Sex Offender Classification: Amusing story

Here is a sad but true and somewhat amusing story about what makes a Sex Offender. It shouldn’t take too long before the majority of the population will be classified as Sex Offenders.

By Marsha Burns

Or read it below

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Look Who’s a Sex Offender Now!
It’s easy to be complacent about sex offender laws — until one of them comes crashing down out of the blue on top of you or someone in your family. Unfortunately, it’s becoming easier and easier all the time for that to happen — with behaviors that most people consider perfectly healthy and acceptable, like breastfeeding or taking innocent pictures of their own babies in the buff. Here are some heartbreaking examples.

Contents

• If you allow your teenager to have sex.
• If you discipline an unruly child.
• If you kiss your naked baby.
• If you breastfeed your baby.
• If you take pictures of your children naked.
• If you’re a teenager taking naked pictures of yourself or your sweetheart.
• If you win custody in a nasty divorce.
• If you get caught taking a pee.
• If you have consensual sex in prison.
• If you kiss a student on the cheek.
• If you take pictures of children in public.
• If you look at children in public.
• If you have consensual sex with a teenager.

Okay for your teenager to have sex? You’re a sex offender.

Detroit, 2004. Michael Schrake was arrested, jailed, registered as a sex offender, and forbidden to see his three children because he allowed his 15-year-old daughter to sleep with her boyfriend. He at first believed that the boy was only 18, but when he found out he was 20, he went to the police to complain. But the police arrested both the boyfriend and the father, charging the latter as an accomplice. As far as the police were concerned, the age of the boyfriend didn’t matter because it is a crime to allow a minor to have sex at all.

See Father Faces Charges For Allowing Teen Daughter To Have Sex: Report — Man Apparently Provided Condoms To Daughter, Boyfriend — WDIV-TV (Detroit, Michigan), January 7, 2004 and Local Dad Shocked By Sex Charges Against Him — Man must register as sex offender — WDIV-TV (Detroit, Michigan), February 18, 2004. His name is not in the registry as of December 2007. This might mean that his case was overturned. Still, according to the news reports, he spent time in jail for this and was for at least some period of time not allowed to see his own children!

Georgia, 2002. When Janet Allison’s 15-year-old daughter got pregnant, she allowed her 17-year-old boyfriend to move in with the family. For this, she was convicted of being a party to child molestation. Even though the couple later married, she remains a registered sex offender for enabling their relationship. Because of this, she has had to move out of her four-bedroom home, which was too close to a church, and now lives in a trailer.

See Absurdity Breakout: Laws end up targeting not-so-dangerous ’sex offenders’, GateHouse News Service, August 20, 2007.

Discipline an unruly child? You’re a sex offender.

Chicago, 2005. Fitzroy Barnaby had to swerve to avoid hitting a 14-year-old girl who walked in front of his car. He got out and grabbed her arm to lecture her on safety. The girl complained and the man was convicted of unlawful restraint of a minor — officially making him a sex offender.

See He grabbed girl’s arm — now he’s a sex offender, Chicago Sun-Times, July 1, 2005. His name is not in the registry as of December 2007. In a phone call, his lawyer explained he is not yet on, pending a ruling from the US Supreme Court. The Illinois Supreme Court declined to hear the case, saying that the issue was decided in another case, in which a kidnapper was determined to be subject to SO registration even though there was no sexual activity with the victim. It seems astounding that the court was willing to take a kidnapping as analogous to this case!

Kiss your naked baby? You’re a sex offender.

North Carolina, 2005. Charbel Hamaty spent six months in prison for kissing his naked baby on the belly button. His wife was also arrested and she was denied contact with their children for several months for taking a picture of the “abuse.”

See Parents Cleared of Child Abuse in Photo Flap, Associated Press, July 27, 2005.

Breastfeed your baby? You’re a sex offender.

Dallas, Texas, 2003. Jacqueline Mercado and her boyfriend were arrested on felony charges for a photograph of her breastfeeding her child.

See 1-Hour Arrest, Dallas Observer, April 17, 2003.

Take pictures of your children naked? You’re a sex offender.

Georgia, 2006. Jody Jenkins “took some photos of my kids naked on a camping trip. A drugstore employee called the police — and my family’s life became a living hell.”

See They called me a child pornographer — I took some photos of my kids naked on a camping trip. A drugstore employee called the police — and my family’s life became a living hell. — Salon, July 18, 2006.

Canada, 2006. Paramjit Singh was charged with attempting to smuggle child pornography into Canada and was denied entry into the country to join his wife and son because he had a naked baby picture of the boy on his cell phone.

See Nude photo labelled porn, Toronto Star (Toronto, Canada), April 14, 2006.

USA, 1990s. There was, throughout the 1990s, an average of about one case per year that made it into the news of photo lab customers being arrested for taking innocent naked photographs of their children.

See Is this child pornography? — American photo labs are arresting parents as child pornographers for taking pictures of their kids in the bath. — by James Kincaid, Salon, January 31, 2000. Five example cases are briefly described in the article.

Boston, 1996. Toni Angeli was confronted and arrested by police in front of her four-year-old son when they went together to the photo lab to pick up photographs that included some innocent pictures of the child naked.

See No Excuse: Zona Labs and its legal allies should have known better, Boston Phoenix, February 9, 1996 (More on the case).

Teenager taking naked pictures of yourself or your sweetheart? You’re a sex offender.

Tallahassee, Florida, 2004. A 16-year-old girl and her 17-year-old boyfriend took pictures of themselves naked and engaging in unspecified “sexual behavior.” One of them e-mailed the photos to the other. They were arrested on child pornography charges. Florida law allows teenagers of that age to be sexual with each other, but recording it is still illegal.

See Police blotter: Teens prosecuted for racy photos, CNet News, February 9, 2007 and A.H., a child v Florida, First District Court of Appeal, Florida, January 19, 2007.

Pennsylvania. A 13-year-old girl is on the sex offender registry for life because she took pictures of herself naked.

See Absurdity Breakout: Laws end up targeting not-so-dangerous ’sex offenders’, GateHouse News Service, August 20, 2007.

Virginia. Two teenage girls are on the sex offender registry for life because they took topless photographs of each other.

See Absurdity Breakout: Laws end up targeting not-so-dangerous ’sex offenders’, GateHouse News Service, August 20, 2007.

Win custody in a nasty divorce? Watch out! You might be a sex offender.

Charleston, W.Va., 2007. Melissa Hicks did not mention any sexual improprieties during the divorce proceedings against her husband, David. But after she was not granted custody of their two daughters, he became the pariah of the neighborhood and was sentenced to 30 years in prison for alleged misdeeds with various little girls.

See West Virginia Man Sentenced To 30 Years In Prison On Child Pornography Charges, US Department of Justice, November 2, 2007 and Letters in support of David Hicks, US District Court (Charleston, West Virginia), April 12, 2007.

Got caught taking a pee? You’re a sex offender.

Florida, 2007. Juan Matamoros’s charge for public urination was in Massachusetts in 1986. But it makes him a sex offender to this day, which means he has to move his family because he’s not allowed to live within 2500 feet of a park, and the house they’ve been living in is near three of them.

See Florida Banishes Man for Public Urination, MSNBC, March 2007.

Chicago. A construction worker who relieved himself behind a garbage can in an alley was spotted by a police officer, arrested, and convicted of public urination and indecent exposure. As a Mexican immigrant, he was later rounded up for deportation by Homeland Security’s “Operation Predator.”

See Immigrant sex offenders targeted, Chicago Tribune, February 24, 2005.

See more examples of people on the sex offender registry for public urination and other types of “indecent exposure” in Q&A # 6

Have consensual sex in prison? You’re a sex offender.

Ohio, 2001. Tammy Welton used to work at a state prison, where sex is illegal for inmates or with inmates. Consent being irrelevant, she was convicted of sexual battery and spent six month back in prison on the other side of the bars. That conviction now makes her a Tier III (highest risk level) sex offender for the rest of her life.

See Next Comes Burning at the Stake: Is Ohio getting too tough on sex offenders?, City Beat (Cincinnati, Ohio), August 15, 2007.

Kiss a student on the cheek? You’re a sex offender.

England, 2006. Alan Barrett resigned from the school’s board of governors after he gave a 10-year-old girl a kiss on the cheek in the course of publicly congratulating her for improving her performance in arithmetic.

See Vicar steps down for cheek kiss — A vicar has stepped down as a school governor after kissing a primary pupil on the cheek to congratulate her. / A police inquiry found the Rev Alan Barrett had no case to answer. — BBC News (United Kingdom), July 13, 2006, Kiss goodbye to innocence, Times (London, England), July 16, 2006, and You must remember this . . ., Times (London, England), July 18, 2006.

