On Oct 17, 2014, an application by the Crown was heard in BC Supreme Court in front of Master Peter Keighley to have my petition dismissed. I made two mistakes during that hearing. It is possible that if I hadn’t made these mistakes, the petition wouldn’t have been dismissed. Time may end up telling whether this is the case. I apologize to the members of the Interactive Sovereign Society and also to People interested in the interactive electoral system for having made these mistakes. I believe that just by taking the time to learn the details of the mistakes I made, You would be helping those mistakes be avoided in future, so I am very grateful for your willingness to read on.
Details of the petition I filed can be found by clicking here.
A transcript of the court session can be found by clicking here.
The first mistake that I made in this hearing was when His Honour Master Keighley asked Me what specific harm I am being subjected to because of the denial of the Charter rights I am protesting. His specific words were that “the court is going to get into a consideration of whether claims should be considered in the abstract. Should the court, which is an expensive operation to run at this level and the various appellate levels all the way up to the Supreme Court of Canada, get engaged in deciding issues in the abstract. Should it not, the argument will go, confine itself to situations where an individual’s rights are being put into question by a particular operation of the law. In other words, say a charge under the income tax act, a charge under federal drug legislation, a charge under the criminal code or provincial quasi criminal statutes; in those circumstances the court will probably find it far more convincing that Charter issues could be invoked and argued. But if you want to bring a Charter application so to speak in the abstract saying ‘look I’m not being subjected to the sharp end of any particular provincial or federal legislation; I’m not being charged with anything; I’m not being prosecuted; I’m not being sued, but I would like to have this issue resolved; I think I have a Charter right which in the abstract is being infringed by the existence of this legislation’, that’s starting to sound like frivolous, vexatious, scandalous, in the legal sense, an abuse of process of the court. But I don’t think we even get to that point today because I’m focussed on whether your petition discloses a reasonable cause of action.”
My response to this was to try to think of specific laws that could illustrate any legislation I fear being “subjected to the sharp end of”. What I should have instead done was to point out the response I received from the Attorney General to the letter I sent. The Attorney General’s response basically stated that the Crown reserves the right to govern Me and it has no response to my allegations that my Charter rights are denied other than to say that it isn’t true. A letter sent to a citizen by the Provincial Attorney General indicating intent to govern is an “operation of the law”, to use Master Keighley’s expertly phrased words.
The harm that the Attorney General caused Me by writing that letter is fear. I am afraid of being governed by people that I do not trust, that are unaccountable, and for whom four years go by where I have absolutely no say in the decisions they make. It is entirely possible that they’re dishonest and self serving. It is possible that the laws they make, while acceptable in many regards, fall short of being representative of the will of the People, and of being made with the best interests of Canadians in mind, including me. It is entirely possible that making our section 3 Charter rights available to be exercised when We Each wish, instead of all being herded like cattle to polling booths on the same day to exercise those rights, might give Us governance that We the People can trust, honour, and respect. I can’t demonstrate that this is possible without being allowed to practice an interactive electoral system. I can’t practice an interactive electoral system if I have periodically elected governance imposed upon Me.
The ability for the government to withdraw its imposition of governance over Me and then impose it again at a later date is reserved by section 1 of the Canadian Charter of Rights and Freedoms. According to section 1, if a demonstration is made that denying the right to vote in an election of members of a legislative assembly for periods of time can be justified as a reasonable limit because freedom and/or democracy are better served by its denial, then governance upon Me by the Crown may be resumed, according to the Constitution, and I’m okay with that. So why does the Attorney General refuse to acknowledge the significance of the fact that section 3 Charter rights are in fact denied for periods of time? How is it justifiable for the Attorney General to make a threat of imposing laws of a moderately democratic society on a person who is living under laws of a far more democratic society? How is that not to inspire fear, when there is any reason to believe that the people making those laws do not do so fairly?
My first mistake was not saying that.
My second mistake was when the Court Master asked Me why the Attorney General was the appropriate respondent to be named in the hearing. Again, in considering my response to this, I devoted my mental faculties to recalling relevant legislation instead of focussing directly on the letter I had been sent by the office I was suing. That letter states that the Attorney General clearly believes that her office has the jurisdiction and mandate to decide that my rights are not being denied and to affirm that their government intends to enforce its laws upon Me as they deem fit with no regard for the fact that my section 3 Charter rights (and as a matter of fact yours too) are denied for periods of time in the process. If the Attorney General believes her office has this jurisdiction and mandate, then she must also believe her office is answerable for this mandate in court. If her office does not have this jurisdiction and mandate, then the response I received should have said that her office cannot take a position on the matter of whether my section 3 Charter rights are denied, whether there is demonstrable justification for this denial, and whether governance of periodically elected legislative assemblies would be imposed upon Me anyway.
Just for the record, the duties and powers of the Attorney General are defined in section 2(i) of the BC Attorney General Act as including “the regulation and conduct of all litigation for or against the government or a ministry in respect of any subjects within the authority or jurisdiction of the legislature”. I wish I’d been granted the time to quickly look this up when I asked for an adjournment of the court, but as far as I can tell the court did not believe I deserved any time to research the conduct of justice in scrutinizing the denial of my Charter rights.
So as it stands now, it is possible there might be a way for Me to appeal this decision, but I haven’t decided whether that would be the best course of action even if it is available. The Crown’s lawyer, my learned friend Mr Joshua Ingram, argued that “a notice of constitutional question is served under the [Constitutional Question] Act and then a notice of civil claim which will allow a trial with experts and evidence and other parties. Something of this scope proceeding by petition doesn’t allow for evidence beyond affidavit.” I certainly agree that this is preferable, regardless of whether the rules would allow the matter to be handled by petition. I am not trying to limit the avenues available to discern whether there is demonstrable justification for the denials of the rights concerned. I think that the search for demonstrable justification should in fact be exhaustive, and a civil claim does indeed better allow for that. So I would agree with Mr Ingram that rather than appealing the dismissal of my petition, I should commence proceedings by civil claim.
When I asked for an adjournment at one point in the hearing to further research some information about my case, Master Keighley answered by saying “I think we need to deal with it today. There’s nothing to prevent you from trying again until this court indicates that you can’t try anymore. If the court considers that you’ve serially brought actions which are unsustainable an order can be made under provisions of the Supreme Court Act to prevent you from bringing specific further claims. I’m not going to make that today. I’m not aware of any pattern on your behalf in doing that but I’m gonna deal with this one today, and if you feel that your claim is nonetheless sustainable well I suppose until the court orders otherwise you can try again, but I suggest that you would speak to a lawyer before trying again.”
Since my hearing, I have done a couple of things. I have written a letter to the Governor General of Canada and I have distributed a notice of my intention to commence a hunger strike on July 1. Now that I have closely evaluated what I learned from the results of my hearing after transcribing it, I have decided to rescind my intention to hunger strike. There is evidently more that I can do to advance the interactive electoral system, and One might say also the cause of democracy. The despair I felt at being denied what I believe to be a valid constitutional remedy to the denial of my rights has been replaced by hope that other avenues will successfully advance this cause. Certainly the fact remains that if a member of the Interactive Sovereign Society is “subjected to the sharp end of any particular provincial or federal legislation” in future, to once again use Master Keighley’s apt phraseology, then a section 3 Charter defence can be used, and that is something I have a responsibility to contribute my skills to if it ever happens.