Author Information
DOC-X VOLUME III: APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 3.) MINIMUM LEGAL RIGHTS/FAIR TRIAL RIGHTS
Folder Contents
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
VOLUME III
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
3.) MINIMUM LEGAL RIGHTS/FAIR TRIAL RIGHTS
3.) MINIMUM LEGAL RIGHTS/FAIR TRIAL RIGHTS:
MINIMUM LEGAL RIGHTS PREMIS:
[478] The Applicant’s “minimum legal rights”, articulated in the Article 14 of THE INTERNATIONAL COVENANT OF CIVIL AND POLITICAL RIGHTS was infringed at the lower Courts.
Was the Applicant’s “minimum legal rights” violated?
[478] The Supreme Court of Canada as asserted that the Crown counsel is a Minister of Justice, whose responsibilities is to insure that justice is done, and not to sacrifice the public good for a single minded criminal conviction. This noble notion is equally defined and articulated in R. V. Stinchcombe on page 5;
“It cannot be over-emphasized that the purpose of a criminal
the Crown considers to be credible evidence relevant to what is alleged
to be a crime. Counsel have a duty to see that all available legal proof
of the facts is presented: it should be done firmly and pressed to its
legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with
greater personal responsibility. It is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
(R. v. Stinchcombe, File No.: 21904., page 5)
[479] Pursuant to R. v. Beatty;
“[34] {...}’The law does not lightly brand a person as a criminal.’
In addition to the largely automatic and reflexive nature of driving, we must also consider the fact that driving, although inherently risky, is a legal activity that has social value.
If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.
[35] In a civil setting, it does not matter how far the driver fell short of the
standard of reasonable care required by law. The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages.
In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice...”
( SUPREME COURT OF CANADA , R. v. Beatty, 2008 SCC 5, page 25-26, para 34-35)
[480] Barron’s Legal Guides, Law Dictionary defines defines indigent as follows;
“generally, a person who is poor, financially destitute; in the legal context, a person found by a court to be unable to hire a lawyer or otherwise meet the expense of defending a criminal matter, at which point defense counsel is appointed by the court, such status also affects his ability to pay criminal fines, {...}, to pay certain fees, such as court cost...”
(BARRON’S LEGAL GUIDES, LAW DICTIONARY, fifth edition, page 250)
[481] Likewise, Black’s Law Dictionary defines an indigent person as;
“A person who is found to be financially unable to pay filing fees and court cost and so is allowed to proceed in forma pauperis.”
(BLACK’S LAW DICTIONARY, eight edition, PAGE 788)
PROCEDURAL RIGHTS/OBLIGATION:
[482] The LEGAL RIGHTS guaranteed to the Applicant by the Canadian Charter of Rights and Freedom are the procedural obligations of the Crown owed to the alleged accused while being processed.
CHARTER:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
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...
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been in-fringed 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.
Section 7. “The Principle of Fundamental Justice proved by S. 7 must
reflect a diversity of interest, including the rights of an
accused, as well as the interests of society.”
Section 10. afforded guarantees of Rights upon arrest;
Section 11. afforded guarantees of Rights -- when judicial proceedings are instituted by a charge (the filing of the Information);
it is limited in its terms to a special groups of persons, those
“charged with an offence”. It deals primarily with matters relating to the trial;
purpose of S. 11(b) is to protect the right to security of the person, rights to liberty and the right to a fair trial;
in short, Section. 11(b) protects Section 7;
Section 15(1) equality before and under law and equal protection and benefit of law;
Section 26 other rights and freedom not affected by the Charter;
Human Rights Act:
1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).
BILL OF RIGHTS:
An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms.
Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
PART I
Recognition and declaration of rights and freedoms
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) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
Construction of 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
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
Article 14
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(d) To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if he
does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, Article. 14)
[483] A presiding justice over a summary conviction trial has an obligation to ensure that the accuse receive a fair and equitable trial. Ontario Legal Aid had denied the accused financial assistance. A typical lawyer cost $1500.00 retainer fee and $300 per hour if the case goes to trial.
[484] If one is receiving Employment benefit or even Welfare, this may be enough to deny ones Legal Aid Benefits. The requirements to receive legal Aid benefits is very stringent. The Applicant advised the courts that he was not able to afford a Lawyer and he had no choice but to defend himself byway of unrepresented litigation.
Pursuant to R. v. Rowbotham;
“Consequently, an accused who was too poor to hire a lawyer was disadvantaged. Sir James Stephen, writing over 100 years ago, said: "[w]hen a prisoner is undefended his position is often pitiable, even if he has a good case". (Stephen, A History of the Criminal Law of England, vol. 1 (1883), p. 442). In R. v. Littlejohn and Tirabasso (1978), 41 C.C.C. (2d) 161, this court accepted as self-evident the proposition that a person charged with a serious offence is under a grave disadvantage if, for any reason, he is deprived of the assistance of competent counsel: see p. 173. However, in modern times but prior to the advent of the Charter, the concept of the right to counsel had evolved into a social right or a human right implying an obligation on the state to provide counsel for an accused who lacks sufficient means to pay a lawyer: see Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections, 1969 (The Ouimet Report), pp. 137-8. “
( R. v. Rowbotham, Court of Appeal for Ontario, page 57, para 2)
[485] On the 18th of January 2008 the first trial Hearing for this matter was schedule to begin in court room 104. The matter was moved to court room 103 with Mr. Amit Ghosh for the Crown, unrepresented defence and P.S. as the presiding justice.
[486] At or about noon on the said date, for some unknown reason. This matter was transfered to court room 101 with Ms. Goodier for the Crown, unrepresented defence and J.F.K. as the presiding judge.
