When looking for public information, the Right to Information and Protection of Privacy Act (RTIPPA) is intended to be used as a last resort. In most cases, information you are looking for can be obtained by contacting the appropriate public body or by checking out their website, where many reports and other materials are made available. If you are still unable to get the information you are looking for, you can make a request under the provisions of RTIPPA.
RTIPPA does not replace existing procedures for accessing any information that is normally available to the public. Also, if a certain type of documentation is already available for a fee, such as a birth certificate or a driver abstract, the documents cannot be accessed under RTIPPA. You must follow the regular processes for obtaining these types of records.
December 16, 2010, I did esquire with the Office of the Privacy Commission, I did enquire about the differences between the complaint process with the Access to Information and Privacy Commissioner and the review process with the Court of Queen’s Bench under the Right to Information and Protection of Privacy Act (“the Act”).
The following is a letter I received in response.
Dec 20. 2010 Letter Anne E. Bertrand, Q.C.
At the Hearing of the Referral I presented the Court an oral argument which followed the below brief, this brief is also provided below in full, for your convenience.
August 11 2011 Refferral Pre Hearing Brief
The Solicitor for the Respondent NEW BRUNSWICK POLICE COMMISSION objected to my filing of a post hearing brief a few days behind a tentative schedule, which cased me to have to file a Motion for an extension of time, a copy is provided below, with its supporting affidavit.
Sept 25. 2011 Motion for Extension of Time
Affidavit in Support for Motion for Time Extention
Here below is the Post Hearing Brief that I wish the Court to consider.
Referal Applicants Post Hearing Brief
Hearing August 11, 2011
1. Maxim - Neminem laedit qui jure suo utitur. A person who exercises his own rights injures no one. Therefore, if, as in this case, an Applicant was actually Defending a criminal matter, then according to natural Justice a alleged Defendant, in a criminal matter, would have the right to examine all evidence (of the other side)intended for use in a fair hearing (therefore all substantive information/material would have been revealed), which is one of the fundamental principles of Justice adhered to in Canada. One of the fundamental principles of justice is that no accusation be allowed to stand unless there is sufficient evidence to support the allegation, however, the Applicant in this matter has suffered injury and experienced harm by judgment without trial, by arrest without warrant, therefore in the interest of preventing further injustice (unwarranted arrests), the Applicant requires to gain the information necessary for his maintaining his safety inter alia, is requesting of the Court of Queen's Bench assistance to take this alternative route, as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6,.
2. The Applicant claims this Court has the power to order an investigation at the behest of the alleged matters herewithin alluded to, (this is such a case) when it is in the interest of the public good.
3. The Applicant’s request is believed to be ‘meritorious’ requiring therefore consideration of alleged substantive matters, as distinguished from procedural issues in a case, furthermore Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, provides this Court with the appropriate procedure and therefore jurisdiction to make the requested Order.
4. The Applicant believes that (pursuant to section 12(1) (e) of the Police Act) each police officer of the Fredericton Police Force is charged with responsibility for serving and executing court process in respect of offences against the law,
5. The purposes of this Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 pursuant to section 2 (a) is to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
6. The Applicant believes that this subject request is:
· Necessary for the Applicant’s protection, safety and a good or satisfactory condition of existence.
· Legally right; lawful; equitable
· Congruent with fair and proper administration of laws.
· Appropriate and well adapted to fulfilling intended objectives as found drafted and issued therewithin the Right to Information and Protection of Privacy Act.
· Congruent with application of judicial discretion, that being exercise of judgment by a judge or court based on what is fair under circumstances and guided by rules and principles of law
7. The Applicant believes this subject request is not frivolous or vexatious nor amounts to an abuse of the right to access as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6.
8. The Applicant believes that without this Honorable Court’s intervention, the applicant will continue to be harassed, harmed, and injured, furthermore, it is plain and obvious after 6 years of this abuse at the hands of members of FREDERICTON POLICE FORCE (three separate arrests without charge, including several illegal Break and Entries and searches of the Applicant's Residential Marshall Street Property) that members of FREDERICTON POLICE FORCE have no intention to uphold their Duty, to act to protect the Applicant.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Court File Number: F/M/1/11
F/M/22/11
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
TRIAL DIVISION
JUDICIAL DISTRICT OF FREDERICTON
BETWEEN:
ANDRE MURRAY
Applicant,
-and-
THE NEW BRUNSWICK POLICE COMMISSION
Respondent,
_____________________________________________________________________
The Applicant’s Pre-Hearing Brief
Rules of Court, Rule 38.06.1
For joint Hearing regarding Court File Number: F/M/1/11 and F/M/22/11
Filed by the Self Represented Applicant André Murray
_____________________________________________________________________
André Murray
The Applicant
31 Marshall Street,
Fredericton,
New Brunswick,
E3A 4J8
Telephone Number:
E-mail address:
andremurraynow@
gmail.com
Debora M. Lamont
Stewart McKelvey Barristers, Solicitors and Trademark Agents
Suite 600 Frederick Square 77 Westmorland Street P.O. Box 730 Fredericton NB
E3B 5B4
Direct Dial: 506.443.0125
Main Tel: 506.458.1970
Fax: 506.444.8974 Email: dlamont@smss.com
Debora M. Lamont
Solicitor for Respondent
The New Brunswick Police Commission /
435 King Street,
Suite 202 / 435, Fredericton NB
E3B 1E5
Tel.(506) 453-2632
Fax.(506) 457-3542
PART 1 – INDEX
The Plaintiff’s Pre-Hearing Brief
{(1) Unless ordered otherwise, each party to an application shall prepare a pre-hearing brief containing}
PAGE
- PART I – INDEX ____________________________________ii
- PART II –– STATEMENT OF FACTS ___________________ 1
{(a) a succinct outline of the facts the party intends to establish,}
- PART III - ISSUES ____________________________________ 6
{(b) a concise statement of the issues to be dealt with by the court,}
1. Questions for the Court to answer ________________________6
{(c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, and}
2. Introduction__________________________________________6
3.MAXIMS ____________________________________________8
4.Fraud _______________________________________________10
5.Fraudulent Representation _______________________________23
6.Granting Disclosure ____________________________________25
7.Security of property____________________________________37
8.Interpretation of Statutes________________________________53
9.Interpretation ________________________________________60
10.Closing_____________________________________________62
11.Should the Respondent pay costs of the within Motion?______65
12.Cost Orders in favor of self-represented litigants____________65
- PART VI – ORDERS SOUGHT _______________________ 70
{(d) a concise statement of the relief sought by the party.}
- PART II –– STATEMENT OF FACTS
{(a) a succinct outline of the facts the party intends to establish,}
1. Wednesday May 7, 2008, approximately 6 pm André Murray while leaving his residence and traveling by bicycle into the center of Fredericton City, the APPLICANT was intercepted by a single Police patrol car followed by a group of Police patrol cars; the occupants of which, members of the FREDERICTON POLICE FORCE proceeded to assault and arrest the APPLICANT.
2. The Preposterous position of the FREDERICTON POLICE FORCE regarding the May 7, 2008 incident obliged the APPLICANT to reasonably on September 27, 2010, apply pursuant to Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 for correspondence and other documents which may reveal other possible motivations for the outrageous behavior of the FREDERICTON POLICE FORCE as did occur May 7, 2008.
3. APPLICANT as above mentioned, having filed complaints with both New Brunswick Police Commission (File: 2110 –C- 09- 09), and the FREDERICTON POLICE FORCE regarding the above mentioned incident Wednesday May 7, 2008, involving inter alia the arrest, of APPLICANT, reasonably any subsequent investigations and results/conclusions determined thereof, must be made available for perusal by the APPLICANT and according to RTIPPA.
4. December 9, 2010, the APPLICANT did receive a reply correspondence from the NEW BRUNSWICK POLICE COMMISSION, which stated NEW BRUNSWICK POLICE COMMISSION in spite of RTIPPA is declining to allow the APPLICANT full access to documents, currently in their possession, furthermore, this denial of access applies to specific material - an Appendix “C” which consists of the investigation report prepared by the FREDERICTON POLICE FORCE and the copy provided to NEW BRUNSWICK POLICE COMMISSION. Please note NEW BRUNSWICK POLICE COMMISSION is prepared to provide only partial disclosure of the investigation report (2 pages of 48 pages).
5. NEW BRUNSWICK POLICE COMMISSION in spite of RTIPPA has confirmed both verbally and by written correspondence a refusal to allow the APPLICANT full access to documents in their possession, which are specific to this matter (in particular 48 pages) of Appendix “C”
6. January 13, 2011 NEW BRUNSWICK POLICE COMMISSION did make partially available the documents as requested by the APPLICANT of NEW BRUNSWICK POLICE COMMISSION File : 2110 –C- 09- 09 further, designated NEW BRUNSWICK POLICE COMMISSION File: 2010 –RTIPPA- 02.
7. André Murray (APPLICANT in this matter) subsequently reviewed the NEW BRUNSWICK POLICE COMMISSION File: (File: 2110 –C- 09- 09 ) 2010 –RTIPPA- 02, the subject ‘investigation report’ summary and conclusion revealed that the cause of APPLICANT’S Assault, Battery and Arrest was as a result of a obscured/hidden person having provided a report the following is an exact excerpt: Investigative Summary blacked out ………….., a blacked out ………has provided a statement that he observed a male closely matching the description of a suspect in “some type of crime”, as a result he contacted the police station, and Cst. Debbie Stafford attended the area and attempted to stop and identify the individual.”
8. March 5. 2009, daylight hours; APPLICANT having just finished shoveling the driveway to residential dwelling was again assaulted and arrested by the FREDERICTON POLICE FORCE at 29 -31 Marshall Street, in the City of Fredericton. The FREDERICTON POLICE FORCE were directed by telephone transmission to APPLICANT and allegedly falsely informed that APPLICANT was someone else, who FREDERICTON POLICE FORCE allegedly have warrants for the arrest of that individual.
9. March 5. 2009, APPLICANT , although never resisted, again experienced assault and battery resulting in physical injury at the hands of members of the FREDERICTON POLICE FORCE. As a result of the injuries, the Applicant have been unable to work (full capacity) since the March 5. 2009 assault and battery. Please note the APPLICANT was required by medical doctor to wear an arm brace and attend physiotherapy, which continues to this day because subject injuries which are not yet healed. the APPLICANT is still suffering from the injuries inflicted upon the APPLICANT by the March 5. 2009 arrest.
10. Late 2009, APPLICANT did file a complaint with the FREDERICTON POLICE FORCE, regarding the March 5. 2009 Assault, involving Battery and Arrest. NEW BRUNSWICK POLICE COMMISSION File: (File: 9000 –C- 09- 61 ) 2010 –RTIPPA- 01 regarding the March 5. 2009 Assault, involving Battery and Arrest. The documents which NEW BRUNSWICK POLICE COMMISSION have released into the APPLICANT’S possession revealed that the Police regarding the March 5. 2009 Assault, involving Battery and Arrest. were being directed and or guided by telephone communication with the FREDERICTON POLICE FORCE dispatcher (as it does appear) to the APPLICANT moreover, although the Applicant had removed all of his winter clothing all accessories including hats scarves and gloves in a effort to maintain a lower body temperature, to complete the laborious task of shoveling out the snow from his driveway on a warm sunny day. Therefore it could not possibly be true that a distinctly identifiable man of the Applicant’s shape, size complexion and color of hair could possibly be mistaken for anyone else other than who he actually is.
11. APPLICANT has been subject to an apparent plan of action designed to achieve a particular goal (object yet known) a unreasonable nonstop harassment program against the APPLICANT in this matter, since year 2005 became a Tenant at 29 Marshall Street in the City of Fredericton. False witness statements against the APPLICANT therefore employing the unsuspecting local FREDERICTON POLICE FORCE with unfounded allegations which have lead to the APPLICANT in this case becoming the victim of violence at the hands of the FREDERICTON POLICE FORCE.
12. APPLICANT Andre Murray since year 2005 becoming a Residential Tenant at his Marshall Street residence in the City of Fredericton has experienced unrelenting harassment by two neighbors in particular, living in single family houses on each side of his residence.
13. since year 2005 became a Residential Leasehold Tenant at his Marshall Street residence in the City of Fredericton has been visited by the local FREDERICTON CITY POLICE FORCE; Please Note that the APPLICANT is making this statement with carful attention not to exaggerate the facts of the matter as in the first year 2005 it would be safe to say the members of the FREDERICTON CITY POLICE FORCE visited the residence at least twice a week, sometimes twice a day with annoying allegations that the APPLICANT may have while walking in his yard, further allegedly may have inadvertently and mysteriously offended a neighbor although without actually having spoken to anyone nor had the APPLICANT observed anyone.
14. The foregoing must have been recorded by the FREDERICTON CITY POLICE FORCE Dispatch, (as it is their professional practice) this subject harassment program against the APPLICANT must have been chronologically documented and existing within the files of the FREDERICTON CITY POLICE FORCE Department headquarters.
- PART III - ISSUES
{(b) a concise statement of the issues to be dealt with by the court,}
1. Questions for the Court to answer
Ø Should the Honorable Court Order the New Brunswick Police Commission to disclose both requested Appendix “C” as provided by and found within the Fredericton City Police Force Reports to the Applicant?
Ø Should the Honorable Court Order the Fredericton City Police Force to disclose the full requested Police Reports?
Ø Should the Honorable Court Order the investigation by the Fredericton Police into the abuse and malicious manipulation of the Fredericton Police Force services regarding the volume and substance of the telephone reports and complaints containing erroneous and provocative allegations against André Murray (Applicant In this matter) order disclosure of same investigation to the Applicant.
{(c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, and}
2. Introduction
15. It is the APPLICANT’S contention that in pursuance of RTIPPA the head of a public body should disclose requested records that contain information of the identity of a malicious Police informant telephone caller, because there exists circumstances in the present case which are the exception to the rule which normally dictate that the RTIPPA is to be used to protect the identity of third party. To use the RTIPPA to protect the identity of a third party who is the source of a malicious Police informant telephone calls bearing false witness which reasonably could be considered and has evidently resulted in a disservice to justice causing violations of (in this case) the APPLICANT’S civil liberties including a very real possibility of a fatal danger to the APPLICANT.
16. The NEW BRUNSWICK POLICE COMMISSION has identified a party by only as a “THIRD PARTY” and subject of this application . Misapprehension exists here, non-disclosure is clearly outweighed by the significant public interest in this matter requiring disclosure for the purposes of the safety or protection of the APPLICANT. Section 22(5) of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following example of where the head of a public body shall disclose a record in the case of where “the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment” as follows:
22(5) Subject to section 34 and any other exception provided for in this Act, the head of a public body shall disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment.
17. When someone misuses and abuses the system especially crime prevention services and public services to engage in a systematic vicarious assault on an innocent these malicious people should in effect be relinquishing the intended protection of the RTIPPA.
18. We should all expect a reasonable protection of our privacy, bet when our actions become unreasonable, and in this case to be direct ‘malicious’, then those ‘malicious’individuals should not be protected by law designed to protect the privacy of reasonable people acting forthright.
3. MAXIMS
19. Because Maxims are principles and authorities, universally admitted, as being just, further, that it be consonant to reason and part of the general customs or common law of the land; and are of the same strength as acts of parliament, please note APPLICANT will use the relevant Maxims throughout following arguments as they may apply in this particular case.
20. APPLICANT comprehends; the following are the definitions of "maxims". Found at (http://ecclesia.org/truth/maxims.html)
21. APPLICANT will include and utilize Maxims, that, which, therefore may strengthen the following arguments such as the APPLICANT intends, for that reason, to present/offer to this most Honorable Court.
22. A. Maxim definitions:
A. Maxim (Bouvier's Law Dictionary, 1856):
1. An established principle or proposition. A principle of law universally admitted, as being just and consonant with reason.
2. Maxims in law are somewhat like axioms in geometry. 1 Bl. Com. 68. They are principles and authorities, and part of the general customs or common law of the land; and are of the same strength as acts of parliament, when the judges have determined what is a maxim; which belongs to the judges and not the jury. Terms do Ley; Doct. & Stud. Dial. 1, c. 8. Maxims of the law are holden for law, and all other cases that may be applied to them shall be taken for granted. 1 Inst. 11. 67; 4 Rep. See 1 Com. c. 68; Plowd. 27, b.
