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7/29/2019 Brief - Undertaking March 8 2013
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Information No.
09458205, 09479105, and 09497005
New Brunswick Provincial Court (Provincial Court Office of Fredericton)
BETWEEN:
HER MAJESTY THE QUEEN
and
ANDRE CHARLES MURRAY
______________________________________________________
BRIEF RESPONDING TO SECTION 810Undertaking
Filed by Self Represented Litigant
Andre Murray
______________________________________________________
ANDRE MURRAY,
Applicant/Defendant/Accused
103 Huntingdon Circle,Fredericton, New Brunswick,
E3B 0M1, Canada,
Fredericton Crown ProsecutorChristopher Lavigne
Fredericton Crown Prosecution [email protected]
Hilary Drain
Regional Director of
Fredericton Crown Prosecution [email protected]
Reception: (506) 453-2819Fax: (506) 457-4812
Mailing AddressJustice BuildingRoom: 313
P. O. Box 6000,
Fredericton, NB,E3B 5H1, Canada
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SELF REPRESENTED, ANDRE MURRAY
DEFENDANTS BRIEF
RESPONDING TO SECTION 810 OF THE CRIMINAL CODE OF CANADA
UNDERTAKING
INDEX
Page
INDEX _________________________________________________________________ i
(1) Introduction __________________________________________________________ 1
(2) Public Confidence in the Justice System____________________________________ 12
(3) Matter brought before a Judge ____________________________________________ 14
(4) Restraint of Liberty ____________________________________________________ 16
(5) The Subjective Fear and Objective Reasonable Grounds _______________________ 17
(6) Statutory Interpretation Issues ____________________________________________ 20
(7) Violation of Principles of Due Process _____________________________________ 24
(8) Charter Violations _____________________________________________________ 25
(9) Vagueness ___________________________________________________________ 28
(10) Violation of ss.7 and 9 of the Charter _____________________________________ 29
(11) Actual Conduct of Police, Crown and Court ________________________________33
(12) Conclusion __________________________________________________________39
ORDERS SOUGHT ______________________________________________________ 42
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1
(1)
INTRODUCTION
1. It is a violation of anyones Charter Rights and Freedoms, therefore, a victimization ofanyone, who is, subjected to, and or, as was in this case, Andre Murray coerced by members of
FREDERICTON POLICE FORCE to enter into an RECOGNIZANCE/UNDERTAKING,
coercion as may reasonably be accused of members of FREDERICTON POLICE FORCE
consequence of Police having not followed procedure according to the Criminal Code, section
810.(2) requiring of the Police, therefore, that there must first of all be an Information laid before
a Justice, who having determined, just cause, would then, thereafter, reasonably cause the
relative parties to appear before him.
2. Furthermore, Date: April 18, 2012, approximately 12:45 as Andre Murray attendedFREDERICTON POLICE FORCE, Station, at Queen Street Fredericton, according to a
prescheduled appointment meeting with Constable David Beck, which was for the purpose of
Process Serving Court Documents upon Defendant Constable David Beck as he was named
within the subject Court Documents; in attendance at that time was Detective Steven Cliff as
Defendant Constable David Beck acknowledged acceptance of the herein mentioned subject
Process Service of Court documents upon him by Andre Murray.
3. Furthermore, as mentioned herein above Defendant Constable David Beck acceptedProcess Service of Court Documents, in the lobby of Fredericton police Station at Queen Street;
in the presence of Detective Steven Cliff, however, immediately following the herein subject
process service, Detective Steven Cliff together with Defendant Constable David Beck did act
upon Andre Murray, so as to place Andre Murray under arrest, as the subject officers claimed
they had grounds for the criminal charge of assault.
4. However, Detective Steven Cliff together with Defendant Constable David Beck Date:April 18, 2012 were acting unilaterally. It appears from disclosures finally provided by the
Crown Prosecutors Office, to now Defendant Andre Murray revealed inter alia, that no member
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of FREDERICTON POLICE FORCE had filed a report or investigation papers to the Crown
Council, for charge assessment.
5. Furthermore, as Andre Murray relies upon proper criminal Code procedures, the lack ofthe herein above mentioned necessary preliminary Police reports or investigative files, having
not been provided to Crown Prosecutors Office would mean that section 810 of the Criminal
Code of Canada has not been adhered to. In other words, it is not possible for the Crown
Prosecutors Office to have laid an INFORMATION before a Justice, consequentially, this must
constitute an intentional violation Andre Murrays Charter Rights, inter alia by Detective Steven
Cliff together with Constable David Beck. An Information laid before a Justice would have
resulted in:
section 810 (2) of the Criminal Code requiring:
(2) A justice who receives an information under subsection (1) shall cause the
parties to appear before him or before a summary conviction court having
jurisdiction in the same territorial division.
6. For consideration of the Court, Andre Murray has studied the Rules of the Game, calledCanada. Moreover, Andre Murray has studied the Rules of the Game, called New Brunswick and
has included game THE CITY OF FREDERICTON, and the numerous bylaws.
7. Therefore, Andre Murray, in good faith, having arranged an appointment through theOffice of Chief of Police for FREDERICTON POLICE FORCE for the purpose of serving Court
Documents upon member Constable David Beck naming him as a Defendant. Andre Murray was
innocently expecting that the confirmation by the Office of Chief of Police as having a 1:00 pm,
April 18, 2012, scheduled meeting for these herein mentioned purposes with Constable David
Beck would be a proper and sincere event.
8. However, as the above mentioned arrest of Andre Murray which occurred atapproximately 1:00 pm, April 18, 2012, Andre Murray was escorted by Defendant Constable
David Beck and Detective Steven Cliff, from the Police Station Lobby and into what must be in
this case considered an interrogation room, at which time both Defendant Constable David Beck
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and Detective Steven Cliff now joined by Constable Jeff Lingley began to coerce Andre Murray
into signing, an RECOGNIZANCE/UNDERTAKING for which Andre Murray immediately
refused. However, in order to obtain the herein above mentioned
RECOGNIZANCE/UNDERTAKING from Andre Murray, coercion was used: This process
which Andre Murray was subjected to, whereby the subject attending members of
FREDERICTON POLICE FORCE did for approximately 1 hour focus primarily upon obtaining
a signature from Andre Murray onto a RECOGNIZANCE/UNDERTAKING document which
was notably back dated to April 16, 2012, for which Andre Murray continually refused to sign
9. Furthermore, consequently, as Andre Murray would not sign the above herein mentionedback dated to April 16, 2012, RECOGNIZANCE/UNDERTAKING document, therefore, Andre
Murray was locked into a jail cell for 30 minutes till approximately 2:30 at which time Andre
Murray in hand cuffs, was removed from the jail cell, by Detective Steven Cliff together with
Constable David Beck, and then was placed into a marked City of Fredericton Police Car,
thereafter, transported to the Court House, at which time Andre Murray was transferred into the
custody of Sheriffs, who placed Andre Murray into a holding cell in the basement of the Court
House Justice Building.
10. NOTICE: The reader must realise that Constable David Beck October 23, 2009, didCriminal Code Break and Enter into the private residence of Andre Murray whereby under threat
of harm, was forced to leave his 31 Marshall Street, Fredericton, Duplex, Unit. This matter is
still unresolved and before the Courts.
11. NOTICE: The reader must realise that Constable David Beck October 7, 2011, didwithout warning in the middle of the afternoon, football style tackle Andre Murray from behind,
thereby, causing Andre Murray to fall off his bicycle, and onto the ground. Constable David
Beck alleged that Andre Murray had been observed riding his bicycle on a sidewalk, depite at the
time of the tackle Andre Murray was riding on the street. This matter is still unresolved and
before the Courts.
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12. It must be reasonable to believe that Andre Murray cannot feel safe from harm, in thepresence of Constable David Beck, therefore, April 18, 2012, events, was alarming to Andre
Murray who has never been given any reason, to trust the judgement of Constable David Beck,
however, Andre Murray finds himself, locked up in a jail cell, without charges by a man to
whom Andre Murray has just served Court documents, thereby advising Constable David Beck
that Andre Murray is suing Constable David Beck.
13. Furthermore, it is incredulous, that Constable David Beck is involved in the warrantlessarrest of Andre Murray, April 18, 2012; Constable David Beck who has probable cause for
reasonable apprehension of bias against Andre Murray should not at this point be participating
with Detective Steven Cliff.
14. NOTICE: the reader must empathize with the shock that must be experienced by AndreMurray, who in the first place, without Court issued Orders is placed under arrest for assault
April 18, 2012 at12:59, ; moreover, these circumstances and or incident, must reasonably mean
that crown Council for the Crown Prosecutors Office, had not yet according to procedure,
received a report or Information by which they could do a charge assessment. Andre Murray is
of the understanding and therefore relies upon proper procedure according to the criminal Code,
which in this herein subject matter, of Andre Murrays arrest for assault, would have required the
Crown Council having first completed their charge assessment according to procedure, moreover
and furthermore, conditional to having determined that an Information should be laid before a
Judge.
