Re: Michael Millar - Detaxer & Poriskyite's tax evasion trial
Posted: Sat Mar 04, 2017 1:40 am
I vote for overdosing intravenously on maple syrup.notorial dissent wrote:That clear, crisp, soggy northern climate must be conducive to it.
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I vote for overdosing intravenously on maple syrup.notorial dissent wrote:That clear, crisp, soggy northern climate must be conducive to it.
Actually, considering the mental caliber of some of them I would go with either snorting or smoking.....The Observer wrote:I vote for overdosing intravenously on maple syrup.notorial dissent wrote:That clear, crisp, soggy northern climate must be conducive to it.
I was there and saw the entire event. Millar started ranting at the judge and she told him to stop. He didn't, in fact he ranted even louder. She told him if he didn't stop she'd have the sheriff put him in custody. He ranted on and he was cuffed. I wrote about it here;18. During a chambers hearing called because of the above notice being filed the day before, immediately prior to jury selection, the judge ordered me to be taken into custody by the sheriff without warning or proper explanation as to why, creating an atmosphere lacking in impartial, reasoned adjudicator who would seek to de-escalate and maintain the decorum of the court process, completely inconsistent with the public's expectation of how a judge should treat an accused, unrepresented party and was shocking to the conscience.
Note to Michael - If you claim that the Supreme Court has prescribed a source of income test you'll have to cite the case and show them an actual prescribed test. Just a vague comment that there is one and the judge ignored it won't cut it with the Court of Appeal. They will want the facts supporting your accusations.26. The judge did not use the test for source of income prescribed by the Supreme Court of Canada, which is a miscarriage-legal error, or she did not know, therefore not a fair hearing legal error by not applying the legal tests, Not considering a reasonable interpretation, which ignores the individual accused state of mind.
27. From reading the judge's decision it is apparent that she did not use the source of income test prescribed by the Supreme Court of Canada and this constitutes a serious error of law of one of the essential elements of the charge.
Millar has come up with esentially the same argument;14. Where a statute is reasonably capable of two interpretations, the most favourable to the liberty of the Appellant was to be utilized. In a complex statute such as the Income Tax Act, where the legal onus is on the Appellant to voluntarily comply with the terms and provisions therein, errors of interpretation and/or application of the Act by the Appellant cannot form a basis for criminal or penal liability. These are not strict nor absolute liability offenses. The Honourable Trial Judge failed to so exercise her discretion accordingly
So in their dream world all they have to do is tell the judge that her interpretation of the law is wrong, that they have a different interpretation, and they get to walk. Doesn't matter if the judge is actually wrong or if they are right, they just have to say that they thought their interpretation was right. Hell of a loophole!30. The judge has failed to consider and apply three fundamental legal principles; to read the act as a whole, consider possible alternative interpretations, and apply the more lenient interpretation.
Section 2(1) of the Supreme Court Act states;. . . . it was admitted by the prosecutor they intended to prosecute the case in the "Supreme Court of British Columbia pursuant to the Supreme Court Act section 2(1)" and in the "Vancouver Westminster Judicial District and County of Vancouver" section 8(d.1) which it appears the trial and decision ultimately did not take place within . . .
And 8(d.1) says;2(1) The Supreme Court of British Columbia is continued under the name and style of the "Supreme Court of British Columbia".
Yet, notwithstanding these clear definitions, the name of the Supreme Court of British Columbia was styled on various documents used in his prosecution as THE SUPREME COURT OF BRITISH COLUMBIA rather than the legitimate name as prescribed by 2(1). Same for the judicial districts. This is the entire basis of his jurisdiction defense. If a court doesn't style itself exactly as styled in its enabling Act it isn't a legitimate court and has no jurisdiction.(d.1) the County of Vancouver and the County of Westminster are collectively a judicial district under the name of the "Vancouver Westminster Judicial District"
Note the use of upper and lower case. And indeed the Court of Appeal Act styles the court's name throughout as the Court of Appeal. However, in the standardized Notice of Appeal form that Millar was forced to use to file his appeal, the court is referred to as the COURT OF APPEAL. A smoking gun! Exactly the same issue that Millar is appealing in Ground 24! So, if the Supreme Court of British Columbia can brazenly ignore the clear wording of the statute that created and regulates it how can Michael expect anything different from the Court of Appeal? If the Court of Appeal agrees with him about capitalization then it means that it is also an illegitimate court and therefore has no jurisdiction over the Supreme court of British Columbia so it can't give him any relief from that court's decision. But if it doesn't agree with him it's going to support the status quo and agree that the Supreme Court of British Columbia is a legitimate court notwithstanding that it refers to itself in all capital letters. A perfect Catch 22. He's screwed."court" means the Court of Appeal
I'm on board with that one. I wanted to get drunk at McSorleys, my idea of fun;grixit wrote:I've never heard that one-- about found money being bad luck. All i've ever heard is that found money should be spent on something fun.
