Boylover Coming Out Pamphlet

Boy-Lover Coming-Out Pamphlet Continue reading “Boylover Coming Out Pamphlet”

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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.

May Day: May will be our month of action

Upon this Planet are two divergent views. Those of Classification verses Universal Humanity. Those that believe in classes of Human beings according to set class restrictions such as Race, Sex, Sexuality, Socio-economics etc..Then there are those who believe in the Universal Humanity. The only race is the Human Race. Every Human would rather be happy than sad, meet a new lover instead of a new enemy. A Universal Consciousness. Regardless of any divisions according to Tribe, Age, Sex etc. These represent a duality of Truth verses Untruth. Pride verses Shame. Courage verses Fear. We – those who represent the light of Reason – are those who represent the positive aspects of Humanity.
Those who believe in Classification support the negative, sectarian, segregationist, superstitious aspects of Humanity. Hate.
We represent positive, secular, integrationist, reason aspects of Humanity. Love. Those who oppose us are trying to program a negative view of Human sexuality and expression. Again this is due to the selective classes that they choose to invent and impose. Good rape and bad rape. Good victims and bad victims. Good lovers and bad lovers. Sex is not evil. It is the biological function which serves as the natural state of existence and certainly a NEED in terms of human emotion and mental stability. The joy that is a learning in human emotion, passion ( EROS ) that all human beings deserve. No one sexuality is better than any other and each entitled to the same equal consideration and respect in all matters as a human requirement regardless of population percentage. Each entitled to their existence as a part of human nature. As entities in a dimension afloat many in this our dimension. Sex is no different from any other in terms of the entire human make-up that is the flesh. Fear of Human sexuality and expression is the worst form of sexual perversion. A whole view of positive Flesh/Spirit harmony is vital.
So in May a direct constitutional challenge will begin against the Federal Conservative Party and all involved in this recent violation of our charter of Human Rights that is our Constitution. No precedent shall be set. After our victory will follow a Civil Suit.
Comrades, now is the call to Liberation.

Time For An Election: What is a Conservative World?

It is past time for an election in canada. The Conservatives must go. We – the Canadian People – can no longer tolerate their foolish corruption of Canadian Values. Privatization, segregation, discrimination, sexism, ageism, censorship… enough is enough. Some of the sick attempts to destroy Canada -Propped by the opposition too afraid to call an election – are as follows:

BILL c-10 : Here is an excellent article about this Bill.

Canadians are already familiar with the Omnibus Crime Bill that the Conservatives have tried to pass in Canada. A bill that will raise the age of Sexual Consent from age14 – where it’s been for over 100 years – to age 16 (just to please the Religious Right), while age 14 is still old enough to be prosecuted as an adult for a violent crime.
Make criminals guilty until they can prove themselves innocent, classify individual Human acts in groups and not regard those acts individually.

Read this Article below from Tousaw Law

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Submission on Bill C-2 (Omnibus Crime Control Act)

I gave the following statement to the Senate Committee on Justice and Human Rights on February 25, 2008. Unfortunately, it appears that the Senate is going to pass Bill C-2 without any amendments, mainly to avoid a possible election. I find it dubious that the Conservative Party could actually go to an election on this. I find it incredibly weak that the Liberals are scared to go to the people.

In any case, here is what I said:

My name is Kirk Tousaw, and I am here as a volunteer Board member and the Chair of the Drug Policy Committee of the British Columbia Civil Liberties Association. The Association is the oldest and most active defender of civil liberties and democratic freedoms in Canada and is this country’s pre-eminent advocate on this issue. The Association has a long history of providing input to government and the courts on matters of vital importance to civil liberties in Canada, and I thank this Committee for the opportunity to speak about the impact of Bill C-2.

I will begin my comments with a general proposition concerning the role of the criminal law in our society. I will then discuss three specific points regarding Bill C-2. My comments will focus on the proposed mandatory minimum sentences for firearms offences, the changes to the age of sexual consent and the granting of new, broad, investigative powers to police in cases of suspected drug-impaired driving.

As a general matter, government should be loath to use the criminal law power and particularly cautious when enhancing penalties, creating new crimes or giving legislative blessing to significant increases in police power. This is because the criminal law represents the most coercive tool in the government’s toolbox. The civil liberties that Canadians enjoy, and that form the cornerstone of our democracy, are rarely more at risk than when the government acts in the area of criminal justice policy. Changes to the criminal law should, at minimum, be contemplated only when there exists a demonstrable social need for the change and implemented only after very careful consideration of the need and the effects of the policies at issue.

