstitutional purpose or an unconstitutional effect can invalidate legislation. All
legislation is animated by an object the legislature intends to achieve. This object is realized
through the impact produced by the operation and application of the legislation. Purpose and
effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly
linked, if not indivisible. Intended and actual effects have often been looked to for guidance
in assessing the legislation's object and thus, its validity.
[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:
"For the sake of clarity, I would prefer to reserve the term "vagueness" for the most
serious degree of vagueness, where a law is so vague as not to constitute a "limit prescribed
by law" under s.1."
and at 632:
"As was said by this Court in Osborne and Butler, the threshold for finding a law
vague is relatively high. So far discussion of the content of the notion has evolved around
intelligibility."
Again at 627 the factors to be considered in determining whether a law is vague:
"(a) the need for flexibility and the interpretative role of the courts;
"(b) the impossibility of achieving absolute certainty, a standard of intelligibility

being more appropriate; and
"(c) the possibility that many varying judicial interpretations of a given disposition
may exist and perhaps coexist.
[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
[922] Another argument is overbreadth and this comes down to a concern by the Speaker that at any
time a person is deprived of his or her liberty by way of judicial order or sentence, he or she,
following the loss their liberty, does not under any provision of the impugned Rules or other
enactment retain those procedural possibilities or civil liberties available to other citizens, such as
the right to represent oneself in a law suit or to prosecute ones civil claims or complaints before a
Master or Judge, the impugned Rules, as law, are so over broad as to omit procedures for indigent
prisoners to have a means to comply with that law, and are unable to regain their civil liberties to
sue or respond in a law suit or other procedural rights before the court until regaining their liberty
or a Master or Chambers Judge reached the opinion in proprio motu that a prisoner is a significant
party to his or her own law suit to be order summoned under provision of Rule 40(40), Rules of
Court as a witness to the proceedings.
[923] At the risk of being redundant this is truth and heart of the present inquiry, prisoners who bring
law suits, whether they may or may not have a reasonable claim or possibility for their law suit to
succeed before the trier of the facts, are nonetheless absolutely prevented from pursuing or
responding to any such claim before the courts, notwithstanding the merits. This process of
deterrence of prisoners in prosecuting civil law suits appears to be predicated on the assumption
that all "applications be spoken to" only in the person of the prisoner or a lawyer, otherwise not at
all or until such time a Duty Master or Chambers Judge decides otherwise.
[924] Any overbreadth analysis must look at the means in relation to its purpose. Are the methods
chosen necessary to achieve a state's objective? Here the Duty Master, and it can be said the
"State", pursued a legitimate objective under the impugned Rules. However, its is the State that
has allowed the impugned provisions of Rule 41(16.5)(b) to be much to broadly applied to all
members of society, far more than what is necessary or even possible to accomplish the objective
of the Rules as previously mentioned. This overbreadth affects individuals, even groups, in
different ways, and results in the case of indigent prisoners in the principles of fundamental justice
being violated because the individual's rights will have been limited for no reason. The effect of
overbreadth is that in some applications the law is arbitrary or, as is the case here, the effect is
disproportionate.
[925] What is at issue in the enquire here is the balancing of the State interest against that of the
individual, see inter alia authorities: Rodriguez v. British Columbia (Attorney General), [1993] 3
S.C.R. 519, per Sopinka J., at pp. 592-95; R. v. Jones, [1986] 2 S.C.R. 284, per La Forest J., at
p.298; R. v. Lyons, supra, per La Forest J., at pp. 327-29; R. v. Beare, [1988] 2 S.C.R. 387, at pp.
402-3; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 538-39; and Cunningham v. Canada,
[1993] 2 S.C.R. 143, at pp. 151-53. However, where an independent principle of fundamental
justice is violated, as the right to natural justice, then the balancing of the interests must take place
under s.1 of the Charter, see as authority: Re B.C. Motor Vehicle Act, supra, at p.517; R. v.
Swain, [1991] 1 S.C.R. p.933, at p.977.
[926] The Speaker argues in the alternative that if s.1 could not justify such a violation on the basis of
the vagueness or overbreadth arguments, it could on the basis of onus. In Lavigne v. Ontario
Public Service Employees Union, [1991] 2 S.C.R. 211 at 292, Madam Justice Wilson said:
" Obviously, where other means present themselves which would achieve the same
objective with less intrusion upon entrenched constitutional interests, such means are to be
preferred."
[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.
[928] This deleterious effect on the Speaker or any person having the same status obviously far
outweighs any benefit that the courts or might society receive. In the Speaker's lay opinion a
reformulated positive test would, from his perspective as the effected party, could just as
successfully achieve the legislative objective.
[929] A question to the Court of Appeal might well be the amount of deference it should give to the
Rules. The court in Irwin Toy Ltd. v. Quebec (Attorney-General), [1989] 1 S.C.R. 927, appears to
say that the deference afforded to the State might vary if the competing interests are between
individuals or groups or, the state and an individual as it might be in an ordinary criminal law case
were the deference is generally greater [see: R.S. MacDonald v. Canada (Attorney-General),
[1995] 3 S.C.R. 199 and in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.]
[930] Rule 41(16.5) (b) imposes no greater as onus on the effected party except to "speak" to his or her
application. The Speaker has recognised this throughout his analysis and argument. What he
argues is this seemingly benign requirement of this provision creates the "effect" of a reverse onus
on presentation of this requirement to indigent prisoners who are physically (no liberty) or
financially disadvantaged, and unable to do more than furnish evidence or information as
necessary in writing for a judicial review, and the Master or Chambers Judge should be satisfied
with this as the only affordable possibility to the prisoner. The following from R. v. Lyons (1987),
37 C.C.C. (3d) 1 at p. 45, 44 D.L.R. (4th) 193, [1987] 2 S.C.R. 309 is helpful: "It is also clear that
the requirements of fundamental justice are not immutable; rather, they vary according to the
context in which they are invoked. Thus, certain procedural protections might be constitutionally
mandated in one context but not in another."
[931] As has been discusses early imprisonment is a distinct and afflictive state. On application of the
impugned Rules this distinction imposes a disproportionate burden, obligation or disadvantage
that is not imposed upon others. In other words, as the Speaker has claimed previously it is
discriminatory.
[932] According to the learned Afforest J. that is not the end of the matter. Writing in Egan, [1995] 2
S.C.R. 513 at p. 529:
"Not all distinctions resulting in disadvantage to a particular group will constitute

