1. This is an appeal from the order of JUSTICE OWEN-FLOOD of the SUPREME COURT OF B.C. pronounced on the 29 day JAN. 1997 dismissing an application by the plaintiff for an order of Mandamus to compel JUDGE EHRCKE to reverse her dismissal of the plaintiff's application for an order under section 530 of the CRIMINAL CODE OF CANADA.

2. On or about 23 SEPT. 1996, I instructed my attorney (blazina) to apply for an order under s.530. (4) befor Judge ehrcke on court file no. 05192 in Western Communities courthouse, on which occasion judge ehrcke adjourned the hearing to 30 September, 1996 at which time she dismissed the application and accepted an application from the crown to adjourn my trial which was set to proceed on 3 Oct. 1996. At this hearing no new trial date was set and subsequently I was never properly informed of the new trial date.

3. On the morning of JAN. 9 1997 I learned from my attorney's office (blazina) that my trial had been set for 9:30 a.m. of that day I immediately proceeded to western communities courthouse and was taken into custody at approximately noon and then was brought before my trial judge HIGINBOTHAM at 2:00pm of that same day and told that I was charged with failing to appear. I attempted to apply to my trial judge HIGINBOTHAM at this time for an order under section 530. c.c. but was dismissed and orded to be remanded to WILKINSON RD. JAIL.

4. On the 10 JAN 1997 I was brought before a judge and released on a undertaking on the new charge 05192-A and the original charge 05192 and ordered to appear on JAN 14 1997 to set trial dates.

5. On Jan. 14 I appeared before judge ehrcke and applied for an order under s.530.(1) which she dismissed and subsequently took my plea and set a trial date of FEB 11 1997 for both charges.

6. On JAN 29 1997 I applied before JUSTICE OWEN-FLOOD for an order or writ of MANDAMUS to compel judge ehrcke to reverse her dismissal of my two applications for section 530 orders (530.(4) on court file no. 05192) and (530.(1) on court file no. 05192-A)

7. JUSTICE OWEN-FLOOD was in error when he ruled that the matter was not properly before him on grounds that the plaintiff had not complied with the applicable rules of procedure, specifically RULE 63 which he refered to as rule 63 of the rules of court and also that the plaintiff did not comply with section 2 of the JUDICIAL REVIEW PROCEDURE ACT, that the application shall be an originating application and shall be brought by petition.

8. The rule 63 referred to by JUSTICE OWEN-FLOOD is actually rule 63-CROWN PRACTISE RULES IN CIVIL MATTERS and as stated in section(2)
 

Section (2) of rule 63 of CROWN PRACTICE RULES IN CIVIL MATTERS clearly deprives myself or anyone else of the procedures and appeal rights associated with these extraordinary remedies and as such I deny that rule 63 has any force or effect in criminal law to prevent me from applying for relief of any extraordinary remedy.

9. SECTION 482(3)(c) of the Canadian Criminal Code states that in the case of rules of court that are made under subsection (1), that are not inconsistent with any act of parliament, such rules are made with respect to proceedings of MANDAMUS, CERTIORARI, PROHIBITION AND PROCEDENTO and as such this section guarantees that no legislative assembly of any province or any rules of court promulgated by any courts may deprive me or anyone else of the right to apply for a prerogative writ or an extraordinary remedy and to the right of appeal as guaranteed in section 784.(1) of the CANADIAN CRIMINAL CODE and sections 784(3) and section 784(5) and furthermore the ultimate law of CANADA states in section 10.(c) that the validity of a detention may be determined by way of HABEAS CORPUS.

10. Section 12 of the JUDICIAL REVIEW PROCEDURE ACT states
 

and as stated clearly attempts to divorce me or anyone else of our rights to all of the force and effect in law of these prerogative writs and specifically the rights of appeal as guaranteed in section 784.

11. The JUDICIAL REVIEW ACT contains no provision for appeal and the rule 12 of the act and rule 63 and rule 10 of the CROWN PRACTICE RULES IN CIVIL MATTERS deprives me of the full benefit and full protection of the law as guarateed by section 15 of the CHARTER OF RIGHTS AND FREEDOMS and further that these rules and procedures are in direct conflict with the requirements of 482(3)(c) of the CANADIAN CRIMINAL CODE and I deny that rule 12 and rule 10 of CROWN PRACTICE RULES IN CIVIL MATTERS and THE JUDICIAL REVIEW PROCEDURE ACT have any force or effect in law or criminaal proceedings to prevent me or anyone else from applying for any extraordinary remedies.

12. The failure of the courts to provide the proper rules and proper forms to enable myself or anyone else to avail ourselves of these EXTRAORDINARY REMEDIES amounts to an abuse of process and places an improper onus on myself or anyone else to prove that our application is proper in the absence of proper rules and proper forms.

13. The nature of the orders I seek are two-part. The dismissal of at least one of my applications by judge ehrcke (530.(1) for court file no. 05192-A) is illegal and places her in violation of section 126. of the CRIMINAL CODE and further that her actions in implying qualifications to an unambiguous statute is creating a mischief in the courts by initiating a situation of inequality in the courts based on language and ethnic origin and is a serious violation of sectiom 15 of the CHARTER OF RIGHTS AND FREEDOMS of the CONSTITUTION OF CANADA and further infringes on my rights under section 11.(d) of that charter and I request this court for a WRIT OF MANDAMUS to compel judge ehrcke to reverse her dismissal of both of my applications under section 530 for the above grounds and for further grounds as stated next.

14. Section 801.(3) states that on a trial for summary conviction evidence shall be taken in accordance with PART XVIII.

Section 647. states that on a trial for indictable offense evidence shall be taken in accordance with PART XVIII.