Take pictures of children in public? You’re a sex offender.

Troy, New York, 2006. Jean Hetman was forbidden to take pictures of her daughter figure-skating because of a new policy instituted by the arena to protect children from pedophiles.

See NYCLU threatens to sue city over new photo policy, The Record (Troy, New York), May 9, 2006.

England, 2005. Alastair Macaulay went for a walk on the beach on a beautiful summer day. He had his camera with him and photographed a group of children making sandcastles. An hour later, he was reported to the police and arrested.

See ‘The CCTV recorded me taking two photographs: one of a group of children’ — On an idyllic summer’s day, a theatre critic goes for a walk on Scarborough beach. He has a camera with him and photographs a group of children making sandcastles. An hour later, he is reported to the police and arrested. Here, Alastair Macaulay relives the horror of that moment and of the years of pain and paranoia that followed — Telegraph (United Kingdom), March 19, 2005.

Look at children in public? You’re a sex offender.

Florida, 2007. An unidentified man was questioned by police after he spent more than an hour watching a children’s karate class.

See Creepy incidents at Collier karate class – not so creepy, WBBH-TV (Fort Myers, Florida), July 17, 2007.

New York City, 2005. Sandra Catena took a break from her dance lessons and sat down in the park. She was given a ticket by police for violating a law designed to keep out pedophiles — that adults are not allowed in the park without children.

See Ticketed For Sitting on a Park Bench?: Law Designed to Keep Pedophiles Out of City Parks, WABC-TV (New York, New York), September 27, 2005.

New York City, 2005. Nicholas Stix was walking in his neighborhood when he found that a schoolgirl was eyeing him suspiciously for looking at her. When he smiled to try to assure her he was friendly, she seemed even more afraid.

See Child Molester Hysteria in New York, Men’s News Daily, February 1, 2005.

And, of course, the big taboo:
Have consensual sex with a teenager? Obviously, you’re a sex offender.

Maine, 2002. Nineteen-year-old Bill Elliott had sex with his girlfriend days before she turned 16, and he served four months in jail for it. Five years later, his and another man’s names were pulled at random from the sex offender registry by a Canadian vigilante, who shot them to death in their homes before taking his own life.

See Sex Offender Registries: Putting Lives At Risk? — Double Murder of Maine Men Sparks Debate About Online Sex Registries — ABC News, April 18, 2006.

Illinois, 1998. Kristin Perk was just shy of 15 when she “came on” to her 35-year-old guitar teacher, Mark Perk, whom she married five years later in 2003. They now have two children, whose father is a registered sex offender because he had sex with their mother when she was too young.

See The witch-hunt continues: House Bill 5523 by Mark Zorn, Chicago Tribune blog, March 27, 2006 and Murders Put Focus on Sex-Offender Registry Policies, NPR News, April 21, 2006 (Audio report).

For more examples

For a similar list of cases, most of them different from the ones given here, see You Might Be a Sex Offender If … by Derek Logue.

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Soon enough there should be more people in prison than out of it here in Canada if the Conservatives and their sick Christian Fundamentalist (Council of National Policy backers), get it their way.

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To Defend Canada

PROJECT FREEDOM CANADA
Canada is currently facing a crisis of extreme proportions in terms of a MAJOR violation of human rights to be enacted soon by a single political party. This political party is the Federal Conservative Party. This party is intending to RAISE the age of sexual consent from the current age of 14 to the age of 16. This will result in a loss of constitutional rights to all citizens of Canada that are the age of 14 and 15 years old – a substantial portion of the population -. This party believes they have the right and authority to do this for several reasons:
– the general political ignorance of that affected age group
– the apathy of the majority of citizens who feel that this issue does not affect them and is therefore unworthy of challenge
– the unwillingness of those who are aware to defend those incapable of defending themselves
Project Freedom Canada will not permit this gross violation of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS to go unchallenged. See excerpts of the Charter below:
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The MANDATE of Project Freedom Canada
– That it is not within the power or authority of any one political party to rescind the basic constitutional rights of any group of citizens.
– The Federal Conservative Party in Canada is by passing of the proposed legislation to RAISE the age of sexual consent guilty of violating the Canadian Charter of Rights and Freedoms.
– To defend the integrity of the Charter by preventing the rescinding of rights granted to citizens. A right given is protected by the Charter. To defend those citizens affected by this law not only directly – as all those aged 14 and 15 – but indirectly as all those sexual minorities defined as Ephebephile who suddenly find themselves outside the law in their sexual relations.
– To prove that the Federal Conservative Party in Canada has no legal grounds for this violation of the Charter. Their arguments are not based on fact but instead on general apathy towards this act and hysteria in regards to consensual adolescent sexual activity.
– To challenge this violation according to section 24 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

Project Freedom Canada

Read all about the Charter Challenge Transcripts

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Court Transcripts

Uncategorized
Below are the transcripts. I was unable to obtain standing on behalf of public interest so it is now the Criminal Lawyers Association that has been contacted to aid in this endeavour.

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Court File No. CV-08-00355544-0000

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OCTAEVIUS ALTAIR

Applicant

-and-

ATTORNEY GENERAL OF CANADA and A.G. OF ONTARIO

Respondents

**********

M O T I O N

BEFORE THE HONOURABLE, MR. JUSTICE BELOBABA

on Monday, March 30th, 2009, at TORONTO, Ontario

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APPEARANCES:

O. Altair, Mr. Applicant (Unrepresented)

R.W.Y. Lee, Esq. Counsel for Respondent

N. Dennison, Ms. Counsel for Respondent

THE COURT: Good morning. Okay, good, so we can now start with the only matter that is before us today. Ms. Dennison, you are here?

MS. DENNISON: Yes.

THE COURT: Mr. Lee, good morning to you.

MR. LEE: Yes.

THE COURT: Mr. Altair?

MR. ALTAIR: Yes.

THE COURT: Good morning to you. And this is, to say the least, an interesting application or proceeding that has been brought by Mr. Altair to challenge the constitutionality of the recent amendment to the Criminal Code that raised the age of consent for having sex from 14 to 16 and Mr. Altair has not been charged with any offence under the new legislation, but you are simply, from your point of view…

MR. ALTAIR: To prevent anyone from being charged.

THE COURT: …to prevent anyone from being charged. You are here to vindicate the public interest, as you see it, and to try to bring this application or action, because it’s not clear what it is…

MR. ALTAIR: We could talk about that later, yes.

THE COURT: …to bring this to see if a Judge would, indeed, agree with you and find that the law is in some way and for some reason unconstitutional, right?

MR. ALTAIR: Sure.

THE COURT: Okay. So, Ms. Dennison, you are bringing the motion to dismiss the proceeding in the altogether, aren’t you?

MS. DENNISON: Yes, that’s correct.

THE COURT: And as an alternative claim, you are also looking to strike it out as non-disclosing a reasonable cause of action?

MS. DENNISON: That is correct.

THE COURT: All right.

MS. DENNISON: I just wanted to ensure that the Court had all the material before them, which would include a copy of the Attorney General’s factum, motion record, three books of authorities. Mr. Altair has also provided written submissions, as well as material in support of his written submissions and I hope you have received all of that.

THE COURT: I am looking for the written submissions of Mr. Altair. I don’t think I have that.

MR. ALTAIR: Oh, dear. I delivered it to your secretary last week on the 20th, or 19th, Friday. Oh, do I have to speak into that?

THE COURT: Yes, you really should stand up when you speak to me.

MR. ALTAIR: Oh. It would have been — oh, that’s it. You’ve got it right there. Right, that’s it. Sorry, I didn’t bind it.

THE COURT: Let me just take a few minutes to look at this, okay.

MS. DENNISON: Certainly.

THE COURT: I have your factum here, Mr. Altair.

MR. ALTAIR: There should be the factum, as well as the statement of claim and the notice of constitutional question.

THE COURT: No, I have all of that. Just the factum, though, has a bunch of appendices, right, of various press releases and things of that sort, right. Okay, let me just look at the factum quickly.

Where is the container for this? I don’t want to lose — okay, yes, we will just put this over here.

Okay, Ms. Dennison, I have gone through your factum — your factum, along with your colleague, Mr. Lee’s written argument and I really just need to hear argument on one point. In fact, I need Mr. Altair to respond to just one point.

MR. ALTAIR: Oh, all right.

THE COURT: And you have read the factum of the Attorney General of Canada?