“[25] Upon ordering the INFORMATION/APPEARANCES log from the Newmarket Courthouse Registrar for OCC# 07-70285 and information# 07-02500/07-02559. I notice that even though the change of court rooms is indicated in the history on the 18th of January 2008, the name of the original prosecutor, Mr. McCallion was missing. I pointed out the discrepancy to the Clerk. She instructed me to go to the Crown’s Office and to have it remedy. The Crown’s Office, informed me that this should have been remedy at the Administration Office, the department which sent me to the Crow’s Office. I proceeded to inform the Clerk in the Crown’s Office of my concerns. She called the Administrative Office, located on the 1st floor and spent about 0.5 hours convincing the respective Clerk that the problem should be remedy in the Administrative office.
[26] I went back downstairs to the Administrative Office and to the original respective Clerk of that Office. She stated to me thus; “I guess I sent you on a wile goose chase”. And proceeded to remedy the problem by filling in the missing original Prosecutors name, Mr. McCallion.
[27] Now all the aforementioned would not be significant except; On the 18th January 2008, in the morning, in court Room 104. I verbally informed the said original Crown’s counsel off the record; that I only received the disclosure for information# 07-02500/07-02559, 2 days before the commencing of the trial. He replied by, informing me that I would have to wave my rights. I interpreted this to mean; I would have to wave may rights in-order to adjourn the trial to a future date. I stated somewhat to this affect with absolute certainty; “absolutely not!”; my rights are my most valuable treasure. I would never trow them away.”
( Wayne Ferron, Affidavit of Wayne Ferron, INMATE APPEAL, page 18, Superior Court of Justice)
[487] Note: The Applicant now believes and can prove that the clerk incorrectly named Mr. McCallion as the original prosecutor spoken about above. The original prosecutor was infact, Amit Ghosh, Assistant Crown!
[488] On the 11th of May 2007, the following dialog occurred during the respective Hearing;
“MS. ZAFORSKI: This is from Legal Aid Your Worship. He’s being advised that his application has been refused. He doesn’t appear to qualify, and has not provided all the financial information required.
THE COURT: Do you intend to appeal that decision sir, or not?
MR. FERRON: No.
THE COURT: No. so what do you intend to do now?
Are you going to look - to hire a lawyer privately on your own?
MR. FERRON: I can’t afford a lawyer.”
( May 11, 2007, HEARING TRANSCRIPT, 07-02550/07-02559, page 1, line 25-31)
[489] On the 1st of June 2007, the following dialog occurred during the respective Hearing;
“THE COURT: Thank you. And what did you want to do today sir?
MR. FERRON: I think I have no choice but to represent myself.
THE COURT: Pardon.
MR. FERRON: Represent myself.
THE COURT: So you want to set a trial date?
MR. FERRON: I would like some time.
THE COURT: Pardon.
MR. BILLINGTON: To do what sir?
THE COURT: How much time so you need to think about it?
MR. FERRON: A month.
THE COURT: Okay, what I’m going to do is I’m going to put it to June 29th but it’s going directly into 201 at nine thirty, and at that time you can decide what to do - either set a trial date, okay?”
( June 1, 2007, HEARING TRANSCRIPT, 07-02550/07-02559, page 1, line 9-28)
[490] On the 29th of June 2007, the following dialog occurred during the respective Hearing;
“MR HONEY: Just to explain his circumstances, Your Honour, he’s been up a number of times and he is not in a position to retain counsel at this point. He may be, but it would not be before October of this year. so I suggested to him that he set a trial on a with or without counsel basis.
THE COURT: Okay. How long will this matter take, Mr. Honey?
MR. DECHELLIS: That’s the issue here. I have no trial time estimate in file, Your Honour. It appears there hasn’t been a pre-trial on this matter.
THE COURT: Well, let’s put it into a judicial pre-trial with or without counsel.
MR. HONEY: The reason I wasn’t suggesting that is that he’s going to British colombia to work until the end of September {...}
THE COURT: Well, that makes it a little easier. You will have a pre-trial on Friday the 13th of July. That’s two weeks today. It that acceptable?”
(HEARING TRANSCRIPT, June 29, 2007, 07-02550/07-02559, page 1, line 6-25, page 2, line 7-10)
[491] On the 13th of July 2007, the following dialog occurred during the respective Hearing;
“ MR. DONAHUE: This is Mr. Ferron, Your Honour.
THE COURT: Fine. This is for pre trial then Mr. Ferron?
MR. DONAHUE: It - It is, yes.
THE COURT: All right. And you can come and sit with Mr. Donahue. You wish him to assist you as duty counsel today?
MR. FERRON: (Inaudible).
THE COURT: All right. Thank you very much. I just want you to clearly understand that you - you’re here today for a judicial pre-trial. It’s an informal hearing to discuss your charges and the facts relating to them. Anything you say won’t be used against you if your case goes to a trial onthe merits. Do you understand that?”
( July 13, 2007, HEARING TRANSCRIPT, 07-02550/07-02559, page 2, line 19-33)
[492] On the 1st of June 2007, the following dialog occurred during the respective Hearing;
“THE COURT: Thank you. Do you have a lawyer , sir?
WAYNE FERRON: No, I don’t.
THE COURT: Are you getting a lawyer?
WAYNE FERRON: I can’t afford one, Your Honour.
THE COURT: Do you know how you are proceeding then? Are you seeking a date for trial or what?
WAYNE FERRON: I was asked to bring this by the Crown.
MR. BILLINGTON: If I could just look at the blue sheet, Your Honour? The accused has handed me a document, and I’ll just put it on the record, from CNL Health Care which had to do with some drug screening, I presume, and it’s dated on March 29th and there were no drugs in his urine. So I don’t know what the blue sheet had to about it. So if I can just - there was a lengthy JPT conducted already in this matter on july 13th with Justice Minard. In this matter, your Honour, a careless driving and a fine was proposed and the gentleman had to show a document, as he has today, that he has been drug tested by a doctor. I don’t know what came about that, I just know what was offered so I don’t know what Mr. Ferron has decided. {...}
THE COURT: January 18th ’08, court 103, nine thirty for trial, with or without counsel, four hours”
(August 3, 2007, HEARING TRANSCRIPT, 07-02550/07-02559, page 1, line 10-35, page 3, line 7-10)
[493] On the 18th of January 2007, the following dialog occurred during the respective Hearing;
“THE COURT: So we’re ready to go?