He said nothing during the judge's reading of sentencing but had a rant at the end when he found out he was actually being given a jail sentence. That was when he started shouting that he was never going to jail. Good luck with that.notorial dissent wrote:Just as a side question, did he actually shut up during sentencing or did he continue to rant?
I am curious though, will that glollop actually go directly to the court, or will it go through a Master first to if there is anything actually functional in it?
Ground 32 relates to this decision;32. A time delay Charter application was dismissed during which the judge, of her own accord, on an issue not raised by the Crown, searched out case law and applied it to her decision, advancing the Crown's case, thereby unfairly assisting the Crown, to my prejudice.
http://vancouversun.com/opinion/columni ... ice-crisisIn the wake of the game-changing Supreme Court of Canada R. v Jordan ruling on trial delays last July, more than 800 accused criminals have walked — including individuals charged with murder and child sexual offences.
Well the new one is no better. The first had thirty-six grounds for appeal, the new one has fifty-seven. I haven't had a chance to go through it in detail and I may not, it's a real dog's breakfast of gibberish like this;I have a copy of Millar's Notice of Appeal but I'm not going to do a detailed review of it. Millar has carried his hallmark "everything but the kitchen sink" style from the courtroom to his Notice of Appeal with relentless repetition. Even the clerk at the British Columbia Court of Appeal registry who printed the notice out for me commented on the huge number of Grounds For Appeal of Conviction that Millar had listed. I've had enough of relating Millar's gibberish over and over so I'll instead just try and analyze the basic themes. That hopeful bridal poem gives me a handy reference guide to break it down into topics.
Millar has included every last argument he made in court and is trying, yet again, to re-litigate them all. Every one of them. No argument, no matter how many times he lost it at trial or in prior hearings, has been discarded. The bulk of the notice is just padding due to his obsessive repetition, a style he used in court at a cost to me in time wasted while he incessantly rambled on about capitalization and all of his other beloved arguments. They are all back here for an encore.
Millar has pages of this stuff and, based on my painfully earned experience at his trial, I'm assuming he plans to spend weeks yammering away on each individual point until he's forced to stop. Which will be very quickly because the Court of Appeal, unlike the trial court, keeps a very tight restriction on allowed time. If Michael wants to spend all of that time on the above jurisdiction issue he's free to do so but he won't be allowed extra time for the other fifty-six grounds. If he doesn't like it he can always appeal. No doubt the Supreme Court of Canada would be fascinated by Michael's legal theories.2.5 only upon the trial judge's requirement to respond, prosecution led the court and the Appellant to believe that the trial was to take place within a lawful 'Supreme Court of British Columbia" within the lawful "County of Vancouver" within the lawful "Vancouver Westminster Judicial District" (as defined by the British Columbia Legislature relevant Acts - see NOTE 1) the trial appearing to take place in some other undisclosed jurisdiction with prosecution's knowledge and original intent,
The judge said that these two points required full transcripts for the appeal court judges to review and there may be more. Also Millar was claiming unreasonable delay based on the Supreme Court of Canada decision in Jordan and the appeal judges would require all available material on the trial delay.3.11 the trial judge denied full cross exam of CRA witness Jason Rauh denying right to full answers and defense.
4. In the alternative it is submitted that the application for reasonable apprehension of bias was dismissed in error, as the judge failed to provide proper assistance to an unrepresented man, obstructed right to full and fair hearing and defense, denied equitable remedies, failed to review key issues of law, and had the appellant arrested in court for no justifiable, lawful reason.
Prohibition against use of electronic device while driving
214.2 (1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.
(2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message.