discrimination. It would bring the legitimate work of our legislative bodies to a standstill if
the courts were to question every distinction that had a disadvantageous effect on an
enumerated or analogous group. This would open up a s. 1 inquiry in every case involving a
protected group.
[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.
[936] This, according to R. v. Oakes supra, requires that first the legislative objective must be
rationalized as being sufficiently pressing and substantial to justify the limitation imposed on the
freedom impaired. The second raises three questions aimed at a determination of whether the
measures chosen are proportional to the objective, those are :
Are the measures rationally connected to the objective;
Do the measures impair the freedom in question in the least drastic manner necessary
to achieve the objective; and,
Do the benefits derived outweigh the inherently deleterious effects of the

infringement on the enshrined freedom.
[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.
[949] However, it is the argument of the Speaker that impugned Rule 41 falls far short of the second of
the two criteria on the evidence of its effect when applied to indigent prisoners. It is this which the
Court of Appeal is asked by the Speaker as petitioner to decide as a point which is unquestionably
of very great importance to the Speaker's litigation before the trial court, and the Speaker believes
the practice in general.
13. Proportionality
[950] At the outset of my s. 1 inquiry, there were three questions to determining if the measure
employed by the Duty Master in application of the impugned part of the Rule is proportional to its
objective. A rational connection has been established to its application. The objective is accepted
as rational.
[951] The question now is whether the measures employed on an indigent prisoner furthered the
objective of the Court Rules Act, Rules of Court, in a rational way. Here the Speaker's answer to
the Court of Appeal must be a flat and absolute: No. The most laudable of goals can not save an
ineffective or irrational attempt to achieve them. Under no circumstances can it be an effective or
rational application of a measure of administrative or judicial discretion to apply a Rule having as
its' sole rational or objective to require an appearance before the court of a person no longer
possessed of his or her self-determination, or to have a person possessed of no property retain an
attorney to appear, its application having as its' sole effect only to virtually deny the existence of a
prisoners s. 15(1) Charter rights before the courts. There appears to be no public benefit to do so.
[952] Can it be said that the second burden is borne by the Duty Master of the court to establish that the
measure he employed when applying the impugned part of the Rule to a prisoner was only to
achieve its objective in the least intrusive manner that will serve the purpose of the Rules. Again,
the Speaker asserts to the Appeal Court that the application of the impugned rule by the Duty
Master fails to meet the onus it bears. There is adduced no evidence to discharge the Duty Master
or the courts constitutional burden and duty to the Speaker. The court is faced with unanswered
evidence based on the experiences in the Bulgaria with the Respondent government and the
conduct of its agencies. This evidence brought before the trial court appears to the Speaker to be
utterly defeating to any possible argument that the purpose of Rule 41 was satisfied in the least
intrusive manner.
[953] The Speaker had submitted to the trial court that the Rules of Court, and principles of international
law, offered far less drastic and more nuanced means of securing the Court Rules Act and the
Duty Master's goal far better than a blanket prohibition by him against any hearing of all pre-trial
application made by an indigent prisoner except in that manner prescribed by the court in virtually
all other circumstances.
[954] The third and final element the Speaker must analyse as a part of this enquiry is the balancing of
the benefit achieved by the application of the impugned Rules against the negative effect of the
infringed s. 15(1) Charter freedom on a prisoner. This appears as the least developed and most
difficult jurisprudence because it is either non-existent or usually redundant. As McLachlin J.
stated in RJR (para. 175):
" Having found the requirement of minimum impairment is not satisfied it is