15. Nevertheless and despite the above herein mentioned Crown Council Charge Assessmentprocedure inter alia., Andre Murray would still be relying upon, proper procedure according to
Criminal Code, in which case Andre Murray what would have been proper procedure would
have required that an Information be laid before a Justice who would then as mentioned herein
below an excerpt of section 810 (2) provided followed procedure, first laid an Information
before a Justice, before having first laid an Information before a Justice. under threat of
incarceration for 12 months forced to a unverified, unsubstantiated Information, Defendant
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Andre Murray is, regarding this herein topic matter, an innocent man. This matter of a section
810 Information having allegedly been laid before a Justice on behalf of Neil Rodgers, et al.,
However despite section 810 (2) of the Criminal Code requiring:
(2) A justice who receives an information under subsection (1) shall cause theparties to appear before him or before a summary conviction court having
jurisdiction in the same territorial division.
section 810 .(2) of the Criminal Code has not been adhered to, in any meaningful way, which, for
that reason, Defendant Andre Murray claims to have never received a summons to appear before
a summary conviction court.
Thereafter according to:
(3) The justice or the summary conviction court before which the parties appear
may, if satisfied by the evidence adduced that the person on whose behalf the
information was laid has reasonable grounds for his or her fears,
o (a) order that the defendant enter into a recognizance, with or withoutsureties, to keep the peace and be of good behaviour for any period thatdoes not exceed twelve months, and comply with such other reasonable
conditions prescribed in the recognizance, including the conditions set out
in subsections (3.1) and (3.2), as the court considers desirable for securingthe good conduct of the defendant; or
o (b) commit the defendant to prison for a term not exceeding twelvemonths if he or she fails or refuses to enter into the recognizance.
16. The matter, before this Court is replete with evidence, of impropriety, improperprocedure, bias and reasonable apprehension of bias, and requires Court intervention to right this
glaring injustice that has befallen innocent Defendant Andre Murray. To force a s.810
Undertaking on someone, the threat of future harm must be more than mere speculation, and
requires a proven factual foundation which raises probable grounds to suspect future
misbehaviour. Andre Murray has repeatedly demanded a proper s.810 hearing, to the extent of
filing a FORM 1 NOTICE OF APPLICATION Dated July 16, 2012 and a supporting Affidavit,
Dated July 16, 2012. The demanded s.810 hearing has been denied.
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17. Section 810 of the Criminal Code, compels a Justice (this is mandatory, no discretion),before whom the Information is laid (in this case a FORM 2 INFORMATION was sworn by a
third party Constable Paul Estey), to thereby cause, (as is required) as in this case, all parties
including Informant Constable Paul Estey and both Defendant Andre Murray, and Witness
Statement signatory Neil Rodgers to Appear before a Court of competent Jurisdiction, for a s.810
Hearing of the matters; however in this case the Informant is a HEARSAY Constable Paul
Estey, who having completed an INFORMATION FORM 2 (section 506 and 788) claims to:
have reasonable and probable grounds to believe and does believe that.
18. HEARSAY Constable Paul Estey cannot sincerely believe, therefore he obfuscates thetruth, as we see and I hereby quote HEARSAY Constable Paul Estey in his capacity of
Informant: have reasonable and probable grounds to believe and does believe that however,
as we must clearly see HEARSAY Constable Paul Estey is so eager to falsely claim in his
INFORMATION FORM 2 (section 506 and 788) despite there being no evidence of and
therefore contrary, to the claims found made by HEARSAY Constable Paul Estey as he states
in his subject INFORMATION FORM 2 (section 506 and 788) that: and therefore Neil William
Rodgers prays that ANDRE CHARLES MURRAY may be bound over to keep the peace and be
of good behaviour towards them, as authorized by Section 810(1) of the Criminal Code of
Canada and amendments thereto. Please Note: there is absolutely no existence of any evidence
that: Neil William Rodgers prays that ANDRE CHARLES MURRAY may be bound over to keep
the peace and be of good behaviour towards them, as authorized by Section 810(1) of the
Criminal Code of Canada and amendments thereto.
19. Furthermore, it is reasonable to identify as herein above Informant Constable Paul Esteyas HEARSAY as there is not any disclosure from the Crown or FREDERICTON POLICE
FORCE indicating that Constable Paul Estey ever attended upon Neil Rodgers at his residence or
otherwise.
20. There appears to be an organized attempt by members of FREDERICTON POLICEFORCE to distance Police Informant Neil Rodgers from the possibility of perjuring himself, as
will most consequentially be revealed by anyone, viewing the audio/video exhibit A evidence
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as provided by Affidavit and witness Shane Henry. For this purpose Neil Rodgers has been
careful to not provide Affidavits, wherein, Neil Rodgers would be found guilty of perjury, please
note: Neil Rodgers was aware of the audio/video camera being on location at the incident of Neil
Rodgers assaulting Andre Murray, however, not until the conclusion of Neil Rodgers aggressive
behaviour towards Andre Murray, did Neil Rodgers finally become aware of the audio/video
camera.
21. Discretion (reasonably a constitutional safeguard) to Order a Undertaking according tos.810 of the Criminal Code, is only available to a Justice having had the Information first
laid before the justice, thereafter procedurally causing all concerned parties to attend a
hearing of the matter, which reasonably requires Defendant Andre Murray to have been
given notice of a Hearing. This never occurred. Defendant Andre Murray never had
opportunity to respond a Information as an Information had never been laid before a
Justice.
22. No Court of competent Jurisdiction, at least no open Court as required pursuant tosection 810 of the Criminal Code. Defendant Andre Murray has been subject to an undertaking
for 11 months (from April 18, 2012 to March 13, 2013), despite no Court having jurisdiction,
therefore no Court having discretion to Order same. Despite the following Andre Murray was
arrested by Constable David Beck April 18, 2012, a full 47days before (as in this case) a subject
FORM 2 Information (section 506 and 788), attesting to the need for Andre Murray to be bound,
pursuant to s 810, was finally sworn June 5, 2012, by Constable Paul Estey then same day laid
before a Justice. However, a Justice jurisdiction to cause someone to be restricted by an
Undertaking, is only activated once Defendant Andre Murray is given notice of a Hearing, then
has a chance to respond to the allegations before a Court of competent Jurisdiction. The
prerequisite, preliminary s 810 Hearing to determine the need of a Defendant to be bound over, isan important constitutional safeguard, without a prerequisite, preliminary s 810 Hearing, Andre
Murrays Right to due process, and Andre Murrays Charter guarantees are violated, and that is
exactly what occurred, as Andre Murray has suffered an illegal undertaking, since April 18,
2012.
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23. NOTICE: the herein above mentioned prerequisite, preliminary s 810 Hearing has sinceApril 18, 2012, never been granted Andre Murray rendering that illegal Undertaking a nullity.
24. In the context of a preventive provision like Criminal Code: s.810, mandatory orautomatic issuance of process upon Defendant Andre Murray (without due process) violates ss.7
and 9 of the Charter and cannot be justified under s.1of the Charter. An automatic issuance
of process, with the potential arrest of the defendant, is excessive and unwarranted. In Defendant
Andre Murrays case, as the evidence confirms, there was no FORM 2 Information, sworn,
before Andre Murray was arrested April 18, 2012 and forced under protest and duress to sign a
Undertaking to a Police Officer (or go to Jail). Automatic enforcement/subjection of an
Undertaking, provides no control on obviously unfounded FORM 2 Informations, under which a
person may be summonsed, or arrested, thus Andre Murray has been illegally subjected to
capricious, or unjustifiable arrest, detention and loss of personal freedom. The Supreme Courts
decision in Baron v. Canada, paragraph 19 made this clear a residual discretion is a
constitutional requirement. and its exercise by the Court, pursuant to a s. 810 application
hearing integral to due process requirements. An Undertaking order can only be made if the
presiding judge (following a s.810 application hearing ) is satisfied by evidence that the fear is
reasonably based. The need for the informants state of belief to be objectively assessed and for
the presiding judge to come to an independent conclusion is essential for due process. Andre
Murray has been stripped of his Charter protected liberty and freedom for 11 months, without
due process.
25. Regarding restraint of Liberty, in application of Section 810 of the criminal Code. It ismost important to note that a Judge hearing a s.810 application must attempt to balance two
competing interests:
(1) the right of Defendant Andre Murray to privacy or to be left alone;
(2) the right of informant Neil William Rodgers to protective intervention in
appropriate circumstances.