Unfortunately, Bill C-2 fails on both counts. The proposed legislation does not respond to any actual or perceived need for amendment of the Criminal Code, as many others including criminologist Professor Neil Boyd, have already noted. Perhaps worse, the process by which this Bill was pushed through the House of Commons, and the attempt by the government of the day to pressure this body into quickly passing the Bill, demonstrate significant disregard for the principles of careful consideration, reflection and debate over deeply important issues. The issues of firearms, youth sexual activity, protection of privacy and regard for due process of law are too important to be used for short-term political gain. All Canadians are done a disservice when speed is substituted for substance. I’m pleased that this body appears prepared to take the necessary time to reflect on these matters, and I urge you to stand strong in the face of political pressure for haste.

Mandatory Minimums

The Association is opposed to the use of mandatory minimum sentences. Judicial discretion in sentencing is a hallmark of our democracy and a fundamental principle of our criminal justice system. Indeed, the occasional media sensationalism on the subject of unfit sentences – a statistically rare occurrence but likely a factor leading directly to this portion of the legislation – implicitly recognizes this principle while appearing to argue for the opposite. In those rare cases where judges have imposed sentences that are perceived to be unfit – and almost always too short – the disapproval of the sentence universally takes the form that the punishment did not fit the crime. Let me be clear about something: these cases are uncommon and outside the norm for sentencing. In the vast majority of cases, the sentencing judge does an excellent job tailoring a sentence to the facts of the case before him or her. There is an old saying that bad cases make bad law which I think is applicable here. Bad stories lead to bad laws.

Unfortunately, the use of mandatory minimums will exacerbate the problem. We hear, though rarely, of cases where a too-lenient sentence was imposed for a serious crime. If this Bill passes, we can expect to commonly see sentences that are far too harsh in the context of the individual case because judges will no longer be able to use their long-standing discretion to craft sentences that take into account an offender’s degree of culpability and role in the offence. This is the experience of other jurisdictions that regularly use mandatory minimums. Other problems include (a) disparate impact on racial minorities and economically less prosperous defendants; (b) significantly increased costs associated with both the criminal justice system and with the correctional system; (c) reduced ability for correctional officers and parole boards to impact in-custody behavior; (d) an increasing tolerance for the imposition of such mandatory penalties in situations where the empirical evidence of efficacy is even more lacking than in the area of firearms offences – such as for drug crimes. This last factor is evident in the current government’s proposed Bill C-26, which seeks to add a series of mandatory minimums to our nation’s failed and harmful policy of drug prohibition.

On this issue, I would like to close by quoting from a 2002 in-depth review of mandatory minimums conducted by our Department of Justice: “The use of incarceration as a preventative measure, therefore, must be finely tuned or its counterproductive impacts may well outweigh its benefits. Therefore, MMS should not be introduced merely to placate a political constituency or without regard to a thorough understanding of infractions or offenders for whom they are intended.”

Age of Sexual Consent

The Association opposes raising the age of sexual consent. There appears to be little or no empirical evidence demonstrating any need to change the long-standing age of sexual consent in Canada. Responsible sexual decision-making is a developmental process that requires social guidance, not legislative control. Young people are already protected from sexual exploitation, internet luring, and prostitution by ss. 150 through 172.1, and ss. 212(2) and 212(4) of the Code (Sexual Offenses and Disorderly Conduct). Raising the age of consent will create barriers to sexual health information, especially among marginalized youth who need it the most. Barriers to sexual health information will result in more cases of SDIs, HIV/AIDS and pregnancies among youth. Raising the age of consent may criminalize healthy sexual relationships between young people, and places undue restrictions on their autonomy. Finally, the impact of this law is also likely to be discriminatory because its effects will be more acutely felt by sexual minorities who already face significant stigmatization as a result of their sexuality. The best way to protect children and youth is through education and empowerment.

Under the Criminal Code, the age of consent for anal intercourse is eighteen, four years higher than for vaginal intercourse. This disparity has been criticized for targeting and criminalizing consensual sex between adolescent men. When the Ontario Court of Appeal declared that this section of the Code to be unconstitutional, Justice Albella, writing for the majority, pointed out something worth considering:

“Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a provision criminalizing consensual anal intercourse for adolescents is that the health education they should be receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counseling young people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health risks associated with that behaviour, contribute to the harm it seeks to reduce.”

