BETWEEN:

AND

You are hereby advised that DAVID ALEXANDER PARSONS intends to question the constitutional validity of S. 482 of the criminal code of Canada, and in particular, the practice of the Provincial Courts of British Columbia and the Supreme court of British Columbia in forcing an unrepresented defendant to proceed in those courts inadequately by denying me my rights under S. 11(d) and S. 15 of the Charter of Rights and Freedoms. The interpretation of S. 536 and S. 554 and S. 471 and S. 126 of the Criminal Code of Canada in relation to S. 7 and S. 11(d) and S. 15 of the Charter is also questioned. The hearing of this matter is set for MONDAY THE 19TH JAN. 1997 AT 9:30 AM AT 890 BURDETTE AVE. VICTORIA B.C.

The material facts giving rise to this Constitutional question are:

1. On the 28TH DAY OF MAY 1996 an information was sworn before J.P. Adams at COLWOOD B.C. that DAVID ALEXANDER PARSONS did obstruct a peace officer on or about 20 APRIL 1996 at COLWOOD B.C. (COURT FILE 05192)

2. Through a number of delays and adjournments not attributable to the accused an application was made by this unrepresented accused on Jan. 28 1997 before Judge Palmer for full disclosure by the crown. The resulting order by Judge Palmer stated to me 3 times that C.C. DUNCAN CAMPBELL had given an undertaking to the court that he would supply or disclose to this unrepresented accused the "names, address and telephone numbers" of a group of civilian witnesses so that I may contact these witnesses to determine if they could become part of the defence case.

3. Subsequently a letter dated Jan 30, 1997 and signed DUNCAN CAMPBELL was received by this unrepresented accused in which he refused to comply with his undertaking to Judge Palmer.

4. On Feb. 11, 1997 this unrepresented accused applied to Judge Higinbothom as per the requirement by Judge Palmer that if the Crown did not make satisfactory disclosure, the application could be renewed. During this hearing Judge Higinbothom was prejudiced and abusive in his manner and refused to allow me to properly place my application before him. He eventually dismissed the entire application, even though "he was aware of Judge Palmer's undertaking from C.C. Duncan Campbell".

5. The proceedings were again adjourned to July 3,1997 and I managed to obtain a lawyer (Gary Botting) from legal aid. At the proceedings of July 3, 1997 I obtained an adjournment to Oct. 23, 1997 to allow my attorney to prepare my case.

6. Sometime after July 3, 1997 I learned from my attorney about a letter dated July 8, 1997 signed by PETER FIRESTONE, the prosecutor in my case in which he attempted to entice my attorney into a conspiracy to conceal evidence from me. I informed Mr. Botting that if he were to enter into any such undertaking with the Crown that I would consider that he was compromising my defence and that he should pursue full and proper disclosure as determined in R. v. STINCHCOMBE.

7. On Sept. 4, 1997 I presented a letter undated to manager, Court Services Colwood, in which it was requested that these court services direct me to where the Criminal Rules of Court for the provincial courts pursuant to S. 482 could be found. I received a letter dated Sept. 10, 1997 from said Court Services (J.P. Adams) directing me to LAW LIBRARY Victoria Courthouse Burdett Ave. In my extensive research I discovered that there are no official criminal rules for provincial courts in B.C.

8. I applied on Oct. 1, 1997 before Judge Owen-Flood of the Supreme Court of B.C. for a writ of Mandamus and a writ of Prohibition to compel the Provincial Court to make rules of court and to be prohibited from proceeding with this case until they had done so in accordance with S. 482 of the Canadian Criminal Code. The application was dismissed on grounds that S. 482 was discretionary and that the Judges were not required by law to make rules for an accused to proceed on whether he was represented or not.

9. I filed an appeal of the above dismissal on Oct 2, 1997 and made a motion before Justice Proudfoot on Oct. 14, 1997 in the Court of Appeal of B.C. for a writ of Prohibition to prohibit the Provincial Court from proceeding on my trial without proper and lawful rules pursuant to S. 482. Justice Proudfoot adjourned the application until the matter had been heard and ruled on by the trial Judge.

10. On October 23, 1997 I appeared at Colwood Courthouse for the proceedings unrepresented, as my attorney had been forced to withdraw from the case due to the impossible conflict he had been placed in by the Crown's demands, that as an officer of the court, he would be required to conceal evidence from me. On Oct. 26, 1997 Mr. Botting wrote me a letter depicting his dilemma.