3. The application of the maxim to the case before the court, is generally the only difficulty. The true method of making the application is to ascertain how the maxim arose, and to consider whether the case to which it is applied is of the same character, or whether it is an exception to an apparently general rule.
4. The alterations of any of the maxims of the common law are dangerous. 2 Inst. 210.
B. Maxim (William C. Anderson's A Dictionary of Law, (1893), page 666):
1. So called…because it's value is the highest and its authority the most reliable, and because it is accepted by all persons at the very highest.
2. The principles and axioms of law, which are general propositions flowing from abstracted reason, and not accommodated to times or men, are wisely deposited in the breasts of the judges to be applied to such facts as come properly before them.
3. When a principle has been so long practiced and so universally acknowledged as to become a maxim, it is obligatory as part of the law.
C. Maxim of Law (Black's Law Dictionary, 3rd Edition, (1933), page 1171): An established principle of proposition. A principle of law universally admitted as being a correct statement of the law, or as agreeable to reason. Coke defines a maxim to be "a conclusion of reason" Coke on Littleton, 11a. He says in another place, "A maxim is a proposition to be of all men confessed and granted without proof, argument, or discourse." Coke on Littleton. 67a.
D. Maxim (Black's Law Dictionary, 4th Edition): Maxims are but attempted general statements of rules of law and are law only to the extent of application in adjudicated cases."
Maxim - Regula pro lege, si deficit lex. In default of the law, the maxim rules.
23. APPLICANT supports the English dictum that a man's home is his refuge as was established in common law by the lawyer and politician Sir Edward Coke in The Institutes of the Laws of England, as early as 1628 further, that this is a fundamentally important concept, that the Courts should uphold:
"For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge].
The Common laws of the Realm should by no means be delayed for the law is the surest sanctuary, that a man should take, and the strongest fortress to protect the weakest of all, lex et tutissima cassis.
The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose. "
24. Further to the above principal established 1628 by lawyer and politician Sir Edward Coke; a principal the Applicant comprehends, is as a free society, we must have liberties grounded on self evident truths of the importance of the sanctity, security and privacy of the individual’s home. The APPLICANT wishes to bring to the Court’s attention the seriousness of the unwarranted violation of someone’s home, invasion of privacy and as the above mentioned Sir Edward Coke’s, Semayne's Case, reflects and embodies sanctity principals, referred to as, a Man’s Home is his Castle.
4. Fraud
Maxim -
- ‘The laws serve the vigilant, not those who sleep upon their rights.”
2 Bouv. Inst. n. 2327
25. The APPLICANT asserts that facts as will be presented, and the preponderance of probability will lead to the conclusion that the unnamed informant caller(s) and source of the fraudulent information provided to the FREDERICTON POLICE FORCE, are acting maliciously, fraudulently and misusing the public resources for their own disingenuous ends.
26. The APPLICANT would like to note the following Maxims regarding the nature of the fraud:
The legal maxims:-
- “Fraus et jus nunquam cohabitant”
( Fraud and justice never dwell together)
&
- “ Fraus et dolus nemini patrocinari debent”
( Fraud and deceit defend or excuse no man).
&
- Let no one be relieved or gain an advantage by his own fraud.
27. The substance of above provided maxims, have been reiterated in decisions of COURTS OF LAW and it has been further observed that it is in the inherent powers of the COURTS OF LAW to reject the protection of individuals who are guilty of fraud or misrepresentation. In the broadest sense, a fraud is an intentional deception made for personal gain or to damage another individual.
28. legal-dictionary.thefreedictionary.com provides the following definition: ‘Fraud’ as follows:
http://legal-dictionary.thefreedictionary.com/fraud
Fraud n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right.
Also
Fraud
A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.
Fraud is commonly understood as dishonesty calculated for advantage. A person who is dishonest may be called a fraud. In the U.S. legal system, fraud is a specific offense with certain features.
Fraud is most common in the buying or selling of property, including real estate, Personal Property, and intangible property, such as stocks, bonds, and copyrights. State and federal statutes criminalize fraud, but not all cases rise to the level of criminality. Prosecutors have discretion in determining which cases to pursue. Victims may also seek redress in civil court.
Fraud must be proved by showing that the Applicant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the Applicant that the statement is untrue, (3) intent on the part of the Applicant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.
These elements contain nuances that are not all easily proved. First, not all false statements are fraudulent. To be fraudulent, a false statement must relate to a material fact. It should also substantially affect a person's decision to enter into a contract or pursue a certain course of action. A false statement of fact that does not bear on the disputed transaction will not be considered fraudulent.
Second, the Applicant must know that the statement is untrue. A statement of fact that is simply mistaken is not fraudulent. To be fraudulent, a false statement must be made with intent to deceive the victim. This is perhaps the easiest element to prove, once falsity and materiality are proved, because most material false statements are designed to mislead.
Third, the false statement must be made with the intent to deprive the victim of some legal right.
Fourth, the victim's reliance on the false statement must be reasonable. Reliance on a patently absurd false statement generally will not give rise to fraud; however, people who are especially gullible, superstitious, or ignorant or who are illiterate may recover damages for fraud if the Applicant knew and took advantage of their condition.
Finally, the false statement must cause the victim some injury that leaves her or him in a worse position than she or he was in before the fraud.
A statement of belief is not a statement of fact and thus is not fraudulent. Puffing, or the expression of a glowing opinion by a seller, is likewise not fraudulent. For example, a car dealer may represent that a particular vehicle is "the finest in the lot." Although the statement may not be true, it is not a statement of fact, and a reasonable buyer would not be justified in relying on it.
The relationship between parties can make a difference in determining whether a statement is fraudulent. A misleading statement is more likely to be fraudulent when one party has superior knowledge in a transaction, and knows that the other is relying on that knowledge, than when the two parties possess equal knowledge. For example, if the seller of a car with a bad engine tells the buyer the car is in excellent running condition, a court is more likely to find fraud if the seller is an auto mechanic as opposed to a sales trainee. Misleading statements are most likely to be fraudulent where one party exploits a position of trust and confidence, or a fiduciary relationship. Fiduciary relationships include those between attorneys and clients, physicians and patients, stockbrokers and clients, and the officers and partners of a corporation and its stockholders.
A statement need not be affirmative to be fraudulent. When a person has a duty to speak, silence may be treated as a false statement. This can arise if a party who has knowledge of a fact fails to disclose it to another party who is justified in assuming its nonexistence. For example, if a real estate agent fails to disclose that a home is built on a toxic waste dump, the omission may be regarded as a fraudulent statement. Even if the agent does not know of the dump, the omission may be considered fraudulent. This is constructive fraud, and it is usually inferred when a party is a fiduciary and has a duty to know of, and disclose, particular facts.
Fraud is an independent criminal offense, but it also appears in different contexts as the means used to gain a legal advantage or accomplish a specific crime. For example, it is fraud for a person to make a false statement on a license application in order to engage in the regulated activity. A person who did so would not be convicted of fraud. Rather, fraud would simply describe the method used to break the law or regulation requiring the license.
Fraud resembles theft in that both involve some form of illegal taking, but the two should not be confused. Fraud requires an additional element of False Pretenses created to induce a victim to turn over property, services, or money. Theft, by contrast, requires only the unauthorized taking of another's property with the intent to permanently deprive the other of the property. Because fraud involves more planning than does theft, it is punished more severely.
29. Fraud as offered above herewithin and below may be established by showing that the perpetrator’s actions involved five separate elements:
(1) a false statement of a material fact,
(2) knowledge on the part of the source that the statement is untrue,
(3) intent on the part of the source to deceive the alleged victim,
(4) justifiable reliance by the alleged victim on the statement, and
(5) injury to the alleged victim as a result.
30. The APPLICANT is not attempting to prove Fraud, per se, but wishes to alert the attention of the Court to the relevant portions of an argument regarding the fraudulent misrepresentations of the unknown informant caller(s) and the implications of same, namely that because the unknown informant caller(s) are acting fraudulently they should not in the usual manner be protected by this Court. To be fraudulent, a false statement must relate to a material fact, in this case unknown informant caller(s) fraudulently informing the FREDERICTON POLICE FORCE of facts which the unknown informant caller(s) must have known to be false. In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual A false statement of fact that does not bear on the intentional deception will not be considered fraudulent, in this matter, the intentional deception was to cause the FREDERICTON POLICE FORCE to act against the Applicant on many occasions under the false information that the APPLICANT was an individual with warrants for his arrest, or some other equally false claims.
31. Second, the individual Source of the information must know that the statement is untrue. A statement of fact that is simply mistaken is not fraudulent. In the present case, this was not simply one mistaken statement of fact, since the year 2005 the deceptions are unrelenting and were of a substance requiring a sufficient consciousness of mind to orchestrate the copious barrage unrelenting fraudulent misrepresentations of the unknown informant caller(s). This is perhaps the easiest element to prove, once falsity and materiality are proved because most material false statements are designed to mislead, such as in this case, the false information to the FREDERICTON POLICE FORCE was crafted to mislead the Fredericton Police into a course of action which would have been to the detriment of the APPLICANT’S legal rights and standing, and at the same time the induced course of action would have been to the benefit of the unknown informant caller(s) (otherwise why would this continue this course of action).
32. Third, the false statement, in a incident of fraud, must be made with the intent to deprive the victim of some legal right, in this case the Applicant would have been deprived of the Applicant’s legal rights guaranteed by The English Magna Carta, expressed in The United States constitution and guaranteed by the Canadian Charter of Rights, which stated clearly the relationship between life, liberty, and property; arguably there is no property more sacred than a man’s home. The violation of ones home constitutes a serious affront to human dignity.
33. Fourth, justifiable reliance by the alleged victim (FREDERICTON POLICE FORCE) on the fraudulent statement as is in this case the victim's reliance on the false “information”, must be reasonable (which is apparent because the FREDERICTON POLICE FORCE acted on same) .
34. Finally, the false statements provided by the malicious informants evidently made victims of FREDERICTON POLICE FORCE and the APPLICANT causing injury leaving all concerned and or interacting during these false arrests, inter alia in a worse position than they were before the malicious informants instigated said events .
35. The Maxim – “Let no one be relieved or gain an advantage by his own fraud.” Is relevant to this hearing because, the informant(s), having repeatedly provided false information (whatever their motivation)to FREDERICTON POLICE FORCE, by their (the informant) actions and the actions of their willing agents (FREDERICTON POLICE FORCE) created a condition, where, the Applicant:
a) Despite having no warrants for the Applicant,
b) Despite having not been a criminal,
c) Despite having no criminal record,
d) Despite having not being engaged in criminal activity,
e) Despite having not being under investigation by the Fredericton Police,
f) The applicant has had his residence searched twice without warrants, by the Fredericton Police,
g) The applicant has at his residence been, Assaulted, Battered, Arrested, injured and Detained three separate times,
h) The applicant has been subject to 6 years of unnecessary Police Harassment involving many incidents coming and going to the area of residence,
i) The Applicant cannot enjoy the Applicant’s residence, without interference,
j) The applicant is in fear for his life and or personal safety,
k) The Fredericton Police Force will not cooperate with the Applicant.
which reveals that the agenda of the unnamed informant(s) appears to be succeeding consequentially without the intervention of the Courts, Applicant will continue to be Assaulted, Battered, Arrested, injured, Detained and have his residence searched without COURT ORDERED WARRANTS, illegally by the FREDERICTON POLICE FORCE.
36. Black's Law Dictionary (8th ed. 2004), Page 4062 and 4063 provides the following definition of REPRESENTATION as follows:
REPRESENTATION
representation,n.1. A presentation of fact — either by words or by conduct — made to induce someone to act, esp. to enter into a contract; esp., the manifestation to another that a fact, including a state of mind, exists <the buyer relied on the seller's representation that the roof did not leak>. Cf. MISREPRESENTATION. [Cases: Fraud 9.] “Representation ... may introduce terms into a contract and affect performance: or it may induce a contract and so affect the intention of one of the parties, and the formation of the contract.... At common law, ... if a representation did not afterwards become a substantive part of the contract, its untruth (save in certain excepted cases and apart always from fraud) was immaterial. But if it did, it might be one of two things: (1) it might be regarded by the parties as a vital term going to the root of the contract (when it is usually called a ‘condition’); and in this case its untruth entitles the injured party to repudiate the whole contract; or (2) it might be a term in the nature only of an independent subsidiary promise (when it is usually called a ‘warranty’), which is indeed a part of the contract, but does not go to the root of it; in this case its untruth only gives rise to an action ex contractu for damages, and does not entitle the injured party to repudiate the whole contract.” William R. Anson, Principles of the Law of Contract 218, 222 (Arthur L. Corbin ed., 3d Am. ed. 1919).
affirmative representation. A representation asserting the existence of certain facts pertaining to a given subject matter.
false representation. See MISREPRESENTATION.
material representation. A representation to which a reasonable person would attach importance in deciding his or her course of action in a transaction. • Material representation is a necessary element of an action for fraud. [Cases: Contracts 94(2); Fraud 18. C.J.S. Contracts §§ 156, 166.]
promissory representation. A representation about what one will do in the future; esp., a representation made by an insured about what will happen during the time of coverage, stated as a matter of expectation and amounting to an enforceable promise. [Cases: Insurance 3035. C.J.S. Insurance §§ 537, 546–551, 629, 634, 639, 694, 704, 759.]
37. The informant(s) have done what is according to Black’s Law Dictionary “representation” which is a presentation of fact (in this case that the APPLICANT is someone who he is not) — either by words or by conduct assertion (repeatedly providing false fraudulent information to the FREDERICTON POLICE FORCE) —to induce someone (MEMBERS OF FREDERICTON POLICE FORCE) to act to injure André Murray (APPLICANT) .
38. The informant(s) have provided what is according to Black’s Law Dictionary above as “material representation” which is a representation to which a reasonable person may attach importance while deciding their (FREDERICTON POLICE FORCE) course of action such as to behave in such a exaggerated manner so as to allow for Assault, Batter, Arrest, in the course of an intended arrest of the APPLICANT which to date has incidentally included unlawful detainment of APPLICANT André Murray while having endured violent false arrest furthermore, FREDERICTON POLICE FORCE have conducted WARRENTLESS search procedure the APPLICANT’S residence.
39. Black's Law Dictionary (8th ed. 2004) , Page 3169 and page 3170 provides the following definition of MISREPRESENTATION as follows:
MISREPRESENTATION
misrepresentation,n. 1. The act of making a false or misleading assertion about something, usu. with the intent to deceive. • The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. [Cases: Fraud 9.]
2. The assertion so made; an assertion that does not accord with the facts. — Also termed false representation; (redundantly) false misrepresentation. Cf. REPRESENTATION(1). — misrepresent,vb.
