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Information Nos.: C51190

 

court of appeal for ontario

 

 

B E T W E E N:

 

HER MAJESTY THE QUEEN              Respondent

 

- and -

 

WAYNE   FERRON                                                                                                                                                     Applicant

 

 

 

 

 

 

 

DOC-X

INTRODUCTION

_______________________________________________________

APPLICATION RECORD FOR APPLICATION

FOR CONSTITUTIONAL QUESTION

_______________________________________________________

Returnable on June 13, 2011

 

 

ISSUES AND THE LAW

 

0.) ACCESS TO JUSTICE

1.) NEW EVIDENCE

2.) EVIDENCE

3.) MINIMUM LEGAL RIGHTS:

4.) BIAS or REASONABLE APPREHENSION OF BIAS

5.) UNLAWFUL WARRANTLESS ARREST

6.) UNLAWFUL WARRANTLESS SEARCH

7.) CROWNS OBLIGATION TO MAKE TIMELY DISCLOSURE TO DEFENCE

8.) DEFECTIVE INFORMATIONS

 

9.) NATURAL JUSTICE

10.) FUNDAMENTAL RULE OF JUSTICE

12. ) CONSTITUTIONAL QUESTION

 

CONSTITUTIONAL ISSUE 1:

The Applicant intends to question the constitutional validity of Rule 16(5) and Rule 16(10) of the CRIMINAL APPEAL RULE SI/93-169.

 

CONSTITUTIONAL ISSUE 2:

The Applicant seeks a determination or interpretation on which conflicting legislation take precedence, S. 65(5.2) of the Freedom  of Information and Protection of Privacy Act or S. 7 of the Charter of Rights and Freedom. Does the Occupational Health and Safety Act prevail over the Police Service Act when there is a conflict  or contradiction between these two legislation? Furthermore, does the Police Service Act prevail over the Occupational Health and Safety Act within the context of section 15 of the Charter and with respect to a Police Misconduct complaint?

 

CONSTITUTIONAL ISSUE 3:

The Applicant seeks a determination or interpretation on which conflicting legislation take precedence, S. 69 of the Occupational Health and Safety Act R.S.O 1990 or S. 59(4) of the Police Service Act R.S.O. 1990. Does the Occupational Health and Safety Act prevail over the Police Service Act when there is a conflict  or contradiction between these two legislation? Furthermore, does the Police Service Act prevail over the Occupational Health and Safety Act within the context of section 15 of the Charter and with respect to a Police Misconduct complaint?

 

CONSTITUTIONAL ISSUE 4:

The Applicant seeks a determination or interpretation on which conflicting legislation takes precedence, S. 113 (1) and S. 30 of the Employment Insurance Legislation S.C. 1996 or S. 22.1 of the Evidence Act, R.S.O. 1990. Does the Employment Insurance Legislation prevail over the Evidence Act when there is a conflict  or contradiction between these two legislation? Furthermore, does the Evidence Act prevail over the Employment Insurance Legislation with respect to conflicting legislation?

11(d), presumption of innocence, mens rea and discrimination

 

CONSTITUTIONAL ISSUE 5:

The Applicant seeks a determination or interpretation on which conflicting legislation take precedence, section 15 of the Charter or  Ontario Regulations 587/91, Court of Justice Act, January 1, 1990 , the RULE OF CRIMINAL PROCEDURE, the jurisdictional authority of presiding justices and the jurisdictional authority of the Attorney General of Ontario. When there is a conflict  or contradiction between these two legislation? Furthermore, does the Ontario Regulations 587/91, Court of Justice Act, January 1, 1990

 

CONSTITUTIONAL ISSUE 6:

The following policies or apparent policies, claimed to be based on there respective legislation combine or concatenate to conflict with or oppose section 7, section 11(d) and section 15 of the Charter of Rights and Freedoms;

 

1.    section 113(1) of of the Employment Insurance Legislation, and section 7.3.5.5, 7.2.3, 7.3.0 and 7.1.0 of the Employment Insurance Digest of Benefit Entitlement, (Employment Insurance Commission’s Policies), which are based on S. 30 of the Employment Insurance Legislation;

2.    the Ontario Legal Aid Policies on Legal Aid Benefit Entitlement for Criminal Appeals based section 30(2) of the Ontario Legal Aid Legislation, for which Legal Aid assistance is not available in respect of criminal appeals where no custodial sentence has been imposed;

3.    the policies towards Access and availability of Court Transcripts which is determined by cash payments to Court reporters for services render;

4.    the collective personal belief of the collective Crown’s Agents working as Crown’s counsel  on transcripts and Appeals. In short the enforced unwritten directives of the collective prosecutors on transcripts with respect to appeals within the context of unrepresented, indigent Appellant’s.