unnecessary to proceed to the final stage of the proportionality analysis under s. 1 --
balancing the negative effects of the infringement of the rights against the positive benefits
associated with the legislative goal. A finding that the law impairs the right more than
required contradicts the assertion that the infringement is proportionate."
[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.
[957] There is no evidence that the objective of the Rules could not have been met by permitting the
applications to be spoken to in writing. The court is no stranger to such a practice when it is the
only means made available to a party and will see the objectives sought to be realized. It offers a
far less drastic and more nuanced means of securing the goals of the Rules than a blanket
prohibition against written applications from virtually all indigent prisoners no matter where he or
she is incarcerated.
[958] Further, the impugned Rules fails to consider or provide any quantitative as opposed to qualitative
means of relief needed by the particular disadvantaged group the Speaker identifies with. No
where is there a means provided in the impugned legislation to permit incarcerated and indigent
applicants to participate in civil proceedings, advancing or defending their claims before the trial
courts, if need be in writing only.
[959] The alternative further "effect" of the impugned legislation is to continue to require all prisoner
applications to the trial courts be "spoken to" in proprio persona of the petitioner or legal counsel,
a practice clearly prejudicing the s. 15(1) and s.24 (1) Charter rights of persons whose appearance
before the court is made physically and materially impossible by the government. A prisoner
cannot meaningfully apply under s.24(1) of the Charter, any such petition becoming a
meaningless exercise in futility as the court will require, as the Chambers Judge here has done
here, that such s. 24(1) applications as well be "spoken to" in proprio persona of the applicant or a
lawyer.
[960] All in all, to this Speaker, it would appear that as long as the impugned parts of the Rules continue
to be applied to prisoners without regard to the proof of the circumstances of their imprisonment
and poverty then the effect of the impugned Rules will inevitably and always be an unfair and
unequal one that derogates from the principles of natural justice the Rules are intended to protect.
[961] For analysis of this second factor the Speaker attempted a different approach relying on the fact
the order was made on the basis of the impugned part of Rule 41, Rules of Court, and the Court
Rules Act [RSBC 1996] c. 80.
[962] here is no direction or guidance under the Rules of Court about the conduct of a judicial review in
camera on an application where the applicant has afflictive circumstances (i.e. a prisoner) and is
unable to comply with the format of the hearing as practised by the Duty Master under Rule
41(16.5) (b) or the format of review as practices by Chambers Judge under Rule 53(6). There is
no express requirement under Rule 53 that Chambers Judge hold a "hearing" as part of his review
although one is implied under subrule 53(8) of the Rules. If a Chambers Judge elects to receive
further submissions from a complainant in the context of an informal hearing, there is nothing in
the Rules, the purpose of the review, the nature of the issue, or the impact of Chambers Judge's
decision on the complainant that imports a right to be represented by counsel under a Rule 53(6)
appeal or to receive reasons for Chambers Judge's decision. At least none that this Speaker can
comprehend.
[963] The Speaker's position, and the point here, is that the Duty Master did not observe the principles
of fairness in the manner in which he conducted the proceedings and arrived at the decision to
return all the Speaker's applications. The task of the Chambers Judge, on appeal was, in the
Speaker's opinion, in fact twofold. First, His Lordship Edwards, J. had to determine whether
judicial review was available in the circumstances of an indigent prisoner unable to retain counsel
when applying for, inter alia, a remedy under s. 24(1) of the Charter. Second, if it was available,