MS GOODIER: We are ready.
THE COURT: Okay. So we’ll just have the accused arraigned and you’ll enter your plea and then we’ll start the trial after that. can you just remain standing for a minute...”
( January 18, 200, TRIAL HEARING TRANSCRIPT, 07-02550/07-02559, page 6, line 28-13)
[494] During the detainment, investigation, and unlawful arrest, the Applicant was never informed of his rights nor were they implemented forthwith by Officers of the York regional Police Services, in a meaningful way pursuant to Section 10(a) and 10(b).
[495] Likewise, all the Honourable Justices presiding over the the hearings in the court proceedings and and the summary conviction Trial Judge failed to inform the Applicant of his right to counsel, contrary to there collective obligation to ensure that the accuse receive a fair and equitable trial pursuant to Section 7, Section 15, and 11(d). The Applicant has never waved any of his rights. Not his section 10 rights, section 11 rights or his “minimum legal right” to competent legal representation.
[496] The Applicant even tried to arrange with a former company ,Ajilon which he had very good reputation with, to work in B.C. to rase the money for a Lawyer. However, the Applicant efforts was useless, he found out that the Crown through an abuse of process had left a pending charge of IMPAIRED DRIVING WHILE UNDER THE INFLUENCE OF DRUGS on the Appellant’s criminal record.
[497] This was discovered while obtaining a criminal background check from York Regional Police, to complete the communication job requirement for employment in B.C.
The applicant did-not start to prepare for his defence until close to his trial date when he saw the futility in his endeavor to seek legal competent representation and financial support from Legal Aid.
[498] The ordinary reasonable person on the street, like the Applicant was at the start of the matter before the Court, are not familiar with the nuances of the appeal process in the various respective Government institutions. Most are not even aware of the right to appeal. They just except what the state or representative of the state determines. They are pitiful!
[499] The Applicant use to be like this. For example, when a determination is given, which is final and binding by a state institution. They do-not realizes that this is a way to appeal to the respective court of appeal or apply for judicial review. The ordinary reasonable person trust and abide by the governments decisions and enforcement byway of public agents. Even though they may not like the adjudication, they abide by it.
[500] So when the Ontario legal Aid tells you that you will not qualify for legal aide because of your spouse financial position, regardless of wether more burden on a families financial capabilities will collapse it and force the said family into financial destitution below the poverty line. You believe the public agent, because you believe and trust the State. You don’t fight them with limited resources when your children needs have to be provided for. It’s this genuine trust and belief in the State which is repetitively being taken advantage of. This said innocence's or confidence within the Applicant has been shattered, and he consequently has cast this naiveté aside!
[501] The York Regional Police has a duty to to deal honestly, fairly, equitably and in “good faith “ with members of the community when about the business of Her Majesty the Queen.
[502] The presiding Justice of a trial has a duty to ensure that the accuse receive a fair and equitable trial; to be given the opportunity to give full answer in accordance with section 7 of the Charter.
[503] The State guarantees that the accuse will receive a fair and equitable trial; moreover, that he will be given the opportunity to give full answer in accordance with the Charter and or any other existing rights. This is the Obligation owed to the accused. The state has repetitively failed within this regard, up until this point pursuant to case law and the binding contract (THE INTERNATIONAL COVENANT OF CIVIL AND POLITICAL RIGHTS), to which both the Provincial and Federal Governments are bound by their signatures.
“To sum up: where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previously indicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one. Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where the prosecution insists on proceeding with the trial in breach of the accused's Charter right to a fair trial. It is unnecessary in this case to decide whether the trial judge in those circumstances would also be empowered to direct that Legal Aid or the appropriate Attorney-General pay the fees of counsel. “
( R. v. Rowbotham, Court of Appeal for Ontario, page 66, para 1)
[504] Furthermore, in R. v. McGibbon in the Court of Appeal for Ontario,
“Counsel for the appellant submits that the trial judge in this case had a duty to advise the appellant of his constitutional right to counsel at trial and to inquire as to whether he wished counsel. It is submitted that proceeding to trial in the absence of a clear and intelligent waiver of the right to counsel by the accused violated the accused's constitutional rights and constituted reversible error on the part of the judge.
The trial judge, of course, has a duty to the accused to see that he or she has a fair hearing and that duty will generally cast upon the judge an obligation to point out to the accused that he or she would be at a distinct disadvantage in proceeding without the assistance of competent counsel and that the accused is entitled to have such counsel.
Where the accused expressly desires counsel, it is clear that unless the accused has deliberately failed to retain counsel, or has discharged counsel, with the intent of delaying the process of the court, the trial judge should afford the accused an opportunity to retain counsel either at his expense or through the services of Legal Aid. If Legal Aid will not fund counsel it may be necessary at least in long complicated trials to stay the proceedings until counsel is funded. “
( R. v. McGibbon, Court of Appeal for Ontario, page 10, para 1 & 2)
[505] The resultant indigency, financial destitution and bankruptcy was a foreseeable consequence of the judgement conviction. The First act of the Employment Insurance Commission was to deny the Applicant's Claim for benefit based upon the Judgement conviction of the Ontario Provincial Court.
“DEAR WAYNE FERRON
In response to your letters of 18-11-2008 and 8-12-2008, attached are copies of section 29 and 30 of the Employment Insurance Act dealing with loss of employment. In your case you lost your employment with Intek Communications Inc. on 24-9-2008 as you were no longer able to fulfill the employment contract due to a loss or suspension of your driver's license. By losing your driver's license, you breached an express obligation of your work contract; this failure resulted in the loss of your employment.
