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Court of Appeal File No.

___________
Court of Appeal Registry Vancouver
Supreme Court File №.S004040
Supreme Court Registry Vancouver

In the British Columbia Court of Appeal


(The Supreme Court of British Columbia)
Between
MICHAEL KAPOUSTIN, et al.
Appellants
(Plaintiffs)
And
REPUBLIC OF BULGARIA, et al
Respondents
(Defendants)
MEMORANDUM OF FACTS AND LAW
COMES NOW, MICHAEL KAPOUSTIN, the Plaintiff (hereinafter also
referred to as the "Speaker" or "Applicant”) in the above styled cause of
action, and presents on his application to the British Columbia Appeal
Court ("B.C.A.C.") this Memorandum. This document must speak before
the Appeal Court in the form of a prosopopoeia, as this is the only means
available to a person deprived of his liberty and denied by the Defendant
State his access to Canadian courts of law. The Subject of the Application
is the most fundamental right of a citizen of Canada; the right to a full
judicial hearing of the facts.
Table of Contents

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1 Preamble.................................................................................................................. .............8
I.1.1 Parallels in Canadian Case Law.................................................................................................8
I.1.2 Relevance of the Cited Gwynne Supra....................................................................................11
I.1.3 Factors Existing In Aggravation of the Circumstances............................................................12
I.1.4 The Appeal...............................................................................................................................13
I.1.5 Relevant Law...........................................................................................................................14
I.1.6 Interpretation and Factors........................................................................................................14
I.1.7 Reliance on Canadian Justice...................................................................................................14
2 Applicant's Reasoning........................................................................................... ..............14
I.2.1 Objectives................................................................................................................................15
I.2.2 Rights Relied On......................................................................................................................15
I.2.3 Prior Petitions...........................................................................................................................16
3 End of Preamble.............................................................................................................. ....16

II
STATEMENT OF FACTS...............................................................................................17

1 Course of the Proceedings....................................................................... ...........................17


II.1.1 The Law Suit...........................................................................................................................17
II.1.1.1 Originating the Proceedings...............................................................................................................................17
II.1.1.2 Applications to the Registrar..............................................................................................................................17
II.1.2 Decisions of the Duty Master and Chambers Judge...............................................................19
II.1.3 First Hearing - July 13th 2001................................................................................................21
II.1.4 Second Hearing - August 24th 2001.......................................................................................22
II.1.5 Present Applications At Bar....................................................................................................24
2 Facts of the Case........................................................................................................... ......24
II.2.1 Background.............................................................................................................................25
II.2.1.1 Difficulties in Bringing the Law Suit.................................................................................................................25
II.2.2 Cause of Action - Nexus to British Columbia .......................................................................27
II.2.3 Claims Framed In Contract.....................................................................................................29
II.2.3.1 Commercial Activities........................................................................................................................................29
II.2.3.2 History of Transactions - In Summary...............................................................................................................29
II.2.3.3 Breach of Contract, Fiduciary and Implied Warranty........................................................................................30
II.2.4 Claims Framed In the Tort......................................................................................................30
II.2.4.1 Defamation - Slander and Libel.........................................................................................................................30
II.2.4.2 The Element of Slander - Offensive and Untrue Words Spoken by a Crown Servant.......................................32
II.2.4.3 The Element of Libel - Offensive and Untrue Words Written by the Government of Canada..........................33
II.2.4.4 Reproduction of the Slander and Libel..............................................................................................................35
II.2.4.5 Intent and Malice - "Mens Rea".........................................................................................................................36
II.2.5 Malicious Prosecution............................................................................................................36
II.2.6 Nature of Claim Framed In Tort of Conversion and Unjust Enrichment...............................37
II.2.7 Nature of Claim Framed In Tort of Misrepresentation and Undue Influence........................38
II.2.8 Facts in Aggravation of Those Claims Framed In Tort..........................................................38
II.2.8.1 Complaints to the Government of Canada.........................................................................................................38

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II.2.8.2 Criminal and Quasi-Criminal Extortion ............................................................................................................39
II.2.8.3 Respondent's Reliance on its Criminal Prosecution of Speaker.........................................................................40
II.2.8.4 What, If Any, Relevance to the Trial Court Surrounding the Criminal Proceedings.........................................41
II.2.8.5 What Are the Facts of the Criminal Case The Defendant Bulgaria Relies On?.................................................42
II.2.8.6 Speaker's Arrest and Extradition........................................................................................................................43
II.2.8.7 Speaker's Arraignment and Trial........................................................................................................................45
II.2.8.7.1 The Indictment 45
II.2.8.7.2 The Trial and Conviction 46
II.2.8.7.3 The Acquittal 46
II.2.8.7.4 Supreme Court of Bulgaria - Protest and Appeal 47
3 Practices of the Defendant Bulgaria Existing In Aggravation of the Claims .................... ..47
II.3.1 Conditions in the Republic of Bulgaria..................................................................................47
II.3.1.1 1996....................................................................................................................................................................47
II.3.1.2 1997....................................................................................................................................................................49
II.3.1.3 1998....................................................................................................................................................................50
II.3.1.4 1999....................................................................................................................................................................51
II.3.1.5 2000....................................................................................................................................................................55
II.3.2 Definitions of Torture.............................................................................................................55
4 Relevance............................................................................................................... .............56

III ERRORS IN JUDGEMENT.....................................................................................57

IV ARGUMENT AND ANALYSIS.................................................................................58

1 The Arguments Evolution ................................................................................ ...................58


IV.1.1 Law and Enactment Relied On..............................................................................................61
IV.1.1.1 International Conventions - A Chronology.......................................................................................................61
IV.1.1.1.1 The Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948) 62
IV.1.1.1.2 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.
(No. 16) at 52, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 63
IV.1.1.1.3 Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611,
annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amended
E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977). 65
IV.1.1.1.4 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988) 66
IV.1.1.1.5 Basic Principles for the Treatment of Prisoners, G.A. res. 45/111, annex, 45 U.N. GAOR Supp. (No.
49A) at 200, U.N. Doc. A/45/49 (1990) 66
IV.1.1.2 Canadian Enactment..........................................................................................................................................67
IV.1.1.2.1 Canadian Bill of Rights, [1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c. 26, s. 105; 1992, c. 1, s.
144(F)]. 67
IV.1.1.2.2 Canadian Human Rights Act [Chapter H-6 1976-77, c. 33, s. 1. 67
IV.1.1.2.3 Constitution Act, 1982 (79) Enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, which
came into force on April 17, 1982 - Canadian charter of rights and freedoms 69
IV.1.1.2.4 Human Rights Code [RSBC 1996] Chapter 210 69
IV.1.1.2.5 Prisons and Reformatories Act Chapter P-20 R.S., c. P-21, s. 1. 70
IV.1.1.2.6 Corrections and Conditional Release Act 1992, c. 20 [Assented to 18th June, 1992] 71
IV.1.1.2.7 Correction Act [RSBC 1996] Chapter 74 72
IV.1.1.3 Bulgarian Enactment.........................................................................................................................................72
IV.1.1.3.1 Constitution of the Republic of Bulgaria [S.G. No. 56/13.07/1991] 73

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IV.1.1.3.2 Law on Execution of Punishments
[Promulgated S.G. No. 30 on April 15, 1969, alt. and add. S.G. No. 34 on April 30, 1974, No. 84 on
Oct. 28, 1977; No. 36 on May 8, 1979; No. 28 on April 9, 1982 in force from July 1, 1982, S.G. No. 27,
April 4, 1986; No. 89, Nov. 18, 1986; No. 26, April 5, 1988; No. 21, March 13, 1990; No. 109, Dec. 28,
1993; No. 50, June 1, 1995; No. 12, Feb. 7, 1997; No. 13, Feb. 11, 1997; No. 73, June 26, 1998; No.
153, dec. 23, 1998]. 73
IV.1.1.3.3 Criminal Code of Procedure of the Republic of Bulgaria
[Promulgated, S.G., No. 89/15 November 1974, Amended, S.G. No. 99/1974, No., 10/1975, No.
84/1977, No. 52/1980, No. 28 and 38/1982, No. 89/1986, No. 31, 32 and 35/1990, No. 39, 109 and
110/1993, No. 84/1994, No. 50/1995, No. 107 and 110/1996, No. 54 and 95/1997, and No. 21/1998]. 74
2 A Priori......................................................................................................... ......................75
IV.2.1 The Rights of Individuals......................................................................................................75
IV.2.2 Access to A Court..................................................................................................................76
IV.2.3 Reverse Onus and Procedural Fairness.................................................................................79
IV.2.4 A Priori Rights in a "Suit in Law".........................................................................................80
3 A Posteriori............................................................................................................. ............81
IV.3.1 A Prisoner's "Other Status"....................................................................................................82
IV.3.2 A State's Positive Obligation and Duty To A Person Deprived Of Liberty............................84
IV.3.3 Positive Obligation and Duty of Bulgaria.............................................................................86
IV.3.4 The Master's Positive Obligation ..........................................................................................87
IV.3.5 Procedures, Conflicts and Comity.........................................................................................94
IV.3.5.1 Procedures.........................................................................................................................................................96
IV.3.5.2 Conflicts............................................................................................................................................................97
IV.3.5.3 Comity.............................................................................................................................................................103
4 Is this Speaker's reasoning simply wrong?.......................................................... ..............109
IV.4.1 The Fact and Questions........................................................................................................110
IV.4.1.1 Fact..................................................................................................................................................................110
IV.4.1.2 Questions.........................................................................................................................................................111
IV.4.2 Analysis................................................................................................................................111
IV.4.2.1 What is Not on Appeal?...................................................................................................................................113
5 The Applications........................................................................................................ ........115
IV.5.1 Arguments ...........................................................................................................................115
IV.5.1.1 Time ................................................................................................................................................................115
IV.5.1.2 Indigence.........................................................................................................................................................115
IV.5.1.3 Leave to Appeal...............................................................................................................................................116
IV.5.2 Issues - There Are Three Applications.................................................................................118
6 Need To Extend Time........................................................................................ .................118
IV.6.1 The prejudice to each party:.................................................................................................119
IV.6.2 Whether the appellant had formed an intention to appeal in the time limits for an appeal:120
IV.6.3 Was the respondent aware of the appellant's intention to appeal within the time limits?. . .121
IV.6.4 Whether any ground of substance is raised in the proposed appeal:..................................121
7 Relief from Court Fees and Costs.................................................................................... ..123
IV.7.1 "(a) Discloses No Reasonable Claim ..................................................................................124
IV.7.1.1 Is the Intended Appeal Reasonable.................................................................................................................124
IV.7.1.1.1 In the Law Suit 126
IV.7.1.1.2 Jurisdiction 127
IV.7.1.1.3 Procedures Observed. 128

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IV.7.2 "(b) The Appeal Is Scandalous, Frivolous or Vexatious......................................................129
IV.7.3 "(c) The Application Is Otherwise an Abuse of the Process of the Court ..........................130
8 For Leave to Appeal................................................................................................. .........131
IV.8.1 Whether the point on appeal is significant both to the litigation before the trial court and to
the practice in general; ....................................................................................................131
IV.8.1.1 Significance to the Litigation Standards ........................................................................................................132
IV.8.1.2 Intended Points on Appeal..............................................................................................................................132
IV.8.2 Whether the appellant has an arguable case of sufficient merit..........................................133
IV.8.2.1 Merit................................................................................................................................................................133
IV.8.2.2 Might the Law Suit Merited............................................................................................................................134
IV.8.2.3 Arguable Case ................................................................................................................................................135
IV.8.2.4 Discussion.......................................................................................................................................................137
IV.8.2.4.1 Affect as Opposed to Intent. 137
IV.8.2.4.2 First, in its present form, the order as appealed acts to limit the legal rights of only one party, the
plaintiff 137
IV.8.2.4.3 Second, the practice and procedure applied to the case before the trial court acts to unintentionally aid
a state party that finds itself a defendant to a law suit. 138
IV.8.2.4.4 What Affects Are Truly Apparent? 139
IV.8.2.5 International Legal Rights of Persons Deprived of Liberty............................................................................140
IV.8.2.5.1 As to the Defendant Bulgaria 143
IV.8.2.5.2 As to the Crown and Canada 145
IV.8.3 Is the Point on Appeal Arguable..........................................................................................145
IV.8.3.1 Constitutional Validity of the Impugned Act's Affect on Indigent Prisoners;.................................................146
IV.8.3.1.1 Constitutional Applicability and Remedy 146
IV.8.3.1.2 Issues 151
IV.8.3.2 Is the enactment constitutionally valid under the division of powers established by ss. 91 and 92 of the
Constitution Act, 1867?..............................................................................................................................152
IV.8.3.2.1 Pith and Substance 152
IV.8.3.2.2 Division of Powers 158
IV.8.3.2.3 Colourability Doctrine 164
IV.8.3.3 If the enactment is within the legislative competence of the Provincial Government under s. 92 of the
Constitution Act, 1867, is there nevertheless a deprivation of a liberty protected by s. 7 as well as a
discriminatory practice restricted by s. 15(1) of the Charter of Rights and Freedoms (the "Charter") on
application to a distinct group?...................................................................................................................170
IV.8.3.3.1 Applying the Charter to Administrative Law or a Quasi-Judicial act 170
Discussion 174
THE CONSTITUTIONAL LAW ASPECT 176
IV.8.3.3.1.1 The Duty Master's Order.........................................................................................................177
The Chambers Judge Decision...................................................................................................................178
IV.8.3.3.1.2 Discussion...............................................................................................................................179
IV.8.3.3.1.3 Is a Charter Challenge the Answer?........................................................................................181
IV.8.3.3.3 Does The Charter Apply? 185
IV.8.3.3.4 Section 52 Charter Values And The Common Law. 186
IV.8.3.3.4.1 In The Case at Bar...................................................................................................................186
IV.8.3.3.5 Is There A Deprivation Of A Liberty Protected By S. 7 Of The Charter? 189
IV.8.3.4 The Existing Judicial Consideration of the Rules...........................................................................................193
IV.8.3.4.1 Does the Charter Apply? 194
IV.8.3.4.1.1 To the Court Rules Act............................................................................................................194
IV.8.3.4.1.1.1 Argument.....................................................................................................................194
IV.8.3.5 Availability of Judicial Review.......................................................................................................................195
IV.8.3.6 What Standard of Review to be applied to Applications of "detached" Members of Society;.......................197
IV.8.3.7 Judicial Review...............................................................................................................................................198
IV.8.3.8 Does the Impugned Act (Rules) Offend Section 15(1)?.................................................................................199

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IV.8.3.9 Do the Impugned Rules Offend Section 15(1) Beyond the Extent of the Freedom Guaranteed Under Section
1?.................................................................................................................................................................201
IV.8.3.10 Vagueness......................................................................................................................................................203
IV.8.3.11 S. 1 Overbreadth............................................................................................................................................205
IV.8.3.12 Rationality.....................................................................................................................................................211
IV.8.3.13 Proportionality...............................................................................................................................................211
IV.8.3.14 The Reasonableness of the Affect of the Duty Master's Order;....................................................................215
IV.8.3.15 Duty of Procedural Fairness .........................................................................................................................218
IV.8.4 The practical benefit to the parties of an appellate decision................................................224

V THE RELIEF SOUGHT...........................................................................................224

V.1.1.1 Interpretation Act CHAPTER I-21 R.S., c. I-23, s. 1.......................................................................................225


V.1.1.1.1 The Intended Appeal 225
1) It can be reasonably concluded on examination of the criminal accusations brought against the
Applicant and those offences alleged therein as having occurred in the Republic of
Bulgaria, are substantially the same as that formulated by an officer of the Royal
Canadian Mounted Police (“R.C.M.P.”). The criminal suppositions, facts, circumstances
and figures in numbers and amounts as first framed in a July 7th 1995 letter (hereinafter
the “Doornbos Letter”) written and delivered to the Ministry of Interior, National
Organization for the Fight Against Organized Crime (“NOFAC”) by the R.C.M.P. are in
there essence the same as those brought against the Applicant by the Republic of
Bulgaria............................................................................................................................228
2) The Doornbos Letter mislead NOFAC and the Republic of Bulgaria by representing the
personal opinions of R.C.M.P. Staff Sgt. Derek A. Doornbos as if fact and his unverified
suppositions as though verified facts and conclusions the product of police investigations
conducted by the R.C.M.P. in Canada. Something Doornbos knew to not be true.........228
3) The contents of the Doornbos Letter and his statements to NOFAC officials were made public
and repeatedly appeared in the mass printed and electronic media to the injury, shame and
severe distress of the Applicant, his family, friends and investors of LCI.......................229
4) Among the numerous slanders and fabrications of fact provided by Doornbos to NOFAC and
the media was a statement by Doornbos that the Applicant was a convicted child molester
and member of a religious cult organization in Canada that annually laundered millions
of dollars from the proceeds of crime. ............................................................................229
5) Doornbos stated as if fact and a Canadian R.C.M.P. investigative conclusion that a substantial
part of money entering the Canadian bank accounts of an alleged “religious cult” were
criminal proceeds gained from citizens of the Republic of Bulgaria by the Applicant’s
criminal organization, the company LCI Bulgaria. ........................................................229
6) Doornbos could not and did not know if his criminal allegations against the Applicant were true
since the allegations concern the Applicant’s activities in the Republic of Bulgaria, a
jurisdiction where Doornbos could not, under any circumstances, have lawfully
conducted an investigation...............................................................................................229
7) A single and persistent fact through out the 6 year criminal proceeding against the Applicant, it
remains painfully apparent and incontrovertible that the Doornbos Letter and other
unlawful contributions are the primary cause for the Applicant’s arrest and ultimately his
conviction and sentence to 23 years by the Republic of Bulgaria...................................230
8) It is as a result of the Doornbos Letter and other fabrications or misleading information offered
by Doornbos that NOFAC on, July 17th 1995 issued a confidential directive to the Chief
Prosecutors Office of the Republic of Bulgaria that the request by the R.C.M.P. of Canada
that directed NOFAC to bring, and the Applicant quotes:...............................................230

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9) The NOFAC acted immediately on the Doornbos Letter’s request. Agencies or instrumentalities
of the Republic of Bulgaria immediately undertook to first publicly humiliate and
discredit the Applicant and LCI companies before moving against the Applicant who was
extremely popular and well liked at the time...................................................................230
10) By publicly distributing to the mass media the Doornbos Letter and statements incriminating
the Applicant an image was fabricated of the Applicant as an international criminal
operating in Bulgaria and part of an organized crime network that reached into Western
Europe and Canada. ........................................................................................................230
11) The Republic of Bulgaria gave credibility to this manufactured and false image by making
repeated reference as to the information and data having been supplied by reliable police
sources of the Government of Canada.............................................................................231
12) The resulting public enmity and rancor towards the Applicant provided the needed causus for
the subsequent search and arrest of LCI Bulgaria offices and property throughout the
Republic of Bulgaria. And provided necessary political will and popular support required
to employ the facilities of NCB Interpol Sofia and resources of Interpol Europe to arrest
the Applicant....................................................................................................................231
13) On 30 November 1995 the Doornbos Letter was included, practically verbatim, to the agency
of NCB Interpol Sofia, Bulgaria and again on 13 December 1995. ...............................231
14) The Doornbos Letter represented the only factually basis for the Applicant’s arrest on 7
February 1996 at Frankfurt International Airport, transit lounge and his later extradition
on 2 September 1996 to the Republic of Bulgaria on warrants of arrest that represented,
in whole, the circumstances, facts and figures of the Doornbos Letter. .........................231
15) The Applicant and his Attorneys become aware of the representation in the Doornbos Letter on
or about March 1999, approximately 3 years and 2 months after the Applicant’s arrest.
..........................................................................................................................................231
16) These warrants, as issued by police investigator Stefcho Georgiev on November 30th 1995 and
February 14th 1996 (post factum of the Applicant’s arrest) formed the basis for the
Applicant’s extradition from Germany............................................................................232
17) The Applicant was accused and charged in the aforestated warrants of arrest as a private
company official having committed separate and unrelated acts of theft that embodied a
number of embezzlements from the accounts of LCI Bulgaria. A separate charge was
brought for another separate theft but of the same funds as alleged in the first
embezzlement charge, only this theft of LCI Bulgaria funds was alleged to have been
effected with fraudulent documents; apparently the Applicant was charged with 10’’s of
thousands of individuals and personal acts of fraud against Bulgarian citizens; and finally
the filing of a false personal income tax statement..........................................................232
18) The aforestated charges and warrants were brought against the Applicant without the benefit of
any judicial supervision of the criminal process against the Applicant and without the
knowledge of the Applicant or his attorneys....................................................................232
19) The Applicant was extradited by Germany to the Republic of Bulgaria to be tried only on the
individual and separate charges qualified in the two separate warrants of arrest. One
issued on November 28th 1995 and the other on new charges as brought on February
12th 1996 after the Republic of Bulgaria became aware of the Applicant’s arrest.........232

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1 Preamble
To bring the present case before the Appeal Court has proven a regrettably
difficult and time consuming for someone not fully comprehending the
practice of the common law. There will come moments during this
monograph where it appears the Speaker is stating the obvious, burdening
the learned Justices of the Appeal Court with unneeded details, and the
foolish of a layman. However, the Applicant concluded he would be better
served to demonstrate by what method, on what facts, and according to
what legislation, he arrived, rightly or wrongly, to the arguments that
follow. Anything less could not possibly serve to adequately convey the
personal difficulties in organising what has proved a complex and difficult
thesis to express.
That the present applications have taken an exceptional amount of time to
prepare and deliver to this Honourable Court is alone sufficient cause for
the court to proceed no further. However, would it be reasonable and fair
to refuse to hear complaints delayed not by the petitioner but by the
afflictive nature of his imprisonment?
This Applicant asks this court's Honourable and learned Justices to closely
examine the painfully long, and frustratingly circuitous, route he was
forced to follow in bringing the present applications. A route fraught with
real, not imaged, risks to him and those who aided him in the Republic of
Bulgaria. The fact that the applications are before the Appeal Court at all
is itself a minor miracle in the greater scheme of suffering found in
Bulgarian prisons. The law suit before the trial court, and the present
applications, represent no mean feat for those individuals involved in
bringing about the reality, as opposed to only the dream, of raising such
complaints before a Canadian court of law.
For the above reasons this Applicant is relying on Canadian justice, and courts
to not demur on the technicalities of time, form, or style when such
complaints are made by a lay litigant who finds himself abroad, deprived
of his liberty and any other chance of a fair hearing of the facts and his
poor arguments, such as they are. The Appeal Court asked to find in this
poor offering the essence of what is right and just.

I.1.1 Parallels in Canadian Case Law


Few parallels can be found in Canadian case law that can be said to be "on all
fours" with the circumstances of the present applications. The particulars
now before the Appeal Court appear unfamiliar and the issues untested.
However, some parallels can be drawn from the Sowa v. Can. (2000), 143
B.C.A.C. 223 (CA); 235 W.A.C. 223 and Gwynne v. Can. (1998), 103
B.C.A.C. 1 (CA); 169 W.A.C. 1], having as applicants prisoners
petitioning the Appeal Court to protect their fundamental rights.

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In Gwynne, supra, the Appeal Court was given valuable insight into the life of
a prisoner in an Alabama prison. The physical and psychological
experiences described in Gwynne supra not all that different from those of
this Applicant. Here, and in the Gwynne the courts are asked by Canadian
citizens to consider their experiences, and treatment in a foreign prison, to
be "weighed in terms of the Charter" [see: Gwynne Supra, Goldie, J.A. at
§30].
In case now at bar, unlike Gwynne, the petition to the Appeal Court originates
from outside of Canada, and a prison internationally recognised as being
far worse than what Gwynne recalled at §62 of his affidavit as a: "….
memory… so terrible that I live in constant fear.", Gwynne asking the
Appeal Court at §63 of his affidavit: "if you have any compassion, not
perhaps for me as a person, but for my wife who has waited for twelve
years hoping for a small ray of sunshine to come into our lives, if you
have any compassion at all, I would ask that you take seriously the
inhumanity of my past treatment…".
In the case at bar parallels to Gwynne are to be found on reviewing the
January 2nd 2001 affidavit No. 1 of Mr. Robert Kap, father of the present
Applicant, filed as evidence before the Duty Master, Mr. Kap saying at §9
of his affidavit that: "…as reported in the daily newspapers in the city of
Sofia, Republic of Bulgaria, my son has been beaten and tortured by
officials of the Defendant, Republic of Bulgaria and I and the Plaintiff's
family exist in a state of constant anxiety and fear for my son who seeks to
exercise his legal rights as a Canadian citizen before a court of law in the
Province of British Columbia".
In Gwynne the Appeal Court had occasion to consider foreign law, and to
consider Canada's international treaty obligations together with Charter
and non-charter issues related to a prisoners fundamental human and civil
rights. Among such rights is a right to a meaningful judicial review of his
complaints. The Appeal Court here is asked to do the much the same as it
did in Gwynne supra, but under somewhat different circumstances and
having other objectives.
The Applicant here is a prisoner attempting to secure for himself, before a
Canadian court, his right to a judicial review and procedural remedies to
aid him in the prosecuting of his claims, and those of his wife, son, mother
and father who are resident in British Columbia.
The Applicant's concerns for his wife and son in British Columbia are best
expressed in the July 1st 2001 affidavit of Mrs. Tracy Coburn Kapoustin,
his wife, at §9 to §12:

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"9. I have and continue to experience deep emotional and physical anxiety over the
personal injury caused my son by the Defendant and am in constant anguish over my
utter helplessness in the past and at the present moment to end or relieve my son’s
sorrow and pain. And the Defendant still persists in acts connected to my son and I in
the province that I do verily believe to be unlawful, abusive, unreasonable, cruel, and
inhuman. Such acts further aggravating and adding to the personal injury, damages
and losses my son and I have already wrongly sustained.

"10. That my persistent emotional trauma and unstable health is as a direct result of
what I do verily believe to be the utterly unreasonable and abusive conduct of the
Defendant and the unlawful and often cruel and inhuman acts that it continues to
inflict on myself and my family.

"11. As a result of the aforestated, I am unable to attend the July 13th 2001 hearing
fixed by the Defendant before this Honorable Court. My son’s need for constant
medical supervision and care takes precedent over the need of the Defendant who
persists in its wrongful and abusive acts and threats against my husband, my son and
I.

"12. That my son and my emotional and physical health as aforestated does further
preclude my personally attending any hearing in the absence of my husband and the
facts and evidence collected by him and that he is able to present to this Honorable
Court. The Plaintiff Nicholas Kapoustin and I are unable to stand-alone and be
subjected to any further defamation, slander and other falsehoods as intentionally
manufactured by the Defendant to deliberately cause us further personal injury and
loss.

The words of this Applicant's wife and father, as those of Gwynne, act only to
amplify to this Honourable Court of Appeal that justice and humanity
remain ideals imperfectly practised in many parts of the world, even in
Canada, and the United States. As it can be seen from Gwynne, despite all
the constitutional protections offered, the ideals of humanity, equality and
justice still fail to be fully practised, even in the two most advanced of
democracies of the free world, what then can be said for the agencies of a
former totalitarian state?
The conditions this Applicant' continues to suffer after 6 years, without benefit
of final sentence, in a prison of the Defendant/Respondent Bulgaria, have
improved, yet still remain far harsher than those considered by the Appeal
Court in Gwynne supra.
The plaintiffs' law suit, the present applications, and the intended appeal, each
prove a test of physical, and mental, stamina of the family of the Applicant
who continue to suffer from the post traumatic stress of the first years of
his beatings and torture as reported in the Bulgarian media. As Canadians,
the plaintiffs seek to lawfully prevail over the defendant Bulgaria's
continued interference with this Applicant, and those fundamental rights
guaranteed to him under international and Canadian law.

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The proceedings before the trial court and the present applications before the
Appeal Court each represent a test. It is the right of the individual to
prevail against historically oppressive agencies of a foreign state
determined to frustrate, or break, the plaintiffs from their pursuit of any
legal remedy under Canadian law.

I.1.2 Relevance of the Cited Gwynne Supra


In the case at Bar the Honourable Justices of the Appeal Court are asked to
apply the same reasoning of the learned Goldie, J.A. to the circumstances
of the present Applicant's incarceration, and the conduct of the present
Respondent(s), as His Lordship applied when writing in Gwynne, supra,
beginning at §24:
"I conclude the standard of review in this court is one at the high end of deference
accorded to tribunals subject to judicial review…[sic]….Canada is a party to a
considerable number of these treaties and its interests are often those of a requesting
state. See: Operation Dismantle Inc. et al. v. Canada et al. , [1985] 1 S.C.R. 441; 59
N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16, at p. 450-454 for a
discussion of analogous problems arising out of the conduct of foreign relations."

And at §29:
"If this matter revealed no other circumstance than service of the unexpired portion
of an admittedly harsh sentence, but one imposed by law, and the allegation of
procedural unfairness on the part of the Minister, I would not be prepared to
conclude he had exercised his discretion in a manner which would permit this court
to interfere on either Charter or non- Charter grounds."

Again at §30:
"But the matter does not stop there. Mr. Gwynne's affidavit of his incarceration in
Alabama (annexed to my colleague's reasons for judgment) and the supporting
materials reveal conditions that were degrading, dangerous and apparently
endemic within the prison system of that state. It is the cumulative effect of the
combination of the harshness of the sentence and the apparent conditions under
which it is to be served, including the prospects of parole which may have been
diminished almost to the point of irrelevance by virtue of his escape, that must be
weighed in terms of the Charter requirements."

[Emphasis Added - Mine]

As in Gwynne, the court here is asked to consider the aggravating affects seen
in the "supporting materials [that] reveal conditions that were degrading,
dangerous and apparently endemic within the prison system” of a foreign
state. The present case concerns those prisons under the control of the
Respondent/Defendant government of Bulgaria, and the "cumulative effect
of the combination of the harshness…and the apparent conditions under
which" the Applicant is placed by the Defendant Bulgaria. The court asked
by the Applicant to closely examine the deleterious affects such conditions
have on the time needed in bringing the present applications, and the
subsequent quality of the actual appeal itself.

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The learned justices are asked to weight the international rights of a Canadian
citizen in a foreign prison, under conditions far more despicable than those
ever seen by Gwynne. Harshness, brutality, indifference and oppression
the hallmark of prisons in the former communist Eastern European
countries, among which the defendant Republic of Bulgaria is counted.
The circumstances of this Speaker, unlike Gwynne, remain in the present
tense, having not yet formed a part of his past.
The Appeal Court is asked to find as it did in Gwynne, that there are sufficient
factual grounds to grant this Applicant the time needed, and leave, to
appeal as it did Mr. Gwynne, and for fundamentally the same reasons as
Gwynne experienced, and feared facing at the hands of the foreign state
Respondent.

I.1.3 Factors Existing In Aggravation of the


Circumstances
While not of primary significance to the present enquiry it is nonetheless
worthy to draw attention to certain facts existing in aggravation of the
Charter rights alleged to be breached by a practice, procedure, and order of
the trial court.
The following factors must impact on what standard of review a Master or
Chambers Judge is to apply on a prisoners' application under the
circumstances as immediately described here, and as set out later in the
following Part 1: Statement of facts.
Among the factors that this Applicant believes must be considered are the
"allegation(s) of procedural unfairness " on the part of the Minister,
Ministry of the Attorney General, and grounded allegations of, inter alia, a
possible malicious prosecution of the Applicant by the Crown.
Not unlike those circumstances to be found in Gwynne supra, the Appeal
Court here is asked, mutatis mutandis, to consider the Charter, and other
constitutional implications, of a decision(s) by the Minister, Ministry of
the Attorney General of Canada (the "Minister").
This court is asked to consider the implications of the Minister making a
written request, and providing data, to the Defendant Bulgaria, for the
arrest, and prosecution, of this Applicant, a Canadian citizen. The July 7th
1995 Crown request leading to the present, and on going, incarceration
abroad of this Applicant/Plaintiff. The Crown is documented as having
criminally indicted this Applicant before a foreign state with a view to his
arrest, and seizure of records and assets, in aid of a criminal investigation
in the province of British Columbia.

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A further factor is extradition. Where the court in Gwynne supra, was
concerned with a decision of the Minister to proceed with extraditing a
Canadian to a foreign state (the United State of American, the state of
Alabama), the case now at Bar raises the alternative question, and
constitutional implications, of the Minister's refusal to extradite, to
Canada, a Canadian Citizen arrested, and prosecuted, on a written, and
sworn, "information" provided by a Crown servant to police, and
prosecution officials, of the Republic of Bulgaria.
From the foregoing factual circumstances arises a further question, the
Minister's refusal to intervene on behalf of a Canadian citizen criminally
indicted by his Ministry, having repeatedly demurred from observing, or
securing, for this Applicant his constitutional, and international law rights
before a court of Canada.
There are applications by this Speaker, and other plaintiffs, to the Attorney
General of the Province of British Columbia concerning his bringing to
trial, in British Columbia, a more than five year old indictment. The
Attorney General of British Columbia repeatedly refusing to do so since
first asked in 1996.
There are applications by this Speaker, and other plaintiffs, to the Attorney
General of Canada, concerning a complaint of allegedly criminal
misconduct by a Crown servant while on duty outside of Canada. The
Minister refusing to reply to the earliest written petitions of the plaintiffs
dating back to 1996, requiring the plaintiffs to bring a civil action against
the alleged Crown servant alleged to have perpetrated crimes against their
person. The civil complaints before the trial court brought in the nature of
a criminal proceeding against a Crown servant, the defendant Derek A.
Doornbos, and others.
Each of the foresaid applications requested a subpoenaing of this Applicant, as
a principal witness and party to the proceedings against the Crown servant,
requiring the Minister to intervene in facilitating a temporary extradition
of this Applicant under custody from Bulgaria to Canada. Such a request,
although procedural possible under the laws of both Canada, and the
Republic of Bulgaria, and in accordance with the principles of
international comity and reciprocity between nations, is an admittedly
unlikely possibility in the absence of the Minister's intervention.
The Appeal Court is not asked by this Applicant "to go into the weight the
Minister is required to give the issues arising under [extradition] treaties
[see, Goldie, J.A. at §24 in the cited Gwynne, supra]. However, the
learned justices are asked to consider the foregoing circumstances in
aggravation of those applications brought here, and the primary point on
appeal.

I.1.4 The Appeal

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The intended appeal turns on the international and national obligations of
democratic governments to secure for their prisoners the fundamental right
to be heard by a civil or criminal court of law. This Applicant raises a
proposition that there exists a constitutional duty of the justices of the trial
courts to secure such rights for prisoners when an enactment, the
government, or the party having legal custody of another party, fails or
refuses to secure for them their rights of access to the courts.

I.1.5 Relevant Law


This Memorandum raises questions, and seek relief under, inter alia,
Canada's Bill or Rights 1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c.
26, s. 105; 1992, c. 1, s. 144(F), the Constitution Act, 1982 (79) enacted as
Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, which came into
force on April 17, 1982, "Canadian Charter of Rights and Freedoms"; the
Canadian Human Rights Act 1976-77, c. 33, s. 1; the Constitutional
Question Act [RSBC 1996] c. 68; the Judicial Review Procedures Act
[RSBC 1996] c. 241; Crown Liability and Proceedings Act R.S., 1985, c.
C-50, s. 1; 1990, c. 8, s. 21.

I.1.6 Interpretation and Factors


The circumstances now before the Appeal Court are exceptional, and
imprisonment, sine die, of any individual Canadian in any foreign penal
institution, removed from his family, home and culture must be, at its very
core, a cruel punishment on those Canadian families touched by such
circumstances.
The constituent elements of the present factors are believed to be sufficient to
ask this Honourable Court to afford as broad an interpretation to the
elements having affected the time needed to submit and prepare the
present applications. The learned justices asked to recognise the inherent
practical difficulties confronting a prisoner required acting on his own
before a civil or criminal court, recalling that confinement, by its very
nature, is limiting for those Canadian's deprived of their liberty.
Application to the court from a foreign prison makes time a principal, if not
predominate, factor affecting any petition, notwithstanding its legal or
factual merits and a petitioner's individual qualities of intelligence, reason
or education.

I.1.7 Reliance on Canadian Justice


The Applicant, as a Canadian, relies not so much on his own poor abilities, but
instead on the historic fact of the fairness of Canada's courts, and the
humanity and compassion of his fellow citizens, the people of Canada.
2 Applicant's Reasoning.

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I.2.1 Objectives
Reason is a most admirable trait and one unique to the human species. It is
found to varying degrees in all individuals, and is based on ones
education, experience and ultimately the very personal barrier of our own
respective intelligence. Among reasonable, educated and intelligent
members of society different concepts can be quickly, clearly, and
efficiently exchanged.
The object of the present applications, and the intended appeal, can be
efficiently, and quickly, disposed of as long as the Applicant's reasoning is
not overly flawed, and conforms in some part to the reasoning found in the
practice of law.
The single objective of the intended appeal is only to secure from the court the
right of a prisoner to have his applications, and arguments, judicially heard
in writing by the trial court.
The Applicant has used what little reason remains to him after 6 years of
imprisonment by the Defendant/Respondent Bulgaria. From the prevailing
international law, and laws of Canada, and Bulgaria, it appears to be
within the legal rights of this Applicant to demand; (1) the possibility to
fully prosecute his civil claims; (2) to have his arguments heard, in writing
if necessary, and to; (3) obtain a judicial ruling that makes its
determination on the merits of the available facts, evidence and arguments.
Reason suggests that there can be no justice if one party, here the defendant
Bulgaria, is allowed to deny another party, here the plaintiff Kapoustin,
and the right to be heard by a court of law. It appears, at least in principle,
to be inherently wrong.
The principles of private law suggest, to this Applicant, that there exists an
incontrovertible right to sue or to be sued. Limitations on such a right
appear in law only in the case of a complaint found to be vexatious,
frivolous or an abuse of the courts processes. Thus, in the absence of such
a finding, the right to prosecute or defend in a law suit appears to be an
unequivocal one.
In the case before the trial court the plaintiffs have produced "documentary
evidence" [see: Interpretation Act c. I-21 R.S., c. I-23, s. 1] in support of
their claims, and rely primarily on such evidence in proving their claims
against a defendant foreign government to not be as frivolous or vexatious
as they might on first blush appear to the trial court.

I.2.2 Rights Relied On.

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Among the guarantees found within the ambit of s. 15(1) of the Charter, and
of significance to the present enquiry, is this Applicant's insistence on his
right, as an indigent person deprived of his liberty, to be allowed some
means to "equally" access Canada's courts of justice. This seems
reasonable as it is a fundament, a priori, requirement of justice for all
parties appearing before a civil or criminal court of law in Canada to be
found equal under law before it. Any limits to be placed on such rights, i.e.
access to a court of law, are to be prescribed only in law, and inherently
subject to a test of reasonableness under s. 1 of the Charter.
The Applicant here believes, and his intended appeal asserts, that his right to
prosecute or defend civil claims, and to have petitions and arguments
reviewed judicially by a court of law, are not subject to limitation solely
on account of his indigence and deprivation of liberty.
It is unreasonable that there can be permitted to exist an order, or enactment,
that makes a distinction as to a person's status, and acts to limit, or deny,
one person, directly or indirectly, a right before a court of law, while
allowing it to another person. Such an order, or enactment, must be as a
principle and practice, an intrinsically wrong one and therefore invalid.
If that foregoing reasoning is grounded in the common law, then a
"constitutional remedy" is available to this Applicant under the
Constitutional Question Act [RSBC 1996] c. 68, s. 8(1).

I.2.3 Prior Petitions


The Applicant's petitions, past and present, have sought only such remedy that
may be seen to be reasonable under the circumstances of a combined
disabilities, indigence and incarceration, as claimed by the party affected.
Any relief thus far sought from the trial court to have the legal affect of
being seen to do justice to all parties and to be applicable in the specific
circumstances.
If reason is to prevail then justice cannot be seen to be done by any judicial
order or legislative enactment that has as its effect to deny the one party
the relief appropriate to their difficult circumstances. The international
community, and Canada, having recognised imprisonment as an
"afflictive” social status.
It is asserted that prison is a difficult and harsh place from which to conduct
ones affairs, much less to prosecute or defend ones civil claims.
3 End of Preamble
If all reasonable enlightened men and women, together with the international
community, know the foregoing to be true, then why did the Duty Master,
and later, on appeal, the Chambers Judge, fail to recognise the truth before
them? Such are the questions the Appeal Court Justices are ultimately
asked to answer, should they find merit to admit these applications.

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II
STATEMENT OF FACTS
Following is a history of the proceedings before the trial court, including
relevant events leading up to the commencement of the law suit and the
present applications before the Appeal Court.
1 Course of the Proceedings

II.1.1The Law Suit


II.1.1.1 Originating the Proceedings
On July 25th 2000, the Speaker together with his wife and son, the
"Plaintiffs", as residents of the province and citizens of Canada, brought a
civil action in the British Columbia Supreme Court ("B.C.S.C.") jointly
and severally against residents of the Republic of Bulgaria Mr. Stephcho
Georgiev, Mr. Mario Stoyanov, Ms. Emilia Mitkova, Ms. Kina Dimitrova,
Ms. Iveta Anadolska, Mr. Dimitar Shackle and the Republic of Bulgaria,
Mr. Muravei Radev in his capacity as Minister of Finance.
Also named as a joint and several defendant in the law suit is a resident and
citizen of Canada, Mr. Derek Doornbos an employee of the R.C.M.P. and
servant of the crown at its Embassy to Austria at Vienna.
All Defendants have received originating documents. In the case of defendant
Doornbos service was affected through the facilities of his employer, the
Government of Canada, R.C.M.P., at Ottawa and its office at the Embassy
of Canada to Austria.
By November 15th 2000 all the Bulgarian defendants cited above were in
default of appearance. As of this application neither the defendant,
Doornbos, nor the Crown as his employer, has filed any appearance in the
above styled cause of action.
II.1.1.2 Applications to the Registrar
On or about November 23rd 2000 the Speaker delivered a number of Rule 17,
Rules of Court, and applications to the SCBC Registrar. The plaintiffs
applied for desk orders entering judgement for an unspecified amount,
jointly and severally, against those defendants found in default of
appearance.
These applications were returned. The SCBC registrar remarked the affidavits
of service and attached documentation was deficient. The Speaker
undertook to address the deficiencies.
On December 7th 2000, the defendant Bulgaria, prepared a defence in the form
of a letter from the Ministry of Justice, Republic of Bulgaria, the deputy
minister Z. Rousseva responding to the plaintiff's statement of claim and
writ.

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On December 9th 2000 the Speaker was served by prisoner administrators of
the Sofia Central Penitentiary the prepared statement of defence of the
Respondent Bulgaria.
On December 29th 2000 the Speaker filed with the trial court [SCBC
Registrar] a copy of the defendant government's (Republic of Bulgaria)
written defence. The statement of defence was discursive, its form and
style not conforming to the court's practice.
The Speaker prepared a Reply and a separate Notice to Admit of facts and
documents in the form required by the Rules of Court and served them on
the Respondent, Ministry of Justice, in the time as fixed by the Rules of
Court.
No response has been forthcoming to the plaintiffs' Reply or their Notice to
Admit.
In January 2001 or thereabouts the Speaker corrected the previous deficiencies
identified by the trial court [SCBC Registrar] in November 2000. Again
the applications for desk orders were submitted. The Speaker, as plaintiff,
requested orders that declared all the Bulgarian defendants in default of
appearance, and seeking judgement for an unspecified amount. The
defendant, Republic of Bulgaria was excluded from the plaintiff’s
petitions, having served a defence to the plaintiffs on December 9th 2000.
As well the Speaker brought other applications before the trial court raising
issues for, inter alia, extending the time for service and response, the
manner of ex juris service, and the question on how the Speaker, an
indigent person deprived of his liberty, is to appear or otherwise be
represented in proprio persona before the trial court. The following orders
were sought:
Desk orders to enter judgement against all the Defendant's in default of appearance, with
the exception of the defendant, the Government of the Republic of Bulgaria and
defendant Doornbos.

An ex parte order extending time, by 90 days, for all parties to affect any acts required
under the Rules of Court.

An ex parte order to require each party of record comply with Rule 13(12)(c), Rules of
Court and the Hague Convention of the Service Abroad of Judicial and Extra Judicial
Documents in Civil or Commercial Matters ("Hague Convention"), at once
respecting and observing the declarations made to the Hague Convention by the
Republic of Bulgaria. This to include officials or agencies of the Respondent
responsible for delivering documents to this Applicant.

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An ex parte order requiring the Respondent have its agencies (1) conduct the Speaker in
custody to any hearing as may be fixed by the Respondent or at any trial before the
SCBC; or (2) to alternatively permit the incarcerated Speaker to communicate
electronically or transmit in writing his pleadings on any applications the court
required be spoken to. This order in particular relied on the inherent jurisdiction of a
court of Canada to guarantee all litigants their s. 15(1) Charter of Rights and
Freedoms, (hereinafter the "Charter") and the procedural relief available from the
Rules of Court as found under Rules 40 and 59, particular attention placed on the
provisions in 40(4), 40(40), 59(3) and 59(4).

An order declaring the Speaker indigent, the court asked to provide him the appropriate
relief from court fees.

On January 21st 2001 the Speaker's applications were again returned by the
trial court [SCBC Registrar]. The Registrar requiring, inter alia, that the
applications made be spoken to before a Master or Chambers Judge by a
legal representative of the Speaker and payment of the $62.00 court fee
per application. This was asked of the Speaker, as petitioner, by the trial
court, although being made clear from the petitions themselves and
affidavits, that the Speaker could not appear and had no funds to pay the
fees.
By February 8th, 2001 only one appearance had been filed with the provincial
court, that of the Respondent.
On February 24th, 2001 the Speaker learned of the Respondent's having
retained its present Vancouver legal counsel and filing an appearance.
No other defendant has since filed an appearance or offered a defence before
the trial court.
For the third time, on or about April 2001, the Speaker again amended and re-
filed his petitions to the trial court [SCBC Registrar], having asked his
father to pay the $62 dollar fee to at least have the Speaker's indigence
application reviewed and judicially ruled upon. All petitions identified the
circumstances of the petitioner’s incarceration and poverty, requesting
under such circumstances that the Duty Master hear the Speaker pleadings
only in writing and ex parte of the Respondent.

II.1.2Decisions of the Duty Master and Chambers


Judge
On April 18th 2001, the Duty Master reviewed all the applications and again
ordered them returned. The learned Master required that all applications be
fixed for a hearing and spoken to by the Speaker or his legal
representative.
On June 5th 2001, relying on s. 24(1) of the Charter and form 61 Rule 53(7),
Rules of Court, and the Speaker then petitioned the trial court for relief
from the Duty Master's order.

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As grounds to the learned Chambers Judge for the relief sought, the Speaker
made reference to his rights as guaranteed under s. 15(1) of the Charter,
the Duty Master's order having the effect, if not intent, of breaching his
fundamental rights.
The argument set out on appeal from the Master may be summarised as an
assertion that the Duty Master's order as made had proved demonstrably,
on application to a person having the status of someone deprived of his
liberty, to "exceptionally" prejudice the rights of the one party, the
plaintiff, more than it would any other person, and solely because of the
plaintiff's distinct status.
The Speaker's assertion to the Chambers Judge was that the Master's
application of Rule 41(16.5(b)) to him or any citizen in a similar situation
[deprivation of liberty and indigence a consequence of a long period of
foreign incarceration] had the affect of being discriminatory. Particularly
in the circumstances where the one party in the proceeding before the trial
court is incarcerated by another party to the same suit at law and that has a
legal interest adverse to that of the incarcerated petitioner.
The Speaker asserted to the Chambers Judge that the Duty Master's order to
the petitioner [appear or hire a lawyer] was unreasonable in that the
Master's order was in the nature of requiring one party, a person deprived
of liberty, to do something that was beyond his or her self-determination to
do and so impossible for them to do. As a result such an order must in
principle be wrong in law as it would be seen to be prejudiced against the
one party suffering an afflictive status [loss of personal liberty and
property].
It was identified to the learned Chambers Judge that the party most affected by
the Master's order, the imprisoned petitioner, was being kept by the
adverse party from complying with the terms fixed in the Duty Master's
order.
This Applicant argued to the Chambers Judge that if defendant Bulgaria
remained unchecked, or the order remained unmodified, the affect would
be the continued prejudicing of not only the petitioner's s. 15(1) Charter
rights but would bring the very outcome of any future trial court
proceeding into question as to its procedural fairness.
On appeal the Speaker insisted to the Chambers Judge that the factors of
incarceration and indigence created a disadvantaged class of person
[citizen] by the very fact of his or her imprisonment. That these factors,
when combined, acted as a very real legal disability and required a special
standard of judicial review and care necessary to procedural fairness, the
Duty Master having had the constitutional duty and jurisdiction to review
and answer all complaints under s. 24(1) of the Charter, an indigent
prisoner only able to speak in writing before the court.

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The petitioner, this Speaker, claimed to the Chamber Judge that his Charter
grievances were within the ambit of s. 15(1). They are real, not imagined,
and the court asked to exercise its procedural possibilities under the Rules
of Court, enactments and international treaties to secure the petitioner's
rights before the trial court as a person deprived of his liberty and property
by a defendant.
For the reasons given above the order wrongly favoured the adverse party
responsible for the afflictive status of the petitioner. The defendant
Bulgaria had caused the afflictive state, and so by refusing this Applicant
access to the trial court it produced the desired, and desirable, affect of
silencing the petitioner.
On June 11th 2001 the learned Chambers Judge, His Lordship E.R.A.
Edwards, returned the appeal of the Speaker, requiring the appeal and all
other petitions be spoken to before the court, either by the Speaker, as
petitioner or his legal representative.
It had been made clear, or should have been clear, to His Lordship Edwards,
J., that this plaintiff had been unsuccessful in having the defendant
Bulgaria's state agencies to agree undertaking to secure his appearance in
custody before the trial court.
It had further been made clear to His Lordship Edwards J., that the petitioner
could not afford an attorney. His Lordship provided no direction to the
petitioner how, or where, he could secure the funds or legal aid necessary
to retain an attorney to represent him, in proprio persona, at a hearing of
his petitions. The court had known, or should have known, that as a rule
and practice legal aid is not available to incarcerated persons in pursuit of
their civil claims.

II.1.3First Hearing - July 13th 2001.


The date of the first hearing before the trial court was fixed by the defendant
Bulgaria's lawyer for July 13th 2001 before a Master; the defendant relied
on the provisions of Rule 65, Rules of Court.
On July 6th 2001 the Speaker enquired with the SCBC Registrar on how he
should proceed under circumstances of the Duty Master's order requiring
he appear or retain an attorney. Would the Master at the July 13th court
session "hear" the Speaker, as plaintiff/respondent, in writing? The
defendant/applicant Bulgaria having refused to conduct the
plaintiff/respondent, this Speaker, in custody to the hearing fixed by its
legal counsel. Neither the court [providing procedural relief], or
alternatively the Respondent [providing escorted conduct] was prepared to
undertake measures to facilitate the Speaker's physical possibilities to
bring his arguments or alternatively himself to the hearing scheduled
before a Master.

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The SCBC Registrar provided no answer to the Speaker except a willingness
to deliver any documents the Speaker cared to file and have set before the
court at the scheduled hearing. The Master would make the determination
of what to do next.
On or about the same time in July the Speaker contacted the defendant
Bulgaria's Ministry of Justice and its legal counsel in Vancouver. The
Speaker advised both the Defendant Bulgaria, and its Vancouver counsel,
of his intention to appeal the decision of His Lordship Edwards J., further
advising of an intention to bring several other applications, and additional
arguments, with new evidence in response to the Rule 13, jurisdiction
simpliciter, and Rule 14, forum non conveniens, motions of the said
defendant fixed for July 13th 2001. In order to do so the Speaker required
additional time from the defendant Bulgaria, having made a written plea to
the newly elected government of the Republic of Bulgaria asking it to
direct the former government's counsel in Vancouver to fix a later date for
the hearing.
The July 13th hearing was adjourned, by consent, to August 24th 2001.

II.1.4Second Hearing - August 24th 2001.


On August 24th 2001 legal counsel for the defendant Bulgaria appeared
before a Master on the said defendant's jurisdiction simpliciter and forum
non conveniens applications. The plaintiffs, including the Speaker, were
unable to obtain legal aid and were not represented. Counsel had fixed the
hearing for approximately 2 hours.
The Speaker (plaintiff/respondent) had previously made his objections to so
short a time known to Vancouver counsel. Having advised him, and the
defendant Bulgaria, that issues of jurisdiction simpliciter and forum non
conveniens turned on more than the points of law raised in the defendant's
Rules 13 and 14 applications. The factual matrix leading to the causes of
action before the trial court was complex and to be examined
quantitatively by the Master if not qualitatively. The Speaker's principal
argument was that the practice found in the common law required the
plaintiffs display all the facts, and documental evidence they relied on,
available case law providing clear precedents to guide the Master on the
standard of review and procedural fairness expected when reviewing
jurisdiction applications.
The Speaker, prior to the hearing date, had posted to the court (4) four bound
volumes consisting of approximately 500 pages each of documentary
evidence of, inter alia, contracts, cash, bank and other transaction with the
Defendant Bulgaria connected to the province and the plaintiffs.

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To establish a nexus to British Columbia the plaintiffs had included in the said
four volumes numerous third party affidavits, together with their
documentary evidence, that provided sufficient, prima facie evidence of a
case fit for trial. It was emphasised to the defendant Bulgaria's Vancouver
counsel that any hearing must require not less than one, and possibly more
than a day.
At the hearing (August 24th 2001) the SCBC Registrar, as promised, placed
before the Master the Speaker's four (4) volume Factum, and appendices
of contracts, affidavits and other evidence.
The Speaker, as Plaintiff/Respondent, faxed a Notice of Motion to the
presiding Master scheduled for the August 24th hearing. The petitions to
the Master may be summarised as the following:
To order the Defendant Bulgaria to agree to conduct in custody the Plaintiff Kapoustin
(the Speaker), as the respondent to its motion, to the hearings. The issue of costs to
be agreed between the parties.

In the alternative to grant leave to a person deprived of his liberty by the


defendant/applicant Bulgaria to have his applications spoken to in writing. The court
so ordering until such time as the defendant government of Bulgaria agrees to allow
an escorted conduct of its prisoner to hearings before the courts of law in Vancouver.

To accept the 4 Volumes of the factum, and the affidavits and other exhibits placed into
evidence by the plaintiff in response to the defendant Bulgaria's simpliciter and
forum non conveniens applications.

To first hear the plaintiffs' cross applications to set aside the defendant Bulgaria's ex juris
service of documents on plaintiffs in Bulgaria. Plaintiffs relying on Rules 13 and 14,
and the Hague Convention as previously cited.

To order joinder of three SCBC Vancouver Registry law suits, C974299, S004040 and
S005440 where the defendant Bulgaria is named as defendant.

To grant leave to the plaintiffs to amend their claims, adding the Ministry of the Attorney
General of British Columbia as a defendant, plaintiffs relying on the Crown Liability
and Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21.

After inspecting the three volumes of the Speaker's materials the Master
adjourned the matter generally and advised counsel for the defendant
Bulgaria to fix a full day to hear its applications.
The Speaker regularly enquires of the defendant Bulgaria and its legal
counsel. Such written enquiry includes a request to the said defendant in
co-operating to fix a date and prepare a joint filing of materials to be
placed before a Master at the next hearing.

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As of the date of this Memorandum no reply has been forth coming from the
defendant Bulgaria or its counsel in Vancouver. The defendant Bulgaria
continues to refuse to reply to the plaintiff’s correspondences. It remains
not only uncooperative but actively obstructive of the Speaker in his
efforts to provide full answer in response to its originating jurisdiction
motion.
The issues raised by the defendant Bulgaria [jurisdiction simpliciter and
jurisdiction forum non conveniens] remain outstanding before the trial
court. These issues are relevant to the intended appeal although not the
subject of it.

II.1.5Present Applications At Bar


This Speaker seeks leave to appeal, an order he believes to be an error in
judgement, and a practice and procedure of the SCBC he believes to be
discriminatory on its application to an indigent person deprived of his or
her liberty as follows.
It is asserted there exits a constitutional question to be answered by the Appeal
Court. The controversy arises over what is alleged to be the discriminatory
affect (as opposed to intent) of a practice and procedure under the Court
Rules Act [RSBC 1996] Chapter 80, Rules of Court (Rule 41(16.5) (a))
acting to unreasonably limit the legal rights of all indigent person deprived
of their liberty solely because they are indigent and deprived of their self-
determination.
The impugned practice and procedure in question places a reverse onus on the
affected party, requiring persons belonging to a distinct group and having
a visible disadvantage, i.e. deprived of their liberty, to secure their own
appearance at any hearing before a Master of Chamber Judge, or
alternatively, although indigent, to secure at their own expense
representation by legal counsel.
Until the affected person meets the courts reverse onus, the impugned practice
and procedure is to deny members of the disadvantaged group their right
under law to prosecute or defend their legal and property interests in a law
suit.
The Master's order must be, as a consequence of the foresaid, is unreasonable,
and therefore the Chambers Judge decision wrong. The order and decision
have the practical effect of limiting a fundament right protected in law
solely because one litigant is incarcerated and indigent.
The discriminatory affect of the impugned practice and procedure is further
aggravated by the Respondent Bulgaria's uncooperative conduct and
observable refusals to respect its international treaty obligations or the
processes of a court of Canada.
2 Facts of the Case

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II.2.1Background
Much of the law suit was prepared and written by the Speaker while in
solitary confinement. The Writ and Statement of Claim, prepared over a
year, were finally filed with the Supreme Court of British Columbia,
Vancouver Registry in July 2000, this in the midst of the Speaker's
criminal trial before the Bulgarian district court.
There are allegations before the trial court on the part of the defendant
Bulgaria of a discursive statement of claim. The Speaker had not denied
such a possibility, having explained his discursiveness the result of
confusion and disorientation immediately arising after his having ended a
solitary confinement that commenced on September of 1996. Alleging in
later affidavits that this long, and uninterrupted, period of physical and
psychological torment had a severe negative impact on all the plaintiffs'
state of mind and health, particularly that of the Speaker.
II.2.1.1 Difficulties in Bringing the Law Suit
The natures of the problems in bringing the case against the defendants to trial
are diverse in character, slowly overcome with the passage of time,
persistence and resilience. Among the many difficulties experienced there
was the plaintiffs need to access records or other documents under the
defendant Bulgaria's control. The plaintiffs written requests to the
defendant Bulgaria for access to evidence under its control are routinely
refused.
It is documented by the plaintiffs that at the time of preparing their statement
of claim the defendant Bulgaria denied this Speaker the possibilities or
alternatively the facilities needed to affect exchanges of information, facts
or the collection of evidential materials necessary to the successful
prosecution of his civil claim against the defendant Bulgaria. It common
knowledge, and a part of the international human rights record of the
defendant Bulgaria, that attempts by prisoners to bring legal action, civil
or criminal, against officials of the defendant Bulgaria, its
instrumentalities or agencies, are usually met in prison with severe
physical and psychological consequences for the prisoner. The experiences
of the Speaker confirm such a practice.
In such circumstances it had been, and remains today, impossible for the
plaintiffs to determine, exactly among other things; the name of an official
ordering a contract with the plaintiffs to be breached; or having approved a
tortious abuse of process; or undertaken a quasi-criminal act against the
plaintiffs person or property.

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A reasonable person, in the absence of the defendant state's cooperation,
simply could not fully realise, or hold, the information necessary to
formulate a claim exactly identifying who, within the government of the
defendant Bulgaria, having ordered or approved, inter alia tortious acts, or
what, inter alia, actual property damages the plaintiffs suffered as a result
of their assets having been unlawfully converted by the defendants.
Other practical difficulties existed, among them the problems of language and
the refusal of the defendant Bulgaria's to allow this Speaker to interact or
come in contact with his interpreters, making independent action
impossible. Such facts are before the trial court, and documented in the
Affidavits of, inter alio, Ms. Marianna Radoulova, Anatol Lukanov,
Robert Kap, Ada Gogova and this Speaker, as having been placed before a
Master of the SCBC on August 24th 2001.
The Speaker had first successfully overcome a part of such obstructions by the
defendant Bulgaria on or about March 2000. This only after the passing of
many of years and with great difficulty.
The facts of the case show that those difficulties mentioned thus far are further
aggravated by a practice of the defendant Bulgaria to forbid detainees or
prisoners any form of telephone contact. This made impossible to consult
other plaintiffs and organise a plan of action.
The Speaker's family was in British Columbia. In the 6 years of the Speaker's
detention he was permitted by the Defendant Bulgaria to converse with his
family in British only on two occasions. First, (1) when the plaintiff
Nicholas, his son, was first diagnosed as diabetic and had fallen into a
coma, and second (2) in 1997 on the occasion in 1997 where, at the
direction of prosecution investigators, the Speaker was required to ask that
his wife pay $300,000 United States dollars to an account of the defendant
Bulgaria if she and their son were interested in having the Speaker
returned to Canada.
During the period in question (Sept. 1996 to August 2001) telephone
communication continued to be absolutely forbidden to the Speaker, and
impossible. Only clandestine attempts in late 1999, through hidden
cellular phones, had provided the Speaker with a means of contact with his
family. Any capture by prison guards resulted in severe punitive, and
administrative, measures taken against the Speaker on a number of
occasions.