His Lordship had to determine whether the Duty Master had owed a duty of procedural fairness to
the Speaker and, if so, the content of that duty and whether it had been observed.
[964] The learned L'Heureux-Dubé, J., when she considered the factors appropriate to determining the
content of the duty of procedural fairness in a given set of circumstances by an agency or tribunal,
could be applied, mutatis mutandis to the present case. At paras. 23 - 27 she referred to the
following relevant factors: (i) the nature of the decision; (ii) the nature of the statutory scheme and
the terms of the statute pursuant to which the body operates; (iii) the importance of the decision to
the individual or individuals affected; (iv) the legitimate expectations of the person challenging
the decision; and (v) the choice of procedure made, in this instance by the Duty Master or the
court itself, particularly where the statute leaves that choice up to the Master or Chambers Judge.
She said at 840-841 [S.C.R.]:
" I should note that this list of factors is not exhaustive. These principles all help a
court determine whether the procedures that were followed respected the duty of fairness.
Other factors may also be important, particularly when considering aspects of the duty of
fairness unrelated to participatory rights. The values underlying the duty of procedural
fairness relate to the principle that the individual or individuals affected should have the
opportunity to present their case fully and fairly, and have decisions affecting their rights,
interests or privileges made using a fair, impartial, and open process, appropriate to the
statutory, institutional, and social context of the decision."
[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:
" The difference between 'unreasonable' and 'patently unreasonable' lies in the
immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's
reasons, then the tribunal's decision is patently unreasonable. But if it takes significant
searching or testing to find the defect, then the decision is unreasonable but not patently
unreasonable."
[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.
[976] There was a burden on the Speaker as the Applicant/Prisoner to adduce evidence before the
Master to support his motions and requests for procedural relief, he met that burden. There was
adequate evidence put before the Master to allow him, acting judicially, to come to a conclusion
that any order requiring an indigent prisoner to appear before the Master or hire an attorney had to
be a "patently unreasonable" one.
[977] The Duty Master was inflexible, His Lordship exercise of a statutory discretion and as a matter of
law he may not fetter the exercise of that discretion by the adoption of an inflexible policy, see:
Lloyd v. Superintendent of Motor Vehicles (B.C.) (1971), 20 D.L.R.(3d) 181 (B.C.C.A.), Veysey
v. Correctional Service of Canada (1990), 109 N.R. 300; 43 Admin. L.R. 316 (F.C.A.), Kupczak
v. Alberta et al. (1993), 146 A.R. 103; 13 Alta L.R. (3d) 284 (Q.B.) and Apotex Inc. v. Ontario
(Minister of Health) et al. (1995), 77 O.A.C. 360; 30 Admin. L.R. (2d) 259 (Div. Ct.). The
Speaker does not advance a thesis that the adoption of a general policy that "applications be
spoken to" in proprio persona of the applicant or his lawyer equates with the adoption of an
inflexible policy, only that it is essential is that each case be considered individually on its own
merits. The case presently before the Court of Appeal is demonstrative or an "inflexible" as
opposed to "general" policy.
15. Duty of Procedural Fairness
[978] Although called an "appeal from Master", the right conferred on the Speaker by under Rule 53(6)
is no more than a right to have the administrative or quasi-judicial decisions of the Duty Master
under Rule 41(16.5)(b) reviewed by a Chambers Judge. It is, in the Speaker's view, simply an
extension of the administrative or quasi-judicial processes of the court. In such a case the Rules do
not expressly or impliedly require a formal or even an informal hearing. A complainant who elects
to seek a judge's review of such a decision by the Duty Master is apparently not permitted a