5.     which legislation take precedence? Does the Charter of Rights and Freedoms prevail over the aforementioned collectively conflicting  legislations/policies which are concatenated to work in consort against an accused person in giving full answer and defence?

CONSTITUTIONAL ISSUE 7:

The Applicant seeks a determination or interpretation on reasonableness of enveloping or wrapping section 7, 8, 9, 10(a), 10(b), 11(a), 11(b), 12 and 15 of the Charter of Rights and Freedoms into section 9 of the Charter; to prudently and effectively deal vicariously through s. 9, with all of the aforesaid Charter concerns.

 

CONSTITUTIONAL ISSUE 8:

The Applicant seeks a determination or interpretation of the reasonableness of  the notion of “self-impose detainment” for a 20 minute investigative stop before the arrest and the notion of a “self-impose detainment” after the arrest within the context of section 9 of the Charter. Given that, Officer testifies that accused was not allowed to leave investigative area and a promissory $1000 bond was required to secure release from custody?

 

CONSTITUTIONAL ISSUE 9:

Furthermore, the Applicant intends to claim a remedy under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the

Government of Canada or Ontario. The Applicant alleges section 7, 8, 9, 10(a), 10(b), 11(a), 11(b), 12, 15 of the Charter was violated.

 

The CONSTITUTIONAL QUESTION was never dealt with in a meaningful way, but Section 9 breach which is Mr. Justice Kenkel argument was substituted in and used to replace the constitution arguments which mainly spoke about procedural fairness and obligation byway of NATURAL JUSTICE, FUNDAMENTAL RULE OF JUSTICE, CHARTER, HUMAN RIGHTS, and the  BILL OF RIGHTS;

 

(A) Section 10 of the Charter which is applicable during the investigative part of the legal process. S.10(a) and S.10(b) violation during the 20 minutes detainment of the Applicant  before the implementation of the arrest was never address by Her Worship;

(B) Section 10 of the charter which are the afforded guarantees of Rights upon arrest. S.10(a) and S.10(b) were violated upon the implementation of the unlawful arrest and the Applicant was never informed of these afforded guaranteed Rights in a meaningful way, nor were they implemented without delay.  The said constitutional issues surrounding the unlawful arrest was not addressed by Her Worship.

(C) Section 8 and 12 which are afforded Rights at the pre-charged stage of the investigation. Section 8 was activated when Officer Monk conducted an unlawful warrantless search of the Applicant work vehicle while he was in custody at 3DHQ.  Section 12 was activated when Officer Burd who is not certified or qualified to use OC spray; unlawfully and negligently used a dangerous chemical on the passive Applicant. The Applicant was subsequently paraded pass an eyewash decontamination unit in the sally port of the station and left to suffer the full effects of the OC spray in the “Bull Pen”. These said constitutional issues was not dealt with by Her Worship in a meaningful way;

(D) Section 11 of the Charter which are afforded guaranteed Rights upon the filling of the Information and judicial proceedings are instituted. Section 11(a) which is triggered when the Crown failed to summon and inform the Applicant byway of identification of a new criminal Act in the form of Information 07-02559. The long unnecessary delay in the process triggered Section 11(b). Section 11(d), presumption of innocence was triggered when Officers determined the guilt  of the Applicant to be positive in using Drugs (crack cocaine), without any evidence  ,  the conscription of the Applicant to defeat himself in the continued search for self incrimination evidence. These said issues were not dealt with in a meaningful way by her worship;

(E) Section 7, 15 and 26 which guides and govern the process, were triggered when their was a denial of NATURAL JUSTICE and the contravention of THE FUNDAMENTAL RULE OF JUSTICE, was never dealt with in a meaningful way by Her Worship.

(F)  Section 1. of the Human Rights Act, which insures equity in services was never address by Her Worship in a meaningful way;

(G) Section 1(a) and 2(e) of the Bill of Rights, the notion of Natural Justice , human worth, human dignity which oversees and guides administrative processes was engaged when systemic racism, bias and unfairness was introduced into the process. These Issues were not dealt with in a meaningful way by Her Worship.