The legislative summary accompanying Bill C-2 points out that the average age of first sexual intercourse for young people is 14.1 years for boys and 14.5 years for girls. Many of these young people will be criminalized as a result of this legislation. Ultimately, raising the age of consent disempowers young Canadians by removing from them the ability to consent, or to withhold consent, to sexual activity.

The Association is concerned that raising the age of consent will restrict young people’s decision making autonomy, and may restrict access to health information and services for these young people. The Association questions the efficacy of legal sanctions on sexual activity. A legislative change in this direction sends a message to adolescents under 16 years that they are automatically incompetent to navigate their own sexual lives, and does not teach them how to make autonomous and healthy decisions in an inherently private situation.

At the very least, if the age of consent for non-anal intercourse is increased to sixteen, the Bill should remedy the existing discrimination and reduce the age of consent for anal intercourse from eighteen to sixteen. This would, at least, minimize the differential impact of our current scheme on sexual minorities and bring consistency and a measure of equality to the law in this area.

Drug Impaired Driving

The Association opposes the proposed changes to the Criminal Code in this area. My submission will deal with two areas: (1) the restrictions on evidence that may be tendered in opposition to BAC test results; (2) the proposed drug-impaired driving testing regime.

The evidentiary restrictions related to BAC tests are based on the faulty assumption that the BAC test is infallible. As undue restrictions on the Charter right to full answer and defence, the proposed restrictions will certainly be challenged and are likely found to be constitutionally invalid. Rather than reducing the amount of time required in court on BAC cases (one purported justification for the changes), this law will dramatically increase the burden on the criminal justice system. This legislation is good for criminal defence lawyers, but bad for the criminal justice system. The presumption of innocence and the corresponding right to call evidence in one’s defence are the very foundations of our criminal justice system and must not be casually set aside.

The proposed drug testing procedures are problematic for several reasons. I will discuss five.

First, significant concerns exist with respect to the accuracy of the DRE evaluation process itself. Second, saliva, urine and blood testing is highly invasive of personal privacy and is often a degrading and humiliating experience for the person being tested. Third, the process set out in the legislation is cumbersome and extremely time consuming, and the individual is detained by police the whole time.

Fourth, and perhaps most problematic, is that the results of both the DRE evaluation and bodily sample testing are of little evidentiary value. The DRE process, while appearing to be scientific, is actually susceptible to significant error rates; one study listed in the legislative summary accompanying Bill C-32 (the government’s last version of this legislation) suggests that average error rates are 21%. Put another way, of every 100 persons from whom a blood or urine sample is demanded under threat of being charged with an offence for refusing, 20 will have been falsely accused and improperly and involuntarily subjected to a very invasive process. Moreover, the invasive process – the forced taking of blood, urine or saliva – yields essentially worthless information. The legislative summary is clear on this point (at page 13): “Ultimately, there is no measurable link between driving impairment and drug quantity.” Put in legal terms, the information gleaned from the testing is irrelevant to the ultimate issue of impairment. The biggest burden will fall on marijuana users, particularly on legal and licensed medical users, who can and will test positive hours, days or weeks after consuming cannabis despite that they may not have used cannabis prior to driving and may not be impaired at all.

The final objection is philosophical: laws should not be promulgated in order that government may be seen to be doing something as opposed to actually doing something about a problem – real or perceived. The money that will be required to implement this new law is much better spent on educational programs designed to teach people, particularly young people, about the danger of driving while impaired. We have made great positive strides when using education rather than enforcement as the primary method of achieving our shared goals and, critically, education does not unduly infringe on the civil liberties and freedoms that are the very foundation of our democracy.

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Not to mention the slashing of programs geared to minorities and then granted to vapid religious and other special interest groups dear to the Conservatives.

Time for an election. Good-bye and good riddance Stephen Harper to you and all your backwards cronies.

Here is what it means to live in a conservative World

No separation between Church and State
Beliefs that there are categories of Human Beings according to sex, socio-economic class, sexuality, race, age etc
Higher incidents of violence as Pleasure is vilified while violence is lauded
Belief in Creationism above Evolution
Belief that the Earth was created 6000 years ago
Belief that the Earth is flat
Belief that the Sun revolves around the Earth

To the Conservatives and those that support them, these views represent the Future. To the rest of Canada they represent the Dark Ages.