The penalty for this scofflaw behavior is;;214.1 In this Part:
"electronic device" means
(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,
(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or
(c) a prescribed class or type of electronic device;
"use", in relation to an electronic device, means one or more of the following actions:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device's functions;
(c) communicating orally by means of the device with another person or another device;
(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
https://www2.gov.bc.ca/gov/content/tran ... stractionsThe fine for a single distracted driving violation ticket is $368, along with 4 penalty points that will be applied a driver’s record. On a first infraction, these points will also result in a driver paying a further $175 ICBC Driver Penalty Point premium, for a total of $543 for a first infraction.
Drivers who get two or more distracted driving convictions in a three-year period are charged a Driver Risk Premium (DRP), which is billed annually and is separate from any insurance premiums you may have. This amount will increase for each additional conviction.
For example, drivers with two or more convictions for the use of electronics devices while driving over a three-year period could pay as much as $2,000 in penalties - an increase of $740 - in addition to their regular vehicle insurance premium.
Effectively Jordan said that the trial courts needed to smarten up and get more efficient and Jordan was the SCC's cudgel to beat them into compliance. This is the analytical framework the SCC set up;. . . . . . . given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over�burdened trial courts. From a practical perspective, the Morin framework’s after�the�fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.
For cases currently in the system, a contextual application of the new framework is required to avoid repeating the post�Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice.
The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.
http://www.quatloos.com/Q-Forum/viewtop ... 40#p238462As far as I can tell Millar, after being given a month to prepare for his sentencing hearing, came to it totally unprepared for anything except a further continuation of his obsessions with capitalization, jurisdiction and private persons. He's lost these arguments over and over in court but seemed to think he had the right to continue arguing them forever. Even worse he didn't seem to understand the basic purpose of the hearing. He seemed to think it was yet another chance, in a string of endless opportunities, to fight the charges through argument, adjournment, and applications where he controlled the process through his demands on the court.
Note that it does not say;2 (1) An income tax shall be paid, as required by this Act, on the taxable income for each taxation year of every person resident in Canada at any time in the year.
This is how the Income Tax Act defines "person" for the purpose of 2(1);2 (1) An income tax shall be paid, as required by this Act, on the taxable income for each taxation year of every person or natural person resident in Canada at any time in the year.
Note that it does not say;person, or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of (Canada to which the context extends;personne)
As stupid as it sounds that distinction forms the core of the whole Paradigm tax evasion scheme. I once watched, and reported on, an interminable video by Russell Porisky, the carpenter who single-handedly thought up the entire Paradigm tax evasion scheme, where he covered essentially the same topic. The video was shown over two years ago during his trial but the sheer stupidity of his point still lingers in my memory. I wrote;person, or any word or expression descriptive of a person or a natural person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of (Canada to which the context extends;personne)
http://www.quatloos.com/Q-Forum/viewtop ... 5&p=222629He said that if parliament had wanted natural persons to be taxable they would have specifically included it in the definition of persons. . . . .
Russ was big on the hidden meanings buried in statutes like truffles to be sniffed out by the astute. On to natural persons. If you carry on a business as a natural person you aren't taxable. He went into what we in the CRA called REOP, reasonable expectation of profit. If you make a profit as a natural person you really haven't made a profit because that is just the return you make as a natural person. You are worth the profit so it isn't taxable. So you have no REOP no matte how much money you make.
He went through section 248 if the Act to prove that natural persons are not included in the definition of persons. Section 248 is the basic definition section of the Act. It's huge. Anything in it is deemed to be the correct interpretation of the word anywhere within the Act unless another definition elsewhere overrides it. . . . . .
A big point for Russ was that the term "natural person" was not included as one of the section 248 definitions. Why not? Because the government did not intend to tax natural persons! I'd have thought, if that were the case on such an important issue, that parliament wouldn't have left it to be concluded from it's absence but would have made a positive statement to the effect that natural persons are not subject to income tax under this Act. But what do I know? Russ said that neither the definition of individuals or the definition of taxpayer specifically included natural persons. The only conclusion that could be drawn from this was that the government did not intend to tax you if you become a natural person.
Kennedy v. Canada (Customs & Revenue Agency)[9] Under s. 2 of the Income Tax Act, the liability to pay income tax is imposed on resident or non-resident “persons”. Under s. 248(1) of the Act, a “person” is defined as follows:
“person”, or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, administrators or other legal representatives of such a person, according to the law of that part of Canada to which the context extends;
In his submissions, Mr. Lindsay emphasized the words “includes any corporation”. By inference, he says, Parliament intended to exclude natural persons from this statutory definition of a “person”. At least, that is what I understand to be the essence of his submission.