11. At the beginning of the proceedings of Oct. 23, 1997 I challenged Judge Palmer and Peter Firestone to produce to me the Statute, Rule, or Regulation which authorized the Crown to elect my method of trial for the Hybrid Offence that I was charged with. Neither of them could produce this information apart from a vague reference to common law which neither one produced or stated in the court room and have not subsequently been able to find. I produced to Judge Palmer S. 773(e), 1927 Canadian Criminal Code which was the predecessor to S. 554 as coupled to S. 129, 1997 Criminal Code. Without any evidence whatsoever and no meaningful input from Firestone, Palmer decided to proceed in a summary manner on this case without my consent. I stated to the court that his only jurisdiction was to conduct a preliminary hearing and that I would proceed on protest. I never indicated that I consented or was prepared to proceed in any way which was not consistent with a preliminary hearing. I also produced to him the text of R. v Smythe 1971 Supreme Court of Canada where it was determined that the Crown can elect if authorized by statute.

12. At this Oct. 23, 1997 hearing we conducted exam-in-chief and cross exam of witnesses and then I made motion for dismissal on grounds that Crown had not made proper disclosure re R. v Stinchcombe. Palmer ordered Crown to produce witnesses that Campbell had refused to make proper disclosure as to his undertaking to Palmer on Jan. 28, 1997. Proceedings were adjourned to Nov. 25, 1997. Motion for dismissal denied.

13. At this hearing Nov. 25, 1997 Crown produced 3 of 4 witnesses as Crown witnesses and stated that the 4th witness could not be located. After evidence of witnesses taken, Crown closes case. I make motion to Judge Palmer to overturn a dismissal by Judge Ehrcke of an application for an order under S. 530 Canadian Criminal Code that was made on Sept. 30, 1996. Motion denied, I make motion that the provincial court Judges make rules of court pursuant to S. 482 that I may proceed on. Motion denied. Palmer adjourns hearing to Dec. 23 so that I may prepare my defence in view of evidence of new witnesses produced by Crown.

14. The legal grounds for this constitional question are as follows:

15. S. 11(d) of the Charter clearly states that I have the right to a trial before a fair and impartial tribunal according to law and, absent proper jurisdiction conferred by Statute, no tribunal may find me guilty.

R. V. SMYTHE 1971 SUPREME COURT OF CANADA

...If an authority such as the Attorney General can have the right to decide whether or not a person shall be prosecuted he may, if authorized by Statute, have the right to decide what form the prosecution shall take...

Section 34 of the Interpretation Act of Canada Chap. 1-21 states that where an enactment creates an offence, the offence is deemed to be an indictable offence if there is anything in the context to indicate that the offence is an indictable offence or that it can be prosecuted by indictment.

Section 129 of the Criminal Code states
  

16. Section 9 of the Criminal Code states that I shall not be convicted of any law other than the statutory law of Canada and specifically not of any offence at common law and any attempt to introduce the common law procedures of Felony and Midemeanor to differentiate section 129 of the Criminal Code would be unlawful in view of the fact that section 773 of Canadian Criminal Code 1927 was enacted to remedy the mischief created by the common law procedure of election by the Crown of an accused method of trial. The practice of allowing the Crown to decide the degree of punishment to which an accused will be subjected to before his degree of guilt is established is not only mischevious but literally throws open the door to abuse and corruption. The provisions of 132(2) of the Income Tax Act RSC 1952 C.148 allowed the Attorney General to elect the method in R. V. Smythe 1971 because it was specifically authorized by that section of that statute, although I would argue that he was not allowed to apply to a provincial Court Judge under the provisions of S. 484 (now S. 554)

17. Section 44 of the Interpretation Act Chap. I 21 states where an enactment is repealed and another enactment is substituted therefore, the procedure established by the new enactment shall be followed as far as it can be adapted thereto in the enforcement of rights, existing or accruing under the former enactment; S. 44(d)(II) and except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment (S. 44(f))

18. Under section 536(2) where an accused is before a Justice charged with an offence other than an offence listed in Section 469 or is not one which is listed under Section 553 the Justice shall put the accused to his election and under section 554, where an accused is charged with an indictable offence not listed in section 469 or listed under section 553, a Provincial Court Judge may try the accused if the accused elects to be tried by a Provincial Court Judge.

19. Section 126 of the Criminal Code states that anyone who contravenes an act of Parliament is, unless a punishment is expressly provided by law, guilty of an indictable offence and Section 471 states that except where expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a Judge and Jury.

20. The provisions of the Criminal Code and the Interpretation Act presented as well as the Supreme Court of Canada decision R. V. Smythe clearly show that my right to elect my method of trial has been denied by Judge Palmer and the Crown and that my right to a fair trial under Section 11(d) of the Charter has been infringed and that I have been denied my rights to the full benefit and protection of the law under S. 15 of the Charter.

I would request this court for a writ of Prohibition for the above reasons and for further reasons as next stated.