“A misrepresentation, being a false assertion of fact, commonly takes the form of spoken or written words. Whether a statement is false depends on the meaning of the words in all the circumstances, including what may fairly be inferred from them. An assertion may also be inferred from conduct other than words. Concealment or even non-disclosure may have the effect of a misrepresentation .... [A]n assertion need not be fraudulent to be a misrepresentation. Thus a statement intended to be truthful may be a misrepresentation because of ignorance or carelessness, as when the word ‘not’ is inadvertently omitted or when inaccurate language is used. But a misrepresentation that is not fraudulent has no consequences ... unless it is material.” Restatement (Second) of Contracts § 159 cmt. a (1979).
fraudulent misrepresentation. A false statement that is known to be false or is made recklessly — without knowing or caring whether it is true or false — and that is intended to induce a party to detrimentally rely on it. — Also termed fraudulent representation; deceit. [Cases: Fraud 8.] “A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion.” Restatement (Second) of Contracts § 162(1) (1979).
material misrepresentation. 1.Contracts. A false statement that is likely to induce a reasonable person to assent or that the maker knows is likely to induce the recipient to assent. [Cases: Contracts 94. C.J.S. Contracts §§ 136, 139–140, 156, 158–160, 170–171, 173–174.] 2.Torts. A false statement to which a reasonable person would attach importance in deciding how to act in the transaction in question or to which the maker knows or has reason to know that the recipient
attaches some importance. See Restatement (Second) of Torts § 538 (1979). [Cases: Fraud 18.] “The materiality of a misrepresentation is determined from the viewpoint of the maker, while the justification of reliance is determined from the viewpoint of the recipient.... The requirement of materiality may be met in either of two ways. First, a misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent. Second, it is material if the maker knows that for some special reason it is likely to induce the particular recipient to manifest his assent. There may be personal considerations that the recipient regards as important even though
they would not be expected to affect others in his situation, and if the maker is aware of this the misrepresentation may be material even though it would not be expected to induce a reasonable person to make the proposed contract. One who preys upon another's known diosyncrasies cannot complain if the contract is held voidable when he succeeds in what he is endeavoring to accomplish.... Although a nonfraudulent misrepresentation that is not material does not make the
contract voidable under the rules stated in this Chapter, the recipient may have a claim to relief under other rules, such as those relating to breach of warranty.” Restatement (Second) of Contracts § 162 cmt. c (1979).
misrepresentation of source. See PASSING OFF.
negligent misrepresentation. A careless or inadvertent false statement in circumstances where care should have been taken. [Cases: Fraud 13(3).]
40. There is evidence that certain informant(s) acted under a knowing misrepresentation of the truth and or concealment of a material fact regarding certain fraudulent information rendered to FREDERICTON POLICE FORCE to further induce the FREDERICTON POLICE FORCE to act to the detriment of the Applicant by feigning that the APPLICANT was and or is someone whom he was not.
41. The informant(s) have done what is according to Black’s Law Dictionary “misrepresentation” which is the act of making a false or misleading assertion about something as in this case false allegations directed against the reputation of the APPLICANT The word “misrepresentation” denotes not just written or spoken words but also any other conduct that amounts to a false assertion.
42. R. v. Mavroudis, 2009 ONCJ 430 (CanLII), Justice P.N. Bourque stated regarding Fraud, Conspiracy and Impersonation, at paragraph 16, 17, 32, 33, 34 and 40 As follows:
http://www.canlii.org/en/on/oncj/doc/2009/2009oncj430/2009oncj430.html
LAW
[16] In the previous sentencing I set out what I felt was the appropriate legal framework for a sentencing for a significant fraud conviction:
[17] In R. v. Savard 1996 CanLII 5703 (QC C.A.), 1996 CanLII 5703 (QC C.A.), (1996), 109 C.C.C. (3d) 471 (Que.C.A.) at 474, the court set out a useful framework respecting sentencing in a fraud case:
…These facts can be summarized as follows: (1) the nature and extent of the loss, (2) the degree of premeditation found, notably, in the planning and application of a system of fraud, (3) the accused’s actions after the commission of the offence, (4) the accused’[s] previous convictions, (5) the personal benefits generated by the commission of the offences, (6) the authority and trust existing in the relationship between the accused and the victim, as well as (7) the motivation underlying the commission of the offences.
……
[32] ……
LAW
Consipracy 465(1)(c)
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction be liable.
Obstructing Justice 139(2)
(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
5. Fraudulent Representation
43. In Wellesley Lake Trophy Lodge v. BLD Silviculture et al, 2005 BCSC 379 (CanLII), The Honourable Mr. Justice Blair stated the following regarding “ALLEGED FRAUDULENT REPRESENTATIONS” and “BALANCE OF PROOF” at paragraph 20 and paragraph 31 as follows:
[20] The parties concur that the elements comprising the tort of deceit or fraudulent representation are:
1. there must be a false representation of fact;
2. the representation must be made with knowledge of its falsity, or at least made in the absence of any genuine belief that it is true, or recklessly;
3. it must be made with the intention that it should be acted on by the defendant, or by a class of persons which includes the defendant, in the manner which resulted in damage to him;
4. it must be proved that the defendant has acted upon the false statement; and
5. that the defendant has sustained damage by so doing.
BALANCE OF PROOF
[31] The defendants must meet a higher degree of probability given that their claim is based on allegations of fraud by Mr. Miller. In Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (S.C.C.), [1982] 1 S.C.R. 164, Chief Justice Laskin for the Court stated at p. 170:
There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered. I put the matter in the words used by Lord Denning in Bater v. Bater, supra ([1950] 2 All E.R. 458) at p. 459, as follows:
It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond a reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.
[emphasis added]
44. Maxim - Perspicua vera non sunt probanda.
Plain truths need not be proved. Co. Litt. 16.
45. At this point the APPLICANT has alleged and hopefully established that “FRAUDULENT REPRESENTATIONS” have occurred and the “BALANCE OF PROOF” regarding preponderance of probability favors that it is more likely that subject malicious informants are intending to further provide fraudulent misrepresentation, to induce the FREDERICTON POLICE FORCE to further act against the APPLICANT, than it is to believe the subject malicious informant(s) have been innocently mistaken, literally one hundred times over the course of five years.
6. Granting Disclosure
46. The law will not intend a wrong.
- Legal Maxim, Bacon's Maxims (17, reg. 3)
47. Section 2 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides as it relates to the Applicant as follows:
Purposes of this Act
2 The purposes of this Act are
(a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
(c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
48. The three provided reasons by the New Brunswick Police Commission, for not disclosing the subject information are:
1.
Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6
If access prohibited under another Act and sunset
provision
5(1) The head of a public body shall refuse to give access or disclose information to an applicant under this Act if the access or disclosure is prohibited or restricted by another Act of the Legislature.
.
5(2) If a provision of this Act is inconsistent with or in conflict with a provision of another Act of the Legislature, the provision of this Act prevails unless the other Act of the Legislature expressly provides that it, or a provision of it, prevails despite this Act.
2.
Police Act, S.N.B. 1977, c. P-9.2
Investigation report
28.2(2) Upon receipt of the documents listed under subsection
(1), the chief of police shall
(a) provide a copy of the documents to the Commission, or, if the Commission agrees, make the documents available for viewing during normal business hours, and
(b) provide a summary of the investigator’s findings and conclusions to the police officer and the complainant
3.
Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6
Unreasonable invasion of third party’s privacy
21(1) The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s privacy.
General duty of public bodies
43(1) A public body shall not use or disclose personal information except as authorized under this Division.
49. Black's Law Dictionary (8th ed. 2004), at Page 3967 provides the following definition of ‘REASONABLE’
REASONABLE
reasonable,adj.1. Fair, proper, or moderate under the circumstances < reasonable pay>.
2.According to reason <your argument is reasonable but not convincing>.
50. Black's Law Dictionary (8th ed. 2004), at Page 47793967 provides the following definition of ‘UNREASONABLE’
UNREASONABLE
unreasonable,adj.1. Not guided by reason; irrational or capricious.
2. Not supported by a valid exception to the warrant requirement <unreasonable search and seizure>.
51. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 Justice IACOBUCCI J. provided the following insight into the Principles of Statutory Interpretation from paragraph 26 though to and including paragraph 30 as follows:
http://www.canlii.org/en/ca/scc/doc/2002/2002scc42/2002scc42.html
(1) Principles of Statutory Interpretation
26 In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
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.
Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, 1984 CanLII 20 (S.C.C.), [1984] 1 S.C.R. 536, at p. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre_Dame de Bon_Secours, 1994 CanLII 58 (S.C.C.), [1994] 3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, 1999 CanLII 679 (S.C.C.), [1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27. I note as well that, in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I_21, which provides that 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”.
27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII), [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, 1993 CanLII 59 (S.C.C.), [1993] 2 S.C.R. 1069, at p. 1079; Pointe_Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (S.C.C.), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)
28 Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (S.C.C.), [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.), at pp. 59_60; R. v. Hasselwander, 1993 CanLII 90 (S.C.C.), [1993] 2 S.C.R. 398, at p. 413; R. v. Russell, 2001 SCC 53 (CanLII), [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46. I shall discuss the “Charter values” principle later in these reasons.)
29 What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of the provision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (S.C.C.), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.
30 For this reason, ambiguity cannot reside in the mere fact that several courts __ or, for that matter, several doctrinal writers __ have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one’s starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra, at pp. 4_5).
52. The stated purposes of this Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is to (a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act, and (c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act.
53. As stated in Bell ExpressVu Limited Partnership v. Rex, 2002, supra by Justice IACOBUCCI J “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”.
54. Interpretation Act, R.S.N.B. 1973, c. I-13, section 17, is reproduced bellow, as follows:
17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.
55. Should the Honorable COURT ORDER the New Brunswick POLICE COMMISSION to grant the APPLICANT right of access to records containing personal information about the APPLICANT that which may be in the custody or under the control of New Brunswick POLICE COMMISSION, said ORDER would be congruent with the stated purpose of the Right to Information and Protection of Privacy Act and Interpretation Act, R.S.N.B. 1973, c. I-13.
56. Section 5 (1) and section 5(2) of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, quoted by the New Brunswick POLICE COMMISSION, provides the following:
If access prohibited under another Act and sunset
provision
5(1) The head of a public body shall refuse to give access or disclose information to an applicant under this Act if the access or disclosure is prohibited or restricted by another Act of the Legislature.
5(2) If a provision of this Act is inconsistent with or in conflict with a provision of another Act of the Legislature, the provision of this Act prevails unless the other Act of the Legislature expressly provides that it, or a provision of it, prevails despite this Act.
57. Black's Law Dictionary (8th ed. 2004), at Page 3828 provides the following definition of PROHIBIT as follow:
PROHIBIT
prohibit,vb.1. To forbid by law. 2. To prevent or hinder.
58. The relative section of the Police Act, S.N.B. 1977, c. P-9.2, does not in fact prohibit, prevent or hinder the POLICE COMMISSION from disclosure of the subject Police Report. The relative section of the Police Act, S.N.B. 1977, c. P-9.2 is provided as follows:
Investigation report
28.2(2) Upon receipt of the documents listed under subsection (1), the chief of police shall
(a) provide a copy of the documents to the Commission, or, if the Commission agrees, make the documents available for viewing during normal business hours, and
(b) provide a summary of the investigator’s findings and conclusions to the police officer and the complainant
59. The key term used here is to “provide”. The chief of police shall (a) provide a copy of the documents to the Commission, or, if the Commission agrees, make the documents available for viewing during normal business hours, and (b) provide a summary of the investigator’s findings and conclusions to the police officer and the complainant
60. merriam_webster.com reveals the following definition for “provide” at the subsequent URL: http://www.merriam_webster.com/dictionary/provide
provide
transitive verb
1archaic : to prepare in advance
2a : to supply or make available (something wanted or needed) <provided new uniforms for the band>; also : afford <curtains provide privacy>
b : to make something available to <provide the children with free balloons>
61. The Police Act, S.N.B. 1977, c. P-9.2Section 28.2(2) does not preclude providing a copy of the Investigative Report to the Applicant.
62. APPLICANT argues that the head of a public body could refuse to give access or disclose information to an APPLICANT under this Right to Information and Protection of Privacy Act if the access or disclosure is prohibited or restricted by another Act of the Legislature (namely the Police Act), which it is not. Consequently APPLICANT argues that the head of a public body should not refuse to give access or disclose information to APPLICANT under this Right to Information and Protection of Privacy Act and has no reason to refuse.
63. Section 84 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides that the Burden of proof (section 84(1) in any proceeding under this Act, is relegated to ‘head’ of the public body to prove , as must be done in this matter, that the APPLICANT has no right of access to the record or part of the record. Since the APPLICANT has provided that Section 28.2(2) does not preclude providing a copy of the Investigative Report to the APPLICANT , there is no need for the head of the public body to prove the position of access refusal or nondisclosure of information to the APPLICANT therefore unnecessary to prove regarding Section 28.2(2) of the Police Act, S.N.B. 1977, c. P-9.2. or Section 5 (1) and section 5(2) of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6
64. Section 84 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following:
Burden of proof
84(1) In any proceeding under this Act, the burden is on the head of the public body to prove that the applicant has no right of access to the record or part of the record.
84(2) Despite subsection (1), if the proceeding under this Act concerns a decision to disclose or to refuse to disclose, in whole or in part, a record containing personal information about a third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s privacy.
84(3) Despite subsection (1), if the proceeding under this Act concerns a decision to disclose or to refuse to disclose, in whole or in part, a record containing information that is not personal information about a third party, the burden is on the third party to prove that the applicant has no right of access to the record or part of the record.
65. Since the third and remaining section of RTIPPA quoted by the new Brunswick POLICE COMMISSION proceeding under RTIPPA involves a decision to disclose or to refuse to disclose, in whole or in part, a record containing personal information about a third party, the burden of the third and remaining section of the RTIPPA is on the APPLICANT to prove that disclosure of the information would not be an unreasonable invasion of the third party’s privacy.
66. Because any active member of the FREDERICTON POLICE FORCE, who contributed to the Report as required by this request would be acting professionally and should not be considered private.
67. RTIPPA provides that the head of a public body shall disclose a record that contains information if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment.
68. The APPLICANT is part of the Public and this is most certainly in the interest of the health of the APPLICANT to have the head of a public body disclose a record that which contains information that the APPLICANT may thereby take reasonable steps to protect himself from these unrelenting harmful and malicious attacks.
69. An investigation into the volume of ”FALSE WITNESS REPORT” calls made to the FREDERICTON POLICE FORCE, regarding the APPLICANT (in this matter)_which will demonstrate blatant anomaly further confirm abuse of the resources of the FREDERICTON POLICE FORCE into malicious dangerous endeavors therefore targeting the APPLICANT.
70. Section 22(5) of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following example of where the head of a public body shall disclose a record in the case of where “the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment” as follows:
22(5) Subject to section 34 and any other exception provided for in this Act, the head of a public body shall disclose a record that contains information described in subsection (1) or (2) if, in the opinion of the head, the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment.
71. As stated above: Black's Law Dictionary (8th ed. 2004), at Page 3967 provides the definition of REASONABLE which is “Fair, proper, or moderate under the circumstances“or “According to reason” It is reasonable that this HONORABLE COURT ORDER the head of the New Brunswick POLICE COMMISSION to provide subject information as requested so that the Applicant may take reasonable Legal steps to be safe against this constant Police harassment and inevitable next latest assault which 6 years of history reasonably indicate will occur, unless the HONORABLE COURT ORDER is ISSUED .
72. As stated above Black's Law Dictionary (8th ed. 2004), the definition of UNREASONABLE “Not guided by reason; irrational or capricious.” or “Not supported by a valid exception to the warrant requirement” It is unreasonable that the Applicant (in this matter) be subject to continuous harassment and endangerment, when all that is required to prevent this is to have a COURT ORDER requiring that the head of the New Brunswick POLICE COMMISSION to provide the requested information to the Applicant.
73. If the Applicant were to request a FREDERICTON POLICE FORCE investigation into the matter, the privacy protections protocols of the FREDERICTON POLICE FORCE would again prohibit the Applicant from knowing the Source of all these harassing Police calls.
74. Invasion of a third party’s privacy, is reasonable, when the third party is abusively manipulating privacy laws in order that their hideous actions may remain hidden, that they may further continue with immunity to make false and misleading malicious phone calls to the FREDERICTON POLICE FORCE dispatcher thereby manipulating members of said Police with crafty schemes and or cunning designs for the accomplishment of a sinister end, designed to harass and endanger the (in this matter) Applicant’s well being . It is only just that this Court “order the head of the public body to grant the request in whole or in part”, in this case POLICE COMMISSION to comply and surrender relevant material as is requested by the APPLICANT. .Enough is enough, it is time the FREDERICTON POLICE FORCE stop being manipulated in the ways as found listed herewithin above and below, moreover, perhaps to allow circumstances to remain as circumstances currently are, it stands to reason that eventually sooner or later the Applicant may be forced to experience as so called mishap accident because of misapprehension by members of FREDERICTON POLICE FORCE, which said altercations could eventually end the life of the Applicant. The Applicant in all sincerity currently lives in constant fear of being accosted by members of FREDERICTON POLICE FORCE .
75. This Honorable Court in pursuance with RTIPPA Section 66(1) has the authority to “order the head of the public body to grant the request in whole or in part”, and the applicant request this Court to do just that.