In Brissette (A-1342-92), the Federal Court of Appeal established the principle that commission of an offence or criminal act which resulted in a conviction under the Criminal Code constitutes misconduct liable to disqualification within the meaning of the Employment Insurance Act, to the extent that an essential condition of the employment ceases to be met resulting in dismissal.
As I advised you by phone 8-12-2008, a copy of the notice of suspension or a copy of the driving prohibition in which the conditions for the suspension are required in order to proceed with your appeal. In order to expedite matters please fax the above to my attention immediately. Your appeal will not be heard until the documents are received.”
( Employment Insurance Commission, J. Santino, Insurance agent)
[506] This Federal Institution under a different jurisdiction is directly affecting a provincial Court system and its process byway of a questionable decision. The said federal institution successfully transfered it obligations and responsibilities to the provincial courts and social institutions by helping to force the Applicant into financial destitution and bankruptcy.
[507] The Municipal Social Services, (Ontario Works), is now forced to support a stigmatized and criminalized individual living below the poverty line in the fringes of society. The Applicant’s financial destitution determines accessibility to legal professional representation and legal materials; it also determines when and if required court documents for the matter before the court are produced and file. When and if the necessary required transcripts can be ordered and filed. When and how the Applicant travels to attend court. Moreover, the Applicants capabilities and logistics concerning researching, preparation, presentation and legal options to give full answer for the said matter, are impeded, strangled and severally constrained.
[508] Pursuant to Chief Justice R. Roy McMurtry;
“LEGAL AID
I would like to take a few moments to talk about legal aid as it is of course a most important foundation stone of a humane and just society.
The basic purpose of legal aid is to serve the public by enabling each of its members to have access to the kind of legal assistance that is essential for the understanding and assertion of our individual rights, obligation and freedoms under the law.
We live in a highly sophisticated society with a highly developed sense of the need for positive intervention to protect the basic rights and freedoms of the disadvantaged, and to ensure continuing access to the rights and freedoms which we proclaim as fundamental to a civil, humane and just society.
It is a sad reality that we have not only too much poverty in this province, but as well too little understanding of the desperate straits poverty creates for so many people. The hardening of attitudes about poverty in recent years is something that all of us with access to public opinion must struggle to counter.
Legal aid is perhaps the single most important mechanism we have to turn the dream of equal rights into a reality. Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community. In affording this protection, legal aid does make a deep and essential contribution to our social fabric and indeed to our very way of life.
I know of the strong commitment of Attorney General Bryant to ensuring that Legal Aid Ontario is adequately funded and I wish him every success in his continuing dialogue with his cabinet colleagues.
The concept of legal aid is, of course, directly linked to the issue of access to justice generally. In this context, access to our civil justice system is being increasingly restricted to the more affluent in our society. This is reflected in what has been described as the phenomenon of “the disappearing civil trial”.
(Chief Justice R. Roy McMurtry, UPON THE OPENING OF THE COURTS OF ONTARIO FOR 2006)
[509] In short, the Employment Insurance Commission has a direct bearing on the fairness, equity and efficiency of the provincial criminal process by linking there decision on the Applicant’s social insurance claim to the judgement conviction.
[510] In essence burning the social safety net from under the accused before the matter before this honourable court has exhausted the criminal appeal process in a final and binding adjudication.
[511] Not only has the Commission directly affected the Applicant’s life liberty and the pursuit of happiness; but also, his capacity and logistical capability to give full answer in accordance with Section 7 of the Charter to the administration of justice. Quantum's of Money is the fuel which the Criminal Judicial System consumes, and this said legal machine ingest a very large quantity of it!
[512] The judgement conviction cannot be used as proof of guilt when the matter is still before an appellate court and the criminal appeal process has not been exhausted pursuant to S. 22.1(1) of the Evidence Act. This is unlawful and abuse of process and there relationship with the provence in the Applicant’s respectful opinion: See Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 .
[513] Pursuant to the Evidence Act, R.S.O. 1990, c. E.23;
“22.1 (1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,
(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or
(b) an appeal of the conviction or discharge was taken but was
dismissed or abandoned and no further appeal is available.
(2) Subsection (1) applies whether or not the convicted or discharged
person is a party to the proceeding.
(3) For the purposes of subsection (1), a certificate containing the
substance and effect only, omitting the formal part, of the charge and of the conviction or discharge, purporting to be signed by the officer having the custody of the records of the court at which the offender was convicted or discharged, or by the deputy of the officer, is, on proof of the identity of the person named as convicted or discharged person in the certificate, sufficient evidence of the conviction or discharge of that person, without proof of the signature or of the official character of the person appearing to have signed the certificate. “
(Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, para 11)
[514] During the Appellate process the Appellant was faced with similar irregularities. The Applicant declare is financial destitution in the Superior Court of Justice before the presiding judge, Your Worship, Justice Mulligan.
[515] Ontario Legal Aid, again for the second time denied the Applicant’s application for financial support. The Superior Court of Justice, was demanding that the Applicant File and serve the necessary transcripts.
[516] The Crown was advising the Applicant that there position was to have the appeal dismiss for failure to file and serve the necessary transcripts.
[517] The Employment Commission position was, there will be no social insurance financial support benefit pursuant to the judgement conviction.
[518] The Ontario Legal Aide position was that they do not financially support criminal appeals with a probability of no jail term.
[519] The Court Reporters position was that work on the transcription of the transcripts would not begin until the necessary down-payment of money was received. As a personal opinion from the perspective of an indigent individual, this is a “financial imprisonment of the Transcripts!” Even worse, it is a “ financial imprisonment of an Appellant’s Appeal of Right!” Consequently, this was holding fairness, equity and efficiency hostage.