26. The prerequisites of the subject section 810 provide the balance needed by setting outsubjective and objective grounds that must be satisfied (to the Court on balance of probabilities)
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prior to the issuance of the Undertaking sought. Without the prerequisite hearing to determine if
the Undertaking is rationally justified, how can it be said that a balance was reached in due
process? The justice who conducts the trial must be satisfied, (presumably at least on a balance
of probabilities if not beyond a reasonable doubt), that the subjective and objective elements
have been proven is evidence. Unless both elements have been proven the justice has no
jurisdiction to make the Undertaking Order.
27. The subject June 5, 2012, FORM 2 INFORMATION sworn to by Constable Paul Esteystates:
"Neil William Rodgers of 15 Fisher Avenue, Fredericton, New Brunswick does fear thatANDRE CHARLES MURRAY of 31 Marshall Street, Fredericton, New Brunswick, will
do him personal injury in that ANDRE CHARLES MURRAY on or about 10th day ofApril AD. 2012, at Fredericton, New Brunswick, did threaten and harass Neil William
Rodgers and his family therefore Neil William Rodgers prays that ANDRE CHARLESMURRAY may be bound over to keep the peace and be of good behaviour towards them,
as authorized by Section 810(1) of the Criminal Code of Canada and amendments
thereto."
28. The audio/video evidence attached as Exhibit A of the Affidavit of Shane Henryprovided by eye witness Shane Henry, provides objective and abundantly conclusive evidence to
anyone who listens and views the subject audio/video; indisputable evidence therefore that
proves Defendant Andre Murray did not did threaten and harass Neil William Rodgers and his
family on April 10, 2012.
29. There is not rational reason, therefore no credible evidence, that as put forth in the subjecthearsay Information by Constable Paul Estey: Neil William Rodgers of 15 Fisher Avenue,
Fredericton, New Brunswick does fear that ANDRE CHARLES MURRAY of 31 Marshall Street,
Fredericton, New Brunswick, will do him personal injury.
30. Criminal Code of Canada hereafter the Criminal Code Section 810 reads as follows:Sureties to Keep the Peace
Where injury or damage feared
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810. (1) An information may be laid before a justice by or on behalf of any person
who fears on reasonable grounds that another person will cause personal injury to himor her or to his or her spouse or common-law partner or child or will damage his or
her property.
Duty of justice
(2) A justice who receives an information under subsection (1) shall cause the
parties to appear before him or before a summary conviction court having
jurisdiction in the same territorial division.
Adjudication
(3) The justice or the summary conviction court before which the parties appear
may, if satisfied by the evidence adduced that the person on whose behalf theinformation was laid has reasonable grounds for his or her fears,
(a) order that the defendant enter into a recognizance, with or without sureties, tokeep the peace and be of good behaviour for any period that does not exceed
twelve months, and comply with such other reasonable conditions prescribed in
the recognizance, including the conditions set out in subsections (3.1) and (3.2),
as the court considers desirable for securing the good conduct of the defendant; or
(b) commit the defendant to prison for a term not exceeding twelve months if heor she fails or refuses to enter into the recognizance.
Modification of recognizance
(4.1) The justice or the summary conviction court may, on application of the
informant or the defendant, vary the conditions fixed in the recognizance.
Procedure
(5) The provisions of this Part apply, with such modifications as the
circumstances require, to proceedings under this section.
31. Section 810 of the Criminal Code, is generally described and titled as a sureties to keepthe peace. It is not a criminal charge. No conviction is entered and no criminal record results.
The imposition of conditions as part of the Undertaking is aimed at preventing potential future
harmful incidents and or mishaps, and requires a promise to behave, rather than imposing
punishment as that term is contemplated in criminal proceedings. Therefore, these matters are at
best quasi-criminal and in fact more akin to civil proceedings than criminal. For example, please
note that the subject of the order is described as the "defendant" rather than the "accused", the
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term used elsewhere in the Criminal Code. ( See R. v. Bilida, 1999 ABQB 1016 (CanLII),
http://canlii.ca/t/5nmw para 2).
32. In Thorpe v. Lacovetsky, Justice Kelly, J. stated the uniqueness of this section andexpanded on unique standard of proof required under Section 810 of the CriminalCode:
[5] Counsel for the parties before me were not in dispute as to the properstandard of proof to be applied in this matter and, in fact, it appears from the transcript
that they both presented the same opinion to the justice at the earlier hearing. They agree
that the standard of proof under Section 810 of the CriminalCode is one on the balanceof probabilities. It is, in fact, trite law that Section 810 does not create an offence and
does not give rise to a conviction or sentence. It is a rather unique section of the
Criminal Code, designed to prevent crime rather than to punish it. It does not requireproof of an offence in the criminal sense, that is beyond a reasonable doubt, but only that
the fear that is required by the offence be established and the evidence for granting apeace bond be established on reasonable grounds. SeeR. v.Gill, [1991] B.C.J. No. 3255
(DeVilliers, P.C.J.), Miller v.Miller reflex, (1991), 87 N.F.L.D. & P.E.I. Reports 250(Provincial Court), MacAuslandv.Pyke 1995 CanLII 4541 (NS SC), (1995), 96 CC.C.
(3d) 373, Kelseyv.Medley, [1997] N.S.J. No. 584 and R. v.Budreo, 104 C.C.C. (3d)
245.
Thorpe v. Lacovetsky, 2002 NSSC 129 (CanLII), http://canlii.ca/t/5jwb
33. Please Note:Provincial Offences Procedures Act.
35(3) A witness statement shall be in prescribed form and shall be signed by the witnessin the presence of another person.
35(4) The evidence of a witness given by way of a witness statement has the same forceand effect as evidence given orally under oath or solemn affirmation.
35(5) Every person who knowingly makes a false statement in a witness statement
commits a category H offence.
64(1) A judge may, in relation to a category H offence, sentence a defendant to a term of
imprisonment of not more than one hundred and eighty days.
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(2)
PUBLIC CONFIDENCE IN THE JUSTICE SYSTEM
34. Public confidence in the Justice system must reasonably be dependent upon the certainactions of the Judiciary. However, the public should reasonably be able to rely upon the Courts,
Police and the Crown to Act according to the Canadian Charter of Rights and Freedoms.
Therefore, the Judiciary must be expected to act, in a way, that does not bring the administration
of Justice into disrepute. In R. v. Teskey, the Supreme Court of Canada described the concept of
judicial integrity as follows:
20 The notion of judicial integrity was discussed at length by this Court
in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484. It encompasses the
expectation that judges will strive to overcome personal bias and partiality and carry outthe oath of their office to the best of their ability. Impartiality was described as follows
by Cory J. (at paras. 104-5):
. . . impartiality can be described perhaps somewhat inexactly as a state of
mind in which the adjudicator is disinterested in the outcome, and is open topersuasion by the evidence and submissions.
In contrast, bias denotes a state of mind that is in some way predisposed to aparticular result, or that is closed with regard to particular issues.
The judges impartiality is essential to achieve trial fairness.
21 As reiterated in S. (R.D.), fairness and impartiality must not only besubjectively present but must also be objectively demonstrated to the informed and
reasonable observer. Even though there is a presumption that judges will carry out the
duties they have sworn to uphold, the presumption can be displaced. The onus is
therefore on the appellant to present cogent evidence showing that, in all thecircumstances, a reasonable person would apprehend .
R. v. Teskey, 2007 SCC 25 (CanLII), [2007] 2 SCR 267, http://canlii.ca/t/1rq5q
35.
Public confidence in the justice system relies on a presumption of integrity. The highthreshold for displacing a presumption that a judge is acting with integrity and in accordance
with his or her oath of office, seeks to balance two significant public interests, both related to
maintaining confidence in the administration of justice: the right of judges to be presumed to be
acting with integrity and the right of litigants to challenge judges, when, however, their conduct
gives rise to a reasonable apprehension of impropriety. The presumption of integrity
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acknowledges that judges are bound by their judicial oaths and will carry out the duties they have
sworn to uphold. This aspect of the presumption, namely, that judges are presumed to know and
act in accordance with their legal responsibilities. The judges impartiality is essential to achieve
fairness, Defendant Andre Murray expects any Judge who reviews this subject matter, to see the
injustice which has engulfed this particular matter therefore, dismiss all related charges as they
may be, for that reason, impugned by improper procedures associated with the alleged
undertaking.
36. This presumption of integrity extends to Police and Crown Prosecutors, who should bebound by their various oaths and should carry out duties, they have sworn to uphold. This matter
before the Court is replete with evidence, of impropriety, improper procedure, bias and
reasonable apprehension of bias, and requires Court intervention to right this glaring injustice
that has befallen innocent Defendant Andre Murray.