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The facts of the case show the Speaker's wife, son and parents, having at all
material times been permanent residents of the province of British
Columbia. For all practical purposes, with the exception of the Speaker, all
other plaintiffs were, and remain, completely isolated from the events in
Bulgaria. Isolation and extreme physical, emotional and financial
consequences suffered in the province by the plaintiffs provided, and
continues to provide, the principal difficulty to bringing the law suit before
the trial court. These factors continue to hamper the plaintiff’s prosecution
of their claims.
Due to the foresaid the plaintiffs have named as defendants in their law suit
those most obviously responsible for, or in control of, the required
information and of the plaintiff’s assets.

II.2.2Cause of Action - Nexus to British Columbia


What is of significance to the present enquiry, and forms the needed nexus to
the province, are the facts of the case that support claims brought before
the trial court that sound in contract and in tort. Such claims framed in
contract and in tort are limited by the plaintiffs only to those having
resulted in damages, and personal injuries, suffered or occurring in or
connected to the province and its residents.
The allegations against, inter alio, the defendant Bulgaria, result from, inter
alia, breach of contract, breach of fiduciary and warranty, unlawful
conversion and enrichment, undue influence, official corruption, abuse of
power, and attempted extortion suffered by residents of the province.
Of further significant to the present enquiry is the fact that nowhere before the
trial court do the plaintiffs seek any award for the personal injuries
suffered by this Speaker during his detention by the defendant Bulgaria.
The facts under the case before the trail court show the plaintiffs as having
made no claim in Canada for injuries suffered outside of Canada by this
Speaker, having left any such allegations to be considered by the European
Court.
Any reliance by either the plaintiffs or the defendant Bulgaria before a trial
court of the province on the criminal proceedings in Bulgaria is
questionable in its relevance. At best the facts of the criminal proceedings
and treatment of the Speaker in a Bulgaria's prison can exist only in
aggravation or mitigation of any petition, say for time, or the need for the
trial court to permit the Speaker to proceed only in writing.
Possibly, and by no means is it assured, the facts of the Speaker's treatment
may act in aggravation to a jury when calculating any award for damages
and personal injuries suffered by the plaintiffs in the province.

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It is the defendant Bulgaria that raises before the trial court what it alleges to
be facts under a criminal proceeding in Bulgaria against the Speaker.
Having claimed such facts relevant to the proceeding before the trial court
in Canada. The assertions made, by the defendant Bulgaria are that the
plaintiffs' claims, particularly those of this Speaker, fall under the
jurisdiction of an international tribunal and not a court of Canada.
The plaintiffs, in a written response to the Defendant Bulgaria, found its
reliance on the criminal proceedings in Bulgaria groundless, although
understandable for the following reasons.
It is a fact, and admittedly a common one found among all detainees, and
sentenced prisoners in Bulgarian penitentiaries, that civil claims made by
persons deprived of their liberty against the defendant Bulgaria, are in
usually in the nature of human and fundamental rights breaches connected
to police and judicial authorities. Primarily for unlawful arrest and
unreasonable detention. As authority the court is referred to European
Court judgements in, inter alia, Lukanov v. Bulgaria, 2-20-1997; Assenov
and Others v. Bulgaria, 10-28-1998; and Nikolova v. Bulgaria, 3-25-1999.
Typically claims against the Defendant Bulgaria are heard, and defended by
the Republic of Bulgaria, before the European Court of Human Rights.
The plaintiffs on contacting the Registrar of the European Court found
there to be, at the time of this Memorandum, hundreds of private claims
against the defendant Bulgaria alleging beatings, drugging, extra-judicial
killings, unreasonable detentions and judicial corruption experienced
during their pre-trial arrest, detention and later institutionalisation.
For the most claims by persons deprived of their liberty by the defendant
Bulgaria are seen by it as "moral" claims only to be brought before the
international tribunal of the European Court. Few, if any such civil claims,
are filed by present or former prisoners before the national courts of the
defendant Bulgaria, the state being immune from moral (non-pecuniary)
damages.
It is without exception that civil claims against an official, agency or
instrumentality of the defendant government are impossible to be
effectively prosecuted in Bulgaria. Foreign or international courts provide
for most Bulgarian citizens the one, and only, venue to escape the corrupt
influence of an accused official, agency of instrumentality of the defendant
government.
The general public and legal profession are of common consensus that in
Bulgaria it is possible to escape from the undue influence that political and
other forces have upon justices of Bulgarian courts of law. International
consensus is that the constitutional Independence of the judiciary has not
as yet proven a sufficient deterrent against the undue influence exerted by
politicians upon Bulgarian state prosecutors and the allegedly
"independent" members of the Bulgarian judiciary.

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II.2.3Claims Framed In Contract.
The plaintiffs have claims, grounded in the province that sound in contract.
Such claims are premised on the commercial activities of Bulgarian state
scientific institutions and commercial companies belonging to the
defendant Bulgaria. The facts of the case, found in the plaintiffs' Factum
before the trial court, identify the particular transactions or contracts relied
on.
The Factum before the trial court documents the defendant Bulgaria as having
done business in, or connected to, the province with the plaintiffs and
others. The documentary evidence before the trial court provides the
required legal and factual nexus to the province necessary to the trial court
asserting its jurisdiction over the defendant Bulgaria.
The facts of the case document the existence of a number of exclusive
contracts and licenses for services and distribution between the plaintiffs
and the defendant Bulgaria. These are concluded in or somehow connected
to the province, some having been reduced to writing. Copies have been
provided to the trial court in the plaintiffs' Factum.
From the documentary evidence it can be identified that the British Columbia
plaintiffs have engaged, and provided financial consideration, in exchange
for commercial and scientific services of the defendant Bulgaria's
institutions, agencies or other instrumentalities belong to it.
II.2.3.1 Commercial Activities
The foresaid commercial activities between the defendant Bulgaria and the
plaintiffs in British Columbia are connected to the pharmaceutical industry
and general trade in services and goods to be provided by Bulgaria to
clients of the plaintiffs in Canada, the United States, and elsewhere.
It can be seen from the proceeding before the trial court that the Defendant
Bulgaria has not contested the truth of the plaintiffs' claim of their initial
relationship with the said defendant plaintiffs to be one readily identifiable
as commercial and contractual in nature.
These transactions, and contracts, are documented in the Plaintiff's four (4)
volume Factum as filed with the trial court.
II.2.3.2 History of Transactions - In Summary
The first of numerous commercial transactions with the defendant Bulgaria
occurred in the province around October 1991. It involved a transfer of
funds and shipments of goods from the province by the plaintiffs to
scientific and commercial institutions in Bulgaria controlled and managed
by the defendant Bulgaria.

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The transactions are documented in evidence placed before the trial court. The
evidence shows, and the defendant Bulgaria has not denied, that there
exists an exchanges of goods, services and money between the plaintiffs
and the defendant Bulgaria. These commercial exchanges in or connected
to the province continued unabated until about July of 1995.
II.2.3.3 Breach of Contract, Fiduciary and Implied Warranty
On the basis of the their transactions with defendant Bulgaria and distribution
or other written contracts, the plaintiffs have sued the defendant Bulgaria
in provincial court, claiming, inter alia, that the Respondent breached
implied as well as written agreements with the plaintiffs; further alleging
that a fiduciary duty and obligation of the defendant Bulgaria arose from
the contracts, Plaintiffs allege a breach of fiduciary by the said defendant.
The transactions connected to the contracts had included certain warranties
from the defendant Bulgaria to the plaintiffs and their customers in or
connected to British Columbia. Such as they were the warranties in
question did nonetheless later prove to be false.

II.2.4Claims Framed In the Tort.


As stated here previously it was In March of 1999 that the Speaker was able to
exercise, even in a rudimentary way, the due diligence necessary to
develop the plaintiffs' cause of action. This is particularly true for those
claims framed in tort by the plaintiffs. The tort actions began to accrue as
of their discoverability in early 2000.
II.2.4.1 Defamation - Slander and Libel
The nexus required for jurisdiction of the provincial court to hear the
plaintiffs' claim as framed in the tort of defamation result from slanderous
words, and libellous letters, together with injurious misrepresentations of
fact made in Bulgaria or elsewhere.
The facts of the case show the offensive words were first spoken on May 15 th
1995 by a servant of the Crown, defendant Derek A. Doornbos,
("Doornbos") diplomatic liaison to Austria, and R.C.M.P. Staff Sgt and are
connected to the performance of his official duties for the Ministry of the
Attorney General of the Province of British Columbia.
The facts of the case before the trial court show that on July 7th 1995 the
actionable words are, in part, reproduced in writing and attributed to the
Government of Canada.
The plaintiffs' claim is actionable in tort against the Crown under the Crown
Proceedings Act [RSBC 1996] c. 89. Admittedly, the plaintiffs failed to
name the Crown, in "Her Majesty the Queen in right of the Province of
British Columbia" as defendant, having instead named the defendant
Doornbos as personally liable as a servant of the Crown.

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It is significant to the present enquiry that as a result of the impugned practice
and procedure, the Speaker, is unable to obtain leave from the trial court to
amend his statement of claim and writ to include the Crown.
Of significance to the law suit before the trial court is the plaintiffs having no
way to know they were defamed until the damages manifested themselves,
and the damages only manifested themselves to the other plaintiffs in the
province when they were finally able to correspond with this Speaker in
Bulgaria.
Only in early 2000 did the Plaintiffs having a first opportunity to exchange
information and to learn of what actual damages each had jointly, or
severely, suffered. In the case of Nicholas Kapoustin, Tatiana Kap and
Tracy Kapoustin the personal injuries suffered were physical as well as
emotional and financial.
The facts of the case show that the plaintiffs presumed that some damage
would flow in the ordinary course of events from the mere invasion of
their rights as a result of the public slander or libel clearly in evidence
around them. However, until the defendant Bulgaria relented in its
isolation of the Speaker from the other plaintiffs (his family) he was
unable to show that the words reproduced in the media or printed in
documents were actionable by alleging and proving special damages in
material or temporal loss suffered jointly or severally in the province by
the plaintiffs, either as pecuniary damages or other damages and capable
of being estimated in money. Something the Speaker could only begin to
do on obtaining a court order in Bulgaria allowing him access to his
interpreter and corporate or other documents under the control of the
defendant Bulgaria.
The specific issues of defamation sound in tort, inter alia, personal injury, loss
of reputation and income damages that apply to claims of mental distress,
permanent physical disabilities, public humiliation and loss of reputation
and opportunity suffered by members of the Speaker's family in the
province when publicly confronted with the malicious and untrue slanders
recklessly spoken or written by a Crown servant in the course of his
duties.
The injury and damages suffered by the plaintiffs are aggravated by the
defendant Bulgaria having publicly repeated and published the slanders or
libels first attributable to a servant of the Crown, having added its own
twist to the actionable words.
The facts of the case before the trial court raise issues of the individual
plaintiffs having suffered psychological, and physical, injuries in the
province. The damages and costs to the plaintiffs having resulted from
their experiencing deep humiliation, public insults and emotional distress.
In the cases of plaintiffs Nicholas, Tatiana and Tracy such suffering proved
so severe as to require them to obtain on going medical care under the
provincial health care plan.

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II.2.4.2 The Element of Slander - Offensive and Untrue Words
Spoken by a Crown Servant
Prior to March 2000 it was unknown to the plaintiffs and not fully understood
by them as to what words were spoken and what had occurred on or about
May 15th 1995 in Sofia, Bulgaria. It appears from the facts of the case that
on that date the Crown had dispatched its servant, the defendant
Doornbos, to meet secretly with officials from the Interior Ministry
(internal secret police) of the defendant Bulgaria in the city of Sofia,
Bulgaria.
What can be evidentially adduced from documentary evidence filed with the
trial court and the written statement of the defendant Bulgaria before the
court, together with the available extracts from press and wire service
reports, is the following.
That in May of 1995 the defendant Doornbos made the first, of what proved to
be a series, of slanderously false assertions to officials, and agencies, of
the defendant Bulgaria.
The offensive words concerned, inter alia, the religious beliefs, moral
character and sexual deviation of the Speaker and the business activities of
the plaintiffs in the province as connected to Bulgaria.
Among the Crown representation made to the defendant Bulgaria are that the
Speaker had been previously convicted in British Columbia on multiple
counts of sexually molesting children.
The Crown further advised the defendant Bulgaria that the plaintiffs’ activities
in Bulgaria were a part of organised crime in the province of British
Columbia, and the proceeds collected in Bulgaria are to be found in banks
of the province known to the Crown.
What is significant to the plaintiffs' claim against the Crown are that the
actionable words were spoken and written as facts, not allegations or
suspicions.
Any untrue, false or injuriously offensive words spoken by a Crown servant,
in private or publicly, in the course of his duties in Bulgaria where he
represents to others as if fact, although knowing it not be true that, inter
alia, the Speaker's involvement and conviction in the sexual molestation
of adolescents, his religious beliefs and Jewish faith, and the criminal
nature of the plaintiffs companies in British Columbia or Bulgaria, prove
to be nothing more than a vicious, deliberately false and calculated verbal
attack by defendants Doornbos and Bulgaria on the plaintiffs who have no
public persona. Such words are actionable against the crown, and there
can be no defence on the part of the Government of Canada or the
defendant Bulgaria of fair comment, qualified privilege or saving
exception under an enactment.

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The words spoken by a Crown servant, the defendant Doornbos, form the
basis for the plaintiffs' allegations against the Government of Canada,
among them slander and libel.
The words of the Government of Canada were publicly exploited by agencies
of the Defendant Bulgaria having widely reproduced the actionable words
in the mass media as early as July 8th of 1995, four months prior to any
criminal complaints being brought against this Speaker.
The most outstanding reproduction and example of the actionable words of
the Crown appear in an August 1st 1996 newspaper interview in
"Continent", and later again on state owned television and radio. The
defendant S. Georgiev, lead prosecution investigator for the defendant
Bulgaria, having clearly and in no uncertain terms credited the offensive
and actionable words to the Crown.
The defendant Bulgaria's liability in tort arises from its collusion with the
Defendant Doornbos, to publicly repeat or have the offensive and untrue
words of defendant Doornbos reproduced to mean, and was understood by
the defendants Bulgaria and Doornbos, including the public at large to
mean, that the Speaker was a cold blooded sexual predator against
children, without any sense of morality, and was a detestable human being.
A further element in defamation proceedings before the trial court is that the
defendants knew their words and later public allegations contained not a
morsel of truth and not a measure of public value. The words spoken by
them could only have been calculated to destroy the reputation of the
plaintiffs, and so ruin their personal and business relationship with their
clients, and foreclosing to the plaintiffs any possibility for their companies
in British Columbia, or elsewhere, to continue pursuing lucrative contracts
that relied on the commercial activities with the defendant Bulgaria, and
the public goodwill and popular image of the plaintiffs companies and the
Speaker.
In one form or another the actionable words representing the slander and libel
are directly attributable to the Government of Canada as publicly repeated
or reproduced by the defendant Bulgaria from July of 1995 to as recently
as October 2001.
The foregoing forms a principal element of the plaintiffs' slander allegations
before the trial court.
II.2.4.3 The Element of Libel - Offensive and Untrue Words Written
by the Government of Canada
Documentary evidence before the trial court provides the first written proof of
the offensive words, alleged as libel, as first appearing in writing on July
7th 1995 in the form of a letter delivered by the Government of Canada to
the defendant government of Bulgaria.

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The defendant Bulgaria refuses to provide the plaintiffs a copy of the original
letter sent by the Embassy of Canada at Austria in July of 1995. What is
available to the trial court is a certified English translation of a copy
obtained from the defendant Bulgaria's criminal proceeding against the
Speaker.
The libel claim turns on the words and their context as set out in the foresaid
July 7th letter. In no uncertain terms the Government of Canada had
provided agencies of the defendant Bulgaria with what it (the Crown)
claims as Canadian police conclusions arrived at in the province of British
Columbia.
The libellous letter specifically identifies this Speaker as a known criminal to
provincial authorities. It leaves no room for doubt on the reader’s part as
to the Speaker's guilt for the criminal acts and associations identified in
the letter by the Crown.
There exists an absolute certainty in the words used and their context as
conclusions of the Crown.
The Crown can be seen to mean, and was understood by agencies of the
defendant Bulgaria to mean, by what was written there, that the plaintiffs'
companies in British Columbia and in Bulgaria are actively engaged in the
commission of crimes on Bulgaria territory.
The crimes are described by the Crown as being committed against Bulgarian
citizens and therefore actionable in Bulgaria.
The libellous letter goes on to say, in no uncertain terms, that the money
proceeds of the crimes committed in Bulgaria by this Speaker are being
deposited to bank accounts in Canada.
The Crown advises the Defendant Bulgaria, in writing, that the Speaker's
criminal activities are fronted in the province, and internationally, by a
pseudo-religious organisation based on the Judaic mystic belief of the
Cabbala. Advising the defendant Bulgaria that the activities of the Speaker
form a part of a larger on going money laundering operation directed from
the province by associates of the plaintiffs.
The libellous words had been clearly written from the Crown to the defendant
government of Bulgaria and leave little doubt as to their character of
accusatory conclusions designed to impute the commission of a criminal
offence(s) in Bulgaria as connected to the province.
The stated purpose written into the letter was to criminally indict the plaintiffs
company, and Speaker, in Bulgaria. The Crown stating, in no uncertain
terms, for the defendant Bulgaria to lay the criminal charges of fraud and
misappropriation having been identified by the Crown.

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The Crown further advised the defendant Bulgaria that on its prosecution of
this Speaker in Bulgaria a court order could be obtained in the province of
British Columbia by the Attorney General of British Columbia to seize the
money proceeds identified in provincial banks. According to the Crown a
significant part of the Speaker's criminal proceeds are to be found in banks
of the province and easily identifiable as the proceeds of crimes
committed in Bulgaria.
The Crown estimated the amount of criminal proceeds to be around
$20,000,000 (million) USD, and could be shared with agencies of the
defendant Bulgaria.
The Crown directed the defendant Bulgaria, in the strongest terms, to have its
agencies undertake every effort to somehow prosecute the Speaker,
depriving him, a Canadian citizen, of his liberty while still in Bulgaria.
The Crown request was made as an indictment formulated in the province of
British Columbia, written at its embassy in Austria and personally
delivered by a Crown servant for execution by agency of a foreign power.
The facts of the case before the trial court show that the aforesaid July 7th
1995 Crown document and the conclusions and requests its words
embody, prove to be the principle reason for the beatings, drugging and
other torment the Speaker suffered under the solitary isolation imposed by
the defendant Bulgaria from September of 1996 to 1999.
II.2.4.4 Reproduction of the Slander and Libel
The facts of the case show that on July 8th 1995, there appeared in newspaper,
television and radio reports the first in a series of egregious and deliberate
assassinations of the character and public image of the plaintiffs' and their
company.
The public statements of officials of the defendant government of Bulgaria
were overt acts designed to be insulting, degrading, and humiliating,
having later proved to be false in every particular.
The law suit alleges that the offensive, and insulting publications and
television reports appearing through out the period of July 1995 to April
2001 were malicious in the extreme, having falsely suggested that the
Speaker, the plaintiffs and their companies’ activities were a public
menace and danger.
The libellous publications, and television reports, all relied on the oral and
written representations of the Crown, and the agencies of the Defendant
Bulgaria, and calculated to damage the family of the Speaker, causing
them jointly and severally to suffer personal injury and physical harm in
the province as a result of their anguish and emotional trauma, at
becoming the subject of public ridicule in the British Columbia where the
family resided, and in Bulgaria where the family had their investments and
assets. What appeared before the public went unexplained by any
evidence.

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Each defendant named in the law suit shared a collective purpose, to engender
hatred and contempt of the plaintiffs and to invite others to join in doing
the plaintiffs’ personal harm. The overt actions and words of the Crown
and defendants Doornbos and Bulgaria, having nothing to do with the
attainment of truth and the common good.
II.2.4.5 Intent and Malice - "Mens Rea"
The plaintiffs claim that the facts of the case establish the presence of "Mens
Rea", this providing a significant factor in aggravation of the damages
claimed, the defendants each having prior knowledge that the words
spoken, and later written, first by defendant Doornbos and later repeated
or reproduced by the defendant Bulgaria, were in every way false, and
intended only to promote with certainty a public hatred of the plaintiffs.
Injuring the plaintiffs’ reputation, and exposing them, particularly the
Speaker, to further contempt and public ridicule and insult.

II.2.5Malicious Prosecution
The facts of the case strongly suggest to the plaintiffs that the intended
purpose of the Crown's July 7th 1995 letter and its unverified or untrue
representations to the defendant Bulgaria and the public are formulated not
to display the truth but only to provide a cause to initiate criminal
proceedings against the Speaker in Bulgaria.
It was the Crown that acted in May and July of 1995 to initiate criminal
proceeding against the Speaker in Bulgaria. The July letter of the Crown
acted as an incitement to the defendant Bulgaria's interior police to seek
the indictment and prosecution of a Canadian citizen in Bulgaria.
The facts of the case prove the Crown letter to be directly responsible for the
July 17th 1995 order of the defendant Bulgaria's interior police to the
national police and prosecutor, to deprive a Canadian citizen of his liberty.
The National Investigative Service (national police) acted only on the
Crown request.
Neither the Crown nor the defendant Bulgaria engaged any judicial
supervision or other due process of law before a court of competent
jurisdiction.
The Crown deliberately, recklessly or negligently failed to adhere to Canadian
law in engaging itself in the bringing of criminal charges against a
Canadian citizen in Bulgaria on what was known, or should have been
known, at the time to servants of the Crown to be untrue and maliciously
false representations.
The facts of the case show that the Crown failed to observe or otherwise be
bound by its constitutional guarantees to a person accused of a crime (this
Speaker) by Canadian authorities.

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The Crown violating the Charter guarantees of the Speaker when having its
servant, the defendant Doornbos, travel to Sofia, Bulgaria in May 1995,
July 1995, December 1995, August 1996, December 1996 and finally in
December 1998 where a Crown servant swore out, in the Bulgaria
language, an information against the Speaker, having delivered with it
documents, and dated, collected by the Attorney General of the Province
of British Columbia in the province.
The foresaid forms the factual background for plaintiffs to bring a motion
before the trial court to incorporate an allegation of malicious prosecution
against the Crown, amending their claims that sound in tort to include,
inter alia, a deliberate, reckless or negligent failure of the Crown to adhere
to Canadian and international law, causing the plaintiffs to suffer damages
in the province resulting from personal injury, including mental distress
and physical anxiety. The Crown intentionally seeking to damage the
plaintiffs’ reputation, and ability to earn an income in the province or
connected to Bulgaria.

II.2.6Nature of Claim Framed In Tort of


Conversion and Unjust Enrichment.
The facts of the case show that the defendant Bulgaria has in its possession the
plaintiffs tangible and intangible assets located on the territory of Bulgaria.
The plaintiffs determined to sue the defendant Bulgaria, jointly and severally
with the other Bulgarian defendants named for, inter alia, conversion of
their tangible and intangible property
However, in the absence of the defendant government's cooperation, or the
availability of access to the process of the trial court in aid of discovery, it
is impossible for the plaintiffs to determine the exact degree of positive
and intentional acts of interference by the other defendants with the
plaintiffs' legal rights in international law to possession of their goods,
equipment, and intellectual or license rights connected to the defendant
Bulgaria.
The facts of the case before the trial court provide documentary evidence of
judicial officers and political officials, among other employees of the
defendant Bulgaria agencies or institutions, taking the steps to
unconscionably and unjustly enrich themselves or those connected to them
with the proceeds from assets of the plaintiffs or the asset itself.
The specific issues of such a claim are, inter alia, ones of physical property
loss and business interruption damages that apply to the commercial
relationship between the parties in or connected to the province, sounding
in tort.

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In the absence of the trial courts assistance, the plaintiffs are unable to
determine the extent of the unjust enrichment, wrongful taking, using, or
destroying of goods or equipment belonging to the plaintiffs or the
exercise of dominion over such goods or equipment of the plaintiffs by
appointed representatives or officials or agencies of the defendant
government Bulgaria and inconsistent with the title or interests of the
plaintiffs as the owners.

II.2.7Nature of Claim Framed In Tort of


Misrepresentation and Undue Influence.
Plaintiffs as well provide facts before the trial court they allege prove
misrepresentation, undue influence, and unconscionability, claiming that
the defendant Bulgaria had a duty of care to the plaintiffs and their
customers to be responsive to abuses of vulnerable people in transactions
with the officials of the defendant government's institutions, agencies or
instrumentalities.
The facts outlined before the trial court show that during the course of
plaintiffs commercial relationship with the defendant Bulgaria, its officials
had made material misrepresentations and untrue warranties to the
plaintiffs, and their clients in or connected to the province.
On the defendant Bulgaria being confronted by the alleged misrepresentation
or untrue warranty, its' officials used their position to exert undue
influence over others under their control and so influence or order the
termination of contracts and agreements, having no reasonable cause to do
so, breaching all the defendant Bulgaria's agreements with, or obligations
to, the plaintiffs and their clients.

II.2.8Facts in Aggravation of Those Claims Framed


In Tort
II.2.8.1 Complaints to the Government of Canada
In affidavits before the trial court members of the Speaker's family allege that
throughout the period of the Speaker's 6 years of incarceration they have
repeatedly and bitterly complained to the Government of Canada officials
that agents of the defendant Bulgaria having breached Canadian criminal
law in or connected to British Columbia.
Family members allege agents of the defendant Bulgaria made repeated
attempts to extort money from family and friends in Canada, either by
telephone or through intermediaries visiting Canada.

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The money sought from the plaintiffs in the province was in exchange for
ending the physical and psychological torment of the Speaker. The
defendant Bulgaria's police, and prosecution officials, promising the
Speaker's safe treatment while in detention, and even possible release on
the payment of substantial sums of money.
The plaintiffs in British Columbia became deeply distressed and anxious
about the Speaker's safety, this caused severe mental, even physical
torment to each plaintiff having to endure such attempts at extortion,
knowing they could not pay the defendant Bulgaria's agents the amounts
of money necessary to end, what they knew to be the cruel treatment of
the Speaker.
The plaintiffs claim to have maintained a record of each such complaint,
including diary entries, dozens of letters and press statements that suggest
the beating, and drugging, of the Speaker during his solitary confinement
in Bulgaria.
This Speaker first complained of his drugging in a small note smuggled to a
consular officer, one Jamie Bell, in August of 1997, having publicly
complained of his beatings to Canadian authorities and the press only after
his solitary confinement was ended. The plaintiffs claim the Crown failed
to take concrete steps.
That plaintiffs allege, as facts in aggravation of the damages they seek, that
the beatings and drugging the Speaker endured had a sinister purpose
connected to the May and July 1995 demands of the Crown for
information on money allegedly in British Columbia banks.
During the Speaker's beating, and other interrogations, it became apparent to
him that there was an ongoing criminal investigation in British Columbia
connected to the Bulgarian prosecution and investigation. These were
things that at the time the Speaker knew nothing about and were
impossible for him to connect.
Only later did it become apparent to the Speaker that he was being repeatedly
beaten, deprived of sleep, and apparently drugged, in an effort to force him
to disclose the whereabouts of this money required by the Crown in
British Columbia.
On or about August 1998 the beatings and other cruel punishment suffered by
the Speaker abruptly ended.
Facts of the case before the trial court show the physical violence, and mental
torment, as having ended only a short time after the defendant Bulgaria
received a fax from Crown servant, the defendant Doornbos, advising that
the Crown would close its 1995 criminal investigation in the province. The
cause given was the defendant Bulgaria's failure in providing the data first
sought after by the Crown in May and July of 1995.
II.2.8.2 Criminal and Quasi-Criminal Extortion

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The foresaid forms the basis of allegations in the case before the trial court
that officials of the defendant Bulgaria had unlawfully and repeatedly
attempted to extort money from the plaintiffs in the province with threats
of violence against the Speaker in Bulgaria. The specific issues of these
claims are brought by the plaintiffs in the nature of a quasi-criminal
proceeding against the individual Bulgaria defendants named.
The claims so formed are in aggravation of those other claims that sound in
tort and the fact that the governments of Canada and the defendant
Bulgaria had not apologised and continue, in their silence, to reaffirm the
defamation and criminal misconduct of police and prosecutors in
performance of their duties.
II.2.8.3 Respondent's Reliance on its Criminal Prosecution of
Speaker.
The Speaker considers now, as he did in his written pleadings before the trial
court, that the facts surrounding his arrest and the related charges are
immaterial to the proceedings in Canada except as they might aggravate or
alternatively mitigate any damages the plaintiffs suffered in British
Columbia.
It is nonetheless worthwhile to briefly comment on the history of Speaker's
prosecution, arrest and treatment by the Respondent, only in so far as the
defendant Bulgaria, in its written pleadings, has undertaken to make these
facts material to the present proceedings before the trial court and relies on
them to support its argument of immunity.
On February 28th 2001 a Ms. Maya Dobreva, Minister Plenipotentiary and
Consul ("Dobreva") for the Respondent's embassy in Canada, in sworn
written testimony, introduced to the trial court facts of the Defendant
Bulgaria's criminal prosecution of the Speaker.
The foresaid information was allegedly provided to Dobreva by a third party,
a Mr. Dimitar Tonchev, the then Deputy Minister of Justice, Republic of
Bulgaria.
The statement of Dobreva appears to rely on the defendant Bulgaria's
sovereign right to criminally prosecute whom it likes, and relies on the
existence of its criminal prosecution of the Speaker as adequate cause to
invoke its state immunity and deny jurisdiction to a court of Canada.
In her affidavit Ms. Dobreva traversed such immaterial averment as the nature
of the criminal charges brought by the state of Bulgaria against the
Speaker in 1995, and the participation of the Crown in the prosecution,
location and arrest of the Speaker. This has been detailed above.
Ms. Dobreva failed to provide any factual particulars as to what information
or assistance was provided by the Crown to the defendant Bulgaria.

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It appears to this Speaker that the controversy raised by Ms. Dobreva over the
jurisdiction of a court of Canada is a moot issue if, as Dobreva asserts, the
Crown jointly conducted investigative actions in and outside of Canada
with the defendant Bulgaria.
According to the said Dobreva, both governments participated in the
prosecution and arrest of this Speaker, having done so on information, and
charges, originating from the Crown in British Columbia.
The fact of the Crown having participated in the indictment, arrest and
extradition of the plaintiff (Kapoustin) are alone sufficient to bring a part
of the plaintiffs' claims within the jurisdiction of a trial court of the
province, and to make the defendant Bulgaria a legitimate party to any
proceeding before a trial court of the province, notwithstanding its
sovereign immunity.
If this Speaker understands the common law, and the principles of
international comity, it is not for this Honourable Court to make any
judgement on the criminal charges raised in the Dobreva statement for the
defendant Bulgaria.
II.2.8.4 What, If Any, Relevance to the Trial Court Surrounding the
Criminal Proceedings
A review of the Respondent government's charges and sentence under the
criminal law, "lex loci delicti", of Bulgaria are made relevant to the present
facts of the case before the trial court only insofar as the character of the
accusations and nature of the sentence may affect the processes of a trial
court of Canada, and the individual rights of a party under the law of the
"lex fori".
Of particular significance to the enquiry here are the facts of the case that
document the defendant Bulgaria obstructing the Speaker's access to a trial
court of the province in pursuit of his claims.
The Speaker is asserting that neither the character of criminal charges, or
nature of any sentence under the "lex loci delicti" of Bulgaria do not, and
cannot, permit the defendant government's agencies to hinder, or otherwise
limit the fundamental civil rights of a person deprived of liberty when
acting under the "lex fori" of a trial court in Canada.
In the alternative, the Defendant Bulgaria having wrongly claimed before the
trial court that persons deprived of their liberty are also deprived of other
fundament civil rights, i.e. to appear before a civil court to prosecute or
defend their legitimate interests and property rights against the defendant
Bulgaria. The court is asked to refer to the May 9th 2001 letter of the
defendant Bulgaria [see Vol 1, Tab. No. 9 of the Plaintiffs Factum].

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A principal of law relied on by the plaintiff before the trial court holds that a
person whose liberty has been deprived continues to retain his or her civil
rights as naturally flow from principles found in international law binding
on both the "lex loci delicti" of the defendant Bulgaria, and the "lex fori"
of the provincial trial court. International law recognising as equal to other
citizens the legal rights of a prisoner to access a civil proceeding before
any court of a member state, Canada included.
The course of the proceedings before the trial court show the Speaker as only
asserting his fundamental civil right of access to this, or any, court's
processes and jurisdiction. That such right cannot be limited by the
defendant Bulgaria, its officials, agencies or instrumentalities, since no
such limitation is prescribed in the law of the "lex loci delicti" of Bulgaria.
If any such limitation on the rights of the Speaker, or other persons deprived
of liberty were to exist as national law, such law would be in conflict with
the accepted principles and obligations of international conventions and
therefore invalid.
Having said the above, then how can the events of the criminal proceedings
relevant to the defendant Bulgaria limiting the Speaker's other civil rights?
They cannot.
The attempts by the defendant Bulgaria to justify the restrictions it has placed
on the Speaker are doomed to fail before any court of law in Canada or
any international tribunal.
II.2.8.5 What Are the Facts of the Criminal Case The Defendant
Bulgaria Relies On?
The Speaker, at the risk of being redundant, believes it for the sake of clarity
to be worth repeating the facts of the criminal proceedings initiated by the
Republic of Bulgaria against the Speaker in the context of the civil
proceedings initiated by the plaintiffs in Canada. What follows are fact
confirmed by the defendant Bulgaria absent of the following details.
On July 7th 1995 Government of Canada, in a letter to the Respondent,
provided it with R.C.M.P. conclusions, including a statement of facts
allegedly collected in British Columbia, of what the R.C.M.P. concluded
was the Speaker's criminal activities in Canada and in Bulgaria. The letter
goes on to identified to the Respondent that the R.C.M.P. had concluded
that the activities of the Speaker and his "LifeChoice" companies are an
international criminal organisation operating in Canada and Europe. The
R.C.M.P. concluded that Speaker's activities were criminally qualified
under Canadian law as a major fraud and money laundering businesses
operating in British Columbia and elsewhere.

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The foresaid letter made conclusions of a connection between criminal
activities in British Columbia to the Speaker's activities and company in
Bulgaria. The Government of Canada requests the defendant, the
Government of Bulgaria, to prosecute the Speaker and his company on the
evidence and conclusions provided in the letter, on doing so to then
forward any operative information to the Attorney General of British
Columbia.
On July 8th 1995, defendant government of Bulgaria officials use the facilities
of state owned, or controlled, mass media agencies to publicly distribute
the oral, and written, R.C.M.P. conclusions and information on this
Speaker's allegedly criminal activities, his charges and his convictions in
British Columbia. None of the defendant Bulgaria's public statements and
distribution of the information originating from the Crown proved to be
true.
On July 17th 1995, as a direct result of the conclusions and request provided
by the Crown, the defendant Bulgaria instructed its agencies to take legal
action against the Speaker, his company and any companies or persons
associated to him. The defendant Bulgaria agreed to act on the Crown
request to criminally prosecute the Speaker, having ordered the Main
Public Prosecutor of the Republic of Bulgaria to bring charges and arrest
the Speaker.
The defendant Bulgaria also proceeded to order its scientific and commercial
enterprises to terminate all joint commercial activities and contracts with
the plaintiffs connected to the Speaker.
Commencing on or about July 1995 the Defendant Bulgaria ordered its tax,
customs and police agencies, to seize all the plaintiffs’ assets, tangible and
intangible, and documents in Bulgaria. The said agencies having placed
the plaintiffs’ property under the control of private parties appointed by it.
On October 26th 1995 the defendant Bulgaria had its national police services,
know as the "National Investigative Service" ("NIS"), seizes the remainder
of the plaintiffs’ assets and records in Bulgaria. The Defendant having
charged the Applicant of the crime of embezzlement through a "pyramidal
fraud", and relying solely on the previously mentioned the July 1995
representations of the Crown.
II.2.8.6 Speaker's Arrest and Extradition
On November 22 1995 the defendant Bulgaria agency, the National
Investigative Service (NIS), ordered police investigator, the defendant S.
Georgiev, to issue the international warrant for the Speaker. Defendant
Georgiev relied on the exact words found in the July 1995 Crown request
to indict the Speaker.

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Here significance must be attached to the fact that there is no participation
whatsoever by any judge or court in the preparation or authorisation or
issuance of a warrant for arrest. Up to very late in 2000 decisions on
matters of habeas corpus having been within the exclusive ambit of police
and prosecution officials who formulated the charge, issued warrant,
affected the arrest and prosecuted the case in the absence of judicial
supervision or review. This practice and procedure was later legislatively
amended in 1998, and again in 2000, after a number of European Court
(EC) of Human Rights judgements against Bulgaria, beginning with the
seminal case of Assenov and Others v. Bulgaria, Judgement of 28 October
1998 Reports of Judgements and Decisions 1998, [see among others:
Nikolova v. Bulgaria Judgement of 25 March 1999, Reports of Judgement
and Decisions 1999].
The Speaker's first judicial review of his arrest did not occur until more than
two years and two months after his arrest. Furthermore, there existed at the
time of the Speaker's arrest no procedure for appellate court review of a
detention order issued by the prosecutor or a district court judge.
The charge brought by Bulgarian police (NIS) in November of 1995 was an
alleged embezzlement by the Speaker as an "official" (director) employed
by the Speaker's company in Bulgaria.
The court will recall it was a servant of the Crown, Defendant Doornbos,
having contacted the defendant Bulgaria in May and July of 1995, and
wrongly accusing the plaintiffs' companies as part of an international
criminal organisation operating out of Canada.
It was known at the time of the Crown's indictment of the plaintiff Kapoustin,
that its charges were legally and factual unsupportable, in point of law or
fact completely groundless.
The seminal case on this particularly question of fact, an alleged
misappropriation, and law, a collective decision by a management body,
was reviewed by the EC of Human Right in Lukanov v. Bulgaria,
judgement of March 20 1997, Reports of Judgements and Decisions 1997-
II. There the court found against the Respondent Bulgaria for bringing
accusations of embezzlement against one official for what had been a
collective decision approved by all responsible officials, none of whom
had independently lodged any complaint. In the cited EC judgement the
transaction involved public funds, in the Speaker's circumstances the
transaction involved private funds the patrimony of which, by the
defendant Bulgaria's own admission, must devolve to the plaintiffs'
company in British Columbia by way of their 100% ownership of the
Bulgarian company's shares.
On February 6th 1996, the Speaker was arrested by German police while in
transit to Greece at Frankfurt International Airport on the very same data
as provided by Crown having been embodied in the defendant Bulgaria's
international police warrant.

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According to the sworn statement of Ms. Dobreva before the trial court in this
proceeding, the Speaker's location, and arrest, are possible only thanks to
the assistance provided by the Crown and an agency of the Government of
Canada.
On February 12th 1996, while detained by German police, the defendant
Bulgaria raised new charges against the Speaker of misappropriation of his
company's funds by documentary fraud, general fraud, and income tax
evasion.
On or about August 1st 1996 the Speaker, was hospitalised at the order of
prison medical staff in Germany and placed on intravenous feeding.
On September 2nd 1996, at the order of the German federal prosecutor, prison
medical staff removed the Speaker's intravenous feeding. German police
officers arrived at the prison and carried the Speaker, unconscious, to an
awaiting vehicle.
After a medical examination at Frankfurt international airport the Speaker was
taken by airport ambulance, then physically carried to an awaiting
Bulgarian Balkan Airlines aircraft. On arrival in Sofia, Bulgaria, the
Speaker was hospitalised by the defendant Bulgaria for an additional 16
days.
On September 18th 1996 the Speaker was relocated by the defendant Bulgaria
to a solitary confinement facility at a police detention facility in Sofia,
Bulgaria, he remained there alone. The cell was unventilated, having no
natural light. What was available was a 60 Watt yellow incandescent bulb.
The Speaker experiencing his first beatings here.
On or about the end of October, early November, the Speaker was again
relocated to another facility where he was isolated. His cell there differed
little from that of the previous facility except for toilet facilities and some
natural light. The beatings continued, and the Speaker reported to
Canadian authorities having been drugged on more than one occasion. He
remained in isolation here for an additional period of two (2) years.
The average maximum detention in such facilities is typically six (6) months.
The Speaker continues to hold the defendant's record for the longest
period in solitary confinement at a police arrest facility since 1991.
On September 7th 1998 the Speaker was moved by the defendant Bulgaria to
solitary confinement facilities located at the Sofia Penitentiary where he
remained an additional 6 months with intermittent stays at the prisons
infirmary.
This Speaker remains remanded at the Sofia Central Penitentiary awaiting a
final verdict.
II.2.8.7 Speaker's Arraignment and Trial
II.2.8.7.1 The Indictment

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On December 10th 1998 the defendant Bulgaria brought final charges, having
entered an indictment for an embezzlement aided by a fraud.
It was alleged by the defendant Bulgaria that the Speaker had misappropriated
funds he had first defrauded from 4831 individuals. The alleged subject of
the indicted crime, embezzlement, was the same subject of the preceding
crime, the fraud, it being alleged that to get the funds to be embezzled later
the Speaker had to first defraud others of the funds. Needless to say the
Speaker and his attorneys at the time were completely confused by the
indictments legal construction.
The Speaker argued estoppel, contending that since the subject of the alleged
two misappropriations was one and the same property, the act
misappropriation by embezzlement could not be linked to the preceding
act of misappropriation by fraud.
II.2.8.7.2 The Trial and Conviction
On April 16th 1999, three (3) years and three (3) months after his arrest, the
Speaker was arraigned for the first time before a justice of the Sofia City
Court.
The district court allowed bring new elements in the indictment different from
those brought at the time the Speaker was arrested on February 7th 1996
and for which Germany later extradited the Speaker on September 2nd
1996.
A repeated defence thesis during the Speaker's arraignment was that an
alteration of the extradition elements of the charge violated international
law -the European Convention on Extradition - in the absence of the
extraditing state - German - consent.
On January 14th 2000, the defendant Bulgaria withdrew the April 16th 1999
indictment and original accusations against the Speaker, raising instead a
new charge, having different circumstantial and factual elements but the
same criminal code qualification, the presiding judge allowing the new
charges.
On March 13th 2001 the Sofia City Court convicted the Speaker of
embezzlement of his company’s funds and sentenced him to 23 years of
hard time. The maximum sentence for embezzlement is 30 years. The only
victim of the crime identified by prosecution and the convicting court was
the plaintiffs' wholly owned subsidiary company, "LifeChoice"
incorporated by the plaintiffs and the Speaker in Bulgaria.
II.2.8.7.3 The Acquittal
On August 2nd 2001, on appeal, the Speaker was acquitted of the charge of
embezzlement, the appellate court ruling that the first court had erred in
law and in fact when allowing the new charges and elements of
embezzlement as brought on January 14th 2000.

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The Appeal court re-qualified the factual elements as having the character of a
general fraud and convicted the Speaker, sentencing him to 9 years. The
maximum sentence for fraud is 10 years.
II.2.8.7.4 Supreme Court of Bulgaria - Protest and Appeal
On August 20th 2001 the defendant Bulgaria ordered its prosecutor to protest
to the Supreme Court of the Republic of Bulgaria that the appellate court
had erred in law and fact when acquitting the Speaker. The defendant
Bulgaria seeking the Supreme Court of Bulgaria to declare the acquittal
invalid, setting aside the appellate decision and returning the Speaker for a
new trial before the first or second instance courts.
On August 22nd 2001 the Speaker appealed his innocence, and the appeal
court having in part erred in law when, inter alia failing to observe
applicable principles of international law on bringing new elements to a
charge of fraud different from those for which the Speaker had been
extradited. Having also erred in fact when finding, inter alia, that the
Speaker had personally affected, at different times and places, each of the
alleged misrepresentations, through intermediaries, and thereby having
alone defrauded more than 2,500 individuals.
As of October 7, 2001 six (6) years and five (5) months have passed since the
defendant Bulgaria acted on the July 7th 1995 request of the Crown to
prosecute the Speaker, its criminal investigation. Five (5) years and nine
(9) months have passes since the Speaker's arrest.
As of the moment of this memorandum there is no final verdict or
determination on what charges the Speaker will ultimately be sentenced
on, or retried, by the defendant Bulgaria. Such an indeterminate judicial
state of an accused is consistent with the practice of the defendant
Bulgaria.
3 Practices of the Defendant Bulgaria Existing In Aggravation of the Claims

II.3.1Conditions in the Republic of Bulgaria


II.3.1.1 1996
As the Court may recall the Speaker began his detention in Bulgaria on 2nd
September 1996.
The conditions in Bulgaria and the treatment the Speaker could expect and did
later encounter were set out in 1996 by USAID [see:
www.usaid.gov/countries/bg/bulseed.htm] it reported:
"The Government generally respects basic human freedoms, but serious human
rights problems remain. Police are not sufficiently accountable for abuses, including
the beating and practices."

In that same year Amnesty International reported [see: AI Index: EUR


15/07/96 DISTR:SC/CO/GR]:

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"Human rights violations persisted in Bulgaria: they include shootings, torture,
beating and all forms of ill-treatment of detainees, sometimes resulting in death. The
rising number and regional distribution of the reported cases indicate that they are
numerous and widespread. Daily accounts of such incidents reveal a pattern of casual
violence and illegal acts by police officers throughout the country.

"The official statistics on shootings, deaths in custody and complaints of ill treatment
are not made public."

The experiences of this Speaker during his solitary confinement at the hands
of the defendant Bulgaria went unreported. His complaints and attempts at
communicating such complaints severely punished. The AI (Amnesty
International) Report for 1996 goes on to say "Lawyers, non-government
organisations monitoring human rights in Bulgaria as well we press
frequently report incidents of torture and ill-treatment." And:
"The deteriorating human rights situation is further compounded by a pattern of
impunity of law enforcement officers responsible for human rights violations.
International standards require prompt, thorough and impartial investigations into
reports of human rights violations by law enforcement officers. However, the
information on such investigations is seldom made public…..Failure to bring to
justice those responsible for human rights violations is in itself a violation of
international obligations. Furthermore in order to prevent such human rights
violations from reoccurring, the Bulgarian authorities need to clearly indicate that
such conduct is totally unacceptable."

Persistent violations of fundamental civil rights or obligations and corruption


are systemic, and occurred regularly in the context of continued social and
economic difficulties. Inadequate legislative reforms by successive
governments of Bulgaria left intact corrupt state institutions and an
atmosphere of lawlessness heightened by the numerous reports of the
illicit financial gains of former government nomenklatura, some of whom
were and are still active politicians.
This Honourable Court is asked to recall a significant and outstanding incident
involving the 1995 to 1998 co-operation of a Crown servant and
diplomatic agent of Canada [see: above references to defendant Derek
Doornbos] with the Regional Department of Internal Affairs Unit for
Combating Organised Crime [the above referenced Ministry of Interior -
secret services police]. In the 1996 AI wrote:
"In January 1994 a series of gangland killings culminated in an incident in the Beli
Brezi in Sofia in which riot police, reportedly trailing an underground suspect, shot
dead two anti-terror officers by mistake. The killed officers were allegedly guarding
a meeting between government officials and members of the criminal underworld. In
January 1996 [one month prior to the Speakers arrest] two police officers
responsible for the killing were brought to trial, in which the hearings were held in
camera. Their superior officer at the time, Captain Khristo Savov, later chief of the
Regional Department of Internal Affairs Unit for Combating Organised Crime,
and another police officer were arrested on 26 February 1996 in Sofia on
charges of racketeering….The Ministry of Interior then reportedly initiated an
inquiry into possible links between police and the criminal underworld but there was
no information as to whether it was completed and if so with what results."

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[Emphasis and [ ] Added - Mine]

The significance of the foresaid data to the proceedings before the trial court
can be found in the exchanges of data and requests that occurred during
operative calls and meetings of Ministry of Interior agents with Crown
servants.
Faxes were exchanged and reports made by the Crown to agents of the
Ministry of Interior, including the foresaid Captain Savov, and his
associates, in May of 1995. The Crown inevitably assisting them in their
efforts to cause pecuniary and non-pecuniary injury to the plaintiffs, as
well as to extort funds all or part of the funds identified by the Crown to
Captain Savov's Department of Internal Affairs Unit for Combating
Organised Crime.
The situation was summarised by AI as "police officers have traditionally
placed the protection of state interests above universally recognised rights
of individuals" having lead to AI's conclusion that the Bulgarian judicial
system routinely practised a policy that failed to safeguard fundamental
human rights.
AI reported, as this Speaker has documented with his own experiences, that
the defendant Bulgaria regularly refuses to provide proof on whether
complaints against its officials are processed, or to make public those
documents necessary to prove such complaints against the defendant
Bulgaria before foreign courts or international tribunals. Such conduct has
been and continues to be inconsistent with the UN and European
obligations of the Republic of Bulgaria.
AI further reported that year, as this Speaker has insisted to the trial court, that
the defendant Bulgaria does regularly breach the rights of victims of abuse
of official powers (police or judicial). There exist rights, but no effective
remedies to secure those rights in Bulgaria; the international law principle
of a legal remedy against state agencies, instrumentalities or officials that
abuse their powers remains virtually non-existent before the Bulgarian
courts.
II.3.1.2 1997
In November of 1997, Mr. Peter Stoyanov was elected to President of the
Republic of Bulgaria. Stoyanov is a former attorney and business associate
of this Speaker.

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Late in 1994 and the beginning of 1995 Stoyanov was paid $15,000 United
States Dollars (USD) by the Speakers British Columbia company. In
exchange for these funds, Stoyanov was to obtain municipal approval for
the Speaker's company to install and operate a micro-refinery and oil
treatment plant near the City of Plovdiv. Stoyanov took the funds but
never provided the services promised, prior to the Speakers arrest he had
been forcefully demanding that Stoyanov return the funds. The money in
question became a public issue during the Speakers detention and at his
trial in 1999.
AI reported that 1997 began much like 1996 with "daily reports of torture and
ill-treatment by police officers" of most criminal suspects, some leading to
death. Racial and religious discrimination was often a predominate factor
among police and investigative officers. Medical attention was often
denied victims when still in custody, or alternatively, as in the Speaker's
case, medical reports were provided that were consistent with police
claims and not the truth [see case: AI "Deaths In 1997: Mincho
Sartmachev"]. Quoting AI;
"Ill treatment and beatings in police custody are common in Bulgaria and there now
exists a pattern of almost casual violence which Amnesty International believes must
urgently be addressed….Violence on the part of the police at the time of detention is
also frequent."

Requests for independent medical examinations to verify claims of ill


treatment are, as in the Speaker's case, routinely denied him. All Canadian
consular requests for an examination of the Speaker by a Canadian doctor
were routinely refused by the defendant Bulgaria.
Police and investigator violence are a regular pattern utilised to obtain
information or extract confessions from suspects. Prosecutors and Judicial
officials fail to pursue allegations against police and other officials
responsible to them under law. As a result human rights violations are
committed with impunity from prosecution or discipline.
Bulgarian authorities failed in most cases to pursue those responsible or
adequately investigate reports despite obligations as a state party under the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment and Punishment.
AI expressed deep concern over the failure of the Ministry of Justice and
police to act on complaints, so much so as to suggest to the government of
Bulgaria that it establish a complaints board independent of these
institutions that included the office of the prosecutor and courts.
II.3.1.3 1998

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During March of 1998 the Bulgarian government authorised the release of a
report prepared by the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment. This report was
compiled after the committee had visited the various places of detention to
be found in Bulgaria and concluded that those people detained there "run
a significant risk of being ill treated at the time of their apprehension
and/or while in police custody, and that on occasion resort may be had to
severe ill-treatment or torture".
Of significance to the Speaker is that the report went on to state "that
conditions of detention in the National Investigative Service (NIS)
facilities could be described as inhuman and degrading", prisoner are held
in isolation, often for years and under an "impoverished regime offering
very little human contact". The court may well recall that the Speaker had
been isolated more than two years (1996 to 1999) by the NIS at facilities
described in the European Committee report.
Also during 1998 a United Nations Committee on the Elimination of Racial
Discrimination had expressed alarm at the number of incidents of violence
against members of minority groups.
Jews are an invisible minority in Bulgaria society and Bulgaria Jews maintain
a low profile due to Anti-Semitism that is imbued through out Bulgarian
society, particularly police and prosecutors.
The court may recall that the Speaker is of Jewish ancestry. Should this
Honourable Court have cause to review the offensive and actionable
words complained of as slanders and blasphemous libels, framed in the
tort of defamation, it would become immediately apparent that Anti-
Semitism played a significant part in the way the defendant Bulgaria has
treated the Speaker throughout his 6 years of arrest. There is no
exaggeration to the statement made in 1998 by USAID that "Bulgaria
needs to strengthen rule of law; and do more to protect human and
minority rights….Anti-corruption efforts need to be intensified, and
functioning of the judicial system improved".
II.3.1.4 1999
During 1999 the Parliamentary Assembly of the Council of Europe decided to
continue monitoring Bulgaria's honouring of its international obligations
and commitments [see below: Part 3 "Law and Enactment Relied On"],
assembly rapporteurs expressed concern to the council about continued
police violence.
In May of 1999 the Chief Prosecutor and the Director of NIS both
acknowledged there had been "serious violations of laws, rights and
freedoms of citizens" that were becoming ever more, rather than less,
frequent in the practice of the Ministry of Interior.

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The Court is asked to recall the 1995 agreement of the Crown with the
Ministry of Interior, of the defendant Bulgaria, the Crown having asked
the said defendant to "prosecute for whatever" the Speaker or his company
in Bulgaria.
It is recalled from the AI report of 1996 that the defendant Bulgaria's interior
police was known to be co-operating with, and protecting, high ranking
members of organised crime.
The Ministry of Interior continues its practice of not co-operating in
complaints against its officers or facilities under its control. It may be
remembered that the Ministry of Interior affected all the seizure of
property belonging to the plaintiffs in Bulgaria, and records of their
companies.
The Ministry of Interior was responsible for efforts in Bulgaria connected to
the discovery of the whereabouts of funds the Crown had advised the said
ministry of on July 7th 1995 as having been located in the province.
We find from the facts placed before the trial court that the Crown was
actively engaged with members of an agency of the defendant Bulgaria
having been indicted by international community for gross violations of
human and civil rights.
The plaintiffs are alleging before the trial court, in aggravation of their claims
against the defendant Bulgaria and the Crown, that the beating of the
Speaker, and attempts in Canada to extort money from the plaintiffs are
organised by officers of the Internal Affairs Unit for Combating Organised
Crime, Ministry of Interior of the defendant Bulgaria.
On February 25th 2000, the United States State Department "1999 Country
Reports on Human Rights Practices" [see:
www.state.gov/www/global/human_rights/1999] wrote:
"The judiciary is independent but suffers from corruption and continues to struggle
with structural and staffing problems.

"Most internal security services are responsible to the Ministry of Interior, including
the Central Service for Combating Organised Crime, the National Security Service
(civilian intelligence), internal security troops, border guards, and special forces.
Although government control over police is improving, it is still not sufficient to
ensure full accountability. The Special Investigative Service (SIS), reduced in size by
a recent reorganisation, is a judicial branch agency and therefore not under direct
government control. Some members of the police committed serious human rights
violations"

The US State Department indicated that, as in the prior years, the security
forces continued to beat suspects and prison inmates. The Speaker makes
reference to such fact as it is relevant to his past treatment and the ever
present threats under which he exists.

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In 1999 accountability remained practically non-existent and prison conditions
are "harsh, and pre-trial detention is often prolonged", it goes on to say
that the "judiciary is underpaid, understaffed, and has a heavy case
backlog; corruption is a serious problem. The Government infringed on
citizens' privacy rights…Discrimination against the disabled and religious
minorities is a problem."
It can be seen that the defendant Bulgaria's Constitution [see below: Part 3
"Law and Enactment"] forbids cruel and inhuman treatment or
punishment. Despite this the police, well into the year 2000, commonly
beat criminal suspects and members of minorities.
Such tactics (beatings, drugging and intimidation) had been reported in
previous years as frequently used, as with the Speaker, to extract
information or false testimony. Human rights groups reported that
complaints are rarely received through official channels.
According to reliable USA State Department sources "Human rights monitors
report that they receive many more complaints from persons who are too
intimidated to lodge an official complaint with authorities", persons
deprived of their liberty run significant risks of being mistreated if
complaining.
A Bulgaria Helsinki Committee reported survey Bulgaria's prisons, finding
that "51 percent of interviewed prisoners reported that police officers used
physical force against them during arrest; 53 percent reported
mistreatment at police stations" and seldom are charges against prison
guards investigated, more rarely are they prosecuted..
During 1999 and 2000 conditions in prisons continued to be harsh, "severely
overcrowded", places having "inadequate lavatory facilities, and
insufficient heating and ventilation".
Human rights monitors received from credible sources reports of "numerous
cases of brutality committed by prison guards against inmates" and that
"the process by which prisoners may complain of substandard conditions
or of mistreatment does not appear to function effectively". The Speaker
has himself briefly documented his own experiences in Part 1 [see above:
"Fact of the Case: Respondent's Reliance on its Criminal Prosecution of
the Speaker"].
The U.S. State Department reported noting that the Bulgaria Constitution [as
cited below] provided for access to a lawyer at the time of detention. It
further observed that the law required that all pre-trial investigation to be
completed by the prosecutor in the worst case not more than 9 months.

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However, a survey of prisoners and reported cases showed that 54 percent of
those arrested were denied access to an attorney and in practice the
simplest investigations took one and even two years to bring to trial. Even
then, the State Department reports, cases were returned by prosecutors or
judges for more investigation or as a result of violations of a detainee’s
right to defence. The court may recall the speaker’s case took more than 3
years to investigate, of which he spent the better part of those years in
solitary confinement.
Local observers reported to U.S. State Department sources that organised
crime influences the prosecutors’ office. This report reinforces Amnesty
International and Human Rights Watch reports that the judiciary has
"antiquated procedures", a heavy backlog of case and there continues to
be wide spread corruption.
The Observation Committee of the Parliamentary Assembly of the Council of
Europe in December of 1998 prior to its dissolution related concerns that
there were "inadequate safeguards for the independence of the judiciary
in the country."
Of significance to the case before the trial court and the present enquiry into
the conditions from which the Speaker must prosecute his law suit are the
words found in a U.S. State Department report:
"It is alleged that warrants to investigate suspects' private financial records
sometimes are abused to give police broad and openended authority to engage in far-
ranging investigations of a suspects' family and associates. There are regular, albeit
not conclusive or systemic, reports of mail, especially foreign mail, being delayed
and/or opened."

[Emphasis Added - Mine]

The court is asked to recall the facts surrounding the Crown's request to have
the Speaker and the plaintiffs company prosecuted by Bulgarian
authorities. It is recalled that the Crown request was in order to aid the
Attorney General of the province to obtain information from Bulgaria for
a criminal investigation in British Columbia [see: "Facts of Case:
Malicious Prosecution " - July 7 1995 Crown Request].
Of some significance to the trial court and the present enquiry are the
independent reports that the "Government exerts an unduly large influence
on the media through official channels" and that "Journalists frequently
colour their reports to conform to the views of the political parties or
economic groups that own their newspapers." This report is consistent
with plaintiffs’ claims against the Respondent that sound in the tort of
defamation.