8(15) After a transcript has been ordered, the completion of the transcript shall not be suspended or the order countermanded without an order of a judge or the Registrar, unless the appeal has been wholly abandoned and the court reporter notified in accordance with subrule 30(3).
8.(16) When the transcript has been completed, the court reporter shall forthwith notify the parties and the Registrar, and shall, upon payment, deliver the copies of the transcript for use of the court to the Registrar.
[520] On the 10th of November 2008. The Crown disclosed to the Applicant on record the following;
SUPERIOR COURT OF JUSTICE
CRIMINAL PROCEEDINGS RULES
• Rules [40 to 41] Summary Conviction Appeals and Extraordinary Remedies
• To: Wayne Ferron, unrepresented Appellant
• From: Amit Ghosh, Assistant Crown
• The format of a factum in the form of an example
[521] It would be prudent to note here that an appeal for an unrepresented appellant who has been denied legal aid; can appeal byway of an Inmate Appeal and Only Rules[1 to 37] of the CRIMINAL PROCEEDINGS RULES apply. The Applicant’s profile more than satisfy the aforementioned conditions, pursuant to Rule 46.
[522] In the Application Record for Motion for Direction, there are Legal Aid letters informing the Applicant of his denial of Ontario Legal Aid benefits and the quashing of his subsequent Legal Aid appeal. There is a letter from Employment Insurance informing the Appellant of his disqualification of benefits as a direct foreseeable result of the judgement conviction.
[523] There seem to be a false notion, based on a “false right” that Legal representation is readily available to all who need and request it. The Applicant is repeatedly asked about the absence of legal representation. The fact that the Applicant stands before this Honourable unrepresented and spent a great deal of time seeking legal counsel is evidence to the contrary. It should also be noted that ONTARIO LEAGAL AID only give eight days to file an appeal while other State institutions, tribunals or judicial proceedings has a limitation period of thirty days or sixty days to Appeal.
“SUBJECT: Conviction and/or Sentence Appeals where a non-custodial sentence imposed
__________________________________________________________
This will confirm the application of our coverage policies in criminal cases where appeals are involved. As you are aware, coverage is restricted to cases where there is a probability of incarceration.”
[524] This is in accordance with Legal Aid Policy, which can be found in the Applicant’s fresh evidence disclosure. The Applicant falls outside the aforementioned constraints of Legal Aid official Policy and legislation pursuant to Ontario Legal Aid reasons for denial of financial support.
[525] The original position of the Crown was to have the matter before, the Honourable Superior Court of Justice, dismiss for delay. Delay which was far above and outside the control of the Applicant’s ability and control. Delay which in the Applicant’s respectful opinion was artificial and unnecessary and should be attributed to the application of the process and the lack of empathy for an indigent, financially destitute Applicant; which was a foreseeable consequence of the judgement conviction.
[526] The Appellant informed the Courts repeatedly of his destitution. Furthermore, the Crown disclosed sections (Rules [40-41]) of the Superior Court of Justice Criminal Proceedings Rules, does not apply to the Applicant’s given situation and profile. This did not encourage a prudent facilitation of the, Superior Court of Justice appeal, with due diligence for an indigent Applicant. But instead induce a false impression of an impassable impediment to perfecting the appeal. Which created a “legal barrier to entry” for the said appeal and subsequent proving of innocence in the new trial. This in the Applicant’s opinion lead toward a contravention of the fundamental rule of justice. Pursuant to the to the Crown;
“Absent a timely filing of the necessary transcripts the Crown position on June 1, 2009 will be that the appeal be dismissed.”
(Letter from the Assistant Crown Attorney, Doug Kasko)
[527] It seems nothing has changed concerning the issue of the transcripts from the Superior Court of Justice to the Court of Appeal for Ontario. Within the NOTICE OF APPEAL to the COURT of APPEAL for ONTARIO, the Applicant has declared his indigency and once again the Crown demanded the filing of the transcripts. The Applicant wish to deal with this transcript issue fully, in order to clear the way for the perfecting of the appeal. According to the Crown,
“Your non-inmate in person Notice of Appeal was filed at the Court of Appeal on November 2nd, 2009. I hope this letter will assist you in the preparation of your appeal.
As an appellant representing yourself in this appeal, you are required to perfect your appeal in accordance with the Criminal Appeal Rules.
You are required to file full transcripts (except those items set out in Rule 8(8)). You are required to file an Appeal Book and an Appellant’s factum.
Three copies of each must be filed at the Court of Appeal and one Copy must be served on our office before this appeal will be listed for hearing...”
(Letter from the Ministry of The Attorney General, Crown Law Office, Riun Shandler, Inmate Appeals Administrator)
[528] The disclosed Appeal Rules by Amit Ghosh, states in the top left hand corner;
“For: Mr. Wayne Ferron, unrepresented Appellant”.
[529] The Applicant is an unrepresented Appellant. The said document states,
“SUMMARY CONVICTION APPEALS AND EXTRAORDINARY REMEDIES [40-49]”.
[530] The aforementioned document only gives you Rule[40-41], and for sum unknown reason excludes Rule 46 even thought the said document infers on the face that Rule 46 is included within.
[531] In the Application Record for Motion for Direction, is a copy of the Criminal Appeal Rules, Rules[1-37, 40,41,42,43,44,45,46]. In the said document under rule 46 is stated;
” 46. Where the appellant is the accused and is not represented by a solicitor, the appeal shall be conducted, as nearly as may be, in the same manner as an inmate appeal under rules 1 to 37.”
Furthermore, Rule 12 states;
“ 12. (1) Where an appellant in custody who has appealed through a solicitor has received notice that legal aid for the appeal has been refused and within fifteen days he or she files with the Registrar notice of intention to proceed with the appeal as an inmate appeal, rules 8 and 11 cease to apply to the appellant.”