37. In R. v. Budreo,the Court expressed that various provisions of the Criminal Code, whenproperly exercised, strike the appropriate balance between public interest in the protection of
genuine Informants and the liberty interest of the defendant. Only in unusual circumstances will
the justice be entitled to order the detention of the defendant pending the hearing. Indeed, it will
be a rare case, where it would enhance confidence in the administration of justice to detain a
defendant who is not alleged to have committed any crime and who would in any case only be
required to enter into a recognizance at the conclusion of the subject s. 810 proceedings:
[68] in the light of the limited consequences of a successful s.810.1 application, only
in unusual circumstances will the justice be entitled to order the detention of thedefendant pending the hearing. Indeed, it will be a rare case where it would enhance
confidence in the administration of justice to detain a defendant who is not alleged to
have committed any crime and who can only be required to enter into a recognizance atthe conclusion of the proceedings.
[69] So interpreted, these various provisions of the Code strike the appropriate balancebetween the public interest in the protection of children and the liberty interest of the
defendant.
R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 68-69
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38. Provisions of the Criminal Code, strike the appropriate balance between public interest inthe potential protection of Neil Rodgers and the liberty interest of Defendant Andre Murray.
Only in unusual circumstances will the justice, hearing the matter, be entitled to order the
detention of the Defendant, pending the hearing. Indeed, it will be a rare case where it would
enhance confidence in the administration of justice to detain a defendant who is not alleged to
have committed any crime and who can only be required to enter into a recognizance at the
conclusion of the proceedings: The conduct of the judiciary to this point will bring the
administration of Justice into disrepute. Section 810 has been improperly, without justification
and without jurisdiction exercised, upon Defendant Andre Murray. Defendant Andre Murray has
been subject to an undertaking for 11 months (from April 18, 2012 to March 13, 2013), despite
the Court having no discretion to Order same. Andre Murray was arrested by Constable David
Beck April 18, 2012, a full 47days before the FORM 2 Information, applying for an Undertaking
pursuant to s 810, was sworn June 5, 2012, by Constable Paul Estey. So far Andre Murray has
been arrested twice and spent two days in jail, over an illegally obtained Undertaking that
should not exist and for reasons unrelated to harming the interests of Neil Rodgers.
(3)
MATTER BROUGHT BEFORE A JUDGE
39. According to s. 810 of the Criminal Code, Crown prosecutors office having laid aninformation, the Justice receiving the information will cause all parties to attend a Hearing to
determine if a Undertaking is required. In circumstances where the objective and subjective of
the fear has not been proven on the balance of probabilities, no undertaking will be required, nor
desired in administration of justice. There may be some circumstances where the objective and
subjective of the fear has been proven on the balance of probabilities where the recognizance is
still not warranted. Finally the objective and subjective of the fear may be proven on the balance
of probabilities, and the recognizance is warranted. Thus, the Judge must be left with a residual
discretion that may or may not be exercised based on the factual context.
40. In R. v. Soungie, Judge M.G. Allen provided the following summary of principals forapplication ofSection 810 of the Criminal Code:
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Summary of the Principles
[46] Let me set out in point form the principles applicable to s. 810 applications:
(1) Section 810 is preventive in nature protecting the applicant in appropriate
circumstances from future harm to the applicant, the applicants spouse, theapplicants common law partner, the applicants children, or future damage tothe applicants property. The Court is allowed to intervene to prevent a breach
of the peace prior to an actual offence being committed.
(2) Section 810 restrains the liberty of the defendant to live his or her life free
from restraint of that liberty.
(3) The Judge must balance the two competing interests in determiningwhether to place the defendant on a recognizance. That is, the Judge must
balance the right of the defendant to privacy or to be left alone against the right
of the applicant to a protective intervention in appropriatecircumstances. Certainly, the Judge must be cautious in exercising discretion to
affect the liberty of the subject, but this caution must be tempered with a view to
the protection provided to the applicant where grounds have demonstrated theneed for the recognizance.
(4) The applicant must actually fear that the defendant will cause personalinjury to the applicant, the applicants spouse, the applicants common law
partner, the applicants children, or will cause damage to the applicants
property.
(5) The Judge must find that the applicants fears are reasonable, i.e., that an
objective person armed with the same knowledge as the applicant would agree
that the applicants fear are reasonable. The reasonable fear must be triggeredby some action of the defendant.
(6) Evidence of the defendants previous misconduct is admissible todetermine the basis for the beliefs held by the applicant. This evidence can be
used by the Judge in determining whether the applicants fears are reasonable.
(7) The Judge is not asked to predict future behaviour; rather, the Judge mustbe satisfied from the evidence the likelihood of future harm or damage. The
quality and strength of the evidence must be sufficient to satisfy this likelihood.
(8) The onus of persuasion is upon the applicant. The applicant must satisfy
the Judge on the balance of probabilities of the grounds for the issuance of a
recognizance.
R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv
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41. The summary of principals for application of Section 810 of the Criminal Code and howthey may relate to this subject matter, will be examined below in section (11) Titled ACTUAL
CONDUCT OF THE POLICE, CROWN AND COURT. Please note: the objective and
subjective of the fear must be proven on the balance of probabilities, to a Court before the Judge
has the jurisdiction to Order an Undertaking. The Judge must be left with a residual discretion
that may or may not be exercised based on the factual context; otherwise the enforcement of an
Undertaking will be Unconstitutional (contrary to Charter guarantees).
(4)
RESTRAINT OF LIBERTY
42. In R. v. Soungie, Judge M.G. Allen provided the following on restraint of Liberty inapplication of Section 810 of the criminal Code. It is most important to note that A Judge
hearing an application must attempt to balance two competing interests: (1) the right of the
defendant to privacy or to be left alone; (2) the right of informant to protective intervention in
appropriate circumstances. The prerequisites of the section provide the balance needed by
setting out subjective and objective grounds that must be satisfied prior to the issuance of the
recognizance sought. In the matter of Defendant Andre Murray no Information was laid before
a Justice until months after members of FREDERICTON POLICE FORCE acted unilaterally,
whereby Andre Murray was arrested without a warrant and detained for hours enduring coercive
manipulation, furthermore, threatening Andre Murray with ultimatums requiring that Andre
Murray sign an undertaking or go to jail, inter alia. It must be noted that many months after and
while Andre Murray was still suffering the conditions of his undertaking HEARSAY
Informant Constable Paul Estey provided Information to the Crown Council.
Restraint of Liberty
[9] Even prior to the Charterthe Courts recognized that peace bonds restrainedliberty:R. v. MacKenzie (1945), 85 C.C.C. 233 (Ont. C.A.). MacKenzie dealt with a
common law peace bond which could bind someone to keep the peace. The present
provisions contained with s. 810 give a Provincial Court Judge even greater powers torestrain an individuals liberty. When the defendant is ordered to be placed on a
recognizance, the minimum condition that the defendant is subject to keeping the peace
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and good behaviour (s. 810(3)(a)). Other conditions desirable for securing good
behaviour may be added. Moreover, some conditions must be considered by theJudge. These include: a prohibition from possession of firearms and other weapons (s.810.3.1); a condition prohibiting the defendant from being within a certain distance of the
applicant or applicants spouse, common law partner or children (s. 810.3.2(a)); a
condition prohibiting direct or indirect communication with the applicant, the applicantscommon law partner, spouse or children (s. 810.3.2(b)). If the respondent does not agree
the defendant can be committed to custody for twelve months. Should the defendantbreach the recognizance he or she can be charged with an offence that is punishable by a
maximum of two years by indictment or a summary conviction maximum. The
legislative scheme does place restrictions upon a defendant subject to a recognizance.
[10] The jurisprudence also supports the view that the defendant is restrained by a
recognizance. In Budreo Then J. recognized that the Charterand specifically s. 7of theCharteris applicable to liberty interests restrained by s. 810.1. In the Court of Appeal
the Crown stipulated that s. 810.1 deprived the defendant of his liberty:R. v. Budreo
2000 CanLII 5628 (ON CA), (2000), 142 C.C.C. (3d) 225 (Ont. C.A.). By s. 810.1 therespondent can be restrained from contact with persons under eighteen years and certain
named locations where such persons can be found. In s. 810, as in s. 810.1, thedefendant can be prohibited from contact with certain individuals and from certain
locations. Clearly, the liberty interests recognized by the Chartercould be implicated bya s. 810 recognizance.
[11] A Judge hearing an application must attempt to balance two competing
interests: (1) the right of the defendant to privacy or to be left alone; (2) the right of
informant to protective intervention in appropriate circumstances. The prerequisites of
the section provide the balance needed by setting out subjective and objective groundsthat must be satisfied prior to the issuance of the recognizance sought.