Section 557. states that where an accused is tried under PART XIX evidence shall be taken in accordance with PART XVIII.

Section 515.(9) states that on judicial interim release hearing evidence shall be taken in accordance with PART XVIII.

Section 507.(3) and section 508.(2) both state that where a justice hears the informant and or witness on an information he shall cause the evidence to be taken in accordance with section 540 of PART XVIII.

Under all of the above sections of the CRIMINAL CODE the evidence of witnesses is taken in accordance with section 540. of the code and this section clearlystates that a legible record of this evidence is to be made and if the record is taken in shorthand or by sound recording apparatus it shall be transcribed and certified and the judge shall cause this to happen.

In PART XIV of 1927 CRIMINAL CODE beginning at section 682 the same taking of evidence in virtually the same wording occurs but minus any reference to sound recording apparatus and in 1886 CHAPTER 174 PROCEDURE IN CRIMINAL CASES the only reference to to the taking of evidence occur in section 69. where the justiceSHALL take the statements of the witnesses and shall reduce the same to writing and in section 70. shall read or cause to be read to the accused the depositions of the witnesses and in 1886 there is no reference to stenographers.

15. In section 540.(2) the requirement that the judge in the presence of the accused befor asking if the accused wishes to call witnesses cause the deposition to be read and sign it in the presence of the accused is virtually identical to all preceding statutes in relation to the taking of evidence of witnesses and the introduction of stenographers and sound recording apparatus in no way relieves the judge or justice from causing a legible record of the evidence to be made and to allow the accused to verify that record befor it is signed by the judge or justice and this record is to be kept in the rcords of the court.

16. SECTION 126 of the CRIMINAL CODE states that everyone who willfully omits to do an act that is required to be done by an act of parliaament is guilty of an indictable offense.

Some or all?? of the courts of British Columbia have been comitting criminal acts against JUSTICE and THE JUDICIAL SYSTEM and depriving thereby individuals before those courts of their rights under the CRIMINAL CODE and the CONSTITUTION of our country.

How long this CRIMINAL ACTIVITY has been going on no-one in the criminal justice system seems able or willing to tell me.

17. In 1992 section 530.1 came into force in the province of British Columbia and in conjunction with the companion section 530. it entrenched the requirement that the record of proceedings in British Columbia shall include a transcript of everything that was said in those proceedings. The refusal of judge ehrcke to grant an order under section 530 further compounds this injustice being perpetrated by those courts of British Columbia and is a spit in the face of parliament.

It is no co-incident that section 530.1 was placed in a position where it was not in conflict with any other section or act of parliament and is protected by a language law with deep roots in our constitution; a mandatory section of the CRIMINAL CODE which cannot be interpreted or tampered with without creating mischief and injustice in the courts.

18. SECTIONS 530 and 530.1 are a back door created by parliament to allow those judges to exit a situation which is inherently improper and into which they may have fallen by no fault of their own by following the long trail of other judges who also have been following others who were in error.

19. For the above reasons that the transcript requirements of the criminal code presently and as stated in all previous related statutes are being actively violated by the courts of British Columbia and further that this violation extends into our constitution as well, I request this court to grant the remedy requested.

20. In support of this request I attach a copy of

1. a letter addressed to MANAGER COURT SERVICES dated AUG 20 1996 from david a. Parsons

2. a letter from R. FISHER criminal administrator dated AUG26 1996 to david a. Parsons

3. a letter addressed to MANAGER COURT SERVICES VICTORIA dated MAY 23 1997 from david a. Parsons

4. a letter from R. FISHER CRIMINAL ADMINISTRATOR dated MAY 26 1997 to david a. Parsons

21. In the matter of the crown staying the charge on court file no. 05192-A [failing to appear 145(2)(a)]

1. this trial was a summary conviction proceeding by the crown

2. my attorney (BLAZINA) appeared on the trial date to represent me JAN 9 1997 9:30 am

3. I, the defendant appeared at the courthouse COLWOOD at approximately noon JAN 9 1997 and was taken into custody

4. I appeared and was brought befor my trial judge HIGINBOTHAM at approximately 2:00pm JAN 9 1997 and was remanded to Wilkinson Rd. jail on a charge of failing to appear

5. I was brought befor judge ehrcke on JAN 10 1997 and a trial date was set for 11 FEB 1997 and a plea of not guilty was taken on this JAN 10 1997

6. the crown sent a letter signed DUNCAN J. CAMPBELL dated JAN 30 1997 stating that the charge of failing to appear had been stayed, to the defendant DAVID A. PARSONS

22. SECTION 800.(2) c.c. states that a defendant may appear personally or by counsel or agent

RICHARD V. QUEEN (1974), 27 C.R.N. 337(QUE. S.C.) The warrant shall not be issued until there is non-compliance with the court direction that the defendant appear personally

R. V. OKANEE (1981) 59 C.C.C.(2d)149,9 SASK. R.10(CA) It is improper to issue a bench warrant where the accused has appeared by counsel

23. I have been arbitrarily detained and imprisoned by the actions of judge HIGINBOTHAM and further deprived of my right to a speedy trial by a fair and impartial tribunal as guaranteed in sections 11.(b) and 11(d) of the CHARTER OF RIGHTS And FREEDOMS of our CONSTITUTION and the rights under these sections of our constitution over-ride any authority of the attorney general to stay any charges against any individual or person before the courts.

Irregardless of the suspension of proceedings by the crown, my rights under the constitution and the criminal code continue unabated and the attorney generals have no authority to suspend proceedings against me or anyone else without our permission.

The stay by the crown deprives me of the right to prove that the actions of judge HIGINBOTHAM were ILLEGAL and that he comitted a CRIMINAL ACT thereby.