[532] The Applicant fail to see where in the Rules it explicitly states that the production and filing of the Transcripts is justifiable, for an indigent unrepresented Appellant who is financially destitute and was denied Legal Aid benefits. On the contrary, the Rules states the opposite. Or else an, unnecessary artificial financial “legal barrier to entry”, to Appeal will be induced and the subsequent denial of the ends of justice would be unavoidable. Such an impassible impediment is contrary to the Supreme Law of Canada and cannot be allowed to stand. The following are some of the relevant Appeal Rules and Criminal Code Laws,
Appeal by defendant, informant or Attorney General
830. (1) A party to proceedings to which this
Part applies or the Attorney General may appeal
against a conviction, judgment, verdict of
acquittal or verdict of not criminally responsible
on account of mental disorder or of unfit to stand
trial or other final order or determination of a
summary conviction court on the ground that
(a) it is erroneous in point of law;
(b) it is in excess of jurisdiction; or
(c) it constitutes a refusal or failure to exercise
jurisdiction.
Powers of appeal court
834. (1) When a notice of appeal is filed
pursuant to section 830, the appeal court shall
hear and determine the grounds of appeal and
may
(a) affirm, reverse or modify the conviction,
judgment, verdict or other final order or
determination, or
(b) remit the matter to the summary
conviction court with the opinion of the appeal
court, and may make any other order in relation to the
matter or with respect to costs that it considers
proper.
Authority of judge
(2) Where the authority and jurisdiction of the
appeal court may be exercised by a judge of that
court, the authority and jurisdiction may, subject
to any applicable rules of court, be exercised by
a judge of the court sitting in chambers as well
in vacation as in term time.
R.S., 1985, c. C-46, s. 834; R.S., 1985, c. 27 (1st Supp.), s.
182; 1991, c. 43, s. 9.
Enforcement
835. (1) Where the appeal court renders its
decision on an appeal, the summary conviction
court from which the appeal was taken or a
justice exercising the same jurisdiction has the
same authority to enforce a conviction, order or
determination that has been affirmed, modified
or made by the appeal court as the summary
conviction court would have had if no appeal had
been taken.
(2) An order of the appeal court may be
enforced by its own process.
R.S., 1985, c. C-46, s. 835; R.S., 1985, c. 27 (1st Supp.), s.
182.
Appeal under section 830
836. Every person who appeals under section
830 from any conviction, judgment, verdict or
other final order or determination in respect of
which that person is entitled to an appeal under
section 813 shall be taken to have abandoned all
the person’s rights of appeal under section 813.
R.S., 1985, c. C-46, s. 836; R.S., 1985, c. 27 (1st Supp.), s.
182; 1991, c. 43, s. 9.
Extension of time
838. The appeal court or a judge thereof may
at any time extend any time period referred to in
section 830, 831 or 832.
R.S., 1985, c. C-46, s. 838; R.S., 1985, c. 27 (1st Supp.), s.
182.
Appeal on question of law
839. (1) Subject to subsection (1.1), an
appeal to the court of appeal as defined in section
673 may, with leave of that court or a judge
thereof, be taken on any ground that involves a
question of law alone, against
(a) a decision of a court in respect of an appeal
under section 822; or
(b) a decision of an appeal court under section
834, except where that court is the court of
appeal.
Appellant to furnish transcript of evidence
821(3) Where the evidence on a trial before a summary conviction court has been taken by a stenographer duly sworn or by a sound recording apparatus, the appellant shall, unless the appeal court otherwise orders or the rules referred to in section 815 otherwise provide, cause a transcript thereof, certified by the stenographer or in accordance with subsection 540(6), as the case may be, to be furnished to the appeal court and the respondent for use on the appeal.
R.S., c. C-34, s. 754; 1972, c. 13, s. 67; 1974-75-76, c. 93, s. 93.
Notice of appeal
815.(1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.
R.S., c. C-34, s. 750; 1972, c. 13, s. 66; 1974-75-76, c. 93, s. 89.
Rule 46. Where the appellant is the accused and is not represented by a solicitor, the appeal shall be conducted, as nearly as may be, in the same manner as an inmate appeal under rules 1 to 37.
TRANSCRIPTS
No application to inmate appeals
8. (1) This rule does not apply to inmate appeals.
{...}
Completion not to be suspended
(15) After a transcript has been ordered, the completion of the transcript shall not be suspended or the order countermanded without an order of a judge or the Registrar, unless the appeal has been wholly abandoned and the court reporter notified in accordance with subrule 30(3).
Notification of completion
8.(16) When the transcript has been completed, the court reporter shall forthwith notify the parties and the Registrar, and shall, upon payment, deliver the copies of the transcript for use of the court to the Registrar.
ORIGINAL PAPERS AND EXHIBITS
Appellant to requisition original papers and exhibits
11. (1) Except in the case of an inmate appeal, the appellant shall by requisition within fourteen days after the filing of the notice of appeal cause to be forwarded to the Registrar copies of the conviction, order, indictment or information, pre-sentence report, criminal record and any other papers or documents relating to the appeal together with all exhibits capable of reproduction from the court from which the appeal is taken.
PROCESSING OF APPEAL WHERE LEGAL AID REFUSED
12. (1) Where an appellant in custody who has appealed through a solicitor has received notice that legal aid for the appeal has been refused and within fifteen days he or she files with the Registrar notice of intention to proceed with the appeal as an inmate appeal, rules 8 and 11 cease to apply to the appellant.
(2) The notice of intention shall state whether the appellant wishes to present the appeal in person or in writing.
(3) Thereafter the appeal shall be processed as an inmate appeal, and unless a transcript of evidence has been ordered, a report shall be obtained from the trial judge under rule 13.
(4) The appeal book shall include a copy of the appellant’s notice of intention and of the notice of appeal filed by the appellant’s former solicitor.