R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv Paragraph 9 - 11
43. In Defendant Andre Murrays case, there was no prerequisite s.810 Application hearingto determine, before a Judge, if an Undertaking was justified, therefore it is not possible to say
that a balance was reached according to due process. Pursuant to Charter protections, any
Undertaking, that claims restrictions upon Defendant Andre Murray, without due process is of no
force or effect.
(5)
THE SUBJECTIVE FEAR AND OBJECTIVE REASONABLE GROUNDS
44. In R. v. Soungie, Judge M.G. Allen provided the following, regarding Subjective Fearand Objective Reasonable Grounds in relation to an undertaking under section 810 of the
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Criminal Code. It is most important and revealing to note that the justice who conducts the trial
must be satisfied, (presumably at least on a balance of probabilities if not beyond a reasonable
doubt), that the subjective and objective elements have been proven is evidence. Unless both
elements have been proven the justice has no jurisdiction to make the order.:
The Subjective Fear and Objective Reasonable Grounds
[12] The objective and subjective ground necessary to support were succinctly set inR. v. Banks, reflex, [1995] 4 W.W.R. 698 (Sask. C.A.) (Banks), Bayton J. said at pp. 702-
3:
It is evident from ss. (1) and (3) that before an order can be made against the
defendant, two elements must be established in evidence (for clarity I will use the
masculine gender):
(1) The informant actually fears that the defendant will cause personal
injury to him, his spouse, his child, or will damage his property, and
(2) Reasonable grounds exist for the informants fears.
The first condition is a subjective condition while the second is an objective
one. The Code uses the term reasonable grounds while the information uses the
term reasonable and probable grounds. In any event, the justice who conducts
the trial must be satisfied, (presumably at least on a balance of probabilities if notbeyond a reasonable doubt), that the subjective and objective elements have been
proven is evidence. Unless both elements have been proven the justice has nojurisdiction to make the order.
The reasonable grounds requirement is to protect individuals from unwarranted
restrictions on their liberty through an order made solely on the subjective (andpossibly unreasonable) perceptions of an informant. Only in those instances in
which the subjective perceptions of an informant are supported by objective
reasonable grounds can such an intervention order be made. R. v. Patrickreflex,
(1990), 75 C.R. (3d) 222 at 228 (B.C. Co. Ct.).
[13] Many Criminal Code sections use the term reasonable grounds for the basis ofjudicial action. The judicial interpretation of the term used in other contexts can be
helpful in making a determination the meaning of the term used in the context of s. 810.
[14] InR. v. Storrey, [1991] 1 S.C.R. 241 (S.C.C.), the Supreme Court was dealing
with the power of police to arrest which required the police to have reasonable and
probable grounds. Cory J. writing for the Court observed at pp. 250-251:
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In summary then, the Criminal Code requires that the arresting officer must
subjectively have reasonable and probable grounds on which to base thearrest. Those grounds, must, in addition, be justifiable from the objective point of
view. That is, to say, a reasonable person placed in the position of the officer
must be able to conclude that there were indeed reasonable and probable grounds
for the arrest. On the other hand, the police need not demonstrate anything morethan reasonable and probable grounds. Specifically, they are not required to
establish a prima facie case for conviction before making the arrest.
R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv Paragraph 12 - 14
45. In R. v. Soungie, Judge M.G. Allen provided the following regarding the onus of proof,which is, based on balance of probabilities. The prosecution on a section 810 application, must
prove to a Justice, on the balance of probabilities that an Undertaking is warranted:
[35] InMiller v. Millerreflex, (1991), 87 Nfld. & P.E.I.R. 250 (Nfld. Prov. Ct.)Handrigan P.C.J. explored at length the onus of proof. His conclusion was at para. 23:
It is my view that the burden of proof on the prosecution on a section 810application is not proof beyond a reasonable doubt but on a balance of
probabilities. The following are my reasons for concluding this:
(1) Proceedings under section 810 are at best quasi-criminal in nature and even
where there is a finding that the accused is required to enter into a
recognizance this is not a conviction and no penalty flows directly there from.
(2) The wording of section 810 of the Criminal Code is to the effect that anapplication can be taken out by any person who fears, and that the court must
be satisfied on the evidence adduced that the applicant has reasonable groundsfor his fears. The use of the words fears, satisfied, and reasonable
grounds do not suggest the same severity or significant degree of proof
attendant upon the prosecution in bona fide criminal proceedings.
(3) While it may be argued that a respondent entering into a recognizance has his
liberty restricted, or that a very real consequence will result to those directed tobut who refuse to enter into a recognizance, essentially the existence of a
recognizance is no penalty or burden for a respondent to bear, simply because
he is only binding himself to do what all law-abiding citizens are required todo. It is true that he attracts the risks of further penalty for breaching the peaceor failing to be of good behaviour but this is not such an unreasonable burden
or expectation for him, such that his exposure to it should be supportable only
by proof beyond a reasonable doubt.
(4) The recognizance contemplated by section 810 of the Criminal Code may be
in form 32 of the Criminal Code and this is the type of form suggested as
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being the form of a recognizance to be entered into by a person released by the
court under the judicial interim release provisions of the Criminal Code. It is awill-established fact that the burden on the applicant under the judicial interim
release provisions is not beyond a reasonable doubt but on a balance of
probabilities. Hence, it would follow a fortiori that the burden contemplated
by section 810 of the Criminal Code is on the same standard, proof on abalance of probabilities.
R. v. Soungie, 2003 ABPC 121 (CanLII), http://canlii.ca/t/fjv Paragraph 35
46. The onus of proof (is on the Crown), through due process a balance of probabilities has tobe met,. Please Note that unless both elements have been proven:
(1) Subjective Fear;
(2) Objective Reasonable Grounds;
the justice has no jurisdiction to make an Orderpursuant to section 810 of the CriminalCode. The Court must be satisfied on the evidence adduced at the s 810 hearing, that the
Informant has reasonable grounds for his fears.
(6)
STATUTORY INTERPRETATION ISSUES
47. In R. v. Falle, the Court expressed that in order to accomplish what Parliament intended,(through the Criminal Code), a hearing before a Provincial Court Judge, is essential andmandatory, at which time both the Informant and the Defendant can address the issues. In
proceedings pursuant to section 810, the onus is upon the Informant on the balance of
probabilities to prove the need for an undertaking. The threat of future harm must be more than
mere speculation, and requires a proven factual foundation which raises probable grounds to
suspect future misbehaviour. The factual foundation must be based on evidence meeting the
principles of necessity and reliability set out by the Supreme Court of Canada or in the very least
civil evidentiary standard of inherent trustworthiness. Either way evidence is tendered to a Court
at a formal Hearing of the matter, contemplating a Section 810 Undertaking.
Statutory Interpretation Issues
[7] . In order to accomplish this Parliament has provided for a hearing before aProvincial Court Judge at which both the Informant and the Defendant can address those
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issues. In coming to this conclusion I have been helped by the reasoning in the following
cases:
R. v. Baker[1999], B.C.J. 681 (B.C.S.C.);
R. v. Budreo, 2000 CanLII 5628 (ON CA), (2000) 142 C.C.C. (3d) 225;
Re Dhesi, 1983 CanLII 338 (BC SC), (1984) 9 C.C.C. (3d) 149;
R. v. Wakelin, reflex, (1992) 71 C.C.C. (3d) 115;
R. v. Bilida, 1999 ABQB 1016 (CanLII), (2000) 256 A.R. 336.
Evidentiary Issues
[8] The onus is on the Applicant. I agree with the observations of DeFillipis, J. in
R. v. Ferrier[2000], O.J. 2720(Ont. Ct. Just.):
In proceedings pursuant to this section, no plea is taken from the Respondent.
The onus is upon the Applicant on the balance of probabilities. There is a broaderscope for the admissibility of evidence, including the history of violence and
evidence supporting a pre-disposition for violence. The threat of future harm must
be more than mere speculation, and requires a proven factual foundation whichraises probable grounds to suspect future misbehaviour.
I would only add that I believe the enhanced balance of probabilities test may be thebetter way of distinguishing this quasi-criminal proceeding.
[9] I endorse the observations of Martin J. inR. v. Bilida [2000], A.J. 20 (Q.L.):
In my opinion the phrase satisfied by the evidence adduced does not requireformal sworn evidence such as viva voce evidence commonly called in criminal
proceedings. Rather, I think the phrase also contemplates information tendered to
the Court by Counsel in the form of oral submissions.