judicial review or to submit additional written or oral material by way of written explanation or
elaboration of his appeal. It proves, from the Chambers Judge's decision in the case before the bar,
that an indigent prisoner as complainant is not entitled at this stage to seek any alternative
procedural relief in bringing his motions, he is required to either bring his applications for relief
before the court or is to be represented by counsel or is subject to a general stay on all his motions
until he appears before a Master or Judge in order to substantiate the applications or complaint.
Nor is a complainant, here the Speaker, entitled to reasons for the Chambers Judge decision to
confirm the determination of the Duty Master.
[979] Before the motions judge, the Speaker had submitted on appeal that the Master order under Rule
14(16.5)(b) cannot operate to bar indigent prisoners, like the Speaker, from exercising his right of
to prosecute a law suit to the fullest extent of the law or to bring other complaints or secure
judicial remedies from the trial court, since it offended s. 15 of the Canadian Charter of Rights and
Freedoms by depriving indigent prisoners from judicial recourse against the offending parties;
among other remedies sought by the Speaker, a request that he be conducted in custody before the
court by the defendant government, in the alternative that he be allowed to proceed on his
applications and motions only in writing before the trial court, the court requiring the defendant
government allow the Speaker the facilities he needed in prison and consent to the additional time
required by a prisoner to organise his submissions of argument and evidence, and the motions
judge to hold that the Duty Master's order under Rule 14(16.5)(b) to be of no force and effect with
respect to indigent prisoners, this Speaker, because it would breach a persons equality rights
solely for being indigent and in prison.
[980] The motions judge did not deliver to the Speaker any careful or comprehensive reasons for
refusing to review his motions or the Charter grounds of the appeal, this despite the Speaker's
reliance as a prisoner on a judicial remedy under s. 24(1) of the Charter, apparently the motions
judge not required by the Rules to do so when taking a decision to uphold the order of the Duty
Master that all the Speakers applications or motions be spoken or alternatively be stayed.
[981] The Speaker had understood that such a decision of His Lordship Edwards, J. is a discretionary
one, and the Court of Appeal will not substitute its opinion for that of the Chambers Judge unless
it can be shown that he was clearly wrong [see: Morrison v. Bank of Montreal (1985), 69
B.C.L.R. 54 (C.A.)]. The Speaker believes it to be wrong for the preceding and following reasons.
[982] If it is assumed that the Speaker's applications to the Duty Master are amenable to judicial review,
then the issue for determination by the Chambers Judge was whether the applications and
complainants were accorded procedural fairness by the Duty Master in the circumstances of the
incarceration and poverty of the petitioner. Judicial review appears limited to a consideration of
the content of Master's duty of procedural fairness to the complainants and whether the duty was
observed. With all due respect to His Lordship, the learned Edwards, J., the Speaker believes
these issues were or should have been apparent, in that they were clearly before the Chambers
Judge and that the Speaker was entitled to a full judicial review of the Master's order according to
the Judicial Review Procedure Act [RSBC 1996] c. 241 as follows:
"Definitions
"1 In this Act:
"application for judicial review" means an application under section 2;
"Section 2 provides
"2 "(1) An application for judicial review is an originating application and
must be brought by petition.
"(2) On an application for judicial review, the court may grant any relief
that the applicant would be entitled to in any one or more of the proceedings for:
"(a) relief in the nature of mandamus, prohibition or certiorari;
"(b) a declaration or injunction, or both, in relation to the exercise, refusal

