The BC Court of Appeal dismissed my Right to Appeal by claiming that my argument in the Supreme Court requesting a Writ of Mandamus on the MOJ to protect the public and ensure that the administration of government is in compliance with the law due to a documented failure in the rule of law was a conspiracy theory and “does not reflect reality”.
The BC Supreme Court decision to send my Protest utilizing the enforcement procedures s 238(1) of the Income Tax Act is back for a mistrial stands. As a result of that determination the theory of ‘res judicata’ proposes that all the argument that I’ve used before are now judicially concluded and no longer available. A bit of a problem…because there are unanswered constitutional questions, a failure of the MOJ to respond to the enforcement procedure of the Charter, improperly protecting lawyers and judges and denial of any bias and all evidence.
The Canadian Judicial Council asserts that Judges may ignore their own transcript to protect a lawyer committing fraud and the BC Law Society refuses to discipline lawyers not complying with a court order to produce monthly trust account statements and refuses to provide written reasons as required by their governing statute. So we are just gathering evidence to confirm the methods used, the scope of the problem and looking for solutions. The result is not a surprise but Trust in our Judiciary and Legal System has disintegrated and they believe that denial is the appropriate response.
26418-2 Nelson Registry
Lower Court File No. 26418-1 Nelson Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE LYSTER)
Nelson, B.C. January 11 & 13, 2023
REX v. TREVOR RUSSELL HOLSWORTH
PROCEEDINGS IN CHAMBERS
(Appellant Applications)
SUBMISSIONS FOR APPELLANT BY TREVOR HOLSWORTH:
THE APPELLANT: I probably should bring up the idea of recusal again…given that I did suggest that you should be removed from the Bench…
THE COURT: I didn’t know that you had suggested that, Mr. Holsworth.
THE APPELLANT: …in my appeal document that I suggested that your ruling should lead to a dismissal…that might influence your decisions…I’m alleging that your employer and the person that promoted you is obstructing justice, the Minister of Justice —
THE COURT: The Ministry of Justice is not my employer.
THE APPELLANT: I appreciate that’s your perspective.
THE COURT: Well, it’s also a matter of law. The Minister of Justice is not my employer…
THE COURT: Wouldn’t that mean that there could be no judge that could hear your matter?
THE APPELLANT: … I did bring up to you the prior time we talked on December 3rd. 2021
THE COURT: Right, but if I were to accept that that was a basis for me to recuse myself, you would be unable to bring this application in any court in Canada.
THE APPELLANT: …I have presented it to the Parliamentary Committee on Justice and Ethics. It is before the Senate as well. I’ve written to the Senate on the matter, just for your information, and it’s also being presented.on the [Parliamentary Ethics Committee] as well as the Emergencies Act inquiry, and I have received confirmation they have received that communication.
So I have attempted to communicate with the court of competent jurisdiction in this matter.
I’m still waiting for an actual response from anyone.
THE COURT: So when you say the court of competent jurisdiction, do you mean Parliament?
THE APPELLANT: Correct…the reality is that you didn’t rule on the writ of mandamus in my prior hearing. You didn’t rule for or against it. You just declined to rule on it at all. That, to me, gives me a perception of bias that you won’t rule against, well, yourself or your brethren I suppose would be the logical conclusion to that matter. So that brings up that element of partiality and bias. So that question hasn’t been resolved. It wasn’t resolved at the Court of Appeal. It wasn’t even discussed. I brought it up, but it was ignored in Justice Newbury’s decision. So I’m left with this void that judges can just ignore anything that they want that they don’t want to bring up, and obviously that affects my rights completely. If you can just arbitrarily decide to ignore something that I bring up, then I don’t have rights here in this forum….Did you think my evidence was insufficient or that my legal argument was
incorrect, or were you trying to protect lawyers and judges breaking the Canadian Criminal Code, or what was the reason?…I think the public has a right to know….It is appropriate in a free and democratic country.
…If everything is okay, like Justice Newbury says that it is, then shouldn’t it be okay to have a hearing, same as we’re having a hearing here? Here the Crown is accusing me of a crime, and I have a right to have this conversation in this forum, same as judges would have the same rights in a forum. To deny that procedure is fundamentally wrong. It’s against the rule of law,
THE COURT: All right. So what I understand you to be saying, Mr. Holsworth, is that really I would characterize your argument as in two parts. There’s an institutional bias argument because you would say that no judge can hear your cases because they’ve been appointed by the government, and secondly, you say that I am biased, and you say that because you suggested that I should be removed from the bench and because in your view I refused to rule on your mandamus application. Have I got it fairly?
CNSL M. ERINA: Do you need response on this from the Crown?
THE COURT: I would love to hear from you. Thank you.
SUBMISSIONS FOR CROWN/RESPONDENT BY CNSL M. ERINA:
CNSL M. ERINA: Well, there’s no basis in law whatsoever for Justice to be recused. You’re perfectly, in a matter of law facts, in a position to hear Mr. Holsworth’s appeal. Justice says she’s correctly noted much of Mr. Holsworth’s complaints go beyond Your Ladyship – pardon me, old habits die hard – but go to every judge in the entire judicial system. Of course, he’s foreshadowing … his entire appeal and his applications… Mr. Holsworth wants to put the entire system on trial and doesn’t appreciate the difference between what’s relevant to the narrow issues of his prosecution versus his broader complaints, whether they’re valid or not, and of course Crown says they’re not valid. He mixes those two together and sees the entire system as broken… Mr. Holsworth’s submissions, in my respectful submission, have no merit. There’s no basis in law for Your Lady to be recused in this matter.
[REASONS FOR JUDGMENT ON RECUSAL APPLICATION] : DENIED. NO CONFLICT.
THE APPELLANT: …I wanted to bring up a matter of disclosure before we get into the Notice of Application…there’s an envelope which is in tab 4. …that’s the letter to the Deputy Attorney General’s office, which I assume is the one that contained the notice of constitutional question, and it has the date stamped on it June 28, 2021…somebody contacted the Deputy Attorney General’s office to get this document… that there’s no other documents that came along with this seems quite extraordinary that there is a notice of constitutional question and an envelope and absolutely nothing else. There’s no answer to the constitutional question. There is no correspondence about the constitutional question. There is an absolute absence of anything.
THE COURT: All right. I’m not going to hear from you on this right now, Mr. Holsworth… raise this with me when I get to your appeal proper. I’m going to hear your application now, that being your November 18, 2022 application.
THE APPELLANT: …having a lack of Crown disclosure does influence my argument in all applications. I just think that that’s a relevant thing. If I make an argument and the Crown hasn’t disclosed documents, then my argument is not full and I don’t have all the evidence that I’m entitled to. That’s the reason why I brought it up early.
THE COURT: Okay. Mr. Holsworth, you’re the one who filed this application. You’ve set out what you want in it. I’ll hear from you.
SUBMISSIONS RE APPLICATIONS BY APPELLANT:
THE APPELLANT: …Crown should pay for the transcripts required for this appeal and all subsequent appeals because they have done so based on identical arguments…The Canadian Judicial Council claims in their letter of the 28th of August 2007 that judges have a discretion in their duty to weigh evidence which they claim extends to their own official records of the court proceedings, the transcripts.
I made arguments by email to Crown prosecutor Mark Erina on July 22nd, 2022, and I said it would be pretty arbitrary to require that I spend $1,500 for a transcript to prove a fact to a court that also claims a right to reject the transcript for any reason, or are you just trying to make me choose between feeding my family and buying justice. Crown accepted that argument on July 28th, 2022 by email and subsequently paid for the transcripts, which were then delivered to me by Crown.
…to refuse to pay for the transcript now is arbitrary, which is the conduct that Crown is not entitled to as it obviously affects trial fairness. I have a reasonable expectation of consistency, and in this specific case my legal strategy of splitting the cases 26418 and 26419 into separate trials, as I’m legally entitled to…that was specifically made with…the understanding that Crown would pay for the transcripts on appeal as they had set the precedent to that.
There is a failure in the equality under the law provisions of the Charter to restrict payment for transcripts only if represented by a lawyer. There are many reasons for not being represented by a lawyer. Having insufficient funds to afford their services is one. There are also cases where lawyers have a conflict of interest in the representation of their clients because evidence disclosed the failure to comply with the statutory duty of their governing authority the Law Societies. Alternatively, the public might not trust that a lawyer would act on their instructions due to a perception of conflict and loyalty. Members of the public may perceive that lawyers improperly protect the courts as “democratic institutions” before the public, which is the incorrect approach to rebuilding trust.
…Crown’s going to argue that if I want to get transcripts paid, then I have to go through a lawyer and I have to go through the whole process of the Legal Aid and all the rest. But I’m saying that in this circumstance, that would be unfair and wrong.
Crown claims that I have to prove lack of funds and attempts and denial of Legal Aid prior to getting Crown to pay for transcripts and that their previous conduct paying for transcripts for appeal purposes does not alter this. Restricting access to Crown paying for transcripts only for lawyers would unfairly restrict a victim of fraud within the legal system having a method to access justice, particularly when they are poor and most vulnerable. Requiring that a citizen must have a lawyer to receive the assistance of court is an unequal application of the law based on the status of being a lawyer, which is in conflict with the Charter equality before the law provisions. It is improper to restrict my access to justice more than it already is.