[11] In making this finding I am reinforced by the developing principled approach
to the admissibility of hearsay evidence - namely the principles of necessity andreliability set out by the Supreme Court of Canada in:
R. v. Khan, 1990 CanLII 77 (SCC), (1990) 59 C.C.C. (3d) 92;
R. v. Smith, 1992 CanLII 79 (SCC), (1992) 75 C.C.C. (3d) 257;
R. v. Finta, 1994 CanLII 129 (SCC), (1994) 88 C.C.C. (3d) 417.
R. v. Rockey, 1996 CanLII 151 (SCC), (1996) 110 C.C.C. (3d) 481;
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R. v. U.(F.J.), 1995 CanLII 74 (SCC), (1996) 101 C.C.C. (3d) 97;
[12] However, if a witness is too ill, or is beyond the jurisdiction of the Court, or
there is some evidence that his/her attendance would cause undue emotional trauma orhardship, I would be prepared to accept a letter or report that meets a civil evidentiary
standard of inherent trustworthiness.
R. v. Falle, 2001 ABPC 36 (CanLII), http://canlii.ca/t/5qs0 paragraph 7 - 12
Sureties to Keep the Peace
Where injury or damage feared
810. (1) An information may be laid before a justice by or on behalf of any person whofears on reasonable grounds that another person will cause personal injury to him or her
or to his or her spouse or common-law partner or child or will damage his or her
property. Duty of justice
(2) A justice who receives an information under subsection (1) shall cause the parties toappear before him or before a summary conviction court having jurisdiction in the same
territorial division.
Adjudication(3) The justice or the summary conviction court before which the parties appear may, ifsatisfied by the evidence adduced that the person on whose behalf the information was
laid has reasonable grounds for his or her fears,
o (a) order that the defendant enter into a recognizance, with or without sureties, tokeep the peace and be of good behaviour for any period that does not exceedtwelve months, and comply with such other reasonable conditions prescribed in
the recognizance, including the conditions set out in subsections (3.1) and (3.2),
as the court considers desirable for securing the good conduct of the defendant; or
o (b) commit the defendant to prison for a term not exceeding twelve months if heor she fails or refuses to enter into the recognizance.
Conditions(3.1) Before making an order under subsection (3), the justice or the summary conviction
court shall consider whether it is desirable, in the interests of the safety of the defendantor of any other person, to include as a condition of the recognizance that the defendant beprohibited from possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or explosive substance,
or all such things, for any period specified in the recognizance and, where the justice orsummary conviction court decides that it is so desirable, the justice or summary
conviction court shall add such a condition to the recognizance.
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Surrender, etc.(3.11) Where the justice or summary conviction court adds a condition described in
subsection (3.1) to a recognizance order, the justice or summary conviction court shallspecify in the order the manner and method by which
o (a) the things referred to in that subsection that are in the possession of theaccused shall be surrendered, disposed of, detained, stored or dealt with; and
o (b) the authorizations, licences and registration certificates held by the personshall be surrendered.
Reasons(3.12) Where the justice or summary conviction court does not add a condition describedin subsection (3.1) to a recognizance order, the justice or summary conviction court shall
include in the record a statement of the reasons for not adding the condition.
Idem(3.2) Before making an order under subsection (3), the justice or the summary convictioncourt shall consider whether it is desirable, in the interests of the safety of the informant,
of the person on whose behalf the information was laid or of that persons spouse or
common-law partner or child, as the case may be, to add either or both of the followingconditions to the recognizance, namely, a condition
o (a) prohibiting the defendant from being at, or within a distance specified in therecognizance from, a place specified in the recognizance where the person on
whose behalf the information was laid or that persons spouse or common-law
partner or child, as the case may be, is regularly found; and
o (b) prohibiting the defendant from communicating, in whole or in part, directly orindirectly, with the person on whose behalf the information was laid or that
persons spouse or common-law partner or child, as the case may be. Forms
(4) A recognizance and committal to prison in default of recognizance under subsection(3) may be in Forms 32 and 23, respectively.
Modification of recognizance(4.1) The justice or the summary conviction court may, on application of the informant or
the defendant, vary the conditions fixed in the recognizance.
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(7)
VIOLATION OF PRINCIPLES OF DUE PROCESS
48. Due process protections in theBill of Rights do confer certain rights to notice and anopportunity to make submissions in the adjudication of individual rights and obligations. A basic
principle of Natural Justice is the Right to Be Heard and common law support this principle.
Section 2(e) of theBill of Rights applies to guarantee the fundamental justice of proceedings
before any Court that determine individual rights and obligations. The right of the individual to
liberty, and the right not to be deprived thereof except by due process of law is essential to the
identity of Canadian Law. This concept is reflected again in the requirement for a Section 810
Hearing before a Justice, where an applicant must convince a Court, by evidence and the balance
of probabilities, that an undertaking is warranted in the situation, before an individuals liberty is
restricted, by signing an undertaking, or face incarceration.
49. Recognition and declaration of rights and freedoms in the Canadian Charter of Rights andFreedoms:
1. It is hereby recognized and declared that in Canada there have existed and shall
continue to exist without discrimination by reason of race, national origin, colour,religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment ofproperty, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliamentof Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe or to authorize the
abrogation, abridgment or infringement of any of the rights or freedoms hereinrecognized and declared, and in particular, no law of Canada shall be construed or
applied so as to
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
(e) deprive a person of the right to a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and obligations;
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(f) deprive a person charged with a criminal offence of the right to be presumed innocent
until proved guilty according to law in a fair and public hearing by an independent and
impartial tribunal, or of the right to reasonable bail without just cause; or
50. In R. v. J.T.S., the Court stated the right to due process is for everyone, which notably isthe best insurance for the government itself, against the blunders which leave lasting stains on a
system of justice: Unfortunately for Defendant Andre Murray, he has experienced one of those
blunders, expressed by the Court as follows:
We cannot ration the right to due process in the execution of our penal laws on the basis
of the character of those who seek it. While it is the outcasts of society that must have theprimary call upon the safeguard of due process, it is not for the convicted alone;
[Due process] is the best insurance for the government itself, against the blunders
which leave lasting stains on a system of justice. Shaughnessy v. United States,(1953) 345 U.S. 206, 224 (1953), Robert H. Jackson J. (U.S.S.C.).
R. v. J.T.S., 1996 ABCA 374 (CanLII), http://canlii.ca/t/2dd75
51. The unilateral actions of members of FREDERICTON POLICE FORCE, thereafterNegligence on the part of the Crown Prosecutors and the Court thus far, have collectively
violated Defendant Andre Murrays right to due process, this is such a blunder, that if not
corrected will leave a lasting stain on the Judiciary. The administration of Justice will be brought
into disrepute. Andre Murrays right to due process has been violated, contrary to Constitutionalguarantees. A correction must be made to maintain public confidence in the administration of
Justice.
(8)
CHARTER VIOLATIONS
52. Procedural safeguards within the Criminal Code of Canada should be sufficient to allows.810 to be Charter compliant, but when procedure is not followed, imposition of s.810 cancreate a Charter infringement upon the innocent. When properly implemented the procedural
safeguards in s.810 are adequate. In the normal course of maters, anyone subjected to a s.810
application receives notice of the hearing. The hearing must meet the procedural fairness
requirements of a summary conviction trial. No order can be made until after the hearing is
completed. The presiding provincial court judge has discretion to limit the restrictions imposed.
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Any order made is not a lifelong injunction; it can last no longer than a year and may be renewed
only after an entirely new hearing. A person subjected to a s.810.1 order may appeal the order
and may, at any time, seek to vary the conditions. When properly implemented, it strikes a
reasonable balance between the liberty interest of the defendant and the states interest in
protecting an Informant from harm. A defendants liberty interest may be restricted only after a
hearing complying with the requirements of natural justice and only to the extent needed to avoid
unreasonably jeopardizing the safety of the Informant.
53. In R. v. Budreo, the Court examined the provisions for pre-trial arrest and bail andProcedural safeguards sufficient to not make s.810.1 overbroad, thus saving it from violating the
Charter.:
[46] The provisions for pre-trial arrest and bail which, as I will discuss later in thesereasons, apply to a proceeding under s.810.1 carry with them the possibility of
a sanction more severe custody or detention than any sanction that may beImposed as a result of a hearing under s.810.1. That possibility, however, does not
make the section overbroad. Pre-trial arrest or even pre-hearing detention may be
necessary to secure the defendants attendance at the hearing or to prevent
harm to children pending a hearing because of a defendants unwillingness to complywith reasonable terms of release. In short, as I have already said, pre-trial arrest and
detention may be needed in some cases to ensure the integrity and viability of
the s.810.1 proceedings themselves.
4. Procedural safeguards are sufficient to not make s.810.1 overbroad
[47] The procedural safeguards in s.810.1 are adequate. Anyone
subjected to a s.810.1 application receives notice of the
hearing. The hearing must meet the procedural fairness requirements of a summary
conviction trial. No order can be made until after the hearing is completed. Thepresiding provincial court judge has discretion to limit the restrictions imposed.