MR. ALTAIR: Oh, yes. That’s why I brought it. I thought we would have a chat and follow along. I don’t know how these things…

THE COURT: Sir, you should stand up — stand up when you address the Court.

MR. ALTAIR: Oh, dear, I am sorry. Yes.

THE COURT: Okay, this is something that clearly concerns you and I don’t deny you the right, at least as you see it, to be concerned about it. It is something that may end up being litigated by you or by someone else where these constitutional issues and arguments may well be deployed, but the first hurdle you have and the hurdle that you have not cleared is that you don’t have standing to bring this lawsuit.

MR. ALTAIR: I thought that’s what we were here for.

THE COURT: No, I know, but…

MR. ALTAIR: Sorry.

THE COURT: …I am just saying to you — I am saying to you, sir, that the law could not be clearer on this and I want you to look at paragraph 39 of the Attorney General’s factum, because it’s set out in that paragraph.

MR. ALTAIR: Which book would that be in?

THE COURT: That’s called the factum of the Attorney General.

MR. ALTAIR: Oh, this one here. Oh, okay. I was under the impression that the reason why they were challenging was because I didn’t have standing.

THE COURT: Yes, you don’t have standing.

MR. ALTAIR: And, yeah, the purpose was to obtain standing. That’s what I thought.

THE COURT: No, you — the point is, you are claiming as a public interest litigant. You are not charged and before the Criminal Courts of our land.

MR. ALTAIR: And we don’t want anyone to be. That’s why I am here.

THE COURT: Right and you are simply someone who is interested in seeing that a certain law be tested constitutionally…

MR. ALTAIR: Correct, yes.

THE COURT: …and ideally, from your point of view, be set aside, all right. The Canadian Law, in fact, most laws in western society, don’t allow a public interest litigant to just come forward and as officious interveners start to challenge laws at whim to clear the public interest standing hurdle and that has been done in a very narrow category of cases. You have to satisfy two or three very critical tests. Failing any one of them means you cannot be a public interest litigant and this is set out in paragraph 39 of the factum — well, actually, it starts sooner than that. It starts on paragraph 33:

“No standing to claim violation of the rights of others.”

And the Attorney General sets out the law on this point and by the time they get to paragraph 39, this is the point that catches my attention, Mr. Altair and this is where it’s clear that this is not a case where any Court would allow you to proceed simply out of the public interest and let me read this out.

“The claim for public standing most clearly fails the third part of the test. Mr. Altair has not shown that there is no other reasonable and effective way for the issue to be brought before the Court.”

In other words, the test says you have got to show to the Judge there is no other effective way for this issue to be brought before the Court, unless I, Mr. Altair, get standing to litigate this on behalf of concerned citizens. Here, you are in the Criminal Code. Here, everyday across our fair land, sadly, people are being charged with criminal offences and sadly, especially under the sexual offence category, there are dozens, if not hundreds, of men and women that are being arrested everyday for various transgressions, various violations of the Criminal Code and that’s why they say in paragraph 39:

“The prosecutions under many of the offences in question occur on a regular basis. The validity of the provisions, as amended in 2008, will no doubt be questioned in the course of future prosecutions and Courts hearing these Charter challenges in future prosecutions will have the benefit of actual factual disputes featuring specific circumstances of actions accused persons and victims.”

MR. ALTAIR: Well, when I mentioned in my factum the violation of Charter — of s.15, I am speaking about what we have almost here, really, is a conflict of values, because there is simply no reason for these laws to be invented. I mean, we’re talking about a portion of the population that have been adults in this country that is currently in Canada for hundreds of years. Raising the age of sexual consent one year, is the same as raising it ten. It’s like raising the voting age.

THE COURT: Right.

MR. ALTAIR: It’s like — it’s like…

THE COURT: But those are Charter arguments. I am not there yet.

MR. ALTAIR: Oh.

THE COURT: I am not even talking about the other arguments that the Attorney General is making about s.15 or the other Charter claims. I am not even at the constitutional issue.

MR. ALTAIR: Oh.

THE COURT: I am simply at the very first, what’s called the threshold, the doorway issue.

MR. ALTAIR: Say, yeah, I thought that’s what we were here for.

THE COURT: Can you — can you be in this courtroom, in any courtroom in Canada, as a public interest litigant challenging these Criminal Code provisions in these circumstances and the answer, I think, is unequivocally, no, you cannot.

MR. ALTAIR: Oh, that’s a shame.

THE COURT: Why…

MR. ALTAIR: I was looking forward to it, you know.

THE COURT: Why, Mr. Altair? Because there are other reasonable and effective ways for the issue to be brought before the Court and that’s right from the Supreme Court of Canada, a line of cases that have said, basically, Mr. Altair, if there is no other way, if there is no other way for this matter to be heard by a court of law, then the public interest litigant should be given standing to voice the concerns on behalf of everyone or on behalf of his group of concerned individuals. But here, again, to repeat what I have said, the Criminal Code is active every day, from your point of view, unhappily arresting and prosecuting people in circumstances where they have allegedly violated the age of consent. In this case it would be having sex with boys and girls under the age of 16, if they are not within that five year, I think, age proportionality provision. So, everyday, literally, there are other men and women who are being arrested that will have the opportunity to test the validity of this law in the context…

MR. ALTAIR: Yeah, see, I was hoping I could do that before that happened, before anyone was tried, but no, eh? That’s a shame.

THE COURT: No, not with the Criminal Code where you have such a ready and active avenue of prosecutions where the Court will have the benefit of having John Doe or Jane Smith stand up and say I am in jail, I am charged, my liberty is at stake, I am entitled to bring and mount all these constitutional arguments to prove to you, Your Honour, that the law is unjust, unfair, unconstitutional. Here are — here is the evidence, here is what my lifestyle is like, what my interests are like and the Court then has the ability, with a very strong evidentiary foundation, to look at the person who is charged voicing a constitutional grievance or complaint and test against the Attorney General’s defence of the law whether or not the law is valid or invalid and to that extent, this massive undertaking on your part, which is documented extensively, to say the least, is to no avail. I mean, my advice to you — my advice to you is to be on the lookout for cases where people are charged and then come to their assistance with this additional line of argument…

MR. ALTAIR: I am prepared to do that.

THE COURT: …or, and I am not advising this at all, yourself…

MR. ALTAIR: Well, you know, I don’t…

THE COURT: You know, but there is no other…

MR. ALTAIR: …I don’t break the law.

THE COURT: …choice, sir, and that’s why, frankly, with respect to you, for what I think is still a very much misguided — a misguided action on your part, but that’s your right to bring a lawsuit as you deem appropriate. I found that in reading the materials, once I came across and reviewed the issue of the law on standing, which I did diligently, there was just simply no way in the world that this case could go forward…

MR. ALTAIR: Well, that was quick, then. I thought we would be here a lot longer than that.

THE COURT: …unless — unless you are, in fact, charged with this offence.

MR. ALTAIR: Oh. All right, I guess there is nothing we can do about that.

THE COURT: Now, so, I don’t have to hear from you, Ms. Dennison or you, Mr. Lee. Thank you both for the materials you have submitted. I will endorse the record accordingly. I will not say anything about the Charter issues, Mr. Altair, because I don’t need to get there.

MR. ALTAIR: Oh.

THE COURT: What I am saying is that the threshold has not been crossed…

MR. ALTAIR: Oh, I’m sorry, you are still talking. I am sorry about that.

THE COURT: You don’t — you have not established standing in this kind of a case where, typically, the argument is and should be made by people who are charged with the offence.

MR. ALTAIR: You see, I was a bit confused. I thought that’s what we were here to do today, to prove standing. I thought that’s what this was about. I guess not.

THE COURT: Well, no, you are, in a sense, to prove standing, but what I am saying to you, sir, is that there is no legal authority that I am aware of or that you could find, nor have you found any, that would provide you, as a public interest litigant, with the ability to challenge this law outside of a reality of being charged with the offence. It’s just not the way the system works. Otherwise — well, no need to explain the policy behind it. I think you understand.

MR. ALTAIR: Hm-hmm. No, I think I understand, yeah. That’s fine.

THE COURT: So…

MS. DENNISON: Your Honour, we took the liberty of drafting a draft order. We would like to…

THE COURT: Okay. Show it to Mr. Altair, though, would you?

MS. DENNISON: Yes, certainly.

MR. ALTAIR: Oh.

MS. DENNISON: It doesn’t say on what basis, so your endorsement would still be…

THE COURT: Yes, the endorsement is simply on the base of standing, not on the basis of the Charter challenge.