…I’ll move on to my lack of financial capacity to pay for transcripts. I do not admit that there exists a requirement to establish my lack of financial capacity. However, I will do so for the purposes of efficiency and its relevance to the issue regarding due diligence as well, which is applicable to the appeal as well.
In Holsworth v. Holsworth 2007, Judge Shaw decided that Kootenay Experience Limited had a share value of zero, but for the purposes of divorce a value of 295,000 based on the value owed to me from the shareholder’s loan account. In Holsworth v. Holsworth 2007, Judge Shaw acknowledges a debt owed by Trevor Holsworth to William Holsworth in excess of $890,000 plus interest and costs but declined to apply the debt for the purposes of the settlement of the divorce. Mr. Holsworth, Sr., collected all assets subsequent to the divorce except for the property in Nelson, on which he placed a mortgage for the remainder of the balance which exceeds the value of the property by several hundred thousand dollars with interest of five percent payable annually of approximately $50,000 per year, which exceeds all revenue generated by the property.
The Canada Revenue Agency in 2014 seized my personal bank account and the bank account of Kootenay Experience Limited, and the latest statement from the CRA lists a debt owing of $84,000 resulting from the collapse of my business operations. However, given the arbitrary nature of the process for appealing any decision made by CRA, it is difficult to determine what is the real situation. I am, as I stated on August 10th, 2022, before Justice Brown in the Provincial Court, “at the mercy of the court”
The CRA audits of 2009, 2010, 2011 and 2012 that I was subjected to subsequent to my divorce found essentially no disclosure problems, just a complete lack of funds and a guy with a broken leg hobbling around with two little children that he was trying to take care of while providing access and documents for the auditor while the mother worked on-call 24 hours a day as a paramedic for $2 an hour and binding me to the house with a pager for a year too many before I had to leave because of my lack of future prospects.
The CRA audits included a failure to allow the GST paid on a property into a lawyer’s trust account to be validated unless I could show a payment to the Minister of Finance, and all that I had was a lawyer’s trust account statement showing complete settlement, which is all that anyone that buys a house in B.C. receives.
FMEP has been attempting for the last three years to collect due to the mother of my children taking me to court without notice due to her correct perception that I had no rights in that forum and that she sought to exploit a perception of weakness, increasing my child support obligations from the agreed-upon $200 to $2,500 per month. Their current record indicates a debt of something in excess of $150,000 as of November 20th, 2022. FMEP exercised their discretion and removed my driver’s license over two years ago. In order to bring the matter before the court, the judge ordered I pay $2,500. I cannot access justice to resolve the situation. I have no vehicle. I do have a bicycle. The court is five hours away in Kelowna.
…Provincial Court has on numerous occasions admitted to my lack of funds and provided extensive time payments to facilitate that.
…In the separation agreement, which I have here with me…the debts are agreed upon by the parties. I have no current income, no job and no future prospects. Due to my dispute with the judiciary over their assumption of absolute power and the time commitments required to defend myself and assert my rights, I do not see future prospects.
Under threat of imprisonment, I’ve been compelled to attend court for over 15 days in the last year, not counting dates on appeal or time required to research both procedure, rules, precedent, and the laws of Parliament, in order to properly defend myself without a lawyer.
…my request is that Crown should pay for the transcripts or the case should be summarily dismissed due to abuse of process. If Crown prosecution refuses to be consistent in their decisions and the court refuses to order Crown to pay for the transcripts, then I cannot access justice and this case should be dismissed for abuse of process due to the arbitrary nature of the Crown prosecution and the judiciary’s discretion.
…The standard for abuse of proprietorial discretion is on the balance probabilities and it is not necessary to make findings of misconduct or improper motives for a stay of proceedings to be entered. And the test is conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system will be a basis for a stay, as outlined in R. v. O’Connor, and can be reviewed where the conduct of the Crown constitutes a marked and unacceptable departure from the reasonable standards expected of the prosecution …in R. v. Power…“overwhelming evidence that the proceedings under scrutiny are unfair”
…R. v. Light, 1993, the B.C. Court of Appeal settled that the Crown prosecution discretion can be examined by a court for abuse of process and to issue of stay of proceedings.
Crown prosecutors are refusing to respond to the enforcement procedure of the Charter, s. 24, which goes back to my request for disclosure that we haven’t dealt with that has been served on the Deputy Attorney General’s office.
…request for disclosure from the Crown that I brought up before this matter where I have served upon the Deputy Attorney General’s office a notice of constitutional question….they’ve included in their submissions that they’ve received it, but there’s been no answer to that notice of constitutional question ever produced. No correspondence whatsoever. It’s just an envelope admitting that it’s been received by the Attorney General’s office, and then a big blank.
THE COURT: Okay. So I want to make sure I understand what it is that you’re concerned about. You’re saying that they are refusing to respond to your notice of constitutional question, is that your concern?
THE APPELLANT: They’ve also not responded to the actual Charter enforcement procedure…
Crown prosecutors are refusing to respond to the enforcement procedure of the Charter, s. 24(1), although it has been served upon the Deputy Attorney General’s office. A constitutional question on the matter was served to the Provincial and Federal Crowns, and no comment is the argument presented to court on July 16th, 2021.
…Crown Counsel, did present argument when he was asked, but that argument was limited to the fact that Provincial Court judges are not Federal Court judges subject to the Canadian Judicial Council. …But subsequent to it going to the Supreme Court before you, there’s been no further correspondence. There’s been no further response to the Charter enforcement. There’s been no response to the constitutional question.
THE COURT: Now the order that you’re seeking here though in the application that’s before me is an order for information on the procedure within the Crown prosecution office for assignment of counsel and resolution of issues of discretion. That’s the order that you’ve sought.
THE APPELLANT: Right…I have asked for conflict of interest statements, and I have asked
for various procedures that are available to me, like deferred prosecution agreements…but I’m just trying to outline the problems that I’ve experienced in the Attorney General’s office, and then I’ll get to the why I think it’s important that we have some disclosure.
…One Crown Counsel felt obliged to respond but the other did not.
In R. v. Anderson, the Supreme Court of Canada,
[45] … the Crown possesses no discretion to breach the Charter rights of an accused.
[48] … This court has repeatedly affirmed that prosecutorial discretion is reviewable for abuse of process.
[62] … This discretion is consistent with our constitutional traditions.
Also in Krieger, paragraph 32, and Nixon, paragraph 31, specified bad faith or improper motives, which all Canadians would agree is the case here, except for apparently lawyers and judges who appear to have their own perspective on this but have not articulated a defence for it at all despite notice and further requests.
On February 11th, 2021, the Attorney General, David Lametti, responded to my correspondence claiming that the Canadian Judicial Council alone is tasked with investigating complaints about the conduct of federally appointed judges, and followed with the false or misleading statement [as read in]: “It would be not appropriate for me to intervene nor as a matter of law would it be possible for me to do so.”
In my response by email of February 14th, 2021, I responded, quoting from the Department of Justice website and Cosgrove v. Canadian Judicial Council:
“[64] … the Council has no power to remove a judge from office… If the question of removal is to be put before Parliament, it is the Minister who does so … Like all acts of an Attorney General, the Minister’s discretion in that regard is constrained by the constitutional obligation to act in good faith, objectively, independently and with a view to safeguarding the public interest.“
I never received a response to my correspondence.
Prior to the appeal in the Supreme Court of British Columbia on December 3rd, 2021, I made a number of requests of Crown Counsel…on October 4th, 2021, including:
(a) A special prosecutor due to the involvement of the Attorney General, Minister of Justice and the Prime Minister. My request was denied;
(b) Conflict of interest statement due to the disclosure of improper conduct of the B.C. Law Society refusing to provide written reasons, particularly how they are complying with their statutory duty to protect the public, which an objectively reasonable perception would require notifying a regional Crown Counsel, according to Crown prosecution policy STA-1, which was not done.
When I asked for a deferred prosecution agreement, it was ignored. I asked for a witness protection programme. On October 8th, 2021, I withdrew my request for witness protection due to the RCMP threatening to destroy evidence….I also asked for an immunity agreement for testifying against much more significant actors breaking the law, although they are the superiors of Crown Counsel …which does put him in a difficult position, but that is the rule of law, we must all do our part, which was ignored.
…the judge to hear this matter, expressed the opinion that there was no possible conflict with fairness and impartiality despite his specific knowledge of specific items demonstrating partiality and a failure of fairness, but those all mirror his own biases because of their common background as lawyers. A Crown lawyer should not seek unfair bias or take advantage of a weakness in the ability of an individual to protect themselves…that you refused to rule on the writ of mandamus before the court, which is a failure to act judicially and clearly partial, protecting the highest Crown prosecutor in Canada.
My appeal to the B.C. Court of Appeal specifically made argument that in my opinion…that you should be removed for your conduct. It is impossible to say that the public would not perceive that a judge would have bias against me in this regard. It is a failing of fairness by the Crown prosecutor to claim that this is not a factor that should be acknowledged.