Contents of Appeal Book
14. (1) Except in an inmate appeal, the appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of,
(l) any notice of constitutional question served in accordance with section 109 of the Courts of Justice Act, and proof of service of the notice upon the Attorney General of Ontario and the Attorney General of Canada;
APPEAL BOOK FOR UNREPRESENTED APPELLANT
15. Where the appellant is not represented by counsel, the Registrar may require the Attorney General to prepare an appeal book.
COMPLETION of TRANSCRIPTS
40.06(11) Upon signing a certificate, each reporter shall proceed with reasonable diligence to prepare and certify the transcript and shall, upon completion, forthwith notify each party and the clerk, in writing, that the transcript has been completed.
40.06(12) Unless an appeal has been wholly abandoned, after a transcript has been ordered, the completion of the transcript shall not be suspended nor the order countermanded except pursuant to an order of a judge made in accordance with rule 2.02.
APPLICATION OF CIVIL RULES
2. (1) Except where otherwise provided by the Code, a statute or these rules, the Rules of Civil Procedure where appropriate and with necessary modifications apply to criminal appeals.
(2) Civil rules 61.03 (motion for leave to appeal), 61.04 (commencement of appeals), 61.05 (certificate or agreement respecting evidence), 61.07 (cross-appeals), 61.09 (perfecting appeals), 61.10 (appeal book), 61.11 and 61.12 (factums) and 61.13 (dismissal for delay) do not apply to criminal appeals.
[533] If the logical flow in the process is followed within in the context of the Applicant’s profile and pursuant to the C.C. and Criminal Appeal Rules. It is self evident that S. 821(3) of the Criminal Code guides one to S. 815(1) of the Criminal Code if S. 821 does not provide for the the accuse profile. Which interns guides one to Rule 46 , which inter guides one to Rule 8(1), Rule 11(1), Rule 14(1) and Rule 15(1). Within the context of the stated position and expected obligations of the accuse by the Crown. The minimum obligation for, FAIR TRIAL RIGHTS, of the state in a criminal proceeding, is given by Article. 14 of the International Covenant on Civil and Political Rights, to which Canada is bound by its signature is made reference to in R. v. Rowbotham;
“... the concept of the right to counsel had evolved into a social right or a
human right implying an obligation on the state to provide counsel for an accused who lacks sufficient means to pay a lawyer: see Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections, 1969 (The Ouimet Report), pp. 137-8. This evolution is reflected in the provisions of the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The International Covenant on Civil and Political Rights, which was signed by Canada, contains the following provision:
Article 14 - FAIR TRIAL RIGHTS:
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(d) To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if he
does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;”
( R. v. Rowbotham, Court of Appeal for Ontario, page 57, para 2)
[534] Pursuant to R. V. RUNO CAIRENIUS;
“...The state has a constitutional obligation to ensure that indigent accused receive a fair trial, and in many cases that means ensuring that the accused is represented by counsel. {...} A criminal trial court's jurisdiction rests solely on the obligation to ensure that an accused person receives a fair trial. In some cases, the court will be satisfied that if an accused is not represented by counsel, his or her right to a fair trial as
guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and
Freedoms will be infringed. If such an accused lacks the means to employ
counsel privately, but has nevertheless been refused legal aid, the court can make an order staying the proceedings until the necessary funding for counsel is provided by the state. The trial will then not proceed until either the government or Legal Aid Ontario provides funding for counsel. This is a so-called Rowbotham order based on this court's decision in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1.”
( R. V. RUNO CAIRENIUS, ONTARIO SUPERIOR COURT OF JUSTICE, page 18, para 21 )
[535] The following citations all support the notion of FAIR TRIAL RIGHTS,
“That list of purposes is not intended to be exhaustive. Its sum, in the context of the process of the criminal law, is the protection of the dignity of the citizen when he is deprived of his liberty and he is accused of having committed an offence.
The power and forces of the state are marshalled against him; he has suffered the humiliation and degradation of being deprived of his liberty and threatened with continued deprivation of liberty or some other penalty; he faces potential obloquy among family, friends, employer and associates in his vocation; he faces economic loss and even disaster.
From all of these the social utility of giving such a person fair protection against the power of the collectivity demands that the detainee or arrestee have no objective reason to sense that the system genuinely protects the right to regain liberty when the law permits it, to remain silent, and ultimately to have a fair hearing that complies with the requirements of s. 11(d) of the Charter.
These purposes, these incidents of the situation in which an accused person finds himself, the desirability that accused persons — whether they are innocent or guilty — and of society generally that ought reasonably to sense that the criminal justice system does not function unfairly in favour of the state, and the understandable desire of the general population to be protected effectively from criminality, apply:
(1) to detention, arrest and being charged with an offence where the person is deprived of his liberty,
(2) more generally, to all accused persons at their trial and until the criminal prosecution process is complete, whether they are then in custody or not.
Thus those considerations apply to an analysis of the purpose of s. 11(d) as much as to an analysis of the purpose of s. 10(b) and of s. 7, to the extent that any of these latter sections of the Charter relates to the right to counsel.
In my view, the foregoing statement of the purposes and interests which ss. 7, 10(b) and 11(d) are meant to protect when the issue is the scope and extent of the right to counsel, lead me irresistibly to the conclusion that a person charged with an offence that is serious and complex, when he cannot afford to retain counsel, is constitutionally entitled to have counsel provided to assist him at the expense of the state:
see: R. v. Stiopu; Re MacKay and Legal Aid Soc. of Alta. (1983), 8 C.R.R. 216 (Alta. Q.B., Sindart C.J.Q.B.), and Deutsch v. L.S.U.C. Legal Aid Fund (1985), 48 C.R. (3d) 166, 16 C.R.R. 349, 11 O.A.C. 30 (Div. Ct., Craig J.)”
( Panacui v. Legal Aid Society of Alberta, Court of Queen’s Bench of Alberta, page 6)
HUMAN RIGHTS ACT:
“ 1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).”
(Human Rights Act, S. 1)
BILL OF RIGHTS:
“An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms.
Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada...”
(Bill of Rights Preamble, Preamble)
MINIMUM LEGAL RIGHTS CONCLUSION:
[536] The Officers notes, the Officers testimonies in the Trial Transcripts, the video tape evidence and the audio tape evidence are all void of any instances of the Officers in question informing the Applicant of his rights and implementing them forthwith in accordance with the Charter in a meaningful way.
[537] The Hearing Transcripts, The Pretrial and the Appeal Hearing Transcripts are all void of any of the presiding Justices informing the accused of his right to legal competent representation and inquiring of the accused if he wished to wave the said rights.
[538] The Trial Transcripts and the Application Transcripts Are all void of ,The Ontario Provincial Court Judge presiding over the summary conviction trial, informing the accused of his minimum trial rights to legal competent representation and inquiring of the accused if he wished to wave the said rights.
[539] There is without question a none action, resulting in an error of Law, concerning informing and insuring the Applicant received his “Minimum Trial Rights” in accordance with Article 14 and the Charter in a meaningful way by the Honourable Trial Justice and the State.
[540] The state has a constitutional obligation to insure that indigent accused receive a fair trial and is represented by competent counsel in accordance with the Charter and other given Rights.
[541] The trial judge has an obligation to ensure the accused receive a fair trial and is informed that he has the right to be represent by competent legal professional counsel.
The Crown Attorney has an obligation to disclose disclosure in a timely manner to ensure fairness, judiciousness, and not to abuse the process, so that the accuse defence may have the opportunity to give full answer and to conduct the said defence unimpeded.
[542] The Police has a duty to deal fairly and act in “good faith” within the constraints of the Human Rights and Canadian Charter of Rights in the application and enforcement of the Code and are bound by there obligation to inform the accuse of his rights and insure those rights are implemented forthwith.
[543] In view of the aforementioned facts. There should have been a staying of the proceedings until the State fulfilled its constitutional obligation, to avoid further Charter violations and the continuation of Human Rights violations:
[544] The honorary Provincial Court Justice erred in his obligation to insure the Applicant was informed of his Rights to competent legal counsel and to stay the court proceedings until it was provided by the State or the accused wave his Right to be represented by profession legal counsel in accordance with Section 7 and 10(b).
[545] The honorary Provincial Court Justice erred in his obligation to insure the Applicant received a fair and equitable trial in accordance with the Charter. More over, that he received his “minimum fair trial rights” within a reasonable amount of time in accordance with Section 11(d).
[546] The State failed in fulfilling it obligation to the Applicant to insure that the guaranteed Rights of the accuse to a fair trial was met between, March 27, 2007 to May 2009 when the Applicant wanted counsel, was welling to receive counsel and was searching for counsel.
[547] Hence, pursuant to Panacui v. Legal Aid Society of Alberta and R. V. RUNO CAIRENIUS there has been a contravention of Section 7, 10(b) and 11(d).
[548]
ABUSE OF PROCESS.
I. Pursuant to this common law doctrine, a court of competent jurisdiction has inherent power to prevent the abuse of its process by staying proceedings. This power is to be exercised in favour of the accused where compelling the accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive and vexatious proceedings (R. v. Jewitt (1985), 47 C.R. (3d) 193 (S.c.c.)). It is limited to the clearest of cases. An additional protection against an abuse of process is found in the Charter of Rights and Freedoms which provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (Charter, s. 7).
2. The onus of establishing that an abuse of process has occurred is on the respondent who must establish, on a balance of probabilities, that the Crown has acted in an oppressive or vexatious manner or that the prosecution is offensive to the principles of fundamental justice and fair play (R. v. D. (T.c.) (1987), 38 c.c.c. (:Id) 434 (Ont. C.A.)).
(THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000 page 8 - page 9)
Therefore, the Applicant’s “minimum legal rights”, articulated in Article 14 of THE INTERNATIONAL COVENANT OF CIVIL AND POLITICAL RIGHTS and the relevant sections of the Charter, was infringed at the lower Courts.
Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
CITATION - VOLUME III
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
3.) MINIMUM LEGAL RIGHTS/FAIR TRIAL RIGHTS
WORK CITED
1) R. v. Stinchcombe, File No.: 21904
2) R. v. Beatty, 2008 SCC 5
3) BARRON’S LEGAL GUIDES, LAW DICTIONARY
4) BLACK’S LAW DICTIONARY, eight edition
5) THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, Article. 14
6) R. v. Rowbotham, Court of Appeal for Ontario
7) May 11, 2007, HEARING TRANSCRIPT, 07-02550/07-02559
8) June 1, 2007, HEARING TRANSCRIPT, 07-02550/07-02559
9) HEARING TRANSCRIPT, June 29, 2007, 07-02550/07-02559
10)July 13, 2007, HEARING TRANSCRIPT, 07-02550/07-02559
11)August 3, 2007, HEARING TRANSCRIPT, 07-02550/07-02559
12)January 18, 200, TRIAL HEARING TRANSCRIPT, 07-02550/07-02559
13)R. v. McGibbon, Court of Appeal for Ontario
14)Employment Insurance Commission, J. Santino, Insurance agent
15)Chief Justice R. Roy McMurtry, UPON THE OPENING OF THE COURTS OF ONTARIO FOR 2006
16)Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63
17)Letter from the Assistant Crown Attorney, Doug Kasko
18)R. V. RUNO CAIRENIUS, ONTARIO SUPERIOR COURT OF JUSTICE
19)Panacui v. Legal Aid Society of Alberta, Court of Queen’s Bench of Alberta
20)Bill of Rights Preamble, Preamble
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 VOLUME III APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 3.) MINIMUM LEGAL RIGHTS/FAIR TRIAL RIGHTS
Wayne Ferron Email: ferronwayne@gmail.com |
There are no posts in this folder...
- 215 reads