DISCLAIMER:

All information shared is not to be construed as legal advice; any thing shared is being shared for information purposes only.  Should you consider using any information from Canadian Law Study Group, it is recommended you validate the information with a qualified legal professional. 

You Be the Judge

The intention of this section is to share various Motions, Applications, etc. which either have been used or are being used by real people in the courts in Ontario. That said, please keep in mind that unless otherwise stated, these arguments being presented herein are being presented from the perspective of Ontario jurisdication so Ontario or Canada law is what is most likely being applied.

All names and personal information will be redacted, and will only be supplied if the parties involved provide written consent. Yes it may be public record, but unless you know which public record you are looking up, the involved parties privacy does remain largely intact.

Claims don’t establish jurisdiction unless you fail to challenge the jurisidiction

NEWSFLASH! Just because an agent of the Crown may issue you a notice of claim, be it an Offence Notice or Summons under a “Provinicial Offences Act” or an invoice under a Tax Act does not necessarily mean they have established jurisdiction over you.

Further, if you decide to commence a proceeding agasint another person, be it the Crown, an agent of the Crown, or another man or woman, the moment you file with a court or tribunal you are giving the court or tribunal the jurisdiction over the proceeding.

Further, providing the courts and tribunals operate as they are constititutionally intended to operate, as the third branch of goverment, separate and independent of the first two branches of government, and as a neutral third party with the power to settle disputes between persons, inluding men and women, there is nothing wrong with filing either claims or defences with courts or tribunals.

However, most courts and tribunals do not have judges with constitutional powers presiding, most courts and tribunals we deal with have only statutory powers.. The bigger issue…these statutory powers lack constitutional powers which makes these staturtory courts and tribunals to not be courts of inherent jurisdiction and therefore unconstitutional or constitutionally repugnant.

The goal of this Group is to restore balance to the 3 branches of governments at both levels, Federal and provincial, in order to restore justice in Canada.

With that said, I have long understood that whenever I am being challenged by any person, whether it be in the private or the public by “the Crown”, if I don’t feel as though I have done anything wrong, I need to look at every aspect of what they have done to determine if they have lawfully established jurisdiction over me. I do this, because I know that it is by finding fault with their challenge against me, I stand the best chance of having their challenge invalidated. I didn’t learn this studying the law, to me, it has always been just plain common sense. Think about it…why would I defend my actions if I did nothing wrong? If I did nothing wrong, there should be nothing for me to defend, therefore they must have done something wrong. Therefore, before I begin defending my actions, I first look for what they did wrong and make an issue if it! Studying the law and Dr. Fredrick Graves Jurisdictionary course has made me better at it and helped to gain better perspective on it. And YES, Dr. Graves teachings do apply to Canada.

When I find faults with my opponent’s challenge, I will in turn point out and challenge those faults. This is how jurisdiction is challenged. I do not waste time making inflammatory accusations. Nor do I ask the court to answer questions with things that is the opponenent’s responsibility to respond to. I will look for the faults, point them out to my opponent, lay out my logical and reasonable explanation as to why this is an issue which causes them to fail to establish jurisdication and wait for my opponent’s response.. Should my opponent fail to resolve the fault in an acceptable manner to us both, only then I will turn to the court to settle the dispute over the issue or issues I have identified and pointed out to my opponent.

The court’s job is not to police either side, but to act as a referee between the two of us. Like asking the referee in a hockey game to make a decision on a penalty challenge, all the referee can do is look at the game before him, review the evidence, including video replay, and issue a decision. If the prosecutor and I can not come to an acceptable resolution over any given issue either side has identified, the one bringing forward the issue may turn to the court to seek the court’s decision as to whether or not the oppenent’s fault is substantive enough to rule in favour of the one bringing forward the issue and the court will decide whose rights are then elevated over the rights of the other. This is what Motions and Applications are about. When I bring forward a Motion or Application the ruling I seek from the court is about putting my rights over the rights of my opponent.

If you don’t make challenges before the court, you don’t force the court into making any decisions. If the court does not make any decisions, the court can not make any mistakes. Without a potential mistake being made by a court, there will likely be nothing for me to found any Appeal on.