21. Section 19 of the Criminal Code states that ignorance of the law by a person who commits an offence is not an excuse for committing that offence. S. 19 of the Criminal Code is a fiction maintained by the Judicial and legal system of the country to be able to maintain Jurisdiction in its courts, similar to the fiction of the reasonable person but with one huge difference. The reasonable man is not required to be aware of the letter of the law or even the existence of a law, whereas the person referred to in S. 19 is required to be aware of any law that has been published in the Canada Gazette and to be aware of the nature of a contravention thereof. The existence of native people, Canadians who do not speak French or English or read or write it and the existence of mentally handicapped individuals stretch the fiction of S. 19 to its nearly breaking point, but to further require them or anyone else to proceed on trial unrepresented in a court of law with no officially published rules of Court on which they may construct their defence in an adversarial arena where only the Judge and prosecutor have prior knowledge of the rules of the contest, destroys any integrity or credibility these courts can muster, especially in view of the fact that rules of court have been required in Canada since the early 1800s.

22. In 1837 a statute was proclaimed,

Chap. III 7th William IV. A.D. 1837
An Act for the further ammendment of the law and the better advancement of Justice.

This statute dictated that the Superior Courts shall make rules of Court for all proceedings at law and that these rules shall be binding on all courts including all courts of Appeal, into which the Judgements of those courts shall be carried by Appeal or writ of Error and in 1861 a further Statute was proclaimed to be in effect in Canada which ensconced the provisions proclaimed in 12 V.C. 38, S. 113 to apply to the administration of Justice. Chap. 82 Sec. 1 of that Act stated that if a party had some means of enforcing or defending some right in some court before this proclamation, then such provision shall be made by the Rules of Practice to be made under the said Statutes.

23. It is very apparent from the above statutes that S. 482 is subordinate to these Venerable and Just Statutes and that the word "MAY" must be construed as "SHALL" and further that the term "MAY" in S. 482(5) must be construed as "SHALL" in the context of S. 533 of the Criminal Code. Under Section 530 of the Criminal Code an accused may apply for and order for his language at trial and the Judge is bound by this MANDATORY section to grant such an order, and under SECTION 530.1 the record of proceedings of the trial shall include a transcript of everything that was said in those proceedings. The protection and full benefit of the law is readily apparent in these two sections of the Criminal Code, in that a poor and indigent accused may, under S. 603 inspect the transcript of his trial to determine where lie the grounds of Appeal and the Courts of Appeal may determine, without depriving the accused of his rights under S. 15 of the Charter, whether the appeal has merit or whether it should be dismissed as frivolous.

24. The actions of Judge Ehrcke in implying qualifications to an unambiguous statute and thereby denying the application on those fictional grounds, and the refusal of Judge Palmer to overturn her and thereby grant the order under S. 530, and the general negligence of the courts, Provincial and Supreme, to make, publish, and provide rules on which myself or anyone else may proceed to ably defend ourselves in these criminal courts and the neglect of the LIEUTENANT GOVERNOR IN COUNCIL and the Governor in Council to ensure that there are uniform rules in place in these Criminal Courts, specifically rules governing applications under S. 530 of the Criminal Code; all these factors combine to deprive me of the right to the security and liberty of my person in that I am being forced to proceed in a trial which is not in accordance with the principles of Fundamental Justice, and that I am being denied the full benefit and full protection of the law on two fundamental levels.

(I) That I am being forced to proceed in a court where the rules are known only to the Judge and Prosecutor and are based on a foreign law which has been declared inoperative in Canada, and before a Judge who has refused to make rules of Court which I can subject to scrutiny under the Charter and proceed on if they are properly Constitutional, in spite of the fact that those rules have been requred in Canada since the early eighteen hundreds.

(II) That the refusal of the Judicial system to promulgate proper rules governing all matters criminal and, specifically, rules for the making, keeping, and verification and inspection of the transcripts generated therein for purpose of Appeal as stated in Chap. 111 7th William IV. A.D. 1837

...All courts of appeal or courts of error in this province, into which the judgements of the said courts, or any of them, shall be carried by appeal or by any writ of error...,

have deprived me to have the evidence at trial available for appeal, without my having to purchase this evidence from a private company. The practice of the Criminal Courts of B.C. in refusing to supply transcripts in the Record of Proceedings, upon appeal by the accused, is not supported by any statute or any rule or regulation that has been published in the Canada Gazette. The only condition on which a court might legally dispense with the production of a transcript, is where an accused has been acquitted, and the Attorney Generals have stated that they will not Appeal, and the accused has consented to the non production of said transcript.

I believe that the full protection and full benefit of the law referred to in S. 15 encompasses the right to an order under Section 530 of the Criminal Code to have the evidence at trial available in the Record of Proceedings for Appeal. I refer this court to the Constitutional Challenge of DAVID ALEXANDER PARSONS C.A. NO. V02841 VICTORIA, and JUDGEMENT, C.A. NO. V02841 B.C.S.C. NO. 86304 dated Sept. 3 1997.

Dated at Victoria this December 23, 1997.

To Attorney General of Canada

David A. Parsons
Box 2204
Canoe Cove Marina
V8L 3S8
A.G. B.C.
AND HIS ATTORNEY
Ca No. V03126
Victoria Registry