[10] Under s. 248(1) of the Income Tax Act, a “taxpayer” includes any “person” whether or not liable to pay tax. Therefore, in Mr. Lindsay’s submission, if someone is not a “person” as defined in the Income Tax Act, then that someone cannot be a “taxpayer” as defined by the Act.
[11] In support of this submission, Mr. Lindsay has drawn my attention to Black-stone’s Commentaries as to the Rights of Persons and to Magna Carta which, as he rightly reminded me, Lord Denning has described as the greatest constitutional document of all time. As Blackstone points out, “Persons are divided by the law into either natural persons or artificial”. He goes on to explain:
Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies of politic.
[12] It is significant for our present purposes that Blackstone considers both artificial persons and natural persons to be persons although they may have different characteristics (see para. [20] below.
[13] I was also referred to the definitions of “person” in The Business Profits War-Tax Act, 1916, S.C., 6-7 Geo V, c.11 and in The Income War Tax Act, 1917, S.C., 7-8 Geo V., c.28, forerunners of the present Income Tax Act. These statutes contain identical definitions of “person”, in the following terms:
“person” means any individual or person and any syndicate, trust, association or other body and any body corporate, and the heirs, executors, administrators, curators and assigns or other legal representatives of such person, according to the law of that part of Canada to which the context extends;
[14] Unlike its forerunners, the definition of a “person” in the current Income Tax Act does not expressly mention “any individual or person” (see para. [9] above). I am asked by the applicant to infer from this omission, that, in enacting the current definition, Parliament intended to relieve natural persons from their previous statutory obligation to pay income taxes.
. . . . . . .
[17] These definitions taken from dictionaries including dictionaries of legal terms are uniform and clear. A “person” in its ordinary meaning includes a human being or a natural person as well as an artificial person such as a corporation. The primary sense of the word is a natural person; the secondary sense, an artificial person such as a corporation.
[18] The Interpretation Act (Canada) is consistent with this ordinary meaning. Section 35 of that Act defines a “person”, as follows:
“person” or any word or expression, descriptive of a person includes a corporation.
The use of the verb “includes” extends the definition to include a corporation. The definition does not exclude a human being.
[19] I am, therefore, driven to the conclusion that in its ordinary meaning and in its common or popular sense, the word “person” in a statute includes both natural persons and corporations.
[20] I am also driven to the conclusion that there is nothing in the context of the Income Tax Act. or in the authorities to which Mr. Lindsay has referred me, that would support the interpretation that in the Income Tax Act, Parliament intended the word “person” to be used in the narrower sense of comprising only corporations or other artificial persons. The statutory definition of a “person” in section 248(1) of the Income Tax Act includes “the heirs, executors, administrators… of such a person”. Only a natural person who has died has “heirs, executors, administrators…”. A corporation or other artificial person does not.
[21] I find that a “person” as defined in s. 248(1) of the Income Tax Act includes both a natural person and an artificial person. It follows that the applicant is a “person” and a “taxpayer”. I also find that he is a person “resident” in Canada. Either a corporation or a person may be “resident” or, indeed, for other legal purposes “domiciled”, in Canada or elsewhere. As a “person”, the applicant has the same rights and obligations as any other “person” under the Income Tax Act. His obligations include the filing of annual income tax returns and the payment of any income tax owing under his returns.
Facebook, an American corporation headquartered in California, operates one of the world’s leading social networks and generates most of its revenues from advertising. D is a resident of British Columbia and has been a member of Facebook since 2007. In 2011, Facebook created a new advertising product called “Sponsored Stories”, which used the name and picture of Facebook members to advertise companies and products to other members. D brought an action in British Columbia against Facebook alleging that it used her name and likeness without consent for the purposes of advertising, in contravention to s. 3(2) of British Columbia’s Privacy Act. D also seeks certification of her action as a class proceeding under the Class Proceedings Act. The proposed class includes all British Columbia residents who had their name or picture used in Sponsored Stories. The estimated size of the class is 1.8 million people.
Under s. 4 of the Privacy Act, actions under the Act must be heard in the British Columbia Supreme Court. However, as part of the registration process, all potential users of Facebook must agree to its terms of use which include a forum selection and choice of law clause requiring that disputes be resolved in California according to California law.