MR. ALTAIR: Well, I guess there is nothing we can do about that. I will have to — I agree, you know, if that’s the case.

MS. DENNISON: It says the basis of it is — this just says, “This Court orders that the proceeding be dismissed.”

THE COURT: Yes.

MS. DENNISON: So, I think that’s fair, in the circumstance and you can certainly endorse the record to reflect Your Honour’s opinion that there is no standing in this case. I apologize for it not being stapled.

THE COURT: Okay, so, I have signed one order, Mr. Altair and counsel. I will read the endorsement out to you.

R E A S O N S F O R D E C I S I O N

Belobaba, J. (Orally):

On March 30, 2009, Ms. Dennison and Mr. Lee for the Attorney General of Canada, Mr. Altair in person; motion by AG Canada to dismiss the proceeding brought by Mr. Altair.

The proceeding appears to be a combined application and statement of claim. I will refer to it as an action. The motion is granted. The action is dismissed primarily on the ground that Mr. Altair has no standing to bring this lawsuit. He has not shown that there is no other reasonable and effective way for the issue to be brought before the Court. Indeed, the more appropriate avenue is via a defendant who has been charged with the relevant criminal offence.

Order to go as per the order signed today and the order signed today, again, makes clear that this proceeding is dismissed.

Counsel, anything further?

MS. DENNISON: Thank you, Your Honour. Not that I am aware of.

THE COURT: No?

MS DENNISON: It’s my first civil case, so, thank you.

THE COURT: Okay, there is no request for costs, then?

MS. DENNISON: I don’t think so, in the circumstances.

THE COURT: Very good.

MS. DENNISON: Thank you.

MR. ALTAIR: Do I sign a piece of paper?

THE COURT: No.

MR. ALTAIR: Oh, okay.

THE COURT: No, you will get a copy of the endorsement, sir and a copy of the order…

MR. ALTAIR: Oh, okay.

THE COURT: …and that will be that. Thank you both — all three of you very much.

MS. DENNISON: Thank you.

***Adjourned***

*********

This is to certify that

the foregoing is a true

and accurate transcript

of my recordings to the

best of my ability and

skill.

_________________________

Jacqueline M. Johnston-Fierro

Official Court Monitor

March 30,2009

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We have all documentation ready to restore law and order to Canada. Do feel free to contact the criminal lawyers association and impress upon them the urgency in this matter to obtain standing on behalf on any client charged for this gross violation of the Canadian people by the sick, Federal Government.

Criminal Lawyers Association

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Read some of the Factum

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Factum Introduction

Uncategorized
I will not present the entire factum as it is over 450 pages. I have decided to provide the introduction for those interested. This is a factum that will be used as soon as another is charged with violating the illegal age of sexual consent increase and other illegal amendments that were made to the Criminal Code of Canada (I am unable to pursue the Attorney General of Canada directly as I have not been awarded Standing from the Supreme Court).
FACTUM :introduction only

It is not by choice that I am serving as legal counsel for those I represent but a matter of circumstance. There are many others in this country that are far more apt and skilled to deal with this gross violation of our constitution but they sadly do not have the inclination to do so. I serve here as a result of these changes that force me to choose between political imprisonment verses the alternative of being a political exile, while at the same time directly divesting my lovers of their status as adults. This same status as adults –sexually-, that has been granted to them and enjoyed by them in this territory that is currently known as Canada, for hundreds of years-this cannot be stressed enough-. Not since the Victorian era has there been such an outrageous divestment of rights, when the legal age of sexual consent was unjustly increased from age 12 to age 14. Canada lacked a Charter of Human rights to defend the citizens from the perverted zeal of sectarian interests at that time. It is the act itself that is a violation of our Charter of Human Rights and Freedoms. Increasing the age of sexual consent 1 year is the same act as increasing it by 10 years. It is a classificationist targeting of a percentage of the population to suddenly label them as “children”, and strip them of their personal liberty. It is an act that will only result in an overburdened criminal justice system due to the tens of thousands of suddenly new Canadians that have been labelled sex offenders that will result –this cannot be stressed enough-. There is nothing complicated here in respect to the reason for our being here. This is an “open and shut case”. There is no mystery and no amount of prestidigitation will alter the fact that it is a result of an action. There is no true reason for us to be discussing the sexual minorities who are defined as paedophiles, since paedophilia is currently illegal in Canada. In fact the only reason why we are here is a result of a government that has selected to target a portion of the population that are currently adults and divest them of their right to continue to live as the adults they are and have been for hundreds of years. Teenagers aged 14 and 15 year-olds are not children. The fact that they are held culpable as adults and treated accordingly for violent crimes is confirmation of the fact that they are not children. The sexual relations between 14 and 15 year-olds and their lovers are relations amongst consenting adults and have no place being targeted by a Federal Government that has no justification for doing such a trivial thing, especially when there are so many more important and pressing issues in Canada.

It is simply not acceptable to allow an atmosphere to exist in Canada that will permit an individual’s socio-economic class to pose as a barrier to justice. In September 2006, the Government of Canada cancelled the Court Challenges Program once more, despite an independent evaluation done in 2003 that endorsed the Program’s purpose and operation, and despite the renewal of the contribution agreement with Heritage Canada until March 2009. I serve as the legal council for my clients as it is not possible for me to afford to pay for a lawyer, nor is it possible to apply for Legal Aid to cover this Direct Constitutional Challenge. The fact that private, unlearned and oft ill-prepared citizens must represent themselves in the Supreme Court to defend their Constitutional rights is a construct of the Federal Government of Canada. To strike my action as a result of procedural error will do nothing to terminate this conflict that was caused directly through the misdeeds of the Federal Government of Canada. It will not alter the facts of this matter, nor will it end this matter but only prolong it. To strike this action is to interfere in the completion of the “full circle of justice”. It is a misdeed that has served as the catalyst to cause this conflict without purpose. A misdeed committed by a servant of the people and now it is the just indignation of the people that must be faced. To allow otherwise is to permit a shelter to exist from the “full circle of justice” that must not be permitted. We demand that the Attorney General of Canada be held accountable to the people and stand and defend the misdeeds that have caused this conflict.

It is important to take note that we are presently in Canada. Not the U.K. nor Australia, nor the United States of America but in Canada. In Canada we must be proud that we have our Canadian Charter of Rights and Freedoms as a part of our Constitution to protect citizens. It is what makes Canada better than most other country’s and that is why it is the duty of every citizen within Canada to defend our Constitution and the Canadian Charter of Rights and Freedoms that it is a part of. We have it as our great responsibility to serve as leaders in the World and not be followers. While they attempt, we shall accomplish, while they think, we shall know. Canada must remain true to form as a beacon that lights the path of reason and leads away from the darkness of superstition.

There are some within Canada that believe that our country would be better without this Canadian Charter of Rights and Freedoms within the Constitution as they feel it is too litigious. They would like to re-write the Constitution without the Canadian Charter of Rights and Freedoms as well as limit the Judges within the Supreme Court of Justice to ten-year terms. They would like the Supreme Court to be just a rubber stamp of approval for the deeds or misdeeds of the State and to have no power over the actions of such a State. They do not believe that the government is elected by the people to serve the people but rather to dominate and control the actions and even the very thoughts of the people within Canada -not unlike the oppressive sectarian regime of the country of Iran– that’s not Canada. They behave in such a manner as to pretend that in Canada, we have no such Canadian Charter of Rights and Freedoms, but we do. By increasing the age of sexual consent they are attempting to set a precedent that will not be permitted. It has never been set and it shall not be set. It is their actions that display their utter contempt felt towards this Constitution within Canada. It is deeds and misdeeds by which we are judged. Not by empty threats, nor by unfulfilled promises, nay, but by our actions. An object at rest – if it may be said to hold desire – will desire to remain at rest. It takes a catalyst to provoke a conflict where there is none and this is an action.