 

The Applicant was not allowed to complete his oral arguments. Mainly, the Applicant Arguments on unlawful Arrest and defective Informations.  Furthermore, the Applicant arguments for the constitutional question was never permitted to be heard. The Court was advised that the Applicant’s Oral arguments were not filed when Madame Justice J. Healey decided to dispense with the Oral Hearing and transfer to paper review.

 

Natural Justice was a significant part of the Applicant’s constitutional argument. The presiding Justice error in making a ruling on the basis of paper review when no written argument was filed by the Applicant or the Crown. The Appeal was crafted to be an oral Appeal Hearing  from day one.

 

            The documents filed by the Applicant were mostly the Raw material evidence used to convict the Applicant. The other documents filed by the Applicant were documents believed to be required by the Court to perfect the Appeal, or document ordered by the Court to be disclosed since the Crown was unable to retrieve the said documents, or Application Records for outstanding Applications and Motions which have not been heard.

 

Her Worship, Madam Justice S. Healey error in failing to observed Natural Justice.  When Her Honour switch from Oral Hearing to paper review against the Applicant’s wishes without reasonable notice or giving the Applicant the opportunity for filing written submissions for his Appeal and CONSTITUTIONAL QUESTION arguments in accordance with Rule 40.11.

 

Within the context of the unlawful warrantless arrest. Four of the five Officers in question stated that Officer Broughton had reasonable objective cause to arrest and was part of the collective.  Officer Broughton states that he did-not have reasonable objective cause to arrest and was not a part of the collective, but he had justification to conduct a traffic stop of the Applicant.  Acting Sgt Williamson, one of the four Officers states that he does-not know what the Applicant was charged for and was confused about what he was arrested for.  Officer Broughton states in his Initial Investigative paper that Officer 1399 (Officer Monk) had reasonable cause to arrest the Applicant.  Six hours later Officer Stribbell changes this to all the Officers had collective reasonable cause to arrest the Applicant. Within the context of the aforementioned facts;

(a)  is a changing reasonable objective cause consistent with the legal definition of reasonable objective grounds to arrest?

(b)  is a changing reasonable objective cause consistent with the legal notion of reasonable honest belief?

(c)  is the contradiction between Officer Broughton’s and the other four Officers collective reasonable objective cause consistent with the legal definition of reasonable objective grounds to arrest?

(d)   is the contradiction between Officer Broughton’s and the other four Officers collective reasonable objective cause consistent with the legal notion of reasonable honest belief?

Within the context of warrantless search. A warrantless search is prima facie unreasonable, so the Crown must justify it on a a balance of probabilities to be reasonable. The  onus is on the Crown.  The warrantless search of the Appellant’s vehicle occurred while the Applicant was in custody  in the “Bull Pen”(miles away from the vehicle), so the usually justification cannot be used to make the search lawful.

(a)  If nothing is found or confiscated into evidence during an unlawful search, does this fact void the search from being unlawful?

(b)  Would the finding and confiscation of incriminating evidence in an a warrantless search make the warrantless search unlawful?

(c)  Is a arbitrary warrantless search an unlawful search?

(d)  What is it that makes a warrantless search unlawful, the incriminating object or objects which is found, the search itself or the unlawful arbitrary actions of the Officer conducting the said search byway of “trespass to chattel”?

(e)  Just because someone breaks and enters a home without the owners permission and without stealing or damaging any property; does not mean the said person is not liable for breaking and entering after violating the owners reasonable expectation of privacy, even if the perpetrator was to leave behind $1 000 000.00 for the owner!

 

 

RELIEF SOUGHT IS:

 

1.    An order granting Permission to file a long extended FACTUM;

2.    A determination or interpretation on which conflicting legislation take precedence, Section. 65(5.2) of the Freedom  of Information and Protection of Privacy Act or Section. 7 of the Charter of Rights and Freedom;

3.    A determination or interpretation on which conflicting legislation take precedence, Section. 69 of the Occupational Health and Safety Act R.S.O 1990 or Section. 59(4) of the Police Service Act R.S.O. 1990.

4.    A determination or interpretation on which conflicting legislation takes precedence, S. 113 (1) and S. 30 of the Employment Insurance Legislation S.C. 1996 or S. 22.1 of the Evidence Act, R.S.O. 1990

5.    A determination or interpretation on which conflicting legislation take precedence, Section 15 of the Charter or  Ontario Regulations 587/91, Court of Justice Act, January 1, 1990 , the RULE OF CRIMINAL PROCEDURE, or the jurisdictional authority of the Attorney General of Ontario.