The relevance of that paragraph to anything that Millar is arguing eluded me and the court of appeal. The court told Millar that the trial judge was aware of the distinction between "corporate" and "person". Millar responded that he wasn't making that point. "I'm saying that this court recognizes private persons".[14] The judge also held, alternatively, that Ms. Douez had shown strong cause to not enforce the forum selection clause. In a sense this was simply a different way of framing her conclusion that s. 4 overrides the forum selection clause. To deprive Ms. Douez of her right to bring a claim under s. 3(2) of the Privacy Act would be contrary to the legislative intent of the Privacy Act and to public policy more generally. Thus, the forum selection clause should not be enforced.
Millar interpreted that to mean that the Supreme Court of British Columbia ("SCBC") could only be addressed exactly as given in the subsection. This goes back to his argument about legislative intent. If the British Columbia provincial legislators chose to style the SCBC as "Supreme Court of British Columbia" then there was a deliberate legislative intent in doing so. So any document styled the name of the SCBC in any different way, no matter how slightly different, say, for example;2 (1) The Supreme Court of British Columbia is continued under the name and style of the "Supreme Court of British Columbia"
That's the kind of day I had. Millar didn't bother to explain why he'd mentioned the Law and Equity Act, it's an old favorite for reasons he's never clarified. Then he said that prescribed forms indicate to us which court we're in by the styling on the form.Legislative intent that Supreme Court must be in mixed case. Criminal rules, federal legislation, has Supreme Court in upper and lower case. So, in his analysis of style of cause criminal cases in upper case and civil cases in mixed case. Specific intent to identify which Canada we're in by case. Law and equity Act.
That last is obviously my comment. Back on track "This is not complicated, it's simple!"Crown was apparently very cunning at trial because they realized that he'd seen through their capitalization tricks. So sometimes they did it right then snuck in all upper case in other documents. Pissed away time going through every example of various capitalization.
http://www.quatloos.com/Q-Forum/viewtop ... 71#p234471Then on to his (Millar's) private person routine. "All of the records should be excluded because they are private documents of private persons acting in their private status and are outside of the jurisdiction of the court." He said he wanted all of the documents covered by the application excluded because they are private rather than commercial and public. "This issue has been wilfully evaded and avoided by the CRA. It is clear that the documents seized are private because they say so on their face and are therefore outside of the jurisdiction of the court." What he is referring to is a notation that Porisky put on each individual document that it was a private document. That, apparently, is a magical talisman that bars them from being used by the Canada Revenue Agency, the Department of Justice, and the courts.
At this point he was going way to fast for me to keep up and it was the same stuff anyhow. On and on about the legal magic of putting the word "private" on documents. He was just ranting about the legal status of persons and his inability to find out from the Crown or the court who he is. The judge just sat there and let it wash over him for a while then he said that it was of no relevance.
And, in respect to my comments regarding Millar's condescending attitude to the court regarding the judges' deficient understanding of basic law, I wrote, over three years ago in respect to the March 2016, hearing;The Crown wanted a ruling that the records seized from Russell Porisky's house which related to the three defendants could be submitted in evidence at their trials as business records and have the documents excluded from the best evidence rules. As I understand it this would eliminate the necessity of proving them all. The three accused opposed allowing the evidence as business records. At least this was the purported reason for the defendant's objection. The session quickly turned into yet another venue for Millar and Lawson's demented obsessions with capitalization, private documents, private persons acting in their private capacity, and jurisprudence. One of the most manic sessions I've yet attended.
So, back to Millar's time-consuming ravings at our hearing. He said that since foreign embassies are not considered to be legally part of Canada he wasn't a resident of Canada either. The logic of that point eluded me. "Nobody wants to make this decision because of the impact of this but a resident of British Columbia is not a resident of Canada. They deem you a resident by tricks and traps. A third party can't enter into a private contract without jurisdiction."Before Millar started the judge said "I want to caution you, I can't make it clearer, I don't want any submissions on jurisdiction wasting the court's time. There is clearly no question that the court has jurisdiction to hear this application". . . . .
Millar replied "I have difficulty with that because it is straightforward to read the law and see that it hasn't been complied with. The application does not give the Crown standing to have jurisdiction to make it. A plain reading shows that it black and white that the Crown has no jurisdiction". Millar was like that all the way through the rest of the afternoon. Making the most preposterous statements with an absolute certainty that he fully understood the law and was instructing the judge.