Provincial Crown prosecutor William Westcott was my family lawyer representing me at trial in 2006. I alleged to the B.C. Law Society and in court before you that he was involved in trial fixing. Mr. Westcott was the Crown to present the evidence on the case against me in the Provincial Court in Nakusp. This matter was brought to the attention of the court on December 3rd, 2021, and you deemed it irrelevant at the time. I communicated the conflict issue to Mr. Ferbey by email on July 27th, 2022, and August 12th, 2022, as well as conflict more generally on October 3rd, 2022, and he did not respond until I reminded him again, and that time he denied that there was any conflict.
No conflict of interest statement was ever made by anyone, and no report to a superior ever made.
I requested information regarding how Crown prosecutors are assigned which, in my perspective, seem particularly relevant due to the conflict of interest of some of the actors, but I was denied. Of course, I am concerned, given the relationship between Mr. Ferbey and Mr. Westcott and myself, as well as the conduct of the Attorney General of Canada failing to respond to the enforcement procedure of the Charter.
There should be transparency in the court process so that those accused have a sense of fairness about the procedures. There are vast gaping holes in the decision-making process of the prosecution and a general failure to attempt to communicate to resolve the matters presented. Denial of proper procedure in this case makes the acceptance in other cases extremely suspicious.
I still haven’t received any further disclosure except for the fact that the Attorney General’s office received the notice of constitutional question. There’s been no further communication, and there’s been false and misleading statements produced by the Attorney General, David Lametti.
…in the House of Lords case, judging Pinochet, the Chilean dictator, they made it very clear that the words of Justice Hewart were critical. Justice must be done and must be seen to be done, which arose because he was of the view that the Executive was undermining the Rule of Law without any checks or restraint, and this was being done without due sanction from the legislature. England did not have a written constitution, and at that time it was very difficult to obtain a mandamus against any government authority.
The case also stands for the statement there is no better-known rule of natural justice than the one that a man shall not be a judge in his own cause. In its simplest form, this means that a man shall not judge an issue in which he has a direct pecuniary interest, but the rule has been extended far beyond such crude examples and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him or her to approach the trial with impartiality and detachment which the judicial function requires.
The Pinochet case was dismissed because the wife of the judge was a lawyer for Amnesty International, not even the prosecution. Pinochet was a dictator and I’m just trying to stop [one].
But Pinochet was rich and he did have lawyers, and I am poor with no political power and no lawyers. I think those are the distinguishing elements in the precedent in the application of the rule of law. Lord Hewart’s principle requires that tribunals to be not only actually independent from the executive interference but to be seen as being independent entities and not as departments of the government. We cause harm to our own legal systems and its credibility by ignoring this principle.
THE COURT: Right. So currently I’m wanting to hear from you in support of your application for information on the procedure within the Crown prosecution office for assignment of counsel and resolution of issues of discretion.
THE APPELLANT: Right. So what I have is I just got an absence of all procedures. There is written procedures in the Crown Counsel office about the — it’s called the STA-1, and I’ve requested information from Crown, and there’s just been no compliance whatsoever with any procedure, just complete denial of that there could be a conflict of interest and no reporting of the potential conflict of interest to a superior. So if you can just deny everything, then why even have the procedure? It just makes a mockery of the procedure. Even if Crown has received constitutional questions and not responded to them, had they received Charter enforcement procedure notification and not responded, how that cannot be a conflict of interest is beyond me. But I’ve asked for the procedures to be followed and there’s been absolutely zero response.
…I’m left in the dark as for how is the Crown Prosecution Service fulfilling its mandate to do anything, to enforce the Charter, to uphold the rule of law, to follow their own policies and procedures. It’s just a complete void because I’ve just received nothing, and I think that is very different from the regular course of events. I don’t think this is normal. But maybe it is. I don’t know. I don’t have much experience in this matter, but maybe there is just general denial of all procedure. But this has been my experience is that there’s been a denial of all procedures and no communication, and then when pressed, there’s been false and misleading statements made or just no statements made. So I’m just looking for some enforcement of procedure or explanation of how these procedures might be resolved.
SUBMISSIONS RE APPLICATIONS FOR CROWN/RESPONDENT BY CNSL M. ERINA:
CNSL M. ERINA: A lot to unpack…I’ll try to deal with this in a principled fashion
…we’re working on appeal in the second trial, and a lot of what Mr. Holsworth says is not evidence. They’re submissions. When he talks about his financial state. That’s submissions. That’s not evidence. At least it’s important to — I want to state that up front. But in these circumstances, it probably is of no moment, but just strictly on a procedural matter, Mr. Holsworth refers to a lot of facts that those are just submissions. Those aren’t evidence.
CNSL M. ERINA: the complete answer in law to Mr. Holsworth’s request is this court does not have the jurisdiction to order the state to pay for a transcript in the absence of an order under 684 of the Criminal Code appointing in counsel…
On the basis of R. v. McDiarmid,.. a decision of Madam Justice Bennett, “I have no jurisdiction to order that the state pay for the production of transcripts in the absence of an order to appoint counsel.”
para [17]”A reading of the decisions, however, points to no ability to fund disbursements including transcripts”… I emphasize that…without the appointment of counsel…what Mr. Holsworth has to do is make an application under 684 of the Criminal Code, which is applicable in summary appeals, for appointment of counsel, and if counsel is appointed, then the transcripts may be part of the expenses that are paid. Mr. Holsworth has not made a 684 application. In fact, he has informed me by email that he has no intention to make an application under 684.
Now I appreciate that Mr. Holsworth has and I accept that he’s had difficulties retaining counsel, but that doesn’t alter the law that he must follow this procedure.
If I can refer Your Ladyship — I have to stop that, Justice.
THE COURT: You’re not alone in having old habits dying hard being difficult.
para [47] I also accept that the Applicants have applied to Legal Aid for assistance, but has been denied funding assistance on the basis that the Applicants did not receive a sentence of imprisonment or a conditional sentence of imprisonment and because Legal Aid was of the opinion that there was not a reasonable prospect of success on the proposed appeal. The Applicants appeal of the Legal Aid’s decision was refused for the same reasons.
para [15] Mr. Justice Silverman also considered the fact that the Legal Services Society rejected Mr. Verma’s application for counsel because they determined the appeal had no chance of success…
The point I’m trying to make is that that directive has application to this court, and if Mr. Holsworth wanted to get the transcript paid for, he would have to make an application under 684, and that would necessarily entail that he make an application to Legal Aid and be denied. But that’s not the end of what Mr. Holsworth would have to establish to succeed on a s. 684 application…I’ve set out the points that a court has to consider when determining whether appointment of counsel is in the best interests of justice, and that of course is the second branch of the test …Mr. Holsworth received a $4,000 fine. There’s no imprisonment here…when considering whether appointment of counsel is in the best interest, with the greatest respect, this is hardly the case where the tax funder, tax payers’ pocket should be opened to pay for Mr. Holsworth’s appeal.
…I acknowledge that Mr. Holsworth had trouble finding a lawyer, but it may also have something to do with the merits of his case. I don’t know. I think it’s a reasonable inference perhaps that can be drawn from that, and it certainly does not displace what the law is, that he still has to follow this.
So in my respectful submission, the Crown should not have to pay for Mr. Holsworth’s transcripts for this appeal or his previous appeal.
Mr. Holsworth says the Crown exercised its discretion arbitrarily because the Crown agreed to pay for transcripts in one instance, then turned around and said no. In my submission, that is incorrect. What occurred is the Crown agreed to pay for the transcript of what took place at the summary appeal before Justice because the Crown wanted it to make its own submissions on the leave application. That was for the Crown’s benefit. Mr. Holsworth got the collateral benefit because we ordered it for ourselves. Then we of course are providing a copy to Mr. Holsworth.
… It’s the third paragraph where I’ve written to Mr. Holsworth and I’ve said the Crown is ordering a transcript of the submissions made at the summary conviction appeal so that the judge presiding over the leave application can see when and how YOU mentioned anything about delay before Judge Lyster, because that was an issue that Mr. Holsworth was going to raise before the Court of Appeal, and without the benefit of the transcript, I was unable to put together my submissions. So the Crown needed the transcript. We ordered it, and Mr. Holsworth got the benefit. The Crown wasn’t agreeing to order it for the reasons Mr. Holsworth suggests… No. We gave it to him because we had to get it for ourselves.
Mr. Holsworth also refers to conflicts of interest. Well, in my respectful submission, the Crown, and myself in particular, I have no conflict of interest with Mr. Holsworth. Mr. Holsworth has not adduced any evidence or any submissions that would substantiate that I have a conflict of interest. His basis appears to be that because I’m a lawyer, I have a conflict of interest. That has no merit as a matter of law. In correspondence with Mr. Holsworth, I did respond to him I think at least on two occasions stating that I do not have a conflict. When he made further inquiry, I simply said I am not going to discuss this any further with you.
All of this…is driven by Mr. Holsworth’s distrust in the justice system, and he seeks, in my submission, documents and using these to further push… what he calls his political protest… it’s not relevant, and no order for disclosure should be made.
