A Provincial Court without a 'Notice of Prosecution' is not a Court with Jurisdiction; without Jurisdiction a Provincial Court is 'not' a Court of competence [having the necessary ability, knowledge, or skill to do something successfully].

Absent a 'Notice of Prosecution' means Provincial Court is without Jurisdiction.

Jurisdiction

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 asserted and provided as an excerpt for the readers consideration, herein below as number 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.

Maxim - Merito beneficium legis amittit, qui legem ipsam subvertere intendit - He justly loses the benefit of the law who seeks to infringe the law.

The Law

Provincial Offences Procedure Act, SNB 1987, c P-22.1

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, shall not commence before the Notice of Prosecution is Court Filed with a Judge, of the Provincial Court.

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.

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. 

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.

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.

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.

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 Provincial Court overlooks the fact that a ‘Notice of Prosecution’ was not issued at the time of the ticket being served, ‘Notice of Prosecution’ was not Court Filed according to the Act in prescribed form furthermore if the required ‘Notice of Prosecution’ was never Filed with the Court before the date of the first appearance 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 the Provincial Court attempting to cure the defect cannot be overcome by the granting of an adjournment.

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.

SUMMONS TO DEFENDANT to attend Plea Hearing scheduled August 15, 2012

Received SUMMONS TO DEFENDANT (Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1, s.6(2)(a)(i))) FORM 3, Dated July 18, 2012, regarding ticket G281802 Not wearing a helmet in the Park.

Judge Mary Jane Richards did issue a SUMMONS TO DEFENDANT (Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1, s.6(2)(a)(i))) FORM 3, Dated July 18, 2012, regarding ticket G281802 before the first hearing of the subject helmet Bylaw matter, set-down as August 15, 2012, according to that same SUMMONS TO DEFENDANT.

Since the accused defendant did not fail to appear at a time and place fixed by a judge for trial or for the resumption of a trial that has been adjourned and the proceedings were supposed to be commenced by the filing of a notice of prosecution Judge Mary Jane Richards did not have the jurisdiction to issue a SUMMONS TO DEFENDANT, at the time of issue and under those circumstances.

A Judge only gains the jurisdiction to issue a SUMMONS TO DEFENDANT according to section 29(2) with the heading “Failure To Appear” of Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1 after the Defendant fails to appear at the scheduled first hearing, the Date of the first hearing being written on the Notice of Prosecution in prescribed form, as stated in the Act. Since the proceedings should have been commenced by the filing of a notice of prosecution, only after the failure to appear of the defendant can the Judge issue a SUMMONS TO DEFENDANT according to section 6(2) of the Act, not before.

Link to Document:

http://www.scribd.com/doc/107112857/SUMMONS-TO-DEFENDANT-Provincial-Offences-Procedure-Act-S-N-B-1987-c-P-22-1-s-6-2-a-i-FORM-3-Dated-July-18-2012-regarding-ticket-G281802

 Relevant sections of Act:

(Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1) 

Stable link to this version: http://canlii.ca/t/51vgm

Failure To Appear

29(1.1)If a defendant does not appear at a time and place fixed by a judge for trial or for the resumption of a trial that has been adjourned and the proceedings were commenced by the filing of a notice of prosecution, the judge shall,

(a)on motion by the prosecutor, convict the defendant and impose a fine in the amount of the fixed penalty set out in the ticket to which the notice of prosecution corresponds if it appears to the judge that it would not be contrary to the interest of justice to do so, or

(b)on motion by the prosecutor, proceed immediately to try the defendant in the defendant’s absence.

29(1.2)If a motion by a prosecutor under paragraph (1.1)(a) is refused, the prosecutor is not prevented from making a motion under paragraph (1.1)(b) immediately after the refusal.

29(2)If the prosecutor does not make a motion under subsection (1) or (1.1) or a motion made by him or her under paragraph (1.1)(a) is refused and he or she does not make a motion under paragraph (1.1)(b) immediately after the refusal, the judge shall adjourn the proceedings and may

(a)issue a summons in prescribed form, or

(b)issue a warrant in prescribed form for the arrest of the defendant if the judge is satisfied that it is necessary in the public interest or in the interest of the proper administration of justice to do so.

6(2)Where the judge considers that the defendant should be required to answer to the charge, the judge shall

(a)if no appearance notice has been served,

(i)issue a summons in prescribed form; or

(ii)issue a warrant in prescribed form for the arrest of the defendant if the judge considers that it is necessary in the public interest or in the interest of the proper administration of justice to do so; or

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What happens in a Fredericton Provincial Courtroom when there is no journalist or Blogger there

This is what can happen in a Fredericton New Brunswick Canada Court of Queens Bench Provincial Courtroom when there is no journalist or Blogger there to witness!