7. Security of property
Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law.
76. The following is found within giga-usa.com, at the following URL:
http://www.giga-usa.com/quotes/authors/william_blackstone_a001.htm
SIR WILLIAM BLACKSTONE
English jurist
(1723 -1780)
So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.
The public good is in nothing more essentially interested, than in the protection of every individual's private rights.
77. The Chief Justice of New Brunswick, The Honourable J. Ernest Drapeau expressed the function of the court in the following from the New Brunswick Courts Web site at the following address:
http://www.gnb.ca/cour/index-e.asp
A message from the
Chief Justice of New Brunswick
“Free and democratic societies are founded on the supremacy of law, and an independent judiciary is essential to ensure its unbiased application.
Courts play an essential role within Canada’s constitutional framework. They constitute the judicial branch of government, a component that the Constitution of our country compels the legislative and executive branches to preserve and protect.
New Brunswick courts are called upon, on a daily basis, to judge and apply the appropriate law to disputes and provide a peaceful and professional mechanism for their resolution."
78. The HONORABLE COURT applies appropriate LAW to preserve and protect free and democratic societies. To accomplish this task, the HONORABLE COURT have opportunity to protect and promote dignity and worth of the human people and the position of the family in a society of free men and free institutions, by choosing to promote and enforce the right of the individual to life, liberty, security of the person and enjoyment of property, and insure the right not to be deprived thereof except by due process of law.
79. The following copy of the Canadian Bill of Rights is found at the following URL:
http://www.canlii.org/en/ca/laws/stat/sc-1960-c-44/32178/sc-1960-c-44.html
Canadian Bill of Rights, S.C. 1960, c. 44
Canadian Bill of Rights
1960, c. 44
C-12.3
[Assented to August 10th, 1960]
An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms
Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
PART I
BILL OF RIGHTS
Recognition and declaration of rights and freedoms
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) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
80. The right of the individual to equality before the law and the protection of the law is what is meant to be enforced by a just COURT of LAW, which must reasonably recognize that only when the people of Canada (to be more specific), a man is secure, may they enjoy property. The Applicant has a right not to be deprived of his property rights, security of the person, freedom of movement, and entitlement to privacy except by due process of law.
81. Furthermore the MAGNA CARTA and the U.S. CONSTITUTION reflect this same view, the following quote is from the following URL:
http://home.clara.net/heureka/lincolnshire/magna-carta.htm
The great principles of freedom and the rights of man are the joint inheritance of the English-speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence. __ Sir Winston Churchill, address to the Americans, 1946
The original Magna Carta, drawn up in 1215, was to influence the US Constitution and the UN Charter.
Although drawn up in 1215 between King John and the English Barons, the Magna Carta was surprisingly modern in the rights it bestowed.
Magna Carta (Latin for "Great Charter", literally "Great Paper") was drawn up in 1215 to limit the power of English Monarchs, especially King John, from absolute rule.
...........................
One of the most important clauses that was to have the long lasting effect was Article 39:
No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.
This meant the King must judge individuals according to the law, and not according to his own will.
Equally important was Article 40:
To no one will we sell, to no one will we refuse or delay, right or justice.
The importance of these two clauses, the right to be judged by one's peers, is felt in all English speaking countries today.
................................
The influence of Magna Carta can be seen in the US Bill of Rights, which enumerates various rights of the people and restrictions on government power:
No person shall be ... deprived of life, liberty, or property, without due process of law.
........................
The American Bar Association acknowledged the importance of Magna Carta and the debt American law and constitutionalism had to Magna Carta when in 1957 they erected a monument at Runnymede.
82. Furthermore, a more direct quoted excerpt of the Fifth Amendment to the United States Constitution found at the following URL (http://www.constitution.org/billofr_.htm ) which states as follows:
Article the seventh [Amendment V]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
83. The following excerpt of the Magna Carta, section 39 is found here:
http://www.constitution.org/eng/magnacar.htm
39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
84. The following informative definition, for the word disseize, is found at the following URL: http://www.thefreedictionary.com/disseised
disseize
dis·seize also dis·seise (ds_sz)
tr.v. dis·seized also dis·seised, dis·seiz·ing also dis·seis·ing, dis·seiz·es also dis·seis·es Law
To dispossess unlawfully of real property; oust.
[Middle English disseisen, from Anglo_Norman disseisir, variant of Old French dessaisir : des_, dis_ + saisir, to seize; see seize.]
Usage samples from TheFreeLibrary.com
The right can be traced back to 1215 from the Magna Carta: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any other way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers, or by the law of the land.
Untruthful jurors in the federal courts: have we become comfortably ... by Press, Joshua S. / St. Thomas Law Review
When tenant in fee simple, fee tail, or for term of life, was put out, and disseised of his lands or tenements, rents, find the like; he might sue out a writ of assize
In Focus : Considering King Henry II by The Star (Amman, Jordan)
a judgment, it not infrequently disseised itself of jurisdiction.
Compliance with Decisions of the International Court of Justice by Bjorklund, Andrea K. / American Journal of International Law
85. The following definition of the word DISSEISE is found at Black's Law Dictionary (8th ed. 2004), at Page 1425, as follows:
disseise (dis-seez), vb. To wrongfully deprive (a person) of the freehold possession of property. — Also spelled disseize.
86. The English MAGNA CARTA, The United States CONSTITUTION and the Canadian CHARTER OF RIGHTS stated clearly the relationship between life, liberty, and property; arguably there is no property more sacred than a man’s home. The violation of ones home constitutes a serious affront to human dignity.
The Applicant deposes that the actions of the FREDERICTON POLICE FORCE have thus far evidentially, acted contrary to the seriousness represented by ‘Violation of the Sanctity of a Person's Home’. The Right to information and protection of Privacy Act should be read and broadly construed, with the Applicant’s purposed notion of maintaining in mind, the dignity and integrity of the individual. For the benefit of the Court coming to a fair and balanced decision, all these previously referred to documents enshrine the most important principal of law, expressed in the following maxim:
The welfare of the people is the supreme law.
Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12)
Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12)
87. In Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON S.C.) SUPERIOR COURT JUSTICE STINSON J. addressed the right to privacy in Canada and how is it protected from paragraph 23 through to an including paragraph 30 as follows:
[23] I turn to this aspect of the rule 21.01(1)(b) test in light of arguable uncertainty of the existence of the tort of invasion of privacy in Ontario. In seeking an answer to this question (apart from the jurisprudence discussed above) it is useful to address a more fundamental one: is there a right to privacy in Canada and how is it protected? In Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145 (S.C.C.), the Supreme Court of Canada acknowledged the existence of such a right. Dickson J. (as he then was) held that the purpose of the right against unreasonable search or seizure contained in s. 8 of the Canadian Charter of Rights and Freedoms was the protection of the privacy of the individual. In effect, s. 8 is the constitutional embodiment of the “right to be let alone by other people”.
[24] The importance of privacy as a value worthy of constitutional protection was emphasized in another Supreme Court decision, R. v. Dyment, 1988 CanLII 10 (S.C.C.), [1988] 2 S.C.R. 417 (S.C.C.). In that case La Forest J. described three “zones” or “realms” of privacy, which included rights involving territorial or spatial aspects, rights related to the person, and rights that arise in the information context. With respect to privacy in relation to information, La Forest J. wrote (at para. 22):
This too is based on the notion of the dignity and integrity of the individual. As the Task Force [Privacy and Computers, the Report of the Task Force established by the Department of Communications/Department of Justice (1972)] put it (p.13): “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.” In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected ….
[25] There has also been judicial recognition of a constitutional right to privacy in the civil context, as Robyn M. Ryan Bell noted in her article, “Tort of Invasion of Privacy – Has its Time Finally Come?” in Todd Archibald & Michael Cochrane, Annual Review of Civil Litigation (Toronto: Thomson Carswell, 2005) at 225. Among other decisions, Bell cited Canadian AIDS Society v. Ontario 1995 CanLII 7116 (ON S.C.), (1995), 25 O.R. (3d) 388 (Gen. Div.), aff'd 1996 CanLII 1139 (ON C.A.), (1996), 31 O.R. (3d) 798 (C.A.), a case involving a Charter challenge to mandatory reporting of medical information. In that case Wilson J. concluded that there is a right to privacy in the civil law context; after balancing the privacy rights of individuals and the state objective of promoting public health for the safety of all, however, she found no breach of either s. 7 or s. 8 of the Charter.
[26] In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130 (S.C.C.), Cory J. discussed the approach that should be followed when a common law rule is alleged to be inconsistent with the Charter. Writing for the majority, he stated (at para. 92):
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.
[27] Although the Charter does not apply to disputes between private individuals, I agree with the views expressed by Bell, in her article, supra, at p. 229:
The introduction of the Charter has impacted upon the development of the tort of invasion of privacy in two ways. First, the values underlying the Charter include respect for an individual’s dignity and autonomy, values which are, in turn, closely tied to respect for and protection of an individual’s privacy. Second, the Supreme Court has made it clear in cases as M. (A.) v. Ryan, 1997 CanLII 403 (S.C.C.), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values.
[28] Provinces such as British Columbia, Manitoba, Newfoundland, and Saskatchewan have created a statutory tort of invasion of privacy. See John D.R. Craig, “Invasion of Privacy and Charter Values: the Common-Law Tort Awakens” (1997) 42 McGill L.J. 355, footnote 2. In Quebec, s. 5 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, which provides that “every person has a right to respect for his private life”, is directly enforceable between citizens. In Ontario, however, there is no statutory remedy for unreasonable intrusion into an individual’s private affairs.
[29] With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence.
[30] Such a development in the common law has been viewed as appropriate by many legal commentators: see, for example, the articles by Bell, and Craig, supra. Bell wrote (at p. 235):
The emerging social realities of twenty-first century life in Canada include the use of technology that “increasingly facilitates the circulation and exchange of information”, cellular phones that can be used to take photographs, and the seemingly ever-increasing desire by the public at large for media stories, to name but a few examples. A broad embracement of a common law tort of invasion of privacy would reflect an updating of the common law to reflect these emerging social realities….
88. Furthermore, in R. v. Dyment, [1988] 2 S.C.R. 417, Justice La Forest J. stated, regarding the right to privacy and it’s relationship to human dignity at the following paragraphs 15 through to and including paragraph 23 as follows:
15. From the earliest stage of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion; see R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295, at p. 344. The function of the Charter, in the words of the present Chief Justice, then Dickson J., in Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145, at p. 155 "is to provide ... for the unremitting protection of individual rights and liberties". It is a purposive document and must be so construed. That case dealt specifically with s. 8. It underlined that a major, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is the protection of the privacy of the individual; see especially pp. 159‑60. And that right, like other Charter rights, must be interpreted in a broad and liberal manner so as to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments. Its spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times.
16. Indeed, it may be confusing means with ends to view these inherited rights as essentially aimed at the protection of property. The lives of people in earlier times centred around the home and the significant obstacles built by the law against governmental intrusions on property were clearly seen by Coke to be for its occupant's "defence" and "repose"; see Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, at p. 91 b and p. 195 respectively. Though rationalized in terms of property in the great case of Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807, the effect of the common law right against unreasonable searches and seizures was the protection of individual privacy. Viewed in this light, it should not be cause for surprise that a constitutionally enshrined right against unreasonable search and seizure should be construed in terms of that underlying purpose unrestrained now by the technical tools originally devised for securing that purpose. However that may be, this Court in Hunter v. Southam Inc. clearly held, in Dickson J.'s words, that the purpose of s. 8 "is ... to protect individuals from unjustified state intrusions upon their privacy" (supra, p. 160) and that it should be interpreted broadly to achieve that end, uninhibited by the historical accoutrements that gave it birth. He put it this way, at p. 158:
In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington. Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as common law protections. There is, further, nothing in the language of the section to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure.
It should also be noted that s. 8 does not merely prohibit unreasonable searches and seizures. As Pratte J.A. observed in Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535 (C.A.), at p. 548, it goes further and guarantees the right to be secure against unreasonable search and seizure.
17. The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349‑50. Grounded in man's physical and moral autonomy, privacy is essential for the well‑being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
18. Claims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement, and that is what s. 8 is intended to achieve. As Dickson J. put it in Hunter v. Southam Inc., supra, at pp. 159‑60:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
19. The first challenge, then, is to find some means of identifying those situations where we should be most alert to privacy considerations. Those who have reflected on the matter have spoken of zones or realms of privacy; see, for example, Privacy and Computers, the Report of the Task Force established by the Department of Communi‑ cations/Department of Justice (1972), especially at pp. 12‑14. The report classifies these claims to privacy as those involving territorial or spatial aspects, those related to the person, and those that arise in the information context. All three, it seems to me, are directly implicated in the present case.
20. As noted previously, territorial claims were originally legally and conceptually tied to property, which meant that legal claims to privacy in this sense were largely confined to the home. But as Westin, supra, at p. 363, has observed, "[t]o protect privacy only in the home ... is to shelter what has become, in modern society, only a small part of the individual's daily environmental need for privacy". Hunter v. Southam Inc. ruptured the shackles that confined these claims to property. Dickson J., at p. 159, rightly adopted the view originally put forward by Stewart J. in Katz v. United States, 389 U.S. 347 (1967), at p. 351, that what is protected is people, not places. This is not to say that some places, because of the nature of the social interactions that occur there, should not prompt us to be especially alert to the need to protect individual privacy.
21. This Court has recently dealt with privacy of the person in R. v. Pohoretsky, 1987 CanLII 62 (S.C.C.), [1987] 1 S.C.R. 945. The case bears some resemblance to the present one, but there the doctor had taken the blood sample from a patient, who was in an incoherent and delirious state, at the request of a police officer. In holding this action to constitute an unreasonable search and seizure, my colleague Lamer J. underlined the seriousness of a violation of the sanctity of a person's body. It constitutes a serious affront to human dignity. As the Task Force on Privacy and Computers, supra, put it, at p. 13:
... this sense of privacy transcends the physical and is aimed essentially at protecting the dignity of the human person. Our persons are protected not so much against the physical search (the law gives physical protection in other ways) as against the indignity of the search, its invasion of the person in a moral sense.
22. Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980‑81‑82‑83, c. 111.
23. One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. This is especially true of law enforcement, which involves the freedom of the subject. Here again, Dickson J. made this clear in Hunter v. Southam Inc. After repeating that the purpose of s. 8 of the Charter was to protect individuals against unjustified state intrusion, he continued at p. 160:
That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.]
He was there speaking of searches, but as I will endeavour to show, the statement applies equally to seizures.
89. “The welfare of the people is the supreme law”, therefore the right to privacy and private property, and again there is arguably no property more sacred than a man’s home, further, is defended when the courts apply the values underlying the above referenced Canadian Bill of Rights to include respect for an individual’s dignity and autonomy, values which are, in turn, closely tied to respect for and protection of an individual’s Residential Property. Also, Bell, in her article, supra, stated “the Supreme Court has made it clear in cases as M. (A.) v. Ryan, [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values.”
90. As SIR WILLIAM BLACKSTONE stated, supra “The public good is in nothing more essentially interested, than in the protection of every individual's private rights.”
91. 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. And from the earliest stage of Charter interpretation, the Courts has made it clear that “the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion”.
92. One further general point must be made, and that is, if the individual's private property rights, dignity and integrity of the individual, is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions and intrusion of a man’s home must be prevented, and where security of property is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated.
8. Interpretation of Statutes
93. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 Justice IACOBUCCI J. supra, provided the following insight into the Principles of Statutory Interpretation:
Ø 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.
Ø provides that 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”.
Ø “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive….., as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”.
Ø Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision.
Ø What, then, in law is an ambiguity? It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.
94. For comparison, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states:
17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.