to exercise, or proposed or purported exercise, of a statutory power.
"Power to refuse relief
"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 ...
" Although the duty of fairness is flexible and variable, and depends on an
appreciation of the particular statute and the rights affected, it is helpful to review the criteria
that should be used in determining what procedural rights the duty of fairness requires in a
given set of circumstances. I emphasize that underlying all these factors is the notion that the
purpose of the participatory rights contained within the duty of procedural fairness is to
ensure that administrative decisions are made using a fair and open procedure, appropriate to
the decision being made and its statutory, institutional, and social context, with an
opportunity for those affected by the decision to put forward their views and evidence fully
and have them considered by the decision- maker."
[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.
[991] The earlier constitutional question turned on the practical barrier being unintentionally legislated
into the rule (Rule 41(16.5)) or enactment (Rules of Court) complained of as acting against the
lawful right of incarcerated and indigent citizens to prosecute their civil claims and to apply under
s. 24(1) of the Charter. Application of the impugned rule or legislation has resulted in an
unintended practice of the courts to discriminate against a party solely because the party applying
before it happened to be an impoverished prisoner and as such their application could not be
"spoken to" in proprio persona of the prisoner or of a paid legal representative.
[992] To put it simply, it is a given that the object of the Rules of Court is to secure just, speedy and
inexpensive determinations of all proceedings before the court. The Speaker has attempted to
appreciate this fact in all his applications. The real question becomes one of priority. Is "speedy
and inexpensive" to take precedence over "just"? There existed in the case at bar a special onus on
the trial court, especially where individual litigants are representing themselves, that any order
made by the Master and later the Chambers Judge should have reflected the legal effect of the
order made.
[993] In the Speaker's naive view of the workings of justice there was a requirement of the court not
unlike that in an in absentia pre-trial proceeding. While the Master or Chambers are not to look at
all the material, or review all of it in detail, as the trier of the issues might, there existed such
unusual circumstances in the applications themselves that it should have come, ex proprio motu,
to the court's attention. The facts of the Respondent's conduct, and Speaker's incarceration and
indigence having given the Master and later the learned Chambers Judge sufficient cause to pause
and reflect on the legal effect of the order on the Speaker's s. 15(1) and s. 24(1) Charter rights.
[994] It was suggested that the order and Rule create barriers to equal justice and the practice generally,
raising the potential for conflict between the purposeful dispensation of equal justice and
administrative considerations of the court.
[995] If the impugned order and Rule violates s. 15(1) and s. 24(1) rights guaranteed by the Charter.
The Speaker's conclusion is, confined to the absolute prohibitions for which the order provides as
opposed to what he considers a fundamental frailty in the Rule being overly broad. The Rule
amounts to what is a blanket prohibition, real or apparent, against virtually any indigent prisoner's
civil application whatsoever from being heard, extending, as they do, to prohibiting them to apply
under s.24(1) for Charter relief of any kind before a Master or Chamber Judge of the Supreme
Court of British Columbia.
[996] It does not follow, and the Speaker emphasizes that it would be wrong to imply that there are no
reasonable restrictions on the how applications are to be "spoken to" by prisoners that could be
demonstrably justified in this province. That is obviously not the case, but, to the extent the Court
sees fit to prohibit applications, it must promulgate order and interpret the Rules in such a way
that can, if necessary, be properly proven to be both rationally based and proportionally
implemented.
[997] As to what part, or if at all, the whole of the impugned Rule 41(16.5) (b) must be struck down as
invalid pursuant to s. 52 of the Constitution act, 1982 is a matter beyond the Speaker and should,
with deference, be left to this Honourable Court to act as it may see fit based on its assessment of
the extent of the restrictions should be placed on incarcerated and indigent applicants in civil
proceedings before the courts that is dictated by this constitutional challenge.
8.4. The practical benefit to the parties of an appellate decision

