Brief - Undertaking March 8 2013

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,

[email protected]

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)

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


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


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.



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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.


(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.


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

Brief - Undertaking March 8 2013

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Transcript of Brief - Undertaking March 8 2013