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The Speaker has made complaints of Anti-Semitism as being a part of the
harsh treatment he experienced after his arrest. This complaint is
consistent with the U.S. State Department report of "discrimination,
harassment, and general public intolerance" towards religious minorities
not a part of the traditional mainstream of the Orthodox Church. And that
"Numerous articles in a broad range of newspapers as well as television
documentaries, drew lurid and inaccurate pictures of the activities of non-
Orthodox religious groups".
It is to be recalled that numerous articles concerning the plaintiffs were
written making reference to Canadian government sources connecting the
Speaker, a Jew, to the culture of Judaic mysticism and Cabbalistic beliefs.
It will be recalled that this connection was provided by the Crown in 1995
to agents of the Ministry of Interior of the Defendant Bulgaria.
II.3.1.5 2000
AI continued to express concerns in its August 2000 report about the
continuing "high incidence of reports of ill-treatment by Bulgarian police
officers. A questionnaire survey conducted among nearly 1000 convicts in
Bulgaria's prison system on behalf of the Bulgarian Helsinki Committee in
early 1999 revealed over half claimed that they were tortured or ill treated
during arrest", causing AI to conclude that ill treatment continued to be a
"systemic, institutional problem".
The Bulgaria government agencies continue to refuse to provide human rights
organisations with reports into case of torture or ill treatment... AI writing
that such refusals "cast doubt on their conduct". The AI Annual Report
2000 made the following conclusions that are significant to the trial court
proceedings and present applications before the Court of Appeal:
"There were reports of ill-treatment and torture by police, and of a death in police
custody. There are also reports that people who complained about torture and ill-
treatment by law enforcement officials were subject to intimidation or further ill-
treatment."

"The UN Committee against Torture met in April and May to consider Bulgaria's
second periodic report. The committee found that Bulgarian law lacked a definition
of torture and failed to ensure that all acts of torture are offences under criminal law.
The committee expressed concern about continuing reports of ill-treatment by
public officials, particularly the police, especially of ethnic minorities. The
committee also expressed concern about the deficiencies in the system of
investigation of alleged cases of torture and the failure to bring those allegations
before a judge or other appropriate judicial authority."

[Emphasis Added - Mine]

II.3.2Definitions of Torture
It may be reasonable here to introduce to the court the internationally accepted
interpretation given to the terms "cruel, inhuman or degrading treatment
or punishment".

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The Appeal Court is asked to extend the widest possible interpretation to the
international obligation of states, and the duty of the judiciary in
protecting against abuses, whether physical or mental, including the
holding of a detained or imprisoned person in conditions which deprive
him, temporarily or permanently of the use of any of his natural senses,
such as sight or hearing, or of his awareness of place and the passing of
time. [See for reference: Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex,
39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered
into force June 26, 1987 as follows:
· "PART I

· "Article I

"1. For the purposes of this Convention, the term "torture" means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions."

See for further reference as well: The Declaration on the Protection of All
Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. res. 3452 (XXX), annex, 30
U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975) as follows:
· "Article 1

"1. For the purpose of this Declaration, torture means any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted by or at the
instigation of a public official on a person for such purposes as obtaining from him
or a third person information or confession, punishing him for an act he has
committed or is suspected of having committed, or intimidating him or other
persons. It does not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions to the extent consistent with the Standard Minimum
Rules for the Treatment of Prisoners.

"2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or


degrading treatment or punishment.

"Article 2

"Any act of torture or other cruel, inhuman or degrading treatment or punishment is


an offence to human dignity and shall be condemned as a denial of the purposes of
the Charter of the United Nations and as a violation of the human rights and
fundamental freedoms proclaimed in the Universal Declaration of Human Rights .

4 Relevance

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The foregoing presentation is the particular factual circumstances surrounding
the applications presently before the Appeal Court. The facts of the case
combine to form factors that create a set of unusual circumstances that in
the past have limited and complicated the Speaker's practical possibilities
to observe, inter alia, the limitations of time to make appeals or hearing
dates or attend the hearing of various applications. To fully appreciate the
significance and magnitude of the Speaker's difficulties requires additional
reflection on the historic and present conditions in the Republic of
Bulgaria as found in reliable international reports.
International comities, and the foreign law of Bulgaria, as naturally flows
from the applicable principles of international law, play key roles in
determining the issue of what limitations can reasonably be placed on the
rights of incarcerated and indigent citizens before a court of law.
This Honourable Court is asked to recall that the claims of the plaintiffs
Nicholas, Tatiana, Tracy and Robert are connected to the "cruel, inhuman
or degrading treatment or punishment" they suffered in the province as
third parties. On other occasions the plaintiffs in the province were the
principle targets in the attempts by officials of the defendant Bulgaria at
coercing money or information as to money in the province from them, the
defendant Bulgaria relying on threats of violence against the Speaker or
promises to end his torture to coerce the plaintiffs to co-operate.
It is again recalled, that the money in question being so aggressively sought
after by the Defendant Bulgaria are those funds having been identified in a
written indictment prepared by the Crown against the plaintiff Kapoustin,
a Canadian citizen, without the benefit of the protections and guarantees
found under Canadian law. The Crown having requested the prosecution
of the plaintiff Kapoustin by defendant Bulgaria in May and July of 1995.
III ERRORS IN JUDGEMENT
The untrained lay applicant risks much when attempting the practice of law.
Among these risks there exists the embarrassment and foolishness of
making statements or arriving at conclusions that are inconsistent with the
practice of the common law or intent of the enactment relied on.
If simplicity and clarity of purpose are twin virtues to the practice of any
science, including law, then at the risk of appearing foolish this Speaker
respectfully puts to this Honourable Court that the error in judgement is on
a point of law, and might well be thus expressed:
Did the Master err in law when failing to observe the positive constitutional obligation of
the court under the Charter, and Canada's international commitment to secure for all
persons a guarantee of their fundamental right to equality and fairness before a court
of law?

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Did the Master err in judgement when failing to observe the negative consitutional
restriction under the Charter on any practice and procedure that directly or indirectly
discriminates solely due to a persons "other status" in Canadian society? i.e. as an
indigent person having been deprived of his liberty abroad. The Master failed to be
senitive to the negative legal affects of an order inevitably and unreasonably
prejudicing the legitimate interests, and lawful rights of a citizen of Canada solely
due to his other status. The Master's order unresponsive to the three observable
elements representing insurmountable fiscal, physical and other practical barrieiers
acting to jointly and severally bar a citizen in the exercise of his fundamental rights
before the court.

IV ARGUMENT AND ANALYSIS

1 The Arguments Evolution


The use of exclusion in achieving simplicity, and clarity, can only belie the
complexity of issues, and the difficulty of the questions to be answer.
No pretence is made to fully understanding the relevant law as it may apply to
the issues raised. However, not withstanding the inadequacy of the present
Writer the attempt must nonetheless be made.
This effort may prove incompetent in its individual parts. However,
collectively the course and development of this Writer's layman reasoning
appears to be consistent with the self evident propositions that flow
naturally from the principles of international law.
This Writer believes that his rights as a citizen of Canada are wrongly limited
by a Master or Chambers Judge when petitioning a provincial court from
prison. This limitation solely due to his indigent property status, and the
loss of his self-determination.
Ultimately, the significant issues rose in discussion, and the present
applications, must in the end turn on a comparative review on what the
common law, and Canada's enactments have to say about "reasonable
limitations" on the rights of a citizen having an "other status" to equally
access the civil courts and justice. Particular emphasis is placed on
discussing the international status, in Canadian society, of an indigent
citizen deprived of his liberty abroad.
A central controversy in this enquiry arises from the occasion of a practice,
and procedure of the trial court found by the Applicant to indirectly apply
unreasonable limits on his legal rights, and those of others having an
"other status" in Canadian society. The imitations are imposed by reverse
onus and result solely due to the observable fact of a person’s status as an
indigent prisoner.

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In the present discussion the Writer approaches the problem first from the a
priori rights of all members of a free and democratic society. Developing
from such self evident propositions his own reasoning, and conclusions
that evolve a posteriori, from the facts and circumstances of the case at
Bar. The observable facts demonstrate, when placed against the self
evident propositions advanced under the principles of international law,
and common law practice of Canada, that unreasonable limitations are
being imposed on a distinct group solely due to their status in society.
To advance the Writer's hypothesis that his a priori rights are unreasonably
limited it is first necessary to illuminate the similarities to be found under
both the national laws of Canada and Bulgaria. Significant, although not
surprising, is that both national laws guarantee the same fundamental a
priori principles of civil and human rights. Central to this discussion is the
observable fact of both national laws having applied these a priori rights
equally to proceedings before the courts in suits in law - civil - as to those
having criminal causes of action. The governments of both Bulgaria, and
Canada, having imposed negative restrictions on their agencies,
instrumentalities and courts from unreasonably limiting fundamental
individual rights, and creating a positive constitutional obligation, and
duty of the courts under the respective lex fori to guarantee fundamental a
priori rights to all persons found to be under the sphere of duty of either
one of the two governments.
It is compelling to recall that the civil and socialist law traditions of the
Republic of Bulgaria have in principle attempted to embody the same a
priori rights as historically found in the common law. However, recent
history and a posteriori reasoning show that principle has yet to become
fully integrated into Bulgarian practice. An analysis of the Defendant
Bulgaria's observance of its international obligations to individual rights,
and the rule of law is discussed later.
This discussion examines the historic and current conduct of the Defendant
Bulgaria as a contributing factor to the unreasonable limitations of the
Applicant's a prior rights having ultimately a factor affected his
procedural possibilities as a party before a trial court in British Columbia.

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In aggravation of this Applicant's circumstances is the defendant Bulgaria's
co-operation or lack of co-operation with the plaintiffs during the course
of the proceedings before the trial court. The defendant Bulgaria's practice
of using physical, or other means of coercion against persons it has
deprived of liberty are representative of this Applicant's own experience of
having the said defendant interfere with, or attempt to deter, him from
prosecuting his law suit, or appeals, before the court in British Columbia.
Each such incident on record is representative of a breach of the trial
court's processes, Canadian law, and the defendant Bulgaria's positive
international obligation and duty to guarantee all persons their individual
rights. Central to the discussion is a consideration of what amount of
coercive influence is reasonable on the part of defendant Bulgaria, as a
"private person", to limiting a plaintiff's a priori rights in a suit at law
before a court of Canada.
Significant to this discussion is the legal obligation of all "private person(s)"
appearing before a court of law to not use interference, hindrance,
obstruction or other forms of coercion to obtain any advantage in a private
law proceeding before a court of Canada. It is recalled that a state party
appearing in a private law proceeding, appears only in the capacity of a
"private person", having rights, and obligations equal to, and not more
than, any other party, including the person it has deprived of property and
liberty. This leads inevitably to a discussion on a Master or Chambers
Judge constitutional duty to judicially examine, on petition, any complaint
alleging a coercive act(s) by a party interfering with the legal rights of the
other party proceeding in a suit at law.
What is immediately significant to any enquiry into coercive activities of a
State's agencies is the incontrovertible principle that a State must be aware
of, and accountable for, the actions of its officials, agencies, and
instrumentalities. Equally incontrovertible is the fact of international
jurisprudence showing Bulgaria as not yet integrating this fundamental
principle into its practices as have the other free nations of Europe [As
authority see European Court in Lukanov v. Bulgaria, judgement 20-2-
1997 at §40 par. 2].
The historic and current practices of the defendant government of Bulgaria, its
officials, agencies, and instrumentalities provide compelling causus to
bringing all three of the applications now before the Appeal Court. For
these reasons the Writer has undertaken to bring the defendant Bulgaria's
conduct under analysis, and within the ambit of the Appeal Court's
jurisdiction when considering this Writer's applications to extend time,
recognise his indigence, and ultimately grant him the relief he seeks in his
intended appeal.

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The main issue here is of course the a priori rights of a litigant, and what
limitations on those rights are reasonable in a suit at law before a British
Columbia trial court. The significant factor appears to be the litigants
"other status" in Canadian society, that of an indigent person deprived of
liberty, and the practice and procedure having employed a reverse onus to
limit a persons procedural possibilities to prosecute, or defend claims,
notwithstanding the suit at law is against a foreign state.
From this point forward the purpose of this Writer's discussion attempts to
logically prove his thesis of the Charter placing a negative restriction on a
Master, or Chambers Judge as well a positive obligation, and duty to being
responsive in guaranteeing the fundamental rights of persons having an
"other status" in Canadian society. The common law courts were
conceived to be sensitive to all administrative or executive body practices,
and procedures that derogate from the fundamental rights of persons
having afflictions, and disabilities, the courts responsive as defenders of
their fundamental liberties. The Writer advancing within his thesis, a
hypothesis. That on the observable conditions of a petitioner having no
property means, and no access to the court solely due to an afflictive
"other status", these conditions aggravated by allegedly coercive acts of a
defendant, among them obstruction of the processes of international
justice. Are conditions that act together in creating a positive constitutional
obligation and special standard of care and duty a Master or Chambers
Judge when applying any practice and procedure affecting the
fundamental a priori rights of the petitioner? The Applicant's a posteriori
reasoning is as follows.

IV.1.1Law and Enactment Relied On.


The Writer's argument will turn on the one point raised earlier: Are the
equality rights of a prisoner before a civil court in some way limited,
internationally or nationally, by law or enactment in such a way so as to
permit a Master or Chambers Judge of the provincial court to refuse to
hear, or otherwise act positively on a written application of a indigent
prisoner for judicial review, and relief as a party to a suit in law.
To fully develop his reasoning the Writer elected, more for himself than this
Honourable Court, to first review the historic development of
fundamental, a priori, rights found under international law. Later
examining how such guarantees are incorporated, jointly and severally,
into the national legislation of both Canada, and the defendant government
Bulgaria.
After having examined these a priori propositions of international law, the
Writer then attempts to place them into the context of his judicial
applications under the lex fori of Canada, and his fundamental rights under
the lex fori of the defendant Bulgaria as an indigent prisoner.
IV.1.1.1 International Conventions - A Chronology

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Through the course of the proceedings before the trial court, the Speaker as a
litigant and prisoner has had to rely on certain principles of international
law found to be binding jointly and severally on the governments of
Canada and the Defendant, the Republic of Bulgaria.
What follows is a chronological review of international instruments, and
national enactments conceived for protecting the fundamental rights of all
persons, notwithstanding the particular territory or jurisdiction of the State
where such person may be found. Certain of the documents reviewed are
conceived with the particular intention of establishing what are reasonable
legislative and judicial limitations to the fundamental rights of persons
deprived of their liberty. The provisions cited below are what the
Applicant believes relevant to his thesis. The Applicant having emphasised
the particular part of a provision directly applicable to the development of
his arguments.
IV.1.1.1.1The Universal Declaration of Human Rights, G.A. res.
217A (III), U.N. Doc A/810 at 71 (1948)
"Article 2

"Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property [indigence], birth or other
status [imprisonment].

"Furthermore, no distinction shall be made on the basis of the political,


jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under any
other limitation of sovereignty.

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 6

"Everyone has the right to recognition everywhere as a person before the law.

"Article 7

"All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.

[Emphasis Added - Mine]

"Article 10

"Everyone is entitled in full equality to a fair and public hearing by an independent


and impartial tribunal, in the determination of his [civil] rights and obligations and of
any criminal charge against him.

[Emphasis Added - Inserted "[ ] " and Text Mine]

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"Article 12

"No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation. Everyone
has the right to the protection of the law against such interference or attacks.

[Emphasis Added - Mine]

"Article 28

"Everyone is entitled to a social and international order in which the [civil] rights and
freedoms set forth in this Declaration can be fully realized.

"Article 29

"1. …..

"2. In the exercise of his [civil] rights and freedoms, everyone shall be subject only
to such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.

"3……

[Emphasis Added - "[ ] " - Mine]

IV.1.1.1.2International Covenant on Civil and Political Rights,


G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at
52, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171, entered
into force Mar. 23, 1976
"Part II

"Article 2

"1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property [indigence], birth or other status [imprisonment].

"2. Where not already provided for by existing legislative or other measures, each
State Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such legislative or other measures as may be necessary to give
effect to the rights recognized in the present Covenant.

"3. Each State Party to the present Covenant undertakes:

"(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective [civil] remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;

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"(b) To ensure that any person claiming such a [civil] remedy shall have his
right thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal system of
the State, and to develop the possibilities of judicial remedy;

"(c) To ensure that the competent [judicial] authorities shall enforce such remedies
when granted.

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 3

"The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in the
present Covenant.

"Article 10

"1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.

"Article 14

"1. All persons shall be equal before the [civil and criminal] courts and tribunals. In
the determination of any criminal charge against him, or of his [civil] rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by
a competent, independent and impartial tribunal established by law…….[sic]"

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Article 16

"Everyone shall have the right to recognition everywhere as a person before the law.

[Emphasis Added - Mine]

"Article 26

"All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property [indigence], birth or other status
[imprisonment].

[Emphasis Added - Inserted "[ ] " and Text Mine]

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IV.1.1.1.3Standard Minimum Rules for the Treatment of
Prisoners, adopted Aug. 30, 1955 by the First United
Nations Congress on the Prevention of Crime and the
Treatment of Offenders, U.N. Doc. A/CONF/611, annex
I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11,
U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62
U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988
(1977).
"PART II

"RULES APPLICABLE TO SPECIAL CATEGORIES

"A. PRISONERS UNDER SENTENCE

"Guiding principles

"57.

"Imprisonment and other measures which result in cutting off an offender from the
outside world are afflictive by the very fact of taking from the person the right of
self-determination by depriving him of his liberty. Therefore the prison system shall
not, except as incidental to justifiable segregation or the maintenance of discipline,
aggravate the suffering inherent in such a situation.

[Emphasis Added - Mine]

"60.

"(1) The regime of the institution should seek to minimize any differences
between prison life and life at liberty which tend to lessen the responsibility of the
prisoners or the respect due to their dignity as human beings.

[Emphasis Added - Mine]

"61.

"The treatment of prisoners should emphasize not their exclusion from the
community, but their continuing part in it [i.e. appearing before courts of law].
Community agencies should, therefore, be enlisted wherever possible to assist the
staff of the institution in the task of social rehabilitation of the prisoners. There
should be in connection with every institution social workers charged with the duty
of maintaining and improving all desirable relations of a prisoner with his family and
with valuable social agencies. Steps should be taken to safeguard, to the maximum
extent compatible with the law and the sentence, the rights relating to civil interests,
social security rights and other social benefits of prisoners.

[Emphasis Added - Inserted "[ ] " and Text Mine]

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IV.1.1.1.4Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, G.A. res.
43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298,
U.N. Doc. A/43/49 (1988)
"SCOPE OF THE BODY OF PRINCIPLES

"These principles apply for the protection of all persons under any form of detention
or imprisonment.

"Principle 3

"There shall be no restriction upon or derogation from any of the human [civil]
rights of persons under any form of detention or imprisonment recognized or
existing in any State pursuant to law, conventions, regulations or custom on the
pretext that this Body of Principles does not recognize such rights or that it
recognizes them to a lesser extent.

[Emphasis Added - Inserted "[ ] " and Text Mine]

Principle 5

"1. These principles shall be applied to all persons within the territory of any
given State, without distinction of any kind, such as race, colour, sex, language,
religion or religious belief, political or other opinion, national, ethnic or social origin,
property [indigence], birth or other status [imprisonment].

[Emphasis Added - Inserted "[ ] " and Text Mine]

"Principle 36

"1……

"2. The arrest or detention of such a person pending investigation and trial shall be
carried out only for the purposes of the administration of justice on grounds and
under conditions and procedures specified by law. The imposition of restrictions
upon such a person which are not strictly required for the purpose of the
detention or to prevent hindrance to the process of investigation or the
administration of justice, or for the maintenance of security and good order in
the place of detention shall be forbidden.

[Emphasis Added - Mine]

IV.1.1.1.5Basic Principles for the Treatment of Prisoners, G.A. res.


45/111, annex, 45 U.N. GAOR Supp. (No. 49A) at 200,
U.N. Doc. A/45/49 (1990)
"5. Except for those limitations that are demonstrably necessitated by the fact of
incarceration, all prisoners shall retain the human [civil] rights and fundamental
[civil] freedoms set out in the Universal Declaration of Human Rights, and, where
the State concerned is a party, the International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on Civil and Political Rights and the
Optional Protocol thereto, as well as such other rights as are set out in other United
Nations covenants.

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[Emphasis Added - Inserted "[ ] " and Text Mine]

IV.1.1.2 Canadian Enactment


The foregoing international principles of law are incorporated into the
Canadian legal landscape as follows.
IV.1.1.2.1Canadian Bill of Rights, [1960, c. 44, s. 3; 1970-71-72, c.
38, s. 29; 1985, c. 26, s. 105; 1992, c. 1, s. 144(F)].
"An Act for the Recognition and Protection of Human Rights and Fundamental
Freedoms

"PART I

BILL OF RIGHTS

"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) ….

"(b) the right of the individual to equality before the law and the protection of the
law;

[Emphasis Added - Mine]

"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;

"(a) ……;

"(b) impose or authorize the imposition of cruel and unusual treatment or


punishment;

"(c)……..;

"(d) …..;

"(e) deprive a person of the right to a fair [civil] hearing in accordance with the
principles of fundamental justice for the determination of his rights and obligations;

[Emphasis Added - Inserted "[ ] " and Text Mine]

IV.1.1.2.2Canadian Human Rights Act [Chapter H-6 1976-77, c.


33, s. 1.
"PURPOSE OF ACT

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"2. The purpose of this Act is to extend the laws in Canada to give effect, within the
purview of matters coming within the legislative authority of Parliament, to the
principle that all individuals should have an opportunity equal with other
individuals to make for themselves the lives that they are able and wish to have and
to have their needs accommodated, consistent with their duties and obligations
as members of society, without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic origin, colour, religion,
age, sex, sexual orientation, marital status, family status, disability or conviction for
an offence for which a pardon has been granted.

R.S., 1985, c. H-6, s. 2; 1996, c. 14, s. 1; 1998, c. 9, s. 9.

[Emphasis Added - Mine]

"Multiple grounds of discrimination

"3.1 For greater certainty, a discriminatory practice includes a practice based on one
or more prohibited grounds of discrimination or on the effect of a combination of
prohibited grounds.

"Discriminatory Practices

”Denial of goods, service, facility or accommodation

"5. It is a discriminatory practice in the provision of goods, services, facilities or


accommodation customarily available to the general public

"(a) to deny, or to deny access to, any such good, service, facility or
accommodation to any individual, or

"(b) to differentiate adversely in relation to any individual, on a prohibited ground of


discrimination.

1976-77, c. 33, s. 5.

[Emphasis Added - Mine]

"25. In this Act,

"disability" means any previous or existing mental or physical disability and includes
disfigurement and previous or existing dependence on alcohol or a drug.

PART III

DISCRIMINATORY PRACTICES AND GENERAL PROVISIONS

"39. For the purposes of this Part, a "discriminatory practice" means any practice that
is a discriminatory practice within the meaning of sections 5 to 14.1.

R.S., 1985, c. H-6, s. 39; 1998, c. 9, s. 22.

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IV.1.1.2.3Constitution Act, 1982 (79) Enacted as Schedule B to the
Canada Act 1982 (U.K.) 1982, c. 11, which came into
force on April 17, 1982 - Canadian charter of rights and
freedoms
"PART I

"Canadian charter of rights and freedoms

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.

"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,
religion, sex, age or mental or physical disability.

"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed 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.

[Emphasis Added - Mine]

"32(1)This Charter applies

"a) to the Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and
Northwest Territories; and

"b) to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.

IV.1.1.2.4Human Rights Code [RSBC 1996] Chapter 210


"Definitions

"1 In this Code:

"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a) or (b),
10 (1) (a), 11, 13 (1) (a) or (2), 14 (a) or (b) or 43;

"Discrimination and intent

"2 Discrimination in contravention of this Code does not require an intention to


contravene this Code.

[Emphasis Added - Mine]

"Purposes

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"3 The purposes of this Code are as follows:

"(a) to foster a society in British Columbia in which there are no impediments to full
and free participation in the economic, social, political and cultural life of British
Columbia;

"(b) to promote a climate of understanding and mutual respect where all are equal in
dignity and rights;

"(c) to prevent discrimination prohibited by this Code;

"(d) to identify and eliminate persistent patterns of inequality associated with


discrimination prohibited by this Code;

"(e) to provide a means of redress for those persons who are discriminated against
contrary to this Code;

[Emphasis Added - Mine]

Code prevails

"4 If there is a conflict between this Code and any other enactment, this Code
prevails.

[Emphasis Added - Mine]

"Discrimination in accommodation, service and facility

"8 (1) A person must not, without a bona fide and reasonable justification,

"(a) deny to a person or class of persons [prisoners] any accommodation, service or


facility customarily available to the public [access to the courts services], or

"(b) discriminate against a person or class of persons [prisoners] regarding any


accommodation, service or facility customarily available to the public because of the
race, colour, ancestry, place of origin, religion, marital status, family status, physical
or mental disability, sex or sexual orientation of that person or class of persons
[prisoners].

[Emphasis Added - Inserted "[ ] " and Text Mine]

IV.1.1.2.5Prisons and Reformatories Act Chapter P-20 R.S., c. P-


21, s. 1.
"TEMPORARY ABSENCE

"Purpose and Principles

"Purpose of temporary absence

"7. The purpose of a temporary absence program is to contribute to the maintenance


of a just, peaceful and safe society by facilitating, through decisions on the timing
and conditions of absence, the rehabilitation of prisoners and their reintegration
into the community as law-abiding citizens.

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R.S., 1985, c. P-20, s. 7; 1992, c. 20, s. 207; 1995, c. 42, ss. 71(F), 72(F); 1997, c. 2,
s. 2.

Principles

"7.1 The principles that shall guide designated authorities in achieving the
purpose of a temporary absence program are

"(a) that the least restrictive decision that is consistent with the protection of society
and the prisoner's rehabilitation and reintegration into the community be made;

"(b) that all available information that is relevant to the case be taken into account;

"(c) that prisoners be provided with relevant information, reasons for decisions and
access to the review of decisions in order to ensure a fair and understandable
temporary absence process; and

"(d) that the designated authority provide for the timely exchange of relevant
information with other participants in the criminal justice system and make
information about temporary absence programs and policies available to prisoners,
victims and the public.

1997, c. 2, s. 2.

[Emphasis Added - Mine]

"Authorization of temporary absence

"7.3 (1) A designated authority may authorize a prisoner to be absent from prison
with or without escort, subject to any conditions that the authority considers
appropriate, where it is necessary or desirable in the authority's opinion

"(a)…;

"(b) in order to facilitate the prisoner's rehabilitation or reintegration into the


community; or

"(c) for any other purpose, consistent with the purpose and principles set out in
section 7 and 7.1, that may be established by the laws of the province respecting the
authorization of temporary absences of prisoners who have contravened provincial
law.

[Emphasis Added - Mine]

IV.1.1.2.6Corrections and Conditional Release Act 1992, c. 20


[Assented to 18th June, 1992]
Principles that guide the Service

"4. The principles that shall guide the Service in achieving the purpose referred to in
section 3 are

"(a)…;

"(b)…;

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"(c)…;

"(d) that the Service use the least restrictive measures consistent with the protection
of the public, staff members and offenders;

"(e) that offenders retain the rights and privileges of all members of society, except
those rights and privileges that are necessarily removed or restricted as a
consequence of the sentence;

1992, c. 20, s. 4; 1995, c. 42, s. 2(F).

[Emphasis Added - Mine]

Escorted Temporary Absences

Temporary absences may be authorized

"17. (1) Where, in the opinion of the institutional head,

"(a) an inmate will not, by reoffending, present an undue risk to society during an
absence authorized under this section,

"(b) it is desirable for the inmate to be absent from penitentiary, escorted by a staff
member or other person authorized by the institutional head, for medical,
administrative, community service, family contact, personal development for
rehabilitative purposes, or compassionate reasons, including parental responsibilities,

"(c) the inmate's behaviour while under sentence does not preclude authorizing the
absence, and

"(d) a structured plan for the absence has been prepared, the absence may, subject to
section 746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act
and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, be
authorized by the institutional head

"(e) for an unlimited period for medical reasons, or

"(f) for reasons other than medical,

IV.1.1.2.7Correction Act [RSBC 1996] Chapter 74


"Temporary absences

"15 (1) The minister may authorize an inmate to be absent from a correctional centre
with or without escort, subject to any conditions that the minister considers
appropriate, if in the minister's opinion the absence is necessary or desirable

"(a) for medical, educational or humanitarian reasons, or

"(b) to assist in the rehabilitation of the inmate.

IV.1.1.3 Bulgarian Enactment

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The Government of the Republic of Bulgaria took an alternative approach
from that of Canada when incorporating the previously cited international
law. The defendant government relies on its' constitution to incorporate, by
way of reference, all international instruments ratified by its legislation,
making such international law the supreme law of the country.
IV.1.1.3.1Constitution of the Republic of Bulgaria [S.G. No.
56/13.07/1991]
"Article 5

"(4) Any international instruments which have been ratified by the constitutionally
established procedure, promulgated and having come into force with respect to the
Republic of Bulgaria, shall be considered part of the domestic legislation of the
country. They shall supersede any domestic legislation stipulating otherwise.

"Article 57

"(1) The fundamental civil rights shall be irrevocable"

"The Constitution

"Article 31

"(5) Prisoners shall be kept in conditions conducive to the exercise of those of their
fundamental rights which are not restricted by virtue of their sentence.

[Emphasis Added - Mine]

Unlike the comprehensive legislation of Canada, the subject of a prisoner's


right to temporary absences for attending to his fundamental rights and
obligations before a court in a suit at law are treated in a very limited way
by the defendant Bulgaria as follows;
IV.1.1.3.2Law on Execution of Punishments
[Promulgated S.G. No. 30 on April 15, 1969, alt. and add.
S.G. No. 34 on April 30, 1974, No. 84 on Oct. 28, 1977;
No. 36 on May 8, 1979; No. 28 on April 9, 1982 in force
from July 1, 1982, S.G. No. 27, April 4, 1986; No. 89,
Nov. 18, 1986; No. 26, April 5, 1988; No. 21, March 13,
1990; No. 109, Dec. 28, 1993; No. 50, June 1, 1995; No.
12, Feb. 7, 1997; No. 13, Feb. 11, 1997; No. 73, June 26,
1998; No. 153, dec. 23, 1998].
"Chapter Two

"LEGAL STATUS OF INCARCERATED PERSONS

"Article 23. Incarcerated persons may avail themselves of (enjoy) all rights
established by law with the exception of the following:

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"a) The rights they have been deprived of by a verdict;

"b) The rights, which have been denied to them or have been explicitly restricted by
a law or another enactment and

"c) Rights, the exercising of which is incompatible with the execution of the
punishment.

[Emphasis Added - Mine]

The foregoing Art. 2(c) having made all limitations lawful if they are
"incompatible with the execution of the punishment" leaves open to very
broad interpretation what fundamental rights may be administratively
denied solely due to a person having been deprived of his liberty in
Bulgaria. The only limiting provision appears to be the cited Art. 5§4 of
the Bulgarian Constitution, it having created a positive obligation for State
agencies to observe the international agreements of Bulgaria as
incorporated, by reference, as a part of the lex fori of Bulgarian.
Of particular significance to this review is the following Art. 463§2 of the
Criminal Code of Procedure, Republic of Bulgaria, having a provision
permitting a prisoner the right, or obligation to appear under the custody
of a foreign State authority, in proprio persona, before a court of that State
in any proceeding where attendance is required to protect his legal
interests, or that of other persons involved in a foreign judicial
proceedings. The context of the provision's text makes no distinction if the
procedure before the foreign court foreign is a suit at law or criminal
proceeding. The enactment and text are as follows:
IV.1.1.3.3Criminal Code of Procedure of the Republic of Bulgaria

[Promulgated, S.G., No. 89/15 November 1974,


Amended, S.G. No. 99/1974, No., 10/1975, No. 84/1977,
No. 52/1980, No. 28 and 38/1982, No. 89/1986, No. 31,
32 and 35/1990, No. 39, 109 and 110/1993, No. 84/1994,
No. 50/1995, No. 107 and 110/1996, No. 54 and 95/1997,
and No. 21/1998].
"Chapter 22

"Section VI Legal Assistance in Criminal Matters (new S.G. 64/1997)

"Appearance of Witness and Expert before a Foreign Court.

"Article 463

"(1)…[Sic]

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"(2) Extradition of persons detained in custody to be interrogated as witnesses or
experts shall be allowed only in exceptional cases by discretion of composition of the
respective district court, on the grounds of papers submitted [ court subpoena] by the
other country, provided the person gives his consent for extradition, and the stay in
the other country shall not exceed the term of his detention in custody.

[Emphasis Added and [ ] Mine]

2 A Priori

IV.2.1The Rights of Individuals


The foregoing body of international law represents both the negative
restrictions on the State as well as positive obligations, and duties of its
national courts, as guarantors, to all persons of those fundamental rights
considered a prior as established through the process of international
comity. The community of nations having created a clear set of self
evident propositions on fundamental civil and human rights considered
sine quo non in guiding member States, and the national courts when
determining the rights of all individuals.
In particular there is created among the cited international agreements a set of
principles to guide member States in the treatment and fundament
guarantees to all persons deprived of liberty. The documents reviewed thus
far having provisions allowing for prisoners to obtain their rights, or fulfil
their obligations before the court in a suit in law. It sine quo non a negative
restriction the State to not be seen to revoke, deny, or limit such rights
beyond what is necessary to public safety, and solely on account of a
person's status as an indigent prisoner. This self evident proposition
notwithstanding that the rights and obligations in question are before a
court of foreign jurisdiction.
It is equally a self evident proposition, and sine quo non positive obligation
and duty of a State to guaranteed to all persons, including those it has
deprived of liberty, their a priori right to develop a judicial remedy to their
complaints, and to attend or be represented at judicial hearings in proprio
persona before any court having competent jurisdiction to make a
determination of their legal or property interests.
There appears little within the provisions of international law, or its practice,
that would appear to suggest any argument even remotely plausible for an
alternative to the cited negative restrictions as well as positive obligations
of a State once ratifying the cited international agreements, and having
incorporated the a priori principles found there into the national law.
The previously cited body of international law, and the a priori principles
found there, have long ago been made an integral, and immutable part of
the historically pattern followed by the peoples of Canada, England and
the United States. These self-evident propositions are woven into the very
fabric of the common law.

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What is significant to the present enquiry is that the cited international law
embodies new negative restrictions, as well as positive obligations of the
defendant, Republic of Bulgaria to individual rights. It worthy to recall in
this discussion that the defendant Bulgaria's commitment to the right of
the individual is directly opposed to its historic development as a civil law
nation. First as a monarchy, then as a fascist, and most recently as a
socialist state. Each historic permutation having been geared towards a
limited form of "structural" judicial review rather than the protection of
individual rights.
The Defendant Bulgaria's historic practice of legislature supremacy in law as
opposed to that of judicial review continues today. Its current practice of
rejecting the notion of judicial precedent producing a diffuse system of
limited judicial review inevitably having radically inconsistent decisions
rendered on identical constitutional issues [see as authority: Cappelletti,
Judicial Review in the Contemporary World 34 (1971) at p. 53-66]. This
inconsistency is particularly observable on judicial application of
international law, and the a priori fundament rights that constitutionally
[see: Constitution Republic of Bulgaria, Art. 5§4 reprinted in Blaustein
and Flanz, Constitutions of the World] flow into Bulgaria's national law.
This has produced significant problems for persons deprived of liberty by
the Defendant Bulgaria to secure from its agencies, instrumentalities and
institutions their fundamental rights. There exists a powerful tension
between Bulgaria's positive obligation and international duty to protect
individual rights, and the capability of its agencies or institutions to
provide that protection effectively [see as authority: The Judicial Role in
Bulgaria's Struggle for Human Rights," by Albert Melone and Carol Hays,
p. 248].

IV.2.2Access to A Court
It is incontrovertible that non-judicial agencies of a State are directly
responsible for a prisoner's care, and the compliance of prison officials
with the requirements of the previously cited international law.
The previously cited Prisons and Reformations Act, Corrections and
Conditional Release Act, and Correction Act embody the negative
restrictions as well as positive practices, and procedures to be observed by
all responsible agencies of Canada when determining the fundamental a
priori rights to be denied or limited a person deprived of liberty.
The previously cited constitutional law of Bulgaria, and by incorporation all
Bulgaria's international treaties, conventions or declarations, as well as its
Law On Execution of Punishments and Criminal Code of Procedure are
the full embodiment of the negative restrictions, as well as positive
practices and procedures, to be observed by all responsible Bulgaria
agencies when determining the fundamental a priori rights to be denied or
limited to a person deprived of liberty.

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The international proposition of a judicial "remedy", and access to "competent
judicial…authorities" are guaranteed, and intended as the positive
obligation and duty of the State under Article 2§3 of the cited ICCPR.
The Applicant reasons, a posteriori, there to be a further and fundamental
element incorporated into any interpretation of the positive obligation and
duty of a State to provide access to a "remedy" as flows naturally from
international law. Articles 6, 7 and 10 of the UDHR, and Articles 2, 14§1,
16 and 26 of the ICCPR are to guarantee to all persons the sine qua non
element of a "fair and public hearing" in any judicial determination of
their rights and obligations in a suit at law, notwithstanding their property
status or deprivation of liberty. On the basis of which it is only reasonable
a person deprived of liberty first petition the State agency having a
positive obligation and duty to secure for him the means to physically
access a court of competent jurisdiction when having to prosecute or
defend his interests. Here, the competent judicial authority to determine
the Applicant's judicial remedy and his legal and property rights in Canada
is incontrovertibly a court of the province of British Columbia.
The positive expectations of a person deprived of liberty to be conducted by
the State to any hearing or trial where his legitimate interests may be
negatively affected is more than a reasonable one. The Writer recalling the
cited UDHR as particularly significant when interpreting reasonableness,
the international community having declared at Art. 29§2 that "In the
exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing
due recognition for the rights of and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a
democratic society."
The self evident proposition that a prisoner retains, a priori, the right of access
and attendance to court in a suit at law is made reasonable by virtue of the
very nature of incarceration as recognised by the international community.
Canada and Bulgaria having both made allowances under national law for
the temporarily absence of a prisoner, with or without escort, to attend in
person any hearing or trial judicially determining his rights, and other
obligations under a suit at law. A proposition reinforced by Principle 36§2
of the United Nations 1988 resolution on a Body of Principles for
Protection of All Persons under Any Form of Detention or Imprisonment
that declares: "The imposition of restrictions upon such persons which are
not strictly required for the purpose of detention or to prevent hindrance
to the process of investigation or the administration of justice, or for the
maintenance of security and good order in the place of detention shall be
forbidden."

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In 1990 the United Nations additionally adopted the Basic Principles for the
Treatment of Prisoners. Of significance to the present enquiry is the
declaration in Article 5 that "Except for those limitations that are
demonstrably necessitated by the fact of incarceration, all prisoners shall
retain the human and fundamental freedoms set out" in the UDHR and the
ICCPR.
Canada and Bulgaria have as well embraced, at least in principle, the
international tenets found in the previously cited Standard Minimum Rules
for Treatment of Prisoners (SMR). Significant to this enquiry is Principle
Rule 61 declaring that positive "Steps should be taken" by responsible
State agencies "to safeguard, to the maximum extent compatible with the
law and the sentence, the rights relating to civil interests….of prisoners."
From the foregoing it would appear a prisoner retains his a priori rights in a
suit at law. The State having in principal agreed to negative restrictions,
and in practice positive obligations. It the duty of the judiciary to see the
rights of prisoners when seeking a judicial remedy from the courts are
equal to the rights of other members of society, except only in so far as
they must be limited under a provision prescribed under law or by virtue
of a sentence. However, as we have seen, the prescribed limits under a
sentence cannot be seen to unreasonably to limit a prisoner's sine quo non
right to legal redress for his grievances, and to access the competent
judicial authority to do so. There appears to be no exception,
notwithstanding that the court of competent jurisdiction is beyond the
territorial reach of the State.
It appears that the significant body of law, and principles reviewed thus far
strongly suggest the following. That the application of any practice or
procedure by a State judicial or non-judicial authority is wrong when
having an affect that directly or indirectly restricts a prisoner's
fundamental rights or obligations before a court. The international
community having voiced strongly that it is not justifiable in a free and
democratic society to have an administrative practice, or procedure,
limiting the legal and procedural rights of one individual solely due to the
fact of his or her other status, having lost of their self determination -
liberty - and property. Any such practice or procedure must be impugned
and found invalid by virtue of its affect.
On the basis of the above, that Applicant believed he had a right and the
Defendant State of Bulgaria a positive obligation to any person it deprived
of liberty, to seek from the agency of the Ministry of Justice, of the
Republic of Bulgaria, to undertake its positive obligation to arrange
conduct custody of the Applicant to a judicial hearing. It is to be recalled
the hearing in question is one where the Applicant's legal, and property
interests were to be affected, having been fixed by the government of
Bulgaria before the foreign jurisdiction of British Columbia.

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The Defendant Bulgaria's recognition of the provincial court of British
Columbia as being the only judicial authority able to make a determination
of the rights and obligations of the parties is of significant to the later
enquiry.

IV.2.3Reverse Onus and Procedural Fairness.


In the proceedings before the trial court in British Columbia the Defendant
Bulgaria, in the case of this Applicant, abnegated the foresaid positive
international obligation and duty.
The Ministry of Justice, Republic of Bulgaria, Deputy Minister Dimitar
Tonchev, advised the Applicant on four different occasions [see Vol. 1
Tabs 5, 11, 12, and 14 of Plaintiffs Factum as filed] of the following. That
Bulgaria has no positive international obligation, or duty to allow or
secure for a Canadian citizen person deprived of liberty, what are, a
prior, legal rights guaranteed under international law whenever there is a
suit at law before a court having competent jurisdiction. Canada and
Bulgaria having no bi-lateral agreement to allow the Applicant access to a
Canadian court of law. Conduct in custody to British Columbia was
impossible. It finally up to the trial court of British Columbia to decide to
act on any positive obligation and duty, if any, that Canada might have to
its citizen's a priori rights in a suit at law. Canada's positive obligation and
duty flowing from its national and international commitments to its
citizens.
On having abnegated its positive international obligations, and duty to
guarantee individual rights for which Bulgaria is accountable under its
international agreements, the said defendant Bulgaria has wrongly placed
a reverse onus on the Applicant and Canada.
This reverse onus required the Applicant, a person deprived of his property
and liberty by the said State, to attempt to engage from prison, the trial
court of British Columbia, and government of Canada, to act where in fact
international agreements appear to require agencies of Bulgaria to act.
By virtue of its action or inaction, the Defendant Bulgaria knowingly placed a
reverse onus on a person it has deprived of liberty. The prisoner required
to undertake what is otherwise a State's positive obligation and duty. Its
agencies expected to provide a prisoner the means of accessing the judicial
authority competent to determine his rights and obligations in a suit at law.

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The forgoing made it necessary and reasonable for the Applicant to attempt to
develop a judicial remedy to the Defendant Bulgaria's refusals and its
reverse onus. To do so the Applicant complained directly to the trial court
of the coercive measures employed by the defendant Bulgaria. Petitioning
the Master to judicially review his complaints as a citizen of the province,
and party to a suit at law in the province. The Applicant seeking a judicial
review and reasonable remedy to the defendant's - Bulgaria - reverse onus,
and coercive acts obstructing, or hindering the Applicant in his lawful
right to effectively access the trial court. It stressed to the Master that in
the absence of form of procedural relief the Applicant's prosecuting, or
defending his legal interests before the court would be nearly impossible.
Application to the provincial court relied on what was believed to be an
incontrovertible principle in law of the trial court in a suit at law, as the lex
fori of the proceedings, having inherent jurisdiction to determine all
questions of fact affecting the procedural fairness of any hearing or trial.
Having this in mind the Applicant relied on a Master or Chambers Judge
having, a priori, a constitution duty and positive obligation to judicially
review his petitions from prison. The Applicant believing only the nature
of the judicial remedy to be discretionary, if there was to be one.

IV.2.4A Priori Rights in a "Suit in Law"


The foregoing leads naturally to a question in the mind of the Writer; Can
either the government of Bulgaria, or that of Canada, deny the means and
facilities necessary to its indigent foreign prisoners to fully prosecute, or
defend, a law suit brought before a foreign court?
Also aroused in the mind of this Applicant was if the common law interpreted
the a priori principles of international law as incorporated under the
Canadian Bill of Rights, Human Rights Act and Constitutional Act, to
apply only to criminal proceedings, and not to a suit at law.
The a priori principles of international law reviewed strongly suggested to
this Applicant the Sate having the same negative restrictions as well as
positive obligations in a suit at law as it does in a criminal proceeding. The
previously cited ICCPR proved particularly significant to the present
enquiry, Article 14§1 reading: "All persons shall be equal before the
courts and tribunals. In the determination of ….his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing."
The ICCPR has legally, and morally, bound the judicial, and non-judicial
officials of agencies, or instrumentalities of the governments of Canada,
and Bulgaria, to an incontrovertible positive obligation, and duty to apply
to any "suit at law" - a civil proceeding - the same a priori rights having
earlier been set out in the UDHR.

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The ICCPR ended all confusion, at least in the Applicant's mind, and
providing him the international instrument necessary to his establishing a
nexus between his "suit at law" in British Columbia, and his
incontrovertible a prior rights under international law as an indigent
person deprived of his liberty when party to a civil proceeding. Ending the
apparent confusion on the right of a prisoner to demand participating in
the prosecution or defence of a suit in law.
The ICCPR is significance in another way. There does not appear within its
text any exception, or saving provision, permitting a State to derogate
from, or unreasonably limit a person in the exercise of his procedural
rights, or obligations, in ”a suit at law" solely due to the fact he is a person
deprived of liberty.
The cited international agreements all have one overriding a priori principle
as a negative restriction on all democratic governments in unreasonably
limiting or denying the fundamental rights, or obligations of a person,
whether engaged in a criminal proceeding or a suit at law affecting a
person's legitimate legal and property interests, notwithstanding that
person to be the States prisoner.
3 A Posteriori
The cited international agreements clearly indicate the fundamental human,
and civil rights that should be guaranteed to all persons by the respective
national laws of each State, intended to by their very nature to be self
evident propositions. However, these a priori propositions are open to
being broadly interpreted, and their application to particular set of
circumstance can only be reasonably established from the observable
facts.
Pivotal to this discussion, and the later applications, is the status of prisoners
in a democratic and free society. As identified earlier this status is
inherently afflictive, one that is morally and legally liable to direct and
indirect discrimination.
A person's status in society is a significant factor in determination of his
rights. Property or other status may pose significant barriers in the
exercising of the fundamental rights other citizens of a democracy
otherwise take for granted. The positive international obligations and duty
of a State, as opposed to negative restrictions, is to be sensitive and
responsive to those persons having a property or other status that
derogates from their fundamental a priori rights i.e. to develop a judicial
remedy before a court in a suit at law.

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Later, a positive judicial obligation and constitutional duty of the courts
appears to develop on complaint of a person, or distinct group of persons
against the State or some other party. The courts appear required to
judicially determine, a posteriori, if rights and obligations under law to a
particular person, or group of persons, somehow result in direct, or
indirect discrimination solely due to a disadvantage of property or other
status. Any such a determination is only possible on a review of the facts
and circumstances placed in evidence before the court. Only afterward, is
it possible to discuss the positive obligations, and duty of a government
and the courts to a person having a status so different from others that it
acts to negatively impact on his a priori rights.

IV.3.1A Prisoner's "Other Status"


International law includes a negative restriction strictly forbidding a State to
use a "distinction of any kind" based on property, nationality or other
status to limit a persons a priori right to access a judicial remedy.
The elements significant here to determining "other status" are those of a
persons "property", here indigence, and his "self determination", here
deprivation of liberty. The issue being what affect such elements have on
the practice and procedure to be followed in a suit at law.
Therefore it is significant to the present enquiry to determine the status of an
indigent prisoner in society as one requiring a positive obligation, and duty
from the judiciary to be responsive in guaranteeing the a priori rights of
all persons having this "other status" when petitioning the courts for a
judicial review and remedy.
While prisoners are not distinctly incorporated into the seminal UDHR, and
the later ICCPR as having "other status", it nonetheless appears
reasonable to conclude, a posteriori, the drafters of these declarations
having prisoners in mind when broadly including "other status" at the end
of "race, colour, sex, language, religion, political or other opinion,
national or social status…".
Clearly other status must be one given a sufficiently broad interpretation to
encompass within its ambit any individual, or group of individuals having
some distinct nature, or character. One sufficiently afflictive, or
disadvantageous to a particular group that there exists a real, or perceived
potential for direct, or indirect discrimination solely due to it members
having a status different from the rest of society. The potential for the
abuse of individual rights, and freedoms of indigent persons deprived of
liberty within the Republic of Bulgaria are discussed in some detail
previously under in Part 1: Statement of Facts: Practice.

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The Applicant's analysis and argument, a posteriori, relies on the court
accepting the proposition of a prisoner belonging to a distinct, and
disadvantaged group having the acquired "other status", within the context
found under UDHR Article 2, when declaring: "Everyone is entitled to all
the rights and freedoms set forth in this Declaration, without distinction
of…property.. or other status.”, and ICCPR Article 2§1 that declares "…
the present Convention undertakes to respect and ensure to all individuals
within its territory and subject to its jurisdiction the rights recognised…
without distinction of any kind such as…property…or other status."
Independently the elements of "property” and "self determination" are not
enough to derogate, or otherwise limit, the a priori rights of a person to
develop his legal remedy in a suit at law. The following reasoning appears
to apply to judicial practice and procedure in both Canada and Bulgaria:
A person having no property may appear before the court in a suit at law, in proprio
persona, to personally prosecute, or defend his legal and property interests before the
court. If sufficiently disadvantaged it is possible to seek the court to waive its costs.

A person deprived of self determination by a State on having been deprived of liberty, yet
retaining property, may engage a legal representative to appear on his behalf in a suit
at law to prosecute, or defend his legal and property interests before the court.
Alternatively, where it is necessary for some reason for the prisoner to attend, the
State has a positive obligation and duty to allow or secure a reasonable and necessary
means for him to appear and protect his interests before the court.

A special set circumstances are created on a person having no property, and no self
determination. The State then incurring a special positive obligation, and duty to
secure the means for its prisoner to appear and protect his interests before the court.

It is proposition No. 3 above that provides the a posteriori reasoning to find


indigent persons deprived of liberty as owned by the State a positive
obligation and duty due to their distinct "other status".
The two elements of a person's property status - indigence - and self-
determination -deprivation of liberty - interact to inevitably produce a
distinct group whose members are observably acquiring a "other status"
different from that of the rest of society. Quite possibly the same a
posteriori reasoning operated as a motive for the drafters of the UDHR to
formulate Article 6, requiring all ratifying State governments to guarantee
to those persons having "other status" their "recognition everywhere as a
person before the law". Going on to require under Article 10 (UDHR) the
State to guarantee "full equality to a fair and public hearing….in
determination of his rights and obligations…", rights and obligations
being given as broad an interpretation as possible to include, inter alia,
procedural rights, or obligations before a court of law, as well as legal
rights, or obligations, that sound in contract, or in tort.

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Determining a person or a group "other status" in society will not resolve
itself only from the self evident propositions of Canada's national law as
flow naturally from the principles of international law. These propositions
are immutable, and very broadly interpreted. Instead the answers needed
for the present enquiry are to be found from the observable facts found in
the present suit at law before a trial court of British Columbia.
The facts in the proceeding before the trail court have demonstrated the
immutable a priori propositions of individual rights under Canadian and
international law are not always seen to be observed as a positive
obligation and constitutional duty. This conclusion appears ex proprio
motu from an order of the Duty Master or a decision of the Chambers
Judge failing to recognise an indigent person deprived of liberty as having
acquired a distinct, and afflictive "other status" disadvantaged in Canadian
society.
The governments of Canada, and Bulgaria, both clearly have a positive
obligation, and duty to a person having an "other status" under
international law. The present Applicant, an indigent person deprived of
liberty, is therefore equally entitled to the guarantees of international law
in either of the two states as would be any other person.

IV.3.2A State's Positive Obligation and Duty To A


Person Deprived Of Liberty.
As has been discussed earlier, there is inclusive with any of the other positive
international obligations of Canada, and Bulgaria, the duty of government
agencies to secure the means for a person of "other status" - deprived of
liberty - to access justice. The right to have petitions, and arguments heard
and judicially decided is sine quo non a right in any adversarial proceeding
before a court of competent jurisdiction. Where the person is a prisoner,
the responsibility in securing that right belongs to the State.
It follows naturally from the previous discussion that a State's law makers
have the responsibility to set out practices, and procedures for agencies
and instrumentalities to observe in practice what has been set down in
principle. Both judicial and non-judicial bodies are required to react
responsively to the State's positive international obligation and duty to
guarantee to prisoner “recognition".
In principle, as we have seen, there exists a negative restriction to a State
limiting a prisoner's fundamental rights beyond what is necessary for
public order and safety or solely due to the competent jurisdiction, forum
conveniens, happening to be a foreign trial court - British Columbia. What
is of significance here is the obligation that exists to be react positively
and responsively to circumstances that indirectly limit fundamental rights
solely due to the "other status" of the person.

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There appears to be no rule under law, practice or procedure that proved a
legal obstruction under Bulgaria or Canadian law or the SCBC Rules of
Court and the principles of international law, for one party, a Canadian
citizen and resident of the province, to be barred from a provincial court of
British Columbia solely due to having been deprived of his liberty in the
Republic of Bulgaria by the other party, the Defendant government of
Bulgaria.
Furthermore, there appears no provision under international law, or the laws
of Canada or Bulgaria, that might exculpate either of the two
governments, or the trial court of British Columbia from allowing, or the
positive duty of securing, a prisoner his access to the trial court.
Clearly, at least to this Applicant, both Canada, and Bulgaria, have made
international commitments to guarantee to any person, including this
Applicant, a right of access to a court - Canada - and to "full equality to a
fair and public hearing" before the court, notwithstanding that the
Applicant is a prisoner of one state, the defendant Bulgaria, and a citizen
of the other state, Canada. The international community recognising the
principles of international law “shall be applied to all persons within the
territory of any given State".
The foregoing is consistent with the Speaker's reasoning that there exists a set
of homogenous international legal principles applicable to the "lex fori" of
the trial court of Canada, and the international obligations and duties of
the defendant foreign state, Bulgaria.
Significant to the present enquiry, and worthy of special consideration, is the
negative restriction found under Article 2 of the UDHR. It requires a State
to make "no distinction…on the basis of…jurisdictional…status of the
country to which a person belongs…" when determining persons'
fundamental rights and obligation, or the competence of a judicial
authorities' jurisdiction to determine such rights and obligations. This
appears to make moot any argument that the foreign or international
jurisdiction of a court acts as a bar in any way to the fundament rights of a
person before that court, notwithstanding they are deprived of liberty and
refused access.
This positive obligation and duty of a Canada or Bulgaria are not limited to
the nationality of the person affected or on whose territory that person is to
be found. This was given broad consideration in Principle 5§1 of the Body
of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment as previously cited by the Speaker.

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When applying the discussion's a posteriori reasoning thus far to the
circumstances of the case now at bar the following appears. The Applicant
having lost his property and self determination due solely to acts of the
Republic of Bulgaria placed a special positive onus, and duty on Bulgaria,
to make available the means necessary for him to prosecute, or defend his
interests from its prison. This positive onus was owed to the Applicant as a
person having "other status", notwithstanding his nationality as a
Canadian citizen, or for having named the State of Bulgaria as a defendant
before the foreign jurisdiction a British Columbia court.
However, as has been previously identified, the defendant Bulgaria has, in the
case of a Canadian citizen, abnegated its international commitment by
refusing its positive obligation and duty to a foreign prisoner. The
foregoing causes this Applicant to recall the following recurring theme
found throughout all the cited international agreements, the responsibility
of an independent judiciary.
The a priori principles of international law provides that the national law of a
State must allow a judicial remedy to all persons whose fundament rights
are believed directly or indirectly derogated by a practice and procedure of
a State.
Figuring significant in this is ICCPR Article 2§3(a) reading, in its relevant
part there to be "an effective remedy, not withstanding that the violation
has been committed by persons acting in an official capacity", the
judiciary named as one of the competent authorities charged with the
obligation, and positive duty to ascertain, a posteriori, if government
agencies have observed their negative restrictions as well as positive
obligations when discharging their duty to guaranteeing a prisoner his a
priori rights before the a court of law.
The foregoing suggests Canada as having a joint and several obligation, and
duty, to this Applicant - as its citizen - equal to, or greater than, that of
Bulgaria, to be responsive and to act positively- jointly or severally with
or without Bulgaria - to see that its citizens "rights and obligations" in "a
suit at law" before a court in Canada - are guaranteed to him. This
conclusion is arrived at first from multilateral agreements that clearly
express the a priori rights and freedoms as set forth earlier are made
available everywhere, and second on the basis of the applicable laws of
Canada.

IV.3.3Positive Obligation and Duty of Bulgaria


This was discussed in detail earlier under the heading of A Priori: Access to A
Court. However, before proceeding to a discussion on developing a
judicial remedy before a court of the province, it seem reasonable to
enquiry into the positive administrative obligation and duty of the State of
Bulgaria to a foreign person having "other status" on its territory.

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The fact of international law as it exits, and the defendant Bulgaria having
observably ratified that law, strongly suggests, a posteriori, Bulgaria to
have the positive obligation, and duty to observe such law in practice.
Applying these a priori principles to the present case at bar places the onus
squarely on the defendant Bulgaria to secure, or allow the Applicant's
appearance before a Canadian court. This responsibility going exclusively
to the non-judicial agencies of the State of Bulgaria charged with the
positive obligation of guaranteeing the rights of a person imprisoned on
Bulgarian territory.
It is to be recalled that the penal administration agency of the defendant
Bulgaria is its Ministry of Justice, Republic of Bulgaria, having the
positive administrative obligation and duty to be sensitive and responsive
in guaranteeing the fundamental right of a prisoner to attend to, prosecute
or defend his interests in a suit at law.
To confirm this positive obligation and duty of Bulgaria to prisoners only
requires recalling Article 31§5 of the Bulgarian Constitution that reads
"Prisoners shall be kept in conditions conducive to the exercise of their
fundamental rights which are not restricted by virtue of their sentence",
and Article 57§1 of the Constitution declaring that a persons "fundamental
rights shall be irrevocable." These two constitutional principles are
confirmed under the cited Bulgarian Law on Execution of Punishments,
Chapter Two Article 23 on the Legal Status of Incarcerated Person.
Clearly, in principle the Applicant enjoys the full rights of any other person in
a suit at law. However, in practice it is equally as clear that the defendant
Bulgaria is unprepared to make good on its international commitments.
For this reason the Applicant turned to the provincial court to develop a
judicial remedy.

IV.3.4The Master's Positive Obligation


The discussion has made apparent, at least to the Applicant, that there exists a
body of international law that sets out the positive obligations and duties
of State governments. Incorporated in the obligation and duty of a State is
the self evident proposition that all persons are to have the possibility to
develop a judicial remedy. It sine quo non the right of every person to
have his grievances judicially reviewed in an equal, and open adversarial
hearing before a court of law.

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It flows from international law that the national - provincial - courts have
jurisdiction, and a positive obligation to be sensitive, and a duty to be
responsive in observing the equal rights of all persons' party to a "suit in
law", notwithstanding the "other status" of one party as a prisoner of the
other party, a foreign government. A court's practices and procedures
acting to guarantee to all persons a fundamentally equal availability of the
rights provided for under law in a "suit at law", notwithstanding the
person belongs to a distinct and disadvantaged group having a "other
status", i.e. indigent and deprived of liberty.
These a priori principles of international law are a part of the common law
and the historic tradition of the Canadian sense of what is right. It suggests
that there must exist a role for a Master, or Chambers Judge of the
provincial court when observing the negative restriction extending equally
to all persons the right to have their grievances adjudicated in a suit at law,
to also observing as well a positive obligation and duty to act ex proprio
motu in removing any obstacles to extending this or other fundamental
rights to a person afflicted by a other status directly or indirectly affecting
his rights.
The importance of the defendant Bulgaria's role in the proceedings before the
trial court cannot be overstated. As a State it had a duty to observe the
rights of the Applicant before the Honourable Courts of Canada no less
than it is the duty of Canada's government were it similarly disposed.
The principles of reasonable limits on a prisoner's fundamental rights are
discussed in the previously cited Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, Principle
36(2), the international community agreeing on the negative restrictions to
be observed by a member state to include not placing "restrictions upon
such a person which are not strictly required for the purpose of the
detention".
The Applicant can find no saving provision or principle under the cited
principles of international law and comity that appear to permit an agency
of a foreign state to directly, or indirectly, interfere with the judicial
processes of another state, or for that matter to interfere with the standard
minimum limits for prisoners as recognised by the international
community.
The most comprehensive of the international documents dealing with the
positive obligation and duty of a state to its prisoners happens to be the
United Nations Standard Minimum Rules for the Treatment of
Prisoners (known as the Standard Minimum Rules), adopted by the U.N.
Economic and Social Council in 1957. It should be noted that although the
Standard Minimum Rules ("SMR") are not a treaty, they constitute an
authoritative guide to the binding treaty standards recited above. Part II
Principle 57 is most instructive:

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"Imprisonment and other measures which result in cutting off an offender from the
outside world are afflictive by the very fact of taking from the person the right of
self-determination by depriving him of his liberty. Therefore the prison system shall
not, except as incidental to justifiable segregation or the maintenance of discipline,
aggravate the suffering inherent in such a situation."

