Leave the Jurisdiction of the Court pursuant to Section 505 of the Criminal Code,

Pursuant to Section 505 of the Criminal Code, if an information is not laid before an accused first appearance, the Court looses Jurisdiction over the person of the accused.

Time within which information to be laid in certain cases

505. Where

• (a) an appearance notice has been issued to an accused under section 496, or
• (b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.

http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec505_smooth

I presented the following argument by way of Special appearance before a Provincial Court and the Criminal Charge of 'failure to appear', from which a warrant was issued for my arrest (I was arrested and forced to sign a promise to appear), disappeared as if by magic. Here follows the argument which I presented.

Challenging Jurisdiction

The Court should Order a dismissal of the Charges on the ground of lack of personal jurisdiction of the Court over the Defendant.

Special Appearance

1.      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, 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.  If he or she raises any other issues or claims he has made a general appearance and waives any defects in jurisdiction. 

2.      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 of the court. The court must then determine whether it has jurisdiction over the defendant.

3.       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.

4.       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.

5.       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 over him

6.      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. …

7.      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.

8.       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.

14. 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.

Jurisdiction

16. In Wind Power Inc. v. Saskatchewan Power Corp., 1998 CanLII 14061 (SK QB)

Justice GEATROS J. stated the following, regarding nothing shall be intended to be

within the jurisdiction of an Inferior Court but that which is expressly so alleged at

paragraph 12:

[12] I have a further observation in the matter of inherent jurisdiction. This is a

Superior Court having a specific characteristic that is stated by Furlong C.J. in

Bursey v. Bursey (1966), 58 D.L.R. (2d) 451 (Nfld. S.C.) to be as follows, at p.

455:

That characteristic is the manner in which plenary powers of a superior Court

may be cut down or limited. The matter was considered just 300 years ago in

Peacock v. Bell and Kendal (1667), 1 Wms. Saund. 73 at p. 74, 85 E.R. 84, when,

as it is reported, it was held:

And the rule for jurisdiction is, that nothing shall be intended to be

out of the jurisdiction of a Superior Court, but that which specially

appears to be so; and on the contrary, nothing shall be intended

to be within the jurisdiction of an Inferior Court but that which is

expressly so alleged.

It would appear that this dictum has remained undisturbed by time as I find it

is repeated in substantially the same words in 9 Hals., 3rd ed., p. 349, as

follows:

Prima facie, no matter is deemed to be beyond the jurisdiction of a

superior court unless it is expressly shown to be so, while nothing is

within the jurisdiction of an inferior court unless it is expressly

shown on the face of the proceedings that the particular matter is within

the cognisance of the particular court.

9.       Maxim - Merito beneficium legis amittit, qui legem ipsam subvertere

intendit - He justly loses the benefit of the law who seeks to infringe the law.

Personal Jurisdiction

10.  Personal jurisdiction refers to a court's jurisdiction over the parties to a law suit, as opposed to subject matter jurisdiction (jurisdiction over the determinations of law and fact to be made in the case or controversy). If a court does not have personal jurisdiction over a party, its rulings or decrees cannot be enforced as to that person, otherwise than by comity. Personal jurisdiction means the power of the court to decide a dispute, as against a particular person.

11.  Personal Jurisdiction is defined as The court's authority to determine a claim affecting a specific person and by Black's Law Dictionary (8th ed. 2004), at Page 2495 defines personal jurisdiction as:

personal jurisdiction. A court's power to bring a person into its adjudicative process;

12.  First, Reference Everdry Marketing and Management Inc. v. Carter, 885 NE 2d 6 (2008), Justice Crone of the Court of Appeals of Indiana noted that:

    "[P]ersonal jurisdiction is a court's power to bring a person into its adjudicative process and enforce a judgment against him."

Secondly, in Miller v. Goodell, 958 So. 2d 952 (2007) the District Court of Appeal of Florida published these words:

    "Personal jurisdiction refers to whether a particular court has legal authority over the respondent or defendant. Personal jurisdiction is a personal right, and a respondent may consent to personal jurisdiction."