REPLY SUBMISSIONS RE APPLICATIONS BY APPELLANT:
THE APPELLANT: …On the difference between evidence and submissions…it’s a very nebulous concept obviously when the Canadian Judicial Council asserts that judges have a discretion to weigh every document and every piece of evidence up to and including their own transcript…Is my communication evidence or is it a submission? Is anything that I provide evidence because you have the discretion to ignore everything that I say, and you have the discretion to ignore all the evidence that I have. So everything that I have is a submission. If you would like to see any evidence, I have the letters, I have the documents, but you have the discretion to ignore them, including the transcript.
…the requirement that I file this 684 application, saying that in order to get that, that law is unconstitutional because it creates an inequal application of the law based on the status of being a lawyer or a self-represented litigant, and that is wrong. It’s unconstitutional, it’s against the Charter, and it’s also against the public interest. It’s also against the basics of the three evidence laws of Canada, the search for the truth, the protection of constitutional rights and the proper administration of justice. To say that I can only get Crown to pay for transcripts if I have a lawyer is unconstitutional.
…Mr. Erina did mention about bias…that this would apply to all lawyers, and I did attach a letter addressed to Stuart Cameron of the B.C. Law Society… The lack of a reply to allegations of improper procedure, which would amount to obstruction of justice, is an obstruction of justice. I wrote to Stuart Cameron of the B.C. Law Society and…asserted that the B.C. Law Society was protecting lawyers because I had made a complaint about a lawyer’s not complying with court orders and altering court documents, and I had asked Stuart Cameron how they were protecting the public interest, and he had refused to respond.
That produces a problem for, yes, all lawyers because if they’re not obliged to comply with their regulations and the B.C. Law Society does not punish them or discipline them or do anything and doesn’t inform the public on their procedures, then it can hardly be said that they are protecting the public interests.
THE COURT: So do I understand your position correctly that you would say any lawyer, all lawyers would be in a conflict of interest in prosecuting this case, is that your position?
THE APPELLANT: It could quite well be because the B.C. Law Society has not complied with their statutory duty, and that is a problem for the administration of justice. If you have the B.C. Law Society not complying with their statutory duty, it does create a conflict rippling down through all their members. And yes, all their members would be in a conflict of interest because they would not want that to be made public. They would not want that bias of their governing organization or their illegal conduct of their governing organization to be made public. So yes, I would assert that it is a problem for all lawyers.
THE COURT: Okay. Thank you.
THE APPELLANT: [As read in]: Yes, I’m raising the matter of delay as a failure of the court to provide me with a fair trial within the time limit established by the Jordan principle. My understanding is that you were requesting that I provide the transcript of the summary conviction appeal that was heard on December 3rd, 2022. Although it appears that you are admitting that the matter was presented before Justice in your argument so it could be said to be admitted, it would be pretty arbitrary to require that I spend $1,500 for a transcript to prove a fact to a court that also claims a right to reject the transcript for any reason…he’s asking me to pay for it. I respond back and say…why are you asking me to prove this and how is this document going to prove it? He’s asking me to pay for it, and I said no, I think you should pay for it, and he responds back to me on July 28th the Crown is ordering a transcript so that the judge can see when you mentioned anything about a delay. So he’s asked me to pay for the transcript. I’ve made argument that I think he should or that Crown should, and he has responded by ordering the transcript and paying for it. It can’t get much clearer than that.
Yes, so the other matter was the transcript for the paying for the transcript from Justice Sicotte…in the Provincial Court… you decided that the judge made an error in law. I paid for the transcript to come to the Supreme Court, and … through the transcript, that the judge had made a mistake. I paid for the transcript. The judge made an error. It’s manifestly unfair that I bear the costs of that error when the judge made the error, I proved it, you agreed that it was proven that there was an error, but I’m the one bearing the thousand dollars plus all the other expenses that I had involved in this, the loss of days and work and research, and I was out a thousand dollars from having to provide that transcript which established that a judge had made an error. It’s wrong to make me pay for that.
THE COURT: Okay. Thank you for that, Mr. Holsworth. Actually, I would like to hear from you, Mr. Erina, about just that specific issue with respect to the Sicotte transcript. Mr. Holsworth says I needed that transcript to prove my case, I proved my case, it’s unjust that I should have had to pay for the transcript. I’d just like to hear from you on that.
SUBMISSIONS RE APPLICATIONS FOR CROWN/RESPONDENT BY CNSL M. ERINA, CONTINUING:
CNSL M. ERINA: That’s the way the system works. I mean that may sound like a crass reply, but the criminal justice system is such that if a person wishes to appeal, they bear the costs of paying for the transcript or appeal materials subject to the statutory regime, s. 684, whether it be an indictable or summary appeal, and of course there are going to be occasions where, as a result of the appeal, there may be an error which merits a new trial. I mean I think that’s — I don’t think you can contemplate a system where all appeals are going to be dismissed…
THE COURT: No, one would hope that you wouldn’t have a system where all appeals are dismissed.
CNSL M. ERINA: And there’s going to be some appeals that are allowed, and that — you know, it’s difficult to articulate a more precise answer, but that’s the law as it stands. Now if that acquittal — or pardon me, if some reason the convictions are set aside because of some form of misconduct, for lack of a better word, on the part of the Crown, perhaps that can be addressed in the appropriate forum with costs. I’m just saying that generally because I’m not thinking through the appropriate forum, but there are other ways the criminal justice system can look at systems at situations like that. That’s not the case here. This is a case where Justice Sicotte overlooked informing Mr. Holsworth about the due diligence defence… So, do I understand and have empathy for Mr. Holsworth’s situation? Yes. In fact, it would be wrong for me to say that any litigant, whether it be criminal or civil, it’s a tremendously expensive venture. But the law, at least at the moment, the vehicle that the law provides for that is the Legal Aid system and the 684 system. That is the law, and it’s the law, of course, that binds this court in responding to it. But does Crown have empathy for Mr. Holsworth’s financial situation? Of course…
Application for Records held by the Canadian Judicial Council
THE APPELLANT: So the second application is for an O’Connor application for third party records. On March 22nd, 2020…I requested by email from the Canadian Judicial Council my personal files held by that institution. No response was ever received. I followed up with communication with the statutory body mandated with enforcing the Freedom of Information Act. So I also submitted a Freedom of Information Act request to the Minister of Justice, and then they sent it back to me saying that they don’t have control over those records and I’d have to send a Freedom of Information Act request to the Canadian Judicial Council, which I subsequently did. But the statutory body, they informed me that the CJC is not subject to the Freedom of Information statutory regime. So I also, on November 25th, 2020, I communicated and requested from Crown Counsel, Mr. Ferbey, the contents of my file with the Canadian Judicial Council, and he denied my request stating that it was not in the possession of the Crown and refused to make any requests for it. He said the Canadian Judicial Council, indeed, the judiciary generally is entirely separate and independent from the Prosecution Service of Canada, as it should be, I have no standing or authority to see to it that they do anything, any records in the possession of the CJC are not in my possession or as a prosecting Crown, I am unable to carry out this request.
On October 4th, 2021, I continued my request for complete disclosure with Mark Erina, Crown Counsel [as read in]: “I’m still seeking my personal records that are held at the Canadian Judicial Counsel. I have made a Freedom of Information request that has been ignored. When I investigated, I was informed that the appropriate Ministry is not on the list of bodies. I’ve done everything that I can to obtain these records which are essential for a full answer and defence in this case. It is also completely contrary to the open court principle. I made similar requests from Isaac Ferbey, but he declined. Please make the correct inquiries at this time.”
…The court registry confirmed that there was a trial on March 13th and 14th. However, when I requested the transcripts for that date…transcription service came back to me and said [as read in]: “We have received your order. Unfortunately, we’ve been advised by the Nelson Registry that nothing was heard on March 13th, 2006 requested for your matter. Please confirm the dates and contact the Nelson Registry for assistance.”
…that’s what the Nelson Registry said and that’s what the Holsworth transcript, the reasons for decision say that the date of the trial was on, but it doesn’t appear that I can get anything for the dates it says that it is there. I made the appropriate applications to court for the digital audio files of the court, and I guess you’ve recently declined that request.
….I attended the B.C. Court of Appeal on August 30th for right of appeal, and Justice Newbury indicated that the transcripts were relevant and appeared to indicate that my lack of them affected her judgment in the case. From the transcript, it says, the court says [as read in]:
“And do you have the transcript?
And I say: I have not been able to get a hold of the transcript. I’ve made appeals through the Freedom of Information Act….
and the Court responds: Well, it seems to be relevant. You’re referring to it.”