Any order made is not a lifelong injunction; it can last no
Longer than a year and may be renewed only after an entirely new hearing. A personsubjected to an s.810.1 order may appeal the order and may, at any time, seek to vary the
conditions.
[48] I therefore conclude that s.810.1 is not overbroad. Instead, it strikes a reasonable
balance between the liberty interest of the defendant and the states interest in protecting
young children from harm. A defendants liberty interest may be restricted only after ahearing complying with the requirements of natural justice and only to the extent needed
to avoid unreasonably jeopardizing the safety and security of young children.
R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 46-48
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54. When those Procedural safeguards found within s.810 of the Criminal Code of Canada,are not followed, Police, Crown and Court actions are no longer Charter compliant, the
defendant Andre Murray becomes a victim of procedure run amuck, as follows:
The Defendant (in this subject matter) Andre Murray did not receive any notice of a s.810.1 application Hearing.
There has not been the necessary s 810 application Court Hearing, prior to Andre Murrayhaving been subjected to the ultimatum requirement wherein Andre Murray was
threatened to spend time in jail while waiting to see a Judge and or alternatively Andre
Murray had to sign the subject undertaking to be released from the custody of members
of FREDERICTON POLICE FORCE who subjected Andr Murray to arrest,
interrogation, combined ultimately with an ultimatum, (under threat of incarceration for adays) (a form of coercion) therefore, I Andre Murray was given to believe by members of
FREDERICTON POLICE FORCE that I had no options, at that time, other than sign the
subject undertaking or to spend days in Jail, before being allowed to see a Judge,
therefore violating procedural fairness requirements according to s. 810.
There exists no jurisdiction for the Court to make such an order, of an Undertaking,furthermore, no order could reasonably have been made until after the s.810 application
hearing is completed.
55. Any Undertaking, properly Ordered, can last no longer than a year and may be renewedonly after an entirely new hearing. Please Note: for 11 months, since April 18, 2012, without the
prerequisite s. 810 hearing, members of FREDERICTON POLICE FORCE have been, however,
treating Defendant Andre Murray as if he is subject to an Undertaking. This is because of the
improper procedure and actions of the members of FREDERICTON POLICE FORCE, Crown
and the Courts. When properly implemented, s. 810 of the Criminal Code, strikes a reasonable
balance between the liberty interest of Defendants and the states interest in establishing the
validity of an Informants legitimate need to be protected from harm. Therefore, as in this
subject matter, Defendant Andre Murrays liberty interest should never have been
prematurely restricted.
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(9) VAGUENESS
56. Constable Jeff Lingley erroneously Dated the subject Police Officer's Undertaking asApril 16, 2012, however, the true Date of which the Undertaking was signed by Andre Murray
was in reality April 18, 2012, moreover, while Andre Murray under protest and duress.
57. Defendant Andre Murray was forced (under protest and duress) to sign a undertaking to aPolice Officer, April 18, 2012, that was ambiguous enough to void for vagueness principle.
Defendant Andre Murray was unreasonably forced to agree to not go onto the property of Neil
Rodgers and Trina Rodgers, or appear at their place of employment, without those places of
employment being expressly identified. Like the overbreadth principle, the void for vagueness
principle is also concerned with whether an undertaking has used precise enough means to
achieve its objective. But whereas overbreadth is concerned with whether the Undertaking is
targeted sufficiently narrow, vagueness is concerned with whether the Undertaking is defined
with sufficient clarity. The rationale for the void for vagueness principle is that, unless a
undertaking sufficiently delineates the area of risk of unlawful conduct, the Defendant will not
have the fair notice of the Order, which they therefore, may be unknowingly violating. Thus, an
undertaking must provide an intelligible standard according to which the judiciary must do its
work and an adequate concise basis and intelligible conditions to which the defendant may
adhere to, otherwise the undertaking does not sufficiently delineate an area of risk of unlawful
conduct The effect is that the undertaking will be impermissibly vague contrary
to the principles of fundamental justice.
58. In R. v. Budreo, the Court considered the charter implication of vagueness and asked thequestion, Is s.810.1 void for vagueness. In R. v. Budreo, the Court found that s 810.1 was not.
Neverthless, in Defendant Andre Murrays case, before this Court, if the same principles are
applied and question asked, was the initial undertaking given to a Police Officer, (singed, under
protest and duress) void for vagueness.? The Court would conclude that yes it was and is,
therefore it is of no force or effect.
(iii) Is s.810.1 void for vagueness?
[49] Like the overbreadth principle, the void for vagueness principle is alsoconcerned with whether the legislature has used precise enough means to achieve
its objective. But whereas overbreadth is concerned with whether the legislation is
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targeted sufficiently narrowly, vagueness is concerned with whether the legislation is
defined with sufficient clarity. The rationale for the void for vagueness principle isthat, unless a law sufficiently delineates the area of risk of unlawful conduct,
citizens will not have the fair notice of the law to which they are entitled, and police
officers and others will have too much discretion in deciding how and when to enforce
the law. Thus, a law must provide an intelligible standard according to which thejudiciary must do its work and an adequate basis for legal debate, that is for reaching
a conclusion as to its meaning by reasoned analysis applying legalcriteria.15 Otherwise, the law will be impermissiblyvague contrary to the principles of
fundamental justice.
[50] The appellant submits that s.810.1 does not sufficiently delineate an area of risk of
unlawful conduct, and thus does not provide fair substantive notice to a citizen, because it
allows for restrictions on liberty on an informants fear on reasonable grounds. The
appellant argues that the word fear should be contrasted with the word belief, whichis used in Criminal Code provisions authorizing an arrest or a search.16 Fear,
according to the appellant, can be irrational or emotional and is invariably subjective,while belief can be assessed objectively.
R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 49-50
(10)
VIOLATION OF S.7 AND S.9 OF THE CHARTER
59. In R. v. Budreo, the Court expressed the concept, that, in the context of a preventiveprovision like s.810.1, making the issuance of an undertaking on a defendant automatic,mandatory or without the prerequisite preliminary hearing violates s.7 and 9 of the Charter
and could not be justified under s.1. An automatic issuance of process, with the potential arrest
of the defendant, is excessive and unwarranted. The case before this Court is a stellar example
of this. Thus, An automatic issuance of process subjects the ordinary citizen to inter alia,
capricious or unjustifiable detention. A residual discretion is a constitutional requirement.
A recognizance order can only be made if the presiding judge (following a Hearing) is satisfied
by evidence that the fear is reasonably based. The need for the informants state of belief to be
objectively assessed and for the presiding judge to come to an independent conclusion, is
essential for due process. Please see the following paragraphs for reference:
[51] I do not accept the appellants argument. The word fear or fears should not be
considered in isolation but together with the modifying words in s.810.1(1) on
reasonable grounds. Fear alone connotes a state of belief or an apprehension that a
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future event, thought to be undesirable, may or will occur. But on reasonable grounds
lends objectivity to the apprehension. In other words, the phrase fears on reasonablegrounds in s.810.1(1) connotes a reasonably based sense of apprehension about a future
event, or as Then J. put it, it equates to a belief, objectively established, that the
individual will commit an offence.17
[52] Moreover, although an informants fear triggers an application under s.810.1, under
subsection (3) a recognizance order can only be made if the presiding judge is satisfiedby evidence that the fear is reasonably based. Section 810.1(3) therefore requires the
judge to come to his or her own conclusion about the likelihood that the defendant will
commit one of the offences listed in subsection (1). Although the evidence the judgerelies on might include hearsay, a recognizance could only be ordered on evidence that is
credible and trustworthy.
[53] Despite the need for the informants state of belief to be objectively assessed and forthe presiding judge to come to an independent conclusion, I acknowledge some
imprecision in the phrase fears on reasonable grounds. But some imprecision is to beexpected because s.810.1 requires a prediction about future dangerousness. So too doess.810, which uses the same phrase. The phrase is not so imprecise that it fails to delineate
an area of risk or fails to provide an adequate basis for legal debate. Moreover, it is
surrounded by requirements in s.810.1 the information, the summons, the hearing itself that give the defendant fair notice of the conduct sought to be prevented; and if a
recognizance is ordered, the defendant will have fair notice of the conditions imposed
and, thus, will know how to comply. The threshold for declaring a law void for vagueness
is appropriately high. Section 810.1 does not pass this threshold. I would not give effectto this ground of appeal.