So if he was correct in his argument regarding jurisdiction murder wouldn't be a crime in British Columbia and I could murder whomever I wanted with impunity. Not that I've any inclination to do so. At present. Not that that I'd tell any of you.231 (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(lots of legalese between 2 & 7)
(7) All murder that is not first degree murder is second degree murder.
Criminal Code ( R.S.C. , 1985, c.
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
I have no doubt that the appeals bench, having reviewed the material, felt that the judge's response to Millar's intemperate ravings was reasonable in order to maintain control over her own courtroom and her actions were entirely justified. I certainly did watching it all. So, not something that I'd emphasize in an appeal but it was Millar's rapidly dwindling allocation of time to do with as he wished. Who am I to question the tactical decisions of the man who uncovered the secret meaning of capitalization variations in court documents?Judge said that he needed to make an application to exclude the public and that they were rarely granted because of the importance of having an open court system. You can have a trial by judge if you want but you have no right to a private trial.
This set him off on an batshit crazy rant. "I explained the equitable issue in my notice! I've dismissed proceedings and I want equitable common law proceedings." Judge said "do not continue or interrupt" but he kept ranting. Sheriff edged closer. More rants. Judge said "Mr. Sheriff, take him into custody" and I heard sheriff call for backup. DON'T TOUCH ME! DON'T TOUCH ME! That had as much effect as his dismissing the case or demanding a common law trial and in seconds he was cuffed with his hands behind his back and the sheriff holding on to him.
Note that footnote reference. This is the footnote;The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial.[2]
S. 11(b) refers to this, in the Canadian Charter of Rights and Freedoms;[2] This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.
So the Supreme Court, while forcing trial courts to meet an arbitrary limit for "the end of the trial", didn't bother to precisely define how that limit was determined or how to factor in the various issues involved in sentencing delays.any person charged with an offence has the right to be tried within a reasonable time.
[6] So the first question for me is whether it is appropriate to grant an adjournment, and in doing that I have to consider the prejudice. I recognize that Mr. Millar is acting on his own behalf, and the Crown is seeking a serious sentence, with, as I have said, three and a half years of imprisonment. In those circumstances, I am prepared to grant an adjournment of the hearing of the sentencing.
[7] The next question is whether I should attribute any delay arising from that, and there will be delay arising from that, to Mr. Millar, or not at all, or to the Crown. The Crown's position is that I should attribute it to Mr. Millar. I do not have my reasons for judgment on the delay application here, or the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27 (CanLII) here, but when the defence requests an adjournment to prepare something, it is ordinarily something that would be attributed to the defence.
[8] Whether or not the Crown thought it would provide Mr. Millar with submissions as early as a week after October 11, there is no right for a defendant to have three weeks' written notice of the Crown's submissions. In fact, it is quite common for the Crown not to provide written submissions at all. It is also common for sentencing to commence immediately after a conviction.
[9] So in these circumstances, the delay will be attributable to Mr. Millar.
[9] The oral sentencing submissions commenced on December 13, 2016. The Crown completed oral submissions on sentence at about 2:25 p.m. Mr. Millar commenced his oral submissions but he did not complete them that day.
[10] Another full day was scheduled for the completion of sentencing submissions and the sentencing hearing was adjourned to Friday, January 27, 2017.
And his sentencing submissions hearing was finally concluded on February 9th, 2017 but the actual sentencing was delayed after yet another request by Millar;[11] Shortly after court began on January 27, 2017, Mr. Millar stated that he wished to apply for an order for recusal on the basis of a reasonable apprehension of bias. He later explained that he sought a mistrial, rather than a substitution of another judge to complete sentencing.
[12] The Crown did not object to Mr. Millar bringing the application without notice, and the hearing of that application proceeded for most of the day.
[13] Mr. Millar made his submissions on the mistrial application until about 2:45 p.m. The Crown’s submissions lasted about ten minutes. I reserved my decision to February 8, 2017, on the basis that if Mr. Millar’s mistrial application was dismissed, we would continue with the sentencing submissions.