95. We find a very helpful explanations of Interpretations of Statutes, in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, by Justice Iacobucci J. which can be found at the following URL: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii837/1998canlii837.html
Interpretation of Statutes, Paragraph 2 of the header of the decision:
At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. 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. Moreover, s. 10 of Ontario’s Interpretation Act provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
96. Paragraph 4 of the header of the Rizzo & Rizzo Shoes Ltd, decision, supra:
The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise. Section 2(3) of the Employment Standards Amendment Act, 1981 exempted from severance pay obligations employers who became bankrupt and lost control of their assets between the coming into force of the amendment and its receipt of royal assent. Section 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. If this were not the case, no readily apparent purpose would be served by this transitional provision. Further, since the ESA is benefits-conferring legislation, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.
97. At paragraph 20 to paragraph 27 of the Rizzo & Rizzo Shoes Ltd, decision, supra:
20 At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the COURT OF APPEAL, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.
21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
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.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, 1997 CanLII 318 (S.C.C.), [1997] 3 S.C.R. 213**; Royal Bank of Canada v. Sparrow Electric Corp., 1997 CanLII 377 (S.C.C.), [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, 1996 CanLII 186 (S.C.C.), [1996] 3 S.C.R. 550; Friesen v. Canada, 1995 CanLII 62 (S.C.C.), [1995] 3 S.C.R. 103.
22 I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues.
24 In Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (S.C.C.), [1992] 1 S.C.R. 986, at p. 1002, the majority of this Court recognized the importance that our society accords to employment and the fundamental role that it has assumed in the life of the individual. The manner in which employment can be terminated was said to be equally important (see also Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (S.C.C.), [1997] 3 S.C.R. 701). It was in this context that the majority in Machtinger described, at p. 1003, the object of the ESA as being the protection of “. . . the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination”. Accordingly, the majority concluded, at p. 1003, that, “. . . an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not”.
25 The objects of the termination and severance pay provisions themselves are also broadly premised upon the need to protect employees. Section 40 of the ESA requires employers to give their employees reasonable notice of termination based upon length of service. One of the primary purposes of this notice period is to provide employees with an opportunity to take preparatory measures and seek alternative employment. It follows that s. 40(7)(a), which provides for termination pay in lieu of notice when an employer has failed to give the required statutory notice, is intended to “cushion” employees against the adverse effects of economic dislocation likely to follow from the absence of an opportunity to search for alternative employment. (Innis Christie, Geoffrey England and Brent Cotter, Employment Law in Canada (2nd ed. 1993), at pp. 572-81.)
26 Similarly, s. 40a, which provides for severance pay, acts to compensate long-serving employees for their years of service and investment in the employer’s business and for the special losses they suffer when their employment terminates. In R. v. TNT Canada Inc. 1996 CanLII 847 (ON C.A.), (1996), 27 O.R. (3d) 546, Robins J.A. quoted with approval at pp. 556-57 from the words of D. D. Carter in the course of an employment standards determination in Re Telegram Publishing Co. v. Zwelling (1972), 1 L.A.C. (2d) 1 (Ont.), at p. 19, wherein he described the role of severance pay as follows:
27 In my opinion, the consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).
98. The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 states at paragraph 17 as follows:
17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.
99. As similarly stated above in Rizzo & Rizzo Shoes Ltd., supra, the Applicant wishes to bring the Honorable presiding JUSTICE OF THE PEACE attention, to recognize, the importance that our society accords to security of the home and the fundamental role that it has assumed in the life of the individual.
100. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.
101. The intention of Parliament can be comprehended to enshrine the Law with capacity and mandate for protection of the deeply cherished community value of the sanctity of the home. This well known, well recognized, established principle of Right of the sanctity of the home, devised for the protection of individual security, applies to all homes of a man or woman and is the factor that makes Residential Tenancies so unique, in reflecting these very principals. A man while maintaining the Peace must be able to venture onto his yard or his drive way, as the case may be, without fear of being accosted by Police.
102. The Applicant will refer to and rely on the well established principle of statutory interpretation, that:
- the legislature does not intend to produce absurd consequences.
- an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment
- a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.
103. The Applicant argues that a label of absurdity may be attached to interpretations of the Right to information and protection of Privacy Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile.
9. Interpretation
104. Black's Law Dictionary (8th edition, 2004), defines Justice as “The fair and proper administration of laws.” The fair and proper administration of Justice in the Courts of New Brunswick, naturally require procedural application of the Rules of Court, further, with the intention of arriving at a determination of every proceeding on its merits.
105. Rule 1.02, of the New Brunswick Rules of Court is reproduced as follows:
CITATION, APPLICATION AND INTERPRETATION
1.02 Application
These rules apply to all proceedings in the Court of Queen’s Bench and the Court of Appeal unless some other procedure is provided under an Act.
106. A determination should be in keeping with the general direction contained in Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, Rule 1.03 (2), of the New Brunswick Rules of Court is reproduced as follows:
CITATION, APPLICATION AND INTERPRETATION
1.03 Interpretation
1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.
107. Reference: In LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) (Please see at paragraph 11 to 19) at the following address:
http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb142/2005nbqb142.html
108. As found provided above, in LeBlanc v. Bastarache, supra, the Honorable Court must consider: “what is necessary to see that justice is done?” The answer may be, if the refusal to grant the Applicant’s request of a COURT ORDER for disclosure of the relevant documents would evidentially do an obvious and substantial injustice to the Applicant, while to permit it is not going to cause any substantial injustice to the third party or prejudice the third party, the requested COURT ORDER for disclosure of the relevant documents may be granted.
109. The rule which emerges from these cases unequivocally recognizes that the Court's main concern must be to see that justice is done and to make certain that the requested Order for disclosure of the relevant documents does not prejudice or work any injustice to either of the parties
Reference: In East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) Justice RIORDON, J. stated the following regarding Rule 1.03, Rule 2.02,. and Rule 1.03(2): (Please see at paragraph 25 – 28) at the following address:
http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb268/2003nbqb268.html
110. The Applicant has noted a similarity to the above provided case, in East Texas Distributing Inc. v. Video Solutions, supra, it would be unfair to not grant the subject requested COURT ORDER as requested by the APPICANT for a COURT ORDER that directs the FREDERICTON POLICE FORCE and or the POLICE COMMISSION to disclosure any relevant documents currently in their possession that may assist in relief for the Applicant from the evidentially dangerous state of affairs as they now stand.
111. The Applicant contends that as provided above, in East Texas Distributing Inc. v. Video Solutions, supra, this is a situation where this Honorable Court must and should apply Rule 1.03 and Rule 2.02. Furthermore, as above “Rule 1.03(2) says: These rules shall be liberally construed to secure the just, and I emphasize just, determination of every proceeding on its merits. It also goes on to say least expensive and most expeditious determination.”. As in the case before this Court, where the Applicant finds himself challenged by apparent limitations as prescribed by the RTIPPA, which, can only be remedied by the granting of a COURT ORDER for disclosure of the relevant documents, so that this matter may be heard on it’s merits and properly investigated.
10. Closing
Maxim- nvitat culpam qui peccatum praeterit –
Translation: Pardon one offence and you encourage the commission of many
112. The Court should make a ruling, which reflects the view that when anyone (as in this matter) misuses the mechanisms of peaceful society, such as benevolent Police Protection, instead manipulates police service for nefarious purposes, that their actions will not be tolerated further that they must forfeit protection of ‘genuine’ privacy which must otherwise be afforded to all forthright individuals who as a consequence are contributing to peaceful society . The Applicant has been subject to an apparent plan of action designed to achieve a particular goal (object yet known) a unreasonable nonstop harassment program against the Applicant in this matter, since year 2005 shortly after the Applicant became a Residential Leasehold Tenant at 29-31 Marshall Street in the City of Fredericton. False witness statements uttered and directed against the applicant thereby manipulated the unsuspecting members of local FREDERICTON POLICE FORCE with unfounded allegations which have lead to the Applicant in this case becoming the victim of malicious false arrest involving violent altercations with members of FREDERICTON POLICE FORCE causing the Applicant André Murray not only serious physical harm but long term psychological lack of ease .
113. The Court should not use the very laws of privacy protection issued pursuant to RTIPPA to therefore designed to protect the public, to in the alternative, as in this case withhold information which evidentially has and will guarantee the harm to the public. By erroneously applying and the misuse of the concept of privacy protection certain disingenuous individuals are manipulating the system to cause harm to (in this case) the Applicant vicariously though manipulation of the Fredericton Police Force while ironically seeking protection and shelter from exposure for their grossly wicked or reprehensible acts of FALSE WITNESS causing bodily harm.
114. Section 2 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides Purposes of this Act as it relates the Applicant as follows:
Purposes of this Act
2 The purposes of this Act are
(a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
(c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
115. When persons misuse and or abuse the system of what is considered public service crime prevention (Police) to instead engage on a systematic vicarious assault upon an innocent individual (Applicant) the (in this case) unnamed caller(s) should reasonably be relinquishing the benefits of association with or otherwise intended protection of what would under normal circumstances may be lawfully withheld information materials by RTIPPA.
116. Since a section of the RTIPPA as quoted by the NEW BRUNSWICK POLICE COMMISSION, furthermore that proceeding under this Act, concerns a decision to disclose or to refuse to disclose, in whole or in part, a record containing personal information about a third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s privacy. The Applicant asserts that the chronic repeat malicious conduct of the unnamed caller(s) amounts to a forfeiture of the usual protection of privacy granted by law and therefore revealing this information would not be an unreasonable invasion of the third party’s privacy.
117. RTIPPA provides a precedent that the head of a government mandated public oversight body such as the POLICE COMMISSION shall disclose any record that which contains information if, in the opinion of the CEO, the private interest of the third party in non-disclosure is clearly outweighed by the significant public interest in disclosure for the purposes of public health or safety or protection of the environment.
118. The Applicant is part of the Public and on behalf of the Applicant it is most certainly in the best interest of the health of the Applicant to have the CEO of a government mandated public oversight body POLICE COMMISSION therefore disclose a record that contains the sufficient information, that the Applicant may reasonable take necessary steps to protect himself from harmful and malicious attacks. Without the intervention of the Presiding Justice having heard this matter André Murray will suffer the ‘loss of quality if life’ by the continuous unwarranted harassment, (evidence provided by AFFIDAVIT) subsequent random physical assaults causing injury, invasion of privacy, home invasion and further damages, which to date have all occurred on a regular basis.
119. If the presiding Justice on hearing this matter elects not to intervene on victim André Murray’s behalf (for that reason) cause a COURT ORDER to be issued to the FREDERICTON POLICE FORCE, and or the POLICE COMMISSION which would clearly demonstrate this irregularity and anomaly which is misappropriating the resources of the Fredericton Police Force into mean and dangerous endeavors targeting the Applicant, that would be disservice to the administration of Justice.
11. Should the Respondent pay costs of the within Motion?
120. Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following:
Costs
76(1) If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1) or appealed to a judge of The Court of Queen’s Bench of New Brunswick under section 75, the judge shall award costs in favour of the person who referred or appealed the matter
(a) where the person is successful, and
(b) where the person is not successful, if the judge considers it to be in the public interest.
76(2) Despite subsection (1), a judge of The Court of Queen’s Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access.
12. Cost Orders in favour of self-represented litigants
121. If the Applicant is successful on REFERRAL, Rule 76(1) states “the judge shall award costs in favour of the person who referred the matter”.
122. The Applicant asserts that this REFERRAL is not frivolous or vexatious nor amounts to an abuse of the right to access, but in the contrary is necessary because the Applicant has no other means to achieve and or obtain the information necessary to protect the rights and safety of the Applicant, therefore this Court should not, pursuant to Rule 76(2) award costs in favor of the public body in any event or outcome of the Decision of this Court.
123. It was the Refusal of THE NEW BRUNSWICK POLICE COMMISSION to provide the requested records, which necessitated the Filing of this REFERRAL further that this Matter be further heard by this Honorable Court, consequentially the responsibility or fault lies with THE NEW BRUNSWICK POLICE COMMISSION who refused access Pursuant to RTIPPA therefore the Order of this Court for Costs should reflect this fact. The Applicant, reasonable has been forced to COURT FILE this REFERRAL out of the necessity for ‘self preservation’.
124. Reference: McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in favor of self-represented Litigants. (Please see below, at paragraph 41 through to and including paragraph 45), at the following URL:
http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca54/2006nbca54.html
125. As stated by Chief Justice J. ERNEST DRAPEAU above in McNichol v. Co-operators General Insurance Company, 2006 , supra, “Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.”
126. The Applicant argues that after due consideration, this Honorable Court may conclude similarly to the Court above in McNichol v. Co-operators General Insurance Company, 2006, supra, that the case before this Honorable Court is one that calls for the exercise of the Courts discretion under Rule 59.01 in a manner favorable to the self-represented Applicant.
127. Following the lead of the above quoted Court Decision, McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Respondent to pay costs throughout, in addition to all reasonable disbursements.
Reference: Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice Robert J. Sharpe J.A stated as follows regarding the right of self-represented lay litigants to recover Costs. (Please see below, from paragraph 15 though to and including paragraph 27), at the following URL: http://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2052.html
128. As stated in Fong, et al v. Chan, et al, 1999, supra, “Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity” such as is the case with the Applicant in this matter before this Court. It is abundantly clear that the Applicant in this matter has devoted copious time over these many months of his time and effort to present interesting and thought-provoking legal argument ordinarily done by a lawyer, which is evidenced in the quality and the voluminous material presented to the Court for consideration in this matter.
129. The Applicant contends that it is now well established by the courts that lay litigants may recover costs, including counsel fees, which is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.
130. As stated above in Fong, et al v. Chan, et al, 1999, supra, as a matter of principle, it seems difficult to justify a categorical rule denying recovery of costs by self-represented litigants.
131. As stated above in above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22 “modern cost rules are designed to foster three fundamental purposes:
(1) to indemnify successful litigants for the cost of litigation;
(2) to encourage settlements; and
(3) to discourage and sanction inappropriate behaviour by litigants.”
All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants.
132. Self-represented lawyers are entitled to indemnity on the ‘time is money’ or ‘opportunity cost’ rationale and it is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants, such as the Applicant in this matter before this Honorable Court.
133. The self-represented litigants must possess skills for which they customarily are remunerated on the regular work week basis, and if the law is prepared to compensate lawyers for ‘loss of time’ when devoting their efforts to their own cause, the same entitlement should extend to self-represented lay litigants who are able to demonstrate the same loss.
134. Costs may be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer therefore, retained to conduct the litigation, further, that as a result, they incurred according to “opportunity cost rationale” costs by foregoing remunerative activity, additionally useful Costs are a useful tool of the Court to encourage settlements or to discourage or sanction inappropriate behavior.
135. The trial judge may be particularly well-placed to assess the appropriate allowance, if any, for a self- represented litigant, and accordingly, the trial judge may either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.
136. Having considered the here within above provided arguments for costs, it was the Applicant who requested both Referral Hearings F/M/1/11 and F/M/22/11 be held concurrent because of the similarities of the content, this Honorable Court may find it appropriate to Order the Respondent to pay costs throughout, in addition to all reasonable disbursements.
ALL OF THIS respectfully submitted this ……day of August 2011.
_________________________
André Murray - APPLICANT
D. PART VI – ORDERS SOUGHT
{(d) a concise statement of the relief sought by the party.}
137. Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following
Decision of The Court of Queen’s Bench
66(1) If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(a) where the matter is referred by an applicant,
(i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and
(c) may make any other order that is, in the opinion of the judge, necessary.
1. Order that the New Brunswick Police Commission to disclose both requested Appendix “C” as provided by and found within the Fredericton City Police Force Reports to the Applicant
2. Order that the Fredericton City Police Force to disclose the full requested Police Reports
3. Order that the investigation by the Fredericton Police into the abuse and malicious manipulation of the Fredericton Police Force services regarding the volume and substance of the telephone reports and complaints containing erroneous and provocative allegations against André Murray (Applicant In this matter) order disclosure of same investigation to the Applicant.