This conflict currently before us is a result of a misdeed by this Federal Government. It is our responsibility to now correct this misdeed through action. The legal age of sexual consent will be restored to age 14 and all amendments made to the criminal code of Canada that rely on the legal age of sexual consent to be at age 16 will be deemed vapid and therefore will be struck permanently from the code. This will be the end result of all court proceedings, regardless of the time it will take to restore law and order to Canada. Within this country there will be no rise in Classificationist thought above the truth of Universalist thought. There will be no further targeting of minorities and no imposing upon the free Canadian people a foreign “Values System”, that will result in no change, apart from an excessively larger Sex Offenders Registry. This is a deliberate confiscation of personal liberty not seen within this Canada since the internment of the Japanese during WWII. The act of increasing the age of sexual consent is a despicable act itself and raising it 1 year is the same act as raising it 10 years –this cannot be stressed enough-It is the act itself that will not be tolerated. Increasing the age of sexual consent to age 24 will not prevent individuals below the age of 24 from rapists because rapists do not respect the law. A rapist is a rapist because that is what they are and what they do regardless of their age, sex, sexuality, race, socio-economic class etc. We have laws in Canada that deal with rape. To increase the age of sexual consent is to only result in an increase of the numbers of innocent Canadians who can be imprisoned as sexual offenders and result in an additional burden on an already overburdened criminal justice system. There is no good rape and bad rape, there is only rape and all rape is the same. There are no good victims and bad victims but only victims and all victims are the same. There is no good consensual sex or bad consensual sex. All consensual sex is the same for without consent there is only rape.

About me

Communication is very important. In order for us to comprehend a matter we must appreciate the source of this information and so we will discuss here the facts of what we are. Oftentimes an action can only be understood when the motivation behind the action is viewed as a leaning based on the actual point of reference from whence it came.

I am a sexually active Hebephile/Ephebephile (teen lover) and engage in recreational sex exclusively with boys aged 14 to 18 years old. I admit that most of my lovers have been 16 and 17 but there is no reason to refuse the attentions of 14 and 15 year-old boys and I have had numerous lovers who were that age. I do not have relationships with boys. I only engage in recreational sex with them. I am a Humanist/Atheist and a member of The Brights. I regard Human sexuality and expression as a need in terms of Human emotional and mental stability. I regard sex and orgasms as a healthy (when practiced safely), form of recreation and encourage many to pursue their passions and desires without fear or shame but with courage and pride. Since moving to Toronto I’d say that I have had roughly 30 to 40 different lovers over the past 8 years. This is the reason why I will be regarded by the court as an authority on teen sexuality, I am not a rapist nor am I a predator. I am an adult who selects to engage in recreational sex with teenaged boys who are sexually attracted to older men and find me sexually attractive. Harmless, consensual, recreational sexual activity requires 2 or more willing participants. The fact that the present Federal Government within Canada openly chooses to publicly identify itself as a part of the Christian Fundamentalist movement and target all 14 and 15 year-olds for the divestment of their rights and to confiscate the personal liberties of tens of thousands of more Canadians through imprisonment, is disgraceful.

I am a published author and have made a significant contribution to Canadian boylove culture through my book entitled Viamund the Boylove Vampyre Says… Poetry & Haiku’s. I have included the webpage that contains the story of the book as well as a copy of the book – the one that was made through the 3-year contract with iUniverse- until my contract was cancelled as a result of too many complaints from Christian Fundamentalist targeting campaigns. This type of boycotting is trivial compared to hate sites created through Christian Fundamentalist organizations that stalk individuals and encourage illegal behavior against those who do not have the same values as these Christian Fundamentalist organizations. This is something that must not be permitted in Canada.

The Federal Government of Canada has openly allied itself with the Christian Fundamentalist movement and organizations that are not based on nationality but rather on sectarian agendas that extend beyond our borders. Such organizations like the Council for National Policy, Focus on the Family, Family Action Coalition, Wikisposure and other miscellaneous Christian Fundamentalist groups are classificationist and encourage their members to violate laws. The age of sexual consent increase will not “protect” adults from their own Human sexuality and expression. It is a conflict of values whereby we have a government that has abused the power it was granted by the people in order to impose it’s values on Canada. Humanists know that young adults old enough to be persecuted as adults for a violent crime are therefore old enough to consent to harmless consensual recreational sexual activity. Sex is healthy and a need in terms of human emotional and mental stability – this cannot be stressed enough -. Youth must learn about sex safe, contraceptive use, pregnancy, sexually transmitted diseases, the difference between consent verses non-consent in an unbiased manner in order to “protect” themselves. Patterned-power-differentials exist within all relationships to a degree and are not a negative factor in human relationships. Canada must continue to represent pride, courage and truth. Not fear, shame and lies. There is only one truth regardless of the popularity of it. If 8000000000 people claim that the world is flat and only 8000 people claim that the world is round, the world will still be round. The Federal government is guilty of forcing Canadians to change their values or to abandon Canada and flee elsewhere or to face imprisonment. There is nothing petty or frivolous about the need to strike these amendments that were made to the Criminal Code of Canada and restore law and order to our country. There is nothing harmful about consensual sex that has been enjoyed by adults in Canada for hundreds of years but there is something very harmful about a Fundamentalist government being permitted to violate our constitution for no purpose apart from a lie. It is time for truth.

Tags: Canadá, criminal code, factum, law

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Urgent Action Required

It is imperative that any individual who is charged for violating the illegal age of sexual consent increase contained within the forced passage of Bill C-22 make sure that their legal counsel contacts me here
viamund@hotmail.com
All the documentation required to restore law and order to Canada by having all illegal amendments that were made, struck permanently from the Criminal Code of Canada are ready.
– We know that human sexuality and expression is a need
– We know that all 14 and 15-year-olds have been sexually regarded as adults for hundreds of years
– We know that increasing the Age of Sexual Consent 1 year is the same act as increasing it by 10 years
– We know that increasing the age of sexual consent to age 24 will not prevent people under age 24 from being raped

It was not possible for me to pursue the Attorney General of Canada directly as I was not awarded standing. It is not feasible to bring this matter before the courts by having innocent Canadians charged for a violation on the part of the Fundamentalist Conservative government of the Canadian Constitution. The only feasible manner to bring this before the courts was to grant me standing on behalf of public interest. I am preparing to launch an appeal on this matter if I am not contacted soon by legal counsel of any who are charged. There simply is no contest as the Attorney General of Canada does not stand a chance of having any victory over us.

Here is an article about the stupid Christian Fundamentalist Conservative government and their continued attempts to instil a sense of Shame, Fear and Lies in Canada.

From METRO an article by Bruce Cheadle

Or read it below
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Tories return to tough-on-crime theme with enhanced sex offender registry

Stephen Harper’s Conservatives returned to safe tough-on-crime waters Monday with a cross-country media blitz on a new bill aimed at sex offenders. Voters are just the bycatch.

Whether it be a predatory pedophile, violent repeat rapist, child-porn purveyor, drunken flasher or simply an immature 21-year-old convicted of having a consensual relationship with a 15-year-old, all will automatically go upon conviction into the national sex offender registry under the proposed new legislation.

A sample of their DNA will be held and their personal movements tracked for the balance of their lives.

And police will be able to use that information pre-emptively, rather than only as an investigative tool after a crime is committed as is currently the case.

“If police see an individual behaving suspiciously – near a school ground for example – they’ll be able to request information from the database,” Public Safety Minister Peter Van Loan said at a news conference in Ottawa.

“They will be able to learn if the person involved is a registered sex offender.”

Currently, a judge has to approve registration of a convicted offender after a formal application by the Crown.

Van Loan said the automatic provision will almost double the number of sex offenders going into the registry.

No new funding, however, is being allocated to the RCMP-administered system, which currently costs $550,000 annually.

The new legislation, which won’t likely be passed into law until next fall at the earliest, will also require that Canadians convicted of sex crimes outside the country be included in the registry.

“No longer will Canada be a safe haven from which travelling sex offenders can operate safely,” said Van Loan.

Whether the expanded registry is good criminal justice policy is open to debate. Whether it is good politics is not.

“It’s very consistent with much of the Tory agenda on crime,” said criminologist Neil Boyd of Simon Fraser University.

“They’re looking at how they can shape public opinion.”

More than half a dozen different Tory MPs and cabinet ministers delivered the registry’s tough-on-crime message Monday at various points across Canada. The government had already leaked the news to selected media outlets a day earlier.

Opposition MPs leapt on the bandwagon.

“My question to the Conservatives is, what’s taken three-and-a-half years to do it?” NDP MP Joe Comartin asked outside the Commons.

MP Dominic LeBlanc sounded the requisite Liberal concerns about the Charter of Rights but added that “at first glance, anything that will improve the reliability of the information on the registry seems to us to be appropriate.”

Police chiefs across the country lauded the legislation.

Paul Gillespie, who retired from the Toronto police child exploitation unit three years ago and now runs a child safety website, http://www.kinsa.net, said the changes will be a vast improvement.

The existing registry, said Gillespie, is “not easily accessible to front-line officers or investigators, so it was useless.”

The new registry will also enforce ongoing monitoring of offenders, unlike the existing version.