In Justice Newbury’s decision of the 29th of September before the BCCA, she wrote…
para [24] …Mr. Holsworth’s experience in 2006-7 with the courts and the CJC has left him with the impression that it is open to Canadian judges to act arbitrarily, and disregard “all evidence, including the transcript”; for litigants to “plant evidence” at trial; and for the Crown to destroy evidence. He says all judges and lawyers are “failing to comply” with their oaths of office and codes of ethics. I asked Mr. Holsworth to provide me with a transcript of his family law trial, or part thereof, that might explain why his credibility was doubted. He did not do so; nor did he provide a copy of his complaint to the CJC at the time. He gave no explanation as to why these were not provided, although he had assured me at the hearing that he was in possession of them.
para [28] I do not know whether Mr. Holsworth provided a transcript of the family law trial proceedings to the CJC in his complaint in 2007, but it may be assumed that the CJC obtained what evidence it needed to be satisfied that the complaint was not a matter of judicial conduct, but rather one of the exercise of judicial discretion…
This goes to the heart of the issue and a proper completion of the truth-seeking function of the court as well as a proper resolution for their service and the protection of the public to check the assumption that the Canadian Judicial Council obtained what evidence it needed…Although the Canadian Judicial Council is not required by statute to be accountable and transparent, their website does indicate that it is a core value and an essential element in the application of the open court principle.
They say: “Fostering public confidence through increased transparency.”
“Transparency is an essential ingredient to ensure public confidence in our legal system. By creating links between the justice system, judges and Canadians, we are proud of the transparency of the communications, processes and operations that are implemented. We also provide all judges with the guidelines, tools and best practices to help guide their work.”
The standard for the production of third-party records is likely relevant. The right to receive disclosure is an aspect of the right to make a full answer and defence from Stinchcombe and O’Connor. This right imposes a duty on the Crown to make reasonable inquiries of other government entities that could reasonably be considered to be in possession of relevant information. I believe the transcript is relevant.
THE COURT: No, but you’re seeking not your transcript, you’re seeking the materials from the CJC, aren’t you?
THE APPELLANT: Well, I am seeking the transcript as well as the information that they —
THE COURT: … the Canadian Judicial Council to provide the entire contents of my personal files regarding the complaints of Trevor Holsworth, including all transcripts, notes, letters, internal memos and audio files, specifically, but not limited to, the complaints regarding Judge Shaw and Justice Humphries. So you’re seeking documents from the Canadian Judicial Council.
THE APPELLANT: I am, as well as the transcript.
THE COURT: Which may or may not include the transcript of your proceedings before Justice Shaw and Justice Humphries. We don’t know what the CJC has.
THE APPELLANT: We don’t know that, yeah, no, that’s true. But I am seeking those — you know, I guess it comes down to I have a right to know what is in that file. If there is something in that file saying, you know, you should — this person is — you should just whatever, you know. I don’t know what it says. It could be like okay, just get rid of this guy, I don’t know.
THE COURT: Right. You don’t know what’s in it, I appreciate that.
THE APPELLANT: But I think I have a right to it.
THE COURT: How would the Canadian Judicial Council file from the complaints that I take it you filed against Justices Shaw and Humphries be relevant to the appeal I’m hearing or will be hearing, which is an appeal from the Honourable Judge Brown’s decision?
THE APPELLANT: Right.
THE COURT: Explain to me the relevance.
THE APPELLANT: Sure. Okay, so as I’ve been very clear and as I’ll make clear in my appeal, the entire purpose behind me being here, as Mr. Erina has indicated, is a political protest against abuse of power. I do not believe that it is correct for the Canadian Judicial Council to claim that judges can disregard the transcript and can proffer to plant evidence at the trial in the form of calling the plaintiff —
THE COURT: I doubt very much the CJC ever said that judges can defer to planted evidence.
THE APPELLANT: Well, that is the evidence before them is that is what happened. And so I don’t think that it’s right, and I want that changed.
THE COURT: Okay, I know you don’t think it’s right. I know that you say that that’s what the Canadian Judicial Council did and I know that you say that’s not right, but how is it relevant to this appeal?
THE APPELLANT: Because that’s why I’m here to protest that decision….I tried every possible communication and means to communicate the problem that I experienced in the Canadian judicial system, and I got a closed door at every single turn that I made. The only method left to me to communicate with the court was this method of making a protest, bringing myself before the court and asking the court to account for itself. That is why I am here. I’ve made that very clear… before I appeared before Judge Sicotte, there was a full-page… editorial taken out in the local newspaper indicating the entire problem for the public to witness. There’s been numerous articles and letters to the editor in the newspapers, both before and after that case, indicating that that is the case…
THE COURT: So, Mr. Holsworth, I appreciate that may be your subjective purpose in being here, but I am governed by what’s relevant to the appeal that’s before me, and you’ve not told me anything that would indicate that the files from the CJC are relevant to the appeal before me, and that’s why I’m asking you the question.
THE APPELLANT: Well, because I am asserting that lawyers are not complying with their statutory duties and judges are not complying with their constitutional duties, and part of that is the ruling of the Canadian Judicial Council and the conduct of the Canadian Judicial Council and the Minister of Justice’s conduct. Those are all factors that are relevant in this appeal and the reason why I’m here. That’s the relevancy. And it’s a matter of perspective. I can appreciate that from your perspective everything that I say is irrelevant because it’s annoying, but from my perspective —
THE COURT: Well, it’s not a question of whether it’s annoying or not, Mr. Holsworth. It’s a question of whether it has some legal relevance to an issue before me.
THE APPELLANT: Right, and I’ve just explained the legal relevance behind it, right. If judges are not in compliance with the Charter and are not enforcing the Charter…when I wrote to the Prime Minister’s office and explained to them that the Minister of Justice… wasn’t responding to the enforcement procedure of the Charter, they forwarded the email on to the Minister of Public Safety, which is an acknowledgement that there’s a public safety concern. That’s the relevancy here… I don’t know how much more relevant it can be. That’s the entire reason I am here… If you want to look at it from your perspective, it’s irrelevant perhaps. If you want to look at it from my perspective, which is the public, then it’s entirely relevant. The public has a right to know how the conduct and how the administration of justice is conducted and whether it’s in compliance with the law. And that is in the public interest, and it’s certainly important in a free and democratic country.
THE COURT: Anything further?
THE APPELLANT: No, that’s pretty much it…I’m just going to reemphasize the fact that Justice Newbury in the B.C. Court of Appeal indicated that it seemed relevant and it was relevant, and I’ve taken every step that I can possibly take to get those records, and just falling back on the open court principle and transparency and accountability, I think it’s the right thing to do.
THE COURT: Okay. Thank you very much.
THE APPELLANT: You’re welcome.
SUBMISSIONS RE APPLICATIONS FOR CROWN/RESPONDENT BY CNSL M. ERINA, CONTINUING:
CNSL M. ERINA: …clearly they are third party records, and in the argument the Crown applied the test in a case called Gubbins indicates why they’re third party records. I don’t think Mr. Holsworth is contesting that. Clearly, the Crown doesn’t have possession.
THE COURT: No, I think they clearly would be third party records.
CNSL M. ERINA: …There is no conceivable way, in my respectful submission, that records pertaining to complaints about different judges on matters — at least with respect to Justice Shaw that occurred I think in 2006…how that factors —
THE COURT: I’m assuming that’s who it is, but I don’t know.
CNSL M. ERINA: Yes, how logically that can have any bearing on the issues that are before this court on this case. Relevance on appellant proceedings is viewed through the lens of is there a reasonable likelihood that the documents will assist the appellant in the prosecution of his or her appeal, and in my submission, there is not. It’s self-evident. It cannot go from a leap of matters that have nothing to do with this case to somehow the entire system is at fault, lawyers and judges, we’re all not doing our jobs, not complying with our oaths.
para [29] …“In any event, his leap from the fact that his evidence was not accepted in 2006 to the existence of a vast failure of the justice system and of judges and lawyers to comply with their oaths of office and codes of ethics… seems to indicate a disturbing world-view rife with conspiracies and corruption. This does not reflect reality.”
Those are strong words from a justice of the Court of Appeal. But with respect, Mr. Holsworth’s logic on how these events somehow can relate to the much narrower case here is not logic that holds up to scrutiny… these are important issues to Mr. Holsworth, I understand that, but they can’t be pursued in this forum. The only things that can be pursued in this forum is what’s relevant to the issues before now this court sitting as a summary conviction appeal court.
I end by simply saying I think there’s also in an O’Connor application there’s a procedural step that Mr. Holsworth would have to take.
THE COURT: To provide notice to the CJC.
CNSL M. ERINA: Correct. I don’t know if he’s done that. I suspect the answer is no but, in my submission… I ask for you not to dismiss the application… all because of a procedural defect but on the substantive merits of the application. It simply has no relevance. I think it wouldn’t be a good idea to drag the CJC to court to answer to this.
REPLY SUBMISSIONS RE APPLICATIONS BY APPELLANT:
THE APPELLANT: Crown Counsel quotes Justice Newbury from her decision, which states that this does not reflect reality. I want to emphasize that that is an opinion. It is not backed by any evidence provided by Crown. It is contrary to all the evidence before the court. Despite being informed because she had the transcript of the hearing before you, which disclosed a failure in the rule of law throughout the legal system from lawyers not complying with court orders, altering court documents, judges protecting lawyers, Law Societies protecting lawyers not complying with court orders and then subsequently funneling evidence away, and the Canadian Judicial Council protecting judges obstructing justice, and the Ministry of Justice not complying with his duty to act in good faith and even respond to a Charter complaint, which can’t be said to be in good faith when you fail to even respond.