[998] The practical benefit to the plaintiffs and Speaker is immediately apparent, as is the prejudice to
the Speaker in the absence of an appellant decision and the relief the appeal seeks.
[999] Any practical disadvantage to the Respondent could come only from an appellant court decision
to order the Speaker's appearance in custody at hearings or trial or alternatively to order the
Respondent to secure for the Speaker another means to access the court. The former poses little
disadvantage in that although it is plausible in principle it is unlikely as a practice. The latter,
although more like an would most probably prove unnecessary once the Speaker's right of access
are recognised by the court.
[1000] In simple terms, the practical benefit of an appellant decision to the practice of justice and to the
case at bar is that an incarcerated and indigent Speaker will be heard, say in writing. More
importantly the Respondent and the trial court will be required to recognise such right of prisoners
to be heard as equal to those of other citizens.
[1001] The relief sought from the trial court would allow the Speaker to prosecute his claims before the
court from prison.
[1002] Whether the appeal will unduly hinder the progress of the proceeding in the trial court.
Part V. The Relief Sought

[1003] The Speaker wishes to comply with the order appealed and to present his case and arguments, in
proprio person, before the court as might any other citizen of the province who cannot or, at their
own peril, does not wish to retain legal counsel.
[1004] However, this Speaker can not of his own free will comply with the order since the Defendant
Bulgaria wishes under any and all circumstances to confine the Speaker to the territory of the
Republic of Bulgaria thereby denying him access to the Court.
[1005] As a result, if the Speaker will not be permitted to appear, then he seeks the next and only
alternative; to access the court in writing. This is the only means left open to him by the
Defendant Bulgaria. Therefore, the Speaker seeks allowances from the Court such that would
grant him sufficient time to file and would cause the Defendant Bulgaria to secure for the Plaintiff
his right to access the necessary physical facilities and materials required to bring for the Speaker
to bring his lawful claims before a court of Canada.
[1006] Such a requests to this Court are made necessary by the Defendant Bulgaria’s persistent efforts at
obstructing the Speaker from directly engaging in the proceeding now before this Court.
[1007] The Speaker has challenged the rationale of the Master and Chambers Judge prohibiting Order as
being ill-founded. The Speaker maintains that the Order cannot be justified on the basis of the
limitations imposed or alternatives allowed by the Rules of Court. The Order and such Rules act
only to obstruct the Speaker’s Charter Rights and lead to a public perception that foreign States
who are Defendants before Canadian Court are in practice favoured by Rules of Court that under
the present circumstances serves to compromise the legal rights of a Canadian citizen before a
Court if Canada.
[1008] What then is sought is a declaration that the impugned Rules are invalid and an order quashing the
Master and Chambers Judge decision to deny the Speaker some form or procedural relief such that
allows him to exercise his legal right to prosecute his claims against the Republic of Bulgaria
before a Canadian Court.
1. Interpretation Act CHAPTER I-21 R.S., c. I-23, s. 1.
Interpretation Act c. I-21 R.S., c. I-23, s. 1.:
INTERPRETATION
Enactments deemed remedial
"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.
Application of definitions and interpretation rules
1.1.1.1. The Intended Appeal