I was as a Defendant in a Fredericton New Brunswick Canada Court of Queens Bench Provincial Courtroom Wednesday afternoon  August 15, 2012 (Mary Jane Richards) and was pretty amazed at what I saw.

I was that same day coincidentally with friends who had also been summonsed to court for by-law ticket matters, one for a parking ticket and one for not wearing a bicycle helmet on a City walking and cycling trail.

Presiding Madame Justice Richards began the hearings that day with a shouting match as the defendant refused to be silent furthermore the Defendant Andre Murray insisted on being heard regarding the no-helmet by-law ticket as Presiding Madame Justice Richards treated contempt of Court nevertheless Defendant Andre Murray insisted on being heard and continued to demand answers from the Bench at this point Presiding Madame Justice Richards actually "Ordered" Defendant Andre Murray to be physically removed from the entire Court House which is exactly what two Sheriffs did. I sat what amazement as two very large Sheriffs grabbed each arm of Defendant Andre Murray and grappled with his hands in a failed effort to release his grip which were firmly gripping the Bar between the Judges Bench and the sitting area. Throughout the hearing Presiding Madame Justice Richards refused to answer his questions about the alleged defects in the Court documents and City by-law enforcement failing to follow the correct procedures for Ticket infractions (sections 9 - 16 of the NB Provincial Offences Procedures Act). When there is a defect of the serious nature Andre discovered the case should be thrown out of court.

I was surprised to discover Fredericton Provincial Court Judges, Fredericton Police Force and the City of Fredericton By-Law Enforcement are all using the forms and process for instigating criminal proceedings (sections 1-8 of the Provincial Offences Procedures Act) instead of the correct Ticket proceedings.

The significance of this is, when criminal proceedings are instigated, which should never have been instigated is that the judge are unilaterally sending defendants to jail for simply not putting enough coins in a meter or not wearing a helmet if the fine is unpaid where the jurisprudence on ticket proceedings simply do not allow jail time for a ticket - despite this however it is becoming common practice and they are actually doing this very incarceration regularly, as Julian Dickson has ordered four days in jail for one of my friends if the parking ticket fine wasn't paid by a certain date.

The Judges are also summonsing by law defendants to court with the wrong form. They are using a form 3 - again a criminal proceedings form - instead of the Notice of Prosecution that is the form that which a person must be asked to sign, according to Provincial Law, and which the judge is required to have in their possession by the first court appearance for the court hearing of the subject ticket matter.

Mr Andre Murray as earlier stated challenged presiding judge Madame Justice Mary Jane Richards by asking her if she had the correct Notice of Prosecution in front of Madame Justice Mary Jane Richards and, if she didn't, that meant Madame Justice Mary Jane Richards did not have jurisdiction to proceed. Of course, with a courtroom full of supposed by law ticket offenders, she did not want to admit to this grossly negligent wrong doing that the courts and City have been getting away with for so long, so instead she kept talking over Mr Murray and then threatened to find him in contempt when he persisted in asking his questions.

Making Andre Murray look like the offender, degrading and humiliating Andre Murray by having him removed from the court in this manner, was judge Madame Justice Mary Jane Richards protection from being exposed for her failure to obey the law and enabled Justice Mary Jane Richards to distract everyone as she avoided telling him why she  using criminal offence forms and process. I wonder what she would have done if the local newspaper "Gleaner" reporters had been in the Court room?

The other matter, the parking ticket, will be interesting. The family man and husband was ticketed and summonsed, with the wrong form, so the car registration was not before the judge and he and his wife said she was driving the vehicle. Mary Jane asked registered owner if he would plead and
he said "Not guilty" he was not driving the car that day, which his wife confirmed to the judge. A very long silence followed and the City solicitor said nothing at all, then the judge set a trial date!!! So now, the judge and City have been told in the courtroom they have the wrong person summonsed, he has evidence he did not commit any offence despite this it is going to trial, while earlier she dismissed another woman's ticket with no evidence before her.

This is all at tax payers expense.

I urge everyone who has been ticketed and then summoned to court to check the forms used by the City and Court for by law matters. If it says Form 3 Summons, it is the wrong form. If it says Form 1 Information, it is the wrong form - and if you were jailed for non payment of a ticket of any kind you were arbitrarily imprisoned.

The City, Courts and Police are using criminal proceedings instead of the legislated ticket proceedings to frighten people into paying fines and this has to stop. As you keep saying Charles, it is time for a Public Provincial Inquiry into the entire legal and justice systems of New Brunswick and particularly Fredericton City.

This place frightens me more every day.

A very concerned citizen.