The said Principle 57 clearly expresses what the Applicant attempted to


identify in his written petitions to the Master and Chambers Judge of the
trial court, "imprisonment and other measures which result in cutting off
an offender from the outside world are afflictive by the very fact of….
depriving him of his liberty". According to the SMRs governments should
act positively to "minimize any differences between prison life and life at
liberty which tend to lessen the responsibility of the prisoner" (see Art.
60). It is recalled the defendant Bulgaria having refused all the Applicant's
petitions to observe its positive obligation and duty to him as its prisoner.
It is to be recalled that the Respondent Bulgaria's legislation on the subject of
a prisoner's fundamental rights encompasses all those rights available to
others except what is " not restricted by virtue of their sentence" [see: the
cited Art. 31(5) Constitution of Bulgaria]. Other than this an "incarcerated
person(s) may avail themselves of (enjoy) all rights established by law"
and the Defendant Bulgaria's agencies forbidden to restrict such rights
[see: the above cited Art. 23 Law on Execution of Punishments] solely due
to imprisonment.
The Bulgaria's Criminal Code of Procedure (CCP), not unlike Canadian
enactments, prescribes the possibilities for temporary escorted absences of
prisoners, and incorporates into this one provision of its CCP the same
principle found under of the Rule 40(40), Rules of Court. Admittedly even
the practice and procedure prescribed under the Bulgaria CCP Art. 463 as
previously cited are of little, or no practical use to guide a trial court. The
defendant Bulgaria having never been called on to observe its international
agreements, its legal landscape bereft of any substantive jurisprudence on
the application or practice of the international law principles discussed
thus far.
If the Master and Chambers Judge had difficulty with the lex loci delicti of the
Applicant's imprisonment, they were at least familiar with Canadian
legislation, and able to be guided by the principles to be found there.
Unlike that of the Republic of Bulgaria, Canada's enactments are
substantially clearer on the subject of temporary escorted absences of
prisoners. This is reviewed earlier as a provision of s. 7.3 of The Prisons
and Reformatories Act Chapter P-20 R.S., c. P-21. Prisoner's temporary
absences directly incorporated as a right of prisoners in Canada for
"reintegration into the community".

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The Corrections and Conditional Release Act 1992, c. 20 goes even further
under s.4 to instruct "the Service use the least restrictive measures" and
that "offenders retain the rights and privileges of all members of society".
Temporary escorted absences are provisions of s. 17(1), prisoners’
absences to be permitted for "administrative", "rehabilitative" or "reasons
other than medical".
The Correction Act [RSBC 1996] Chapter 74 s. 15(1) further allows the
Minister to request and authorise temporary absences of prisoners.
It can as well be seen from the Rules of Court, Rule 40(40) that the trial court
has the jurisdiction to order the temporary absence of a prisoner as
follows:
"Order for attendance of witness in custody

"(40) The court may order the attendance of a witness who is in the lawful custody of
another person, including the custodian of a penal institution.

It is recalled that the Applicant's petitions to the Master and Chambers Judge
had raised all the forgoing issues, having in part relied on Rule 40(40).
The Applicant petitioned the Master to provide a subpoena or order for the
Defendant Bulgaria to produce the Applicant. This would be seen by the
defendant Bulgaria as the "paper(s) submitted by the other Country" [see
the above cited: CCP Art. 463] to allow a "district court" of Bulgaria to
consider the Applicant's request of temporary escorted conduct to appear
before the court. Much of the Applicant's frustration is derived from being
refused a judicial review of his requests for an escorted appearance before
the trial court in British Columbia, despite that the minimum rights of
persons deprived of liberty happen to include the possibly under both
Bulgarian, and Canadian national law to bring and prosecute to the full
extent of the law a civil claim. Even against the very State, or its
institution and officials, having deprived him of liberty and property.
These respective provisions of the national laws of Bulgaria and British
Columbia, and principles of international law, were are relied on by the
Applicant when petitioning the Defendant Bulgaria, the Ministry of
Justice, and then the Master and Chambers Judge of the provincial court.
Had the fact of the defendant Bulgaria being in breach of international law
been established on hearing the petition of the Applicant, it would be
bound to have raised appropriate and very real questions in the mind of the
court as to the purpose of the coercive measures and interference
employed by the said defendant. The negative restrictions as well as
positive obligations and duty of the defendant Bulgaria under international
law should not have been overlooked by either the Master or Chambers
Judge on their review of the Applicant's complaints.

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Principally what is immediately apparent to the Applicant is the following; (1)
If the body of principles found in international and national laws are to be
at all meaningful, then there must exist a duty of States, the likes of
Bulgaria, and respected democracies the likes of Canada, to secure for
persons deprived of liberty, their individual rights before courts of law;
and (2) individual rights of persons deprived of liberty before the courts of
law can only be guaranteed if agencies of the State allow, or provide this
distinct and disadvantaged group the practical means for equally
prosecuting, or defending, their claims before courts of law.
To this Applicant it appears that for a State's - Canada - assistance to be
meaningful it must go beyond allowing a prisoner his filing of an
originating writ, or claim. The State's assistance must include the
possibility of prosecuting or defending of rights and obligations through
the pre-trial and trial proceedings, until there comes into force a final
judgement taken by the respective court.
It appears, from the available body of law relied on by this Applicant, that
both the governments of Canada, and Bulgaria, are required to secure for
this Applicant his right to access some practical means of prosecuting, or
defending, his legal interests in a law suit. It goes without saying that the
alternative of hindering, or obstructing, the Applicant, a prisoner, is an
unacceptable proposition, notwithstanding that it is in the States' interests
to do so.
The onus appears to be on the government to identify the means to be
allowed, or provided persons having been deprived of liberty to appear
before the courts in a manner appropriate to their circumstance of
imprisonment, and the danger they pose to society.
In the alternative, where a government - Bulgaria -refuses to conduct a person
deprived of liberty before a court of law, the onus falls on it to identify,
and provide an effective alternative to appearing in proprio persona before
the court. Say electronically or in writing, and sufficient to allow for an
adequate possibility of effectively prosecuting, or defending a law suit,
again not withstanding that the government is named as a defendant.
For these reasons the Applicant petitioned a Master and a Chambers Judge, in
the name of procedural fairness, to exert the courts inherent jurisdiction in
Canada over the defendant Bulgaria. The court to require, in the name of
international comity, the Defendant, Bulgaria to observe the negative
restrictions as well as positive obligations as evidenced by its international
commitments. The said Defendant to require its agencies to secure, or
allow the Applicant, a Canadian citizen, his a priori fundamental rights as
guaranteed to all persons deprived of liberty i.e. to develop his judicial
remedy and attend to his rights and obligations before a court of Canada.

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The Applicant, in written pleadings to the provincial trial court, expressed an
opinion that the court had an enforceable right of jurisdiction over any
legal representative of the defendant Bulgaria to be found in Canada. The
very fact of Bulgaria having ratified the previously cited international
documents allowing the court could seek Bulgarian cooperation on the
subject of the Applicant's complaints of interference with his rights and
obligations in Canada.
Furthermore the elements of the proceedings before the trial court, inter alia
the plaintiffs' causes of action, the nature and character of the injuries they
suffered, and the relief sought, are again prima facie evidence that the
court of competent jurisdiction to determine the rights and obligations of
the litigants proves be a trial court of British Columbia. The Applicant
believes this makes the positive constitutional duty of a Master or
Chambers Judge more apparent, it therefore standing to reason, a
posteriori, the court to extend its jurisdiction to include the complaints and
applications of this Applicant, notwithstanding its prison origins are
outside of Canada.
The Applicant argued to the trial court that the scope of a state's positive
obligation, and duty, to persons deprived of liberty, appeared to be "on all
fours" with his a posteriori reasoning. There can to be no reasonably
justifiable derogation or limiting of the Applicant's rights in a "suit at law"
solely because he is a prisoner, and happens to be a necessary party to
prosecuting or defending his own interests and that of other plaintiffs
before a court of British Columbia.
At the risk of being redundant the Applicant recited to the Master the practice
and procedure of the Defendant Bulgaria's Criminal Code of Procedure,
under Art. 436 allowing: "...persons detained in custody to be interrogated
as witnesses or experts shall be allowed….on the grounds of the papers
submitted by the other country…", and the allowances made under the
Rules of Court, Rule 40(40) that reads: "The court may order the
attendance of a witness who is in the lawful custody of another person,
including the custodian of a penal institution."
No assertion was made before the Master, or is now made in the present
enquiry, that a court of Canada exerts its jurisdiction beyond the
boundaries of Canada. Instead, the Applicant had suggested the Master be
responsive to his circumstances, and act positively by providing a
reasonable remedy. Only exerting the court's jurisdiction on a procedural
matter - to subpoena and order the attendance of a person in custody of the
defendant - Bulgaria to appear together before the court. Such an order
appeared within the ambit of the civil proceedings before the Master, it
requiring the court only exert its jurisdiction within Canada's boundaries.
The defendant Bulgaria having legal representatives accessible to the
court, and to be found in the province.

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The laws of Canada do not appear to provide for, or allow a saving provision
permitting a Duty Master or Chambers Judge to abrogate the courts duty
to procedural fairness, and Canada's obligations, to a prisoner's a priori
rights under international law.
The fact that indigent prisoners are not specifically designated under the Court
Rules Act, Rules of Court, or other enactment of Canada, as persons of
"other status" having an observable afflictive legal "disability” did not act
as a bar to a Master or Chambers Judge in being responsive to the
difficulties of the afflicted person. Omission from the Court Rules Act of
persons having "other status" i.e. indigent prisoners does not alter the fact
of the Master having a special duty to be responsive to the extraordinary
difficulties of the Applicant by virtue of his circumstances.
The cited ICCPR Article 5§2 is more direct when stating: "There shall be no
restriction upon or derogation from any of the fundamental human rights
recognized or existing in any State Party to the present Covenant pursuant
to law, conventions, regulations or custom on the pretext that the
present Covenant does not recognize such rights or that it recognizes
them to a lesser extent ".
Having said the foregoing raises again another question. Why is the Speaker, a
Canadian citizen, being restrained from accessing or being heard by a trial
court in Canada, the jurisdiction where his property and other civil
interests are most affected by the defendants? The answer, at least to the
plaintiffs, is an obvious one. The defendant state fears a civil prosecution
may lead to a public exposure of institutional abuses of human rights,
official powers and corruption the likes of that reported by NGO's, the
UN, the EC (European Court) and US State Department [see: Part 1: facts
Existing In Aggravation of the Claim]. To the plaintiffs no other
explanation is plausible.
The present enquiry's a posteriori reasoning also suggests a reason why the
Master or Chambers Judge would not judicially review the Applicant's
Charter and other complaints. Therefore a standing practice and procedure
must exist in order for the Master or Chambers Judge to have placed a
reverse onus on any party in a suit at law upon applying for judicial review
of their application. The Master leaving it to them to secure their a priori
rights, inter alia, of access to the court to have their application heard, and
to develop their judicial remedy before the court.
The Master's reverse onus having two elements, either the applicant must
appear personally, or must secure an attorney to appear. The Master or
Chambers Judge proving insensitive and unresponsive to any petitioning
on extraordinary facts, or afflictive circumstances acting to involuntarily
obstruct the petitioner from complying with onus imposed by the Master's
Order.

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The Master’s Order clearly observed the negative restrictions placed on the
court to not deny the petitioner his right to develop a legal remedy before
it, these restrictions flowing naturally from the cited international law and
constitutional duty of the Master. However, the Master wrongly and
unreasonably reversed the onus of the courts positive obligation to react
responsively to all persons having an observable affliction. The Master
failed to observe his and the Court’s positive constitutional duty to
procedural fairness. Under the circumstances to observe his duty the
Master was required, ex proprio motu, to act where and when it is
becomes apparent that the a priori rights of an Applicant are about to be
indirectly denied by the Master’s observing certain Rules of the Court or
common practices in what are unusual circumstances. This resulted in an
indirect discrimination based solely upon the other status of the Applicant
in society who happens to be an indigent Canadian citizen deprived of his
liberty in a - Bulgaria - prison.
The Applicant's circumstances, already aggravated by the Defendant Bulgaria
are now made impossible by the Master's order. The defendant Bulgaria
able to continue with impunity to interfere with the Applicant's right to
develop his judicial remedy in Canada, and able to maintain its
unwillingness to allow the Applicant access to the court in British
Columbia in the absence of a Master of Chambers Judge order.
Could a Duty Master or the Chambers Judge of the trial court have therefore
erred in judgement when placing a reverse onus on this Applicant to
secure his a priori rights otherwise guaranteed to him by the international
commitments of both Bulgaria, and Canada?

IV.3.5Procedures, Conflicts and Comity


It is recognised, for the purposes of the enquiry to follow that the order or
decision of a Master or Chambers Judge is discretionary, having followed
a practice and procedure of the court in determining to have applications
"spoken to" by a petitioner or his legal representative.
It should be recalled the Applicant petitioned the trial court for some
reasonable form of procedural relief from the defendant Bulgaria's
obstruction of his a priori right as a person deprived of liberty to develop a
judicial remedy, and to prosecute, or defend his interests in a suit at law.
It is reasonable to again recall the Applicant's complaint to the Appeal Court
before attempting to resolve the practice and procedure available under the
Court Rules Act, or that applied by the Master to the observable facts
before the court. The Master reasoning a posteriori, what is or is not to be
an a priori right of an indigent litigant deprived of liberty. The intended
appeal maybe summarised as follows:
First, a practice and procedure under the Court Rules Act, Rules of Court, is being
impugned by this Applicant, it indirectly discriminating solely on the basis of a
person's status of property and self-determination.

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The Act is impugned due to an omission, it having failed to distinguish the governments
negative restrictions from its positive constitutional obligations to persons subject to
a regular form of indirect discrimination solely due to the inherent legal disabilities
-disadvantages - i.e. as affects all indigent prisoners.

The Act is further impugned for failing to identify indigent persons deprived of their
liberty as belonging to a distinct social group. The courts, on removing a person's
right of self determination having created a distinguishable, and disadvantaged
"other status" different from other indigent members of society.

This "other status" is one made inherently afflictive by an act of law, it therefore
warranted a positive legislative remedy.

The difficulty arises from the present practices and procedures of the court not being
sensitive to the afflictions, or responsive to the needs of the affected group. As a
result all persons within this distinct, and disadvantaged group are unable to
overcome the obvious indirect discrimination occurring solely due to their
unmistakable "other status" in Canadian society. The impugned practice and
procedure acts as an unreasonable barrier only to members of the group, it barring
them from engaging the services of the provincial courts of law in prosecuting or
defending their legitimate interests in a suit at law.

The groups Charter, and a priori rights as flow from the principles of international law are
as a result unreasonably limited in a suit at law by the impugned Act. The present
practice and procedures indirectly and unintentionally barring all members of the
group from accessing the courts powers or obtaining a judicial remedy bar solely due
to their poverty, and the distinct disadvantage of having been deprived of liberty.

Second, the observable facts and circumstances of this Applicant's "other status" make
the Duty Master's order unreasonable, and Chambers Judge findings incorrect.

Both order, and decision are impugned for failing to recognise, or to be unresponsive to
the petitioner's a priori rights as a member of a distinct, and disadvantaged social
group existing within Canadian society.

The Duty Master erring in judgement when having failed to distinguish the courts
positive constitution obligation and duty to procedural fairness to persons having
"other status" from its negative restrictions to limiting the rights of parties in a suit at
law.

The Master proved insensitive, and unresponsive to the inherent afflictions of the
petitioner's "other status", and the affect to his procedural rights on the application of
a practice and procedure of the Master in a suit at law. In electing to place a reverse
onus on the Petitioner in place of the courts positive constitutional obligation and
duty, the Master acted to effectively bar the petitioner's access to the courts
procedural powers.

The legal affect of the Duty Master's order was to indirectly discriminate by making the
court's services available to the petitioner only on condition of property - he must
have the means to retain legal counsel - and on a condition of self-determination - he
must be able to appear before the court.

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The Chambers Judge, the learned Edwards J., erred on finding the Master's order
reasonable. His Lordship's decision proved equally insensitive, and unresponsive to
the petitioner's "other status" in Canadian society. Edwards J. apparently finding
poverty, and the deprivation of liberty, a "other status" having no inherent
disadvantage, or affliction derogating from, or otherwise indirectly discriminating in
unreasonably limiting the petitioner's possibility to exercise his a priori rights. His
Lordship failing to make the distinction between the negative constitution
restrictions on the Master as opposed to his positive obligations to equality and
procedural fairness.

The learned Master, and Chambers Judge, both erred in their a posteriori reasoning when
finding the petitioner's poverty, and loss of self determination as posing no obstacle
to his appearing before the court, or retaining a legal representative. The order
creating a practical barrier that acted to indirectly discriminate by limiting the
petitioner's rights as a person under law to prosecute, or defend his claims in a suit at
law as a citizen of Canada. The Petitioner's a priori rights to a fair, and open
adversarial hearing of the his complaints, and the facts denied to him by the Master
solely due to this other status.

The Applicant attempted to resolve, from three standpoints, the Duty Master's
order, and Chambers Judge Decision. It is significant to recall that the
Applicant was not provided any written reasons for the Duty Master's
order.
The first possible point appears to concerns the procedural options available to
a Master or Chambers Judge of the provincial court, the second a possible
conflict between the national laws of Canada and Bulgaria acting as a bar
to the available procedures, and the third and final point concerns the
comity among nations. The defendant's status as a foreign State acting to
bar the Master in exercising the courts inherent jurisdiction over its own
processes.
IV.3.5.1 Procedures
Earlier the Applicant made reference to the practices and procedures available
under the SCBC Rules of Court at Rule 40, and under the Criminal Code
of Procedure, Republic of Bulgaria, at Art. 436, both having provisions
allowing for persons deprived of their liberty to appear before a court of
competent jurisdiction.
It is apparent from both the cited enactments that there exists no negative
restriction in either to allowing a person under custody to be either
summoned, or alternatively permitted, to appear as a "witness” or "expert"
on subpoena before a foreign court.
What is apparent under both the cited enactments is the positive procedural
obligation and duty of the State and the summoning court to act
responsively and responsibly in securing the appearance of the person
required before the court.

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This Applicant's final reasoning before the competent non-judicial authority of
the defendant Bulgaria, and before the Chambers Judge of the trial court,
relied on the observable fact that the hearing was fixed by the defendant
Bulgaria, and he was named as a Respondent in the Notice of Hearing.
Ergo, it only reasonable the defendant Bulgaria undertake arrangements
for his conduct in custody to and from the hearing.
IV.3.5.2 Conflicts
An attempt is made here to resolve on what grounds a Master or Chambers
Judge might have for refusing the Applicant's petition to have the
defendant Bulgaria conduct him in custody to and from a hearing fixed by
said defendant.
The Writer first considered a possible conflict between the two national laws.
That of the defendant Bulgaria's civil and socialist law traditions, against
that of the "lex fori", the trial court of British Columbia and its common
law traditions.
What is significant to the discussion here are what conflicts exists, if any, with
provisions found under the two legal traditions and the a priori principles
of international law.
The Applicant considered his imprisonment abroad, and the defendant
Bulgaria's status as a foreign State as possibly acting jointly or severally to
bar the Master from exercising the court's positive obligation and duty to
procedural fairness, as opposed to only observing its negative restrictions.
Earlier the Applicant reviewed, and discussed the cited international law,
including the United Nations tenets on the treatment of prisoners. The
Applicant believing the principles found there as having established a set
of a priori propositions binding on both Canada and Bulgaria. The fact
such guiding principles exist gave the Applicant reason to believe there
cannot be any conflict of law where fundamental a priori rights are
concerned. The parliament of British Columbia, and that of Bulgaria each
having separately enacted their own negative restrictions as well as
positive obligations guaranteeing, at least in principle, to all persons their
right of inter alia equality before the courts in determination of their rights
and obligations in a suit at law.

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On a reading of relevant Canadian and Bulgaria enactments as cited here it
becomes clear to the Applicant that both governments made commitments
to protecting all persons from direct, or indirect discrimination solely due
to inter alia a persons property status, or for having a distinct "other
status" in society i.e. deprived of their liberty. It is also observable the
cited enactments have provisions recognising the sine quo non right of a
prisoner to develop a civil remedy before a competent - judicial -authority.
This applying equally to a criminal justice proceeding as it would to a
prisoner's prosecution, or defence of his legal rights, or property interests
in a suit at law. There is intrinsic to such right inter alia the possibility to
be recognised as a person before the court, to have the equal protection of
the court, and the possibility to have ones grievances equally heard, as any
other person, in an open court with all parties in attendance.
What is therefore significant to the present enquiry are not the a priori legal
rights allowed a person of other status - prisoners - by Canada, or
Bulgaria before a court of law. It is instead a question of what a priori
rights are unintentionally or intentionally barred to persons of other status
- prisoners - by virtue of a practice and procedure under a Canadian or
Bulgaria enactment.
Previously the Applicant enquired into the role afforded the national non-
judicial and judicial authorities of a State in securing the procedural rights
of prisoners as persons having an afflictive "other status" in society. What
appears from this earlier discussion are the following self evident
propositions:
It appears as incontrovertible that Canada, and Bulgaria have a positive obligation and
duty, independent of each other, to all persons imprisoned on their respective
territory, and to citizens imprisoned abroad.

It appears as equally incontrovertible that the courts of Canada, and Bulgaria are
constitutionally endowed with a positive obligation, and duty, to vigorously as
opposed to passively secure to all persons before the law within their respective
jurisdictions the a priori rights that naturally form a part of the international
commitments of each government, notwithstanding the "other status" of the person,
i.e. an indigent foreign prisoner.

It is incontrovertible that no provision is to be found under international law, or the


national "lex fori" of Canada, or that of Bulgaria, having a legislated exception
preventing a person from developing an effective judicial remedy in a suit at law
solely due to his "other status" as an indigent person deprived of his liberty. The
courts having a obligation, and duty to be positively responsive to the material, and
other afflictions of a petitioner with a status - imprisonment - that by its very nature
is afflictive.

It is also incontrovertible that the courts of Canada and Bulgaria have constitutionally
authority to judicially determine, within their jurisdiction, an effective remedy, or
other relief on application of a person believing his legal, or property rights under
international or national law are somehow violated by a government agency.

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It is incontrovertible where a prisoner is denied, without lawful reason, access by a
government agency to a civil court of competent jurisdiction, it is the positive
obligation, and duty to procedural fairness of the respective court to develop a
remedy guaranteeing the prisoner's a priori right to attend, in custody, any hearings
or trial affecting his legal rights amd interests, or to allow for some other practical
and equally fair means for him to prosecute, or defend his legal interests in a suit at
law.

One proposition found under the cited international, and national laws is the
negative restriction on a State's non-judicial and judicial bodies in limiting
the fundamental rights of a prisoner beyond what is absolutely necessary
to public safety, and order. The Applicant again recalling UDHR Article
29§2, and SMR Principle 61.
On the basis of the foregoing, if there is to be any conflict of laws at all, it
appears to be one limited only to interpretation and practice of a priori
justice as opposed to its substance. Both legal traditions of Canada and
Bulgaria, in sharing the same a priori principles of international law,
cannot be in conflict on a question of a person's fundamental right to
protection from direct or indirect discrimination. There can not exist in
law a conflict on the self proposition of a person's right to a judicial
determination of his complaints, rights or obligation in a suit at law by the
court of competent jurisdiction.
The present discussion will therefore attempt to concern itself with
interpreting the positive obligation and duty of judicial and non-judicial
bodies to an indigent Canadian citizen deprived of his liberty on the
territory of Bulgaria.
Foremost the Applicant believes the common law interprets the constitutional
obligation and duty of Canada's courts to be a positive one in any
observable circumstance of a practice, or procedure that indirectly
discriminates by creating an unreasonable barrier to the obtaining justice -
judicial review -only for a distinct group of disadvantaged persons.
What remains is to consider how reasonable it is for a court of Canada to
extend its jurisdiction in a suit at law to the "territory of any given state"
when responding to its positive constitutional obligation and duty to a
citizen having a other status. Notwithstanding the State in question is
party to the cited treaties, and a defendant in the proceedings before the
provincial court.
To continue this discussion it is necessary once again to summarise the
observable facts within the context of the self evident propositions
previously listed. The following is recalled:

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The Defendant Bulgaria is a foreign government against whom the Applicant and other
plaintiffs have framed their claims within the province to sound in contract and in
tort. Included among the causes of action are personal - physical and mental - injury
claims having occurred in, or otherwise connected to the province. As previously
mentioned the provincial court's juridicition relied on the exceptions found under
Canada's State Immunity Act and the available jurisprudence of the courts Canada,
England and the United States of America.

The defendant having filed an appearance, and its applications for judicial determination
on the questions of jurisdiction simpliciter and forum non conveniens remain live
issues before the trial court.

At this present stage of the proceedings the provincial court of British Columbia remains
the competent jurisdiction to determine, according to the facts and law, the rights and
obligations of the defendant Bulgaria, and the plaintiff within Canada. The provincial
court therefore has inherent jurisdiction to determine all questions of procedural
fairness.

The Applicant, has a "other status" of being an indigent Canadian citizen deprived of his
liberty abroad. The agencies of the defendant Bulgaria are responsible for his
imprisonment, and equally responsible for his a priori rights as flow from the
principles of international law previously discussed. The Applicant is imprisoned six
(6) years, and still awaits a final sentence. There exists no provision of Bulgarian
national acting to limit or bar a person deprived of liberty from prosecuting or
defending his rights and obligation in a suit at law, notwithstanding the foreign
jurisdiction of the competent court. The Criminal Code of Bulgaria having no
provision to deprive a sentenced person of his rights and obligation in a suit at law, it
in fact allows for a practice and procedure to extradite -conduct - a person deprived
of liberty to testify before to a foreign court.

The Applicant, relying on relevant international law and enactments of Bulgaria, and
Canada, petitioned the responsible government agency of the defendant Bulgaria to
contact the responsible agency of Canada. The Defendant Bulgaria to arrange the
Applicant's conduct in custody to, and from hearings as fixed by it before the
provincial court. Reference was made to the defendant Bulgaria's motion to the
Master, and its notice of hearing - subpoena - requiring the Applicant to appear, as
respondent, to defend his interests in a suit at law. The responsible agency of the
defendant, the Ministry of Justice Republic of Bulgaria, refused its positive
obligation and duty to contact Canadian authorities, on petition of the Applicant.

In the alternative the Applicant, again relying on international law, and enactments of
Bulgaria and Canada, again petitioned the foresaid responsible government agency
of the defendant Bulgaria to obtain its consent to a motion having the Master order
the proceedings be conducted only in writing for as long as alternative the defendant
Bulgaria refused to conduct the Applicant to hearings before the court. No reply was
forthcoming.

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On having exhausted all possible administrative remedies available to the Applicant
under Bulgarian law as a foreign person deprived of liberty, and believing it sine quo
non for the trial court to act responsively to any arbitrary interference with a party's
legal rights, he did petition the Master of the provincial court for a judicial remedy.
The petition requested procedural relief from the defendant Bulgaria's continued
interference with the Applicant's legal rights as a person under law before the
provincial court. The application relied on international law, and Canada's
Constitution Act, the Human Rights Act, the Bill of Rights, and the provincial Court
Rules Act, Rules of Court. The petition as filed sought a procedural remedy in two
forms. First directing the defendant Bulgaria arrange to conduct of the Applicant, in
custody, to a hearing it had scheduled with the Master. Second, in the alternative, an
interlocutory order was proposed to have all pre-trial hearings conducted in writing
only, the court to obtain assurances from the Defendant Bulgaria to allow the
Applicant sufficient time, and facilities. The court asked to require the said
Defendant to see to its agencies end interfering with the Applicant, his facilities, and
the materials necessary to his prosecuting or defending his right and obligations
before the court.

The Duty Master refused to judicially review or hear the Applicant's petition(s), or to
determine the legal affect of the courts order. The Master placing a reverse onus on
the Applicant to appear or retain an attorney to bring his applications before the
court.

Chambers Judge Edwards J. refused to judicially review or hear the Applicant's appeal on
the reasonableness a Duty Master's reverse onus. His Lordship's took a decision to
not review the Applicant's constitutional complaint that the Master's order and a
practice and procedure of the court breached his Charter rights and the a priori
principles of international law by indirectly discriminting to deny him the courts
services solely due to his status as an indigent Canadina citizen deprived of his
liberty abroad.

That the defendant Bulgaria abnegating its positive international obligation,


and duty to the Applicant is a matter of the evidential record before the
trial court. There is simply no law, or saving international principle that
appears to relieve the State of Bulgaria from its positive obligations and
human responsibilities to a person it has deprived of liberty.
The State of Bulgaria had a duty to observe its international agreements. This
required its agencies to provide conduct to and from the court, or at worst
to allow the practical means to the Applicant necessary to his developing a
judicial remedy against the Republic of Bulgaria as a defendant.
The agencies of the State of Bulgaria had to not only observe the negative
restrictions but as well the positive obligations intrinsic to the practice and
application of fundamental law. The defendant Bulgaria having a duty to
respect Applicant's a priori rights, notwithstanding that the court having
competent jurisdiction to determine his rights, and those of others in a suit
at law happened to be outside of Bulgaria.

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The government of the State of Bulgaria consciously choosing to not observe
its international commitments to persons it deprives of liberty is not a
matter of law for the Appeal Court to determine. However, this decision of
the defendant Bulgaria is a matter of significant fact that exists in
aggravation of the observable abridging affects on the procedural rights of
the Applicant before the provincial court.
To access a court of law, by whatever reasonable means are available, is far
more than the procedure discretion of a Master or Chambers Judge, it is
the immediate and prime a priori element to the determining any other
right and obligation of a person under law. Any judicial, or non-judicial
action that directly or indirectly acts to arbitrarily obstruct, hinder, or deny
the possibility for a person to develop and prosecute or defend a judicial
remedy cannot be justifiable in a free and democratic society.
Furthermore, on a reading of the international commitments of Canada, and
the enactments of parliament, there does not appear any conflict of law
question on the a priori rights found flowing from the international law.
There are no apparent conflicts of provincial law with any principle of
international law. No saving provision can be found under any enactment
of Canada, or British Columbia, permitting the courts to deny citizens of
Canada a right to develop a judicial remedy in a suit at law, where and
when they discover their legal or property rights breached. This right is
not to be limited solely due to a party's disadvantaged and afflictive "other
status" in Canadian society.
The foresaid are significant in any attempt to determine the positive obligation
and duty of the court, or government of Canada to the Applicant. There
can be no procedural fairness or "fair trial" in British Columbia where a
defendant is permitted to openly, and wrongly, deny or interfere with
another party's rights in a suit at law before a court.
Ultimately it will remain for the Appeal Court to finally determine the extent
of a Master or Chambers Judge's positive constitutional obligations, and
duties to procedural fairness when the question is one on the a priori
rights of a Canadian citizen. The court finding the defendant before it to be
a foreign state, and the principle plaintiff and witness an indigent citizen
the said defendant has, lawfully or unlawfully deprived of property and
liberty. The plaintiffs complaining of unreasonable, possibly unlawful,
coercive measures employed by agencies the State defendant to interfere
with the legal rights of one or more of them when before the court in
British Columbia. While it is significant that that the alleged acts of
interference occur outside of Canada, it is the processes of the provincial
court that are interfered with.

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The international treaty obligations of Bulgaria must speak to the lawfulness
of its coercive measures against this Applicant or any person it holds under
detention. It recalled the defendant government having incorporated
international law as its supreme national law [see previously cited
Constitution Republic of Bulgaria Art. 5§4]. What is significant to any
provincial court review of coercive acts of the a party outside of Canada
claimed by the other party as interfering his rights in Canada is the
common law tradition permitting the court of the lex fori to apply the lex
loci delicti - here international treaties - to the facts before it when
undertaking a determination of lawfulness i.e. are the coercive measure of
the Defendant Bulgaria lawful and reasonable when interfering with the
processes of the court and the fundamental a priori rights of the Applicant
and other plaintiffs?
IV.3.5.3 Comity
On a re-reading the foregoing discussion this Applicant believes the conflict
question, if any, appears to be more in the nature of the international
comity and reciprocity between Canada and Bulgaria, not one of the a
priori principles of international law found binding on both States.
There is no question in the Applicant's mind that had any defendant other than
a foreign State - Bulgaria - acted to gain advantage in a suit at law by
obstructing or interfering with the procedural rights of a Plaintiff through
an act of physical or psychological coercion, the Master or Chambers
Judge would be sensitive and responsive to such complaints. Acting
decisively by exerting the courts inherent jurisdiction over its own
processes to put an end to the defendant's coercive conduct or measures.
There is no question in the Applicant's mind the Master or Chambers Judge
would be equally, if not more, decisive had it been a Crown agency or a
Crown servant that applied coercively measure to a person under custody
solely to gain advantage in a suit at law.
However, having said that it appears important to settle a significant question
in this Applicant's mind: Does the Appeal Court have jurisdiction to hear
facts and arguments on the defendant Bulgaria's allegedly unlawful
interference with the Applicant rights and its unreasonable coercive
measures - as a sovereign state - when determining the reasonableness of
the Master's order, and the correctness of the Chambers Judge decision?

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To answer this question requires first recalling that throughout the course of
the proceedings the defendant government Bulgaria provided argument to
the trial court that turned on only one point, and one fact existing in
aggravation of the plaintiffs' causes of action. The State defendant
insisting on (1) its absolute sovereign immunity, it was not subject to
jurisdiction of a foreign court, and (2) the plaintiffs' claims against it arise
from an on going criminal proceeding outside the jurisdiction of a court of
Canada. Admittedly this last issue appears on first blush to not have any
particularly direct connection to the point of law raised as a constitutional
question, or on appealing an issue of procedural fairness. However, it is
incontrovertible that the defendant Bulgaria's conduct while having this
plaintiff under its physical, and psychological control during its 6 year
criminal investigation is itself physically and psychologically a coercive
force exerted on the Applicant and other plaintiffs.
The lawfulness of the Defendant Bulgaria's coercive measures and their
affects are significant elements to be factored into any determination on
the time it has taken to bring the present applications before the Appeal
Court and Attorney General, and to the reasonableness of the Duty
Master's having placed a reverse onus on the Applicant to appear before
the court or retain legal representation to do.
Thus far the Applicant finds as relevant to the discussion of comity and
reciprocity the following:
A court of Canada has inherent jurisdiction over its own processes, this is
incontrovertible.

A court of Canada has limited jurisdiction over a foreign state, this is made fact by the
State Immunity Act, S.C. 1980-81-82-83 c. 95 (now R.S.C. 1985, c. S-18).

The defendant government of Bulgaria is named as a state party to a suit in law before a
court of Canada. Therefore, until there is a judicial determination to the alternative
the State defendant is subject to the jurisdiction, practices and procedural processes
of that court and the laws of Canada.

A court of Canada has a positive obligation and constitutional duty, as naturally flow
from the principles of international law, to provide a remedy in law seen to guarantee
in practice, and not only in principle, the right of all parties to procedural fairness in
a suit at law.

The defendant government of Bulgaria, and this plaintiff have, under law, equal
procedural rights and obligations in a suit at law before the provincial court.

The defendant government of Bulgaria has a positive international obligation, and


constitutional duty under its national law, as naturally flow from the principles of
international law, to provide a remedy in law seen to guarantee in practice, not only
in principle, the fundament civil rights of a person it has deprived of liberty. The
defendant State required to be sensitive and responsive to the requirements of
procedural fairness in a suit at law, notwithstanding the other status of a person as a
prisoner, or a foreign court having competent jurisdiction.

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The principles of international law, as flow from treaties and conventions ratified by the
governments of both Canada and Bulgaria, provide no saving provision exempting a
State from its positive international obligation, and duty to act responsively to
guarantee fundamental civil and human rights to persons it has deprived of liberty.

The principles of international law, and the national laws of both Bulgaria, and Canada
provide for a person deprived of liberty to be allowed or secured a means to access
the courts of law. Attendance in a judicial proceeding is a priori the right of all
persons where his or her legal or property interests, or those of others, are to be
affected, notwithstanding the foreign jurisdiction where such interests are to be
prosecuted or defended.

It appears, that the government and agencies of a state, any state, including
Bulgaria, clearly incur a legal - not only moral - liability, and duty to any
person the State deprives of liberty. The principles of comity and
reciprocity within the international community require Bulgaria to observe
its international commitments in practice, not only in principle, Bulgaria
having a positive obligation and duty to respect the fundamental rights of
foreign citizens before their own courts.
International comity and reciprocity suggest, at least to this ignorant
Applicant, there exists a positive obligation and duty of Bulgaria found
under law, to arrange with the responsible authorities of Canada this
Applicant's conduct in custody to the trail court. Absent a practice or
procedure to do so, Bulgaria to secure or allow a reasonable and effective
alternative to the Applicant's appearance.
The State of Bulgaria by refusing its international commitments to comity and
reciprocity as well as refusing to observe a practice and procedure under
its national law has reversed the onus from itself to the Applicant. The
Defendant Bulgaria requiring the Applicant seek from prison his rights to
procedural fairness by intervention of the trial court, and to obtain the co-
operation of the government of Canada to secure his conduct in custody
from the agencies of the said Defendant. The Applicant to rely on the same
international agreements, comity and reciprocity binding on Bulgaria
when now applying to Canada. The defendant government of Bulgaria
apparently having taken comfort from the fact of international comity and
reciprocity making both the provincial court, and government of Canada,
in practice, understandably reticent to assist the Applicant.
In the present enquiry comity and reciprocity can also serve the present
Applicant and other plaintiffs. The principle of comity appearing to be
inoperable in saving the defendant Bulgaria for having refused its
international treaty obligations.
The preceding discussion provides both context, and causus, to the Applicant
having petitioned the Master and Chambers Judge for judicial relief in the
form of a subpoena and interlocutory order. It only natural that the
Applicant, a Canadian citizen and resident of British Columbia, would
turn to the jurisdiction of a provincial court to protect his and his family's
legal and property interests.

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It is recalled that this enquiry into comity commenced with a question in the
Applicant's mind if it was reasonable to ask the Appeal Court to review, as
a part of its enquiry, the Defendant Bulgaria's conduct. This leading to a
discussion on comity and reciprocity.
There exists another more local element, the participation of a Crown servant
as a defendant in the proceedings before the trial court, and the negative
restrictions as well as positive obligations of the government of Canada
under the present circumstances.
What affects do the facts of the case at Bar, that admittedly appear somewhat
extraordinary, to have on the questions of international comity, reciprocity
and the jurisdiction of the Appeal Court to hear the complaints of the
Defendant obstructing justice.
The documentary evidence placed before the trial court leave little doubt of
the Crown having acted in a foreign State, Bulgaria. The Crown having
provided the motives, and indictment or "information", to cause the arrest,
and prosecution of the Applicant by defendant Bulgaria.
The Crown indictment, and information having further precipitated the later
acts of the defendant Bulgaria that give rise to the other causes of action
identified in the law suit no before the provincial court.
The correspondences between the Crown, and the defendant Bulgaria, begins
in 1995, and continued to the end of 1998. These are documented by the
plaintiffs before the trial court with the purpose of establishing a factual
nexuses to the province, and the Crown.
This incriminating trail of Crown telephone conversations; of meetings;
letters; faxes and finally an indictment, provides the plaintiffs the
evidential means to prove prima facie their allegations against the Crown,
and the defendant Bulgaria, for malicious prosecution, slander, libel, and
public defamation. These causes of action are relied on for bringing joint
and several claims against the Crown, and the defendant Bulgaria.
It is believed that this one nexus of Crown involvement is sufficient to bring
the present applications, and the defendant Bulgaria's conduct within the
jurisdiction of both the trial court and Appeal Court.
Alone, the questionable acts of the Crown appear enough to make British
Columbia the jurisdiction forum conveniens. The provincial court having
competent jurisdiction to hear the plaintiffs’ complaints against the
defendants who participated with the Crown in a series of what are alleged
to be unlawful acts. First initiated by a Crown servant acting in the
province, and then later in Bulgaria.
It appears on the basis of the foregoing that both questions of jurisdiction
simpliciter and forum conveniens are at first blush dispensed with.
Jurisdiction not solely depend on the plaintiff's other claims that sound in
contract and tort.

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The Applicant recognises that his reasoning does not alter the hard fact of a
provincial court's reticent born of international comity and reciprocity. It is
in practice difficult to have a provincial court exert its jurisdiction in
Canada over a foreign State, no matter how uncooperative or obstructive
Bulgarian agencies may be. International comity and reciprocity often
invoked as an argument in the common law that restrains a court of
Canada from applying Canada's laws, practices, and social values beyond
the territorial jurisdiction of Canada. Where a foreign state is named as a
defendant comity among States is often invoked before the courts of
Canada. Undoubtedly international comity plays a role, having been a part
of numerous arguments to found in the common law for the courts of
Canada to not interfere in the processes jure imperii of a sovereign state.
The defendant Bulgaria is within its rights to rely on international comity and
reciprocity. Yet, Bulgaria must also recognising that comity, and its
international commitments as a State, must operate as binding propositions
upon Bulgaria equally as it acts to bind a court of Canada.
Comity and reciprocity are principles to be observed notwithstanding that the
defendant Bulgaria's chances for success in a suit at law may be
diminished as a result.
The defendant Bulgaria, as a party to a suit at law cannot reasonably expect
international comity to be adequate causus for a court of Canada to not
discharge its obligations, and duties under international and national law
to one of its citizen. And solely because the defendant state had previously
caused injuries and damages in the province after having deprived a
citizen of Canada of his property and liberty, having refused to allow him
access to the provincial court as a result.
The courts of Bulgaria and Canada are bound by the same principles of
international law as are the governments of both states. International
comity and reciprocity play crucial roles, yet ones having two sides.
Comity, and reciprocity like a knife, must cut both ways.
The understandable reticence of a Master or Chambers Judge cannot
reasonable stand as a lone qualification in balance to the rule of law. The
defendant Bulgaria is a party to judicial proceeding before the court. There
exits one hard fact among many of a Crown servant involved in allegedly
unlawfully acts in, and outside the province in scienter with servants of the
defendant Bulgaria. The Crown Servant, who is subject to the court's
jurisdiction, brings the Defendant Bulgaria within the jurisdiction of the
trial court through its alleged relationship and joint activities with
representatives a servant of the Crown.
There are limits to the applications of the principles of international comity
and reciprocity to restraining a court of law in doing that for which it is
constituted. The requirements of justice and equity must be balanced with
the niceties of diplomacy or administrative interests of State agencies.

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In the case before the trial court, and now at Bar, comity might well be better
applied in another context, that of Bulgaria's positive obligation and duty
under international law to guarantee to all persons equal right to access a
court of law. Notwithstanding that the person happens to be someone the
State has deprived of liberty.
Co-operation of the defendant Bulgaria with a trial court in Canada to secure a
person his rights under law should be seen by the Master as a positive
obligation - international comity - of the government of Bulgaria to its
international agreements. A State's co-operation with another State is the
very embodiment of comity, and respect for the judicial processes of
another state must include recognition of the prevailing lex fori of the
process.
The Master should have recognised that as a part of comity, and reciprocity
there inherent respect for the jurisdiction and processes of a Canadian trial
court. Any act by a party to a suit at law having derogated from the rights
of other parties, and therefore the procedural fairness of a Canadian court's
own processes is within the jurisdiction of a Master or Chambers Judge to
determine. Notwithstanding that the offending party happens to be the
agency of a foreign state.
In the guarded opinion of the Applicant, international comity affords a person
deprived of his liberty greater protection under the principles of
international law than it might act in providing the questionable shield of
absolute immunity to the Defendant Bulgaria from civil prosecution in
Canada.
One final fact is worth recalling here. The Defendant Bulgaria has petitioned a
learned Master to consider what it apparently believes is its absolute
sovereignty immunity. The Master is asked to do within the context of
international comity and reciprocity.
However, it is within the same context of international comity and reciprocity
that the Applicant believes as requiring the defendant Bulgaria to respect
its multilateral agreements, and the a priori rights of a Canadian citizen
before the lex fori of a court of Canada. A requirement that may find, in
the name of international comity, and the self evident principles of
international law and mutual reciprocity, the Defendant Bulgaria subject to
observing a judicial order or direction of a Canadian trial court. The
Master or Chambers Judge recalling the principles of international law,
and Bulgaria's positive obligations to a Canadian citizen it deprived of
liberty. Notwithstanding that the citizen in question and his family have
brought a suit in law against the Republic of Bulgaria.
The Applicant believes the defendant Bulgaria is ill informed, and the Master
erroneous if it is insisted that international comity and reciprocity exist
only to provide a State - Bulgaria - to apply, unfettered, its sovereign right
to all acts be they lawful or unlawful.

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4 Is this Speaker's reasoning simply wrong?
The Applicant has asked himself this question repeatedly. Is he wrong to seek
relief from a Canadian court on a subject that requires a Master, or
Chambers Judge, to review applicable international law and established
international principles in the treatment of prisoners?
Was it wrong to raise the issues of the applicable lex loci delicti of the
Republic of Bulgaria? Its national law and international treaties binding it
to respect the Applicant's rights as a person under law in a suit at law.
Bulgaria and Canada both have a practice and procedure to conduct him,
in custody, before any court - British Columbia -where his legal and
property interests or those of others required his appearance?
The body of law reviewed provided no provision in international or national
law that would hinder a Master or Chambers Judge of the provincial from
having provided the Applicant the relief he requested in his various
petitions and now on appeal. That being so, then why did the Duty Master
and Chambers Judge both refuse to provide any of the suggested
procedural remedies to be found under the Rules of Court, in the common
law, or under other legislative enactment?
Again, at the risk of being redundant, it appears that the SCBC had a duty to
the Applicant to recognise the physical limitation of his status, first as a
person deprived of his liberty, second as indigent person and third, in
aggravation of the first two, his status as a prisoner of the Defendant -
Bulgaria - alleged to have unlawful caused the Applicant and others
financial losses, personal injury, and property damage in British Columbia.
However, it remains a fact that the court failed to recognise this duty to
him.
There also appeared to be a duty of a Master or Chambers Judge to judicially
express themselves on the legal affects of their order or decision.
Particularly on a matter of international law when such law is compelling,
and applicable to proceedings before the court. Both failed to do so,
having provided no written decision to guide the Applicant in his
understanding.
The Applicant had attempted to proceed logically to his conclusion that the
Duty Master, and Chambers Judge erred in judgement when failing to
consider his petitions as before them in the full context of the
circumstances of his bringing the complaints from a foreign prison. The
Chambers Judge, on later limiting the Applicant's right to petition - from
prison - acted to unreasonably restrict citizens constitutional right to a full
judicial review after having applied for one under s. 24(1) of the Charter.
The hardships of prison are so obvious a fact that the very existence of the
Master's order in its present form has given cause to the Speaker enquiry
as to why the Court Rules Act [RSBC 1996] c. 80 permits such a
limitation to be imposed on a Charter right in the first place.

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It has been discussed earlier that international comity and reciprocity play no
role as prohibitions to a court of Canada to request a foreign government -
Bulgaria - to arrange practical means that permit a Canadian citizen to
prosecute or defend his claim against the defendant Bulgaria in Canada.
Simply the Applicant could not find a reason in law for denying him a judicial
review of his Charter complaints as well as determination of the
procedural remedies he first proposed to the Master, then later to the
Chambers Judge.
The Applicant is admittedly ignorant to the exact practice and procedure in
such matters. However, the observable fact of the Order's affects on him
cannot be satisfactorily reconciled with the principles and practices of the
common law as well as the self evident propositions of Canada's
international agreements. The derogating affects of the Master's order
remain for the Appeal Court to reconcile to the body of law discussed
earlier.
As well the Applicant may be wrong in believing his practical and procedural
difficulties as an indigent and imprisoned litigant are readily apparent
from his petitions to the Master as well as on appeal to the Chambers
Judge. He may be equally as wrong in believing his practical difficulties to
be surmountable by a provincial court. However, it appears the demands
of justice, and right equality as persons under law for his family and
himself provide adequate causus for any person of conscience to at least
attempt to overcome the indirect discrimination being suffered by a
distinct group of Canadian citizens. Citizens who incontrovertibly are,
together with their families, seriously afflicted and disadvantaged by their
other status in Canada and abroad.
To illuminate the problem of this Applicant and other Canadian citizens like
him it requires the present enquiry to now proceed to a discussion on what
practical meaning can be adduced from the preceding discussion when
applied under the common law.

IV.4.1The Fact and Questions


What is the principle point for the Appeal Court to consider as is ascertainable
from the Applicant's discussion? The court is asked by the Applicant to
determine the legal status and rights of a Canadian citizen in a suit at law
when indigent and deprived of his liberty abroad. This enquiry is made
significant by the observable affects of a practice and procedure in Canada
having acted to indirectly discriminate by creating a barrier solely
affecting this distinct and disadvantaged group’s right to judicial review
and remedy before a provincial court. The fact and question are as follows:
IV.4.1.1 Fact

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. The Order of the Duty Master creates a practical barrier making it impossible for the
Applicant, a Canadian citizen, to prosecute or defend his rights and obligations in a
suit at law solely due to his other status in Canadian society. The Applicant is indirectly
barred from the court's services by the Master solely due to this other status. The
practice and procedure under the Court Rules Act having created a financial and social
barrier to the Applicant, and others, in prosecuting or defending any claims made before
the court against the Defendant Bulgaria and inter alio the Crown. The legal affects of
the Master's Order, and of the practice and procedure under the Act, are a form of
indirect discrimination having unintentionally selected to offer the courts services and
facilities solely based on a petitioner's ability to meet the Master's revere onus of a
person having property - they retain an attorney - or acceptable social status - they have
retained their liberty.

IV.4.1.2 Questions
Do indigent Canadian citizens deprived of liberty abroad continue to retain their
constitutionally guaranteed rights in Canada?

Is it constitutional - lawful - for a practice and procedure of the court to create a property
and social barrier to a Canadian citizen's right to judicial review and remedy in a suit
at law?

Do the international commitments of the government of Canada to negative restrictions


as well the positive obligations to persons deprived of liberty also extend to the
Master or Chambers Judge of a provincial court in a suit at law?

Are the international commitments of the defendant. the Republic of Bulgaria, and its
national law equally as binding on agencies of the government of Bulgaria when
before the lex fori of a British Columbia court, as party to a suit at law, as they would
be binding on the agency before the lex loci delecti of the Applicant's imprisonment?

IV.4.2Analysis
There is no doubt the international community considers deprivation of liberty
by its very nature to poses special problems to the person affected. The
"afflictive" nature of imprisonment recognisably creating many of the
negative restrictions as well as positive obligations of governments and the
courts discussed above. It is apparent these are a priori principles
applicable to all democratic and free states, Canada and Bulgaria being no
exception.

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It is apparent from this discussion that deprivation of liberty poses severe
handicaps to all indigent prisoners attempting to develop a judicial
remedy, and prosecute a civil complaint before the court of competent
jurisdiction. If indigence and imprisonment do not complicate matters
enough for a provincial trial court then we need only to add the factual
circumstances to be found under the case now before the Bar, inter alia,
(1) a principle plaintiff and primary expert witness is a Canadian citizen
imprisoned outside of Canada, (2) one defendant before the provincial
court is the foreign State responsible for the said plaintiff's imprisonment,
and the his family's person injuries and property loses as suffered in
British Columbia, (3) the Crown is alleged to be a party, and vicariously
responsible for the injuries and damages suffered by the plaintiffs in or
connected to the province, (4) the foreign State defendant has applied to
the court insisting on its "absolute", not "restrictive" immunity, the
Defendant State refuses to recognise the jurisdiction of the provincial
court or (5) its positive international obligation and duty to arrange
conduct before the court of the party opposing its motion, and (6) the
Crown, refuses to intervene despite the repeated petitions of the
imprisoned Plaintiff.
The six (6) points become aggravated and even more complicated when
adding into this already extensive mix of controversies the real or imaged
public interests of the defendant government of Bulgaria. The said
defendant conscious of the possible negative affects to its defence should
it permit the Canadian plaintiffs to fully realise their procedural rights
under the "lex fori" and applicable principles of international law to
require the said defendant produce the Applicant, in custody, before the
court.
The Applicant's discussion requires the Appeal Court to ponder on the
foreseeable affects of the six (6) points listed and the other facts that exist
in aggravation of the Master Order as well as the practice and procedure
applied in a suit at law to persons having other status. What is significant
to the applications before the Appeal Court are the considerable distances
involved, the Applicant's poverty and incarceration, and the not
inconsiderable physical and psychological affects to be found when
incarcerate in a Bulgarian prison.
These are foregoing are conditions that exist in aggravation of the ordinary
problems of imprisonment. The affects of such conditions are that they
make a persons ability to put his case before a court of law far more
difficult in practical and personal terms. Such stresses aggravating the ever
present difficulties for the Applicant to comply with orders of the trial
court, including the time constraints fixed by the Rules of Court.

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There are even harsher realities that the Applicant must overcome when
confronting officials and agencies of the Defendant Bulgaria who are
aggressively opposed to his legal action in Canada against the State. The
facts of the case and the human rights reports reviewed in Part 1 [see:
"Part 1: Facts Existing In Aggravation of the Claims: Conditions In The
Republic of Bulgaria"] incontrovertibly establish, notwithstanding any
protestation of the Defendant Bulgaria, that prisoners under the control of
its agencies exist in a constant state of anxiety and fear. Prisoners face
significant physical and psychological consequences when attempting to
develop a judicial remedy against the State of Bulgaria before a judicial
authority beyond political control or corruption.
The Applicant, his family and third parties have documented before the trial
court that the Applicant is no stranger to the physical and psychological
abuses consequenced by his pursuing judicial remedies against officials,
agencies and instrumentalities of the Defendant Bulgaria. If, or better said
when, such consequences again manifest themselves they shall inevitably
result in this Applicant once more losing contact with the trial court. In
such an eventuality the Applicant must rely on this Honourable Court to
determine it positive obligations to procedural fairness and to him, as a
Canadian citizen, having an afflictive other status.
The applications to the Appeal Court on the issues of extending time and a
declaration of indigence would be far less convoluted if it were not for the
nature and character of the defendant Bulgaria's conduct. Incarceration,
poverty, fear, and obstruction by uncooperative officials of the Defendant
State have complicated the issues, even of time and indigence.
The circumstances before the Appeal Court are not helped by the Applicant's
lay status and questionable understanding, it admittedly making difficult to
clearly identify and resolve the errors of judgement and issues of law to be
discussed. A fact that will undoubtedly cause consternation to the legal
profession.
IV.4.2.1 What is Not on Appeal?
To avoid any misunderstanding of the Applicant's attempts at reasoning it may
be prudent, at this juncture to identify what points are not to be determined
here or by the trial court.
As much as the Applicant might wish to have the lawfulness of his arrest, and
detention by a foreign State tested by a court of Canada he recognises that
to not be possible. Clearly this issue is not open to this or any trial court in
Canada to determine. However, it is reasonable to make averment to such
facts only in aggravation of those points as legitimately are laid before the
trial court.

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The arrest and continued detention of the Applicant, its reasons, lawful or
unlawful are not nor are intended to be points of the plaintiffs’ law suit.
Most definitely they are not the object of the intended appeal here. Such
facts are substantive only to an understanding of the plaintiffs' full case,
and if any, to its merits.
Furthermore, the Applicant does not dare to suggest for this Honourable Court
to extend or otherwise impose Canada's Charter of Rights and Freedoms
beyond its boundaries to that of a foreign State. The Charter issues raised
here are limited to those occasions or circumstances where s. 32(1) of the
Charter is applicable and s. 24(1) can be invoked by the Applicant. The
case law found in recent years shows the Supreme Court of Canada
closely examined Charter claims relating to Canadian government actions
beyond the boundaries of Canada [see: Schreiber v. Canada (Attorney
General), [1998] 1 S.C.R. 841; 225 N.R. 297; 124 C.C.C.(3d) 129; 158
D.L.R.(4th) 577, Distinguished: R v Terry, (1996) 2 S.C.R. 207; R. v.
Harrer, (1995) 3 S.C.R. 562:; referred to: Hunter v. Southam Inc., [1984] 2
S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R. v Edwards,
(1996) 1 S.C.R. 128;R. v. Belnavis, (1997) 3 S.C.R. 341; R. v. Stillman,
(1997) 1 S.C.R. 607; R. v. Dyment, (1988) 2 S.C.R. 417; R. v. Feeney,
(1997) 2 S.C.R. 117; Thomson Newspapers Ltd. v Canada (Director of
Investigation and Research, Restrictive Trade Practices Commission)
(1990) 1 S.C.R. 425; Comité paritaire de l'industrie de la chemise v.
Potash, (1994) 2 S.C.R. 406; R. v. Mckinlay Transport Ltd., (1990) 1
S.C.R. 627; R. v. Plant, (1993) 3 S.C.R. 281; R. v. Collins, (1987) 1 S.C.R.
265], its case law appears to strongly suggest that the Charter cannot be
applied to acts committed by servants of the Crown on foreign territory
with the exception being only if such acts have a direct affect on the
Charter or other legal rights and obligation of citizens of Canada who are
in Canada.
What does the preceding reasoning of the high court mean to case now before
the Bar? Apparently the Charter can be applied in respect to all Crown acts
outside Canada alleged as directly or vicariously affecting the legal and
property rights of the plaintiffs Nicholas, Tatiana, Tracy and Robert as
family members of the Applicant who remained in Canada. It also appears
from the above cited case law that the Charter applies to all Crown acts
directly or vicariously affecting the plaintiffs’ property rights and other
civil interests in or connected to Canada.