So she had that information, and she said that it’s not based in reality. Claiming that the opinion of a judge presented without any evidence to support Justice Newbury’s position that the existence of a vast failure of the justice system of judges and lawyers to comply with their oaths of office does not reflect reality, without addressing matters presented to the court, including a constitutional question on the authority of the court, and that defeats my opinion, my evidence and my argument, and that I have no right to appeal her decision at all, it’s not a decision backed by law. It’s not a decision backed by evidence. It is an opinion.
…she refers to Judge Shaw is a well-respected judge. That’s her opinion, but it’s inconsistent with the opinion of the entire House of Commons that debated Judge Shaw’s removal back in —
THE COURT: On a completely different matter whatsoever.
THE APPELLANT: On a completely different matter.
THE COURT: It really is not relevant to what we’re dealing with here today, sir.
THE APPELLANT: Okay. That’s her opinion.
And then at paragraph 5, she says at the start of the trial and without notice to the Crown, I presented a notice of constitutional question. That is factually incorrect. The notice was provided two weeks prior to both the Federal and the Provincial Crowns. In paragraph 6, she misquotes Judge Sicotte. She says there’s no prospect of success in the Provincial Court, and that’s entirely because he saw himself has having too minor a role in the judiciary and that it would have to go to a different court in order to resolve the issues.
…Justice Newbury ignored all my arguments regarding the Jordan ruling, that none of the delays were my fault and that Covid had no part to play in the delays. She mentioned that you did not deal with this issue in her reasons, which led me having to appeal your decision and the costs involved at the BCCA, although this time Crown paid.
…She says that no evidence was offered of anyone planting evidence or avoiding legitimate review, but the transcript says at trial — this is back in 2007, a judge then abused his power of discretion to protect lawyers committing fraud upon the court by calling on the plaintiff, a woman, to perjure herself to protect her lawyer and preferred her testimony to mine, which was supported by the judicial court record.
THE APPELLANT: She said that no evidence was offered of anyone planting evidence.
THE COURT: Okay. So you need to understand there is a judicial hierarchy, and Madam Justice Newbury is above me in it. I’m not sitting in appeal or judgment of anything that Madam Justice Newbury said.
THE APPELLANT: I’m just referring to what she said …Justice Newbury said that the trial system or the system of justice is working fine and there’s no conspiracy. I’m just pointing out that her decision is an opinion and it’s not based on facts. It’s just an opinion. So how much relevancy do you place on that? I don’t think there’s a lot that we can place on her opinion. It’s just an opinion. It’s not backed by facts. It’s not based on anything but her opinion. And she does say:
para [28] …”it may be assumed that the CJC obtained what evidence it needed to be satisfied that the complaint was not a matter of judicial conduct”…
We want to know that. We can’t assume it. The public has a right to know how the decisions of the Canadian Judicial Council are resolved in the public interest, and if they have Norman Sabourin just signing off letters going dismissed, dismissed, dismissed, Well the public has a right to know that if that’s the procedure. If there is another procedure that’s being followed, well, that would be great to know. It would help in the public’s perception of the fairness of the tribunal as well as trust in our judicial system.
I think that’s my answer to that. To deny me evidence is wrong.
[REASONS FOR JUDGMENT (FIRST APPLICATION)]: DELAY UNTIL APPEAL
[REASONS FOR JUDGMENT (SECOND APPLICATION)]: DENY
THE COURT: …I am seized of the appeal. It would make absolutely no sense for any other judge to hear it at this point — having heard as much as I’ve done.
All right. Thank you very much, gentlemen.
Nelson, B.C.
January 13, 2023 Appeal
SUBMISSIONS ON HIS OWN BEHALF BY THE APPELLANT:
THE APPELLANT: Okay, thank you. I had just had one procedural question, I guess. Yesterday or on Wednesday you mentioned that you were taking assize or taking control of — of this case.
THE COURT: I was seized of the matter…
THE APPELLANT: Now, what would happen if it happened that another judge heard the appeal instead of you?
THE COURT: Well, they couldn’t because I’m seized.
THE APPELLANT: Right. But what would happen if another judge did hear it?
THE COURT: …it should never happen if a judge is seized.
THE APPELLANT: But what happens if it does happen?
THE COURT: I don’t know the answer to that question — because I am not aware of it ever occurring.
THE APPELLANT: I have experienced it happening.
THE COURT: Okay. Well, then you may know better than me.
THE APPELLANT: ..My question would be is if you take an assize over and then another judge takes the case would that verdict then be invalid?
THE COURT: I don’t know the answer to that question, Mr. Holsworth.
THE APPELLANT: Okay. I have made abuse of process arguments at every single hearing and the issue has never been addressed, never responded, always delayed, which Canadians take as an admission of guilt. What larger Charter breach can there be than a failure to respond to the enforcement procedure of the constitution by both the Attorney General and the Crown prosecution, the Minister of Justice and the judiciary; all tasked with protecting the integrity of the rule of law, the constitution, and the public interest. … justice delayed is justice denied, but it is one of the oldest power tactics in the book.
Appearing before the BCCA I said [as read in]: “If you can ignore everything I say, all the evidence that I present, including your official court record, I do not really have a right of appeal because it is at your discretion. My right to appeal was denied.”
At the Supreme Court I stated [as read in]: “I was compelled to attend court several times under threat of imprisonment and each time I requested that the case be dismissed to an abuse of process. However, every time the judge refused to hear the matter in a further abuse of process.”
… At every single hearing of the court that I have been compelled to attend, I have made abuse of process arguments. The court claims that it can provide a fair and impartial trial at the same time as judges claim that they have a discretion to ignore the best evidence that any Canadian can provide, the transcript, and can in their discretion prefer to call upon the plaintiff and request her recollection of what a judge said in court six months prior and prefer that to the transcript in order to protect a lawyer who I …alleged had improperly written a court order when I was not provided the right to approve as to form even when requested the right to do so specifically. Every Canadian that I have ever talked to, including lawyers off the record, and my children even know that it’s wrong and unfair. What perspective are judges using? The correct perspective is that of the public.
[As read in]: “Further, on August 10th, 2022, I attended the Provincial Court in Nakusp for the purposes of setting a date for trial and once again presented arguments — arguments regarding abuse of process. My argument was in response to my allegations of criminal conduct within the justice system. Justice Lyster responded with a threat.
Which it appeared Judge Brown accepted. “Oh, I see.” Page 10, line 13.
However, he ignored that for the purposes of setting a date for trial as he claimed he had to follow orders and had no discretion. Justice Lyster said I had to proceed with a trial. I have to do it. Page 4, line 26.
THE COURT: What’s the threat?
THE APPELLANT: — the threat was that I was faced with the possibility of seven years of jail and up to $200,000 in fines … my understanding of the situation.
At trial in the Provincial Court of Nakusp on October 6th, 2022, I requested procedural advice, including clarification on the case to meet and clarification on the source of judicial power which both of the requests were refused. I requested clarification on the two elements available to me under the precedent for strict liability offences which includes the lack of guilty mind and due diligence.
The mens rea element was stated by Crown and judge to be only available to be judged at the conclusion of the trial. When I attempted to present evidence to establish my innocent mental state, I was not permitted to even speak to the matter. As Justice Dickson stated in Sault Ste. Marie [as read in]:
“There is a generally held revulsion against punishment of the morally innocent and access to justice requires the judiciary and Crown comply with the constraints of the constitution and provide answers to procedural questions so that citizens may know the case to meet.”
R. v. P.M.B., 1994.
Preventing me the ability to obtain the transcript due to my financial state would be a gross injustice. I walked away from the court when they refused all my rights, including the freedom of expression. I am guaranteed a fair trial and what is judged — and that is judged from the public perception. It is my assertion that nobody in that courtroom thought that what was happening was in any sense the application of justice. The reality is that I am not going to be able to pay the fines as is clear from my financial position so this delays just further injustice and further abuse.
At the Supreme Court of B.C. on December 3rd, 2021, before you, I presented argument regarding a failure in the rule of law throughout the legal system and a request for a writ of mandamus to be issued for the Minister of Justice to protect the public and ensure the administration of justice is in compliance with the law. Justice at that time refused to respond judicially to that request by failing to respond at all. Requesting a check on the discretion of a government official is our right in a democracy and the refusal to even respond is possibly obstruction of justice. It is clearly a failure to act judicially to resolve the matter before the court completely and a clear display of bias toward the government and a direct protection of the judge’s interests and also protecting lawyers is a conflict of interest as judges are all drawn from the ranks of law societies. Sending this case back on a mistrial given the facts presented on December 3rd, 2021, is the clearest example of the continuation on the abuse of process which was presented to the court in the U.S.A. v. Cobb case but with significantly less evidence.
My understanding is that the right to appeal to the B.C. Court of Appeal from the B.C. Provincial Court is subject to the absolute and unlimited discretion of the judge in that forum with no right to appeal.
…Crown prosecutors are refusing to respond to the enforcement procedure of the Charter, s. 24(1). They’ve received it. It’s acknowledged in the records. The envelope is in the record. It’s stamped by the Attorney General’s office, but there’s been no further disclosure, no further response, no further communication. Nothing.