6.    A determination on weather Employment Insurance policies, Legal Aid policies,  Attorney General's unofficial apparent policies, claimed to be based on there respective legislation combine or concatenate to conflict with or oppose Section 7, Section 11(d) and Section 15 of the Charter of Rights and Freedoms;

7.    A determination or interpretation on reasonableness of enveloping or wrapping Section 7, 8, 9, 10(a), 10(b), 11(a), 11(b), 11(d), 12 and 15 of the Charter of Rights and Freedoms into Section 9 of the Charter;

8.    A determination or interpretation of the reasonableness of  the notion of “self-impose detainment” for a 20 minute duration investigative stop, before an arrest is made and after an arrest is made;

9.    A order to grant remedy under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or Ontario. The Applicant alleges Section 7, 8, 9, 10(a), 10(b), 11(a), 11(b), 11(d), 12, and 15 of the Charter was violated.

10.  Such further and other relief as this Honourable Court deems just.

 

 

The following is the legal basis for the constitutional question:

 

Procedural Justice--Procedural  fairness -- Natural Justice -- Fundamental Rule of Justice;

Procedural Obligation -- Procedural Fairness Rights, Trial Rights;

CHARTER OF RIGHTS -- S. 2, S. 7, S.15, S. 8, S. 10, S. 11,12, S. 24(1), S. 26, S.32(1);

HUMAN RIGHTS ACT -- S. 1 -- equality of services;

BILL OF RIGHTS -- S. 1(a) and  S. 2(e);

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS;

PROCEEDINGS AGAINST THE CROWN ACT;

BILL C-53;

 

 

1.    Did the State, live up to its obligation owed to the accuse to ensure the accuse receives a fair trial and equitable?

2.    Did the presiding Ontario Provincial Court Justice, live up to his obligation owed to the accused to ensure receives a fair and equitable trial?

3.    Did the York Regional Police act in “bad-faith” to taint and colour the process against the accused, with a “casual approach” towards the rights of the accuse?

4.    Does there exist an none independent relationship in the actions of the Employment Commission, Ontario Legal Aid, and policies of transcription of  Real evidence to produce Transcripts, which combined cumulative effect acts to form an artificial impediment, a “financial barrier to entry” or  “legal barrier to entry”, to access a  fair and equitable process?

5.    Does there exist within the context of the process; a constitutional obligation to adhere to Procedural Fairness and Procedural Rights?

6.    If it is the case that the said obligations exist; what are these Procedural Rights and Obligations?

7.    Was the Applicant’s Rights violated byway of Procedural Unfairness and systemic racism?

8.    If  it is the case that the Procedural Obligation to the Applicant were violated; what Rights were violated?

9.    What effect does the determined violations have on the criminal process?

10.  If there are Charter violations, is the integrity of the Administration of Justice affected?

11. What are the remedies in the context of S. 24(1).

 

 

 

The question is to be argued on June 13th, 2011 at 9:00 A.M. at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N5, COURT OF APPEAL FOR ONTARIO, before a panel of three judges.

 

 

 

All of which is respectfully submitted.

Date:..

            _________________________

Wayne Ferron

 

Email: ferronwayne@gmail.com

            TO:      The Clerk of the Court--Registrar

                        Osgoode Hall

                        130 Queen Street West

                        Toronto, Ontario, M5H 2N5

 

                        Tel:      416 327 5020

                        Fax:     416 327 6032

 

AND TO

 

The Attorney General of Ontario

Constitutional Law Branch

 

4th floor

720 Bay Street

Toronto, Ontario M5G 2K1

 

fax: 416 326 4015

 

AND TO:

The Attorney General of Canada

Constitutional Law Branch

 

Suite 3400, Exchange Tower

Box 36, First Canadian Place

Toronto, Ontario M5X 1K6

 

fax: 416 973 3004

 

 

 

 

 

 

 

 

 

court of appeal for ontario

 

R -versus- Wayne Ferron	Court file no.:  C51190
	COURT OF APPEAL FOR ONTARIO   PROCEEDING COMMENCED AT Osgoode Hall 130 Queen Street West Toronto, Ontario, M5H 2N5   DOC-X INTRODUCTION APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION       Wayne Ferron Email: ferronwayne@gmail.com