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Applications of these particular constitutional questions are at present not the
subject of the appeal. Presently the Applicant is far from asking this
Honourable Court or any court of Canada to impose its judicial will on the
legitimate pursuits of the Crown or a sovereign state or its representatives
outside of Canada. Yet having said that, a certain emphasis must be placed
on the Appeal Court's interpretation of "legitimate" and "lawful", as these
are live issues that concern the activities of a servant of the Crown outside
of Canada when, in co-operation with agents of the Defendant Bulgaria,
acted to knowingly cause injury and to interfere with the plaintiffs legal
rights and property interests in or connected to the province.
The Charter, applied retrospectively to acts of the Crown, appears to apply in
the case before the trial court.
5 The Applications

IV.5.1Arguments
In layman's terms the applications and the argument are along the following
lines.
The applications for additional time and indigent are reasonable, a posteriori,
solely due to the observable factual elements before the Appeal Court.
The application for leave to appeal made reasonable due to the significance of
the a priori rights affected by the Master's order, and a practice and
procedure impugned by its affect on a distinct and disadvantaged group a
part of Canadian society.
Before proceeding to the Applications themselves it seems prudent to recall
the following parts of the preceding discussion within the context of the
applications.
IV.5.1.1 Time
The Defendant Bulgaria's conduct is a factual element existing in aggravation
of the time needed to develop a judicial remedy and bring the application
before the Appeal Court. Agencies of the Defendant Bulgaria failed to
observe its international commitments to the negative restrictions on a
State. Bulgaria knowingly limiting the Applicant's fundamental right as a
person deprived of liberty to develop his judicial remedy in a suit at law
before a court of competent jurisdiction. Notwithstanding that delays are
as a part of the nature of incarceration it is as well alleged the defendant
Bulgaria acted with mens rea having knowledge and intent to obstruct the
Applicant from his timely access to the both the trial court and Appeal
court of Canada. It is observable from the facts the Applicant cannot be
held fully accountable for the delays in bringing his applications, the
extension of time should therefore be allowed.
IV.5.1.2 Indigence

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Judicial relief from the fees and costs of the court are reasonable as no other
remedy is available or likely to manifest itself and so enable the Applicant
to proceed in a way other than in forma pauperis before the provinces
courts of British Columbia. The Applicant's poverty and deprivation of
liberty act as dual impairments to realising his constitutional right to apply
under s. 24(1) of the Charter for a determination of his Charter and other
complaints. Deprivation of liberty by its nature is an "afflictive" status
having deprived the Applicant of self determination in his financial and
other personal affairs. Conditions in the prisons of the Respondent
Bulgaria are such that the suffering already inherent in losing ones liberty
are severely aggravated by extreme and harsh conditions that prevail. The
poverty of state institutions of Bulgaria and the absence of prison
employment opportunities or the possibility to arrange for an alternate
form of income having the cumulative effect that after 6 years of
imprisonment the Applicant is living in absolute poverty. The recognition
of the Applicant's indigence is primogenitor to recognition of his other
fundament rights.
IV.5.1.3 Leave to Appeal
The a priori principles of international justice, its negative restrictions as well
as positive obligations flow naturally into the collectively laws and legal
traditions of Canada. This strongly suggests that the rights of indigent
citizens in a suit at law are not to be derogated from solely due to a State
depriving a person liberty, notwithstanding the person is a Canadian
citizen imprisoned abroad.
If the foregoing is in principle true, then leave to appeal seems reasonable
where there exists prima facie evidence suggesting the alternative having
occurred due to a practice and procedure as well as the legal affects of a
Master or Chambers Judge's reverse onus. It seems reasonable to recall in
support of the Applicant's proposition that leave to appeal is grounded the
following.
The facts of the case at Bar show that the Applicant, as an indigent person
deprived of his liberty, is indirectly barred by his property and social status
from realising the positive obligations and duty of the provincial court
under s. 24(1) of the Charter. A review of the facts of the case reveal, a
posteriori, the application of a reverse onus that indirectly discriminates
solely due to a petitioner's other status in Canadian society. The Master or
Chambers Judge having observed the negative restriction that all persons
have a right to Charter application under s. 24(1), yet failed in their
positive obligation under s. 15(1) of the Charter to be sensitive as well as
reactive to the hardships and afflictive circumstances of a citizens other
status.

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The Duty Master's reverse onus indirectly affected the Applicant's s. 15(1)
Charter rights. The Applicant's rights will remain unreasonably limited by
the Master's reverse onus for as long as the Applicant is to be barred by
time, indigence and the defendant Bulgaria from petitioning the Appeal
Court to lift what are the observably impossible demands of the Duty
Master's Order under the prevailing circumstances.
The intended appeal is reasonably brought in the nature of a constitutional
application under s. 24(1) of Charter. The appeal intends to raises
questions of a priori law supported by material evidence necessary to a
proper interpreting of the affects of the Master's Order. The intended
appeal as well advances questions under the Constitutional Questions Act
[RSBC 1996] c. 68. No pretence is made to the quality of the Applicant's
analysis or argument; fortunately the facts of the case now at bar speak
well for themselves.
This discussion has considered the affects as opposed to the intent of the
impugned enactment as well as having questioned the reasonableness of
the Duty Master's Order and correctness of the Chamber Judge decision.
Both the Order, and practice and procedure under the Court Rules Act
[RSBC 1996] c. 80, Rules Of Court are impugned by having allegedly
prejudiced the Charter rights of the Applicant more so than if applied to
any other citizen. The enactment and Order act to selectively discriminate
according to a person's other status. The affects, though unintentional, are
nonetheless ones that discriminate solely due to a small group’s distinct
status as Canadian citizen having lost property and liberty to a foreign
state. It prejudicial affects are due to a set of rules and a practice that at
first appears to be the reasonable judicial application of a reverse onus on
a private party to a suit at law. However, the application of this same
reverse onus because an unreasonable limitation when applied to the
identified group - indigent persons deprived of liberty - such that it fails to
meet the test of reasonableness found in s. 1 of the Charter. A Master or
Chambers Judge of the provincial court having known or ought to have
known that the otherwise reasonable limitation of their reverse onus
becomes an absolute and insurmountable barrier on application to this
distinct and disadvantaged group. The impugned Act - it is believed Rule
41(16.5)(b), Rules of Court - having created by omission an administrative
barrier to all indigent prisoners when applying from prison for access to
the services and facilities of the provincial court in a suit at law.
The intended appeal attempts to recognise the additional element of sovereign
right. Every State lawfully and reasonably entitled to deprive members of
its society of liberty when, and only if, they fail to observe the rights of
others. However, what the intended appeal suggests is that it is wrong for a
State to deprive any member of society of those rights not otherwise
limited by law or the specific nature of the sentence imposed on the
affected party.

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From the preceding discussion it is apparent that fundamental a priori rights
are regarded by Canadian society, and the common law to be the
reasonable and inalienable natural law rights of all persons. The practice
of the common law is one seen as not derogating from natural justice
solely due to persons indigence, his deprivation of liberty, nationality or
the jurisdiction of the administrative act or judicial order having the
practical affect of denying natural justice to a person solely for having lost
his or her self-determination.
It has been discussed that one fundamental right of natural justice, in the
opinion of the Applicant, is the right and obligation to prosecute or defend
claims in a suit at law. The Applicant believing it to be intrinsically wrong
when a State agency or a officer of the court directly or indirectly denies a
person the reasonable opportunity as well as facility to responsibly and
conscientiously exercise his right to judicial remedy as a "detached"
member of society.
The Applicant earlier raised as relevant the question of the inherent
jurisdiction of the "lex fori" of the trial court in requesting a foreign State
party to observe such laws, and rights of that forum where the trial or
hearings are to take place. The exercise of such jurisdiction, ex proprio
motu, by a provincial court over a foreign State defendant appears only to
require the observance of any judicial direction or order not in conflict
with the otherwise harmonious principles of comity and reciprocity as
recognised under international law. The question of comity and reciprocity
turning on a question of fundamental a priori rights: Are the rights of a
Bulgarian deprived of his liberty in Canada considered to be lesser or
greater than the rights of a Canadian if both are party to a suit at law
before a Canadian Court? Ergo, are the rights of a Canadian deprived of
his liberty in Bulgaria to be lesser or greater than the rights of the State of
Bulgaria in a suit at law before a Canadian Court? The answers, in
principle. Are obvious ones. However, the practice in the case now before
bar proves all together something different, and one this Applicant humbly
believes worthy of consideration by the British Columbia Appeal Court.

IV.5.2Issues - There Are Three Applications


The applications before the Appeal Court are as follows:
"1" To extend the time in which to appeal.

"2" To recognise the Speaker's indigence.

"3" To grant leave to appeal.

The lesser applications of time and indigence are moot if there is no arguable
point on appeal. It is for that reason the nature of the appeal was discussed
first and at some length in the Applicant analysis.
6 Need To Extend Time.

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Case law suggests to the Speaker that the factors to be considered by the court
when exercising its discretion in such an application were established in
Robinson v. Rouse (1957), 22 W.W.R. 89 (B.C.C.A.) as follows;
"1. The prejudice to each party

"2. Whether the appellant had formed an intention to appeal within the time limits for
making an appeal;

"3. Whether the respondent was aware of the appellant's intention to appeal within
the time limits; and

"4. Whether any ground of substance was raised in the proposed appeal.

IV.6.1The prejudice to each party:


The nature of the appeal to be brought and its hearing by the Appeal Court do
not in any significant way prejudice the legal rights or interests of the
Crown or the defendant Bulgaria. As a practical matter there can be is no
prejudice to the defendants for the reasons that follow.
From the course of the proceedings it can be seen that only one defendant, the
Government of Bulgaria, having filed an appearance. As a result it is
difficult to contemplate that granting the Applicant the time needed to
appeal would prejudice the interests of other defendants having taken a
decision to not engage themselves in the processes. This includes jointly
and severally the Crown and its servant the Defendant Derek Doornbos.
According to the course of the proceedings as well as facts of the case,
officials and agencies of the defendant Bulgaria are observably in
complete physical control of the Applicant's activities. The possibilities of
to accessing the resources as well as other and facilities of the courts are at
the sole discretion of the defendant Bulgaria. Any delays in the bringing
the present applications before the Appeal Court are directly a
consequence of the defendant Bulgaria.
What can also be seen from the course of the proceedings, and the affidavits
as filed is the Applicant, through a variety of intermediaries having
attempted from prison to maintain contact with the defendant Bulgaria's
Vancouver counsel, and the office of the Attorney General of British
Columbia. In numerous correspondences as well as affidavits the
Applicant and others raised concerns about the Defendant Bulgaria's
conduct obstructing the Applicant in meeting time constraints. The need of
a person deprived of liberty for additional time aggravated as a result of
hostile interference from officials and agencies of the defendant Bulgaria.
The delay in bringing the application not an intentional or irresponsible act
of the Applicant.

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The Applicant and defendant Bulgaria were both aware of the deadline for
making application to the Appeal Court. The Defendant Bulgaria was also
well aware that there would be an appeal, its knowingly having its
agencies imposed restrictions on the Applicants ability as its prisoner to
access the means necessary to his effecting the required due diligence
when developing a judicial remedy before the Appeal Court.
The Defendant's Counsel in Vancouver has not indicated at any time to this
Applicant that his client, the Government of Bulgaria, was concerned that
the planned appeal would in someway prejudice its legal interests before
the trial court.
It appears the Applicant and other the plaintiffs will be more severely
punished if the present applications are rejected. If there is any prejudice
to the rights of a party to the present proceeding it appears to be the
plaintiffs who will suffer the most harm. Both the defendant Bulgaria, and
the Crown are both State parties having reasonably unlimited human and
material resources not significantly diminished by the passing of time or
subject to the same physical hardships and emotion distress as are the
plaintiffs. The Applicant remains under the physical, and it is reasonable to
say psychological and emotional control of the defendant Bulgaria. If
there were any prejudice to the defendant Bulgaria, or the Crown it would
be far outweighed by the prejudice the Applicant would suffer if he is
barred from pursuing his appeal solely due to delays - a passage of time -
for which he is not responsible.

IV.6.2Whether the appellant had formed an


intention to appeal in the time limits for an
appeal:
The Applicant formed his intention to appeal believing he had been the victim
of indirect discrimination, his rights as a litigant in Canada having been
unfairly restricted solely as a result of his indigence and deprivation of
liberty.
From June 25th 2001 [see § ] onward the Applicant communicated his
intention in writing to the SCBC Registrar, the Attorney General of British
Columbia and the defendant Bulgaria. Later also informing the Registrar
of the B.C.A.C. by letter and substantive other electronic correspondence
from the Applicant's intermediaries in Bulgaria as well as several
telephone conversations regarding the intention of the Applicant.

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On the above cited date the Applicant posted as well as faxed the Legal Aid
Society of British Columbia. In his letter the Applicant formed his reasons
to appeal the decision of His Lordship Edwards, J. and was seeking legal
aid counsel to pursue his appeal. Similar letters were posted to other legal
aid services in British Columbia. These requests went unanswered except
for the Legal Aid Society having rejecting the Applicant's request to
provide its services to a prisoner in a suit at law.
It is apparent a posteriori that the Applicant's intention to appeal was formed
immediately on his learning, in Bulgaria, of His Lordship Edwards J.
decision holding the Duty Master's reverse onus as a reasonable limitation
on the right to judicial review when petitioned by an indigent person
deprived of his liberty abroad.
Counsel for the Defendant Bulgaria in Vancouver has at no time accused or
protested to the Applicant of attempting to "bushwhack" his client with the
intended appeal.

IV.6.3Was the respondent aware of the appellant's


intention to appeal within the time limits?
For the reasons and circumstances cited above, and as a practical matter, it is
unreasonable to conclude that the defendant Bulgaria was unaware of
Speaker's intention to appeal within the time limits. The Speaker's written
complaints of interference are evidence of his losing battle with Bulgarian
officials to meet to the time limits. There is the additional fact of all
correspondence with the B.C.A.C. Registrar on the subject of the appeal
having been copied to the counsel for the Defendant Bulgaria in
Vancouver.
Furthermore in his June 25th 2001 letter to the SCBC the Applicant identified
the issues to be appealed having copied the Ministry of Justice for the
Defendant, the Deputy Minister Dimitar Tonchev in Sofia, Bulgaria.
Again on July 6th 2001 the intermediaries of the Applicant in Bulgaria
provided Vancouver counsel for the defendant Bulgaria copies of the
Applicant's correspondence with officials of its government in Sofia,
Bulgaria. In particular Vancouver counsel was provided copies of
correspondence exchanged with the Defendant's Ministry of Justice
regarding the Applicant's intention to clarify or vary the trial Duty Master's
order.

IV.6.4 Whether any ground of substance is raised in


the proposed appeal:

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The question of this particular application to the B.C.A.C. is not to determine
whether the Speaker's case has any merit, but whether a substantial ground
has been raised in the proposed appeal which could result in the order
appealed being varied or set aside by the Appeal Court [see: Shipping
Federation of British Columbia and International Longshoremen's and
Warehousemen's Union (1961), 31 D.L.R. (2d) 181 (B.C.S.C.)]. If the
answer to that question is "yes", then the additional time requested by the
Speaker is merited.
As there are constitutional and international law questions in the original
application(s) to the trial court that were not adjudicated upon, and the
Speaker asserts such questions should have been adjudicated upon in the
full sense, it causes the Speaker to then believe that this Honourable Court
can on appeal revisit the same matter.
The Applicant relies on, and incorporates here by reference, his previous
discussion as well as reasoning, a priori and a posteriori, on the merits of
his applications. The application of the common law is given greater
consideration later [see Part 3: Applications: “Leave to Appeal"], the
Applicant hoping to avoid being more redundant than he may already have
been on the substance of the alleged constitutional and international law
questions. However, for the purposes of this application the Applicant
maintains having found substantial reasons for his intended grounds as a
party "exceptionally prejudiced" more than any other citizen by
application of the impugned act [the cited "Court Rules Act [RSBC
1996] c. 80", Rules of Court : Rule 41(16.5(b))] to persons deprived of
liberty and indigent. The case law found in, inter alio, Smith v. Ontario
(Attorney General), [1924] S.C.R. 331 per Duff J. (later C.J.C.) at 337,
and reasons of the Supreme Court of Canada in Public Service Employee
Relations Commission (B.C.) v. British Columbia Government and
Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127
B.C.A.C. 161; 207 W.A.C. 161 (MEIORIN), appear to support the
Applicant's a posteriori reasoning.
The Applicant found it particular helpful where, McLachlin, J. (for the full
court), explained why the court abolished the distinction between "direct"
and "indirect" discrimination, [see also: Entrop et al. v. Imperial Oil Ltd.
(2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), and speaking again in
Superintendent of Motor Vehicles (B.C.) v. Council of Human Rights
( B.C.) , [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C.
280 ( Grismer), McLachlin, J. for the Supreme Court of Canada (for an
unanimous 7 judge court), wrote at p. 880:

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"[19] Meiorin announced a unified approach to adjudicating discrimination claims
under human rights legislation. The distinction between direct and indirect
discrimination has been erased. Employers and others governed by human rights
legislation are now required in all cases to accommodate the characteristics of
affected groups within their standards, rather than maintaining discriminatory
standards supplemented by accommodation for those who cannot meet them.
Incorporating accommodation into the standard itself ensures that each person is
assessed according to her or his own personal abilities, instead of being judged
against presumed group characteristics. Such characteristics are frequently based on
bias and historical prejudice and cannot form the basis of reasonably necessary
standards. While the Meiorin test was developed in the employment context, it
applies to all claims for discrimination under the B.C. Human Rights Code .

"Once the plaintiff establishes that the standard is prima facie discriminatory, the
onus shifts to the defendant to prove on a balance of probabilities that the
discriminatory standard is a BFOR [a bona fide occupational requirement] or has a
bona fide and reasonable justification. In order to establish this justification, the
defendant must prove that:

"(1) it adopted the standard for a purpose or goal that is rationally connected to the
function being performed;

"(2) it adopted the standard in good faith, in the belief that it is necessary for the
fulfillment of the purpose or goal; and

"(3) the standard is reasonably necessary to accomplish its purpose or goal, in the
sense that the defendant cannot accommodate persons with the characteristics of the
claimant without incurring undue hardship."

It is argued that the case at bar as presented to the Appeal Court is one of
indirect and unintentional discrimination. The impugned order is made,
and enactment written, in a way that requires the affected group, persons
who are deprived of their liberty and in poverty, to do something they
cannot reasonably be expected to do. Such an order or enactment must be
and is intrinsically wrong when it discriminates solely against one group,
no matter how small or unusual that group may prove to be.
As a result the rights of the Speaker and other incarcerated and indigent
citizens are significantly affected by any such order or enactment having
as its only positive affect to deny a prisoner, as it has the Speaker, his or
her guaranteed rights under and before the courts of law as persons having
equal rights in law.
The Speaker believes, as he is sure the thousands of other Canadian families
and those citizens burdened with a similar status as his own believe, that
there are substantial grounds the Appeal Court to allow the Speaker time
to formulate a full argument, prepare his appeal and then file it.
7 Relief from Court Fees and Costs
This Court's jurisdiction to entertain applications of this type are found in
Appendix C, Schedule 1 to the Rules of Court which reads as follows:

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. "Notwithstanding anything in this schedule, no fee is payable to the Crown by a person
to commence, defend or continue a proceeding if the court, on summary application
before or after the commencement of the proceeding, finds that the person is indigent
unless the court considers that the claim or defence

. "(a) discloses no reasonable claim or defence as the case may be,

. "(b) is scandalous, frivolous or vexatious, or

. "(c) Is otherwise an abuse of the process of the court?"

IV.7.1"(a) Discloses No Reasonable Claim


IV.7.1.1 Is the Intended Appeal Reasonable
The Applicant's claim to the Appeal Court is reasonable. It results from the
Chambers Judge decision to refuse to judicially determine the Applicant's
petition for a judicial review of the legal affects of a Duty Master's Order
as well as the procedural remedies proposed by the Applicant. The petition
to the learned Chambers Judge. Edwards, J., failed to have the desired
affect of an s. 1 review of the s. 15(1) rights of the Applicant as an
indigent person deprived of his liberty, despite the petition having raised
the issue of the Duty Master's order indirectly discriminating against the
Applicant by "unreasonably limiting" or "infringing" on his a priori rights
and obligation as a party before the trial court in a suit at law. The petition
to the Chambers Judge claimed it unreasonable and wrong for the Master
to limit or deny the procedural right of citizen of Canada to develop a
judicial remedy solely due to very factual circumstances (imprisonment
and poverty) that had precipitated the Applicant's complaints to the
Master. The intended appeal seeks to argue a Duty Master or Chambers
Judge as having a positive constitutional duty to procedural fairness
requiring the court to be sensitive as well as responsive to the facts before
them of difficulties arising solely due to a party of adverse interest
interfering with the fundamental rights of an opposing party having been
deprived of his property as well as of his liberty.
As set out in the previous section the Applicant believes that inter alio, the
cited Smith supra, and the Supreme Court of Canada in Public Service
Employee Relations Commission (B.C.) v. British Columbia Government
and Service Employees' Union supra, ( MEIORIN), Entrop et al. supra,
and Superintendent of Motor Vehicles (B.C.) supra, provide the speaker
adequate tests to show that his intended appeal has disclosed factual
circumstances suggesting a real possibility of indirect and unintentional
discrimination. In brief, such a claim is factually made reasonable for the
reasons that follow.

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At the risk of being redundant the Speaker again places emphasis on the
incontrovertible and observable fact that a person deprived of his self-
determination is unable of his own free will to secure an income as well as
unable to physically access the facilities of a provincial court. In the case
at Bar it is apparent a Duty Master or Chambers Judge as having failed or
refused the positive constitutional obligation to be sensitive and
responsive to a prisoners afflictive and disadvantaged other status within
Canadian society. The Applicant's and other affidavits having made it
observably clear before the Master of his being a Canadian citizen living 6
years in the utter poverty of a prison belonging to the defendant Bulgaria.
Furthermore the Applicant again incorporates here by reference his previous
discussion as to the a priori and a posteriori reasoning as to why his
intended appeal is merited. It is recalled from that early discussion that the
Court Rules Act is impugned due to an error or intentional omission in
contemplating the discriminatory affects of certain practices and
procedures on application to indigent citizens deprived of their liberty,
particularly when abroad. The impugned Act having indirectly
discriminated solely due to it not making provision for a negative
restriction on a Master or Chambers Judge's application of a reverse onus
to this distinct and disadvantaged group.
Furthermore it is recalled from the discussions that the Act is as well
impugned for indirectly discriminating due to omitting, as a positive
obligation, a procedural provision allowing a Master or Chambers Judge
to be sensitive as well as responsive to the incontrovertible derogation a
persons constitutional rights suffer when barred from judicial review as
well as remedy solely due to the having a property - indigence - and social
- imprisonment - impairment within Canadian society different from a
presumed group characteristic. On reading the impugned Act, and Rules of
the Court, it is immediately apparent that Lieutenant Governor had
omitted to provide procedural relief to the affected group or a positive
direction to guide a Master or Chambers Judge of the provincial court to
secure for members of the affected group some form of reasonable remedy
when a party to a suit at law.
The Act further omits any recognition of the affected group as having other
status in society different from the presumed characteristics of all other
civil litigants. As a result no there is absent a procedural remedy under the
Rules of Court that proves sensitive as well as responsive to the hardships
and disadvantages common to members of this distinct group, and thereby
leaving the affected group with no procedural possibility under the present
Rules of Court to exercise their constitutional right to develop a judicial
remedy as citizens of Canada.

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The Act applies a practice and procedure that is an absolute deterrent to the
affected group, its members virtually barred from petitioning the SCBC
under s. 24(1) of the Charter. The very Rules of Court enacted to protect
the fundament rights of all litigants are on application to the affected
group acting to deny it members the very rights the Rules are enacted to
protect.
The Applicant believes his reasoning to find the intended appeal to be on all
fours with the Meiorin test are be found on application of Canadian
human rights legislation as well as application of the a priori principles of
international law to the present circumstances. The foregoing principles
are there to guide the courts in determining the negative restrictions as
well as positive obligations of Canada and other States to the fundamental
rights of the all persons. A reasonable claim is raised as to the ultimate
consequences to the Charter as well as other rights of the distinct group
affected by the practice and procedure of a Master or Chambers Judge of
the Supreme Court of British Columbia on application of a reverse onus
permitted under the impugned part of the Act [Rules (41(16.5)(b)].
IV.7.1.1.1In the Law Suit
It may be reasonable to separately and briefly address the question if the law
suit of the plaintiffs has prima facie merit.
As stated in Part 1 - Statement of facts - the claims against the Defendants
sound in tort and in contract. The commercial activities of the Defendant
Bulgaria are well documented in evidence before the trial court as are its
contractual relationship and financial exchanges with the plaintiffs.
The plaintiffs have further provided the trial court a substantial amount of
written material in support of their claims that sound in tort. The plaintiffs
and Speaker assert their claims against the Respondent are on the basis of
the material evidence before the trial court, not solely only on opinions or
pleadings.
The Statement of Facts as well as the documents to be found before the trial
court reveals the plaintiffs have restricted their cause of action as framed
in contract only those claims they believe are proven by the documentary
evidence of commercial transactions, written agreements and official
correspondences with the Defendant Bulgaria and others.
Those claims framed in tort, inter alia defamation as alleged in the lawsuit
and in later pleadings, find the offensive or actionable words reproduced
in hundreds of public news articles that repeat the slander and reproduce
the liable as alleged before the trial court. The personal injury suffered by
the plaintiffs results from, inter alia, physical anxiety and psychological
torment and the permanent physical and mental disabilities as resulted in
the province. These are fully documented before the trial court by
independent medical practitioners.

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The Applicant therefore asserts before the Appeal Court that the plaintiffs and
his complaints against all the defendants in the law suit, including the
defendant Bulgaria and the Crown, are reasonable claims sufficient for
trial.
Questions of jurisdiction have arisen. The plaintiff(s) have sued a foreign
state, the Republic of Bulgaria, and counsel for the defendant government,
to test the reasonableness of the plaintiffs' claims, relies on issues of state
immunity, jurisdiction simpliciter and forma non conveniens. As a result it
becomes necessary for the present enquiry into a "reasonable claim" to
also consider procedures and exceptions found in the enactments relied on
by the plaintiffs to bring their claims within the jurisdiction of a trial court
of the province. Always keeping in mind the common law applicable to
such questions.
IV.7.1.1.2Jurisdiction
The jurisdiction of the provincial courts of British Columbia and those of
Canada over the defendant Bulgaria are found in the exceptions to state
immunity as established in the State Immunity Act [R.S. 1985, c. S-18], s.
9; 1995, c. 5, s.27 ("State Immunity Act"). The common law is clear on the
principles of restricted immunity. The trial court and Appeal Court have
jurisdiction over officials, agencies, instrumentalities or institutions of the
Defendant, Government of the Republic of Bulgaria. The exceptions relied
on by the plaintiff(s) are found under the provisions of s. 4, s. 5, s.6 and s.
18 of the State Immunity act. Case law noted by the plaintiffs includes,
inter alio, Zodiac International Products Inc. v. Polish Peoples Republic,
(1977)C.A. 366, Kaufman, J.A. at p. 371 and Amanat Khan v. Fredson
Travel Inc. (No.2) (1982), 36 O.R.(2.d) 17, Steele. J.; also see House of
Lords in: I Congreso del Partido, [1983], A.C. 244(H.L.), Lord
Wilberforce at. 262; and for American law see: De Snachez v. Banco
Central de Nicaragua (1985), 770 F.2d 1385, at p. 1393, Rush-
Presbyterian-St. Luke's Medical Centre v. Hellenic Republic (1989), 877
F.2.d 574, the courts there supporting the principle of restrictive immunity
over that of the absolute immunity claimed by the defendant Bulgaria.
The trial court's jurisdiction over the individual foreign defendants and
defendant Bulgaria are found in the exceptions provided under Rule 13(1),
Rules of Court. Exceptions are provided, in jurisdiction simpliciter for all
claims that sound in contract or in tort that are connected to the province.
The plaintiff(s), on the basis of their documentary evidence, have collected
and placed before the trail court what amounts to a good prima facie
arguable case and reasonable claims framed in contract or tort, see:
Huddart J., Northland Properties v. Equitable Trust Co, 1992, 71 B.C.L.R.
(2d) 124 (B.C.S.C.); also see: Bushnell v. T & N plc (1992), 67 B.C.L.R.
(2d) 33, 336 at 342 [1002] B.C.D. Civ. 3714-03(C.A.).

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State immunity, and jurisdiction simpliciter, once resolved, leaves only the
question to of the trial court and Court of Appeal as to being the forum
conveniens to hear the matter. Case law shows the forum non conveniens
argument is resolved on the merit of the plaintiffs' claims as found in those
facts that can materially demonstrate a connection to the province and can
be placed before the trail court as documentary evidence to be later made
available to the trier of the facts. The alleged proof must be sufficient to
show the court that the plaintiffs and this Speaker intend to rely on more
than simple pleadings or opinion evidence when going before the trier of
the facts [see Bushnell supra, and inter alio Amin Rasheed Shipping v.
Kuwait Insurance Co. [1983] 2 All E.R. 884; Spiliada Maritime Corp. v.
Cansulex Ltd. [1986] 2 All E.R. 843; Valmet Paper Machinery Inc. v.
Hapag-Lloyd AG., unreported, December 23, 1996 (B.C.S.C.) at p.4; Stern
v. Dove Audio Inc., unreported, April 15, 1994 (B.C.S.C.) at p. 16; Cook
v. Parcel, Mauro, Junltin & Spaanstra, P.C. (1997), 31 B.C.L.R. (3d) 24
(C.A.); CRS Forestal v. Boise Cascade Corporation, Vancouver Registry
No. C983201, August 13, 1999 (B.C.S.C.), Sigurdson, J; .G.W.L.
Properties Ltd. v. W.R. Grace & Company - Conn. (1990), 50 B.C.L.R.
(2d) 260 (C.A.); Leisure Time Distributors Ltd. v. Calzaturificio
S.C.A.R.P.A. - S.P.A. (1996), 5 C.P.C. (4th) 320 (B.C.S.C.) at p. 3; J.
Michael Jensen Boat Sales Ltd. v. McAfee (1997) 12 C.P.C. (4th) 210
(B.C.S.C.); Bangkok Bank of Commerce Public Co. v. City Trading Corp.
(1997), 13 C.P.C. (4th) 324 (B.C.S.C.)].
It then follows from the case law found in, inter alio, United Oil Seed
Products Ltd. v Royal Bank of Canada (1988), 87 A.R. 337 (C.A.), at 344,
that the onus is placed on the defendant Bulgaria to show a more
convenient forum to hear the plaintiff(s) claims framed in contract or tort
other than the trial court of British Columbia, the plaintiffs having asserted
before the trial court of having met the usual factors necessary to
determine the most convenient forum. See: Camco International (Canada
Limited) v. Porodo (18 November 1997), Calgary 9601-08706 (Q.B.), at p.
7, and special emphasis on Morguard Investments Ltd. v. DeSavoye,
(1993) S.C.R. 1077, at p. 1111, the court writing: "There is nothing, then,
to prevent the plaintiff from bringing such an action and thereby taking
advantage of the rules of private international law as they evolve over
time".
IV.7.1.1.3Procedures Observed.
The plaintiffs have exhausted every reasonable means to inform all the
defendants, including the defendant government of Bulgaria, and to afford
the Crown the opportunity to respond should it seek to do so.

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For service outside Canada to individual defendants on the territory of
Bulgaria the Plaintiffs relied on Rule 13(12)(c), Rules of Court, the Hague
Convention of the Service Abroad of Judicial and Extra Judicial
Documents in Civil or Commercial Matters ("Hague Convention"). The
Plaintiffs, when effecting service of any documents or notice were sure to
observe the declarations to the Hague Convention as made by the
Republic of Bulgaria.
For direct service on the Defendant government agency of the Ministry of
Finance, Republic of Bulgaria, on the territory of Bulgaria, the Plaintiffs
relied on the exceptions provided for in Canada's State Immunity Act [R.S.
1985, c. S-18], s. 9; 1995, c. 5, s.27 ("State Immunity Act"), and that
procedure agreed to and legislated by the Republic of Bulgaria's under its
(Bulgarian) State Responsibility for Injuries Caused to Citizens Act, S.G.
No. 60 August 5th 1988 and under its (Bulgarian) Code on Civil
Procedure Code Article 18(3).
For diplomatic service, where called for, to the Defendant, the Government of
the Republic of Bulgaria, the Plaintiffs relied on s. 9(2) of the State
Immunity Act, and engaged the services of Canada's Ministry of Foreign
Affairs.
Plaintiff(s) claims against the Crown rely on the Crown Liability and
Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21, the Speaker
having served the Deputy Attorney General of Canada with a copy of his
notices and petitions. Furthermore, on issues of constitutional validity the
Speaker has relied on the Constitutional Question Act [RSBC 1996] c. 68,
having served the Attorney General of the Province of British Columbia
with copy of his notices and petitions.

IV.7.2"(b) The Appeal Is Scandalous, Frivolous or


Vexatious.
The Supreme Court Act [RSBC 1996] c. 443, s. 18 interprets a vexatious
proceedings as follows:
"18 If, on application by any person, the court is satisfied that a person has
habitually, persistently and without reasonable grounds, instituted vexatious legal
proceedings in the Supreme Court or in the Provincial Court against the same or
different persons, the court may, after hearing that person or giving him or her an
opportunity to be heard, order that a legal proceeding must not, without leave of the
court, be instituted by that person in any court.

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The Applicant does not believe his reasons and arguments before the Master
as well as before the Chambers Judge of the trial court or now intended
Appeal Court are vexatious. Each petition attempted to first address a
serious and complex question of what constitutional duty the Master or
Chambers Judge had to observe a special standard of review, and duty to
procedural fairness, when practising and applying the Rules of Court in
cases where a petitioner deprived of his or her liberty and property would,
as a result of a rules application, be extremely prejudiced or discriminated
against more than another person.
Secondly, each of the Speaker's petitions raised before a Master or Chambers
Judge, in aggravation of the petitioners circumstances, certain facts
proving a party to the proceeding (defendant Bulgaria) had unacceptably
acted to intimidate or otherwise obstruct the petitioner from exercising his
or her rights as a litigant before the court. Issues of obstruction of justice
cannot be a subject matter to be taken lightly under circumstances such as
those found in the case at bar, being neither scandalous, frivolous or
vexatious, but of serious concern to the practice of law and application of
equal justice.
The proceedings before the trial court, on the one hand, concern contract
rights and the commercial activities engaged in by the parties in or
connected to the province. On the other hand the proceedings also concern
pecuniary and non-pecuniary personal injuries suffered by the plaintiffs in
the province. The intended appeal concerns fundamental civil rights and
obligations enshrined under a significant body of principles to be found
flowing from international law, composing the very essence of the most
primary of rights guaranteed to person deprived of their liberty under the
government of a democracy.
Canada's laws and the international community recognise the right of a person
deprived of liberty to protect his own legal rights and that of his families
and their mutual property interests from unlawful interference,
encroachment or conversion by private or state parties as having been
named in a suit at law. These rights are not to be derogated from a person
deprived of liberty any more than are the rights of any other person a part
of Canadian society, notwithstanding that he is at present involuntarily
detached from his home and Canada.
The written petitions, and the intended appeal of the Speaker are a dialogue
into the very nature of the democratic and free state that Canada
represents, one ruled by the principles of law as such principles must
always be moderated by the Canadian sense of fair play, equality, reason
and humanity. It cannot be scandalous, frivolous, or vexation to bring such
a dialogue before the Appeal Court.

IV.7.3"(c) The Application Is Otherwise an Abuse


of the Process of the Court

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The Speaker and plaintiffs are also of the opinion that they have a good causes
of action before the trial court that sound in tort and in contract against the
all the defendants, including the defendant Bulgaria. The Applicant having
attempted to disclose reasonable grounds for the claim in subsection (a)
above.
The Speaker maintains that albeit he is a lay person and not trained or
experienced in the practice of law, he is nonetheless attempting to act
responsibly towards the processes of the court. He attempts, in full, often
admittedly painful, detail to carefully lay out to the Appeal Court his
research and reasoning, hopeful the court will not view his efforts as an
abuse of its processes.
As seen from subsection (a), there is no merit to the claims by the defendant
Bulgaria that the law suit is an abuse of the courts process on the grounds
of the its having absolute immunity before courts of the province, ergo the
law suit cannot possibly succeed. Any such argument by the defendant
Bulgaria is doomed to fail. The plaintiffs are residents of the province,
they are its lawful resource users and so entitled to prosecute their
legitimate claims before its courts and to seek access as well as avail
themselves of the exceptional powers and inherent jurisdiction of the
court. Under such circumstance no reasonable action of the Applicant can
be seen as an abuse of the courts processes.
The Appeal Court, for the reasons given, is asked to end the deterrence posed
by the courts fees and to allow the relief petitioned for as necessary to the
Speaker to prosecute his appeal before it and his claims before the trial
court. The application for indigent status should be allowed and the
Speaker permitted to proceed against the defendants.
8 For Leave to Appeal
The factors to be considered by the Speaker in motivating an application for
leave to appeal were set out in the case of Hockin v. Bank of British
Columbia (1989), 37 B.C.L.R. (2d) 139 (C.A.), they are as follows:
"1. Whether the point on appeal is significant both to the litigation before the trial
court and to the practice in general;

"2. Whether the appellant has an arguable case of sufficient merit;

"3 The practical benefit to the parties of an appellate decision; and

"4. Most importantly, whether the appeal will unduly hinder the progress of the
proceeding in the trial court.

IV.8.1Whether the point on appeal is significant


both to the litigation before the trial court and
to the practice in general;

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IV.8.1.1 Significance to the Litigation Standards
This Applicant, as a layperson and one deprived of his liberty at that, makes
no pretence to having understood from a prison cell the historic and legal
complexity of the points he raises. What the Applicant can easily
understand is the significance of the moral and practical consequences to
family members relying on him. Beyond the clarity of such human import
remains the need to apply reason where education are wanting, and so
determine what significance, if any, the Applicant’s points have to the
practice.
The intended appeal turns on what appear to be points of law. Expressed in the
simple language of the ignorant, the facts suggest the following.
First, impugned by its affect is a legislation and common law rule. The
exceptional prejudice and wrong complained of having occurred on
application of the legislation and rule to indigent Canadian citizens
deprived of liberty abroad. The constitutional question having two
contexts, the provincial legislation appearing ultra vires on its application
to persons under criminal law jurisdiction, and the common law rule, on
application to the same group, maintaining a discriminatory practice based
solely on property or social status standard determined against presumed
group characteristics. By omission, the provincial legislation fails to
accommodate the distinct characteristics of the affected group. Its
application to indigent citizens imprisoned abroad failing to satisfy
minimal Charter standards of negative restrictions as well as positive
obligations found within the ambit of Federal legislation. Indigent citizens
deprived of their liberty abroad find themselves unable to gain access to
the provincial court to continue or defend their legal rights and obligations
in a suit at law. The Applicant relying on, inter alia, on the principles
found in the cited Meiorin decision.
Secondly, as further and in the alternative, the Duty Master as well as the
Chambers Judge failed in their positive duty to procedural fairness. No
order or decision is reasonable, fair or just when requiring one party (the
Plaintiff) to do a certain thing or act that the other party (the Defendant)
wrongly restrains him or her from doing. This decision is made all the
more unreasonable when placing an onus compelling a person (the
Plaintiff) deprived of liberty to appear or when indigent to retain an
attorney in order to continue or defend in a suit at law. Any judicial or
non-judicial barrier to the exercise of the fundamental and absolute right
and liberty to seek judicial redress for a wrong is by nature intrinsically
flawed. Moreover, it is manifestly unjust to apply compulsion or coercion
to a detached member of Canadian society to overcome a property as well
as self-determination standard when in pursuit of his or her legal and
property rights. To do so solely for the reason of he or she being indigent
and imprisoned abroad is manifestly ill founded.
IV.8.1.2 Intended Points on Appeal

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The point on appeal is significant not only for affecting the Applicant’s
fundamental right to be heard in the proceeding before the trial court, but
to the practice in general. The points raised potentially affect the legal and
property rights each member of a small distinct group of Canadian citizens
who are deprived of their liberty in Canada as well as abroad. If there is
any significance to the present appeal it is the derogation of the
Applicant's fundamental rights in the litigation before the trial court. If
such derogation as claimed here holds to be true then the point on appeal
is equally if not more significant to the practice in general, particularly in
the area of human rights law.
Eight (8) points are chosen as significant to any later analysis on merit as well
as argument to the Applicant's intended appeal:
1. Constitutional Validity of the Impugned Act's Affect on Indigent Prisoners;

The Constitutional Rights of a Citizen Having an "other status" to Judicial Review;

What Standard of Review to be Applied to Applications of "detached" Members of


Society;

Master or Chambers Judge's Constitutional Duty of Procedural Fairness

The Reasonableness of the Affect of the Duty Master's Order ;

The Correctness of the Chambers Judge's Decision;

The Legal Affect of the Order and Decision on Citizens of "other status";

The Question of Exceptional Prejudice;

IV.8.2Whether the appellant has an arguable case


of sufficient merit
IV.8.2.1 Merit
To establish merit the Applicant was guided by the "merit test" as set out by
Wood, J.A. in Mikado Resources Ltd. v. Dragoon Resources Ltd. (1990),
46 B.C.L.R. (2d) 354 (C.A.). In that case, the court was dealing with an
application for a stay of proceedings on a judgment ordering the partition
and sale of a property. Wood, J.A. stated as follows at p. 357:
"I am of the view that the proper approach to the threshold test of merit is that
enunciated by Lambert, J.A. in Rogers Foods (1982) Ltd. v. Federal Business
Development Bank et al. (1984), 57 B.C.L.R. 344 (C.A.). From that judgment I
conclude that if the grounds of appeal raised by the appellant have sufficient
merit that it could not be said that the appeal has no prospect of success, then
the so-called "merit test" is met. That seems to me to be akin to the "fair
question to be tried" test which is applied on an application for an interlocutory
injunction, and that is the approach which I think should be taken in this case."

[Emphasis Added - Mine]

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The Applicant submits that the points of his intended appeal meet the "fair
question to be tried" test enunciated by Wood J.A. in Mikado, supra. The
Appeal Court here is asked to determine the merit of the Applicant's
appeal from the affects of a Duty Master's order. The order appealed
having observed a questionable practice and procedure standard of
applying a reverse onus that a distinct group cannot reasonably meet. The
Applicant's maintains he is a member of a distinct disadvantaged group
unable to meet the discriminatory standards maintained by the courts
practice and procedure. The foregoing gives to the case at bar an arguable
constitutional component having more than a reasonable prospect of
succeeding for the following reasons.
IV.8.2.2 Might the Law Suit Merited
Arguably a case can be made that the principle of international comity make
any argument insufficient where the case before the Bar or point on appeal
appears to intrude on the sovereignty of a foreign government.
The Speaker has not been blind to the Respondent's sovereign rights and
complexity of the questions that arise in his asking a provincial court to
exert its jurisdiction over penal institutions of a foreign state.
Rightly or wrongly the Speaker had suggested to the Duty Master the
procedural possibilities found under Rule 40 and Rule 56, Rules of Court.
The provisions found there while not specific to the circumstances are less
intrusive on the Defendant Bulgaria's sovereignty than asking for the
Speaker's production in custody before the court. The Rules fail to provide
any truly reasonable alternative methods for impoverished prisoners to
have their applications "spoken to" before the court. In any event the trial
court failed to make any comment whatsoever on the alternatives offered
by the Speaker.
That the application of Rule 41(16.5) (b), Rules of Court to the Speaker in the
case at Bar was clearly wrong in the conjoined circumstances of his
incarceration and indigence. Such circumstances having been made clear
to both the learned Master as well as the Chambers Judge.

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The application, as made requested it is spoken to in writing by the Speaker
on the grounds that he was incarcerated and indigent. It requested the
Mater to establish for the Speaker what relief, if any, was available to him
to help moderate the combined debilitating effects incarceration, indigence
and an uncooperative adverse state party had on the Speaker's right to
continue or defendant in the proceedings. The basis of the applications
relied mainly on the s. 15(1) Charter guarantees to equality and protection
in and under the law. Argument against the Master's order were made to
His Lordship Edwards, J., who knew or should have know it to be
physically and materially impossible for the Speaker to appear himself or
to retain legal counsel to appear and have his applications spoken to.
Additional argument was to be found in the conduct of the Respondent as
aggravating the difficulties of the Speaker in the exercise of his
fundamental rights before a court of Canada.
The Appellant respectfully argues that Charter as well as international law
issues offers one or more substantial grounds that could result in the order
appealed being varied or set aside. Ultimately, it is difficult for this
Appellant to express much confidence in his ability to adequately argue
the merits of his Appeal. As stated earlier he is without any guide, having
groped about in the dark in an attempt to formulate arguments and analysis
to merit his appeal. What follows is presently the Speaker's best effort.
IV.8.2.3 Arguable Case
First, on a reading of the Act and the Rules of Court, it is apparent the
Lieutenant Governor omitted a negative restriction to the court applying a
practice and procedure standard having a reverse onus. The onus in
question, on application to a distinct group, indirectly maintains an
absolute practical barrier on a citizen's fundamental right to develop a
judicial remedy. As well its application places unreasonable limits on only
the affect group's fundamental right to continue or defend in a suit at law.
The exceptional prejudice resulting from foregoing omission are observable as
real affects occurring on application of the courts reverse onus standards to
any indigent citizen deprived of his or her liberty. A Master or Chambers
Judge maintains the discriminatory standard when fixing an order
applying the courts reverse onus practice and procedure. The order
indirectly acts as an absolutely bar to any further access to the court
services until the affected person comes within a discriminatory standard
solely based on a set of property and social characteristics. A group of
citizens unable to meet the property as well as social requirements of the
courts discriminatory standards are unreasonably limited from continuing
or defending in a proceeding.

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What the Appeal court is asked to determine at trial if the practice and
procedure standard under the Court Rules Act demonstrably maintain a
discriminatory standard on application to a distinct group of citizens
having no property as well as no liberty. A Master or Chambers Judge, on
application of the standard, unreasonably limits the fundamental rights of
a distinct group solely on the basis of the affected groups’ status as a
detached part of Canadian society.
Second, on a further reading of the impugned Act and Rules of Court it is as
well apparent the Lieutenant Governor having observably omitted making
quantitative allowances under the Rules of Court for a set of supplemental
procedural accommodations necessary to those persons who cannot meet
the practices discriminatory standards.
The enactment provisions fail to incorporate a necessary accommodation into
standards of the Rules of Court allowing for an appropriate procedural
remedy as well as a assessment of each person within the affected group
according "to his or her own abilities, instead of being judged against a
presumed group characteristics" [see McLachlin, J. in the cited
Superintendent of Motor Vehicles (B.C.) supra]. Under the present
practice and procedure standards a Duty Master or Chambers Judge
remains insensitive as well as unresponsive to a distinct group's afflictive
property as well as social status characteristics.
The required merit for Appeal Court review may as well be found in the very
real and prominent negative affects due to this second omission. The
Applicant, as would any other member of the affected group, will find no
procedural accommodation to supplement the extremely prejudicial affects
of the enactment's discriminatory standards as maintained by a Master or
Chambers Judge. The affected group finds itself absolutely barred by the
SCBC from developing a judicial remedy as well as unreasonably limited
to the fundamental right to continue or defend in the proceedings of a suit
at law.
The Appellant believes he has an arguable case significant to the litigation
before the trial court. At least sufficient enough for the Appeal Court to set
aside or vary a Duty Master's order having barred him from a fundamental
right to develop a judicial remedy as well as unreasonably limiting his
right to continue or defend in a law suit. A Duty Master or Chambers
Judge must have erred in judgement on application to the Appellant of a
discriminatory standard maintained for a presumed set of group
characteristics he cannot possibly meet. The Master having failed in what
the Appellant believes to be a positive constitutional duty to assess the
Appellant according to his own abilities and not a group presumed
characteristics.

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The Appellant believed he as well has developed an arguable case significant
to the practice in general. The Appeal Court asked to consider at trial the
constitutional validity of a practice and procedure standard under the
Court Rules Act that maintains a discriminatory standard solely affecting a
distinct group due to their afflictive property status as well as for being a
detached part of Canadian society. The impugned enactment having
omitted negative restrictions as well as positive obligations necessary to
incorporating accommodation into the courts standards for a person or
group unable to meet the courts presumed characteristics. Ultimately the
Appeal Court to determine at trial if the discriminatory standards
maintained by a practice and procedure under the enactment, can or cannot
form the basis of reasonably necessary standards when affecting a
property as well as social barrier to access justice.
Are property and social barriers reasonable, and justifiable limits on the
affected group's fundamental rights in a suit at law as prescribed by law in
a free and democratic society according to the inviolable principles of
natural justice, and international law? The Appellant believes they are not.
IV.8.2.4 Discussion
IV.8.2.4.1Affect as Opposed to Intent.
Some additional discussion on the particular circumstances is warranted. The
Appellant understands the just, fair, and economic "intent" of the Court
Rules Act, Rules of Court as well as the Duty Master's order. Under the
ordinary day to day circumstances confronting a Master or Chambers
Judge in their administration of the courts' resources, the Order's negative
onus affecting the Applicant would not ordinarily provide grounds open to
challenge.
What is significant to the Applicant's argument is that the "affect" of the Order
as well as the discretionary practice and procedure relied on by a Master
or Chambers Judge for "justice and economy" in administration of the
court resources. This appears, from the affects, to be in direct conflict with
the perceived legislative "intent" of the enactment.
The Duty Master's reverse onus effectively maintains a discriminatory
practice and procedure standard under the enactment solely based a
presumed set of property and social characteristics. This is true in two
ways.
IV.8.2.4.2First, in its present form, the order as appealed acts to
limit the legal rights of only one party, the plaintiff

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The practice and procedure questioned grants discretionary power to a Master
or Chambers Judge to require prior to any judicial review or remedy (1)
that the petitioner first appear, or (2) retain legal counsel to appear for him.
The power to order the petitioner to do so is clearly apparent as is the
power to limit his legal rights by ordering a stay on any further judicial
actions until having complied with the order. However, the order's reverse
onus observably maintains a discriminatory standard on a presumed set of
characteristics based on the petitioner's status of self determination as well
as property.
The Appellant found he could not meet the discriminatory standards of the
Duty Master's order. On petitioning the Master for some form of
supplemental procedural accommodation the Appellant found himself
barred by the Duty Master from any further applications attempting to
develop a judicial remedy as well as limited in his right to continue or
defend in the proceedings.
On exercising his right of appeal to a Chambers Judge the Appellant objected
to the Master's application of an administrative practice and procedure
maintaining a discriminatory property and social standard that acts as a bar
as well as a limit to his right as a citizen to prosecute or defend in a suit at
law. The Appellant was outside the presumed characteristics of the
administrative standard applied to him, having asked the Chambers Judge
to assess him according to his personal circumstances rather than the
courts presumed characteristics. His Lordship asked to vary the Duty
Master's order to incorporate an accommodation having considered the
hardships as well as limitations of the Appellant.
Not surprisingly His Lordship Edwards, J. maintained the discriminatory
standards of the enactments practice and procedure having found the
affects of the Duty Master's order as reasonable. This bar as well as limit
to the Applicant's fundamental rights in a suit at law are apparently
justified notwithstanding the Applicant's having been deprived of his
liberty and self determination as well as property by the Defendant
Bulgaria. The bar as well as limitations are to remain until the Appellant as
plaintiff could meet the discriminatory standards apparently fixed under
the Court Rules Act.
IV.8.2.4.3Second, the practice and procedure applied to the case
before the trial court acts to unintentionally aid a state
party that finds itself a defendant to a law suit.

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The petitioner alleged in writing before both a Master and Chambers Judge of
the trial court that the state defendant, the government of Bulgaria, had
permitted its agencies to use physical and psychological coercion to
unlawfully deter or delay him in continuing or defending in the
proceeding. The plaintiffs and others have documented before the trial
court the Defendant's acts of obstruction and intimidation of the
Appellant's family. The defendant Bulgaria's agencies using non-judicial
coercion as an unlawful means to succeed in the proceedings before the
trial court.
The distinction between intent and affect is again made. It is not suggested the
practice and procedure of the court as having a sole legislated purpose to
bar as well as unreasonably limit legal rights to plaintiffs deprived of
liberty. Furthermore, under no circumstances is there a suggestion of a
Master or Chamber Judge having a personal prejudice in favour a State
defendant's legal rights over the rights of an indigent Canadian citizen
deprived of liberty. However, the unreasonable limiting affects on
application of the court's discriminatory standard to this distinct group are
incontrovertible.
What is more disturbing to the plaintiffs is the trial court having favoured the
defendant Bulgaria on application of discriminatory standards the
Appellant cannot possibly meet. The presumed characteristics on self
determination and property are standards the Master as well as Chambers
Judge knew or should have known as exceptionally as well as
unreasonably prejudicing the Appellant. On barring the Appellant from his
fundamental right to develop a judicial remedy the Defendant Bulgaria
found no cause to cease and desist from any unacceptable interference
with his legal rights in the proceedings.
Furthermore, the Defendant Bulgaria is indirectly aided at any hearing in the
proceeding. The Court Rules Act, Rules of Court, having omitted to
incorporate a procedural accommodation permitting persons within the
affected group a means to continue or defend in the proceeding.
IV.8.2.4.4What Affects Are Truly Apparent?
It can been seen from the foresaid that the best and most principled intentions
of a court practice and procedure cannot alter the reality of its disparaging
affect when applied to a distinctly disadvantaged group, i.e. an indigent
person deprived his liberty by a party adverse in interest to them, and
intent on obstructing their legal right to a full hearing and due process
before a court of Canada.

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The significant point to the practice in general as raised in the present enquiry
appears to be that of a reasonable discriminatory standard maintained by a
practice and procedure, i.e., a Master or Chambers Judge having required
the attendance to the court of a litigant and/or his solicitor. The nature of
this discriminatory practice and procedure appears only to advance the
governmental regulatory scheme of "justice and economy" in the
administering of the courts services to the general public. What is arguable
is this reasonable standard becomes observably unreasonable solely on its
application to a person who is indigent as well as deprived of his liberty.
Maintaining such a discriminatory standard as a practice and procedure of
the court must be impugned by its affect having exceeding the reasonable
limits prescribed by law on application to this distinct group.
Early it was mentioned that what appeared significant to the practice in
general, and the present litigation, is that the government's intent of
"economy" appears to be in conflict with its purpose of "justice". The
enactment, the Court Rules Act, having by omission acted to indirectly
discriminate against all indigent persons deprived of their liberty. It doing
so by omitting a "practice and procedure" to provide some reasonable
form of procedural assessment as well as remedy for the court to apply in
those instances where its otherwise reasonable limitations on a persons
right to continue or defend in a suit at law become unreasonable on
application to a distinct and disadvantaged group.
IV.8.2.5 International Legal Rights of Persons Deprived of Liberty.
The previously discussions, and the cited international and national
documents, flesh out the human and fundamental rights of persons,
including those deprived of liberty. The principle guarantees found there,
and as applicable national laws, are representative of the legal obligations
of states to the men and women the state has deprived of liberty.
To make his case the Appellant has turned to the principles of international
law that are substantially the same as practised under the common law.
The a priori principles relied on appear as equally relevant to the civil law
tradition of the Defendant Bulgaria as they do to the common law
traditions of Canada.
The Appeal Court is asked to consider these a priori principles when
interpreting factors having significant dilatory affects on the Appellant's
ability to obtain a timely and effective means to access the trial courts of
British Columbia. The obstacles having resulted from a discriminatory
practice and procedure standard followed by a Duty Master of the
Supreme Court of British Columbia. The affects of the Duty Master
maintaining as well as applying this standard to the Appellant are severely
aggravated here by the failure of the Republic of Bulgaria to observe its
international commitments. Agencies of the Defendant State refusing to
recognise the negative restrictions as well as positive obligations to be
observed in its treatment of any person deprived of liberty.

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The Appeal Court is asked to consider how the a priori principles of
international law might impact on the merits of the Appellant's primary
question on a discriminatory practice and procedure having exceptionally
prejudicing the fundamental rights of Canadian citizens part of a distinct
group. The controversy raised within the Appeal Court's jurisdiction is one
of reasonableness as well as correctness in the necessity of a
discriminatory practice and procedure standard.
As discussed earlier from the nature as well as affects of the Duty Master's
order there appear a set of basic presumed property and social
characteristics solely bias and historically prejudiced to a distinct group.
Application of the standard to the group derogates from Charter as well as
international principles guaranteeing a right to judicial remedy as well as
to continue or defend legal and property interests in Canada.
The discriminatory standard under the impugned practice and procedure is
observable in a reverse onus applied by the Duty Master as well as the
Chamber Judge decision finding the standard of discrimination reasonable
when judged against the presumed characteristics of the Applicant. It is
recalled the Appellant sought judicial review as well as relief from
application of a discriminatory standard he cannot meet. The Appellant
relied on his Charter right of remedy under s. 24(1), having brought his
appeal first to the Chambers Judge in a form set out under the provisions
of Rule 53(6), Rules of Court. The Appellant petitioned the learned
Chambers Judge to secure for him as a inmate of a penal institution, such
relief as His Lordship considered under SMR Principle 61 to be "the
maximum extent compatible with law" and necessary to see the Appellant's
"rights relating to [his] civil interests" in Canada safeguarded before the
trial court having jurisdiction over the proceedings.
The legal effect of engaging this discriminatory standard under the Court
Rules Act is one having the practical affect of denying any possibility to a
Canadian citizen deprived of liberty to obtain a judicial review. The
affected group is absolutely barred by this practice and procedure from
applying as well as developing a Charter remedy under s. 24(1) that reads:
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.

Application of a reverse onus having at least limited one of two standard


accommodations - appear or hire a lawyer - unreasonably and unfairly
limits incorporating a supplemental accommodation for a group unable to
meet the discriminatory standards. The Court Rules Act, Rules of Court
fails, as we have seen, to provide a necessary accommodation for a person
deprived of liberty to "obtain such remedy as the court considers
appropriate and just in the circumstances" when seeking to exercise his
"rights or obligation" in a suit at law.

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Helpful to the court interpreting what a prisoners' minimal and fundamental
rights are in a suit at law are The Body of Principles for the Protection of
All Persons Under Any Form of Detention or Imprisonment as well as The
Basic Principles for the Treatment of Prisoners previously touched on.
Like the SMRs, these instruments are binding on governments, including
Canada, and provide guidance to the courts to the extent that the norms set
out in them and explicate the broader standards contained in human rights
treaties. They provide valuable points of international reference for the
courts on the intent of the relevant international law, and are documents
that clearly reaffirm to the courts the tenet that prisoners retain
fundamental human and civil rights.
As the most recent of these documents, the Basic Principles for the
Treatment of Prisoners, declares in Principle 5:
"Except for those limitations that are demonstrably necessitated by the fact of
incarceration, all prisoners shall retain the human rights and fundamental freedoms
set out in the Universal Declaration of Human Rights, and, where the State
concerned is a party, the International Covenant on Economic, Social and Cultural
Rights, and the International Covenant on Civil and Political Rights and the Optional
Protocol thereto, as well as such other rights as are set out in other United Nations
covenants."

[Emphasis Added - Mine]

Endorsing this philosophy in 1992, the United Nations Human Rights


Committee explained that states have "a positive obligation toward
persons who are particularly vulnerable because of their status as persons
deprived of liberty", stating:
"Not only may persons deprived of their liberty not be subjected to [torture or
other cruel, inhuman or degrading treatment or punishment], including medical or
scientific experimentation, but neither may they be subjected to any hardship or
constraint other than that resulting from the deprivation of liberty; respect for
the dignity of such persons must be guaranteed under the same conditions as for that
of free persons. Persons deprived of their liberty enjoy all the rights set forth in
the [ICCPR], subject to the restrictions that are unavoidable in a closed
environment [see: U.N. Human Rights Committee, General Comment 21, paragraph
3. The Human Rights Committee provides authoritative interpretations of the ICCPR
though the periodic issuance of General Comments].

[Emphasis Added - Mine]

The learned Chambers Judge ruled the Appellant's appeal and other
applications be returned to him. The learned Edwards J. having apparently
found it reasonable to judge the Appellant against presumed group
characteristics, notwithstanding him being in the impoverished as well as
harsh custody of the defendant Bulgaria. A Master or Chambers Judge
knew or should have known this to be an impossible task and one that
contravenes the very a prior element of equality and fairness imbued
through in Canadian human rights legislation as well as every international
agreement cited..

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Apparently an order barring an indigent person deprived of his liberty from
any future possibility to develop a judicial remedy as well as continue or
defend in a proceeding against a foreign State or the Crown is reasonable
for as long as he is unable to appear, or alternatively to pay for a lawyer to
his applications "spoken to." Both the learned Master as well as Chambers
Judge Edwards, J. failed to recognise the "hardship and constraint" that
the order had on the Appellant or their "positive obligation" towards a
group made "particularly vulnerable because" of an obviously afflictive
and vulnerable status.
Furthermore the order as well as impugned enactment is contrary to the
principles of natural justice and traditions of common law. The Duty
Master's order can only been seen for its absolute nature of denying a
prisoner access to a court of law in Canada. There are no other practical or
reasonable legal affects attributable to the discriminatory standards the
Master's order applies to those citizens deprived of their liberty. Yet, such
an order exists as well as having been confirmed in its reasonableness by
the Chamber Judge.
IV.8.2.5.1As to the Defendant Bulgaria
The Applicant has alleged throughout the course of the proceedings before the
trial court, including those attempts to bring the present applications
before the Appeal Court the following.
That his rights as guaranteed under principles of international as well as the
defendant Bulgaria's national law are persistently breached. The defendant
Bulgaria refusing its international commitments by failing to observe the
negative restriction on a State (1) in applying physical as well as
psychologically coercive measures to prevent or delay person deprived of
liberty in developing a judicial remedy as well as continuing or defending
in proceedings where the State is named as a defendant, and for also
refusing to meet the positive obligation of a State (2) to conduct a person it
has deprived of liberty to any and all judicial proceedings affecting his
legal interests as well as other rights and obligation in a suit at law, such
obligation is notwithstanding the proceedings to be in a foreign
jurisdiction.