…on July 16, 2021, when I was cross-examining CRA officer, Matthew Hopkins, on his perception of the fairness of the trial… [Judge] refused to allow the witness to respond.
I made the same observation on appeal before you in the Supreme Court on December 3rd, 2021, that I could ask any member of the public as to the fairness and the impartiality of a trial where judges maintain a right to ignore all the evidence that a Canadian could provide up to and including the official record of trial, the transcript, used for the purpose of correcting a court order to properly reflect the order of the court. But instead judges maintain that they can legitimately call upon the plaintiff to refute the contents of the transcript and then knowing that her testimony is perjury prefer that lie to the transcript, improperly protecting a lawyer committing fraud, and that is the current acceptable standard of conduct in the decidedly partial opinion of Canadian judges. Ask any Canadian and they would disagree. When I have asked members of the public, they tell me that it sounds like what they have heard about justice in Russia or China or some third world country. But I understand from the evidence before the court the judges and lawyers have a entirely different perspective to that of the Canadian people, one that puts their opinion at a higher level than all the evidence that any Canadian could provide.
I bring attention to the hearing before Judge Brown on August 10th, 2022, at Tab 3, page 1, line 39, I say [as read in]: “A constitutional question was also presented before this court that has never been responded to. It hasn’t been responded to at the Provincial Court and it hasn’t been responded to at the B.C. Supreme Court. And it will be one of the questions that I’ll be asking at the B.C. Court of Appeal.”
Crown counsel at the Court of Appeal has stated in writing that he will not be responding to the constitutional question. A constitutional question on the constitutionality of the Crown refusing to respond to a constitutional question was served and presented before the court, but no response was ever received…
The constitutional question is to do with the Minister of Justice not responding to the enforcement procedure of the Charter. Crown is in breach of the Charter. We still want to enforce the law against you, but refusing to have the law enforced against themselves. A failure in the rule of law and admitted in writing by Crown prosecution.
…It kind of makes the whole purpose of the act irrelevant if Crown can just ignore constitutional questions.
…Justice Newbury’s decision at the B.C. Court of Appeal is not a decision that the law or evidence or any reasoning as could be justified in a free and democratic country. It is an opinion and it contradicts the law.
…I had communicated with the B.C. Law Society about lawyers not complying with court orders and altering court documents and the Law Society decided to remove evidence from their file and not provide written reasons and not justify how they were protecting the public. I also have correspondence that I brought with me from [the then AG] Wally Oppal that I had at the time which detailed my complaint to him about the conduct of the B.C. Law Society.
However, when I wrote to the Canadian Judicial Council and requested that the author of the letter… claiming that judges can prefer the voice of the plaintiff to the transcript, be investigated by the Canadian Judicial Council. Norman Sabourin declared that … an abuse of process … requesting review of the Canadian Judicial’s conduct was abusive? That was his opinion and he refused to respond further … he’s saying that you can’t complain about the Canadian Judicial Council’s conduct. If that was an abuse of process then this is certainly abuse of process because it is abusive to the public … whom you purport to serve … this tribunal, as I have proven, provides no rights to the public, either in this forum or in the complaint system at the Canadian Judicial Council. The Public has a right to complain and that is the entire rights that Canadians have before the Canadian Judicial Council. They can complain and the Canadian Judicial Council may investigate entirely at their discretion which is apparently unlimited once again.
… The judiciary is claiming that they can provide a fair and impartial trial complying with the constitutional requirements of fundamental justice at the same time as declaring that they may ignore all the evidence that any Canadian can provide up to and including the official court record. Refusing judicial discretion to be checked legitimately as appropriate in a free and democratic country and the legitimate body to do that, to check on the discretion, would be Parliament. The question of the authority of the jurisdiction of the court was asked at the Provincial Court … but no response was ever provided.
… [As read in]: “So the court responded: All right. These are the same issues you received — you raised at the first trial.
… I served the Attorney General with the enforcement procedure of the Charter requesting that this matter be heard by Parliament because it relates to matters that judges simply are unable to administer properly.
And the court responds: You’re saying judges are unable to administer the Charter properly?
And I continue: Because it involves a conflict of interest. No one can be a judge in their own cause and Parliament is the only body that can provide the Charter remedy necessary so this is really not the correct tribunal to hear the matter and that’s really the problem that we’re having here
And the court responded: Didn’t you raise this at trial level before?
And I responded: It has never been answered.
And the court said: Yeah, but you’ve raised it before.”
Crown counsel has refused…for their discretion to be checked for conflict of interest and failed to follow the procedures outlined in the…PPSC.
Questions were asked of the trial judge regarding judicial independence as there are ongoing concerns in that regard. There seems to be confusion on the part of many as to whom judicial independence serves, the public or the judiciary. However, the answer is very clear. Judicial independence exists for the benefit of the public whom the judiciary serve. And I quote from the Canadian Judicial Council. [As read in]: “The [rules to] determine for the judging of judicial conduct are fairly straightforward … from the Ministry of Justice report on the Canadian Judicial Council from 2016.
”is the conduct allegedly so manifestly and profoundly destructive of the concept of impartiality, integrity, and the independence of the judicial role that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office and judicial independence exists for the benefit of the judge not the judges. It is therefore to be assessed from the perspective of the reasonable observer and in light of the public interest it is meant to serve.”
Canadians know that a judge that cannot see the correct decision in the situation of transcript versus calling upon the plaintiff is not a judge. If a judge cannot judge which evidence is preferred when presented with a transcript then how can we possibly trust judges with our rights, our finances, our lives, and our children. The entire Charter becomes meaningless. The guarantee of a fair and impartial trial, our right to appeal become arbitrary decisions and the foundation of justice [destroyed]
“A basic requirement for maintaining public confidence in the legal system is the court’s duty to provide a reasoned judgment for its decisions.”
English v. Henry Remhold
My point is is that Justice Newbury has decided these on her opinion and I don’t have any right to appeal her decision so every decision in the Provincial Court is subject to the arbitrary decision of the appeal court in the B.C. Court of Appeal and they — in the right of appeal and they can do whatever they want and there’s nothing you can do about it.
[As read in]: “Impartiality is central to the independence of the individual judge. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away [thinking] the judge was biased.”
Metropolitan Properties Limited 1969
… my position is that Justice Newbury’s BCCA ruling dispensed an opinion which was not backed by evidence or argument and just simply plain this does not reflect reality in paragraph 29 of her reasons despite having been informed of the problems facing the administration of justice because the transcript that was from you was before her because Crown counsel paid for it to be there… As well as the contents of the appeal document which include the fact that Justice Lyster refused to rule on the writ of mandamus improperly protecting lawyers and judges obstructing justice in a continuation of the obstruction of justice which is obviously an abuse of process. Claiming that the opinion of a judge presented … without any evidence to support Justice Newbury’s position that the existence of a vast failure of the justice system and that judges and lawyers to comply with their oaths of office and codes of ethics seem to indicate a disturbing worldview rife with conspiracies and corruption this does not reflect reality. But she didn’t address any of the matters presented in the court, including a constitutional question on the authority of the court and her opinion beats my opinion, my evidence, and my arguments. I say that’s completely arbitrary and it provides….no right to appeal her decision. It makes the court system completely irrelevant to Canadians as far as a method of communication. If the court can simply say “I do not find that there is any realistic prospect of success to your Charter argument with respect to what has been filed before this court in terms of the charges that are before you today”, no matter what the facts are then the application of the Charter is purely an arbitrary, subjective, almost imaginary device only useful to a judge determining whether they like someone or not or perhaps if they paid enough. Or I don’t know what the rational decision is made upon because they’re not provided to me.
Justice Newbury in paragraph 11 ignored all my arguments regarding a Jordan ruling, that the none of the delays were my fault and that COVID had no part to play in the delays…
…in paragraph 16 …she says: “No evidence was offered of anyone planting evidence or avoiding legitimate review.
But in the B.C. Court of Appeal transcript it says…[as read in]:
“A judge that abused his power of discretion to protect lawyers committing fraud upon the court by calling on the plaintiff, a woman, to perjure herself to protect her lawyer and preferred her testimony to mine which was supported by the official court record, the transcript, of a hearing that happened six months ago and the judge preferred the woman’s voice.”
So there was evidence of evidence being planted before the court and as far as avoiding legitimate review you refused to rule on the writ of mandamus, Justice Newbury refused to rule or make any rational decision made on that whatsoever
…in the transcript I say [as read in]: “I pointed this out in the Nelson Supreme Court along with arguments for a writ of mandamus for the Minister of Justice to properly resolve the issues before the court. I pointed out the public service that I was performing, the complete absence of a guilty mind, and that none of the purposes of sentences could be legitimately exercised by the court. Crown has not disputed any of the facts except to claim that my life experiences are irrelevant. Crown has not responded to any request for evidence, provided zero argument to defend the failure to respond to the enforcement procedure of the Charter. As a matter of law, complaining that my perspective is irrelevant and the only perspective is the judicial one is using the incorrect perspective.”
…“A basic requirement for maintaining public confidence in the legal system is the court’s duty to provide a reasoned judgment for its decisions.”