If the other side breaks all the rules and you don’t challenge any one of those broken rules, your acquience is acceptence, and each and every one of those things you fail to challenge gains jurisdiction over you. Case in point…if evidence is collected without getting either consent or a search warrant, most lawyers will challenge the collection of evidence. Providing a challenge over the collection of evidence is made, then until a decision is made by the court over the evidence, the evidence has not gained jurisdiction. Should a lawyer not challenge the evidence, well then the evidence is deemed accepted it and the evidence gains jurisdiction over you. The court is merely a referee and has no say unless a) you ask, and b) the rules allow the court the authority to answer the question. AND NO, the court may not answer every question asked of it! Ever hear of a man asking the court if the constitution is invalid because xyz? If the court is an administrative or statutory court, odds are it won’t answer because the rules will not allow the court to answer. Silence by the court proves nothing!

Motions, Applications and Trials are like Football

People need to understand that going to court for a Motion or Application is like a NFL football game and the trial is like the Superbowl. Long before you get to the Superbowl, you may play several preliminary games to establish your ranking. In each football game, you only get one chance to play your game to win. Like a football game, should one side make a catastrophic mistake, it is prime opportunity for the opposite side to go “in for the kill”, so to speak.

The claimant wants to reach the Superbowl / Trial. The Defendant does not. The Defendant wants to knock the claimant out of the running so the claimant never gets to the Superbowl.

As previously mentioned, and what people fail to see is, when going before a court while the court should have vast knowledge and experince at law the court is in deed a referee. Courts are referees who are not to show favour to either side or help either side with their game strategies. Unlike Superbowl referees, the court may not call penalites on either side. At most, these court “referees” may point out the rules of the game being played before them and of course answer the questions within their power to answer. The job of the court is to watch the game, and make sure it is played in orderly fashion. In this game, the court will listen to each side present their pictures, and see if the picture makes sense. From there the court is asked to essentially make a decisions over the sides being presented. The court may ask questions for further clarity on a point to two, but again it does not have absolute power to do as it pleases. The court’s powers are actually quite limited.

Presenting is like putting together a puzzle

Both sides get to present their case. When I present, I begin by outlining the picture I intend to present, much in the same way I would put together all the edge pieces of a puzzle first. Next I would fill in the details of that puzzle one piece at a time. Some pieces are more important than others. For instance a piece of sky that looks similar to all the other parts of the sky is not so essential, but a piece that provides the image of the face of the person I am talking about would be unique and therefore essential. That missing piece of face may cause you to not realize the person I am speaking about is actually a clown, because I forgot to bring it to your attention.

If I forget to bring an essential piece of the puzzle into the presentation, an Esstential Element, now we have a substantive error. Even if you suspect I am eluding to the person being a clown, without that piece, you cannot be certain. The same principle holds true for the court. Even if the court may suspect the point I am getting at, the court should not be filling in the gaps I forget to present.

We each need to understand that even if the court should know better, the court may only act on what is actually presented to the court and nothing more. For those of you how say it’s not fair, I respond by saying it is fair, because it does hold true to all sides. I once won in trial because the prosecutor failed to have the witness identify the accused which is an Essential Element. When the prosecutor “rested” her case, I filed a viva voce Motion on the spot, a Motion of Non-Suit, on grounds the accused was never identified by the witness and the case was summarily dismissed.

Whether it be an unlawful (unconstitutional) search and seizure or an unlawful (unconstitutional) traffic stop, if you don’t first challenge the faults of your opponent and then present your reasons as to why you opponetns actions are not lawfully establishing jurisdiction, you will lose.

“It violates my rights” or “it’s not fair” - is not a defence

I would never go into court against the Government standing on my rights alone. Regardless if I am arguing the Canadian Bill of Rights, the Charter or a general common law violtion, if I can not point out a specific fault and properly and reasonably establish a sound argument as to why the fault breaches either the rules of law and or the common law, would render my violation claim to be meaningless. I don’t care if you if I am on the offence or on the defence, if I am making a claim, I need to point the issue and lay out my reasons for making the claim, preferrably with evidendence to establish it with certainty. Only then do I have something to point to in order to establish why one of my entitled rights has been violated. Think about it…I can not claim John hurt me if I can not point out to what he did and how his doing of it hurt me. This is no different. I know a rights violation claim is me saying the Crown hurt me. For it to have merit, I need to point out to what the Crown did and how the Crown’s doing of it hurt me…and that would be for a liability claim which would follow a defensive win…not a defense in and of itself.