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Defendant Bulgaria's refusals to conduct the Appellant to hearings in Canada
are motivated by administrative and budgetary difficulties of the agency
responsible for escorting prisoners to judicial sittings. Bulgarian agencies
continuing to refuse to identify the substantive law barring the Appellant
from giving argument or evidence against the defendant Bulgaria before a
Canadian court of law. There exists a practice of the United Nations
Human Rights Committee that has stressed on more than one occasion that
the obligation of states is to treat persons deprived of their liberty with
dignity and humanity. This a fundamental, and universally applicable rule
not dependent on the material resources available to the state party [see:
Ibid., paragraph 4; see also Mukong v. Cameroon (No. 458/1991) (August
10, 1994), U.N. Doc. CCPR/C/51/D/458/1991 (stating that minimum
requirements regarding floor space, sanitary facilities, provision of food,
etc., must be observed, "even if economic or budgetary considerations
may make compliance with these obligations difficult")], mutatis
mutandis, difficulties or costs encountered by the defendant Bulgaria are
not an excuse for it to refuse meeting its international duty to conduct a
prisoner to a foreign state for a judicial hearing. Financial difficulties are
not sufficient cause for Bulgaria to refuse a person deprived of his or her
liberty their right to attend, or otherwise access a foreign court when
having to prosecute or defend their legal or property interests against it
before a civil court.
The present Appellant has reasoned it not only wrong, but in fact unlawful
under prevailing international law for government agencies to hinder,
deter or deny persons deprived of liberty a means to bring complaints as
well as continue or defend their claims before a court. International law
exempts no State government solely on account of the State where the
prisoner is to be found, or the State where a judicial hearing is to be
scheduled. The negative restrictions as well positive obligation of a State
retain the same a priori of securing a person deprived of liberty his rights
before all courts.
The complexities of the proceedings are admittedly made more vexing due to
the "other status" of the Appellant as a prisoner of the defendant Bulgaria.
Its agencies activities in hindering the Appellant are documented before
the trial court. This strongly suggests, a posteriori, that the discussed body
of national laws as well as a priori international principles do not apply to
a citizen of Canada when proceeding against the government of Bulgaria.

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It is on the basis of the conduct of the defendant Bulgaria the Appellant
believed he had sufficient cause for his earlier petitions to secure a form of
supplemental accommodation from the Duty Master. The Appellant,
pointing out his personal difficulties with the Defendant Bulgaria,
requested the Duty Master not judge or assess him against presumed group
characteristics. Instead the Appellant asked the Duty Master to allow him
an accommodation of time to develop his judicial remedy as well as
conduct or defend his legal interests in writing before a Master or
Chambers Judge and later the trier of the facts. It is for this same reason
the Appellant believes he has adequate cause to petition the Appeal Court
for the relief refused him by the Duty Master.
IV.8.2.5.2As to the Crown and Canada
The proceedings before the trial court are without doubt complicated by the
matrix of facts and international circumstances of a law suit involving, in
part, acts of the Crown in, and outside, of Canada.
Of significance to the present discussion are the principles found under
UDHR Art. 12 and 28, and the Crown's involvement with the defendant
Bulgaria in Sofia, Bulgaria as well as in Vancouver, British Columbia. Due
to the Crown's direct as well as vicarious involvement with the Defendant
Bulgaria it appears that an international obligation exists for the Crown to
provide a remedy from "arbitrary interference", and attacks on the
"honour and reputation," [see above: "Facts of the Case: Malicious
Prosecution; Defamation: Criminal Extortion"] of the Appellant. The
attacks are alleged as having been perpetrated by the Defendant Bulgaria
at the instance as well as with the assistance of the Crown.
The principles of international law as well as Canada's constitution appear to
require a remedy to be "fully realised" in the lex fori of the provincial
court, notwithstanding the foreign lex loci delicti of the Crown's acts. The
court's practice and procedure applying discriminatory standards to the
Appellant strongly suggests a bar on judicial redress against the Crown.
This property as well as social barrier limiting a distinct groups right to
continue or defend in a suit at law against the Crown as well as others will
gone for as long as the Lieutenant Governor permits the Court Rules Act
to exceptionally prejudice the fundamental rights of the group. The
Lieutenant Governor having not recognised imprisonment as "afflictive" in
nature omitted to provide a practice and procedure for individual
assessment of a prisoner's special needs as well as quantitative
supplemental accommodations to address those needs.

IV.8.3Is the Point on Appeal Arguable


The Appellant incorporates here by reference his early arguments as well as
discussions. It is now appropriate to turning to review of the earlier
enquiry in the context of the eight (8) points identified as arguable:

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Constitutional Validity of the Impugned Act's Affect on Indigent Prisoners;

The Constitutional Rights of a Citizen Having an "other status" to Judicial Review;

What Standard of Review to be Applied to Applications of "detached" Members of


Society;

Master or Chambers Judge's Constitutional Duty of Procedural Fairness

The Reasonableness of the Affect of the Duty Master's Order ;

The Correctness of the Chambers Judge's Decision;

The Legal Affect of the Order and Decision on Citizens of "other status";

The Question of Exceptional Prejudice;

IV.8.3.1 Constitutional Validity of the Impugned Act's Affect on


Indigent Prisoners;
IV.8.3.1.1Constitutional Applicability and Remedy
The Applicant raises the issue of the constitutional validity of s. 1(2) (a) of the
Court Rules Act [RSBC 1996] c. 80. As well as a Charter issue over a
discriminatory standard and presumed group characteristics practised as a
common law rule under the impugned Legislation.
At the outset the Applicant apologises to the court for any confusion he
exhibits on how to interpret the Lieutenant Governor's practice and
procedure regulations, the "rules" as "made "in council." The Applicant
finds the impugned part of the enactment [s.1] sufficiently broad as to
confuse him on how to distinguish the "practice and procedure" the
Lieutenant Governor has made by "regulation" as from one relying upon a
common law rule. Is both the provincial legislation as well as a common
law rule impugned? Clearly the power of compulsion, as well as coercion,
is incorporated as a part of the administrative practice and procedure
determined by the Lieutenant Governor. This suggests the enactment is
law for it has all the trappings and effects of law, engaging other statutes
as well as common law rules. For these reasons it appears subject to
constitutional challenge as well as libel to a Charter review.
Admittedly the Applicant is ignorant about the finer points of such complex
issues, and lacks the full breath of literature and experience needed to
make as refined a distinction as he would like. What follows is an attempt
to develop from available case law and literature as reasoned an argument
and balanced a set of complaints as are possible for the Applicant from
prison.

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The constitutional question arose on examining the affects of the rules under
the Legislation in the context of its intended purpose. The Charter question
arose on a Master or Chambers Judge fixing an order under Rule
41(16.5)(b), Rules of Court [Court Rules Act] pursuant to a common law
rule applying discriminatory standards to person who cannot meet
presumed group characteristics.
The first grievance of constitutional validity there appears to have a valid
argument in that the impugned part of the Court Rules Act [the
"Legislation"] may be ultra vires, the provincial Government, on
application to a distinct group. Either due to its colourability, the
Legislation having indirectly allowed addition restrictions on a distinct
groups' fundamental rights and liberties beyond those already enacted
against the group under criminal law. The rights and liberties of the group
offended by the Legislation are absolute rights of all persons under law
and not subject to limitation under a property and civil law jurisdiction.
Alternatively, although admittedly less likely, there is the paramountcy
doctrine, the Legislation itself having transgressed the constitutional
division of powers between provincial and federal governments.
The Applicant further alleges the application of the Legislation's
discriminatory standard as well as presumed group characteristics having
exceptionally prejudiced the absolute rights and liberties of a distinct
group of Canadian citizens. The Legislation permits the exercise of the
power of compulsion as well as coercion to effectively deny a distinct
group their access to provincial court services and judicial review
facilities. Restrictions as well as limitations are determined solely on
judging a person against presumed group characteristics of property and
self determination. Application bars the affected person from any further
attempts at developing a judicial remedy as well as to continue or defend
in a proceeding already commenced.
The Applicant's right to question the constitutional applicability of the
impugned part of the Legislation as well as to seek Charter relief from its
affects is derived from the Constitutional Question Act [RSBC 1996] c. 68
Section 8 as follows:
"8 (1) In this section:

"constitutional remedy" means a remedy under section 24 (1) of the Canadian


Charter of Rights and Freedoms other than a remedy consisting of the exclusion of
evidence or consequential on such exclusion;

"8 (2) If in a cause, matter or other proceeding

(a) the constitutional validity or constitutional applicability of any law is challenged,


or

(b) an application is made for a constitutional remedy,

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the law must not be held to be invalid or inapplicable and the remedy must not be
granted until after notice of the challenge or application has been served on the
Attorney General of Canada and the Attorney General of British Columbia in
accordance with this section.

(3) If in a cause, matter or other proceeding the validity or applicability of a


regulation is challenged on grounds other than the grounds referred to in
subsection (2) (a), the regulation must not be held to be invalid or inapplicable until
after notice of the challenge has been served on the Attorney General of British
Columbia in accordance with this section.

The Applicant recognised, before turning in earnest to the constitutional


question, that at least in his view any challenge on an administrative law
basis has probably been largely foreclosed by decisions of the courts of
this province and others. By its nature an order or judgement made under
the Legislation according to Rule 41(16.5) (b) is pre-qualified to be
eminently reasonable and just when judged solely against presumed group
characteristics. It is this "inherent reasonableness" that makes any such
administrative or quasi judicial decision so ill suited to challenge by the
affected party or judicial review by the appellate court.
However, what is of significance to the present constitutional enquiry, and to
the practice generally is that there is the appearance a legislative
deterrence having solely affected results in civil proceedings brought on
application or petition of an indigent person deprived of liberty. If not
intent of the impugned Legislation to systematically prohibit or limit
judicial review of prisoner's applications and petitions submitted in civil
proceedings, it is most certainly its observable affect on application to this
distinct group.
It is the affect on application of the Legislation as well as its common law rule
to indigent persons deprived of liberty that gives the Applicant a right to
claim standing to bring a constitutional challenge as a private party having
been "exceptionally prejudiced" by its application [Smith v. Ontario (AG),
supra at 337]. The Legislation, as applied negatively affects the Applicant
fundamental rights and liberties more than any other citizen, certainly to
the exceptional degree necessary for standing.

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However, because the Applicant is in the exceptional circumstances of an
indigent Canadian citizen deprived of his liberty abroad, it makes it
necessary to point out that the Appeal Court has discretion to decide a
point of public importance which has been fully argued. Where there is a
questionable standing [see: Smith at 338 as cited in Professional Institute
of the Public Service of Canada v. Northwest Territories (Commissioner),
[1990] 2 S.C.R. 367 per Sopinka J. at 400] the Courts have granted
discretionary public interest standing where no other private litigant who
could step forward to challenge the law [see: Minister of Justice (Canada)
v. Borowski, [1981] 2 S.C.R. 575; Canadian Council of Churches v.
Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236].
In principle the Applicant as a indigent Canadian citizen deprived of his
liberty would have standing were it not for the fact he is prevented by his
indigence as well as by refusals of agencies of the Crown and the
Defendant Bulgaria to apply to him the practice and procedures under both
national laws, as well as applicable principles of international
commitments and reciprocity, that allow for the conduct under police
custody of inmates to and from judicial proceedings, notwithstanding
foreign jurisdiction.
The Applicant recognises that the Legislation does not specifically prohibit the
civil activity of indigent prisoners to bring, continue or defend in a
proceeding. It is reasoned by the Applicant that the impugned Legislation
was promulgated in the interests of justice and as a public service to
prohibit abuses of the courts resources. The Registrar, Duty Master and
Chambers Judge having a statutory duty to regulate such resources and
balance them with the interests of the public and those of equal and fair
justice.
However, according to this Applicant, the Legislation as a whole fails to
recognise, or provide for a reasonable procedural accommodation as a
remedy to the afflictive nature of imprisonment. This failure, or the
appearance of such, creates a conflict, or the appearance of a conflict, of
interest, between the requirements of the provincial "government's
objective of cost effective and expeditious administration of judicial
proceedings and other processes of the courts in the name of the well-
being of the public" and the criminal law jurisdiction of the federal
government as well as the constitutional duty of all Canadian courts to a
proper standard of review, procedural fairness and reasonableness in its
determination of an application or petition brought by an indigent prisoner.

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The Applicant argues that the derogation of a person's fundamental rights and
liberties otherwise guaranteed under natural law are not the same as the
Legislation's intended purpose of prohibiting abuses or regulating the
conduct of proceedings Neither in purpose or affect are the practice and
procedure of the Legislation allowed to add to an existing sanction,
penalty or punishment under criminal law or to derogate from such
fundamental rights or liberties if not specifically prescribed by law. The
Applicant argues that in the Legislation judging all persons against
presumed group characteristics, without providing an accommodation for
those persons who cannot meet them, amounts to nothing more than a
regulation or common law rule indirectly aimed at prohibiting and limiting
judicial review of applications received from indigent citizens deprived of
liberty. The facts demonstrate the affect of impugned Legislation is based
on one or more of the grounds enumerated in s. 7 and s. 15 or on
analogous grounds. The threshold requirement to engage s. 7 and s. 15 of
the Charter has therefore been met in this case.
There exists as well a statutory duty of a Master or Chambers Judge to
regulate from practising real or perceived discrimination against a person
already placed at a legal disability on application of a government
sanction, penalty or punishment under criminal law. According to the
Applicant the impugned Legislation omits recognition of the types of
circumstance that may create a conflict, or the appearance of a conflict, of
interest, between the principles of equal justice and the economic and
efficient dispensing of civil proceedings, having as effect if not purpose,
the creation of a prohibition against a small group of citizens from
participating in the processes of the court.
The Applicant's explanations and reasoning may not be as clear they could be,
but there can be no doubt as to the affect of an unrestricted application of a
discriminatory standard solely based on judging all persons against
presumed group characteristics of property or social status. A
constitutional question must arise on the face of facts that prove a
Legislation to be so broad and wide sweeping in its application, or in the
alternative so limiting, that it results in an indirect and unintended
discrimination against this particular minority's fundamental rights to
equality before and under the law, and to equal protection and benefit from
the law. Although the criterion of the impugned Legislation is the same to
all persons, indigent prisoners also protected by the Charter are unfairly
affected, and this constituted constructive or adverse effect discrimination
.That the restriction or reduction of a persons fundamental rights occurs
solely a basis of the minority status of these Canadians is manifestly unfair
in substance and offends against Section 7 and 15(1) of the Charter.

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For the purposes of this enquiry any future use of the terms, "impugned act ",
"impugned rules", "Court Rules Act", "Rules of Court", "Rules" and
"Legislation" are used interchangeable one with the other and shall always
refer to the Court Rules Act [see: Interpretation Act [RSBC 1996]c. 238,
Expressions Defined - "Rules of Court", "when used in relation to a court,
means rules made under: (a) the Court Rules Act, or (b) under any other
enactment that empowers the making of rules governing practice and
procedure in that court"] and deemed to mean the same Legislation unless
otherwise stated.
IV.8.3.1.2Issues
The Applicant's notification to the Attorney General of British Columbia was
in compliance with s. 3 and s. 8(4) of the cited Constitutional Questions
Act that read:
Notice to Attorney General of Canada

"3. In case the matter referred relates to the constitutional validity of all or part of an
Act, the Attorney General of Canada must be notified of the hearing, and must be
heard if the Attorney General of Canada sees fit.

Notice of questions of validity or applicability

"8 (4) The notice must

(a) be headed in the cause, matter or other proceeding,

(b) state

(i) the law in question, or

(ii) the right or freedom alleged to be infringed or denied,

(c) state the day on which the challenge or application under subsection (2)
or (3) is to be argued, and

(d) give particulars necessary to show the point to be argued.

(5) The notice must be served at least 14 days before the day of argument unless the
court authorizes a shorter notice.

The major issues to be resolved in the intended appeal as identified to the


Attorney General follow what appear to be traditional lines of enquiry:
Is the Legislation constitutionally valid under the division of powers established by ss. 91
and 92 of the Constitution Act, 1867?

If the enactment is within the legislative competence of the Provincial Government under
s. 92 of the Constitution Act, 1867, is there nevertheless a deprivation of a liberty
protected by s. 7 as well as a discriminatory practice restricted by s. 15(1) of the
Charter of Rights and Freedoms (the "Charter") on application to a distinct group?

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If there is a deprivation of a liberty protected by s. 7 as well as s. 15(1) of the Charter,
does the deprivation offend the principles of fundamental justice within the ambit of
s. 7 as well as s. 15(1) of the Charter?

If there is a breach of either or both a s. 7 as well as s. 15(1) Charter right, is the


Legislation nevertheless saved by s. 1 of the Charter?

If the right or liberty limited are ones saved by s. 1 of the Charter are the outstanding
issues that remain then based on administrative law principles pursuant to the
Judicial Review Procedure Act [RSBC 1996] c. 241?

If the Judicial Review Procedure Act (the "Act") applies, are then indigent Canadian
citizen deprived of liberty abroad limited or prohibited under s.4 of the Act from
bringing a proceeding referred to in s. 2?

Is it reasonable for a Duty Master or correct for a Chambers Judge to limit the nature of
applications from persons deprived of liberty, as well as the standard of their of
review in a proceeding under s. 2(1) of the Act for any reason other than those setout
in s. 3 and s. 4 of the Act?

If a common law rule permits application of a discriminatory standard prohibiting the


nature of applications under s. 2 of the Act as well as a limitating the standard of
their review, is it then reasonabe and correct to apply this discriminatory standard to
indigent citizens deprived of their liberty abroad when solely based on a his or her
personal ability or inability on application to meet presumed group characteristics of
other applicants.?

If the application of a property and social discriminatory standard is in and of itself


reasonable and correct under the common law, notwhithstanding that indivdual
assessment of personal abilities and limitations would prove otherwise, are its legal
affects according to prevailing human rights legislation and superior court decisions
as equally reasonable and correct when applied to indigent Canadian citizens
deprived of their libery abroad who cannot meet presumed group characteristics?

IV.8.3.2 Is the enactment constitutionally valid under the division of


powers established by ss. 91 and 92 of the Constitution Act,
1867?
IV.8.3.2.1Pith and Substance
For the first question as to the constitutional validity of the impugned
Legislation the Applicant turned to the statement of Sopinka J. in R. v.
Morgentaler, [1993] 3 S.C.R. 463 (S.C.C.). At 481-2 he wrote:

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"Classification of a law for purposes of federalism involves first identifying the
"matter" of the law and then assigning it to one of the "classes of subjects" in
respect to which the federal and provincial governments have legislative authority
under ss. 91 and 92 of the Constitution Act, 1867. This process of classification is
"an interlocking one, in which the British North America Act and the challenged
legislation react on one another and fix each other's meaning": B. Laskin, "Tests for
the Validity of Legislation: What's the `Matter'?" (1955), 11 U.T.L.J. 114, at p. 127.
Courts apply considerations of policy along with legal principle; the task requires "a
nice balance of legal skill, respect for established rules, and plain common sense. It
is not and never can be an exact science": F.R. Scott, Civil Liberties and Canadian
Federalism (1959), at p. 26.

A law's "matter" is its leading feature or true character, often described as its
pith and substance: Union Colliery Co. of British Columbia v. Bryden, [1899] A.C.
580 (P.C.), at p. 587; see also Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286.
There is no single test for a law's pith and substance. The approach must be flexible
and a technical, formalistic approach is to be avoided. See Hogg, Constitutional
Law of Canada (3rd ed.) 1992), vol. 1, at p. 15-13. While both the purpose and
effect of the law are relevant considerations in the process of characterization (see,
e.g., Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117
(P.C.) (the Alberta Bank Taxation Reference), at p. 130; Starr v. Houlden, [1990] 1
S.C.R. 1366, at pp. 1389, 1392), it is often the case that the legislation's dominant
purpose or aim is the key to constitutional validity. Rand J. put it this way in
Switzman v. Elbling, [1957] S.C.R. 285, at pp. 302-3:

"The detailed distribution made by ss. 91 and 92 places limits to direct and
immediate purposes of provincial action. The settled principle that calls for a
determination of the "real character", the "pith and substance", of what purports
to be enacted and whether it is "colourable" or is intended to effect its ostensible
object, means that the true nature of the legislative act, its substance in purpose, must
lie within s. 92 or some other endowment of provincial power."

{Emphasis Added - Mine]

A reading of the impugned part of the Court Rules Act is Section 1 seems a
good place to start an enquiry into the matter of the law in the Court Rules
Act:
Rules Of Court

"1 (1) The Lieutenant Governor in Council may, by regulation, make rules that the
Lieutenant Governor in Council considers necessary or advisable governing the
conduct of proceedings in the Court of Appeal, the Supreme Court and the
Provincial Court.

"(2) Without limiting subsection (1), the rules may govern one or more of the
following:

"(a) practice and procedure in each of those courts;

"(b) the means by which particular facts may be proved and the mode by which
evidence may be given;

"(b.1) appearances and applications by telephone or other means of


telecommunication before each of those courts;

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"(b.2) ….

[Emphasis Added - Mine]

Using a purely technical and formalistic approach the Applicant adduced that
the Legislation was enacted with a principle purpose or aim of allowing
the province to regulate the practice and procedure of the courts in the just
and economic determination of property and civil rights. The Legislation
exists to allow the Lieutenant Governor of British Columbia to develop in
Council policy directions on how proceedings before the provincial courts
ought to be conducted, the dominate purpose being of just and economic
results.
The Applicant first attempted to understand the intended purpose and direct
affect of impugned Legislation, in particular practice and procedure as
applied to him, as it would be applied to any other person. It appeared
reasonable to first read the particular provision under the Rules of Court
having applied the challenged discriminatory standard allowed under the
impugned part of the Legislation's regulations or a common law rule
within the ambit of Rule 41, subrule (16.5(b)) reading as follows:
" Rule 41 – Orders

"Disposition of referred applications

"(16.5) If an application is referred by the registrar to a judge or master under subrule


(16.2) or (16.4), the judge or master to whom the application is referred may

(a) make the order, or

(b) direct that the application be spoken to.

[en. B.C. Reg. 161/98, s. 12 (c).]

[Emphasis Added - Mine]

Briefly stated, Rule 41 has a purpose or aim to establish a practice and


procedure for the settlement of orders. It is usually under the rule for
counsel or the lay litigant (the "Applicant"), seeking to settle an order, to
take out an appointment before the registrar and serve opposing counsel if
required.
Apparently sub-rule (16.5) [Rule 41] is applied in cases where a Registrar is
either unable to make a determination, and will reasonably not attempt
interpreting the petitions, instead referring the matter to the judge or
master who can make such a determination [See Abbott v. Andrews
(1882), 8 Q.B.D. 648; Avery & Son v. Parks (1917), 35 D.L.R. 71 (Ont.
C.A.)] or alternatively, once satisfied an application is complete will then
refer it for determination.

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The impugned Legislation allows under provision (b) under sub-rule (16.5)
[Rule 41] for a Master or Chambers Judge unprepared to judicially review
or determine application(s) in a petitioner's (the "Applicant's") absence to
require the application be "spoken to.", in proprio persona before the
court. The Court Rules Act appears to make compulsory the application of
a discriminatory standard in the form of a reverse onus on the petitioner to
comply with presumed group characteristics as well as what appears to be
a common law rule to limit or prohibit further any action to continue or
defend in proceedings, making exception only those petitioners who are
able to meet presumed group property and social characteristics. The
Legislation as well engages the statutory power of compulsion or coercion
when prohibiting or limiting a petitioner (the "Applicant") from any
further right of application.
It is observable the Legislation, Rules of Court, provide no off setting
supplemental accommodation to individually assess those Canadian
citizens unable to meet the discriminatory standards of presumed group
characteristics. Also unclear from the Legislation is what legal principle or
common law rule is operating to permit a discriminatory standard solely
based on a persons presumed property and social characteristics as well as
to use compulsion or coercion to maintain the standards.
Provisions under Rule 40 [subrules 40(8) and 40(40)] and Rule 56, Rules of
Court do provide a limited form of supplemental accommodation to obtain
evidence from witnesses unable to appear as well as allowing a Master or
Chambers Judge to summon an incarcerated witness or hear an urgent
matter electronically. However, these particular procedures are not helpful
in overcoming the discriminatory standards.
The practice of barring any further applications for judicial review from a
particular petitioner (the "Applicant") proves absolute in its affect. The
affected party is denied access to the very judicial processes otherwise
available under s. 2 of the Judicial Review Procedures Act and absolutely
necessary to a hearing of constitutional complaints. Barred by a Master or
Chambers Judge order, there exists no other possibility to develop a
reasonable constitutional remedy to what are unreasonable limitations
exceptionally prejudicial to the rights of one party only.

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The Legislation's background and its context as well as policy purpose of the
practice and procedure are of noble intent. Its dominate purpose or aim
appears to prohibit what could readily lead to abuse of court services and
judicial resources by lay litigants filing numerous applications having little
chance of success and where they are unprepared or unwilling to appear.
Here, the enactments discretionary "practice and procedure" appears as an
effective and proper means to ensure to members of the public that the
court's resources are only applied to those cases where the parties are
prepared to appear in proprio persona to continue or defend their interests
in a proceeding. It would be unreasonable for a petitioner (the
"Applicant") to expect a Master or Chambers Judge of the trial court to
make a determination on often unclear, sometimes poorly formulated as
well as occasionally legitimately complex lay applications without at least
hearing the petitioner as well as other parties who may be affected.
There exists no doubt or controversy that the discretionary power of
compulsion and coercion as well as the discriminatory standard applied
under the Legislation, in particular Rule 41(16.5)(b), appear on the surface
to apply a reasonable limitation to presumed group rights to court services
and judicial review. The discriminatory standard maintained by the
Legislation as well meets presumed group requirements for just and
economic administration of their courts services as well as resources of
time and money.
Technically and formalistically the Legislation as well as Rule 41(16.5) (b) are
aimed at a class of subjects regulated by the Lieutenant Governor to
achieve the dominate legislative purpose of the Court Rules Act as
previously mentioned. However, the more flexible approach suggested by
the learned Sopinka J. in R. v. Morgentaler, supra, require considering as
relevant to any process of characterisation, the indirect and unintended
affects of the Legislation in specific areas of its application. Of
particularly significance to this enquiry are the indirect affects on
application to citizens who are otherwise unable or prohibited from
meeting presumed group characteristics.
There appears to be incorporated in s.1(2)(a) of the Legislation a practice and
procedure allowing application of a regulation or common law rule having
as its pith and substance an administrative or quasi-judicial procedure
engaging the statutory power of compulsion. The "real character" of the
impugned regulation or common law rule ostensibly allows the
Legislation to prohibit or limit the fundamental right and liberty of a
citizen to apply for and obtain court services as well as to petition for and
obtain a judicial review of civil complaints. Here, the determination of the
right or liberty to make application or petition to the provincial court
proves to be solely depended on a discriminatory standard of judging the
applicant or petitioner (the "Applicant") against presumed group
characteristics.

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The direct and immediate effects on application of this discriminatory
standard to indigent persons deprived of liberty under criminal law are
believed to indirectly be a matter of law and class of subjects solely
regulated within the legislative jurisdiction of the federal government as
well as by the principles of international laws.
In the course of developing his argument the Applicant questioned if, as a
matter of stare decisis, it was open to him to request the Appeal Court test
the constitutional validity of the impugned part of the Legislation if there
is a prior decision by which the Appeal Court would be bound to hold the
Legislation, as well its practice and procedure directives, as lawfully
promulgated in the sense that it is not ultra vires. It would have proven
helpful to the Applicant to have available a history of the Legislation
showing the evolution of both the practice and procedure developed under
s.1 or the Legislation as well as the common law rule permitting
application of a discriminatory standard solely dependant on presumed
property and social characteristics. It appears from the Applicant's limited
resources that there is no case law determining the constitutional validity
of a practice or procedure regulated under the impugned Legislation.
Clearly no s.1 analysis exists of the direct and indirect affects of the
Legislation or common law rule on their application to indigent persons
deprived of liberty abroad. Indeed it appears the Legislation as well as the
common law rule has received almost no judicial consideration
whatsoever.
For these reasons the Applicant believes there is no reason that the impugned
Legislation cannot be challenged constitutionally despite its being
otherwise lawful. The Applicant seeks to obtain, inter alia, a declaration
that application of a part of the Legislation to indigent persons deprived of
liberty was ultra vires because it constitutes a restraint on the rights of
litigants who are prevented by criminal law from meeting presumed group
characteristics, It is was discriminatory as it deprived a small group of
citizens of fundamental Charter right and liberties otherwise the absolute
rights possessed by all other citizens.
To develop his thesis and fix how the impugned Legislation reacts within the
context of federal legislation as well as the principles of international law
required the Applicant to rely on the extrinsic evidence he refereed to
earlier in this Memorandum [see Preamble, Part 1 and Part III Laws and
Enactment Relied On] as well as again turn to the words of Sopinka J. in
R. v. Morgentaler , supra, writing at 483-4:
"In determining the background, context and purpose of challenged legislation, the
court is entitled to refer to extrinsic evidence of various kinds provided it is relevant
and not inherently unreliable: Reference re Residential Tenancies Act, 1979, [1981] 1
S.C.R. 714, at p. 723, per Dickson J.

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This clearly includes related legislation (such as, in this case, the March
regulations and the former s. 251 of the Criminal Code), and evidence of the
"mischief" at which the legislation is directed: Alberta Bank Taxation Reference,
supra, at pp. 130-33. It also includes legislative history, in the sense of the events
that occurred during drafting and enactment; as Ritchie J., concurring in
Reference re Anti-Inflation Act, supra, wrote at p. 437, it is "not only permissible
but essential" to consider the material the legislature had before it when the
statute was enacted.

[Emphasis Added -Mine]

The Applicant's much earlier discussion on the development of international


law as later incorporated into Canada's legislative landscape was
developed as significant "related legislation" and "essential" when judging
Federal Government policies as well as applicable legal principles in
determining the fundamental rights and liberties of all persons in a suit at
law, notwithstanding that they are indigent citizens deprived of liberty
abroad.
The Applicant's extrinsic background evidence of the sort referred to by
Sopinka J. in Morgentaler supra, as detailed in Part I of this Memorandum
is the evidence of the "mischief" of bias and historical prejudice towards a
distinct group having "other status." If understanding Sopinka J. properly
then the "mischief" at which Federal legislation as well as international
human rights agreements are directed are materials the Lieutenant
Governor in Council had before him when establishing a practice and
procedure policy of maintaining as well as applying a discriminatory
standard of presumed group characteristics to indigent persons deprived of
liberty.
Additional extrinsic evidence on foreign law (Bulgarian) as well was adduced
solely to place the conduct of the Defendant Bulgaria into the same
context of federal policies as well as international human rights
agreements directed at the same kinds of "mischief" of bias and historical
prejudice directed at person having lost their liberty due to a criminal
process. This provides a wholly different perspective than might ordinarily
be expected when evaluating the full matrix of indirect affects of the
impugned Legislation According to Sopinka, J. in Mrogentaler, supra, the
Appeal Court is entitled to consider all "relevant and not inherently
unreliable" evidence.
IV.8.3.2.2Division of Powers
The Applicant, in his naiveté, considered the division of powers issue in the
following way.

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The Legislation on its face is intra vires the Province. However, it must be
recalled that the Applicant is a Canadian citizen deprived of his self
determination solely due to criminal law, notwithstanding it is done so by
a foreign State. Furthermore, any specific restriction on a citizen's
fundamental rights and liberties when under incarceration, including civil
and property rights in a suit at law, appear to be the dominate purpose or
aim of criminal law and therefore a paramount function within the
exclusive jurisdiction of Parliament under s. 91(27) of the Constitution
Act, 1867.
The affects on the Applicant of the impugned part of the Legislation's practice
and procedure require little discussion as they are readily made apparent
by the facts before the court. To determine the pith and substance of a law,
as well as its true colouring, requires close examining of the impugned
Legislation in the context of its affects on application to a distinct group
and not only the dominate purpose or aim set down in s.1.
What is significant? First that the Legislation maintains, although it does not
expressly allow, a discriminatory standard based solely on presumed group
characteristics of property and self-determination within the main stream
of Canadian society.
Second and equally as significant is that the Legislation omits, although it
does not expressly forbid, a positive obligation for individual assessment
of applications for judicial review as well as an accommodation standard
providing procedural relief to those persons who cannot meet presumed
group characteristics of personal property and self determination.
Thirdly, and significant to the division of powers enquiry, is that the
Legislation makes it compulsory, although not expressly so stating, to
apply to any person who cannot meet presumed group characteristics a
sanction, penalty or punishment in the form of a prohibition from, or
limitation on the right of judicial review as well as to future applications to
continue or defend in a proceeding to be lifted solely on the affected party
having met the order's discriminatory onus.
Fourth, and particularly significant to the division of powers enquiry, is that
the Legislation omits, although it does not expressly forbid, a negative
restriction on application of its discriminatory standard as well as any
consequential sanction, penalty or punishment, to those persons whose
fundamental rights and liberties are determined under criminal law as well
as other federal jurisdiction. The application to indigent persons deprived
of liberty of an administrative or quasi-judicial sanction; penalty or
punishment solely determined on their ability to meet one of two
discriminatory standards - property or self-determination - proves when
they cannot meet them, a form of addition punitive censure in excess of
that already prescribed under criminal law.

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The Applicant's division of powers argument turns on the fact that the
Legislation is administrative law and must restrict its immediate purpose
as well as direct and indirect affects to individual property and civil rights
under private law. The Legislation is open to constitutional challenge
when an administrative, quasi-judicial or judicial order under the
Legislation acts to create a precondition as well as a additional censure
derogating beyond what is already prescribed by federal law the
fundamental rights and liberties of persons under criminal law jurisdiction.
The Legislation, as well as common law rule, is open to Charter challenge
for maintaining a discriminatory standard engaging the statutory power of
compulsion to censure persons who cannot meet presumed group
characteristics.
Legislation policy reveals a discriminatory standard and pattern that solely
penalises, sanctions, or punishes indigent Canadian citizens upon the
occurrence of he or she having allegedly committed criminal misconduct,
notwithstanding that it has or has not been tried and established in a
criminal court. When considering the foresaid the Applicant has in mind
the Legislation's reliance on the power of coercion of a Master or
Chambers Judge to absolutely bar anyone from making further
applications to the court for judicial review under s.2 of the Judicial
Review Procedures Act as well as to petition for a remedy if he or she
cannot meet presumed group characteristics of property or self
determination. The Legislation, to maintain its discriminatory standard,
requires engaging the "power of compulsion" of a Master or Chambers
Judge. This is derived from the "statutory authority of decision" defined
under the Judicial Review Procedure Act [RSBC 1996] c. 241, as follows:
" Definitions

"1 In this Act:

"decision" includes a determination or order;

"statutory power of decision" means a power or right conferred by an enactment to


make a decision deciding or prescribing

"(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person,
or

"(b)….

"and includes the powers of the Provincial Court;

"statutory power" means a power or right conferred by an enactment

"(a) to make a regulation, rule, bylaw or order,

"(b) to exercise a statutory power of decision,

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"(c) to require a person to do or to refrain from doing an act or thing that, but for that
requirement, the person would not be required by law to do or to refrain from doing,

"(d)….

"(e) to make an investigation or inquiry into a person's legal right, power, privilege,
immunity, duty or liability;

[Emphasis Added - Mine]

Finding themselves outside presumed group characteristics the affected person


is censured by a Master or Chambers Judge Order prohibiting the affected
party from continuing or defending their property and civil rights interests
in a suit at law. The Legislation's exceptional prejudice is solely due to a
person's property status as an indigent citizen detached from the main
stream of Canadian society.
What is of significance to the present constitutional enquiry is this statutory
power of compulsion "[1(c)] to require a person to do or to refrain from
doing an act or thing that, but for the requirement, the person would not
be required by law to do or to refrain from doing." The Master derived this
authority under a statue found under the Supreme Court Act [RSBC 1996]
c. 443, as follows:
"Definitions

"Masters

"11 (1) On the recommendation of the Attorney General after consultation with the
Chief Justice, the Lieutenant Governor in Council may appoint one or more masters
of the court.

"(7) A master has, subject to the limitations of section 96 of the Constitution Act,
1867, the same jurisdiction under any enactment or the Rules of Court as a
judge in chambers unless, in respect of any matter, the Chief Justice has given a
direction that a master is not to exercise that jurisdiction.

[Emphasis Added - Mine]

The discriminatory standard maintained by a Master or Chambers Judge


appears to have an immediate administrative purpose or aim under the
Legislation of limiting adjudication of applications or petitions to only
those persons who can meet presumed group characteristics.
The Legislation, on engaging the statutory powers of a Duty Master or
Chambers Judge is employing judicial power to restrict, beyond the
existing limitations legislated by parliament, the fundamental rights and
liberties of persons already deprived their right of liberty and self-
determination under a criminal head of law.

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It is argued the Legislation, having failed in its constitutional obligation to
maintain adequate negative restrictions as well as positive obligations as
safeguards to restrict direct as well as indirect affects outside the
constitutional jurisdiction of administrative and private law, is ultra vires
the province, thus allowing the potential for mischief that Sopinka. J.
spoke of in Morgentaler, supra.
If the Applicant understood the concept as well as context of the mischief
Sopinka J. spoke of, it would manifest itself within the context of the
present case as the indirect affects of the Legislation. The first and most
apparent manifestation to the Applicant is the Legislation indirectly
permits a provincial administrative law to add further sanctions, penalties
or punishments in the nature of a prohibition and limitation to fundamental
rights and liberties not already restricted under any existing punishment
provided for in criminal law. The Legislation allows a common law rule
engaging the statutory power of compulsion to apply what proves to be a
summary punishment in the form an a reverse onus that is absolute in its
affect when applied to indigent persons already incarcerated by the Crown
or a foreign State.
The second manifestation directly applicable to the case at bar is the
Legislation indirectly permitting a defendant, whether the Crown or a
foreign State, to embrace the benefits but not the burdens of criminal law
procedure having a strict precondition the State produce, or else the court
secure from the production at all hearings of the incarcerated person (the
"Applicant") whose legal and property rights are to be affected. This
strongly suggests the impugned Legislation indirectly functions as an
alternative system of sanctions, penalties and punishments avoiding
existing negative restrictions as well as positive obligations under the
criminal code. It is to be recalled the common law rule and administrative
or quasi-judicial Order of compulsion as applied under the s. 1 of the
impugned Legislation requires a person appear or retain a legal
representative to appear on petitioning the court under s.2 of the Judicial
Review Procedures Act as well as when applying under a rule of the
SCBC Rules of Court to continue or defend in a proceeding. The
Legislation does not allow for individually assessment of a petitioner
according to his abilities, it is instead maintains a discriminatory standard
of evaluating petitioners against presumed group characteristics.

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The Applicant does not maintain that the real purpose of the Legislation or its
common law rules are to "stiffen and supplement" the provisions of the
criminal law or other correctional legislation limiting or guaranteeing
incarcerated persons' fundamental rights and liberties. Earlier the
Applicant had adduced the dominate purpose or aim of the Legislation
was as a whole to provide for and enhance the just and economic
administration of the provincial court services and administration branch.
The purpose of securing the observance of regulations respecting these
matters in the interest of the public generally is clearly committed to the
local legislatures.
However, the Applicant believes the Legislation to be pith and substance in
the same class of sanction, penalty or punishment subject considered the
exclusive function of criminal heads of law as well as the previously cited
Correction Act, Corrections and Conditional Release Act, Prisons and
Reformatories Act and international commitments of the Federal
Government to the legal principles that flow from international law. A
reading of Canada's Bill of Rights and other seminal human rights
legislation proved helpful to ascertaining what fundament rights and
liberties are absolute. This immediately raised the preceding question of
the Legislation improperly encroaching upon the federal jurisdiction under
s. 91(27) of the Constitution Act, 1867.
Proof the Legislation is ultra vires the province is not to be found not within
its stated legislative purpose or aim under s. 1. The evidence is solely
within the context of the Legislation's unintended purpose or aim and its
indirect affects on application of a common law rule and practice
permitting administrative sanctions, penalties or punishments to be applied
to a distinct group of Canadian citizens. These men and women, like the
Applicant, are found outside the mainstream of Canadian society. The
persons most affected on application of this common law rule are indigent
men and women already deprived of their liberty, they are Canadian
citizens to found within the penal institutions of Canada as well as foreign
states. Already denied their self-determination under criminal law, the
provincial Legislation indirectly acts to further rob the men and women of
the affected group of what is left of their other fundamental rights and
liberties. The indirect affects of the Legislation exceed the limitations and
restrictions prescribed under federal criminal law and human rights
legislation solely for the purpose of maintaining a questionable
discriminatory under an administrative head of law.

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The Applicant, after due consideration and to the best of his ability admittedly
finds no controversy as to constitutionally validity of the Legislation as a
whole, it is incontrovertibly within the legislative competence of the
province to enact under section 92 of the Constitution Act, 1867. Its
enactment does not, again only as a whole, infringe on any Federal
Government's jurisdiction under section 91(27). If the Applicant
understood the relevant case law then the doctrine of paramountcy cannot
be offended. The Legislation is not ultra vires the Federal Government
because in appears in at least its form to be pith and substance a matter
within the legislative competence of the Province under s. 92 of the
Constitution Act, 1867.
Yet, in the Applicant's reasoning, a posteriori, the Legislation is impugned by
its affects as opposed to its stated purpose or aim. Accordingly the
Applicant turned his enquiry to consider the question of its colourability.
The Legislation in doing something indirectly that it cannot otherwise do
directly is ultra vires, at least to the limited understanding of the
Applicant.
IV.8.3.2.3Colourability Doctrine
The "colourability" doctrine is described by Professor Hogg, in Constitutional
Law of Canada, 4th ed. (Toronto: Carswell 1997) at 392, "[t]he
`colourability' doctrine is involved when a statute bears the formal
trappings of a matter within jurisdiction but in reality is addressed to
matter outside jurisdiction." The Applicant attempts to apply this doctrine
to the present context as follows.
At the risk of being redundant the Applicant recalls as having established from
the facts that the impugned Legislation observably maintains a
discriminatory standard where applicants are assessed not individually but
only against presumed group characteristics. This discriminatory standard
is applied by a Master or Chambers Judge when making a determination
under Rule 41, Rules of Court, on the hearing of any petition under s.2 of
the Judicial Review Procedures Act as well as any applications under the
Rules to continue or defend in proceeding. The common law rule and
practice under the impugned Legislation is for a Master or Chambers
Judge, after a quasi-judicial review of the petition or application of a party,
to fix an order of absolute prohibition on any further petitions for judicial
review or applications to continue or defend in a proceeding until the
discriminatory standard is satisfied by the party subject to the order.

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The preceding Duty Master or Chambers Judge order appears as an
administrative sanction, penalty or punishment. It having a sole purpose
and immediate aim of restricting and limiting the fundamental right and
liberty to seek a judicial hearing of property or civil rights grievances as
well as to continue or defend in a proceeding. The order remains in effect
for the indeterminate period of time it takes a petitioner or applicant to
meet presumed group characteristics. The discriminatory standard requires
the affected party to secure his or her attendance personally or in proprio
persona of a legal representative retained to have petitions or applications
spoken to before the court. The compulsion or coercion applied by a Duty
Master or Chambers Judge to meet the discriminatory standard only lifted
once the standard itself can be met.
The impugned Legislation has no jurisdiction to create, maintain or directly
apply any discriminatory standard to restrict or limit courts services and
resources solely based on the property resources and social status of a
person, it therefore does so indirectly by requiring a person do a certain
acts - appear at court or retain a lawyer to appear - or refrain from doing a
certain things - petitioning for further judicial review of grievances or
make new applications to continue or defend in a proceeding - that the law
does not otherwise require a person to do or refrain from doing.
The impugned Legislation has no jurisdiction to directly effect an
administrative, quasi-judicial or judicial sanction, penalty or punishment
to maintain any discriminatory standard, it therefore does so indirectly by
allowing for application of a common law rule and practice engaging the
statutory power of compulsion or decision as granted to a Master under s.
11(7) of the Supreme Court Act and to a Chambers Judge under s.1 of the
Judicial Review Procedures Act. The Master or Chambers Judge making
an order prohibiting the right of further petitions as well as limiting future
applications to continue or defend in a proceeding subject to the affected
party meeting the discriminatory standard.
The impugned Legislation has no jurisdiction to directly create an
administrative or quasi-judicial practice or procedure of sanctions,
penalties or punishments that could directly prohibit or limit a
fundamental right or liberty otherwise guaranteed under federal law as
well as provincial human rights legislation [see: s.2 and s.4 Human Rights
Code [RSBC 1996] c.210], it therefore does so indirectly by placing a
compulsion or coercion of an impossible reverse requiring a person to do
something that he or she cannot reasonably be expected to do.
The impugned Legislation has no jurisdiction to directly modify by an
additional prohibition or limitation a fundamental right or liberty of
persons whose rights and liberties are already pre-qualified under federal
criminal or correctional services legislation, it therefore does so indirectly
by application of a reverse property or civil liberties onus as sanction,
penalty or punishment to indigent persons deprived of liberty who cannot
reasonably be expected to meet presumed group characteristics.

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Again returning to the comments of Sopinka J. in Morgentaler, supra, at 496:
"In any event, the colourability doctrine really just restates the basic rule,
applicable in this case as much as any other, that form alone is not controlling in the
determination of constitutional character, and that the court will examine the
substance of the legislation to determine what the legislature is really doing"

As a result of the foregoing the impugned part of the Legislation is ultra vires,
the province. What Legislation "is really doing" is practising a form of
indirect discrimination when allocating provincial court resources. Its net
affect is to only sanction, penalise, or punish any distinct group or person
who cannot, for one reason or another, meet presumed group
characteristics of property and self-determination. On application of the
foregoing to indigence persons having an alleged criminal misconduct and
as a result remanded to the custody of the State the affects are absolute,
taking on the form of prohibitions or limitation of fundamental rights and
liberties beyond what is prescribed under criminal or correctional services
legislation. This is a matter outside provincial jurisdiction and something
the Legislation cannot do directly [see Hogg, Constitutional Law of
Canada, supra, at 394] so does it indirectly. A Master or Chambers Judge
exceeds the jurisdiction of the Legislation as well as its stated aim when
ordering derogation from fundamental rights or liberties of indigent
incarcerated persons that are otherwise not prohibited or limited under
federal legislation. In pith and substance determining a form of indirect
punishment having a class of subject specified under the criminal code and
other related enactments. This at least suggests, if not proves the
Legislation having thereby invaded the exclusive jurisdiction of
Parliament.
Admittedly, on the surface there appears to be no contradiction between the
federal and provincial legislation and that the latter is intra vires, the
province. However, as Sopinka J. wrote in Morgentaler, supra, "form
alone is not controlling in determination of constitutional character." The
policy and legal principle of the Legislation purports to having a dominate
purpose or aim of providing all residents of the province just and
economic judicial services. The practice and procedure as well as common
law rules applied under the Legislation having a positive obligation to
make accessible to all persons their absolutely fundamental right and
liberty to bring their civil complaints before a court of competent
jurisdiction. It the absolute right of all persons in a democratic and free
society to develop a judicial remedy in a fair and open environment.
Earlier discussion identified the rights and liberties international law
considered as absolute. Most outstanding and significant to the later
Charter enquiry is the right to develop a judicial remedy as well as to
access a court of law to continue or defend legal interests in a suit at law.

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The a priori principles of natural justice do not make a fundamental right or
liberty “less absolute" if the nature of the proceeding is in a suit at law. It
is the net effect of the impugned Legislation on its application to a distinct
group that must ultimately determine its legislative context as well as
purpose for having permitting a sanction, penalty or punishment under
administrative law to derogate further from the absolute rights and
liberties of indigent citizens deprived of liberty.
The problem is therefore the "colourability" of the impugned Legislation. Any
legislation, even if firmly anchored in a provincial head of power, would
appear to be ultra vires under the "colourability doctrine" anytime it
applies prohibitions and limitation on fundamental rights and liberties
otherwise determined under a different and federal head of law. It is the
colourability of the Legislation's indirect affect that finds, in pith and
substance a Duty Master or Chambers Judge of a private law court
exceeding jurisdiction when indirectly determining a prisoner's rights and
liberties, thereby infringing on the Federal Government's jurisdiction
under section 91(27) of the Constitutional Act, 1867. Solely due to this the
Legislation is not intra vires the province.
This Applicant has very limited access to case law, it appearing impossible to
find anyone having constitutionally challenged a part of the provinces
Court Rules Act. What was helpful was the way the constitutional validity
question was raised in R. v. Leclair (1990), 67 Man. R. (2d) 265 (Man.
Q.B.). Although completely different in context the tests applied were the
same. There the court tested ss. 263.1 and 263.2 of the Manitoba Highway
Traffic Act, S.M. 1985-86, c. H-60, was raised. The applicant there having
asserting the Manitoba legislation was ultra vires because it was in pith
and substance criminal law. On the question of the division of powers
between the federal government and the provincial legislature, Hirschfield
J. concluded at 274:
"In my view, the purpose and effect of ss. 263.1 and 263.2 are to regulate and control
traffic upon provincial highways and roads and are therefore clearly within the
exclusive rights granted to the Province under s. 92(13) of the Constitution Act,
1867. Provincial legislation and enactments which have as their purpose the
regulation of property and civil rights and which are not in conflict with express
legislation enacted under the Federal criminal law have been held to be intra
vires the provincial legislature. The suspension of the driver's licence imposed
under the sections in question is in my opinion an administrative act and a civil
consequence of one of two wrongs committed by an individual. It is not
punishment such as to bring the matter within the exclusive jurisdiction of the
Federal Parliament. (See Ross v. Registrar of Motor Vehicles and the Attorney
General of Ontario (1973), 14 C.C.C. (2d) 322 (S.C.C.).)

"I therefore hold that the impugned sections of the Act are in pith and substance
property and civil rights. The sections do not impinge upon and are not in conflict
with Federal legislation and are thus intra vires the jurisdiction of the Province of
Manitoba. (See Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R., 161; R. v.
Francis, [1988] 1 S.C.R. 1025; Validity of Section 92(4) of the Vehicles Act, 1957
(Sask.), [1958] S.C.R. 608.)

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The Applicant has previously stated in his submission having understood that
the province had the constitutional authority to enact legislation regulating
its' court services and resources. The "paramountcy doctrine" was briefly
mentioned in this enquiry. If paramountcy is significant it is only insofar
as it concerns the international commitments of federal government and
exclusive jurisdiction of criminal and correctional legislation. The
determination of a practice and procedure to administer the provincial
court services as well as the rules and the power to determine, as well as
regulate, the processes of the civil courts must be held to be intra vires the
provincial legislature. However, only so long as "the sections do not
impinge upon and are not in conflict with Federal legislation" under a
different head of law.
Like R. v. Leclair, supra, the impugned practice and procedure as well as
common law rule applied under s. 1 of the Legislation, mutatis mutandis,
have as a dominate policy purpose or aim the regulation of property and
civil rights. The Court's policy to suspend services to the Applicant as well
as to suspend his civil right to continue or defend in a suit at law are
apparently made a compulsory practice and procedure by the impugned
Rule. It is not intended as punishment such as to bring the matter within
the exclusive jurisdiction of the Federal Parliament. The sanction or
penalty of suspending court services to the Applicant or any other person
in similar circumstances need not be consequenced by "wrongs
committed." during the course of the judicial proceedings. There appears
to be no statutory element associated to determining the need for
application of a sanction, penalty or punishment to compel or coerce a
person to appear or retain a lawyer. The sole operative element under the
impugned part of the Legislation is a reverse onus. To obtain review,
continue or defend, a petitioner must fall within presumed group
characteristics determined by the Lieutenant Governor in Council within
the context of self-determination and property.

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The present form of the Legislation does not incorporate a statutory provision
or element permitting a Master or Chambers Judge of the provincial court
to administratively sanction, penalise or punish a person for his or her
consequential failure to meet the Legislation's discriminatory standard. It
is recalled the person is judged against presumed group characteristics and
not according to his or her personal abilities. Furthermore, the inability of
a person to meet the discriminatory standard does not trigger or engage a
related statute allowing for an administrative sanction, penalty or
punishment directly or indirectly placing an absolute limit on fundament
rights and liberties otherwise guaranteed under a federal head of law. If the
foregoing is all true, the Legislation is intra vires, the province. Therefore
the Applicant's turned his argument to analysis of this apparently
innocuous administrative sanction applied to a party's (the "Applicant")
civil rights in a suit at law. Are an inflexible reliance on presumed group
characteristics and the statutory power of compulsion constitutionally
validity if having indirect affects that enter into conflict with the express
arbiters of prisoner rights and liberties, the federal government?
Absolutely no argument or supposition is advanced that questions the
Lieutenant Governor's intended policy purpose of the Legislative, the
common law rule applied is as previously stated reasonable. The common
law as well as rules of practice and procedure determined by Lieutenant
Governor has allowed individual freedoms and liberties to be restricted or
limited to persons only for so long as they cannot to meet the Legislation's
reverse onus. However, the Legislation omits an accommodation standard
to provide some form of procedural relief to a distinct group who cannot
meet the onus.
The Applicant believes that the Lieutenant Governor of British Columbia
unintentionally exceeded jurisdiction in regulating a practice and
procedure in an area occupied by Parliament under s. 91 of the
Constitution Act, 1867. The impugned Legislation is ultra vires, the
Province of British Columbia for having omitted a negative restriction to
applying a reverse onus, the indirect affect of which is to absolutely
prohibit or limit a fundamental right and liberty of a distinct group. It is as
well impugned for omitting a positive obligation to individually judge
each person by his or her property and self-determination abilities, and
providing an accommodation standard for those who cannot meet its
reverse onus. The doctrine of colourability was offended.
If the Appeal Courts find the Legislation as satisfying its negative restrictions
as well as positive obligations to the constitution, and the indirect affects
of the impugned part of the Legislation to be within provincial legislative
competence, then there is a further question. Is the common law rule as
well as the Legislation relying on it unfair in that it offends the concept of
fundamental justice?

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The foregoing question may be poorly formulated by this Applicant, yet it is
fairy asked and supported by recalling the facts, and legal principles
regulating the rights and liberties of person incarcerated under criminal
law. Application of the impugned common law rule practised under the
Legislation to indigent Canadian citizens deprived of liberty proves utterly
absolute in its discriminatory affects; they find themselves barred from a
fundament right and liberty to develop a judicial remedy in a proceeding
against the Crown, and others as private parties. However, these
limitations are constitutional matters to be considered under the fourth
issue, if it is decided that the provisions of s. 7 and s. 15(1) of the Charter
are indeed engaged.
IV.8.3.3 If the enactment is within the legislative competence of the
Provincial Government under s. 92 of the Constitution Act,
1867, is there nevertheless a deprivation of a liberty protected
by s. 7 as well as a discriminatory practice restricted by s.
15(1) of the Charter of Rights and Freedoms (the "Charter")
on application to a distinct group?
IV.8.3.3.1Applying the Charter to Administrative Law or a Quasi-
Judicial act
The Applicant finds himself, as a lay person, confronted by an intriguing
problem as to what exactly should he apply the Charter to? And, does the
Charter Apply at all?
The rational approach for a lay person begins with a reading of his statutory
right to engage the Charter as well as apply for relief. This begins with s.
24(1) of the Charter, and forms a part of previously cited s. 8 of the
Constitutional Questions Act [RSBC 1996] c. 68. Section 24(1) of the
Charter reading as follows:
Charter

Section 24(1) provides:

"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.

There natural follows a need to find some respected authority that will support
the Applicant's suppositions to what the Charter may be applied.
For better or worse the Applicant developed his own order of hierarchy. The
first of issue to be established having turned on if the Charter could be
applied to impugned legislation. The question to be satisfied is if not only
is it reasonable to apply the Charter, but is it a part of the practice
generally to do so.

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The Applicant first turned to the explanation by Mr. Peter W. Hogg, in his
Constitutional Law of Canada, vol. 1 (Toronto: Carswell, 1992) when
discussing where application of the Charter is appropriate, at 34-11 he
wrote:
"... the limitations on statutory authority which are imposed by the Charter will flow
down the chain of statutory authority and apply to regulations, by- laws, orders,
decisions, and all other action (whether legislative, administrative or judicial) which
depends for its validity on statutory authority."

In order of hierarchy, according to the Applicant's reasoning, there is a


question of applying the Charter to a common law rule employed under
the impugned Legislation. Here the Applicant turned to what case law he
had available to him and found the learned Cory J. when writing for the
majority in Manning v. Hill (1995), 126 D.L.R. (4th) 129, discussed the
Charter and common law at pp. 152-153:
"(2) Section 52: Charter values and the common law

"(a) interpretating the common law in light of the values underlying the
Charter

"(i) Review of the decisions dealing with the issue

"This court first considered the application of the Charter to the common law in
Dolphin Delivery, supra , [1986], 33 D.L.R. (4th) 174]; It was held that, pursuant to
s.32( 1) of the Charter, a cause of action could only be based upon the Charter when
particular government action was impugned. Therefore, the constitutionality of
the common law could be scrutinized in those situations where a case involved
government action which was authorized or justified on the basis of a common law
rule which allegedly infringed a Charter right."

[Emphasis Added - Mine]

"However, Dolphin Delivery, supra , also held that the common law could be
subjected to Charter scrutiny in the absence of government action.

In emphasizing that the common law should develop in a manner consistent with
Charter principles, a distinction was drawn between private litigants founding a
cause of action on the Charter and judges exercising their inherent jurisdiction to
develop the common law. At p.198 this was written:

"Where, however, private party "A" sues private party "B" relying on the common
law and where no act of government is relied upon to support the action, the Charter
will not apply. I should make it clear, however, that this is a distinct issue from the
question whether the judiciary ought to apply and develop the principles of the
common law in a manner consistent with the fundamental values enshrined in the
Constitution . The answer to this question must be in the affirmative . In this sense,
then, the Charter is far from irrelevant to private litigants whose disputes fall to be
decided at common law."

[Emphasis Added - Mine]

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At pp. 153-154, Cory J. endorses the dicta of Iacobucci J, who writing for the
court in R. v. Salituro (1991) 6 C.C.C. (3d) 289 at p.301:
"Judges can and should adapt the common law to reflect the changing social, moral
and economic fabric of the country. Judges should not be quick to perpetuate rules
whose social foundation has long since disappeared. None the less, there are
significant constraints on the power of the judiciary to change the law. As McLachlin
J. indicated in Watkins, supra , in a constitutional democracy such as ours it is the
legislature and not the courts which has the major responsibility for law reform; and
for any changes to the law which may have complex ramifications, however
necessary or desirable such changes may be, they should be left to the legislature.
The judiciary should confine itself to those incremental changes which are necessary
to keep the common law in step with the dynamic and evolving fabric of our
society."

At. P.156 Cory J. again referred to the dicta of Iacobucci J. in R. v. Salituro ,


supra, at p.307:
"The courts are the custodians of the common law, and it is their duty to see that the
common law reflects the emerging needs and values of our society."

At pp. 156-157 in the cited Manning, supra, Cory J. wrote:


"Historically, the common law evolved as a result of the courts making those
incremental changes which were necessary in order to make the law comply with
current societal values. The Charter represents a restatement of the fundamental
values which guide and shape our democratic society and our legal system. It
follows that it is appropriate for the courts to make such incremental revisions
to the common law as may be necessary to have it comply with the values
enunciated in the Charter.

...

"Courts have traditionally been cautious regarding the extent to which they will
amend the common law. Similarly, they must not go further than is necessary when
taking Charter values into account. Far-reaching changes to the common law must be
left to the legislature."

...

Then at p.157 Cory J. set out the framework to be used in a Charter analysis of
the common law in a private dispute:
"It must be remembered that the Charter "challenge" in a case involving private
litigants does not allege the violation of a Charter right. It addresses a conflict
between principles. Therefore, the balancing must be more flexible than the
traditional s.1 analysis undertaken in cases involving governmental action cases.
Charter values, framed in general terms, should be weighed against the principles
which underlie the common law. The Charter values will then provide the guidelines
for any modification to the common law which the court feels is necessary.

...