“I think it’s a tremendous piece of legislation,” said Gillespie.

But Boyd said repeated studies have shown convicted sex offenders – “contrary to public perceptions” – are actually less likely to reoffend than other criminals.

“There isn’t a singular sex offender,” he said.

“If the sex offender registry was really only for violent, predatory sex offenders then it would have a very small number of names.”

The policy change, said Boyd, “is really about imagery. It’s not about reality.”

His was not the common view.

Lianna McDonald of the Winnipeg-based Canadian Centre for Child Protection called the registry changes “an important step in the right direction.”

McDonald lauded both automatic inclusion and allowing police to use the registry “proactively.”

“I think Canadians will be quite shocked when we see the growth of the registry, when you look at the number of individuals convicted . . . . which speaks to a larger problem we have,” she said.

She said it’s a positive development that all people convicted of possessing child pornography, for instance, will be included on the registry.

McDonald raised the spectre of the 2003 Toronto murder of 10-year-old Holly Jones. The killer confessed later to viewing child pornography before the crime – although he’d never been caught and convicted, so he would not appear on today’s registry.

“We know we’re not going to catch everybody,” McDonald conceded.

“This is only the tip of the iceberg.”

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Pay particular attention to this …”or simply an immature 21-year-old convicted of having a consensual relationship with a 15-year-old…” This is what we have been waiting for. This is all we require in order to restore the Legal Age of Sexual Consent within Canada to age 14. It will not be a challenge as soon as we have standing.

Any persons charged for violating this illegal amendment must make sure their legal counsel contacts me here
viamund@hotmail.com

The sooner, the better. It is time for Pride, Courage and Truth. “Let’s get the show on the road and clean house.” I’m waiting and I’m not going anywhere.

Supreme Court: Standing not awarded

I made my appearance in the Supreme Court of Canada on this day March 30, 2009. I had hoped to obtain standing on behalf of public interest in the matter of the illegal age of sexual consent increase contained within the forced passage of Bill C2. Sadly it has not been granted.

In Canada it is only possible to challenge the constitutional validity of an amendment to the criminal code if standing is determined. To be charged under the law for violating the code will grant automatic standing. In order for a private individual to be awarded standing on behalf of public interest, there must be no other reasonable means to bring the matter before the courts. I had hoped I would be awarded standing in order to prevent individuals from being charged under these illegal amendments, but as there will be people charged they will be granted standing themselves at that time. Therefore standing on behalf of public interest was not awarded to me.

If any individuals within Canada are charged for violating this illegal age of sexual consent increase they should contact me in order to be provided to their legal council all documentation that will enable them to strike these provisions from the criminal code on the basis of Constitutional Question.

Contact me here viamund@hotmail.com

It is not possible for me to be charged personally for violating these new laws as it would involve me having to break one of my main rules, “Gentlemen never kiss and tell.” I could never drag a lad before the courts in order to do this. I never break my rule.

Time To Kill The Free Market:: David Suzuki knows this

A great article by David Suzuki is a prime example of why we must end this “Free Market”. Labour Value means that one hour of labour is the value of set labour credits, globally. Consumer goods must likewise be based on this Global Labour Value. An article by David Suzuki aids us through explaining how this “Free Market” is just a new Demi-God that must be slain as all past Gods have been slain through the Light of Reason.

Read this article HERE
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A behemoth that won’t stop growing

Have you noticed that we describe the market and economy as if they were living entities? The market is showing signs of stress. The economy is healthy. The economy is on life support.

Sometimes, we act as if the economy is larger than life. In the past, people trembled in fear of dragons, demons, gods, and monsters, sacrificing anything — virgins, money, newborn babies — to appease them. We know now that those fears were superstitious imaginings, but we have replaced them with a new behemoth: The economy.

Even stranger, economists believe this behemoth can grow forever. Indeed, the measure of how well a government or corporation is doing is its record of economic growth. But our home — the biosphere, or zone of air, water, and land where all life exists — is finite and fixed. It can’t grow. And nothing within such a world can grow indefinitely. In focusing on constant growth, we fail to ask the important questions. What is an economy for? Am I happier with all this stuff? How much is enough?

A timely new book by York University environmental economist Peter Victor, Managing Without Growth: Slower by Design, Not Disaster, addresses the absurdity of an economic system based on endless growth. Victor also shows that the concept of growth as an indispensable feature of economics is a recent phenomenon.

The economy is not a force of nature, some kind of immutable, infallible entity. We created it, and when cracks appear, it makes no sense to simply shovel on more money to keep it going. Because it’s a human invention, an economy is something we should be able to fix — but if we can’t, we should toss it out and replace it with something better.

This current economic crisis provides an opportunity to re-examine our priorities. For decades, scientists and environmentalists have been alarmed at global environmental degradation.

For the first time in four billion years of life on Earth, one species has become so powerful and plentiful that it is altering the physical, chemical, and biological features of the planet on a geological scale. And so we have to ask, “What is the collective impact of everyone in the world?” We’ve never had to do that before, and it’s difficult. Even when we do contemplate our global effects, we have no mechanism to respond as one species to the crises.

So all the things an intact ecosystem does to keep the planet vibrant and healthy for animals like us are simply ignored in our economy. No wonder futurist Hazel Henderson describes conventional economics as “a form of brain damage.”

Nature’s services keep the planet habitable for animals like us and must become an integral component of a new economic structure. We must get off this suicidal focus on endless, mindless growth.

Take David Suzuki’s Nature Challenge and learn more at http://www.davidsuzuki.org.

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It is time to rid the world of all currencies. These are inventions and they are best replaced with a new Labour Value concept. Banks are no longer required. All Labour on the Planet will be equal in terms of one hour of labour being equivalent to labour credits. All goods will have a labour value based on this. There will no longer be fake currencies whereby individuals are able to exploit labour through such invented currency value. This will be the next level of Human Civilization.

The Process of Mounting a Charter of Rights and Freedoms Challenge

The Process of Mounting a Charter of Rights and Freedoms Challenge

Uncategorized
This was originally written by Wayne G. Stickland and available at a University of Toronto Web site. Sadly it was deleted – no doubt this is also due to the termination of the Court Challenges Program by the Harper government -.Since this is important information that enables citizens to defend their rights in court, it is too important to be deleted. I will re-post the entire article here.

The Process of Mounting a Charter of Rights and Freedoms Challenge

by: Wayne G. Stickland
INTRODUCTION

This paper will explore the process and the procedure in bringing a Charter of Rights and Freedoms1 challenge in a civil proceeding in the province of Ontario. It is not meant to be a theoretical examination; rather, it is directed at those seeking a practical view of the procedural steps to be followed in bringing a Charter challenge.

There are two types of Charter challenges. Collateral challenges, where applicable, occur during the normal course of litigation. For example, in a criminal defence an applicant may seek protection from state action or inaction, which may have affected either the investigative process or the arrest and detention of the accused. In this example, the accused has already been charged; therefore, the Charter challenge arises in the course of criminal prosecution. As well, in a civil litigation case, the defendant may challenge the validity of a law or legislation upon which the plaintiff’s action, or application, is based. In either case, the applicant is seeking to challenge the validity of a law.

Direct challenges arise when an individual, or public interest group, files an originating process for the express purpose of challenging the constitutionality of a law. In most cases, the general argument by the applicant is that legislation has affected a party either by inclusion or omission. An example would be an applicant who argues that the exclusion of same sex couples from receiving family benefits violates section 15 of the Charter. Usually, the applicant is seeking to have the legislation declared invalid.

It should be noted that the Rules of Civil Procedure2 might differ for each province. Therefore, readers in other provinces would be wise to consult the applicable rules in their province.

THE COLLATERAL CHALLENGE

Collateral challenges are the most frequent type of challenge. Because a collateral challenge arises in the course of litigation, the identity of the parties, the originating process, and the appropriate court have already been pre-determined by the nature of the action3.

However, if a party seeks to raise a constitutional issue, the declarant party must provide to the Attorney General of Canada and the Attorney General of Ontario a notice of constitutional question. Notice is required by Rule 109 of the Courts of Justice Act. 4

Rule 109 provides the Attorneys General with an opportunity to respond to any attacks on federal or provincial legislation. Further to rule 109(1), rule 109(4) provides that the Attorneys General are entitled to adduce evidence and make submissions to the court with respect to the constitutional question. Therefore, even if the Attorney General of Canada or Ontario is not named as a party, the respective governments, vis-à-vis the Attorney General, have the option of defending the respective legislation if a constitutional challenge should arise. In Ontario, notice has to be in the prescribed form 4F5 of the Rules of Civil Procedure.6

One may inquire as to when the notice must be served. Rule 109(2.2) of the Courts of Justice Act indicates that notice must be provided to all parties in the proceeding as soon as the circumstances requiring it become known. In any event, notice must be given at least fifteen days prior to the day in which the question is to be argued, unless the court orders otherwise7. It has been suggested that providing the proper notice is the fundamental element required in a collateral challenge. However, once proper notice has been given, when will the constitutional question be heard?