Expressio Unius Est Exclusio Alterius definition:
POST HEARING BRIEF
Court File Number: F/M/1/11
F/M/22/11
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
TRIAL DIVISION
JUDICIAL DISTRICT OF FREDERICTON
BETWEEN:
ANDRE MURRAY
Applicant,
-and-
THE NEW BRUNSWICK POLICE COMMISSION
Respondent,
_____________________________________________________________________
The Applicant’s Post-Hearing Brief
Rules of Court, Rule 38.06.1
For joint Hearing regarding Court File Number: F/M/1/11 and F/M/22/11
Filed by the Self Represented Applicant André Murray
_____________________________________________________________________
André Murray
The Applicant
31 Marshall Street,
Fredericton,
New Brunswick,
E3A 4J8
Telephone Number:
E-mail address:
andremurraynow@
gmail.com
Debora M. Lamont
Stewart McKelvey Barristers, Solicitors and Trademark Agents
Suite 600 Frederick Square 77 Westmorland Street P.O. Box 730 Fredericton NB
E3B 5B4
Direct Dial: 506.443.0125
Main Tel: 506.458.1970
Fax: 506.444.8974 Email: dlamont@smss.com
Debora M. Lamont
Solicitor for Respondent
The New Brunswick Police Commission /
435 King Street,
Suite 202 / 435, Fredericton NB
E3B 1E5
Tel.(506) 453-2632
Fax.(506) 457-3542
PART 1 – INDEX
The Plaintiff’s Post-Hearing Brief
PAGE
- PART I – INDEX ____________________________________ii
- PART II - ISSUES ____________________________________ 1
1. 1.02 Application______________________________________ 4
1.03 Interpretation ______________________________________ 5
Jurisdiction____________________________________________14
FORM 1 REFERRAL __________________________________ 35
Closing ______________________________________________ 36
NOTE _______________________________________________ 39
- PART III – ORDERS SOUGHT ________________________ 40
{(d) a concise statement of the relief sought by the party.}
D. Schedule A - A list of authorities in the order referred to
in the Post Hearing Brief; _______________________________ 40
- Schedule B - The text of all relevant provisions of Statutes or
Regulations ___________________________________________45
PART II - ISSUES
1. Maxim - Neminem laedit qui jure suo utitur. A person who exercises his own rights injures no one. If as in this case the Applicant was actually Defending a criminal matter then according to natural Justice a alleged Defendant in a criminal matter would have the right to confront all evidence intended for use in a fair hearing (therefore all substantive information/material would have been revealed), which is one of the fundamental principles of Justice adhered to in Canada. One of the fundamental principles of justice is that no accusation be allowed to stand unless there is sufficient evidence to support the allegation, however, the Applicant in this matter has suffered injury and harm by judgment without trial, experienced by arrest without warrant, therefore in the interest of preventing further injustice, the Applicant to gain the information necessary for his safety inter alia, is requesting of the Court’s assistance to take this alternative route, as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6,.
2. The Applicant claims this Court has the power to order an investigation at the behest of the alleged matters herewithin alluded to, (this is such a case) when it is in the interest of the public good.
3. The Applicant’s request is believed to be ‘meritorious’ requiring therefore consideration of alleged substantive matters, as distinguished from procedural issues in a case, furthermore Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, provides this Court with the appropriate procedure and therefore jurisdiction to make the requested Order.
4. The Applicant believes that (pursuant to section 12(1) (e) of the Police Act) each police officer of the Fredericton Police Force is charged with responsibility for serving and executing court process in respect of offences against the law,
5. The purposes of this Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 pursuant to section 2 (a) is to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
6. The Applicant believes that this subject request is:
· Necessary for the Applicant’s protection, safety and wellbeing.
· Legally right; lawful; equitable
· Congruent with fair and proper administration of laws.
· Appropriate and well adapted to fulfilling intended objectives as found drafted and issued therewithin the Right to Information and Protection of Privacy Act.
· Congruent with application of judicial discretion, that being exercise of judgment by a judge or court based on what is fair under circumstances and guided by rules and principles of law
7. The Applicant believes this subject request is not frivolous or vexatious nor amounts to an abuse of the right to access as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6.
8. The Applicant believes that without this Honorable Court’s intervention, the applicant will continue to be harassed, harmed, and injured, furthermore, it is plain and obvious after 6 years of this abuse at the hands of members of FREDERICTON POLICE FORCE (three separate arrests without charge, including and or in some cases involving several illegal entries and searches of the Applicants Residential Marshall Street Property) that the Fredericton Police Force have no intention to uphold their Duty, to act to protect the Applicant.
9. To assist this Honorable Court to come to a decision regarding the Courts Jurisdiction and Discretion to grant APPLICANT’S requested Order, as alleged herewithin, requiring for that reason an investigation into abuse and malicious manipulation of the FREDERICTON POLICE FORCE services, further, determining the volume and substance of telephone reports and complaints containing erroneous and provocative allegations against André Murray (Applicant in this matter) and further and most importantly that this Honorable Court Order disclosure of same investigation to the APPLICANT.
10. The APPLICANT will review and define the relevant sections of the law as the APPLICANT understands them as follows:
- Judicature Act, R.S.N.B. 1973, c. J-2
- Rules of Court of new Brunswick 1.02 Application, 1.03 Interpretation (1) (2) and 1.08 Orders on Terms
- Interpretation Act, R.S.N.B. 1973, c. I-13 section 17
- Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 Section 2 and Section 66
- The Police Act, SNB 1977, c P-9.2 section 12
- Expressio Unius Est Exclusio Alterius definition: Latin: the expression of one thing is the exclusion of the other.
- Leges posteriores priores contrarias abrogant. Latin: Subsequent laws repeal prior conflicting ones.
1.02 Application
11. 1.02 Application
These rules apply to all proceedings in the Court of Queen’s Bench and the Court of Appeal unless some other procedure is provided under an Act.
12. Reference “there is the underlying consideration of doing justice between the parties” (Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.), as summed up by Mr. Justice Strayer).”
13. Black's Law Dictionary (8th ed. 2004), defines Justice, at Page 2527 – 2528 as follows:
JUSTICE
justice. 1. The fair and proper administration of laws.
14. The following definition of fair is found at Merriam Webster online at the following: address: http://www.merriam-webster.com/dictionary/fair
Main Entry: 1fair
6 a : marked by impartiality and honesty : free from self-interest, prejudice, or favoritism <a very fair person to do business with>
b (1) : conforming with the established rules : allowed
(2) : consonant with merit or importance : due <a fair share>
c : open to legitimate pursuit, attack, or ridicule <fair game>
15. Black's Law Dictionary (8th ed. 2004), defines fair, at Page 1788 as follows
FAIR
fair,adj.1. Impartial; just; equitable; disinterested <everyone thought that Judge Jones was fair>
2. Free of bias or prejudice <in jury selection, the lawyers tried to select a fair and impartial jury>.
16. Rule 1.02 provides that these Rules of Court apply to all proceedings in the Court of Queen’s Bench unless some other procedure is provided under an Act. Regarding jurisdiction and discretion of this Court to provide the requested relief, Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 affirms this position and does not in fact provide any other contrary procedure for the Court to follow in regards to granting the relief sought.
17. Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following:
Decision of The Court of Queen’s Bench
66(1) (c) If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(a) where the matter is referred by an applicant,
(i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and
(c) may make any other order that is, in the opinion of the judge, necessary
18. Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 clearly states this Court “may make any other order that is, in the opinion of the judge, necessary” the APPLICANT believes this assertion also includes the relief as sought by the APPLICANT.
1.03 Interpretation
19. 1.03 Interpretation
(1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules.
(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.
20. As stated in section 1.03 (1) Except where a contrary intention appears, (in this case there is none) the Interpretation Act and the interpretation section of the Judicature Act apply to these rules
21. Black's Law Dictionary (8th ed. 2004), defines Justice, at Page 2527 – 2528 as follows:
JUSTICE
justice. 1. The fair and proper administration of laws.
22. Furthermore, regarding the New Brunswick Rules of court, Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, it is my understanding that “Judgment on the merits” is a judgment made after consideration of the substantive, as distinguished from procedural issues in a case. Further to this point please find the following definition of “Merits”.
23. Black's Law Dictionary (8th ed. 2004) at Page 3136 May it please the Honorable Court the defines merits as the following:
MERITS
merits. 1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure <trial on the merits>.
2.EQUITY(3) <on questions of euthanasia, the Supreme Court has
begun to concern itself with the merits as well as the law>.
24. The rules of Court 1.03 (2) states “These rules shall be liberally construed”; may it please the Honorable Court the please find the following definition of Construed.
Black's Law Dictionary (8th ed. 2004) at Page 947 defines Construe as follows:
CONSTRUE
construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>.
Furthermore: May it please the Honorable Court the
Black's Law Dictionary (8th ed. 2004) at Page 2526 defines Just as follows:
JUST
just, adj. Legally right; lawful; equitable
25. When viewed in the here within above language, the defined words are followed by bracketed definitions, the Rule 1.03 (2) reads: These rules shall be liberally construed (analyzed and the meaning of explained ) to secure the just (Legally right; lawful; equitable), least expensive and most expeditious determination of every proceeding on its merits (The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure).
26. Furthermore, May it please the Honorable Court the Merriam-webster.com defines merit at the following address
(http://mw4.merriam-webster.com/dictionary/merits) as follows:
Main Entry: 1mer·it
1 a obsolete : reward or punishment due b : the qualities or actions that constitute the basis of one's deserts c : a praiseworthy quality : virtue d : character or conduct deserving reward, honor, or esteem; also : achievement
2 : spiritual credit held to be earned by performance of righteous acts and to ensure future benefits
3 a plural : the substance of a legal case apart from matters of jurisdiction, procedure, or form b : individual significance or justification
27. The APPLICANT, requests that the Court keep with the ‘general’ direction contained in the New Brunswick Rules of court Rule 1.03(2). to secure a fair, just and balanced determination, based on the MERITS. There is a need to protect against rigid compliance with the rules taking precedence over resolving the dispute and furthermore, securing a just and meritorious determination. In this case the rules of Court grant this Court the jurisdiction and discretion to grant the relief sought by the APPLICANT, so there is no procedural “hang up” in issue.
28. The APPLICANT justly seeks a fair opportunity to have this Honorable Court make an Order which may resolve the issues which the APPLICANT is requesting relief, and this Court has the discretion to grant this requested Order.
29. In Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H. McLellan stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits, May it please the Honorable Court found at page 9 to page 17 as, follows:
It seems to me to be worthy particular emphasis that the phrase "should not be granted except for the most compelling reasons" are not found in the Rules of Court. Those words appear to me to be inconsistent with both the letter and the spirit of the Rules and the Judicature Act, which, for example, in s. 26(3) uses words such as "as to the Court seems just".
30. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt:
Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S. Statutes §§ 287, 294.]
31. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt:
Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.
32. The definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx ) and is reproduced below for convenience:
Expressio Unius Est Exclusio Alterius definition:
Latin: the expression of one thing is the exclusion of the other.
In Rodaro, Justice, at ¶856, defined the Latin maxim expressio unius est exclusio alterius as follows:
"... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity."
In Dorval, Justice Cameron expressed it as:
"... to express one thing is to exclude another."
33. Rule 59.01 of the Rules of Court, state that the costs of a proceeding are in the discretion of the Court, subject to any Act and these rules of Court, Rule 59.01 of the Rule so of Court is reproduced as follows:
59.01 Authority of the Court
(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.
34. Rule 59.01 of the Rules of Court, specifically expresses the courts discretion when awarding Costs to Parties. Rule 59.01 recognized that the discretion regarding cost is subject to the Acts of New Brunswick as well as any Rules of Court to the contrary. Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is just such a Rule, the Maxim “Leges posteriores priores contrarias abrogant” (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and affirmed by the Maxim “Expressio Unius Est Exclusio Alterius” (The express mention of one thing excludes all others) }, which limits the discretion of the Court, when deciding Costs on a Referral Hearing.
35. Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following
Costs
76(1) If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1) or appealed to a judge of The Court of Queen’s Bench of New Brunswick under section 75, the judge shall award costs in favour of the person who referred or appealed the matter
(a) where the person is successful, and
(b) where the person is not successful, if the judge considers it to be in the public interest.
76(2) Despite subsection (1), a judge of The Court of Queen’s Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access.
36. Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 according to the Maxim “to express one thing is to exclude another” makes it’s interpretation clear, specifically regarding costs that The Court of Queen’s Bench of New Brunswick may award costs in favour of the public body only if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access. In comparison Section 66 of RTIPPA not so limited.
37. Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 states the following
Decision of The Court of Queen’s Bench
66(1) If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(c) may make any other order that is, in the opinion of the judge, necessary.
38. Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is restrictive regarding the Order as to Costs that this Court may make, probably because the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is a tool to be used by the people and for the peoples benefit. The idea of the public’s tax dollars being used to fund a legal council hired thereby to advise the executive head of a public body (funded by public tax dollars) who for that reason will fight a Taxpayer in the Honorable Court of Queen’s Bench; moreover a Tax payer who is attempting to retrieve information the Taxpayer believes he is entitled to. Section 76 of the Right to Information and Protection appears to be legislation issued as a governor on the throttle, so as to limit the harm imposed on the public.
39. Section 66 is in the alternative is expansive, allowing this Court the discretion to make any other order that is, in the opinion of the judge, necessary to provide relief to the public, and allow for the Court to be creative, in areas where the drafters of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, left out possible just relief.
40. The definition of opinion may be found at the following website (http://www.merriam_webster.com/dictionary/opinion) and is reproduced below for convenience:
Definition of OPINION
1 a : a view, judgment, or appraisal formed in the mind about a particular matter
2 a : belief stronger than impression and less strong than positive knowledge
b : a generally held view
41. The definition of opinion may be found at the following website (http://www.thefreedictionary.com/opinion) and is reproduced below for convenience:
opinion [??p?nj?n] n
1. judgment or belief not founded on certainty or proof
2. the prevailing or popular feeling or view public opinion
3. evaluation, impression, or estimation of the value or worth of a person or thing
42. The definition of DISCRETION is provided by Black's Law Dictionary (8th ed. 2004), at Page 1405 and 1406
DISCRETION
discretion (di-skresh-<<schwa>>n).1. Wise conduct and management; cautious discernment; prudence.
2. Individual judgment; the power of free decision-making.
sole discretion. An individual's power to make decisions without anyone else's advice or consent.
4. A public official's power or right to act in certain circumstances according to personal judgment and conscience, often in an official or representative capacity. — Also termed discretionary power.
administrative discretion.A public official's or agency's power to exercise judgment in the discharge of its duties. [Cases: Administrative Law and Procedure 324, 754. C.J.S. Public Administrative Law and Procedure §§ 60, 206, 223.]
judicial discretion. The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. — Also termed legal
discretion. [Cases: Courts 26. C.J.S. Courts §§ 3, 64–65, 67.]
43. The definition of NECESSARY AND PROPER is provided by Black's Law Dictionary (8th ed. 2004), at Page 3273
NECESSARY AND PROPER
necessary and proper,adj. Being appropriate and well adapted to fulfilling an objective.
44. When read in the above referenced language, bold words are defined with the following brackets, section 66(1) (c) reads as follows the Court may make any other order that is, in the opinion ( judgment, or appraisal formed in the mind about a particular matter) of the judge, necessary (Being appropriate and well adapted to fulfilling an objective.). This is congruent with the definition of judicial discretion, which is the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law.
45. The Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, 66(1) (c), states the jurisdiction and the discretion of this Honorable Court as follows “(Honorable Court) may make any other order (jurisdiction stated) that is, in the opinion (discretion) of the judge, necessary (Being appropriate and well adapted to fulfilling an objective.). The APPLICANT believes that this statement is most similar to the definition of judicial discretion found in blacks Law Dictionary, which reads “The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right”.
Jurisdiction
46. In determining if this Honorable Court has Jurisdiction to make an order, which would Order the Fredericton Police Force to conduct an investigation as requested by the APPLICANT, may require the interpretation of three statues namely:
Ø Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6
Ø Judicature Act, R.S.N.B. 1973, c. J-2
Ø Police Act, SNB 1977, c P-9.2
47. Judicature Act, R.S.N.B. 1973, c. J-2 claims that the Act is notwithstanding any other Act, which would of course include Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6 and the Police Act, SNB 1977, c P-9.2.
48. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt:
Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S. Statutes §§ 287, 294.]