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The party who is alleging that the common law is inconsistent with the charter
should bear the onus of proving both that the common law fails to comply with
charter values and that, when these values are balanced, the common law should be
modified. It is up to the party challenging the common law to bear the burden of
proving not only that the common law is inconsistent with Charter values but
also that its provisions cannot be justified."

[Emphasis Added - Mine.]

Last in the Applicant's order of hierarchy, as well as the last in the chain of
events leading to the intended appeal, are the consequential orders or
decisions grounded in the common law rule flowing from s.1 of the
impugned Legislation. Here, the practice and procedure of applying a
discriminatory standard relies on a common law rule having engaged the
coercive power and compulsory over an individual in the nature of an
order fixed by a Master or Chambers Judge. Mr. Hogg in his Constitution
Law (supra) writes that it is this power of coercion that provides the
source for application of the Charter, (p. 34-12):
"The Charter applies to the exercise of statutory authority regardless of whether the
actor is part of the government or is controlled by the government. It is the exertion
of a power of compulsion granted by statute that causes the Charter to apply."

The learned Cory J. in Manning supra concluded the Charter applied to the
common law notwithstanding if s.32 (1) was engaged, here the Applicant
believes government action was involved for the following reasons.
The nature of the Master's order, its purpose or aim can only be to advance the
governmental scheme developed under s.1 of the impugned Legislation for
regulating the courts services, and provides a second element of s.32 (1)
operating to engage the Charter. The Applicant's reasoning is garnered
from a reading of the Supreme Court of Canada in Eldridge v. British
Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577, there the court
decided to broadly apply the Charter under the circumstances of an
administrative or quasi-judicial decision or order, mutatis mutandis, not
unlike the Master's order and Chamber Judge decision in the case at bar.
This is due in large part to the direct, and indirect, public dimension of
their roles when carrying out the government's scheme of regulations,
regardless of whether the actor is part of the government.
In Eldridge supra, the court held the Charter should apply to the decision by a
hospital not to supply interpreters to patients who were unable to hear. In
writing for the Court, the learned La Forest J. concluded the Charter
applied to non-governmental or quasi-governmental agencies if the
impugned act is truly "governmental" in nature (p. 608), finding the
Charter applied to those acts which implement the governments regulatory
scheme. The hospital in question was considered by the court to be
carrying out a governmental policy in determining services under the
governing medical services legislation and thus was subject to the Charter.

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On the basis of Eldridge, supra, it appears reasonable to conclude the Charter
will apply to any administrative order or quasi-judicial decision by a
Master or Chambers Judge undertaken to directly or indirectly advance a
governmental regulatory scheme. The scheme here is a discriminatory
standard determined as a practice and procedure under the Court Rules
Act, the Legislation governing the services, as well as practice and
procedure in maintained those services by what appears to be the
application of a common law rule. Like the hospital administration in
Eldridge, supra, interpreting government policy when determining what
services are to be made available to whom, here the Master and Chambers
Judge are similarly acting to interpret what courts services are to be made
available to whom and under what conditions. To advancement the
governments scheme certain sanctions can be and are applied as
prohibitions or limitations on how someone may obtain court services.
This is judged against presumed group characteristics and services prove
conditional on meeting a certain reverse onus. In the case at bar, and
unlike Eldridge, supra, the sanctions here on application to indigent
persons deprived of liberty abroad prove to be absolute in their affect of
depriving a person of one or more fundamental right or liberty.
The available facts under the present case strongly suggest the Order's only
apparent benefit to be to the provincial court budget, having only
advanced the government scheme for conserving the material and human
resources of the provincial courts. The interests of justice do not appear to
be served, notwithstanding they significantly affected. This leads, a
posteriori to the Applicant's assertion that s. 32(1)(b) of the Charter is
engaged, and the Appeal Court asked to consider the implications to the
practice in general of any administrative, quasi-judicial or judicial act
prohibiting or limiting rights otherwise guaranteed to all members of
society.
It is on the basis of the immediately cited Canadian authorities that the
Applicant first arrived at his conclusion the Charter applied not only to the
impugned Legislation but to all other interconnected rules or actions
undertaken that lead to the breaches of a priori law he has alleged.
Discussion

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Applicant's principal difficulty, has been and continues to be the unavailability
in a Sofia prison of literature and adequate case law on how exactly to
interpret the different parts of the problem under the present analysis.
Common sense and reason are not always adequate tools in the
interpretation of law as well as how it is practised and why. The lay
person, or common man if such a term is still allowed, often believes he
has certain rights and liberties only to discover that he either does not or
does only under certain conditions. It is suspected that this particular
difficulty of understanding what ones rights actually as to what one
believes they are proved to the father for lady justice to give a very dry
birth to professional advocacy.
In the present enquiry the difficulties have arise from the only too apparent
fact that the impugned Legislation (the Court Rules Act) proves a very
broad document giving wide powers to the Lieutenant Governor of the
Province in council to create compulsory practice and procedure rules.
There is little in the way of negative restrictions as well as positive
obligations to directly impugn the Legislation.
To bring the present preceding before the Appeal Court within the context of a
constitutional challenge it was necessary the Applicant turn to the affects
of the Legislation through the practice and procedure created, as well as
omitted, under it.
Some of the rules to regulate practice and procedure are set down as
provisions of the SCBC Rules of Court. However, it is clearly impossible
for the Rules to determine a practice and procedure provision for each
different matrix of fact, law and individual circumstances that court
officers must confront each day having to find a nexus to some common
provision under the Rules. That nexus in the case at bar was Rule 41(16.5)
(b).
It then appears that where an exact practice and procedure rule is wanting
under the Court Rules Act, Rules of Court, there exists a common law rule
to compensate as well as accommodate the purpose or aim of the
impugned Legislation. It is the order fixed in a common law rule that
provides the starting point for the Applicant's grievances.
The consequential order leading to the Applicant's grievances has, as
previously discussed, a nature of an administrative or quasi-judicial
practice and procedure.
However, the practice and procedure are ones having engaging the statutory
power of compulsion available to a Master or a Chambers Judge without
engaging any of the judicial safeguards requiring the reviewer to judicially
determine the facts, circumstances or to determine the applicable statutory
or common law.

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What has occurred in the case at bar, and appears to occur in the practice
generally or alternative must occur if given the same set of facts and
circumstances, is for an individual applicant or petitioner to be judged
solely against presumed group characteristics. There is no accommodation
for persons to be assessed according to their own abilities and no
accommodation standard for those who cannot meet the minimum
physical or financial characteristics of the presumed group.
If the foresaid is true, and there is much to suggest that it is, then the Charter
applies, and further analysis and argument must now proceed to the other
Charter questions. All enquiry now turning on whether an absolute right or
liberty having been wrongly withheld or unreasonably restricted - s.7 - or
whether or not the prescribed limits on individual rights - s. 15(1) - that
form a part of the "practices and procedures" of the Court Rules Act and
the "government's objective" of the court's operating cost and speed, are
reasonable - s. 1 - in a free and democratic society.
THE CONSTITUTIONAL LAW
ASPECT
Particularly significant and poignant are the words of Mitchell J.A for the
Prince Edward Island Court of Appeal in P.E.I. (Registrar of Motor
Vehicles) v. Rankin (1991), 30 M.V.R. (2d) 122 having observed at the end
of his reasons for judgment of the Court, at 124:
"The Charter neither provides constitutional protection for all human activities nor a
remedy for every grievance."

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From this insight the Applicant developed his Charter questions and the
direction of his analysis. Is the activity - liberty - of seeking in a suit at law
judicial redress for a wrong a liberty provided constitutional protection?
Furthermore, is it a citizen’s constitutional right to continue or defend his
family's as well as his own property and legal interests in a civil
proceeding before a court of law? Are such rights constitutionally
prohibited or otherwise restricted in someway on the occurrence of a
citizen having lost his property, livelihood and self-determination to the
State? Is the Charter as well as the common law insensitive to the
hardships and difficulties in Canada of that distinct Canadian minority
made up indigent citizens imprisoned abroad? Is the Government of
Canada, as represented by the Ministry of the Attorney General, entitled to
vacate its otherwise positive constitutional obligation to protect, within the
boundaries of Canada, the rights of all Canadian citizens? Notwithstanding
that they are indigent and imprisoned abroad. Is the Government of
Bulgaria, represented by the Ministry of Justice, entitled to offend Canada
as well as its laws and the rights of a Canadian citizen it has deprived of
liberty and property? Are the courts of Canada entitled to vacate their
otherwise positive constitutional obligation to make an accommodation for
those persons who, through no fault of their own, are unable to appear?
Notwithstanding that the jurisdiction of the incarceration is outside the
province or Canada. Are the principles of judicial economy more
sacrosanct than those of the Charter as well as of international law? A
principle argument of the Speaker is that speedy and cost effective
dispensation of justice is not always a fair and equal application of justice
to persons having lost their self-determination, livelihood and property.
A review of the exact events leading to the Order of the Master as well as the
wording of the order itself and the decision of the Chambers Judge are
required to provide a factual foundation for the Charter grieves of the
Applicant.
IV.8.3.3.1.1 The Duty Master's Order
In Part 1: Statement of facts, the Speaker can be seen during the course of the
proceedings to have filed, and re-filed, as plaintiff, a number of requests
for desk, or other interlocutory orders, all later referred by the Registrar to
a Master.
On or about April 18th 2001 a notice of the Duty Master's order was provided
by the Registrar to the plaintiff in care of his father Mr. Robert Kap, it
reading as follows:
"April 18th, 2001

"Dear Sir,

"Your recent desk order applications were referred to the Duty Master. The Duty
Master reviewed your applications and ordered all your applications must be spoken
to. Therefore, I am returning your applications.

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Brent Messenger
Manager, Civil Programs
Vancouver Law Courts"

To the Applicant, it appears from the wording of the Order, that the Duty
Master's role here is a quasi-judicial one advancing a discriminatory
standard and regulatory scheme of the government. Its intent is to compel
an appearance before the court of the petitioner or his attorney. The Duty
Master exercises the power of compulsion over a petitioner (the
"Applicant") to advance the provincial government's regulatory scheme.
The common law rule is to judge all applicants according to presumed
group characters and to limit the means or mode of access to the court for
judicial review of applications to those applicants who can meet the
standards. Neither the nature of the applications or individual abilities of
the applicant are judicially assessed
The Chambers Judge Decision
On May 28th 2001, the first opportunity the Applicant's had at prison in Sofia,
Bulgaria, he appealed the Duty Master's order.
The appeal to the Chambers Judge relied first on s. 24(1) of the Charter, the
Applicant asked His Lordship apply the Charter when judicially reviewing
his appeal from the Duty Master's order. The principal controversy was the
order having exceptionally prejudiced the petitioner's legal rights. The
Appeal procedure before the Chambers Judge relied on the provisions of
Rule
The Applicant's grievances at that time to His Lordship were against an
administrative or quasi judicial practice and procedure placing a further
sanction on the already severe and harsh circumstances of the present
applicant. A duty of an impossible reverse onus placed on an indigent
person already deprived of liberty must, by its very nature, offend
fundamental guarantees within the ambit under the Charter, - s. 15(1).
Furthermore the engaging of coercive power as a limitation on a person
accessing the court's services solely due to being unable to meet presumed
group characteristics proves a form of unlegislated sanction, penalty or
punishment exceeding what is prescribed by law as demonstrably
justifiable in a free and democratic society - s. 1.
Among the points raised in writing before the Chambers Judge the following
four are believed significant for the purposes of this analysis.
Starting at the third paragraph of the Applicant's appeal:

"Judicial direction is sought from His Honour as to the practical matter of how best
might the Charter rights of the Plaintiff be guaranteed."

Among the points for review:

"1. The Order manifests as its practical consequence a violation of ss. 15(1) Charter
rights of the plaintiff."

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"2. The Order effectively discriminates against a class of litigant that, due to
circumstances beyond his or her control, could not reasonably be expected to attend
court of his or her own initiative or free will and in the absence of financial resources
to secure legal counsel."

"3. The Order has a further practical consequence, it obstructs the ss. 24(1) Charter
rights of the Plaintiffs. In the Master requiring the Plaintiff do something that it is
apparent from the facts he cannot possibly do without the court to assist, the Master
has imposed, as a vicarious element of his Order, a procedural obstruction to
exercising a Charter guaranteed right."

"6. The Order is inconsistent with Charter principles and the inherent jurisdiction of
the court for fair and efficient compensation for wrong and deterrence."

There is some discrepancy in the dates appearing on the Registrar's


correspondence to the Speaker and the actual date of events. Setting aside
what appears a typographical error on the part of the Registrar, it can be
seen from the course of the proceedings that the Speaker was provided the
decision of Chambers Judge also on April 18th 2001. What follows is the
notice of the Registrar:
"April 18th, 2001

"Dear Sir,

"I referred your Notice of Appeal from the Duty Master to the Honourable Mr.
Justice E.R.A. Edwards. His Lordship reviewed your application and directed no
further steps be taken, by the plaintiff, until a representative of the plaintiff speaks to
this matter in Court.

"As I stated in previous correspondence, one of the following agencies may be able
to assist you in this matter. [List of legal aid agencies follows]"

As it can be seen the Chambers Judge agreed with the Master's assessment of
the government regulatory scheme and common law practice and
procedure applied to all circumstances as that of the case now at bar.
IV.8.3.3.1.2 Discussion
To use the Registrar's words applications are "reviewed". However, it seems
only an extemporaneously review not having any judicial quality but the
"quasi-judicially" one that naturally extends to all enactments concerned
with administering court resources and proceedings. Reference to this
"quasi-judicial" role and power of a Master or Chambers Judge can be
found under the Interpretation Act [RSBC 1996]c. 238:
"Powers to judges and court officers

"19 (1) If by an enactment judicial or quasi judicial powers are given to a judge
or officer of a court, the judge or officer in exercising the powers does so in his or
her official capacity and representing the court.

"(2)….

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"Application of definitions in Supreme Court Act to other enactments

"39 The definitions section of the Supreme Court Act, so far as the terms defined can
be applied, extends to all enactments relating to legal proceedings.

[Emphasis Added - Mine]

Apparently, a Duty Master or Chambers Judge, after having made an


extemporaneous or quasi-judicial review of an application, then applies
the common law rule allowing a direction to the Registrar for returning all
application(s) to a petitioner. Also the Registrar is directed from accepting
any future applications for judicial review or remedy until such time as the
petitioner complies with the Order that he, or his legal representative,
bring in proprio persona the applications before a Master or Chambers
Judge, to have them "spoken to". It appears that the common law rule
developed as a practice and procedure of the Court Rules Act, Rules of
Court under the provisions of Rule 41, subrule 16.5(b) that reads as
follows:
" Rule 41 – Orders

"Disposition of referred applications

(16.5) If an application is referred by the registrar to a judge or master under subrule


(16.2) or (16.4), the judge or master to whom the application is referred may

(a) make the order, or

(b) direct that the application be spoken to.

[en. B.C. Reg. 161/98, s. 12 (c).]

The direction to the Registrar and order to the Applicant that "no further steps
be taken, by the plaintiff, until a representative of the plaintiff speaks to
this matter in Court" appears only to advance the interest of the
government's regulatory objective of cost effective and expeditious
administration of the courts processes in the name of the well-being of the
public.
In the order to the Applicant, the Master does not speaks to its legal affects,
and the consequential decision of the Chambers Judge and his direction to
the Registrar proves only to be an administrative sanction on a right and
liberty of the Applicant to seek legal redress through the courts. It to be
recalled the Applicant is barred from bringing applications to continue, or
defend in a proceeding, as well as limited in his right to participate in
hearings.

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On the basis of the immediately preceding discussion the Applicant arrived at
a conclusion that the Legislation must be constitutionally invalid by virtue
of the fact that both the order and decision affecting the Applicant's rights
was not arrived at judicially, notwithstanding that both the order and
decision are taken by a Master or Chambers Judge on the basis of a
common law rule.
The point being that both the Duty Master's order and the Chambers Judge
decision as applied to the Applicant have a sole purpose and aim of only
furthering a regulatory scheme of the provincial government. The
particular government action in which the Master as well as Chambers
Judge were engaged in the present case is clearly an administrative or
quasi-judicial one observing as well as enforcing the stated purpose or aim
of s. 1 of the Court Rules Act. Therefore, when directly prohibiting as well
as limiting certain of the Applicant's fundamental rights and liberties it
was done indirectly under the impugned Legislation solely in order to
further a government regulatory scheme.
It is because of the interconnected matrix of the impugned Legislation's
immediate purpose or aim to statutory as well as common law rules and
powers that the Applicant chooses to examine each possible variation on
how the Charter might be applied in the case of the Legislation as well as
the common law rule.
IV.8.3.3.1.3 Is a Charter Challenge the Answer?
Briefly stated the Applicant's first grievance as raised in the prior enquiry
addressed the constitutionality of provincial legislation having indirectly
transgressed the jurisdictional boundary separating property and civil
rights with that of criminal law. Specifically the Applicant claimed an
administrative or quasi-judicial interference with fundamental rights and
liberties when the engaging of a statutory power of compulsion has an
affect normally associated with criminal law, it argued that the Court Rules
Act [RSBC 1996] c. 80, Rules of Court was ultra vires, the province.
Among other principle grounds raised was the Lieutenant Governor
having enacted no negative restriction as well as no positive obligation
under the Legislation to regulate the nature of administrative or quasi-
judicial orders that directly or indirectly infringe on the fundamental rights
and liberties of citizens already restricted in their self-determination under
a criminal law jurisdiction.
This first argument of the Applicant advanced a thesis the Legislation to be in
part invalid and void ultra vires the province. However, he recognises the
weakness of this particular argument in that there is no statutory provision
under the legislation that directly offends the doctrine of paramountcy.
While the Legislation's indirect affects are hypothetically arguable under
the colourability doctrine it appears nonetheless, even to the Applicant,
more an issue of a common law rule infringing on individual Charter
rights.

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The applicant's earlier reasoning turned on regulatory provisions of an act or
law, developed under common law, impacting on persons beyond the
ambit of the impugned Legislation's intent. The practice and procedure
under s. (1) (2) (a) of the Legislation are common law rules applied to
provisions of the Rules of Court and must fall under Charter scrutiny by
reason of being the product of action by government, or an emanation of
government. One issue the Appeal Court is asked to consider is if s. 32(2)
of the Charter applies as well as Section 52 Charter values to a common
law rule.
From here the Applicant's continues his second grievance, claiming as
absolute and inviolable the right and liberty to access a court of law to
develop a judicial remedy as well as obtain a judicial review of complaints
by a court of competent jurisdiction in Canada. The Applicant argues his
common law as well as Charter rights cannot be restricted or limited by an
administrative or quasi-judicial sanction, notwithstanding that when he is
judged against presumed group characteristics he cannot meet the
discriminatory standards apparently developed under the common law.
The Applicant has little information on the legislative history of the
impugned Court Rules Act, Rules of Court, or the common law having
developed around the Legislation and apparently setting the standards and
characteristics followed by the practice generally. What can be adduced, a
posteriori, is the following.

How the Charter Applies.


In the case of an impugned legislative act the Supreme Court of Canada in
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927,
considered a the two-step approach in determining if legislation offends a
Charter right. The approach was followed in Rocket v. Royal College of
Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 at 244-45. First it is
necessary to determine whether the activity in question falls within the
sphere of conduct that is afforded Charter protection. If so, then to
consider whether the purpose or the effect of the impugned legislation is to
restrict a freedom enshrined as a right.
Charter Interpretation of Statutes.
The approach to be taken when interpreting the impugned Legislation was
enunciated by Driedger in Construction of Statutes (2nd Ed. 1983), at p.
87 he writes:
"Today there is only one principle or approach, namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of Parliament."

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In Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236
N.R. 1; 170 D.L.R. (4th) 1, an analytical framework was developed where
a violation of the Charter was alleged. The Applicant has taken the
approach in Law, supra, when evaluating his claim under s. 7, that he is
denied a right and liberty protected by law, and of discrimination under s.
15(1), that he is treated unfairly, and exceptionally prejudiced on
application of the Legislation to him more than others. The court in Law
considered it should make and answer three broad inquiries, writing at
para. 88:
"(A) Does the impugned law (a) draw a formal distinction between the claimant and
others on the basis of one or more personal characteristics, or (b) fail to take into
account the claimant's already disadvantaged position within Canadian society
resulting in substantively differential treatment between the claimant and others on
the basis of one or more personal characteristics?"

"(B) Is the claimant subject to differential treatment based on one or more


enumerated and analogous grounds?

and

"(C) Does the differential treatment discriminate, by imposing a burden upon or


withholding a benefit from the claimant in a manner which reflects the stereotypical
application of presumed group or personal characteristics, or which otherwise has the
effect of perpetuating or promoting the view that the individual is less capable or
worthy of recognition or value as a human being or as a member of Canadian
society, equally deserving of concern, respect, and consideration?"

Charter 15.
Returning to the criteria in Law v. Minister, supra.
The Applicant has established evidence to prove the answer to (A)(a) in the
case at bar, is "YES", the impugned Legislation maintains or at best
permits a discriminatory standard to be applied to all persons. The
standard, by a reverse onus, indirectly draws a formal distinction on two of
the Applicant's personal characteristics, property and his power of self-
determination. The facts and common sense prove the answer to (A) (b) to
as well be "YES", the impugned Legislation clearly fails or omits taking
into account the already afflictive and disadvantaged status of the
Applicant as an indigent Canadian citizen deprived of his liberty abroad.
Personal characteristics that must imminently result in substantially
different treatment than that expected by other Canadians who are able to
meet the Legislation's presumed group characteristics.
The answer to (B) must as well be "YES", given that for so long as the
grounds enumerated in (A) are true, and the reverse onus maintaining the
discriminatory standard remains in effect. The Applicant is absolutely
prohibited first as a practical matter of his imprisonment and then from
affects of the reverse onus, from petitioning the court as well as limited in
any future action to continue or defend in the proceeding.

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As to item (C) in Law, supra, the burden of an impossible reverse onus is an
absolute one when having engaged the statutory power of compulsion or
coercion. To directly sanction, or indirectly penalise or punish a person for
not doing something that they are prevented by the State and others from
doing is wrong. The withholding of a fundamental right or liberty in a
manner which reflects the stereotypical application of presumed group or
personal characteristics must be wrong when derogating from rights or
liberties otherwise guaranteed by the Charter as well as principles of
international law.
The prohibition and limitations placed on the Applicant by the Legislation
prove an undeserved sanction, penalty or punishment, having left the
Applicant and others to question his worth or value as a human being or
as a member of Canadian society. It is the opinion of the Applicant that all
indigent Canadian citizens deprived of their liberty abroad are nonetheless
equally deserving of concern, respect, and consideration within Canada
and by its courts as is any other person. Having an equal right to continue
or defends his civil or property rights before the courts, notwithstanding
that the impugned Legislation, by omitting a negative restriction in the
prohibition or limiting application of a discriminatory standard as well as
omitting a positive obligation to provide an accommodation standard after
first assessing individual abilities.
Whatever the reasons for the affects, they are nonetheless undeniable and
prove the Legislation as directly or indirectly acting to withhold from
indigent prisoners their equal right to be heard and apply the law to their
claims or the equal possibility to derive benefit from the law as well as the
judicial review process and procedural fairness when in pursuit of a
remedy for their complaints before the trier of the facts.

The Speaker places reliance on this two step approach as had been applied in
both the cited cases. The Court there was considering the right to freedom
of expression (s. 2(b)) but the prescribed method of analysis appears to be
of general application and useful to the present enquire into s. 15(1).

Following the two step approach of the Supreme Court of Canada found in
Irwin, supra, the first question may be formed as follows; Whether the
activity of an indigent prisoner in prosecuting his law suit before the
courts of law is a civil activity protected under s. 15(1) of the Charter; the
second question is whether the purpose or the effect of the Rules (Act) is
to restrict that kind of activity.
Interpreting the Charter.

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In considering this question the Speaker relied on the general proposition the
Charter is a purposive document, to be granted a "large and liberal
interpretation", see: Hunter v. Southam, [1984] 2 S.C.R. 145 at 156-57;
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at 766-67, and
that the Courts should extend the benefit of Charter rights in a generous
and wide manner. Using the words of Dickson C.J.C. in R. v. Big M Drug
Mart Ltd., [1985] 1 S.C.R. 295 at 344:
"The interpretation should be, as the judgment in Southam emphasizes, a generous
rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection."

IV.8.3.3.2
IV.8.3.3.3Does The Charter Apply?
S. 7 Rights and Liberties
This argument has evolved rightly or wrongly from an interpretation of
relevant federal legislation as well as the principles of international law
cited earlier. On the surface of these international commitments of the
Federal Government, as well as federal legislation, all persons have what
appear to be certain absolute rights and liberties. It is expressly forbidden
to directly or indirectly limit or withdraw such rights except as prescribed
under statutory law, and then only reasonably.

Charter.
On reading of limited case law available to the Applicant, it was found the
Court of Appeal to be more than slow to strike down administrative law
practice and procedure regulations as developed under s. 1 of the
Legislation as unreasonable, leaving such determinations to the Lieutenant
Governor in Council or the Chief Justice of the SCBC. Having recognised
such reticence the second question raised later on is the courts duty to
consider whether the impugned Legislation as well as common law rule
when applied in certain circumstances, was sensitive to the s. 7 and s.
15(1) Charter rights of incarcerated and indigent citizens, contrasted with
the wider mandate conferred by the Charter to that conferred by the
provincial Legislation.
Section 1 of the Court Rules Act grants broad powers to the Lieutenant
Governor in Council powers, sufficiently so that "practice and procedure"
under the impugned Legislation can encompass a comprehensive body of
regulatory measures governing the administration of the courts and the
practice generally in British Columbia. From time to time a Registrar,
Master or Chambers Judge of the Supreme Court of British Columbia is
called on to perform a role under the Legislation that has an administrative
or quasi-judicial character. That role allows for a discretionary right to
apply an administrative or quasi-judicial sanction, penalty or punishment.

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Of interest to the present enquiry is the occasion of a Master or Chambers
Judge making a determination and fixing an order guided by the dominate
purpose or aim of an economic and just application of provincial court
resources. The Duty Master, taking on an administrative role, i.e.,
determining what pre-trial application are to be heard, and the means or
mode required for its hearing. Such a role appears, if not wholly
administrative, then at least not wholly judicial. There is no statutory
provision under the Legislation fixing a practice and procedure to be
followed for a judicial assessment of a person's abilities as well as a
review of any individual circumstances as judged against presumed group
characteristics. This apparently left to the common law.
IV.8.3.3.4Section 52 Charter Values And The Common Law.
The present enquiry into the Applicant's second grievance seeks to develop an
argument sufficient to have the Court find a common law practice and
quasi-judicial procedure to be of no force and effect under s. 52 of the
Constitution Act, 1982. The practice in question violating the Charter
when it adds a further sanction, penalty, or punishment to an already
existing restriction on a citizen's fundamental rights and liberties as
imposed under criminal law. It is claimed such a common law practice and
procedure is unfair, having unreasonably punished indigent prisoners by
further depriving them of rights and liberties that are otherwise absolute
and inviolable.
The sole issue to be resolved by the Appeal Court under this second grievance
is whether the combined effects of indigence and a pre-existing criminal
sanction - loss of liberty - having in some unfathomable way collectively
acted to create a common law offence of absolute liability or strict liability
sufficient to engage the application of a sanction, penalty or punishment
not found to be found in criminal law or prescribed under another head of
law.

IV.8.3.3.4.1 In The Case at Bar.

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What is significant to the case at Bar and this enquiry results from the
"particular government action" authorised or justified on the basis of what
appears a common law practice and procedure under s.1(2)(b) of the Court
Rules Act, Rules of Court Rule 41(16.5)(b). The action engages the
statutory power of compulsion or coercion to advance the provincial
governments regulatory scheme to bar a citizen (the "Applicant") from any
further procedural possibility to pursue his judicial remedy in a suit at law
as well as to restrict him from continuing or defending in the proceeding
solely until his appearance or that of a legal representative before the
court. The Applicant relies on the following words of Cory J. in the cited
Manning, supra, should the Honourable Court interpret an order so fixed
by a Master or Chambers Judge to not be a government action. Continuing
at pp. 152-153:
The Appeal Court is asked to recall that there is nothing to dispute the fact that
the Applicant is physically prevented from appearing before the court as
well as his having no financial resources to secure a legal representative.
Furthermore, it is incontrovertible fact that the Defendant Bulgaria refuses
to conduct, under custody, the Applicant to and from the court as well as it
is arguable fact the same defendant having used physical and
psychological coercion to deter the Applicant as well as other plaintiffs
from continuing or defending in the proceedings. The Applicant, while
complaining of the Defendant Bulgaria's conduct as questionable he did
not raise a Charter issue to the private law questions at issue in the suit at
law against the Defendant foreign State.
[16] The germane provisions of the Charter relating to defamation law are set out in s.2(b), which
reads:

"2. Everyone has the following fundamental freedoms:

...

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;"

...

This administrative or quasi-judicial role of a Duty Master or Chambers Judge


under the Lieutenant Governor's "practice and procedure" direction is
significant as it forms the basis of the Charter grievance as well as the
earlier question on the constitutional validity of the impugned Legislation.
However, this enquiry must turn on a determination of what are the
absolute rights and liberties of all citizens, notwithstanding the status of
the person as one already deprivation of liberty. From there it must
proceed beyond the Legislation's statutory purpose and intend. Examining
instead the indirect affects that lead to the Applicant's second grievance.

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The Legislation or alternatively the common law practice surrounding the
impugned enactment proves a form of additional sanction, penalty or
punishment exiting in addition to as well as in aggravation of that already
provided for under criminal law. Jointly and severally both the Legislation
and apparently common law practice a further derogation of protected
rights and liberties solely on the basis of an existing element of deprived
of liberty. The additional sanction, penalty and punishment, solely affects
indigent prisoners and is the result of a practice and procedure of a Master
or Chambers Judge advancing the provincial governmental regulatory
scheme as applied to the just and economic use of its courts' resources.
It is both at once intriguing and confusing to the Applicant to find the
conspicuous absence of a written statutory provision(s) under the
Legislation's regulations and rules as established by the Lieutenant
Governor, having allowed the direct or indirect barring of a person from
court as well as restricting a person from continuing or defending a
proceeding solely due to the observable fact the person cannot meet
presumed group characteristics. It then follows that any Charter question
is too premised on an apparent common law - quasi-judicial - practice that
solely on the basis of property and social status determines an additional
sanction, penalty or punishment to be added to that already in place under
criminal law. The Charter analysis relevant to the present enquiry are of
those rights and liberties considered to be absolute and guaranteed within
the ambits of s. 1, s. 7, and s. 15(1) of the Charter that read:.
Charter

"Section 1 provides:

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society."

Section 7 provides:

"7. Everyone has the right to life, liberty and security of the person and the right not
be deprived thereof except in accordance with the principles of fundamental justice.

Section 15(1) provides:

"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,
religion, sex, age or mental or physical disability."

In the United Kingdom the constitution is unwritten. It can only be found in common law, statute
and Professor A.V. Dicey's constitutional conventions. Thus, in a sense, British libel and
slander laws stand free from explicit constitutional limitations apart from potential future
interpretations pursuant to Article 10 of the European Convention on Human Rights by the
European Court of Human Rights.

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IV.8.3.3.5Is There A Deprivation Of A Liberty Protected By S. 7 Of
The Charter?
Submission of the Appellant

The appellant submitted that it is not only "absolute rights" or "fundamental liberties" that are
protected by s. 7 of the Charter. While recognizing that no liberty or right is absolute, it is
asserted that once a person is granted a "general liberty" or right, such as the right to be
“heard” by the Court, it becomes a right protected by s. 7 of the Charter. The fact that the
"general liberty" is subject to regulation by the Rules of the Court does not reduce the
"general liberty" to a mere privilege.

Alternatively, it can be argued that being “heard” by a Court of law in a civil proceeding is not a
"fundamental liberty", a "general liberty" or any other type of right or liberty protected by
s. 7 of the Charter. Permission to be heard or for an incarcerated person to be transported
to the Court are regulated activities which are a privilege - not a right or a liberty protected
by s. 7 of the Charter.

Discussion

Frivolous Prisoners.

Comparing provisions of s. 7 of the Charter with the provisions of the Fifth and the Fourteenth
Amendments of the United States Constitution Nemetz C.J.B.C., for the majority, at 140
stated:

" I adopt, however, those American authorities which do not confine the definition of liberty to
mere freedom from bodily restraint. In Bolling v. Sharpe (1954), 347 U.S. 497, Chief
Justice Warren said, in part: "`Liberty' under law extends to the full range of conduct
which the individual is free to pursue and it cannot be restrained except for proper
governmental objective" (my emphasis). I am in respectful agreement with this general
doctrine.”

Nemetz C.J.B.C. was considering a question that the Applicant finds a lesser “right to liberty” than
that of having his having a right to appear before of Canadian Court of Law;

"Liberty" under the Charter cannot be taken to create an absolute right to drive. Age, infirmity
and other impediments may restrict the granting of drivers' licences. However, once the
licence is granted there becomes attached to it the general liberty to employ one's skill and
ability - in this case the ability to drive. Accordingly, such liberty constitutes a right under
the Charter and a person cannot be deprived of it except in accordance with the principles
of fundamental justice.

Chief Justice Nemetz concluded that the provisions of s.214 (2) offended the principles of
fundamental justice and deprived the appellant of his right or his general liberty under s. 7
of the Charter to drive a motor vehicle. He held that the "road-side suspension law"
contained in s. 214(2) of the Motor Vehicle Act was unconstitutional.

In R. v. Neale, [1986] 5 W.W.R. 577 (Alta. C.A.), on the Crown's appeal the
Alberta Court of Appeal the Court wrote of “liberty” at 584-5:

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"Liberty" of the person in the Canadian Charter is directed to, or has as its
purpose, the protection of persons in a physical sense. The particular
function of liberty in the trilogy of life, liberty and security of the person
touches on the right of free movement. A person chained in a prison is
subject to what the Queen's Bench judge would describe as "actual
physical restraint", clearly a deprivation of liberty under s. 7. But equally,
a person ordered not to leave his home would be deprived of liberty under
s. 7 because the right of free movement is restricted. He is denied the use
of his physical ability to move himself. Whether by chains or by threat of
legal sanction, the deprivation occurs. Broadened Scope of s. 7 of the
Charter
[95] The Supreme Court has in some circumstances broadened, the scope of the
liberty protected by s. 7, this was noted by McEachern C.J.B.C. in Blencoe v.
British Columbia (Human Rights Commission) (1998), 160 D.L.R. (4th) 303.
At 334 he referred to it as "the emerging, preferred view in the Supreme Court
of Canada".
[96] In B. (R.) v. Children's Aid Society, [1995] 1 S.C.R. 315 the scope of the
liberty protected by s. 7 was considered. That case is significant to the present
enquiry in that it also deals with the question of temporary custody. In the
present instance at bar the Applicant in order to appear before the trial court
has on a number of occasions request the Defendant Bulgaria to place him in
temporary custody of Canadian authorities until the end of any trial. In B. (R.)
v. Children's Aid Society, [1995] 1 S.C.R. 315 Canadian police placed a child
in temporary custody away from the parents who are members of the Jehovah
Witness faith. For religious reasons the parents had objected to certain
medical procedures being carried out on their infant daughter because the
procedures would entail the giving of a blood transfusion. The Ontario
Children's Aid Society intervened and obtained an order granting temporary
wardship during which medical investigations were conducted. Medical
opinion indicated that exploratory surgery was necessary and it would
possibly require a blood transfusion. The temporary wardship was extended
by Provincial Court order. The exploratory surgery was performed. The child
received a blood transfusion. The temporary wardship was terminated and the
child was returned to the care of her parents. The parents asserted that their
liberty interests under s. 7 were infringed by the actions of the Children's Aid
Society. There were three separate reasons for judgment that dealt with the
scope of s. 7.
[98] Lamer C.J. reiterated the view he had expressed in previous decisions that s.
7 should be restricted to circumstances where the physical liberty of the
individual was involved. At 340-41 he stated:
“With due respect for the contrary opinion, I am still convinced that the nature of
the rights guaranteed by s. 7, taken as a whole, and the close connection
established between those rights and the principles of fundamental justice,
necessarily mean that this constitutional protection is connected with the

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physical dimension of the word "liberty", which can be lost through the
operation of the legal system. In a majority of cases, therefore, this protection
is specific to our criminal or penal justice system and is triggered primarily by
the operation of that system. . . . In my view, the principle that must be
adopted is that generally speaking s. 7 was not designed to protect even
fundamental individual freedoms if those freedoms have no connection with
the physical dimension of the concept of "liberty". There are other provisions
in the Charter that perform that function.
[99] La Forest J., with whom L'Heureux-Dub‚, Gonthier and McLachlin JJ.
concurred, briefly summarized the general issue raised in the appeal by
stating, at 351:
This appeal raises the constitutionality of state interference with child-rearing
decisions. The appellants are parents who argue that the Ontario Child
Welfare Act, R.S.O. 1980, c. 66, infringes their right to choose medical
treatment for their infant in accordance with the tenets of their faith. They
claim that this right is protected under both ss. 7 and 2(a) of the Canadian
Charter of Rights and Freedoms.
[100] After reviewing a number of authorities in connection with the scope of s.
7 La Forest J. observed, at 368:
The above-cited cases give us an important indication of the meaning of the
concept of liberty. On the one hand, liberty does not mean unconstrained
freedom; see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (per Wilson J.,
at p. 524); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (per
Dickson C.J., at pp. 785-86). Freedom of the individual to do what he or she
wishes must, in any organized society, be subjected to numerous constraints
for the common good. The state undoubtedly has the right to impose many
types of restraints on individual behaviour, and not all limitations will attract
Charter scrutiny. On the other hand, liberty does not mean mere freedom
from physical restraint. In a free and democratic society, the individual must
be left room for personal autonomy to live his or her own life and to make
decisions that are of fundamental personal importance.”
[102] The joint reasons of Iacobucci and Major JJ., with whom Cory J.
concurred, focussed more on the liberty interest of the child than the alleged
liberty interest of the parents. At 431, Justices Iacobucci and Major stated:
We note that La Forest J. holds that "liberty" encompasses the right of parents
to have input into the education of their child. In fact, "liberty" may very well
permit parents to choose among equally effective types of medical treatment
for their children, but we do not find it necessary to determine this question in
the instant case. We say this because, assuming without deciding that
"liberty" has such a reach, it certainly does not extend to protect the appellants
in the case at bar. There is simply no room within s. 7 for parents to override
the child's right to life and security of the person.

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In any event, there is an immense difference between sanctioning some input
into a child's education and protecting a parent's right to refuse their children
medical treatment that a professional adjudges to be necessary and for which
there is no legitimate alternative. The child's right to life must not be so
completely subsumed to the parental liberty to make decisions regarding that
child: . . . [Emphasis in original]
[107] On the basis of these decisions it is apparent to the Speakers that a more
expansive scope of the liberty interests protected by s. 7 has been advocated
by some members of the Supreme Court.
[108] It is recognized that the liberty interests protected by s. 7 may not
necessarily be restricted to the physical liberty of the individual. In
appropriate circumstances, those interests may embrace liberties that are
fundamentally or inherently personal to the individual and go to the root of a
person's dignity and independence.
[109] The broadened scope of the liberty interest protected by s. 7, as expressed
by some of the members of the Supreme Court appears to extend to those
matters that are fundamental or inherently the right of an individual before a
Court of civil law. In the opinion of the Speaker, the right to be heard and to
appear before the Court is a matter that goes to the root of a person's dignity
and independence and to hold otherwise would trivialize the liberty sought to
be protected by s. 7. In the Speaker’s view, the right or privilege to appear at
trial is a liberty protected by s. 7 of the Charter and flows naturally from
international law. The Crown and the Defendant State Bulgaria must observe
this right of the Speaker. Ergo, the Master and Chambers Judge are required to
extend their jurisdiction in such a way as to secure such rights, and any Rules
of Court of practice that acts to obstruct such rights must be deemed ultra
vires on a division of powers analysis and for it does act to deprive this
Applicant and other incarcerated Canadian citizens of a liberty protected by s.
7..

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. The intended point on appeal turns on a fair question: Is the affected group
exceptionally prejudiced by the impugned enactment? Exception prejudice
was enunciated in the cited Smith v. Ontario supra. The extrinsic facts
before court below support the Applicant's proposition that there is a
reviewable error made in the Duty Master as well as His Lordship
Edwards, J. declining to accede to Applicant's petitions that he be
permitted to continue or defend only in writing or that the Defendant
Bulgaria and the Crown conduct him to and from Court.
The Applicant holds that the Duty Master as well as His Lordship Edwards, J.
both incorrectly held not to vary the way in which an incarcerated
petitioner might comply with an order under Rule 41(16.5)(b). Both
determined that "spoken to" prescribed a practice and procedure of
maintaining a discriminatory standard solely based on presumed group
characteristics of self determination and property. The court unreasonably
placing a reverse onus on an indigent person deprive of liberty to appear
or retain legal counsel. The Appellant believes application of the Meiorin
test to the case before the Appeal Court makes his points arguable.
Should the Appeal court find the practice and procedure maintaining a
reasonable discriminatory standard, the Appellant then argues the
alternative; that application of the discriminatory standard to indigent
persons deprived of liberty fails the s. 1 Charter test for reasonableness
solely due to its exceptionally prejudicial affects. The limits prescribed, if
in fact they are such, unreasonably limiting the s. 7, s. 15(1) and s. 24(1)
Charter rights of impoverished citizens of Canada when deprived of their
liberty.
The Appellant makes a further claim of a second reviewable error in the
decision of His Lordship Edwards, J. when declining his jurisdiction to
accede to hearing an s.24 (1) Charter complaint in writing.
IV.8.3.4 The Existing Judicial Consideration of the Rules
Concerning the apparent prohibition against applications being spoken to in
writing by an incarcerated party.
It was an abrogation of judicial duty for the lower court to not undertake a
Charter analysis of the impugned Rule, and it is suggested that the Appeal
Court should undertake that Charter analysis now. The Speaker is not able
to refer the court to any case where legislation initially held valid was later
successfully challenged constitutionally, but considers that the case should
now be decided on the issues that have been properly joined and argued.

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The present enquiry should proceed along what appears to be the traditional
lines established in case law for any Charter analysis: Does the Charter
apply at all? Does the impugned practice and procedure indirectly offend
the right of equality - s. 15(1) - on application to an indigent person
deprived of his liberty? If so, does the application of the impugned
practice and procedure offend beyond such reasonable limits as can be
demonstrated to be justified in a free and democratic society - (s. 1)? The
Speaker has considered each in turn.
IV.8.3.4.1Does the Charter Apply?
IV.8.3.4.1.1 To the Court Rules Act.

IV.8.3.4.1.1.1Argument

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A Master or Chambers Judge applying his coercive powers of limitation under
the Court Rules Act, without making any distinction between a person
physically handicapped or, as in the present case at bar a person deprived
of his liberty and indigent, and a person physically able and at liberty, does
thereby indirectly discriminate and prejudice the legal interests of a
distinct and clearly disadvantaged person or group.
The outstanding question the Speaker is attempting to resolve here turns on
one point and one alone that is the Master's absolute prohibition against
applications to be "spoken to" in any other form except in proprio persona
of the petitioner or a lawyer before the court. This is absolute, the
impugned enactment providing no provisions for exception of persons
deprived of their liberty and having no financial resources to retain an
attorney.
In the Duty Master's order, or the later decisions rendered and the subject of
this enquiry, nowhere is the rationale provided for the applying Rule
41(16.5) to an incarcerated and indigent applicant.
Little more discussion seems necessary to reach a conclusion that the Duty
Master, in the case at bar, acted administratively, and not judicially,
exercising the statutory powers granted to him under the Supreme Court
Act to issue an "order" as a part of his quasi-judicial role in administering
the courts processes. The "order" apparently is only to enforce this
administrative "practice" of the courts, and to require a petitioner present
his applications, in proprio persona, before the court. Apparently, the
"procedure" does not require a Master to judicially review the facts or law
relied on by the petitioner. That said, another question then arises; did the
petitioner have a right to have his applications judicially reviewed?
IV.8.3.5 Availability of Judicial Review
To answer this question the Speaker turned to the Judicial Review Procedure
Act [RSBC 1996] c. 241:
"Definitions

"1 In this Act:

"application for judicial review" means an application under section 2;

Application for judicial review

"2 (1) An application for judicial review is an originating application and must be
brought by petition.

"(2) On an application for judicial review, the court may grant any relief that the
applicant would be entitled to in any one or more of the proceedings for:

"(a) relief in the nature of mandamus, prohibition or certiorari;

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"(b) a declaration or injunction, or both, in relation to the exercise, refusal to
exercise, or proposed or purported exercise, of a statutory power.

"Error of law

"3 The court's power to set aside a decision because of error of law on the face of the
record on an application for relief in the nature of certiorari is extended so that it
applies to an application for judicial review in relation to a decision made in the
exercise of a statutory power of decision to the extent it is not limited or precluded
by the enactment conferring the power of decision.

"Power to set aside decision

"7 If an applicant is entitled to a declaration that a decision made in the exercise of a


statutory power of decision is unauthorized or otherwise invalid, the court may set
aside the decision instead of making a declaration.

"Defects in form, technical irregularities

"9(1) On application for judicial review of a statutory power of decision, may refuse
relief if

"(a) the sole ground for relief established is a defect in form or a technical
irregularity, and

"(b) the court finds no substantial wrong or miscarriage of justice occurred.

"(2) If the decision has already been made, the court may make an order validating
the decision despite the defect, to have effect from a time and on terms the court
considers appropriate.

"No time limit for applications

"11 An application for judicial review is not barred by passage of time unless

"(a) an enactment otherwise provides, and

"(b) the court considers that substantial prejudice or hardship will result to any other
person affected by reason of delay.

"Summary disposition of proceedings

"13 (1) On the application of a party to a proceeding for a declaration or injunction,


the court may direct that any issue about the exercise, refusal to exercise or proposed
or purported exercise of a statutory power be disposed of summarily, as if it were an
application for judicial review.

"(2) Subsection (1) applies whether or not the proceeding for a declaration or
injunction includes a claim for other relief.

"Sufficiency of application

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"14 An application for judicial review is sufficient if it sets out the ground on which
relief is sought and the nature of the relief sought, without specifying by which
proceeding referred to in section 2 the claim would have been made before
February 1, 1977.

The Speaker believes that there existed a statutory duty of care by the Master
to judicially review petitions made by a prisoner for any interlocutory
order or such other procedural relief or judgment. The Master allowing the
prisoner's applications according to the circumstances of the petitioner, the
court finding a reasonable judicial remedy and procedural remedy to the
limitations imposed by such circumstances as indigence and the
deprivation of liberty. The order, as stated earlier, was unreasonable in that
it placed a reverse onus on a petitioner seeking the procedural relief from
an "afflictive state", such relief first necessary to having his applications
heard. The Master directing an indigent person retain an attorney to speak
to an indigence application is mildly somewhat paradoxical, as it is
equally unreasonable to place a reverse onus on a prisoner to find his own
way before the court from a penitentiary. The Master had placed no onus
on the state agency responsible for these factors and a party to the
proceedings.
On appeal of the Master's order and request for judicial review, it appears that
the principle, if any, procedural grounds for the Chambers Judge to refuse
such a review of the Speaker's petition are to be found under s. 9(1) (b)
above, the petition as made having failed to show adequate grounds. The
purpose of the present application before the Appeal Court is to
demonstrate the alternative, that the Master's order was unreasonable and
therefore substantially wrong and a miscarriage of justice. The petitioning
plaintiff/prisoner should have been provided the judicial review requested,
notwithstanding technical irregularities or the like.
IV.8.3.6 What Standard of Review to be applied to Applications of
"detached" Members of Society;
The Speaker alleges the Duty Master failed to observe a proper standard of
judicial review when dispensing with the Applicant/Prisoners various
interlocutory petitions. This reasoning on the Speaker's part is on valid if
review was available to the Speaker as he alleges above.
Issues of availability of judicial review, the standing of the Speaker to seek
review, and the timeliness of the application are questions of jurisdiction.
If judicial review of the applications returned by the Master was available
to the Speaker as a plaintiff, then the scope of review and whether the
Master erred are questions of law. The standard of review of the ruling of
the Chambers Judge is correctness.

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The Speaker hopes to persuade the Court of Appeal to disagree with the
conclusion of His Lordship Edwards, J., finding it to have been an error in
judgement to have allowed, as a condition to judicial review hearing, the
requirement that an indigent prisoner either appear before the court or hire
a lawyer to do so, His Lordship wrongly holding that a Rule 53(6), Rules
of Court, application and an s. 24(1) Charter complaint are not open to
judicial review under the Rules of Court if persons are unable to appear or
retain an attorney solely on account of imprisonment and indigence.
The Speaker reasons that a person deprived of liberty makes his or her
application for judicial relief as an attempt to speak in a prosopopoeia
form to the court. The government does not afford prisoners any other
practical possibility. Ergo the legal effect of the Master's order was
unreasonable since it asked the impossible, therefore the Chambers Judge
judgement was in error, the order and decision denied the Speaker, a
prisoner, a Charter guaranteed right to prosecute or obligation to defendant
his interests in a law suit before the trial court.
It was instructive to the Speaker to read the learned L'Heureux-Dubé, J., in R.
v. Power (E.) , [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R.
269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, at 15 [C.C.C.], from where it
appears that prosecutorial discretion also "is especially ill- suited to
judicial review". The finding in Osiowy v. Linn, P.C.J. (1989), 77 Sask.R.
1; 50 C.C.C. (3d) 189 (C.A.), and the Saskatchewan Court of Appeal that
the discretion of the Attorney General to stay a private prosecution is not
reviewable "in the absence of some flagrant impropriety on the part of the
Crown officers" (per Vancise, J.A., at 191 [C.C.C.]). This case law leads
the Speaker to reason that the discretion exercised by the Duty Master
under the impugned Rule 41(16.5) (b)) is in many ways analogous to the
prosecutorial discretion found in the criminal process, and to be especially
ill suited to appellate review. The language under which the Duty Master
made his decision required the Master only make a choice between
making an order (Rule 41(16.5)(a)) on the application or requiring the
application "spoken to" (Rule 41(16.5)(b)) in proprio person of the
applicant. This requirement is applied to all persons at the discretion of the
Master. However, equal application does not guarantee equal results on
application to all circumstances, and on application to prisoners the effect
of application defeats the intent of the legislation, practical limitations of
prisoner demand that a prisoner to first prosopopoeia before the court.
The Duty Master's order in effect terminated any further possible prosecution
or defence of the law suit by the Speaker before the trial court. The
Chamber Judge had already made the same determination.
IV.8.3.7 Judicial Review

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Availability of Judicial Review is discussed in Rizzo & Rizzo Shoes Ltd.
(Bankrupt), Re , [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, at 41
[S.C.R.], Iacobucci, J., speaking for the Supreme Court of Canada,
referred with approval to the approach to statutory interpretation
enunciated by Driedger in Construction of Statutes (supra), writing for the
court: "He recognizes that statutory interpretation cannot be founded on
the wording of the legislation alone" and goes on to cite R. v. Hydro-
Quebec , [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric
Corp. , [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank , [1996] 3
S.C.R. 550; Friesen v. Canada , [1995] 3 S.C.R. 103.
The Supreme Court of Canada in Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police and Ontario (Attorney General) ,
[1979] 1 S.C.R. 311; 23 N.R. 410 and Martineau v. Matsqui Institution
Disciplinary Board , [1980] 1 S.C.R. 602; 30 N.R. 119, held that judicial
review is available with respect to any decision affecting rights, liberties,
privileges, or property, irrespective of its classification as an
administrative or quasi- judicial function: see Knight v. Board of
Education of Indian Head School Division No. 19 , [1990] 1 S.C.R. 653;
106 N.R. 17; 83 Sask.R. 81 and Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22. The Speaker had a
right to a judicial review of his applications conducted according to
circumstances of his imprisonment.
In Rizzo & Rizzo Shoes Ltd. supra, the learned Iacobucci, J found, as the
Speaker is attempting to enunciate here, cannot be interpreted "on the
wording of the legislation alone" as found in the rules the Chamber Judge
refused the Speaker a judicial review of his appeal from the Master's
unreasonable order. In Nicholson supra, and Knight supra, the Supreme
Court of Canada held that "judicial review is available with respect to any
decision affecting rights, liberties, privileges, or property, irrespective of
its classification as an administrative or quasi- judicial function". The
Master order and application of the said Rule 41(16.5) (b) to the Speaker
was a quasi-judicial decision. It acted to deter, in fact to absolutely deny, a
prisoner, this Speaker, from the availability of his right to judicial review
of applications or complaints.
IV.8.3.8 Does the Impugned Act (Rules) Offend Section 15(1)?

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The Speaker, before proceeding to the s. 1 Charter question, as the
Honourable Court recall the September 9, 1999, reason released by the
Supreme Court of Canada in Public Service Employee Relations
Commission (B.C.) v. British Columbia Government and Service
Employees' Union , [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161;
207 W.A.C. 161 ( MEIORIN). Madam Justice, McLachlin, J. (for the full
court), in her reasons did once and for all abolished distinctions between
"direct" and "indirect" discrimination. Again on December 16, 1999, the
Supreme Court of Canada released its decision in Superintendent of Motor
Vehicles (B.C.) v. Council of Human Rights ( B.C.) , [1999] 3 S.C.R. 868;
249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280 ( Grismer). McLachlin,
J. (for an unanimous 7 judge court), enunciate that [at p. 880, quote
unverified by the speaker]:
"Meiorin announced a unified approach to adjudicating discrimination claims under
human rights legislation. The distinction between direct and indirect discrimination
has been erased. Employers and others governed by human rights legislation are now
required in all cases to accommodate the characteristics of affected groups within
their standards, rather than maintaining discriminatory standards supplemented by
accommodation for those who cannot meet them. Incorporating accommodation into
the standard itself ensures that each person is assessed according to her or his own
personal abilities, instead of being judged against presumed group characteristics.
Such characteristics are frequently based on bias and historical prejudice and cannot
form the basis of reasonably necessary standards. While the Meiorin test was
developed in the employment context, it applies to all claims for discrimination
under the B.C. Human Rights Code."

"Once the plaintiff establishes that the standard is prima facie discriminatory, the
onus shifts to the defendant to prove on a balance of probabilities that the
discriminatory standard is a BFOR [a bona fide occupational requirement] or has a
bona fide and reasonable justification. In order to establish this justification, the
defendant must prove that:

"(1) it adopted the standard for a purpose or goal that is rationally connected to the
function being performed;

"(2) it adopted the standard in good faith, in the belief that it is necessary for the
fulfillment of the purpose or goal; and

"(3) the standard is reasonably necessary to accomplish its purpose or goal, in the
sense that the defendant cannot accommodate persons with the characteristics of the
claimant without incurring undue hardship." [See also: Entrop et al. v. Imperial Oil
Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.).]

[Emphasis and [ ] Added - Mine]

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The present appeal is brought as a case of indirect discrimination affecting a
specific group to which the Speaker belongs. It was so argued before the
Chambers Judge and is done so again now. The Speaker does not believe
that the abolition in MEIORIN of a distinction between direct and indirect
discrimination will greatly affect the result of his appeal, however the
words and reasons found there give substance to his analysis and
arguments.
It is for these reasons the Speaker suggests this first factor: Whether the point
on appeal is significant both to the litigation before the trial court and to
the practice in general can be disposed of by relying on the previously
cited Smith v. Ontario (AG) supra. The intended point advances to the
Court of Appeal a theory that the Speaker is a member of a small group of
incarcerated and impoverished Canadian citizens that are "exceptionally
prejudiced", more than any other citizen, in the application of the
impugned Rule 41(16.5)(b), Rules of the Court.
IV.8.3.9 Do the Impugned Rules Offend Section 15(1) Beyond the
Extent of the Freedom Guaranteed Under Section 1?
The next, and penultimate, question that can be applied to the impugned rules
and the order appealed, is whether the prohibition imposed, here on a
indigent prisoner, can be said to be reasonable and demonstrably justified
in a free and democratic society such that the offended freedom is beyond
Charter guarantee. It appears that the liberal interpretation afforded the
Charter on the authorities ensures that most constitutional challenges to
legislative prohibitions will be fought on this question -- the s. 1 question.
In the Speaker's view on the first question of s. 1 of the Charter, does not
include limits beyond those prescribed in law or by the sentencing court.
This is substantially defeated in the cases where the fundamental rights of
equal justice has been considered in the context of national legislation and
international law that prohibits a government agency from limiting a
prisoners access to a court of civil or criminal law. If such legislation
exists it has been consistently struck down as unconstitutional even though
it served to only prohibit an abuse of process or serve the interest of
economics and efficiency. However, when such legislation is so broad that
it results in distinguishing between those who are and those who are not to
access law in the province where the Rules were made such legislation is
intrinsically wrong.
There is sound reason why the prohibition that applications only be spoken to
in person or through counsel should fall within the sphere of the limits on
freedom enshrined in s. 1. Of course, whether, they should be restricted,
and the extent to which they should be restricted, arises later in the Charter
analysis under s. 1.

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On the second question to be addressed at this point in the analysis -- neither
the purpose nor the effect of the impugned Rules is to prohibit
incarcerated and indigents their access to the courts is, in my view, only
well well-founded as to the issue the effect and not the purpose. The
Speaker considers this line of authority sufficient for him to believe the
first question disposed of and what must be addressed in determining
whether the impugned Rules offend s.1. of the Charter.
Of course the question now arises of whether indigent prisoners should in fact
be restricted, and the extent to which they should be restricted, this comes
later in the Charter analysis under s. 1. The Speaker's position on this
second question is, at this point in the analysis; that the purpose of the
impugned Rules is not to prohibit indigent prisoners from the civil activity
of prosecuting their law suits to the fullest extent possible under the law; it
is the effect however that proves prohibitive. Is the Speaker's position
well-founded?
The Speaker contends that the reasonable limits imposed by government on
incarcerated citizens’ rights are to deprive him or her of their liberty in
pursuit of the common purpose of protecting society and providing some
remedial social benefit. That the government’s right to limit the Charter
right of liberty is not an untrammelled freedom to limit a prisoners other
Charter guarantees. Having been deprived of a right to liberty cannot be
regarded as granting a freedom to other government agencies to pursue a
policy having a result to further limit other rights under law, if it were so,
such a freedom would render illusory and wholly ineffective the s. 15(1)
Charter rights that are held to be in the public interest. Such a practice by
government would ensure that only those citizens remaining at liberty or
alternatively having financial resources are considered be equal before the
courts of law.
The importance of this aspect of the analysis was enunciated by Dickson
C.J.C. in Big M Drug Mart, supra, at 331:
"In my view, both purpose and effect are relevant in determining constitutionality;
either an unconstitutional purpose or an unconstitutional effect can invalidate
legislation. All legislation is animated by an object the legislature intends to achieve.
This object is realized through the impact produced by the operation and application
of the legislation. Purpose and effect respectively, in the sense of the legislation's
object and its ultimate impact, are clearly linked, if not indivisible. Intended and
actual effects have often been looked to for guidance in assessing the legislation's
object and thus, its validity.