Normally, the trial judge in the main action will hear the constitutional question. However, parties are becoming increasingly concerned about the costs associated with litigation. In some cases, it may be more economical, or indeed procedurally correct, to determine a constitutional issue prior to the trial at a preliminary motion. The Ontario rules of civil procedure allow for the determination of an issue prior to the commencement of a trial.

Rule 20 permits the plaintiff or defendant to move for summary judgment. As well, it authorizes the court, where it is satisfied that the only genuine issue is a question of law, to determine the question and grant judgment accordingly.8 Therefore, requiring the constitutional issue to be determined prior to the trial will decrease the total time required to argue a proceeding. Although many issues are determined during the course of a trial, the nature of constitutional arguments is such that these arguments can easily become very long and protracted. It is not inconceivable, depending the constitutional issue, to devote two full days of court time to arguing a constitutional issue. For that reason, rule 20 is of particular importance. A prolonged trial transfers additional costs to both parties in the proceeding.

The effect of a successful motion for summary judgment is that the issue being argued can be decided prior to proceeding to trial. If the only issue to be decided is the constitutional issue, then a summary judgement, in effect, eliminates the need for a trial.

Rule 21 permits an applicant to narrow the issues at a motion hearing prior to proceeding to trial.9 Thus, this rule also assists a party in saving litigation costs by limiting the issues that must be determined at trial. Therefore, rule 21 is also beneficial to applicants who are fiscally constrained.

Finally, rule 22 permits parties to a proceeding to state a question of law in the form of a special case for the opinion of the court.10 Rule 22 allows a party to make an application to a judge to determine whether a constitutional issue really exists. There may be some disagreement between parties as to the extent of the issues, or even whether a constitutional issue exists; thus, rule 22 facilitates the narrowing of issues once again, thereby expediting the trial process.

It is possible that a constitutional issue would not be resolved prior to the commencement of the trial. It is also possible that the judge may find that a constitutional issue should be argued within the structure of the trial process and not at a hearing. In either case, the issue would simply be argued within the framework of the trial.

COLLATERAL CHALLENGES IN ADMINSTRATIVE TRIBUNALS

The legal system today is comprised of more than simply “courts” proper. Some issues, for example labour issues, are argued before administrative tribunals. These administrative tribunals are created by statute. Although the jurisdiction of administrative tribunals to consider the Charter has been questioned, guidance has been provided by the Supreme Court of Canada. In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)11 a Union filed an application for certification of employees at a chicken hatchery. The issue in Cuddy Chicks was with respect to section 2(b) of the Labour Relations Act. That section stated that it did not apply to persons employed in agriculture. The Union argued that section 2(b) was invalid because it was contrary to section 15 equality provisions of the Charter12. The issue was whether the board could consider and rule on Charter arguments. The majority of a panel, convened for the purpose of hearing the ultimate issue, held that the board had jurisdiction to rule on Charter issues. This jurisdiction was found in three authorities. The authorities were section 24(1) of the Charter, section 52 of the Constitution Act13, and section 106(1) of the Labour Relations Act. Cuddy Chicks did not agree with the ruling and obtained leave to appeal to the Supreme Court of Canada. The Supreme Court dismissed the appeal. The Court held that due to the principle of supremacy of the Constitution, confirmed by s. 52(1) of the Constitution Act, an administrative tribunal which had the power to interpret law also held a concomitant power to determine whether that law was constitutionally valid. The court further held that section 52(1) did not specify who could consider and rule on a Charter question; therefore, jurisdiction had to be conferred on the tribunal by its enabling statute. The tribunal did not need to be a “court” according to section 24(1) to have the authority to consider the application of the Charter. However, it had to have jurisdiction over the entire matter, that is the parties, the subject matter and remedy sought.

In Cuddy, the board had jurisdiction over parties; but since the subject matter and remedy were premised on the application of the Charter, the authority to apply jurisdiction had to be found in board’s enabling statute. Thus, since section 106(1) gave the board jurisdiction over questions of law and because a Charter issue had to be a question of law, the board had authority to apply the Charter. Its jurisdiction was only limited in that it could not give a formal declaration of constitutional invalidity.

Currently, rule 109(6) of the Courts of Justice Act states that section 109 applies to proceedings before boards, tribunals, and court proceedings.

THE DIRECT CONSTITUTIONAL CHALLENGE

A direct constitutional challenge raises many of the same issues that arise in a collateral challenge. However, unlike collateral challenges, the issues of parties, originating process, and the appropriate court are not defined by the nature of the action. Therefore, a direct challenge requires that the parties, the originating process and the court to be determined before a constitutional issue can be brought forth.

a) THE ISSUE OF STANDING

In order to determine whether a party can challenge the constitutionality of a law, the applicant must determine whether or not it has standing, or status, to mount a Charter challenge.

The question whether a person has standing (or locus standi) to bring legal proceedings is a question about whether a person has sufficient stake in the outcome to invoke the judicial process. The question of standing focuses on the position of the party seeking to sue, not on the issue that the lawsuit is intended to resolve.14

Professor Hogg indicates that the restrictions on standing are intended:

1. to avoid opening the floodgates to unnecessary litigation;

2. to ration scarce judicial resources by applying them to real rather than hypothetical disputes;

3. to place limits on the exercise of judicial power by precluding rulings that are not needed to resolve disputes;

4. to avoid the risk of prejudice to persons who would be affected by a decision but are not before the court;

5. to avoid the risk that cases will be inadequately presented by parties who have no real interest in the outcome; and

6. to avoid the risk that a court will reach an unwise decisions of a question that comes before it in a hypothetical of abstract form, lacking the factual context of a real dispute.15

Prior to the enactment of the Charter, standing was determined in accordance with the requirements as defined in the “trilogy of standing cases.”16 The trilogy of cases culminated in Finlay v. Minster of Finance17. The end result of these four cases is a very liberal interpretation of the rule determining standing. Professor Hogg has stated that:

[w]hile it is still the case that a private plaintiff has not right to bring a declaratory action when he or she has no special interest in an issue of constitutional or public law, the courts will grant standing as a matter of discretion to the plaintiff who establishes (1) that the action raises a serious legal question, (2) that the plaintiff has a genuine interest in the resolution of the question, and (3) that there is no other reasonable and effective manner in which the question may be brought to court.18

b) NOTICE OF CONSITUTIONAL QUESTION

Once an applicant has determined that they have standing, they must then establish whom they are going to name in the suit. Generally, because a direct challenge attacks the vires of legislation, the challenge must be directed at the makers of the legislation. Despite the fact that the Attorney General is named in the suit, the applicant must file a notice of constitutional question nonetheless. The steps required in filing a notice are the same as the steps that were previously discussed in the collateral challenge portion of this paper. Simply, the applicant must complete and serve a form 4F on the Attorney General of Canada, and the Attorney General of Ontario. Rule 109 (2.2) requires that the notice be filed at least 15 days prior to the hearing.

c) WHERE WILL THE CHALLENGE BE HEARD?

Section 24 (1) of the Charter provides that:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy, as the court considers appropriate and just in the circumstances. [Emphasis added]

What then, practically speaking, is court of competent jurisdiction?19

In Ontario, a court of competent jurisdiction can be one of three courts. One is the Divisional Court. The Divisional Court is comprised of a panel of three judges from the General Division Court. The purpose of the Divisional Court is to review decisions of administrative tribunals and to review government actions. The Divisional Court was created by the power of the Courts of Justice Act; therefore, the court only has the jurisdiction and powers that the statue confers upon it.

The remedies available through the Divisional Court are mandamus, prohibition, and certiorari. Mandamus is a discretionary prerogative writ issued by a superior court and used to compel public authorities to perform their duties. Mandamus may also be used to ensure the proper exercise of discretion, or to compel observance of the rules of natural justice where a duty to observe those rules is required by statute or can be implied. Prohibition is a process or writ issued by a superior court that prevents an inferior court or tribunal from exceeding its jurisdiction or usurping jurisdiction with which it has not been vested by law. Finally, a certiorari is a means of achieving judicial review. A certiorari is issued from a superior court to one of inferior jurisdiction, inquiring into the validity of the latter. The writ is used to determine of there have been any irregularities in the proceeding of the inferior tribunal.20 The court does not have the authority to declare a statute invalid.21 In more practical terms, the Divisional Court would be the appropriate court to bring a Charter challenge against an employee of a government ministry, such as the Ministry of Transportation. If an employee of the Ministry denied a licence applicant the right to obtain a licence, and applicant may bring a Charter challenge claiming that his section 15 equality rights have been infringed.