49. The definition of the Maxim Leges posteriores priores contrarias abrogant is provided at the Legal Dictionary website at the following URL at (http://legal-dictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abrogant)
Leges posteriores priores contrarias abrogant. Subsequent laws repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co. 626, 630. A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
50. The definition of Leges posteriores priores contrarias abrogant is provided by Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repeal
Implied repeal
The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e. no longer law). This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".
51. Leges Posteriores Priores Contrarias Abrogant: This method of statutory construction in this case, could apply to:
- Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6 and,
- Judicature Act, R.S.N.B. 1973, c. J-2. and,
- Police Act, SNB 1977, c P-9.2,
but it does not, because there is not conflicting portions or sections. The concept of this maxim is the newer statute later abrogates a prior statute only where “the two are manifestly inconsistent with and repugnant to each other.” The rationale for this form of construction is that the newer statute more accurately depicts the current societal mood or more appropriately applies Jurisdiction to a given subject.
52. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which includes ‘notwithstanding’ is reproduced below as follows:
9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:
(a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909;
(b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division;
(c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and
(d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queen’s Bench Division of the Supreme Court.
53. For the benefit of the Court, the following definition of ‘notwithstanding’ is provided from: http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspx
Notwithstanding
In spite of, even if, without regard to or impediment by other things.
In spite of, even if, without regard to or impediment by other things as stated.
54. Additionally, the following definition of ‘notwithstanding’ is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows:
NOTWITHSTANDING
notwithstanding, prep. Despite; in spite of <notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults>.
55. To understand the use of the term and meaning of ‘notwithstanding’ requires that we interpret the subject statutes. The interpretation of a statute is a question of law, and correctness is the standard of review applicable in this case. Statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41:
Although much has been written about the interpretation of legislation . . ., Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
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.
56. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 Justice IACOBUCCI J., provided the following insight into the Principles of Statutory Interpretation:
Ø 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.
Ø provides that 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”.
Ø “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive….., as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”.
Ø Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision.
Ø What, then, in law is an ambiguity? It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.
57. For comparison, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states:
17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.
58. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment. Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.
59. The Applicant will refer to and rely on the well established principle of statutory interpretation, that:
· the legislature does not intend to produce absurd consequences.
· an interpretation may be considered absurd, if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment
· a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.
60. APPLICANT in this matter, argues that a label of absurdity may be attached to interpretations of the Right to Information and Protection of Privacy Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile.
61. In applying this principle it is instructive to look at the objectives set out in section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides “the Trial Division shall have and exercise general and original jurisdiction in all causes and matters”, while at the same time, section 66(1) (c) of the Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6 clearly reiterates the jurisdiction of a Judge of The Court of Queen’s Bench of New Brunswick in relation to matters governed by Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6. The Applicant reasonably submits that the legislation in question, Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is not by any means ambiguous, and the intention is to make abundantly clear the relationship, role and jurisdiction of Judges of The Court of Queen’s Bench Trail Division of New Brunswick.
62. Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides the following
Decision of The Court of Queen’s Bench
66(1) (c)If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(a) where the matter is referred by an applicant,
(i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and
(c) may make any other order that is, in the opinion of the judge, necessary
63. The following explanation of Statutory interpretation is provided at Wikipedia located at the following URL: http://en.wikipedia.org/wiki/Statutory_interpretation
Conflicts between sources of law
Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.
Ø U.S. Supreme Court: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.
Ø Supreme Court of Virginia: "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).
Ø Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);
64. An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be buttressed by the maxim expressio unius est exclusio alterius. Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 clearly defines the role of a judge of The Court of Queen’s Bench of New Brunswick, in relation to matters governed by the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6. In section 66(1)(c) of the Act, Section 66(1) (c) reaffirms the jurisdiction of a Judge of The Court of Queen’s Bench of New Brunswick to act and in that capacity. If the legislation within the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, intended that a Judge of The Court of Queen’s Bench of New Brunswick shall not have unlimited jurisdiction already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been a need to include ‘conditions’ on how a judge of The Court of Queen’s Bench of New Brunswick has jurisdiction to act and in what capacity, (example Section 76 of the same Act) which has the effect of excluding while limiting the already granted jurisdiction of the Court as per the maxim “expressio unius est exclusio alterius”.
65. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt:
Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. • Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. [Cases: Contracts 152; Statutes 195. C.J.S. Contracts §§ 307, 318–322, 327, 331; Statutes § 323.]
66. The definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx ) and is reproduced below for convenience:
Expressio Unius Est Exclusio Alterius definition:
Latin: the expression of one thing is the exclusion of the other.
Sometimes referred to in short form as expressio unius.
In Rodaro, Justice, at ¶856, defined the Latin maxim expressio unius est exclusio alterius as follows:
"... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity."
In Dorval, Justice Cameron expressed it as:
"... to express one thing is to exclude another."
In Transpacific, Justice Lysyk described it as follows:
"The principle ... expressio unius est exclusio alterius: the express mention of one or more things of a particular class may be regarded as impliedly excluding others."
Although the doctrine is useful in determining the extents of contracts, it is also an important principle in the construction of statutes. In her book on the topic, jurist Ruth Sullivan wrote:
"One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another.
"The maxim reflects a form of reasoning that is widespread and important in interpretation .... the a contrario argument ... negative implication ..implied exclusion ...
"An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied."
"An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied."
REFERENCES:
Dorval v Dorval 2006 SKCA 21
Rodaro v Royal Bank of Canada 2000 OJ 272
Sullivan, R., Driedger on the Construction of Statutes, 3rd Ed. (Toronto: Butterworths, 1994), page 168
Transpacific Tours Ltd. v. Director of Investigation & Research 25 DLR 4th 202; also at (1986) 2 WWR 34; 24 CCC 3d 103; 8 CPR 3d 325; 20 CRR 337 and 68 BCLR 32
67. The APPLICANT believes, that, the herewithin above principles of statutory interpretation are persuasive, especially when considering, that, when certain things are specified in a law, an intention to exclude all others from its operation may be inferred, or to put it another way the intention is a expression of ’the’ one thing is the exclusion of ‘the’ other thing. Because of this expectation, the legislature’s failure to mention the limitation of jurisdiction of this Court (regarding Section 66 of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6), becomes grounds for inferring that it was deliberately not exclusionary, hence for that reason this is an expression of the Honorable Courts jurisdiction to act, therefore, is the exclusion of the possibility, that this Court has limitations of jurisdiction to render decisions, which, may not at first glance, appear to be under the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6.
68. The Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 specifically designates authority or jurisdiction to a Judge of The Court of Queen’s Bench of New Brunswick under subsection 66(1) (c) specifically as the Court's power to decide a case or issue and the Court may make any other order that is, in the opinion of the judge, necessary.
69. Maxim - Neminem oportet esse sapientiorem legibus. No one ought to be wiser than the laws. The Police Act, SNB 1977, c P-9.2 section 12 lists the Duties of police officer as follow:
12(1) Each police officer is charged with responsibility for
(a) maintaining law and order,
(b) preventing offences against the law,
(c) enforcing penal provisions of the law,
(d) escorting and conveying persons in custody to or
from a court or other place,
(e) serving and executing court process in respect of
offences against the law,
(f) maintaining order in the courts,
70. The Police Act, SNB 1977, c P-9.2 section 12 lists the Duties of police officer including performing the Order as requested by the APPLICANT for these reasons would further promote the members of FREDRICTON POLICE FORCE pursuant to The Police Act, SNB 1977, c P-9.2, to be maintaining law and order, preventing offences against the law and to be serving and executing court process in respect of offences against the law.
71. Maxim Nemo est supra leges. No one is above the laws. The Police Act, SNB 1977, c P-9.2 does not preclude this Court from making Order as requested by the Applicant, for that reason, the expression of one thing is the exclusion of another, meaning: the Court may issue such an Order, that, which, would in fact be congruent with the mandate of the Police Act, SNB 1977, c P-9.2 and would, therefore, be directly aiding the members of FREDRICTON POLICE FORCE in their prescribed Duties of a police officer, according to above section 12.
72. The APPLICANT submits, that because of Jurisdiction {not reduced or abrogated in anyway pursuant to the Maxim “Leges posteriores priores contrarias abrogant” (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and affirmed by the Maxim “Expressio Unius Est Exclusio Alterius” (The express mention of one thing excludes all others) }, this Honorable Court can and should (in this matter) render a decision which would provide necessary relief as requested by the APPLICANT, which may clearly determine the nature and degree of the alleged Obstruction of the Police inter alia:
1. Order an investigation to determine is there is substance to the alleged abuse and malicious manipulation of the Fredericton Police Force services.
2. The Investigation shall reveal the excessive volume of `non productive` complaint telephone calls regarding the Applicant and or Applicant’s residence 29 – 31 Marshall Street over the 6 year period from 2005-2011
3. The Investigation shall reveal the number of “non event” responses by FREDERICTON POLICE FORCE to Investigate the Applicant and or Applicant’s residence 29 – 31 Marshall Street over the 6 year period from 2005-2011
4. Moreover, the Investigation may conclusively reveal the unfounded substance of the telephone reports and complaints to FREDERICTON POLICE FORCE regarding the Applicant and or Applicant’s residence of 29 – 31 Marshall Street over the 6 year period from 2005-2011.
5. The Investigation may reveal the identity of the telephone reports and determine why the complaints are without substance nevertheless caused suffering of the innocent Applicant by relentless stalking and or surveillance or the Applicant’s residence of 29 – 31 Marshall Street occurring regularly over the 6 year period from 2005-2011.
6. Finally Order full disclosure of same investigation to the Applicant that the Applicant may acquire a Cease and desist Order for the protection of his body and sole.
73. The Applicant researched CanLii for cases providing examples, therefore, of a Court of Queen’s Bench actually Ordering an investigation of a Municipal Police Force furthermore Ordering a Police Force to reveal records as the case may be. The closest two themes of decisions which referred to a “court ordered investigation” are concerning Business Corporations Act, S.N.B., 1981, c. B-9.1 and Family Services Act (S.N.B. 1980, c. F-2.2).
74. Business Corporations Act refers to Court of Queen’s Bench ordering an investigation into corporate conduct, by checking the corporate records, inter alia, to protect the shareholders of corporations.
75. In Catalyst Fund General Partner I Inc. v. Hollinger Inc., 2004 CanLII 66299 (ON SC), Justice C. Campbell J.: stated the following regarding the issues of scope, extent, timing and cost of Court of Queen’s Bench “court ordered investigation”.
[62] In my endorsement I indicated that an opportunity would be provided to counsel to address the issues of scope, extent, timing and cost of inspection.
[63] Some of these issues may be formulated in the following questions that arise from the matters referred to in s. 230(1) of the CBCA:
1. What are the matters to be investigated?
2. What mandate should the inspector have?
3. Who is an appropriate person or persons to conduct the inspection?
4. How will the inspection be carried out?
5. Extent of access the inspector should have, furthermore, access to which type of material in the possession of which parties?
6. Which person or persons should be required to respond to inquiries and should their responses be evidence given by oath?
7. Schedule of timeframe thought to a reasonable estimate for carrying out the inspection?
8. Estimated cost and who should bear that cost?
9. How will the report be provided to the Court?
10. How to avoid disputes between the interests of Parties therefore establishing a credible inspection deserving of respect?
76. As similarly contemplated in Catalyst Fund General Partner I Inc. v. Hollinger Inc., 2004, the Applicant respectfully suggests the following procedure:
1. What is the criterion to be investigated?
· The Investigation should reveal the precise volume of “complaint” calls received by FREDERICTON CITY POLICE FORCE regarding 29 – 31 Marshall Street over the 6 year period from 2005-2011
· The Investigation should reveal the number of FREDERICTON CITY POLICE FORCE responses to 29 – 31 Marshall Street over the 6 year period from 2005-2011
· The Investigation should reveal the substance of the telephone reports and complaints of calls to FREDERICTON CITY POLICE FORCE regarding 29 – 31 Marshall Street over the 6 year period from 2005-2011.
· The Investigation should reveal the identity of the caller of the subject FREDERICTON CITY POLICE FORCE telephone reports and complaints regarding calls to 29 – 31 Marshall Street over the 6 year period from 2005-2011.
· Order disclosure subject investigation to the Applicant.
2. What mandate should the inspector have?
- Black's Law Dictionary (8th ed. 2004) , at Page 3049 provides the definition of MANDATE:
mandate,n. 2. A judicial command directed to an officer of the court to enforce a court order.
- The investigator for that reason assigned to this case may have the mandate to resolve how it is that so many complaints are unfounded without substance and further solve the questions mistaken identity resulting inter alia in false arrests that which is in public interest to critique and entirely eliminate dangerous practices of the FREDERICTON CITY POLICE FORCE. “What are the matters to be investigated?”
3. Who is an appropriate person or persons to conduct the inspection?
The FREDERICTON CITY POLICE FORCE, have designated individuals who conduct investigations on a regular basis. These same individuals would likely be the most experiences and directed individuals to conduct the requested investigation.
4. How will the inspection be carried out?
May this please the Honorable Court: Since we live in the days and age of computers, to produce the results from the computers used by The FREDERICTON CITY POLICE FORCE, who reasonably have computerized databases to keep track of such calls (topic of this recitation) which the FREDERICTON CITY POLICE FORCE regularly receive; this computerized search would reasonably take little time at all. It is a matter of typing in key word searches and hit the print button.
5. Type of access the inspector should have to identified material in the possession of which parties?
The Fredericton Police Force, investigator would likely only need to conduct a search of the Fredericton Police force computerized databases.
6. Which person or persons should be asked to respond to inquiries? Should there be evidence under oath?
Members of FREDERICTON CITY POLICE FORCE, would only need to conduct a search of the FREDERICTON CITY POLICE FORCE computerized databases for that reason eliminating any need to question the source of the information.
7. What timeframe is a reasonable estimate for carrying out the inspection?
We live in the days and age of computers, to produce the results from the computers used by FREDERICTON CITY POLICE FORCE, who reasonably have computerized databases, would take little to no time at all. It is a matter of typing in key word searches and hit the print button. The time frame to organize in preparation and execute search thereby including accumulation of relevant information would involve no more than an hour or two of time.
8. What is the estimated cost and who should bear that cost?
FREDERICTON CITY POLICE FORCE, naturally have individuals designated who for that reason conduct investigations on a regular basis. They are of course already paid to provide investigative Services moreover appear to be victims of Obstruction.
9. How will the inspector report findings?
The Investigator should provide a written report first of all for this Honorable Court’s consideration, which may be forwarded at the Court’s discretion to the Applicant and THE NEW BRUNSWICK POLICE COMMISSION.
10. How will disputes with respect to the conduct of the inspection be dealt with?
77. In R. v. Lam, 2008 BCPC 248 (CanLII), though the requested Order is different, regarding “The issue in this case is whether a Provincial Court judge can order the police to release items seized” The Honourable Judge M. F. Giardini, discusses the subject of the Authority of the Court To Make an Order, further the Court states “ It is possible that a court with inherent jurisdiction may have jurisdiction to make the order sought”, from paragraph 35 through to and including paragraph 45 as follows:
Is Authority To Make Order Implied?
[35] The next question, in the absence of an express provision allowing this Court to make such an order, is whether such authority is conferred by necessary implication or on some other basis.
[36] Mr. Lam brought this application under s. 490(1) and (2) so I will specifically consider whether those subsections give this Court the authority to make the order Mr. Lam seeks. In doing so I am guided by the comments and conclusions of Chief Justice McLachlin in R. v. Raponi. In that case the Supreme Court of Canada considered whether a Provincial Court judge had the jurisdiction to order the return of $35,000 which had been seized by police without a warrant and without demonstrating reasonable grounds. The procedure, history and background facts of that case are somewhat convoluted and will not be repeated here. However, the conclusions of the court on the issue of jurisdiction are apposite to the matter before me.