[1009] It is believed, for the reasons stated above, that the Duty Master's order and the Chamber Judge
decision are, respectively, unreasonable, incorrect, discriminatory and finally invalid when applied
to indigent persons deprived of their liberty. To express the above in a context more in keeping
with the legal language of the court, the Speaker, at the risk of embarrassment, has struggled to
formulate the following points:
That the Duty Master erred in judgement on application of a discrimatory standard and
presumed set of characteristics to the Appellant. The impugned practice and procedure is
applied found Rule 41(16.5)(b), Rules of Court, Court Rules Act [RSBC 1996] c. 80 ("Act"
or "Rules" or "Rule") to a person deprived of his liberty when petitioning for a declaration of
indigence or other procedural relief or Charter remedy from the defendant Bulgaria. The
Master's order, as made, was unreasonable in its affect as it acted as an absolute bar to the
petitioner right to judicial review.
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
Michael Kapoustin

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Gentlemen,

Other parts simply stupid.

As always, thank you.

Supreme Court File №.S004040

In the British Columbia Court of Appeal

MICHAEL KAPOUSTIN, et al.

MEMORANDUM OF FACTS AND LAW

PART II. STATEMENT OF FACTS 15

1. Course of the Proceedings 15

PART III. ERRORS IN JUDGEMENT 43

PART IV. ARGUMENT AND ANALYSIS 43

1. The Arguments Evolution 43

1. Interpretation Act CHAPTER I-21 R.S., c. I-23, s. 1. 163

1.1. Parallels in Canadian Case Law

1.2. Relevance of the Cited Gwynne Supra

[18] And at §29:

[19] Again at §30:

[Emphasis Added - Mine]

1.3. Factors Existing In Aggravation of the Circumstances

1.4. The Appeal

1.5. Relevant Law

1.6. Interpretation and Factors

1.7. Reliance on Canadian Justice

2.2. Rights Relied On.

2.3. Prior Petitions

1. Course of the Proceedings

1.1. The Law Suit

1.2. Decisions of the Duty Master and Chambers Judge

1.3. First Hearing - July 13th 2001.

1.4. Second Hearing - August 24th 2001.

1.5. Present Applications At Bar

2. Facts of the Case

2.2. Cause of Action - Nexus to British Columbia

2.3. Claims Framed In Contract.

2.4. Claims Framed In the Tort.

2.5. Malicious Prosecution

2.6. Nature of Claim Framed In Tort of Conversion and Unjust Enrichment.

2.7. Nature of Claim Framed In Tort of Misrepresentation and Undue Influence.

2.8.7.1. The Indictment

2.8.7.2. The Trial and Conviction

2.8.7.3. The Acquittal

2.8.7.4. Supreme Court of Bulgaria - Protest and Appeal

3. Practices of the Defendant Bulgaria Existing In Aggravation of the Claims

3.1. Conditions in the Republic of Bulgaria

"The deteriorating human rights situation is further compounded by a pattern of impunity of

[Emphasis and [ ] Added - Mine]

[Emphasis Added - Mine]

[Emphasis Added - Mine]

3.2. Definitions of Torture

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

Part III. ERRORS IN JUDGEMENT

Part IV. ARGUMENT AND ANALYSIS

1. The Arguments Evolution

"Furthermore, no distinction shall be made on the basis of the political, jurisdictional or

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

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

[Emphasis Added - Mine]

[Emphasis Added - "[ ] " - Mine]

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

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

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

[Emphasis Added - Mine]

"RULES APPLICABLE TO SPECIAL CATEGORIES