Another court is the Federal Court. The Federal Court is a statutory court similar to the Divisional Court. The Federal Court can hear constitutional issues that relate to Federal legislation. However, since the Federal Court is also a statutory court, it is subject to the same limitations that are imposed upon the Divisional Court (outlined above). It should be noted that review of Federal legislation is not required to occur in the Federal Court. It is possible to have the Ontario Court General Division hear cases dealing with Federal legislation and constitutionality.

The High Court of Justice is the third court where a party may bring a constitutional challenge. Unlike the other two courts, the High Court of Justice is a court of inherent jurisdiction; therefore, it is always a court of competent jurisdiction. Because it is a court of inherent jurisdiction, it can grant remedies similar to those outlined above in addition to having the authority to declare legislation invalid. However, the High Court of Justice is not always the most appropriate court in which to commence an action. For example, if the subject matter of the a challenge is already before another court or tribunal, that court would be more appropriate to hear the issue.

d) ORIGINATING PROCESS

The final step to be examined with respect to direct challenges is process. With which process, by an application or by an action, should a party commence a constitutional challenge?

Generally, proceedings are commenced by way of an action. The originating process of an action is issuance of a statement of claim. (Rule 14.01)

14.01 (1) All civil proceedings shall be commenced by the issuing of an originating process by the registrar of the court in which the proceeding is to be commenced, except where a statute provides otherwise and as provided in subrules (2) and (2.1).

Then the originating process is issued. (Rule 14.07)

14.07 (1) An originating process is issued by the registrar’s act of dating, signing and sealing it with the seal of the court and assigning to it a court file number.

(2) A copy of the originating process shall be filed in the court file when it is issued.

If an applicant has insufficient time to prepare a statement of claim, a notice of action may be issued. (Rule 14.03)

14.03 (2) Where there is insufficient time to prepare a statement of claim, an action other than a divorce action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.

After a statement of claim has been served, a statement of defence must be served and filed in response if the respondent chooses to defend the action. (Rule 18.01)

18.01 Except as provided in rule 18.02 or subrule 19.01(5) (late delivery of defence) or 27.04(2) (counterclaim against plaintiff and non-party). A statement of defence (Form 18A) shall be delivered,

(a) within twenty days after service of the statement of claim, where the defendant is served in Ontario;

(b) within forty days after service of the statement of claim, where the defendant is served elsewhere in Canada or in the United States of America; or

(c) within sixty days after service of the statement of claim, where the defendant is served anywhere else,

18.02 (1) A defendant who is served with a statement of claim and intends to defend the action may deliver a notice of intent to defend (Form 18B) within the time prescribed for delivery of a statement of defence.

Once pleadings have been closed, a notice of examination for discovery of documents can be served on every party that has been joined in the proceeding. (Rule 30)

Following the examination for discovery of documents, either party could make a motion under rule 20, 21, or 22 of the Rules of Civil Procedure.22 A motion under one of the preceding rules can be made anytime after the statement of defence has been filed. Assuming that the motions were not successful, and the examination for discovery process has been completed, the proceeding then moves to trial.

Rule 14.05 of the Rules of Civil Procedure indicates that in some cases a challenge may be brought by an application rather than by an action. Proceedings may be commenced by an application where authorized by a statute (Rule 14.05 (2)) or where authorized by the Rules of Civil Procedure. (Rule 14.05(3)).

Notice of Application
14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 68A, 73A, 74.44 05 75.5).

Application under Statute

(2) A proceeding may be commenced by an application to the Ontario Court (General Division) or to a judge of that court, if a statute so authorizes.

Application under Rules

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

Following the notice of application, the applicant must then serve the notice of application and all supporting affidavits. (Rules 38.06 and 39.01(2))

Once the notice of application and supporting documents have been served upon the respondent, the respondent, if they should choose to defend, must serve and file a notice of appearance. (Rule 38.07(1))

Notice of Appearance

38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A).

A respondent who does not deliver a notice of appearance is not entitled to receive notice of any step in the proceeding or other document. Nor is the respondent able to file material, examine a witness, cross-examine on an affidavit, or be heard at the hearing except with the leave of the judge.

If the respondent party has filed a notice of appearance, then the examination of witnesses follows. (Rule 39.03) The parties can cross-examine the opposing parties on the affidavits. (Rule 39.02)

After the process of completing the preceding steps results in each party creating an application record. The respective parties must then file and serve their respective application records to the required parties. Once the parties have been filed and served, the hearing of the application can be completed. At the hearing stage, the presiding judge may either grant the relief sought, dismiss, or adjourn the application in whole or in part with or without terms. In the alternative the presiding judge may order that the whole application, or a single issue, proceed to trial and give such directions as are just (Rule 38.10(1))

Upon a quick reflection of the rules, it is painfully obvious that the rules were not designed in contemplation of the complex constitutional cases proceeding on this basis. For example, rule 39.01(3) simply requires a party to serve and file their documents the day before the hearing is to take place. If counsel were to abide by this last minute deadline, the hope of proceeding in a timely manner would be eradicated simply because opposing counsel would no other alternative than to seek an adjournment. The best resolution to this problem it to have a mutual agreement with opposing counsel for co-operation. It is only with the co-operation of both parties that an application can proceed expeditiously.23

Prior to the adoption of the new Rules of Civil Procedure (post 1985), the issue of originating process was vital. If counsel commenced a proceeding in the wrong originating process, the proceeding may have been quashed. The offending party would then have to start a new originating process in the proper method. This would translate into great costs to the litigants. However, rule 38.11 of the Rules of Civil Procedure gives the court the authority to convert a proceeding commenced by notice of application into an action.

Now, because of rule 2.01, failure to comply with rules of originating process does not render a proceeding a nullity.

However, in the interest of costs and fiscal constraints, it is still in the best interest of counsel to determine the best process so that additional time and cost can be avoided.

CONCLUSION

In conclusion, I hope that I have been able to adequately delve into the procedure and process of mounting a Charter claim. As previously mentioned, I have tried, wherever possible, to relay as much information as I thought would adequately describe the required steps. If you should find that I have neglected to reflect upon some vitally important procedural step, I would hope that you would contact me so that I may update this informational site. With anticipated diligence, I hope to update this paper and provide current, and relevant information.

.

Endnotes

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. [hereinafter, the Charter]
J.J. Carthy, W.A.D. Millar & J.G. Cowan, The Ontario Annual Practice, 1996-97 (Aurora: Canada Law Book, 1996
For a comprehensive discussion of the steps in an action or application, please see below.
Courts of Justice Act, R.S.O. 1990, Chap. C.43 [hereinafter, the CJA]
See Appendix A.
Rule 109. (2.1) CJA
Rule 109. (2.2) CJA
R.E. Charney, “Litigating Charter Claims” (Address to Canadian Bar Association-Ontario, Continuing Legal Education Seminar, 15 April, 1989.)
Supra, note 8.
Supra, note 8.
[1991] 2 S.C.R. 5
It was also argued that s. 2(b) also violated s. 2(d) of the Labour Relations Act.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
P. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1996)
Ibid.
See Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Censor Board v. MacNeil, [1976] 2 S.C.R. 265; and Borowksi v. Attorney General of Canada, [1981] 2 S.C.R. 575.
[1986] 2 S.C.R. 697
Hogg, supra note 17.
For a very comprehensive and theoretical interpretation of jurisdiction of courts, see J. Sack Q.C., “Where to go and how to get there-Questions of Forum and Form in Charter Litigation” (Address to the Canadian Bar Association, October 25-25, 1986.)
J.A. Yogis, Canadian Law Dictionary (New York; Barron’s Educational Series, 1995)
See Re Service Employees’ International Union and Broadway Manor (1985), 48 O.R. (2d) 225.
See the above descriptions of Rules 20, 21, and 22.
Charney, supra note 8.

Here at least is the entire article re-posted for the use of the Canadian People.
2 Responses

single mom
22 April 2010 9:21 pm
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Viamund
17 August 2013 11:16 am
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I apologize for not replying sooner. I thank-you for your polite compliment and hope that this information is useful.