[37] The Provincial Court judge in that case made an order returning the money to the applicant. In doing so he held the Code conferred on him the jurisdiction to make an order “implicitly, if not expressly”. The first question the Supreme Court considered was whether the Provincial Court judge could order improperly seized items returned under s. 490(2). The Supreme Court ruled he could not and stated:
... While the Provincial Court judge acted in a s. 490(2) hearing, that section deals only with extending the time of detention beyond three months. The only question to be considered by the Provincial Court judge is whether continued detention is required by a proceeding that has been instituted or by an investigation. [para. 29]
[38] This application is brought by Mr. Lam under s. 490(1) and (2), however, neither of those sections provide a basis for the order sought. Section 490(1) provides for detention of seized materials and for the return of seized materials to the lawful owner or person who is lawfully entitled to possession unless the justice is satisfied the things seized should be detained. In this case a determination under s. 490(1) was made by a justice on January 18, 2008. This subsection does not, in my view, provide a basis to make the order now sought.
[39] Section 490(2) provides that things seized cannot be detained more than three months unless proceedings are instituted which may require the things detained or unless a justice is satisfied that continued detention is warranted. As noted in R. v. Raponi the only question to be considered by a Provincial Court judge under this subsection is whether continued detention is warranted. The hearing on that issue is set for January 12, 2009 and is not before me on this application. Accordingly, this subsection does not provide a basis to make the order now sought.
[40] Mr. Lam submits that the authority to grant the order sought can be gleaned from s. 490 as a whole and in particular s. 490(1)(b), s. 490(2), s. 490(5). He submits I should give the legislation a fair, large and liberal interpretation pursuant to s. 12 of the Interpretation Act.
[41] In my view, the sections of the Code to which I was directed do not support the proposition, by necessary implication, that a Provincial Court judge can order police to place lawfully seized things with the Registrar of the Provincial Court pending the hearing of a contested extension application. My conclusion is strengthened by the fact that s. 490 contains a specific provision (s. 490(4)) regarding the circumstances when a justice “shall forward” things detained pursuant to s. 490(1), (2) and (3) to the “clerk of the court”.
Is there Authority to Make Order on Other Basis?
[42] Mr. Lam argues it is not fair or just for the police to retain possession of the items in question and to continue to deal with them pending the hearing set for January 12, 2009. He says by the time that hearing takes place, the application may well be moot. Given those arguments I have considered whether I have jurisdiction to make the order sought on some other basis. A similar question was raised in R. v. Raponi where the applicant argued the Provincial Court judge had implied powers based on the common law. In that case the court noted:
A number of objections can be raised to this position. First, it ignores the fact that before a judge can make any order, there must be a legal substratum or vehicle to support the order. The legal vehicle for the return of goods unlawfully taken or held is the civil action of replevin before the Court of Queen's Bench. Another vehicle might be a Charter application to a judge of the Court of Queen's Bench. Yet other possibilities may exist. The point is simply that a claim must be grounded in a legal cause of action that permits the judge to grant a remedy.
Second, even if the difficulty of a proper cause of action or source of law could be met, a Provincial Court judge has no jurisdiction to deal with such an action, since the Provincial Court is a court of statutory not inherent jurisdiction. No remedy was available to Raponi in Provincial Court: any cause of action of which he could have availed himself would have been located in a superior court.
I conclude that the Provincial Court judge had no power to order the return of the money outside the Code. Even though it has not been validly challenged and hence stands for the time being, the Provincial Court judge's order for the return of the money to Raponi was made without jurisdiction, and is liable to be set aside in an appropriate proceeding. [paras. 33 to 35]
[43] I was not specifically directed to any other basis upon which a Provincial Court judge could make the order sought. It is possible that a court with inherent jurisdiction may have jurisdiction to make the order sought. A similar order appears to have been made by Mr. Justice Legg in R. v. Papalia. However, the basis for making that order is not set out in the decision. The decision simply notes that the order was made. In the circumstances, I can find no other basis upon which the order applied for could be made by this Court.
CONCLUSION
[44] In this case the application before me was grounded in s. 490 and, in particular in s. 490(1) and s. 490(2), which I have already addressed in these reasons. I have concluded those subsections do not provide express authority to make the order sought. Further, express authority is not found in s. 490 as a whole, neither could I find such authority by necessary explanation. Additionally, I was not directed to any other basis upon which the order could be made by this Court.
[45] Accordingly, for the reasons set out above, I conclude that as a Provincial Court judge I do not have jurisdiction to make the order sought by Mr. Lam that the police forward the seized items in question to the Registrar of this Court.
______________________________
The Honourable Judge M. F. Giardini
Provincial Court of British Columbia
78. Honorable Justice M. F. Giardini stated “is possible that a court with inherent jurisdiction may have jurisdiction to make the order sought”. This Court does have inherent jurisdiction by way of the Judicature Act, R.S.N.B. 1973, c. J-2 section 9(1) which states as follows:
9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:
79. This Court is not restricted by the criminal Code of Canada, and further has Jurisdiction granted and enforceable in pursuance with the following acts and rules of Court:
- Judicature Act, R.S.N.B. 1973, c. J-2
- Rules of Court of new Brunswick 1.02 Application, 1.03 Interpretation (1) (2) and 1.08 Orders on Terms
- Interpretation Act, R.S.N.B. 1973, c. I-13 section 17
- Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 Section 2 and Section 66
- The Police Act, SNB 1977, c P-9.2 section 12
80. Furthermore, the Honorable Court will be acting in furtherance of the spirit of Right to Information and Protection of Privacy Act, S.N.B. 2009, by granting the Order as requested by the Applicant.
FORM 1 REFERRAL
81. FORM 1 REFERRAL (Right to Information and Protection of Privacy Act, S.N.B. 2009, c.R- 10.6, s.65(1)(a)) pursuant to Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6 does not contain a location which is designated for an APPLICANT to provide the detail by which the Honorable Court “(c) may make any other order that is, in the opinion of the judge, necessary”
82. FORM 1 REFERRAL is unlike Rule 37.03 of the Rules of Court which states clearly the requirements that should be present on the face of a Notice of Motion.
37.03 Content of Notice of Motion or Preliminary
Motion
A Notice of Motion or Preliminary Motion shall
(a) state the precise order sought,
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and
(c) list the documentary evidence to be used at the hearing of the motion
83. Furthermore, FORM 1 REFERRAL is unlike Rule 38.04 of the Rules of Court which states clearly the requirements that should be present on the face of a Notice of Application.
38.04 Content of Notice
A Notice of Application shall
(a) state the precise order sought,
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and
(c) list the documentary evidence to be used at the hearing of the application.
84. Therefore, no obligation existed compelling the APPLICANT to provide a written notice of the relief which the APPLICANT was requesting of this Court on the FORM 1 REFERRAL.
Closing
85. When considering Section 2 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 as it relates to the Applicant, provides as follows:
Purposes of this Act
2 The purposes of this Act are
(a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
(c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
86. Furthermore, Section 66 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 provides for the following
Decision of The Court of Queen’s Bench
66(1) (c)If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(a) where the matter is referred by an applicant,
(i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and
(c) may make any other order that is, in the opinion of the judge, necessary
87. Furthermore applicable Rules of Court of New Brunswick:
1.02 Application
These rules apply to all proceedings in the Court of Queen’s Bench and the Court of Appeal unless some other procedure is provided under an Act.
1.03 Interpretation
(1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules.
(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.
1.08 Orders on Terms
When making an order under these rules, the court may impose such terms and give such directions as are just.
88. Furthermore, interpretation of the three relevant statues namely:
Ø Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6
Ø Judicature Act, R.S.N.B. 1973, c. J-2
Ø Police Act, SNB 1977, c P-9.2
Ø Interpretation Act, R.S.N.B. 1973, c. I-13 section 17
89. A label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile; the Applicant is requesting this Honorable Court provide the remedies as contemplated by the drafters of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6.
90. The following is found at legal-dictionary.thefreedictionary.com at the following internet web address provided below:
http://legal-dictionary.thefreedictionary.com/audi+alteram+partem
audi alteram partem [Latin, hear the other side.] It embodies the concept in Criminal Law that no person should be condemned unheard; it is akin to due process. The notion that an individual, whose life, liberty, or property are in legal jeopardy, has the right to confront the evidence against him or her in a fair hearing is one of the fundamental principles of Constitutional Law in the United States and England.
91. It is ironic, that, if the Applicant was actually a criminal then according to natural Justice the Applicant would have the right to confront the evidence against him in a fair hearing, which is one of the fundamental principles Justice adhered to in Canada. However the Applicant is in fact not a criminal and the Applicant is requesting of the Court’s assistance to take this alternative route, as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, to gain the information necessary for his safety inter alia
92. The remedy found herein requested is in accordance with the Rules of Court, the Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6, the Judicature Act, R.S.N.B. 1973, c. J-2 and the Police Act, SNB 1977, c P-9.2.
93. Furthermore the Applicant has argued why this Honorable Court does in fact have the Jurisdiction to grant the relief sought according to Rules of Court, the Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6, and the Judicature Act, R.S.N.B. 1973, c. J-2.
94. In closing let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section 17 which states: “17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.” The Applicant believes that in fulfillment of these stated goals, this Court should grant the Applicants Order as requested, which would in the Applicants view be Justice, which by the Applicants definition is the fair and proper administration of laws.
NOTE
95. The Solicitor acquired by the NEW BRUNSWICK POLICE COMMISSION, has not been hired to represent the interests of the FREDERICTON POLICE FORCE, therefore there is no reason for this Court to receive representations from the Solicitor who is acting in the interest of the NEW BRUNSWICK POLICE COMMISSION, regarding this issue of an investigation into the abuse and malicious manipulation of the Fredericton Police Force services, regarding the volume and substance of the telephone reports and complaints containing erroneous and provocative allegations against André Murray (Applicant In this matter) and most importantly an order disclosure of same investigation to the Applicant.
ALL OF THIS respectfully submitted this ______day of ____________2011.
____________
André Murray
PART III – ORDERS SOUGHT
1. Order an investigation to determine is there is substance to the alleged abuse and malicious manipulation of the Fredericton Police Force services.
2. The Investigation shall reveal the excessive volume of `non productive` complaint telephone calls regarding the Applicant and or Applicant’s residence 29 – 31 Marshall Street over the 6 year period from 2005-2011
3. The Investigation shall reveal the number of “non event” responses by FREDERICTON POLICE FORCE to Investigate the Applicant and or Applicant’s residence 29 – 31 Marshall Street over the 6 year period from 2005-2011
4. Moreover, the Investigation may conclusively reveal the unfounded substance of the telephone reports and complaints to FREDERICTON POLICE FORCE regarding the Applicant and or Applicant’s residence of 29 – 31 Marshall Street over the 6 year period from 2005-2011.
5. The Investigation may reveal the identity of the telephone reports and determine why the complaints are without substance nevertheless caused suffering of the innocent Applicant by relentless stalking and or surveillance or the Applicant’s residence of 29 – 31 Marshall Street occurring regularly over the 6 year period from 2005-2011.
6. Finally Order full disclosure of same investigation to the Applicant that the Applicant may acquire a Cease and desist Order for the protection of his body and sole.
Schedule A - A list of authorities in the order referred to
in the Submission; and
- Reference: Maxim - Neminem laedit qui jure suo utitur.
A person who exercises his own rights injures no one.
2. Reference: “there is the underlying consideration of doing justice between the parties” (Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.), as summed up by Mr. Justice Strayer).”
3. Reference: Black's Law Dictionary (8th ed. 2004), defines Justice, at Page 2527 – 2528
4. Reference: Black's Law Dictionary (8th ed. 2004), defines unjust as at Page 4775
5. Definition of fair is found at Merriam Webster online at the following: address: http://www.merriam-webster.com/dictionary/fair
6. Reference: Black's Law Dictionary (8th ed. 2004), defines fair, at Page 1788
7. Reference: Black's Law Dictionary (8th ed. 2004), defines Justice, at Page 2527 – 2528
8. Reference: Black's Law Dictionary (8th ed. 2004) defines merits at Page 3136
9. Reference: Black's Law Dictionary (8th ed. 2004) defines Construe at Page 947
10. Reference: Black's Law Dictionary (8th ed. 2004) defines Just at Page 2526
11. Reference: Merriam-webster.com defines merit at the following address
(http://mw4.merriam-webster.com/dictionary/merits)
12. Reference: ‘on the merits’ is defined by legal-dictionary.com at the following address: http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits
13. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H. McLellan stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits, May it please the Honorable Court found at page 9 to page 17
14. Reference: Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.
15. Reference: definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx )
16. Reference: definition of opinion may be found at the following website (http://www.merriam_webster.com/dictionary/opinion)
17. Reference: definition of opinion may be found at the following website (http://www.thefreedictionary.com/opinion)
18. Reference: definition of DISCRETION is provided by Black's Law Dictionary (8th ed. 2004), at Page 1405 and 1406
19. Reference: definition of NECESSARY AND PROPER is provided by Black's Law Dictionary (8th ed. 2004), at Page 3273
20. Reference: Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones.
21. Reference: definition of the Maxim Leges posteriores priores contrarias abrogant is provided at the Legal Dictionary website at the following URL at (http://legal-dictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abrogant)
22. Reference: definition of Leges posteriores priores contrarias abrogant is provided by Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repeal
23. Reference: definition of ‘notwithstanding’ is provided from: http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspx
24. Reference: definition of ‘notwithstanding’ is from Black's Law Dictionary (8th ed. 2004),at Page 3378
25. Reference: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 Justice IACOBUCCI J
26. Reference: explanation of Statutory interpretation is provided at Wikipedia located at the following URL: http://en.wikipedia.org/wiki/Statutory_interpretation
27. Reference: Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 :Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.
28. Reference: definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx )
29. Reference: Maxim - Neminem oportet esse sapientiorem legibus. No one ought to be wiser than the laws.
30. Reference: Maxim Nemo est supra leges. No one is above the laws
31. Reference: In Catalyst Fund General Partner I Inc. v. Hollinger Inc., 2004 CanLII 66299 (ON SC), Justice C. Campbell J.: stated the following regarding the issues of scope, extent, timing and cost of Court of Queen’s Bench “court ordered investigation”.
32. Reference: In R. v. Lam, 2008 BCPC 248 (CanLII), from paragraph 35 through to and including paragraph 45 as follows
Schedule B - The text of all relevant provisions of Statutes or Regulations (or copies of the complete Statute or Regulation may be filed and served with the Submission).
Rules of Court
1.02 Application
These rules apply to all proceedings in the Court of Queen’s Bench and the Court of Appeal unless some other procedure is provided under an Act.
1.03 Interpretation
(1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules.
(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.
37.03 Content of Notice of Motion or Preliminary
Motion
A Notice of Motion or Preliminary Motion shall
(a) state the precise order sought,
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and
(c) list the documentary evidence to be used at the hearing of the motion
38.04 Content of Notice
A Notice of Application shall
(a) state the precise order sought,
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and
(c) list the documentary evidence to be used at the hearing of the application.
59.01 Authority of the Court
(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.
Judicature Act, R.S.N.B. 1973, c. J-2
9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:
(a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909;
(b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division;
(c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and
all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queen’s Bench Division of the Supreme Court
Interpretation Act, R.S.N.B. 1973, c. I-13
17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.
Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6
Purposes of this Act
2 The purposes of this Act are
(a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
(c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act,
Decision of The Court of Queen’s Bench
66(1) (c)If a matter is referred to a judge of The Court of Queen’s Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and,
(a) where the matter is referred by an applicant,
(i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and
(c) may make any other order that is, in the opinion of the judge, necessary
Costs
76(1) If a matter is referred to a judge of The Court of
Queen’s Bench of New Brunswick under subsection
65(1) or appealed to a judge of The Court of Queen’s
Bench of New Brunswick under section 75, the judge shall
award costs in favour of the person who referred or appealed
the matter
(a) where the person is successful, and
(b) where the person is not successful, if the judge
considers it to be in the public interest.
76(2) Despite subsection (1), a judge of The Court of
Queen’s Bench of New Brunswick may award costs in favour
of the public body if the judge considers that the matter
for review or appeal is frivolous or vexatious or
amounts to an abuse of the right to access.
Police Act, SNB 1977, c P-9.2
12(1) Each police officer is charged with responsibility for
(a) maintaining law and order,
(b) preventing offences against the law,
(c) enforcing penal provisions of the law,
(d) escorting and conveying persons in custody to or
from a court or other place,
(e) serving and executing court process in respect of
offences against the law,
(f) maintaining order in the courts,