So now, at this hearing, Millar was trying to get the appeals bench to agree that the month delay between the November 17, 2016 hearing and the December 13, 2016 should be attributed to the Crown notwithstanding the adjournment was made at his request and the trial judge specifically allocated the delay to him in her adjournment decision.[14] Mr. Millar’s mistrial application was dismissed on February 8, 2017. At around 11:30 a.m. that day, following the morning recess, Mr. Millar continued his submissions on sentencing, concluding at about 3:15 p.m. The sentencing hearing was adjourned to the next day, and it completed at about 11:30 a.m. on February 9, 2017. Mr. Millar asked that the sentence be imposed on a Monday or Tuesday, because he planned to appeal and to seek release from any custodial sentence pending appeal, and he thought being sentenced on one of those days would minimize his time in custody. I agreed to sentence him on one of the requested days, and adjourned the sentencing to today, which is Tuesday, February 28, 2017.
While the court did not mention this application in it's instructions to the Crown this was also a topic considered after lunch. This is a good spot to end the second posting and start a new one covering the post-lunch proceedings. I'll end with a few comments;Court continued by saying that there was an application to include fresh evidence. We will review it and we may and we may consider it. We will accept submissions as to whether or not it is admissible. The test is whether it existed at trial and why wasn't it led. You claim that it didn't exist at trial. We will now hear your submissions.
This is apparently the basis of his legal knowledge. He claims he's a natural person so he strip-mined statutory acts and jurisprudence for any usage of those two words and just dumped whatever he found into his defense without explanation of relevance and regardless of context. For example he's frequently mentioned the Law and Equity Act, a British Columbia statute, as support for his defense, both at trial and in this appeal. I've gone through it superficially but have no idea what it's even basically about. Give it a shot yourselves;"He's evidently done a word search through a judicial database, probably CanLII;
https://www.canlii.org/en/
and hauled out whatever he can find with the words "private person" and "natural person" regardless of any relevance to his appeal.
The trafficking arguments were of no interest to our hearing, what was of interest is this part of the Christhurajah decision;The appellant was convicted of human smuggling under s. 117 of the Immigration and Refugee Protection Act. In the summer of 2010, the MV Sun Sea sailed across the Pacific Ocean and arrived in Canadian territorial waters. It carried 492 Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status upon arrival. The Crown’s theory at trial was that the appellant was part of a human smuggling operation linked to organized crime.
Arriving at this conclusion;At the end of the appellant’s first trial, the judge declared a mistrial. The appellant was convicted at a retrial 60.5 months after he was charged. The trial judge instructed the jury that it was a defence to a charge under s. 117 for an accused to have been engaged in mutual aid with other asylum seekers. She instructed the jury that the appellant’s sole motivation must have been to aid the other asylum seekers and that the defence required “reciprocity of assistance”. She refused to charge the jury on a humanitarian aid defence. On appeal, the appellant argues that the charge must be stayed due to unreasonable delay in bringing him to trial.
These comments come from the case summary. The actual analysis regarding the application of Jordan was very extensive. Anyone wishing to read it can find the analysis in paragraphs 39 to 134. I'm assuming that the Rajaratnam decision is the one that Crown said was of no significance because delay was not an issue at that trial.The delay was predominantly caused by a mutual decision to await the outcome of a case that reached the Supreme Court of Canada. Pursuant to the analysis mandated by R. v. Jordan, 2016 SCC 27, this constituted defence delay and an exceptional circumstance and a stay cannot issue.
Crown - There is more evidence to support this. The complexity of dealing with an unrepresented litigant who participated on pseudolegal arguments and who was not willing to willingly participate in the process, his repeated arguments over the same issues. If you undermine the litigation process you add to the complexity. This is a quantitative global assessment, I can't point to specific events. The record shows Crown acting proactively during litigation, ready to go on days scheduled, looking for ways to move things forward on an economic basis. Not a Jordan atmosphere of complacency. Mr. Millar's adherence to pseudolegal views made everything take longer. He ignored Crown's letters.[210] A substantial number of documents were seized in the Fullerton Home search and the Porisky Search and were entered into evidence at trial. In order to establish the charge of failing to pay GST in 2005 through 2008, the Crown was required to establish that Mr. Millar owed GST. To do so, the Crown was required to establish that Mr. Millar earned income in an amount and over a period such that GST was payable.