[54] Subsection 810.1(2) provided that a provincial court judge who receives aninformation under subsection (1) shall cause the parties to appear before the provincial
court judge (emphasis added). Then J. held that, in the context of a preventive
provision like s.810.1, making the issuance of process on a defendant mandatoryviolated ss.7 and 9 of the Charter and could not be justified under s.1. In his view, an
automatic issuance of process, with the potential arrest of the defendant, is excessive
and unwarranted. It provides no control on obviously unfounded informations under
which a person may be summonsed or arrested.18 Thus, it subjects the ordinary citizento capricious or unjustifiable detention. In Then J.s view, and relying on
the Supreme Courts decision in Baron v. Canada,19 a residual discretion is a
constitutional requirement. The Crown does not take issue with Then J.s holding thatshall in s.810.1(2) is unconstitutional.
[55] The appellant, however, takes issue with Then J.s remedy. Having found that a
discretion was a constitutional requirement, Then J. applied s.52 of the Constitution Act,
1982, and read down shall to may. The appellant submits that he should simply havedeclared the subsection inoperative.
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[56] The Supreme Court refused to read down shall to may in Baron itself, and in R.
v. Swain.20 Then J. distinguished Baron on the grounds that the Attorney General in thatcase had not asked for the remedy of reading down and that, unlike the provision
challenged in Baron, s.810.1(2) was not central to the legislative regime in s.810.1. I
think it fair to say, however, that when legislation expressly excludes a judicial
discretion, courts have been reluctant to read one in as a constitutionalremedy. Nonetheless, in my view, Then J. was correct to read down shall to may in
this case.
[57] In deciding on the appropriate remedy under s.52 for a Charter breach, the court
must apply the measures which will best vindicate the values expressed in the Charterwhile refraining from intrusion into the legislative sphere beyond what is
necessary. Before reading down or reading in, the court must ask whether it is safe to
assume that the legislature would have enacted the legislation in its altered
form.21 Here, may in s.810.1(2) appropriately vindicates Charter values. Giving thepresiding judge a discretion whether to summons or arrest a defendant once an
information is sworn is an important constitutional safeguard. Thus, the remedy ofreading in may, although explicitly altering the legislation, will preserve statutoryobjectives within clear constitutional contours.22
[58] Recent legislation shows that we can safely assume Parliament would have enacteds.810.1(2) with the word may. In 1997 Parliament added two new provisions to the
Criminal Code similar to s.810.1, and in each new provision used the word may instead
of shall. Section 810.01 authorizes a recognizance order against a person likely to
commit a criminal organization offence, and s.810.2 authorizes a recognizance orderagainst a person likely to commit a serious personal injury offence. Sections 810.01
and 810.2 are worded similarly to s.810.1 with necessary modifications for their
context. Sections 810.01(2) and s.810.2(2) are identical to s.810.1(2) except that in placeof shall cause the parties to appear before the provincial court judge, in the two new
provisions Parliament has used may cause the parties to appear before the provincial
court judge. Because Parliament itself has enacted s.810.01 and s.810.2 to conform toThen J.s decision, we can safely assume that reading down shall to may does not
unnecessarily intrude into the legislative domain. I would not give effect to this ground
of appeal.
R. v. Budreo, 2000 CanLII 5628 (ON CA), http://canlii.ca/t/1fb1g Paragraph 51-58
60. It is noteworthy that s. 810 gives the justice, before which a Information is laid, discretionwhether to Order a Undertaking or not, upon a named Defendant, which is an important
constitutional safeguard, but this discretion is only activated once a named Defendant, together
with all the concerned parties are given notice of a Hearing, who respectively, for that reason,
have opportunity to respond to the information which has been laid before the subject Justice.
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However, to truly be a Court of competent Jurisdiction, pursuant to s 810 all parties should be in
attendance and or represented.
61. In this matter scheduled to be before the Court, March 13, 2013, Defendant AndreMurray has however, been subject to an undertaking for 11 months (from April 18, 2012 to
March 13, 2013), despite the Court having no discretion to Order same. A process or period in
which a Andre Murrays fitness, as membership in a social group, has been tested. Andre Murray
has been of good behaviour towards his neighbor Neil Rodgers. This subject time period of April
18, 2012 to March 13, 2013 demonstrates conclusively, that the Neil Rodgers fears alluded to
exist by Informant Constable Paul Estey were without foundation. Nevertheless, Andre Murray
was placed under arrest by Constable David Beck and Detective Steven Cliff, April 18, 2012, a
full 47 days before the herein above mentioned FORM 2 Information, pursuant to s 810, was
sworn and laid before a Justice June 5, 2012, by Constable Paul Estey. In these subject matters
jurisdiction, is found by a Justice only following an Information having been laid before the
justice, furthermore, and not until pursuant to s 810, the relative parties are caused be in
attendance before the subject Justice. The prerequisite, Preliminary s 810 Information Hearing is
an important constitutional safeguard, without the s 810 Information Hearing, Andre Murrays
Right to due process, and Charter guarantees are violated, rendering a Undertaking a nullity.
62. In the context of a preventive provision like Criminal Code: s.810, making theissuance of process on Defendant Andre Murray mandatory or automatic (without due process)
consequentially violates s.7 and 9 of the Charter and cannot be justified under s.1of the
Charter. An automatic issuance of process, with the potential arrest of the defendant, is excessive
and unwarranted. In Defendant Andre Murrays case, there was no FORM 2 Information, sworn,
before Andre Murray was arrested April 18, 2012, and thereafter forced under protest and duress
to sign a Undertaking to a Police Officer (or go to Jail). Automatic enforcement/subjection of an
Undertaking, provides no control on (as in this case) obviously unfounded FORM 2
Informations, under which a Defendant may be summonsed, or arrested, consequently, as a result
of the foregoing, Andre Murray has been subjected to capricious, or unjustifiable arrest,
detention and loss of personal freedom. The Supreme Courts decision in Baron v. Canada,
paragraph 19 made this clear a residual discretion is a constitutional requirement. and its
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exercise by the Court, pursuant to a s. 810 Information hearing integral to due process
requirements. An Undertaking order can only be made if the presiding judge (following a s.810
Information hearing ) is satisfied by evidence that the fear is reasonably based. The need for
the informants state of belief to be objectively assessed and for the presiding judge to come to
an independent conclusion is essential for due process. Andre Murray has suffered loss of his
Charter protected liberty and freedom for the past 11 months, as a result of lack in due process.
(11)
ACTUAL CONDUCT OF THE POLICE, CROWN AND COURT
63. In Defendant Andre Murrays case, there was no Hearing scheduled or conducted asrequired by s 810 for a Court for assessment and hearing of evidence which might warrant a
undertaking. No Summons, was issued to Defendant Andre Murray. The Defendant was
provided no chance to answer or respond, to the accusations and provided no opportunity to
provide evidence in his defence.
64. Defendant Andre Murray has a right to a speedy trial, and holding a s 810 hearing, 11months after the undertaking is forced on the Defendant, is not in accordance of due process and
the right to speedy trial as expressed in the Charter. A person is supposed to be presumed
innocent until proven guilty, but in the Defendants case, he has been under prohibition as if just
cause of his guilt had been proven, when the opposite is true.
65. A Court in deciding whether to impose a undertaking on Defendant Andre Murray, mustbalance the two competing interests in determining whether to place Defendant Andre Murray on
a Undertaking. That is, the Judge must balance the right of the defendant to privacy or to be left
alone against the right of the applicant to a protective intervention in appropriate
circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty
of the subject, but this caution must be tempered with a view to the protection provided to the
applicant where grounds have demonstrated the need for the recognizance. In this case
Defendant Andre Murrays interests have been completely ignored, in favour of unfounded,
irrational, vexatious allegations, by Police Officer Constable Paul Estey (who has no first hand
involvement) on behalf Informant Neil Rodgers.
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66. When we review the Summary of Principles [(1)-(8) below] required in consideration offorcing an undertaking upon a Defendant Andre Murray, only alleged to have done some act the
Applicant Neil Rodgers subjectively labels as causing the necessity for an undertaking; much is
revealed:
67. (1) Section 810 is preventive in nature potentially protecting Applicant Neil Rodgers andthe Applicants interest, in appropriate circumstances from future harm. This protection provided
to Applicant Neil Rodgers, can only be acted upon, where grounds have demonstrated the need
for the undertaking. To force a s810 Undertaking on someone, the threat of future harm must be
more than mere speculation, and requires a proven factual foundation which raises probable
grounds to suspect future misbehaviour.
68. (2) Section 810 , when properly applied, restrains the liberty of Defendant Andre Murrayto live his or her life free from restraint of that liberty. This mean, section 810 can only be
properly applied, through due process, by a Judge pursuant to a s.810 application hearing,.
69. (3) The Judge at a s.810 application hearing, must balance the two competing interests indetermining whether to place the Defendant Andre Murray on an Undertaking. That is, the
Judge must balance the right of the Defendant Andre Murray to privacy or to be left alone