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Wednesday, September 26, 2012

August 15, 2012 I attended Provincial Court by way of special Appearance to challenge the Jurisdiction of the Court

August 15, 2012 I attended Provincial Court by way of special Appearance to challenge the Jurisdiction of the Court and find out on the record if the Court had a Notice of Prosecution before her or not.  A Jurisdiction challenge by way of special appearance must be done on first appearance and every other appearance before a plea is entered. Please see Special Appearance below.  

I asserted my question several times and instead of answering me directly Judge Mary Jane Richards asked the Solicitor representing the City if I had been provided disclosure or not. The Lawyer answered that I had not been provided disclosure yet. The Judge then Ordered the Solicitor to have the disclosure prepared and provided to me, scheduling another hearing, September 26, 2012 at 1:30 pm. Please Note, the regular practice of the City of Fredericton is to not provide disclosure unless someone requests it, even though they are required by law to provide this. Please see Full Answer and Defence below. 

Courts have a duty to correctly apply the Law. See Pratten v. British Columbia (Attorney General), 2011 BCSC 656 (CanLII) Para. 218 – 335, 239 and 295, also, in R. v. Dyment, [1988] 2 S.C.R. 417, Justice La Forest J. para. 15 to 23 “this Court has made it clear… The function of the Charter, …is to provide ... for the unremitting protection of individual rights and liberties". This erroneous and flawed procedure if allowed to continue will bring the administration of justice into disrepute, furthermore, is a violation of Charter rights of equality under the law. 

When asserted my question “is there a Notice of Prosecution before you today”, the judge refused to answer and Ordered the Sheriffs to have me removed. I was literally dragged by my heels from the Court room and then escorted out of the building.    

Full Answer and Defence
Please Note section 31 of Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1 (Stable link to this version: http://canlii.ca/t/51vgm)provides is as follows:
31 The defendant is entitled to make a full answer and defence.

This constitutional right is protected by s. 7 of the Charter, and helps to guarantee the accused’s ability to exercise the right to make full answer and defence.  The duty to disclose is triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence.  The relevant information must be disclosed whether or not the City of Fredericton intends to introduce it as evidence at trial, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that these persons are not proposed as witnesses.  

If a substantial amount of evidence is not disclosed, and it is relevant nature of that evidence, of which the prosecution could not have been unaware, it must be acknowledged that the accused were the victims of a serious infringement of their right to disclosure of evidence.  

Since the verdict in Stinchcombe, the prosecutors cannot rely on uncertainties in the law relating to the disclosure of evidence to justify the failure to disclose.  A review of the case law confirms that the duty already existed prior to Stinchcombe as a component of the accused’s right to a fair trial and to make full answer and defence.  In addition, the duty arises naturally from the Crown attorney’s role as an officer of the court in our criminal justice system as well as to Solicitors representing the City of Fredericton in prosecution of bylaw matters.

The Solicitor for THE CITY OF FREDERICTON has a duty under s.5(a-b) of The Law Society Act 1996, SNB, to protect the public, to uphold justice and to protect the rights and freedoms of “all persons” and, since solicitor representing THE CITY OF FREDERICTON is therefore an instrument of public legislation, subject solicitor is also bound by the Charter. Please Note that failing to follow proper procedure is a violation of the Applicant’s section 15(1) and 7 Charter rights and freedoms. Reference: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC) Para 56 – 109.

Special Appearance

By making an "appearance" in response to a lawsuit, the Court will take this to be an unqualified submission to the personal jurisdiction of the Court,  a defendant is in effect submitting to the jurisdiction of the court and waiving any defects, if any exist, in personal jurisdiction.  A defendant who wishes to challenge jurisdiction may do so by making a special appearance which is limited to the issue of jurisdiction.  Therefore, when making a special appearance, should the non - attorning  party raise any other issues or claims he has made a general appearance and waives any defects in jurisdiction.  

To prevent this from happening, a defendant must make a special appearance before the court. A special appearance is made, in this instance, for the limited purpose of challenging the sufficiency of the personal jurisdiction et al., of the court. The court must then determine whether it has jurisdiction over the defendant. 

The Court must take Judicial Notice that Jurisprudence has established, that a Provincial Court has no jurisdiction unless jurisdiction can be proven to exist, as opposed to a superior Court, where jurisprudence has established that jurisdiction is assumed to exist unless the contrary is shown.
Maxim - Bonum judex secundum aequum et bonum judicat, et aequitatemstricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24.
When a Defendant makes a special appearance in Court, he does appear in the Court, but stipulates that his appearance is strictly for the purpose of contesting the court's personal jurisdiction, et al., over him; therefore any findings made in the interim decision are in conflict with establishd jurisprudence.

Reference: In Cabaniss v. Cabaniss, 2006 BCSC 1076 (CanLII) Mr. Justice I.H. Pitfield acknowledge the application of entering a special appearance in the proceeding.

[8] Mr. Cabaniss did not file an answer to the plaintiff’s complaint. He
admits that if he had done so, he would be taken to have attorned to the
jurisdiction of the Virginia court, which he was not prepared to do. He retained counsel for the purpose of entering a special appearance in the proceeding in Virginia. In the absence of evidence with respect to the actual effect of such an appearance, I conclude that it permits a party to challenge jurisdiction without attorning to the jurisdiction of the court. …

Reference: Ontario v. Mar-Dive Corp., 1996 CanLII 8103 (ON SC) Justice LISSAMANJ. stated that a restricted or special appearance procedure was available to challenge subject-matter jurisdiction without attorning to that jurisdiction.

[191] … Ontario admits knowledge of the pendency of the United States
District Court action and states that it chose not to appear despite the fact that a restricted or special appearance procedure was available to it to challenge subject matter jurisdiction without attorning to the jurisdiction of the United States courts.

Attorn or Attornment is defined as “To consent, implicitly or explicitly, to a transfer of a right.” Further Black's Law Dictionary (8th ed. 2004), provides the definition of ATTORN as follows:
attorn vb.1. To agree to be the tenant of a new landlord. [Cases: Landlord and Tenant 15. C.J.S. Landlord and Tenant §§ 21–22, 277, 279.] 2. To transfer (money, goods, etc.) to another.

In Bad Ass Coffee Company of Hawaii Inc. v Bad Ass Enterprises Inc., 2007 ABQB 581 (CanLII) Justice J.B. Hanebury, raised the issue that “where a question of jurisdiction arises a man cannot both have his cake and eat it”. Please read paragraph 30 to 33.

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