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At least with respect to the impugned parts of Rule 41, it appears to the
Speaker that one intended purpose was to prohibit abuses of the courts
resources and to serve justice by requiring certain applications be brought
in proprio person of the applicant before a Master or Judge and then
"spoken to", the impugned part of Rule 41 promulgated as one constituent
element in the administrative dispensation of frivolous applications. The
purpose of the impugned Rules is plainly to create a barrier or prohibition
to frivolous procedural activity by lay litigants and to limit the courts need
to process such applications. But even if that is not right, the unquestioned
effect of Rules 41(16.5) (b) on its application to the indigent prisoner is to
prohibit him or her from prosecuting their law suit to the fullest extend
provided for in law, this prohibition having no regard, as indicated, to the
merits of any such returned application, instead it relies on an appearance
presence before the court. Indeed, on application to an indigent prisoner,
such a prohibition is virtually absolute in its effect.
The view from the Speaker's perspective as a lay litigant and the effected
party, is that on any application of the Rules of Court by a Master or
Chambers Judge, there should always be adopted a broad purposive
approach [see: Interpretation Act c. I-21 R.S., c. I-23 Section 12] to give
full effect to the intent of any provision found in the Rules [see, mutatis
mutandis: Association of Professional Engineers, Geologists and
Geophysicists ( Alta.) v. Interprovincial Pipeline Ltd. (1988), 88 A.R. 395
(C.A.)] and the possible effects of its application.
This purposive approach, the Speaker believes, should be employed in the
present enquiry on interpreting the intent and the effect of the impugned
provision ( Rule 4(16.5)(b)) of the Court Rules Act [RSBC 1996] c. 80,
Rules of Court, or alternatively any decision or practice (the Duty Masters
Order) grounded on the impugned part of the provision applied. Always
bearing in mind the considerations given by the Supreme Court of Canada
to any such analysis of intent or effect.
A point on appeal is that the impugned enactment proves an absolute
administrative deterrence. It appears, from the case at bar, that this
deterrence is the standard practice of a Master or Chambers Judge and
indirectly discriminates only against a person deprived his liberty and
property. Such person is provided no procedural remedy by the impugned
enactment, and is refused the means to prosecute or defend as a party to a
law suit before a trial court of Canada. There can be no doubt to the
Speaker as to the significance of the point to the proceeding before the
trial court.
IV.8.3.10Vagueness

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Vagueness is an additional factor that influences the Speaker's present inquire
into the impugned Rules, a law may be so vague as to be found to be
unconstitutional if it "so lacks in precision as to not give sufficient
guidance for legal debate", or "does not sufficiently delineate any area of
risk, and thus can provide neither fair notice to the citizen nor a limitation
of enforcement discretion" as enunciated by Gonthier J. in R. v. Nova
Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 639, 643. The Court
says at 630:
"For the sake of clarity, I would prefer to reserve the term "vagueness" for
the most serious degree of vagueness, where a law is so vague as not to constitute a
"limit prescribed by law" under s.1."

and at 632:

"As was said by this Court in Osborne and Butler, the threshold for finding
a law vague is relatively high. So far discussion of the content of the notion has
evolved around intelligibility."

Again at 627 the factors to be considered in determining whether a law is vague:

"(a) the need for flexibility and the interpretative role of the courts;

"(b) the impossibility of achieving absolute certainty, a standard of


intelligibility being more appropriate; and

"(c) the possibility that many varying judicial interpretations of a given


disposition may exist and perhaps coexist.

A further analysis is found in Ontario v. Canadian Pacific Ltd., [1995] 2


S.C.R. 1031 at 1070, Gonthier J. added a further feature:
" Vagueness must be assessed within a larger interpretive context developed
through an analysis of considerations such as the purpose, subject matter and nature
of the impugned provision, societal values, related legislative provisions, and prior
judicial interpretations of the provision.'

Vagueness was considered with overbreadth in R. v. Heywood, [1994] 3


S.C.R. 761, there the Supreme Court of Canada said at p. 792:
" Overbreadth and vagueness are different concepts, but are sometimes
related in particular cases. As the Ontario Court of Appeal observed in R. v. Zundel
(1987), 58 O.R. (2d) 129, at pp.157-58, cited with approval by Gonthier J. in R. v.
Nova Scotia Pharmaceutical Society, supra, the meaning of a law may be
unambiguous and thus the law will not be vague; however, it may still be overly
broad. Where a law is vague, it may also be overly broad, to the extent that the ambit
of its application is difficult to define. Overbreadth and vagueness are related in that
both are the result of a lack of sufficient precision by a legislature in the means used
to accomplish an objective. In the case of vagueness, the means are not clearly
defined. In the case of overbreadth the means are too sweeping in relation to the
objective."

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The Speaker believes the words found in Rule 41(16.5) (b) that "applications
be spoken to" are most certainly and intentionally vague, when applied to
the circumstances of an indigent prisoner the words become ambiguous,
confusing and "so lacks in precision as to not give sufficient guidance for
legal debate” as to the method "applications be spoken to" by an indigent
prisoner. There few such methods are found among the provisions of the
impugned Rules as to how an indigent and imprisoned person is to comply
with the words. It is this reason the Speaker believes the factors
enunciated by Gonthier J. in R., supra, items (a), (b) and (c) are satisfied.
At least to this Speaker he can say the impugned part of Rule 41 is
"vague" since it puts forth no identifiable or intelligible means of
compliance for a prisoner stripped of his self-determination and living in
poverty.
IV.8.3.11S. 1 Overbreadth
Another argument is overbreadth and this comes down to a concern by the
Speaker that at any time a person is deprived of his or her liberty by way
of judicial order or sentence, he or she, following the loss their liberty,
does not under any provision of the impugned Rules or other enactment
retain those procedural possibilities or civil liberties available to other
citizens, such as the right to represent oneself in a law suit or to prosecute
ones civil claims or complaints before a Master or Judge, the impugned
Rules, as law, are so over broad as to omit procedures for indigent
prisoners to have a means to comply with that law, and are unable to
regain their civil liberties to sue or respond in a law suit or other
procedural rights before the court until regaining their liberty or a Master
or Chambers Judge reached the opinion in proprio motu that a prisoner is a
significant party to his or her own law suit to be order summoned under
provision of Rule 40(40), Rules of Court as a witness to the proceedings.
At the risk of being redundant this is truth and heart of the present inquiry,
prisoners who bring law suits, whether they may or may not have a
reasonable claim or possibility for their law suit to succeed before the trier
of the facts, are nonetheless absolutely prevented from pursuing or
responding to any such claim before the courts, notwithstanding the
merits. This process of deterrence of prisoners in prosecuting civil law
suits appears to be predicated on the assumption that all "applications be
spoken to" only in the person of the prisoner or a lawyer, otherwise not at
all or until such time a Duty Master or Chambers Judge decides otherwise.

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Any overbreadth analysis must look at the means in relation to its purpose.
Are the methods chosen necessary to achieve a state's objective? Here the
Duty Master, and it can be said the "State", pursued a legitimate objective
under the impugned Rules. However, its is the State that has allowed the
impugned provisions of Rule 41(16.5)(b) to be much to broadly applied to
all members of society, far more than what is necessary or even possible to
accomplish the objective of the Rules as previously mentioned. This
overbreadth affects individuals, even groups, in different ways, and results
in the case of indigent prisoners in the principles of fundamental justice
being violated because the individual's rights will have been limited for no
reason. The effect of overbreadth is that in some applications the law is
arbitrary or, as is the case here, the effect is disproportionate.
What is at issue in the enquire here is the balancing of the State interest
against that of the individual, see inter alia authorities: Rodriguez v.
British Columbia (Attorney General), [1993] 3 S.C.R. 519, per Sopinka J.,
at pp. 592-95; R. v. Jones, [1986] 2 S.C.R. 284, per La Forest J., at p.298;
R. v. Lyons, supra, per La Forest J., at pp. 327-29; R. v. Beare, [1988] 2
S.C.R. 387, at pp. 402-3; Thomson Newspapers Ltd. v. Canada (Director
of Investigation and Research, Restrictive Trade Practices Commission),
[1990] 1 S.C.R. 425, at pp. 538-39; and Cunningham v. Canada, [1993] 2
S.C.R. 143, at pp. 151-53. However, where an independent principle of
fundamental justice is violated, as the right to natural justice, then the
balancing of the interests must take place under s.1 of the Charter, see as
authority: Re B.C. Motor Vehicle Act, supra, at p.517; R. v. Swain, [1991]
1 S.C.R. p.933, at p.977.
The Speaker argues in the alternative that if s.1 could not justify such a
violation on the basis of the vagueness or overbreadth arguments, it could
on the basis of onus. In Lavigne v. Ontario Public Service Employees
Union, [1991] 2 S.C.R. 211 at 292, Madam Justice Wilson said:
" Obviously, where other means present themselves which would achieve the
same objective with less intrusion upon entrenched constitutional interests, such
means are to be preferred."

In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at 889:


"[T]here must be a proportionality between the deleterious effects of the
measures which are responsible for limiting the rights and freedoms in
question and the objective, and there must be a proportionality between
the deleterious and salutary effects of the measures" The Speaker's
position that Rule 41(16.5)(b) on application to an indigent prisoner
cannot be said to be proportional to its legislative objective, this reasoning
comes from applying a negative test. The deleterious effect is that there is
a real potential that persons who do not poses their liberty freedom or
property are being curtailed simply because of the negative test itself. That
is, because they were simply unable, given their lack of resources, their
liberty, funds, etc., to discharge the burden that Rule 41(16.5) (b) places
upon them.

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This deleterious effect on the Speaker or any person having the same status
obviously far outweighs any benefit that the courts or might society
receive. In the Speaker's lay opinion a reformulated positive test would,
from his perspective as the effected party, could just as successfully
achieve the legislative objective.
A question to the Court of Appeal might well be the amount of deference it
should give to the Rules. The court in Irwin Toy Ltd. v. Quebec (Attorney-
General), [1989] 1 S.C.R. 927, appears to say that the deference afforded
to the State might vary if the competing interests are between individuals
or groups or, the state and an individual as it might be in an ordinary
criminal law case were the deference is generally greater [see: R.S.
MacDonald v. Canada (Attorney-General), [1995] 3 S.C.R. 199 and in
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.]
Rule 41(16.5) (b) imposes no greater as onus on the effected party except to
"speak" to his or her application. The Speaker has recognised this
throughout his analysis and argument. What he argues is this seemingly
benign requirement of this provision creates the "effect" of a reverse onus
on presentation of this requirement to indigent prisoners who are
physically (no liberty) or financially disadvantaged, and unable to do more
than furnish evidence or information as necessary in writing for a judicial
review, and the Master or Chambers Judge should be satisfied with this as
the only affordable possibility to the prisoner. The following from R. v.
Lyons (1987), 37 C.C.C. (3d) 1 at p. 45, 44 D.L.R. (4th) 193, [1987] 2
S.C.R. 309 is helpful: "It is also clear that the requirements of fundamental
justice are not immutable; rather, they vary according to the context in
which they are invoked. Thus, certain procedural protections might be
constitutionally mandated in one context but not in another."
As has been discusses early imprisonment is a distinct and afflictive state. On
application of the impugned Rules this distinction imposes a
disproportionate burden, obligation or disadvantage that is not imposed
upon others. In other words, as the Speaker has claimed previously it is
discriminatory.
According to the learned Afforest J. that is not the end of the matter. Writing
in Egan, [1995] 2 S.C.R. 513 at p. 529:
"Not all distinctions resulting in disadvantage to a particular group will constitute
discrimination. It would bring the legitimate work of our legislative bodies to a
standstill if the courts were to question every distinction that had a disadvantageous
effect on an enumerated or analogous group. This would open up a s. 1 inquiry in
every case involving a protected group.

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Further analysis is required, and with respect to an s. 1 inquiry the Supreme
Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 at 135-39. Rocket,
supra, and RJR- MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199 ("RJR") provides instructive structured illustrations in the
context of violations of freedom of expression, s. 2(b). This structured
analysis appears to apply to the present enquire, and provides two central
criteria that the Speaker considers he should address: rationality and
proportionality.
Before proceeding it is significant to identify what, exactly, is the freedom the
impugned Rule is supposed to limit. Here the process is complicated by
the fact that no freedom is offended by the impugned part of the Rules
except in the rare occasion of its application to a prisoner who happens to
be indigent or seeks to act before the court in his or her own behalf. Only
then does the offence against the Charter guaranteed freedoms of s. 15(1)
manifest itself in the effect of the application. Only then does it become
subject to s. 1 analysis.
The Speaker found, mutatis mutandis, the conclusion of the Honourable
Cromwell, J.A. most illuminating as to the difficulties of prisoners, in R. v.
Wood (J.D.) (1999), 180 N.S.R. (2d) 110 (CA); 557 A.P.R. 110, His
Lordship of the Nova Scotia Court of Appeal said; "The appellant is not
represented by counsel and, therefore, it being a prisoner's appeal, it is the
responsibility of the Crown to prepare the appeal book for use of the
court." In a civil proceeding the Crown, rightly, has no such burden, but
instead a duty to avoid legislation so vague or overbroad as to have a
deleterious effect only on a prisoners' fundamental rights.
This, according to R. v. Oakes supra, requires that first the legislative
objective must be rationalized as being sufficiently pressing and
substantial to justify the limitation imposed on the freedom impaired. The
second raises three questions aimed at a determination of whether the
measures chosen are proportional to the objective, those are :
Are the measures rationally connected to the objective;

Do the measures impair the freedom in question in the least drastic manner
necessary to achieve the objective; and,

Do the benefits derived outweigh the inherently deleterious effects of the


infringement on the enshrined freedom.

The need for a flexible application of the Oakes test in the context of each
case, was discusses in RJR, McLachlin J., writing for the majority,
described the s.1 inquiry as follows (para. 133):

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" That the s. 1 analysis takes into account the context in which the particular
law is situate should hardly surprise us. The s. 1 inquiry is by its very nature a fact-
specific inquiry. In determining whether the objective of the law is sufficiently
important to be capable of overriding a guaranteed right, the Court must examine the
actual objective of the law. In determining proportionality, it must determine the
actual connection between the objective and what the law will in fact achieve; the
actual degree to which it impairs the right; and whether the actual benefit which the
law is calculated to achieve outweighs the actual seriousness of the limitation of the
right. In short, s. 1 is an exercise based on the facts of the law at issue and the proof
offered of its justification, not on abstractions.

[Emphasis Added - Mine]

The Speaker has only his reason and logic to rely on for justification. His
constitutional claims are a matter of the evidentiary proof found in the
opprobrious effect that the impugned prohibition has affected when the
Duty Master applied the impugned rule to a prisoner as he would have any
other person.
Here the Speaker, as a lay litigant admits his confusion as to what authority
bears the burden of proving, on a balance of probabilities, the extent to
which a Charter freedom of a prisoner when offended is reasonable and
demonstrably justified in a free and democratic society [see: Oakes, supra.
(pp. 136-37)] Thus, in defending the Rules or in the application of the
impugned rule to an indigent prisoner, it appears that some authority must
come forward and prove that all of the elements of the two criteria
repeatedly enunciated by the Supreme Court of Canada as in are satisfied.
But, unhappily, this approach to what appears to be the pivotal question
here is absent from the order made by the Duty Master or the decision of
the Chambers Judge. It seems to the Speaker somewhat superficial to deny
so absolutely to a prisoner what are his fundamental civil rights and to do
so without benefit of explanation or regard to the legal effect of the order
on application of the impugned rules to a person so obviously unable to
comply.
In RJR, McLachlin J. considered that the degree of deference to be afforded a
law-making body must depend on the social context in which the rights
are limited, with a caution that deferential scrutiny may sometimes mean
no scrutiny at all (para. 136):
" ... care must be taken not to extend the notion of deference too far.
Deference must not be carried to the point of relieving the government of the burden
which the Charter places upon it of demonstrating that the limits it has imposed on
guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the
appropriate response to social problems within the limiting framework of the
Constitution. But the courts also have a role: to determine, objectively and
impartially, whether Parliament's choice falls within the limiting framework of the
Constitution. The courts are no more permitted to abdicate their responsibility than is
Parliament. To carry judicial deference to the point of accepting Parliament's view
simply on the basis that the problem is serious and the solution difficult, would be to
diminish the role of the courts in the constitutional process and to weaken the
structure of rights upon which our constitution and our nation is founded."

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[Emphasis Added - Mine]

The Speaker's reasoning and interpretation of the language used by the learned
McLachlin J. leads him to the conclusion that the same must hold true in
respect of the Duty Master or the Chambers Judge on application of the
impugned rule to an indigent prisoner. Having carried their judicial
deference to the point of abdicating their constitutional duty to the
Speaker, both having simply accepted the view that the impugned Rules
applied to all classes of person, showing no deference to the evidentiary
facts proving circumstances of a physical, property or other afflictive
limitations that, like imprisonment, acted as the primary "non-
government" prohibition to the realising their s. 15(1) Charter rights.
Thus while the importance of regulations and admirable goals of the
impugned Rules should be considered in the s. 1 analysis, McLachlin J.
held in RJR it does not relieve either the government or the court of the
burden of demonstrating its justification and application. Here the
application of the impugned rule to indigent prisoners is clearly an
invasive one, and there is nothing to prevent this Honourable Court from
striking such rule down or its application under such circumstances if
necessary.
The Speaker has taken a position that his evidence relating to international law
and the foreign jurisdiction of the Respondent is irrelevant and therefore
admissible in the present enquiry. Given the nature of an s. 1 inquiry the
Speaker believes such an analysis must be undertaken as well by the Court
of Appeal, the evidence referred to by Speaker is entirely probative of
whether the extent to which the impugned Rules infringe on his s. 15(1)
Charter rights in Canada before a Canadian court can be said to be
reasonable and demonstrably justified in a free and democratic society.
Here the conduct of the Respondent Bulgaria, as a "free and democratic
society" is evidence that establishes the existence of similar rules and
obligations for the Respondent government equal with those of the
government and courts of Canada and necessary to maintaining standards
of equality under law in both the jurisdictions of Bulgaria and Canada.
Any similar practice as that giving rise to this constitutional challenge and
appeal have been found to be an impediment to the fair and equal
dispensation of justice in the Republic of Bulgaria, with no offsetting
public interest benefits. There is no evidentiary reason that the Speaker
can advance that would suggest to him that there are for some reason
distinguishing considerations justifying the absolute prohibition on an
indigent prisoner in himself prosecuting his law suit up to and including
any trial before a court of British Columbia or Canada for that matter-- our
free and democratic society.
Such laws of the forum, "lex fori", while separate are not mutually exclusive
to the jurisdiction of either state and it is reasonable for the Speaker, if
granted leave to appeal, to apply both of the "lex fori" to of Canada and
Bulgaria to the point on appeal.

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This is not a wholly unreasonable proposition. On first reflection the effect
and omission of remedies to prisoners under the impugned Rules appear to
run in opposition to the constitutional and international law guarantees
afforded prisoners found in both Canadian and Bulgarian legislative acts.
The Speaker now returns to the two criteria of rationality and proportionality.
IV.8.3.12Rationality
A legislating body will rarely fail to demonstrate that an impugned prohibition
has a pressing and substantial object., legislative assemblies even more
rarely make rules that are prima facia irrational and devoid of any sound
objective. Big M Drug Mart, supra, where the legal imposition of Sunday
as a day of rest was abolished as contrary to the spirit of the Charter,
appears the significant exception in the case law.
Even if the Speaker as a lay litigant cannot comprehend the full legislative
history or legal rational behind the impugned rules, he can at least see that
Rule 41(16.5) (b) is rational. This criterion can therefore be immediately
disposed of in the affirmative; the rule in question has a rational intent
consistent with the Court Rules Act's statutory mandate. The Speaker
accepts that the first of the two criteria can be said to be satisfied.
However, it is the argument of the Speaker that impugned Rule 41 falls far
short of the second of the two criteria on the evidence of its effect when
applied to indigent prisoners. It is this which the Court of Appeal is asked
by the Speaker as petitioner to decide as a point which is unquestionably
of very great importance to the Speaker's litigation before the trial court,
and the Speaker believes the practice in general.
IV.8.3.13Proportionality
At the outset of my s. 1 inquiry, there were three questions to determining if
the measure employed by the Duty Master in application of the impugned
part of the Rule is proportional to its objective. A rational connection has
been established to its application. The objective is accepted as rational.
The question now is whether the measures employed on an indigent prisoner
furthered the objective of the Court Rules Act, Rules of Court, in a rational
way. Here the Speaker's answer to the Court of Appeal must be a flat and
absolute: No. The most laudable of goals can not save an ineffective or
irrational attempt to achieve them. Under no circumstances can it be an
effective or rational application of a measure of administrative or judicial
discretion to apply a Rule having as its' sole rational or objective to require
an appearance before the court of a person no longer possessed of his or
her self-determination, or to have a person possessed of no property retain
an attorney to appear, its application having as its' sole effect only to
virtually deny the existence of a prisoners s. 15(1) Charter rights before
the courts. There appears to be no public benefit to do so.

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Can it be said that the second burden is borne by the Duty Master of the court
to establish that the measure he employed when applying the impugned
part of the Rule to a prisoner was only to achieve its objective in the least
intrusive manner that will serve the purpose of the Rules. Again, the
Speaker asserts to the Appeal Court that the application of the impugned
rule by the Duty Master fails to meet the onus it bears. There is adduced
no evidence to discharge the Duty Master or the courts constitutional
burden and duty to the Speaker. The court is faced with unanswered
evidence based on the experiences in the Bulgaria with the Respondent
government and the conduct of its agencies. This evidence brought before
the trial court appears to the Speaker to be utterly defeating to any possible
argument that the purpose of Rule 41 was satisfied in the least intrusive
manner.
The Speaker had submitted to the trial court that the Rules of Court, and
principles of international law, offered far less drastic and more nuanced
means of securing the Court Rules Act and the Duty Master's goal far
better than a blanket prohibition by him against any hearing of all pre-trial
application made by an indigent prisoner except in that manner prescribed
by the court in virtually all other circumstances.
The third and final element the Speaker must analyse as a part of this enquiry
is the balancing of the benefit achieved by the application of the impugned
Rules against the negative effect of the infringed s. 15(1) Charter freedom
on a prisoner. This appears as the least developed and most difficult
jurisprudence because it is either non-existent or usually redundant. As
McLachlin J. stated in RJR (para. 175):
" Having found the requirement of minimum impairment is not satisfied it is
unnecessary to proceed to the final stage of the proportionality analysis under s. 1 --
balancing the negative effects of the infringement of the rights against the positive
benefits associated with the legislative goal. A finding that the law impairs the right
more than required contradicts the assertion that the infringement is proportionate."

It is difficult for the Speaker to rationally conclude that the application of


impugned part of the Rules to an indigent prisoner is proportional to its
objectives. Indeed, on the evidence the Speaker has adduced and the clear
effect of such an application on him, it becomes only too apparent that the
application of Rule 41(16.5) (b) to a prisoner is not proportional. It follows
that the virtually absolute infringement on a prisoners s. 15(1) Charter
rights created on application of the impugned part of the Rule cannot be
reasonable and demonstrably justifiable in a free and democratic society.
Simply put, the court cannot have it both ways. It cannot be heard to say that
the interest of justice requires an application be "spoken to" but then not
provide the means to the applicant to be heard. Nor can it say that it is
necessary to prohibit the Speaker from being heard in writing so in the one
instance to achieve the objective of economic and efficient dispensing of
justice to best serve the public interest but in the other fail to consider the
legal affect on an s. 24(1) Charter application.

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There is no evidence that the objective of the Rules could not have been met
by permitting the applications to be spoken to in writing. The court is no
stranger to such a practice when it is the only means made available to a
party and will see the objectives sought to be realized. It offers a far less
drastic and more nuanced means of securing the goals of the Rules than a
blanket prohibition against written applications from virtually all indigent
prisoners no matter where he or she is incarcerated.
Further, the impugned Rules fails to consider or provide any quantitative as
opposed to qualitative means of relief needed by the particular
disadvantaged group the Speaker identifies with. No where is there a
means provided in the impugned legislation to permit incarcerated and
indigent applicants to participate in civil proceedings, advancing or
defending their claims before the trial courts, if need be in writing only.
The alternative further "effect" of the impugned legislation is to continue to
require all prisoner applications to the trial courts be "spoken to" in
proprio persona of the petitioner or legal counsel, a practice clearly
prejudicing the s. 15(1) and s.24 (1) Charter rights of persons whose
appearance before the court is made physically and materially impossible
by the government. A prisoner cannot meaningfully apply under s.24(1) of
the Charter, any such petition becoming a meaningless exercise in futility
as the court will require, as the Chambers Judge here has done here, that
such s. 24(1) applications as well be "spoken to" in proprio persona of the
applicant or a lawyer.
All in all, to this Speaker, it would appear that as long as the impugned parts
of the Rules continue to be applied to prisoners without regard to the proof
of the circumstances of their imprisonment and poverty then the effect of
the impugned Rules will inevitably and always be an unfair and unequal
one that derogates from the principles of natural justice the Rules are
intended to protect.
For analysis of this second factor the Speaker attempted a different approach
relying on the fact the order was made on the basis of the impugned part
of Rule 41, Rules of Court, and the Court Rules Act [RSBC 1996] c. 80.

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here is no direction or guidance under the Rules of Court about the conduct of
a judicial review in camera on an application where the applicant has
afflictive circumstances (i.e. a prisoner) and is unable to comply with the
format of the hearing as practised by the Duty Master under Rule 41(16.5)
(b) or the format of review as practices by Chambers Judge under Rule
53(6). There is no express requirement under Rule 53 that Chambers
Judge hold a "hearing" as part of his review although one is implied under
subrule 53(8) of the Rules. If a Chambers Judge elects to receive further
submissions from a complainant in the context of an informal hearing,
there is nothing in the Rules, the purpose of the review, the nature of the
issue, or the impact of Chambers Judge's decision on the complainant that
imports a right to be represented by counsel under a Rule 53(6) appeal or
to receive reasons for Chambers Judge's decision. At least none that this
Speaker can comprehend.
The Speaker's position, and the point here, is that the Duty Master did not
observe the principles of fairness in the manner in which he conducted the
proceedings and arrived at the decision to return all the Speaker's
applications. The task of the Chambers Judge, on appeal was, in the
Speaker's opinion, in fact twofold. First, His Lordship Edwards, J. had to
determine whether judicial review was available in the circumstances of
an indigent prisoner unable to retain counsel when applying for, inter alia,
a remedy under s. 24(1) of the Charter. Second, if it was available, His
Lordship had to determine whether the Duty Master had owed a duty of
procedural fairness to the Speaker and, if so, the content of that duty and
whether it had been observed.
The learned L'Heureux-Dubé, J., when she considered the factors appropriate
to determining the content of the duty of procedural fairness in a given set
of circumstances by an agency or tribunal, could be applied, mutatis
mutandis to the present case. At paras. 23 - 27 she referred to the
following relevant factors: (i) the nature of the decision; (ii) the nature of
the statutory scheme and the terms of the statute pursuant to which the
body operates; (iii) the importance of the decision to the individual or
individuals affected; (iv) the legitimate expectations of the person
challenging the decision; and (v) the choice of procedure made, in this
instance by the Duty Master or the court itself, particularly where the
statute leaves that choice up to the Master or Chambers Judge. She said at
840-841 [S.C.R.]:
" I should note that this list of factors is not exhaustive. These principles all
help a court determine whether the procedures that were followed respected the duty
of fairness. Other factors may also be important, particularly when considering
aspects of the duty of fairness unrelated to participatory rights. The values
underlying the duty of procedural fairness relate to the principle that the individual or
individuals affected should have the opportunity to present their case fully and fairly,
and have decisions affecting their rights, interests or privileges made using a fair,
impartial, and open process, appropriate to the statutory, institutional, and social
context of the decision."

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The Speaker's position is one of reasonableness, he is asserting his interests
were adversely, and under the circumstances of his imprisonment and
poverty unreasonably, impacted by Duty Master's order and the Chamber
Judge's decision. The corresponding duty of fairness would, in the
Speakers view, not be limited to the informal hearing resulting in the in
camera decision to return all the applications and require an indigent
prisoner produce a legal representative before the Master. The afflictive
circumstances of the Speaker's imprisonment caused the proceedings to
involve what became a final determination by the Duty Master, and then
the Chambers judge of the Speakers rights under law, as a prisoner, to
prosecute his law suit. It placed the Speaker's family, their reputation, their
well being, property or other rights in jeopardy: see, mutatis mutandis,
Kane v. Board of Governors of the University of British Columbia , [1980]
1 S.C.R. 1105; 31 N.R. 214, at 1113 [S.C.R.]; Hutfield v. Fort
Saskatchewan General Hospital District No. 98 (1986), 74 A.R. 180
(Q.B.).
To balance his reasoning the Speaker considered Pagliaro v. College of
Psychologists (Alta.) (1997), 214 A.R. 217 (Q.B.), where the court there
held that no duty of procedural fairness was present in cases where
substantive rights, such as employment, are not affected. Going on to say
that if there was a duty of fairness it would be at the low end of the
spectrum, such that notice of the hearing and the opportunity to be heard
would be sufficient to satisfy the duty. Here the proceedings before the
Duty Master, and on appeal under Rule 53(6) the Chambers Judge,
concerned substantive rights of the person that flow from the principles of
international law into the legal framework of Canadian society, such that
far more was required than a notice and hearing. In the Speaker's analysis
of what is significant is that even this "low end of the spectrum" of duty to
fairness, requiring “a notice and hearing" as referred to in Pagliaro supra,
and as contemplated in Rule 53(8), was not satisfied by the Chambers
Judge.
It appears both the Master and the Chambers Judge reached a conclusion that
all prisoners who make applications in civil proceedings will have the
possibilities to appear or if unable to appear, then the financial resources
necessary to comply with any requirement to retain an attorney. There is
no evidentiary justification or case law for either the learned Duty Master
or Chambers Judge having reached such a conclusion.
IV.8.3.14The Reasonableness of the Affect of the Duty Master's
Order;

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The thesis advanced is that the impugned order is unreasonable under the
circumstances of imprisonment and poverty. It is therefore in principally
wrong, for having as its immediate affect a quasi-judicial or administrative
deterrence to all men and women, as the Speaker, whose self-
determination has be taken from them by a person holding them prisoner.
The Speaker is effectively excluded from "participatory rights" in his own
law suit, the impugned order acts as a barrier denying even the remotest
possibility to seek a procedural remedy as relief from the practical
difficulties of a prisoner to bring his legitimate claims before the trial
court. This effect is solely the result of his status in society as an indigent
and imprisoned person. It is appears on the surface to be not an
unreasonable proposition to suggest that the impugned order, possibly the
Court Rules Act [RSBC 1996] c. 80, Rules of Court, as having unfair
effect that limits incarcerated citizens from fully acting out their on right
to sue, as well as their right to defendant a when sued.
The learned Iacobucci, J., in Director of Investigation and Research,
Competition Act v. Southam Inc. et al. , [1997] 1 S.C.R. 748; 209 N.R. 20,
at para. 57 discussed reasonableness and explained the difference between
two standards the Speaker is applying to the present review and did so in
the following terms:
" The difference between 'unreasonable' and 'patently unreasonable' lies in the
immediacy or obviousness of the defect. If the defect is apparent on the face of the
tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes
significant searching or testing to find the defect, then the decision is unreasonable
but not patently unreasonable."

The Speaker argues that the Duty Master's order is not only "unreasonable"
but is in fact, according to the analysis of Iacobucci, J., made "patently
unreasonable" on the evidence available to the Master of the Speaker's
imprisonment and indigence.
As a statutory delegate of authority, the Master had a duty to act reasonably
and the failure of His Lordship, when issuing an order that neither accept
to consider relevant factors of the plaintiff's personal circumstances
amounts to an unreasonable decision [see mutatis mutandis: Oakwood
Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2
S.C.R. 164; 61 N.R. 321; 36 Man.R (2d) 215; [1985] 6 W.W.R. 147; 18
Admin. L.R. 59, Madam Justice Wilson said at p. 69 that "the failure of an
administrative decision-maker to take into account a highly relevant
consideration is just as erroneous as the improper importation of an
extraneous consideration", and further citing as authority Lord Denning in
Baldwin & Francis Ltd. v. Patents Appeal Tribunal , [1959] 2 All E.R. 433,
at 447 (H.L.), where he said that "if a tribunal ... fails to take into account
a vital consideration which it ought to have taken into account, then its
decision may be quashed on certiorari and a mandamus issued for it to
hear the case afresh".]

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Also see, mutatis mutandis Service Employees' International Union, Local
333 v. Nipawin District Staff Nurses' Association et al. , [1975] 1 S.C.R.
382; 41 D.L.R.(3d) 6, Dickson, J. (as he then was), said at pp. 11-12:
" A tribunal may, on the one hand, have jurisdiction in the narrow sense of
authority to enter upon an inquiry but, in the course of that inquiry, do something
which takes the exercise of its powers outside the protection of the privative or
preclusive clause. Examples of this type of error would include acting in bad faith ...
[and] failing to take relevant factors into account."

In Danson v. Labour Relations Board (Alta.), Alberta Union of Provincial


Employees, Booth and Palmateer (1983), 47 A.R. 274; 27 Alta. L.R.(2d)
338 (Q.B.), Wachowich, J., adopts the above quotation and adds at p. 343:
" ...the failure of a decision-making body to consider relevant factors can
be 'patently unreasonable'." As further authorities see: Hawco, J., in Witral
Holding Ltd. v. Assessment Appeal Board (Alta.) et al. (1996), 189 A.R.
233, at 238 (Q.B.), finding that "[t]he failure of the Board in this case to
take the evidence above referred to into account is also sufficient, in my
respectful opinion, to grant the applicant's order." Rooke, J., also agreed in
Foothills Provincial General Hospital v. United Nurses of Alberta, Local
115 et al. (1993), 140 A.R. 321, at 330 and 339-340 (Q.B.), as did Fraser,
J., in Seneviratne v. Amalgamated Transit Union, Local No. 583 et al.
(1992), 130 A.R. 241, at 246 (Q.B.).
The Speaker can certainly sympathise with the frustration the Duty Master or
any judicial officer must feel in the face of applications made by lay
litigants. To be required, in camera, to review and rule on all such
applications having once been filed with the Registrar is admittedly an
inefficient use of time for a Master or Chambers Judge, inevitably leading
to delays in the hearing of applications having greater qualitative merit.
The Master's order to have such applications "spoken to" by the Speaker
as applicant is on the surface a reasonable one. This was discussed earlier.
However, this type of judicial discretion is of the technical, non-substantial
type which the Speaker argues is outside the concept of the Court Rules
Act and intent of the Rules to limit wasteful procedures. It fails to deal
with applications on their merits and becomes clearly unreasonable
because of the practical inability of any indigent prisoner to bring his
applications before the Master and "spoken to"; even a motion under 24(1)
of the Charter is as a result made impossible. In such cases it becomes
inevitable, where imprisonment acts as a physical deterrent, that such an
order of the Master will infringe a basic legal right.
There was a burden on the Speaker as the Applicant/Prisoner to adduce
evidence before the Master to support his motions and requests for
procedural relief, he met that burden. There was adequate evidence put
before the Master to allow him, acting judicially, to come to a conclusion
that any order requiring an indigent prisoner to appear before the Master
or hire an attorney had to be a "patently unreasonable" one.

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The Duty Master was inflexible, His Lordship exercise of a statutory
discretion and as a matter of law he may not fetter the exercise of that
discretion by the adoption of an inflexible policy, see: Lloyd v.
Superintendent of Motor Vehicles (B.C.) (1971), 20 D.L.R.(3d) 181
(B.C.C.A.), Veysey v. Correctional Service of Canada (1990), 109 N.R.
300; 43 Admin. L.R. 316 (F.C.A.), Kupczak v. Alberta et al. (1993), 146
A.R. 103; 13 Alta L.R. (3d) 284 (Q.B.) and Apotex Inc. v. Ontario
(Minister of Health) et al. (1995), 77 O.A.C. 360; 30 Admin. L.R. (2d) 259
(Div. Ct.). The Speaker does not advance a thesis that the adoption of a
general policy that "applications be spoken to" in proprio persona of the
applicant or his lawyer equates with the adoption of an inflexible policy,
only that it is essential is that each case be considered individually on its
own merits. The case presently before the Court of Appeal is
demonstrative or an "inflexible" as opposed to "general" policy.
IV.8.3.15Duty of Procedural Fairness
Although called an "appeal from Master", the right conferred on the Speaker
by under Rule 53(6) is no more than a right to have the administrative or
quasi-judicial decisions of the Duty Master under Rule 41(16.5)(b)
reviewed by a Chambers Judge. It is, in the Speaker's view, simply an
extension of the administrative or quasi-judicial processes of the court. In
such a case the Rules do not expressly or impliedly require a formal or
even an informal hearing. A complainant who elects to seek a judge's
review of such a decision by the Duty Master is apparently not permitted a
judicial review or to submit additional written or oral material by way of
written explanation or elaboration of his appeal. It proves, from the
Chambers Judge's decision in the case before the bar, that an indigent
prisoner as complainant is not entitled at this stage to seek any alternative
procedural relief in bringing his motions, he is required to either bring his
applications for relief before the court or is to be represented by counsel or
is subject to a general stay on all his motions until he appears before a
Master or Judge in order to substantiate the applications or complaint. Nor
is a complainant, here the Speaker, entitled to reasons for the Chambers
Judge decision to confirm the determination of the Duty Master.

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Before the motions judge, the Speaker had submitted on appeal that the
Master order under Rule 14(16.5)(b) cannot operate to bar indigent
prisoners, like the Speaker, from exercising his right of to prosecute a law
suit to the fullest extent of the law or to bring other complaints or secure
judicial remedies from the trial court, since it offended s. 15 of the
Canadian Charter of Rights and Freedoms by depriving indigent prisoners
from judicial recourse against the offending parties; among other remedies
sought by the Speaker, a request that he be conducted in custody before
the court by the defendant government, in the alternative that he be
allowed to proceed on his applications and motions only in writing before
the trial court, the court requiring the defendant government allow the
Speaker the facilities he needed in prison and consent to the additional
time required by a prisoner to organise his submissions of argument and
evidence, and the motions judge to hold that the Duty Master's order under
Rule 14(16.5)(b) to be of no force and effect with respect to indigent
prisoners, this Speaker, because it would breach a persons equality rights
solely for being indigent and in prison.
The motions judge did not deliver to the Speaker any careful or
comprehensive reasons for refusing to review his motions or the Charter
grounds of the appeal, this despite the Speaker's reliance as a prisoner on a
judicial remedy under s. 24(1) of the Charter, apparently the motions judge
not required by the Rules to do so when taking a decision to uphold the
order of the Duty Master that all the Speakers applications or motions be
spoken or alternatively be stayed.
The Speaker had understood that such a decision of His Lordship Edwards, J.
is a discretionary one, and the Court of Appeal will not substitute its
opinion for that of the Chambers Judge unless it can be shown that he was
clearly wrong [see: Morrison v. Bank of Montreal (1985), 69 B.C.L.R. 54
(C.A.)]. The Speaker believes it to be wrong for the preceding and
following reasons.
If it is assumed that the Speaker's applications to the Duty Master are
amenable to judicial review, then the issue for determination by the
Chambers Judge was whether the applications and complainants were
accorded procedural fairness by the Duty Master in the circumstances of
the incarceration and poverty of the petitioner. Judicial review appears
limited to a consideration of the content of Master's duty of procedural
fairness to the complainants and whether the duty was observed. With all
due respect to His Lordship, the learned Edwards, J., the Speaker believes
these issues were or should have been apparent, in that they were clearly
before the Chambers Judge and that the Speaker was entitled to a full
judicial review of the Master's order according to the Judicial Review
Procedure Act [RSBC 1996] c. 241 as follows:
"Definitions

"1 In this Act:

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"application for judicial review" means an application under section 2;

"Section 2 provides

"2 "(1) An application for judicial review is an originating application


and must be brought by petition.

"(2) On an application for judicial review, the court may grant any
relief that the applicant would be entitled to in any one or more of the proceedings
for:

"(a) relief in the nature of mandamus, prohibition or certiorari;

"(b) a declaration or injunction, or both, in relation to the exercise,


refusal to exercise, or proposed or purported exercise, of a statutory power.

"Power to refuse relief

"8 (1)....

(2) Despite subsection (1), the court may not refuse to grant relief
in a proceeding referred to in section 2 on the ground that the relief should have been
sought in another proceeding referred to in section 2."

What was before the Chambers Judge was an application for judicial review
under s. 24(1) of the Canadian Charter of Rights and Freedoms founded
upon an alleged infringement by application of Rule 41(16.5) (b) to an
indigent prisoner by the Duty Master Crown of the right of the Speaker
under the Charter, inter alia to make full answer and defence on a Rule 14,
Rules of Court motion filed by the Respondent Bulgaria.
In Knight , supra, L'Heureux-Dubé, J., observed at 682 [S.C.R.] that the
concept of the duty of procedural fairness there was discussed in the
context to be followed by a tribunal. The finding was that such duty is
variable and its content is to be determined "by reference to all the
circumstances under which the tribunal operates". She elaborated in Baker
v. Canada (Minister of Citizenship and Immigration), supra, there the
parties had found that a duty of procedural fairness applied to the
proceedings leading to the impugned decision. She said at 837 [S.C.R.]:
" The existence of a duty of fairness, however, does not determine what
requirements will be applicable in a given set of circumstances. As I wrote in Knight
v. Indian Head School Division No. 19 ... at p. 682, 'the concept of procedural
fairness is eminently variable and its content is to be decided in the specific context
of each case'. All of the circumstances must be considered in order to determine the
content of the duty of procedural fairness ...

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" Although the duty of fairness is flexible and variable, and depends on an
appreciation of the particular statute and the rights affected, it is helpful to review the
criteria that should be used in determining what procedural rights the duty of fairness
requires in a given set of circumstances. I emphasize that underlying all these factors
is the notion that the purpose of the participatory rights contained within the duty of
procedural fairness is to ensure that administrative decisions are made using a fair
and open procedure, appropriate to the decision being made and its statutory,
institutional, and social context, with an opportunity for those affected by the
decision to put forward their views and evidence fully and have them considered by
the decision- maker."

[Emphasis Added - Mine]

Key to the Speaker's points on appeal is the principle enunciated in Knight ,


supra, by the learned L'Heureux-Dubé, J., that the duty to fairness must be
"flexible and variable", appreciating the given set of circumstances, in the
case at bar the relevant afflictive circumstances are imprisonment and
poverty, the particular "rights affected" are the prisoner's' "participatory
rights" to "put forward their views and evidence fully and then considered"
by the Duty Master or on appeal the Chambers Judge. The point on appeal
is that the Speaker's "participatory rights" are unreasonably limited by the
impugned order and act.
As additional grounds for his appeal the Speaker asserts that there existed a
constitutional duty of the learned Chambers Judge to at least review and
apply the facts of the case to his Charter complaints. If the facts merited
the complaints then His Lordship had a duty to exercise the court's
jurisdiction and secure for the Speaker his Charter rights and those
guarantees provided in international law. The comity of nations not
withstanding a Charter or international law challenge.
In not doing so the Chambers Judge in the trial court erred in principle in the
exercise of his discretion to refuse the courts' inherent jurisdiction to allow
an incarcerated citizen to apply to the court in the only medium left to him
or her. The Speaker's circumstances as a prisoner permitted him only one
means of access to the court and of communicating his complaints to the
Chambers Judge. All other avenues to apply under s. 24(1) of the Charter
for an appropriate and just remedy in the circumstances were closed to the
Speaker by the Respondent.

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The Speaker respectfully advances the theory that questions raised are
substantial to the practice of law generally. The controversies arises over
the lower courts' apparent failure not only in the case at Bar, but generally
to refuse to secure or to allow for the practical means necessary to
incarcerated Canadian citizens to (1) pursue their legitimate civil claims
and (2) to apply under s. 24(1) Charter by the only medium left open to
them by the state. This refusal to allow citizens to prosecute their civil
complaints or apply under s. 24(1) of the Charter appears to be solely
because of their status as impoverished prisoners.
The impugned order's effect derogated from the rights of the Speaker, it
invokes an s. 15(1) Charter question in that the unintended effect of the
rule or enactment is to indirectly and unintentionally discriminate against
the equal rights of a small group of citizens to: (1) access the courts of
Canada: (2) prosecute their claims before the court: (3) obtain a hearing of
their Charter grievances, and: (4) obtain relief from wrongs they have
alleged in writing before a justice of the court. The group in question is
discriminated against in the courts literal application of the rule (Rule
41(16.5) (b)) solely due to fact that the depravation of their liberty
prevents them from acting in persona before the court, and their poverty
denies representation in proprio persona of an attorney.
The Charter question turns on the practical as opposed to theoretical equal
rights of prisoners under s. 15(1) to pursue civil claims before a court of
Canada. The substance of the intended appeal first suggests that the order
on appeal had the affect, if not the intent, to create a practical legal barrier
to an incarcerated and indigent citizen's applications to the Court.
The earlier constitutional question turned on the practical barrier being
unintentionally legislated into the rule (Rule 41(16.5)) or enactment (Rules
of Court) complained of as acting against the lawful right of incarcerated
and indigent citizens to prosecute their civil claims and to apply under s.
24(1) of the Charter. Application of the impugned rule or legislation has
resulted in an unintended practice of the courts to discriminate against a
party solely because the party applying before it happened to be an
impoverished prisoner and as such their application could not be "spoken
to" in proprio persona of the prisoner or of a paid legal representative.
To put it simply, it is a given that the object of the Rules of Court is to secure
just, speedy and inexpensive determinations of all proceedings before the
court. The Speaker has attempted to appreciate this fact in all his
applications. The real question becomes one of priority. Is "speedy and
inexpensive" to take precedence over "just"? There existed in the case at
bar a special onus on the trial court, especially where individual litigants
are representing themselves, that any order made by the Master and later
the Chambers Judge should have reflected the legal effect of the order
made.

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In the Speaker's naive view of the workings of justice there was a requirement
of the court not unlike that in an in absentia pre-trial proceeding. While the
Master or Chambers are not to look at all the material, or review all of it in
detail, as the trier of the issues might, there existed such unusual
circumstances in the applications themselves that it should have come, ex
proprio motu, to the court's attention. The facts of the Respondent's
conduct, and Speaker's incarceration and indigence having given the
Master and later the learned Chambers Judge sufficient cause to pause and
reflect on the legal effect of the order on the Speaker's s. 15(1) and s. 24(1)
Charter rights.
It was suggested that the order and Rule create barriers to equal justice and the
practice generally, raising the potential for conflict between the purposeful
dispensation of equal justice and administrative considerations of the
court.
If the impugned order and Rule violates s. 15(1) and s. 24(1) rights guaranteed
by the Charter. The Speaker's conclusion is, confined to the absolute
prohibitions for which the order provides as opposed to what he considers
a fundamental frailty in the Rule being overly broad. The Rule amounts to
what is a blanket prohibition, real or apparent, against virtually any
indigent prisoner's civil application whatsoever from being heard,
extending, as they do, to prohibiting them to apply under s.24(1) for
Charter relief of any kind before a Master or Chamber Judge of the
Supreme Court of British Columbia.
It does not follow, and the Speaker emphasizes that it would be wrong to
imply that there are no reasonable restrictions on the how applications are
to be "spoken to" by prisoners that could be demonstrably justified in this
province. That is obviously not the case, but, to the extent the Court sees
fit to prohibit applications, it must promulgate order and interpret the
Rules in such a way that can, if necessary, be properly proven to be both
rationally based and proportionally implemented.
As to what part, or if at all, the whole of the impugned Rule 41(16.5) (b) must
be struck down as invalid pursuant to s. 52 of the Constitution act, 1982 is
a matter beyond the Speaker and should, with deference, be left to this
Honourable Court to act as it may see fit based on its assessment of the
extent of the restrictions should be placed on incarcerated and indigent
applicants in civil proceedings before the courts that is dictated by this
constitutional challenge.

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IV.8.4The practical benefit to the parties of an
appellate decision
The practical benefit to the plaintiffs and Speaker is immediately apparent, as
is the prejudice to the Speaker in the absence of an appellant decision and
the relief the appeal seeks.
Any practical disadvantage to the Respondent could come only from an
appellant court decision to order the Speaker's appearance in custody at
hearings or trial or alternatively to order the Respondent to secure for the
Speaker another means to access the court. The former poses little
disadvantage in that although it is plausible in principle it is unlikely as a
practice. The latter, although more like an would most probably prove
unnecessary once the Speaker's right of access are recognised by the court.
In simple terms, the practical benefit of an appellant decision to the practice of
justice and to the case at bar is that an incarcerated and indigent Speaker
will be heard, say in writing. More importantly the Respondent and the
trial court will be required to recognise such right of prisoners to be heard
as equal to those of other citizens.
The relief sought from the trial court would allow the Speaker to prosecute his
claims before the court from prison.
Whether the appeal will unduly hinder the progress of the proceeding in the
trial court.
V The Relief Sought
The Speaker wishes to comply with the order appealed and to present his case
and arguments, in proprio person, before the court as might any other
citizen of the province who cannot or, at their own peril, does not wish to
retain legal counsel.
However, this Speaker can not of his own free will comply with the order
since the Defendant Bulgaria wishes under any and all circumstances to
confine the Speaker to the territory of the Republic of Bulgaria thereby
denying him access to the Court.

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As a result, if the Speaker will not be permitted to appear, then he seeks the
next and only alternative; to access the court in writing. This is the only
means left open to him by the Defendant Bulgaria. Therefore, the Speaker
seeks allowances from the Court such that would grant him sufficient time
to file and would cause the Defendant Bulgaria to secure for the Plaintiff
his right to access the necessary physical facilities and materials required
to bring for the Speaker to bring his lawful claims before a court of
Canada.
Such a requests to this Court are made necessary by the Defendant Bulgaria’s
persistent efforts at obstructing the Speaker from directly engaging in the
proceeding now before this Court.
The Speaker has challenged the rationale of the Master and Chambers Judge
prohibiting Order as being ill-founded. The Speaker maintains that the
Order cannot be justified on the basis of the limitations imposed or
alternatives allowed by the Rules of Court. The Order and such Rules act
only to obstruct the Speaker’s Charter Rights and lead to a public
perception that foreign States who are Defendants before Canadian Court
are in practice favoured by Rules of Court that under the present
circumstances serves to compromise the legal rights of a Canadian citizen
before a Court if Canada.
What then is sought is a declaration that the impugned Rules are invalid and
an order quashing the Master and Chambers Judge decision to deny the
Speaker some form or procedural relief such that allows him to exercise
his legal right to prosecute his claims against the Republic of Bulgaria
before a Canadian Court.
V.1.1.1 Interpretation Act CHAPTER I-21 R.S., c. I-23, s. 1.
Interpretation Act c. I-21 R.S., c. I-23, s. 1.:

INTERPRETATION

Enactments deemed remedial

"12. Every enactment is deemed remedial, and shall be given such fair, large and
liberal construction and interpretation as best ensures the attainment of its objects.

Application of definitions and interpretation rules

V.1.1.1.1 The Intended Appeal

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It is believed, for the reasons stated above, that the Duty Master's order and
the Chamber Judge decision are, respectively, unreasonable, incorrect,
discriminatory and finally invalid when applied to indigent persons
deprived of their liberty. To express the above in a context more in
keeping with the legal language of the court, the Speaker, at the risk of
embarrassment, has struggled to formulate the following points:
That the Duty Master erred in judgement on application of a discrimatory standard
and presumed set of characteristics to the Appellant. The impugned practice and
procedure is applied found Rule 41(16.5)(b), Rules of Court, Court Rules Act [RSBC
1996] c. 80 ("Act" or "Rules" or "Rule") to a person deprived of his liberty when
petitioning for a declaration of indigence or other procedural relief or Charter
remedy from the defendant Bulgaria. The Master's order, as made, was unreasonable
in its affect as it acted as an absolute bar to the petitioner right to judicial review.

Alternatively, the Master erred in judgement on failing or refusing to consider other


methods of judicial review available as a practice and procedural remedy to indigent
persons deprived of their liberty. The Master had a duty to obverse a special standard
of review and a constitutional duty of procedural fairness and care on a petition for
judicial review and remedy received from a person deprived of his self-determination
by a state party. The Master's order, as made, was impossible, and breached Canada's
minimum Charter guarantees to the petitioner, having exceeded the reasonable limits
prescribed as a practice and procedure of the court. In denying the court's services of
judicial review and remedy the Duty Master was punishing the petitioner for having
been deprived of his liberty and being to poor to retain a lawyer.

In the further alternative, the Duty Master erred in judgement on holding a person
deprived of his liberty, and no resources to retain a lawyer, as having no legal
standing to bring or have his petitions heard, either as a person aggrieved by a
defendant in the trial proceeding, or as a person satisfying the test for an afflictive
disability requiring a procedural remedy. It further follows that:

The Chambers Judge erred in judgement on holding the Duty Master's order as
reasonable on application to a person deprived of his liberty and living in poverty.
His Lordship, having a constitutional duty to procedural fairness, was wrong in
refusing the petitioner a judicial review, and remedy, against the discriminatory and
prejudicial affects of the order. It having absolutely barred any judicial hearing of the
petitioner's complaints, and solely because the petitioner could not appear or a retain
a lawyer.

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In the alternative His Lordship erred in judgement on holding the petitioner had not
brought his request for a judicial review of the Duty Master's order within the ambit
of the Judicial Review Act or s. 24(1) of the Charter. On the petitioner having
appealed under Rule 53, Rules of Court, His Lordship had a statutory duty to
judicially review the reasonableness of the legal, and practical, affects of the order on
the rights of the petitioner. His Lordship was wrong to hold an indigent person
deprived of his liberty as having no procedural right to a full judicial review of the
facts and law, and refusing to proceed further on the matter of constitutional
complaints until the petitioner first complied with the terms of the Master's order. His
Lordship knew, or should have known, the terms fixed by the Duty Master's order, as
a practical matter, to be impossible, notwithstanding that they were lawful.

In the further alternative, His Lordship erred on holding a indigent person deprived
of his liberty had no legal standing to bring a petition for judicial review of a Charter,
or other constitutional question, either as a person aggrieved by the Duty Master's
order, or as one satisfying the test for public interest standing, the Charter applying to
both the order and the practice and procedure under an enactment.

Success of the Applicant's "fair question" on appeal, the so called "merit test", turns
on the argument that later evolves from the 8 points he has previously listed above.
The points raised are made arguable when applying the test found in Meiorin to the
observable affects of the order as well as impugned Act. The Applicant further
supporting his later argument with the cited principles of international law as
naturally form a part of Canada's broad guarantees of equal rights and freedoms
under its human rights legislation.

Applicant/Plaintiff

Michael Kapoustin

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1) It can be reasonably concluded on examination of
the criminal accusations brought against the
Applicant and those offences alleged therein as
having occurred in the Republic of Bulgaria, are
substantially the same as that formulated by an
officer of the Royal Canadian Mounted Police
(“R.C.M.P.”). The criminal suppositions, facts,
circumstances and figures in numbers and amounts
as first framed in a July 7th 1995 letter (hereinafter
the “Doornbos Letter”) written and delivered to
the Ministry of Interior, National Organization for
the Fight Against Organized Crime1 (“NOFAC”)
by the R.C.M.P. are in there essence the same as
those brought against the Applicant by the
Republic of Bulgaria.
2) The Doornbos Letter mislead NOFAC and the
Republic of Bulgaria by representing the personal
opinions of R.C.M.P. Staff Sgt. Derek A. Doornbos
as if fact and his unverified suppositions as though
verified facts and conclusions the product of police
investigations conducted by the R.C.M.P. in
Canada. Something Doornbos knew to not be true.

1
The Applicant refers to the accusatory letter of Staff Sgt. Derek A. Doornbos, R.C.M.P. Liaison Officer at
the Embassy of Canada to Austria. A true and correct copy of this letter, translated into English, is in
possession of the ministries of the Attorney General of Canada and British Columbia. It forms the basis of a
Applicant’s civil action against officer Doornbos, Case File. No. S004040 before the Supreme Court of
British Columbia, Vancouver Register.

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3) The contents of the Doornbos Letter and his
statements to NOFAC officials were made public
and repeatedly appeared in the mass printed and
electronic media to the injury, shame and severe
distress of the Applicant, his family, friends and
investors of LCI.
4) Among the numerous slanders and fabrications of
fact provided by Doornbos to NOFAC and the
media was a statement by Doornbos that the
Applicant was a convicted child molester and
member of a religious cult organization in Canada
that annually laundered millions of dollars from
the proceeds of crime.
5) Doornbos stated as if fact and a Canadian
R.C.M.P. investigative conclusion that a substantial
part of money entering the Canadian bank
accounts of an alleged “religious cult” were
criminal proceeds gained from citizens of the
Republic of Bulgaria by the Applicant’s criminal
organization, the company LCI Bulgaria.
6) Doornbos could not and did not know if his
criminal allegations against the Applicant were
true since the allegations concern the Applicant’s
activities in the Republic of Bulgaria, a jurisdiction
where Doornbos could not, under any
circumstances, have lawfully conducted an
investigation.

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7) A single and persistent fact through out the 6 year
criminal proceeding against the Applicant, it
remains painfully apparent and incontrovertible
that the Doornbos Letter and other unlawful
contributions are the primary cause for the
Applicant’s arrest and ultimately his conviction
and sentence to 23 years by the Republic of
Bulgaria.
8) It is as a result of the Doornbos Letter and other
fabrications or misleading information offered by
Doornbos that NOFAC on, July 17th 1995 issued a
confidential directive to the Chief Prosecutors
Office of the Republic of Bulgaria that the request
by the R.C.M.P. of Canada that directed NOFAC to
bring, and the Applicant quotes:
“…a criminal prosecution of any character at all
[nakazatelno proizvodstvo ot kakavto I da bilo
harakter] ……against Kapoustin [Applicant] or Life
Choice [LCIAD] ?”

9) The NOFAC acted immediately on the Doornbos


Letter’s request. Agencies or instrumentalities of
the Republic of Bulgaria immediately undertook to
first publicly humiliate and discredit the Applicant
and LCI companies before moving against the
Applicant who was extremely popular and well
liked at the time.
10) By publicly distributing to the mass media the
Doornbos Letter and statements incriminating the
Applicant an image was fabricated of the Applicant
as an international criminal operating in Bulgaria

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and part of an organized crime network that
reached into Western Europe and Canada.
11) The Republic of Bulgaria gave credibility to this
manufactured and false image by making repeated
reference as to the information and data having
been supplied by reliable police sources of the
Government of Canada.
12) The resulting public enmity and rancor towards
the Applicant provided the needed causus for the
subsequent search and arrest of LCI Bulgaria
offices and property throughout the Republic of
Bulgaria. And provided necessary political will and
popular support required to employ the facilities of
NCB Interpol Sofia and resources of Interpol
Europe to arrest the Applicant.
13) On 30 November 1995 the Doornbos Letter was
included, practically verbatim, to the agency of
NCB Interpol Sofia, Bulgaria and again on 13
December 1995.
14) The Doornbos Letter represented the only factually
basis for the Applicant’s arrest on 7 February 1996
at Frankfurt International Airport, transit lounge
and his later extradition on 2 September 1996 to
the Republic of Bulgaria on warrants of arrest that
represented, in whole, the circumstances, facts and
figures of the Doornbos Letter.
15) The Applicant and his Attorneys become aware of
the representation in the Doornbos Letter on or

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about March 1999, approximately 3 years and 2
months after the Applicant’s arrest.
16) These warrants, as issued by police investigator
Stefcho Georgiev on November 30th 1995 and
February 14th 1996 (post factum of the Applicant’s
arrest) formed the basis for the Applicant’s
extradition from Germany.
17) The Applicant was accused and charged in the
aforestated warrants of arrest as a private
company official having committed separate and
unrelated acts of theft that embodied a number of
embezzlements from the accounts of LCI Bulgaria.
A separate charge was brought for another
separate theft but of the same funds as alleged in
the first embezzlement charge, only this theft of
LCI Bulgaria funds was alleged to have been
effected with fraudulent documents; apparently the
Applicant was charged with 10’’s of thousands of
individuals and personal acts of fraud against
Bulgarian citizens; and finally the filing of a false
personal income tax statement.
18) The aforestated charges and warrants were
brought against the Applicant without the benefit
of any judicial supervision of the criminal process
against the Applicant and without the knowledge of
the Applicant or his attorneys.
19) The Applicant was extradited by Germany to the
Republic of Bulgaria to be tried only on the

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individual and separate charges qualified in the
two separate warrants of arrest. One issued on
November 28th 1995 and the other on new charges
as brought on February 12th 1996 after the
Republic of Bulgaria became aware of the
Applicant’s arrest.
Language of propsed amendments to Claim.
"…that the text of the Doornbos letter, and subsequent communications as appeared in the media was
defamatory in its entirety, but speciically in …… (number of) passages…"
"….. the representations maligned Mr. Kapoustin's character in the community and around the world, the
defendant's knew or ought to have knowm that the plain meaning and innuendo of the words were
defamatory and libellous of the Plaintiff and that the words, their meaing and the innuendo were untrue….."
"…. With the letters delivery and publication Mr. Kapoutsin has been greatly injured in his character, credit
reputation and has been held up to public scandel, ridicule and contempt…"

standard defense reads as follows:


"….true in substance (here will rely on conviction)and in fact and insofar as they are fair they consist of
epressions of opinion, they are fair comment made in good faith and without malice on a matter of public
interest….."
In Allana Miles case she met with the reporter and provided the info. I did not it was private and protected
by the Privacy Act.

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