[211] The Crown relied on its analysis of documents seized from Mr. Millar’s home and bank records obtained from a bank. The Crown made the assumption that cheques from anyone shown on seized records as being one of Mr. Millar’s students were payments to Mr. Millar for his services. The Crown made assumptions that certain costs were relevant to Mr. Millar’s provision of services and course materials.
[212] That analysis appears to have required significant time. While there was no evidence giving an estimate of the time required for the analysis, compilation of this evidence was complex, and that is a factor I must consider in making the overall assessment of whether the delay was unreasonable.
Court - Is there any evidence that Millar's obstructive behavior caused delay? No. Then we've done with that and we should discuss the trial judge's transitional exceptional circumstances ("TEC") reasons in the delay decision.[207] I must then consider whether the Crown has rebutted the presumption of unreasonableness on the basis of exceptional circumstances.
[208] The Crown did not establish any discrete event which constituted an exceptional circumstance.
[209] The Crown argued that the case was particularly complex.
[210] A substantial number of documents were seized in the Fullerton Home search and the Porisky Search and were entered into evidence at trial. In order to establish the charge of failing to pay GST in 2005 through 2008, the Crown was required to establish that Mr. Millar owed GST. To do so, the Crown was required to establish that Mr. Millar earned income in an amount and over a period such that GST was payable.
[211] The Crown relied on its analysis of documents seized from Mr. Millar’s home and bank records obtained from a bank. The Crown made the assumption that cheques from anyone shown on seized records as being one of Mr. Millar’s students were payments to Mr. Millar for his services. The Crown made assumptions that certain costs were relevant to Mr. Millar’s provision of services and course materials.
[212] That analysis appears to have required significant time. While there was no evidence giving an estimate of the time required for the analysis, compilation of this evidence was complex, and that is a factor I must consider in making the overall assessment of whether the delay was unreasonable.
[213] The case was not so complex that it should have required 46 months. However, it was sufficiently complex to require more than 30 months, and I will take that into account in assessing the overall reasonableness of the delay.
Court - Is the judge's conclusion on complexity is that it affects TEC?[217] After considering all these factors, including the complexity of the case and the transitional exceptional circumstances here, I conclude that the delay in resolution of these charges was not an unreasonable delay. That is so whether I am correct in determining that the applicable period started with the date Mr. Millar was arrested and served with the information, or if I am wrong in that, and the applicable period started with the date that the information was sworn.
https://www.courtofappealbc.ca/appellan ... w-evidence3.5 Introducing new evidence
In general, you cannot introduce new or additional evidence at your appeal. You must rely on the evidence that you submitted in the previous proceedings. However, you may introduce new evidence with leave (permission) from the division hearing the appeal (usually three judges). Rule 31 provides details about how to bring an application to court to decide this issue. The application is normally heard by the division at the start of your appeal hearing.
At the beginning of the hearing, you should tell the court that you want to make a request to submit new evidence. The court will hear your reasons why this evidence should be considered on appeal. If the respondent objects to your request, he or she will have an opportunity to explain why the evidence should not be introduced.
These are the general principles the division will consider on your application to admit new evidence:
1. The evidence will generally not be admitted if you could have introduced it at trial;
2. The evidence must be relevant in the sense that it relates to a decisive or potentially decisive issue in the case;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. If believed, the evidence could reasonably, when taken with the other evidence introduced, be expected to have affected the result.
As I noted earlier in these postings Jordan is very unclear on how the period between conviction and sentencing should be handled in determining the total delay. In support of his ground of appeal relating to delay, Mr. Millar seeks to adduce fresh evidence in the form of transcripts and rulings that occurred post-conviction and after the trial judge had ruled that there was no breach of his Charter s.11(b) right. The application should be dismissed.
Subsection 683(1) of the Criminal Code authorizes this Court to receive fresh evidence where it is in the interests of justice to do so. Pursuant to the test in Palmer v. The Queen, [1980] 1 S.C.R.759, the evidence must be relevant in that it bears upon a decisive issue in the trial.
The evidence in issue is not relevant to the Jordan issues that were argued at trial. Post-conviction delay is assessed under the Morin framework, as applied in R. v. MacDougall, [1998] 3 S.C.R. 45, and “tempered by Jordan’s emphasis on the importance of facilitating a more efficient justice system”: R. v. S.C.W., 2018 BCCA 346 at para.35 (quoting R. v. Dadmand, 2017 BCSC 1644, at para.55).