Thirdly, also, these words of Justice Noble within Nordike v. Nordike, 231 SW 3d 733 (2007):

    "There are actually three separate types of jurisdiction, all of which must be met before a court may hear a case.

    "First, there is personal jurisdiction, or the court's authority to determine a claim affecting a specific person. When the question is whether the court has the power to compel a person to appear before it and abide by its rulings, this is a question of personal jurisdiction. Given the mobile world we live in, personal jurisdiction often is difficult to obtain, which has led each state to the development of long-arm statutes that extend personal jurisdiction to nonresidents....

    "Often, discussions of jurisdiction concern subject-matter jurisdiction, or the court's power to hear and rule on a particular type of controversy. Subject matter jurisdiction is not for a court to take, assume, or allow. Subject-matter jurisdiction cannot be born of waiver, consent or estoppel, but it is absent only where the court has not been given any power to do anything at all in such a case. A court either has it or it doesn't, though admittedly there are times when more than one court may have subject matter jurisdiction or it is difficult to determine which court does.

    "Finally there is jurisdiction over the particular case at issue, which refers to the authority and power of the court to decide a specific case, rather than the class of cases over which the court has subject matter jurisdiction. This kind of jurisdiction often turns solely on proof of certain compliance with statutory requirements and so-called jurisdictional facts, such as that an action was begun before a limitations period expired."

How the Court lost Personal Jurisdiction

13.  Because the Crown has not laid an information according to Section 505(b) of the criminal Code, before the scheduled Appearance Date according to a promise to appear, the effect of this non-compliance with the directive in s. 505(b) that an information be laid before a Justice of the Peace “as soon as practicable” does not result in loss of the court’s jurisdiction over the offence charged but, rather, over the person of the accused. 

14.  Please Reference: R. v. Markovic, 2005 CanLII 36251 (ON CA), <http://canlii.ca/t/1lr7q>

[1]               This appeal concerns the jurisdictional consequences of failing to lay an infor-mation before a Justice of the Peace in accordance with s. 505(b) of the Criminal Code.  We are required to consider the decisions of this court in R. v. Naylor (1978), 42 C.C.C. (2d) 12, R. v. Gougeon reflex, (1980), 55 C.C.C. (2d) 218 and related jurisprudence.

....

[10]         The Crown concedes that there was non-compliance in this case with the time requirements of s. 505(b) of the Code because the information at issue was sworn after the time stated in the promise to appear.  The Crown also concedes that the Justice of the Peace lacked jurisdiction to confirm the promise to appear.  Thus, the discretionary bench warrant of May 2, 2003 was issued improperly because no valid process was then before the court compelling the appellant’s attendance.  However, the Crown argues that the information was valid notwithstanding the technical breach of s. 505(b) of the Code because the breach did not result in the loss of the court’s jurisdiction to try the offences of which the appellant stood accused and any defect in the process occasioned by the breach was cured when the appellant appeared before the court, through counsel, on May 6, 2003.  In the alternative, the Crown submits that any defect in process occasioned by breach of s. 505(b) is curable under s. 485(1) of the Code.

[11]         In oral argument before this court, the appellant acknowledged that non-compliance with the directive in s. 505(b) that an information be laid before a Justice of the Peace “as soon as practicable” does not result in loss of the court’s jurisdiction over the offence charged but, rather, over the person of the accused.  He also conceded that this type of ‘process defect’ can be cured, as it was in this case, by the accused’s appearance before the court, either personally or through counsel.  See Naylor, supra and Gougeon, supra.

Conclusion

15.  The Defendant Asserts, that The Court should Order a dismissal of the Charges on the ground of lack of personal jurisdiction of the Court over the Defendant.

ALL OF THIS respectfully submitted this 17^th day of July 2012.Andre Murray