September 26, 2012 Hearing of an Application to Challenge the Jurisdiction of the Court, regarding City of Fredericton Bylaw matter of not wearing a helmet and a Court appearance.
For your information THE GROUNDS FOR THIS APPLICATION by way of Special Appearance to
challenge jurisdiction ARE:
The Law
Provincial Offences Procedure Act, SNB 1987, c P-22.1
1. Courts must presume that a legislature says in a statute what it
means and means in a statute what it says there.
2. Every part of an act is presumed to be of some effect and is not to
be treated as meaningless unless absolutely necessary
3. Maxim: The meaning of words is the spirit of the law.
4. According to section 12(2) of Provincial Offences Procedure Act, SNB
1987, c P-22.1, proceedings in respect of the offence charged in the ticket
(procedures), commence when the notice of prosecution is filed with the judge.
5. According to section 12(1) of Provincial Offences Procedure Act, SNB
1987, c P-22.1, unless payment of a fixed penalty is made in accordance with
section 14 within the time stated in the ticket, the notice of prosecution
shall be filed with a judge no later than the date stated in the ticket for the
defendant's appearance.
6. According to section 16(1) of Provincial Offences Procedure Act, SNB
1987, c P-22.1, where the defendant has not paid a fixed penalty before the
time stated in the ticket for the payment of the fixed penalty and does not
appear in court at the time and place stated in the ticket, the judge shall
examine the notice of prosecution and, if the notice of prosecution contains
the certificate referred to in subsection (2), the judge shall, subject to
subsection (3), convict the defendant and impose a fine in the amount of the
fixed penalty set out in the ticket.
7. According to section 16(2) of Provincial Offences Procedure Act, SNB
1987, c P-22.1, the certificate on a notice of prosecution shall be in
prescribed form, shall be signed, and shall state (a) that the person signing
the certificate delivered personally to the defendant the ticket to which the
notice of prosecution corresponds, and (b) that the ticket was in prescribed
form and was completed in the same manner as the notice of prosecution.
8. According to section 16(3) of Provincial Offences Procedure Act, SNB
1987, c P-22.1, the judge shall not convict the defendant if (a) the judge has
reason to believe that the certificate on the notice of prosecution is
inaccurate, or (b) the notice of prosecution contains a defect and the defect
cannot be cured under section 106.
9. According to section 106(5) of Provincial Offences Procedure Act, SNB
1987, c P-22.1, no curing of a defect under subsection (4) shall be permitted
if (a) the defect was such as to mislead the defendant, (b) substantial
injustice would be caused to the defendant by curing the defect, and(c)the
injustice that would be caused to the defendant by curing the defect cannot be
overcome by the granting of an adjournment.
10. As a result pursuant to and according to section 106(5) - Filing an
information instead of a the notice of prosecution would (1) mislead the
defendant (2) substantial injustice would be caused if the court overlooks the fact that no notice of prosecution was
issued at the time of the ticket being served, notice of prosecution was not filled according to the Act in
prescribed form and the notice of prosecution was never filled with the Court
before the date of the first appearance (August 15, 2012) as required by
section 12(1) of Provincial Offences Procedure Act, SNB 1987, c P-22.1,
consequentially (c) the injustice that would be caused to the defendant by
curing the defect cannot be overcome by the granting of an adjournment.
The relevant submitted Provincial Court documents are:
Sept 25, 2012 Brief arguing the Application Challenging JurisdictionSept 25, 2012 Application FORM 1 - Challenging JurisdictionSept 25, 2012 Affidavit in Support of Application Challenging Jurisdiction
Because of all the above the Court has lost Jurisdiction and should immediately dismiss the matter for want of jurisdiction.
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