Justice Newbury did not do that. She goes on in paragraph 22 of her reasons: “I am not aware of any authority that would support Mr. Holsworth’s argument to the contrary.”
Despite the fact that I provided these authorities … they’re included in the transcript.
“Using the Income Tax Act as a method of exposing abuses of the rule of law is a time honoured method of protest used by Robin Hood, Henry David Thoreau, Ghandi, the Women’s Tax Resistance, Jesus Christ, Magna Carta, and also resulted in the unfortunate situation of the French and American Revolutions.”
In paragraph 26 Justice Newbury confirmed in her ruling…quoting from Sharpe v. Wakefield stating that Lord Bramwell said:
“when it is said that something is to be done . . . according to the rule of [reason] and justice . . ., not according to private opinion . . .; according to the law and not humor. It is to be, not arbitrary, vague, and fanciful, but legal and regular. . . . must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself“
In paragraph 179 of that decision…
“Consistent with this principle, a judge’s exercise of discretion is reviewable on appeal where it is shown the judge gave no weight or gave “no sufficient” weight to a relevant consideration or acted on a wrong principle.”
She didn’t review the writ of mandamus at all.
“. . . it may be assumed that the CJC obtained what evidence it needed to be satisfied that complaint was not a matter of judicial conduct, but rather one of the exercise of judicial discretion”
…We do not know anything about the process the CJC followed in an investigation as all evidence has been denied to me despite Freedom of Information requests, transcript requests, audio requests, and applications to court requesting this. I will follow up on the issue of obtaining third party records. But… we know that they did not order the transcript because the transcript is not in the file so they did not do that… in their investigation.
THE COURT: I thought you didn’t know it was in the CJC file.
THE APPELLANT: Well, we know that they didn’t order the transcript because there would be a record if they had ordered the transcript because the transcript service would know that they had transcribed it.
THE COURT: Oh, I see what you’re saying.
THE APPELLANT: In paragraph 29 of her decisions she continues: “. . . his leap from the fact that his evidence — [she decided to ignore the fact that I was talking about the transcript.] — was not accepted in 2006 to the existence of a vast failure of the justice system and . . . the judges and lawyers to comply with their oaths of office and codes of ethics [seem] to indicate a disturbing world-view rife with conspiracies and corruption. This does not reflect reality.”
But that’s despite the evidence provided in the transcript and the further evidence provided to Newbury… decision does not get the reasonable standards set out in Valvilov and the Canada Post Corporation v. Union of Postal Workers:
“A reasonable decision is one that is based on internally coherent and rational chain of analysis . . . that is justified in relation to the facts and law that constrain the decision maker.”
“The standard of review remains correctness”, the facts are clear and not in dispute in this case.
THE COURT: …I am not sitting in appeal of Madam Justice — That’s not my job.
THE APPELLANT: I do understand that. I’m just presenting that as far as pointing out that —
THE COURT: …Madam Justice Newbury’s decision is just further evidence of what you see as illegitimacy of the judicial system? Would that be fair?
THE APPELLANT: That’s…a good summary of it…the discretion is unreviewable and…subject to that arbitrary system… it’s set up on purpose that way, but I am just bringing the court’s attention to it because I’m not sure if…it has been presented before. But it doesn’t comply with the Charter… It doesn’t provide fundamental justice because it does result in the problem that was addressed by Vanguard Coatings v. M.N.R., 1986.
“If this formulation be so decent and reasonable as the Minister’s counsel say it is, why Parliament could provide that all Canadians should subject their lives and livelihood to some chosen official who finds [themselves] in [a] paramount as a — a conflict of official interest as does the [Ministry] of National Revenue when determining that taxpayers should really contribute more revenue to the Crown”
And I also understand that all decisions from the Supreme Court are arbitrary as they end up with the arbitrary decision of the Supreme Court of Canada…
THE COURT: Well, there has to be a final sort of appeal somewhere.
THE APPELLANT: I do agree, but —
THE COURT: And you would say it’s Parliament.
THE APPELLANT: Exactly.
THE COURT: I understand.
THE APPELLANT: … This is Justice Newbury. [As read in]: “Sometimes judges are wrong. You know that, that’s why we have appeal”
R. v. Askov in 1990. “[It] leads to community[‘s] frustration with the judicial system and eventually to a feeling of contempt for court [proceedings].”
THE APPELLANT: I have the due diligence argument, but I’m going to make the argument…the lack of guilty mind because from my perspective that is my argument. The due diligence argument is one that is being foisted on me. I don’t really want to make it, but…I fulfill that one as well….the lack of a guilty mind is firmly established by the full page ad that was taken on July 1st, Canada Day, 2021, proceeding the trial date before Judge Sicotte on July 16, 2021, as well as the extensive reporting of this matter online and subsequent newspaper reports. The communications consistently demonstrates the process nature of the matter of the very serious failures of the Crown to comply with the very serious Charter breaches and extremely serious refusals to comply with the rule of law. I suggested this in my communications with Justice Lyster in Nelson on December 3rd, 2021, regarding purposes of sentencing not being applicable with these facts before the court. The communications with the RCMP, the Attorney General’s office, the Prime Minister’s office and Parliament, all demonstrate that my purpose has always been in the public interest in an open and accountable government with a problem of judiciary claiming absolute power and refusing to allow the legitimate check on that power…
…there’s two reasons why I took the actions I did….One is I had no financial capacity to deal with it. The other one was that I was protesting what I view as an abuse of power and I was taking the only steps that were left available to me to take.
THE COURT: So essentially an act of civil disobedience?
THE APPELLANT: … before Justice Newbury, we were talking about the idea that s. 238 was unconstitutional and she was asking me why I felt that way “it’s because it’s an absolute liability offence with a prison term attached.” And she went on, “…but the judge said no, it’s a strict liability. I can never remember which is which… If you show due diligence then you can’t be found guilty”
I said: Due diligence or that he reasonably believed in a mistaken set of facts which if true would render the act or omission or commission innocent.
She goes on: Okay.
And so I go on: No. I came here with a protest. And then I’m saying that you ignored the protest argument.
And the court goes: Okay.
And I say: It has been from time immemorial been part of our system of laws that the innocent not be punished.
And the court goes on: So she ignored your arguments about mandamus?
And the reply I say: Yeah. And the Jordan principle and anything else she didn’t really care to hear. And in regard to the Jordan rule, my understanding is in R. v. Woolsey in 2021 before the B.C. Court of Appeal, 439, paragraph 86, re the Jordan delay they state, “It was incumbent on both the judge and the Crown counsel to raise the issue of delay.” It’s not entirely my responsibility…
in R. v. Jordan of course it says: “…only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish sufficient excuse for the prolonged delay.”
And I want to go on to demonstrate the legitimate steps I have taken to bring this attention to the proper authorities also demonstrates a lack of guilty mind in my conduct and instead demonstrates respect for proper procedures, democratic responsibilities —
THE COURT: I won’t be making a finding on your appeal as to whether you had a guilty mind or not, will I?
THE APPELLANT: Well, it’s an element of the crime that you’re alleging that —
THE COURT: …is your argument that the Honourable Judge Brown erred in failing to consider it?
THE APPELLANT: Really didn’t even give me an opportunity to present argument on the matter me not having a guilty mind.
THE COURT: Okay.
THE APPELLANT: That’s my argument. I was refused the right to speak to present my case. I asked for the freedom of expression and it was denied.
…When a lawyer committed fraud in a court order, I attempted to communicate with the lawyer. I provided the clerk’s notes for him to correct it. He refused to correct it. I presented the transcript to correct the fraud to the court. The judge’s conduct sought to cover up the fraud. The complaint was denied by the Canadian Judicial Council. The follow-ups were denied. Reports to the Law Societies were made, but they refused to comply with their statutory duties to even provide written decisions. The Ombudsman, I attempted to get written reasons from the Law Society, but they gave up after a year. Questions as to how the Law Society is protecting the public was refused by the Law Society and the Attorney General of B.C., Wally Oppal. I served the enforcement procedure of the Charter on the Minister of Justice as laid out for serving notice to the Crown. No response was received. I made a complaint to the UN Human Rights Tribunal. I communicated with the Prime Minister’s office trying to get the Minister of Justice to respond to the enforcement procedure. It did lead to the Minister of Justice responding, but he made false and misleading statements. I communicated back to the Prime Minister’s office this problem and they forwarded the problem on to Marco Mendicino acknowledging that there’s a public safety concern. I communicated with the RCMP National Division Intake Headquarters which tasked with investigating corruption amongst federal MPs and they refused to investigate and threatened to destroy evidence. I communicated the problem to the Parliamentary Ethics Commissioner and they have accepted the complaint, but when I…attempt to communicate with them I do not get a further response. I have come to the court here utilizing the most legitimate method of protest possible in this case, the Income Tax Act.
I was involved with a parliamentary petition on the Judge’s Act and which was sponsored by the Green Party at the time, MP Jenica Atwin. However, she crossed the floor to the Liberal party a month after the petition was — was finished and the petition was never presented. I presented her with my full argument. She was fully informed… I subsequently attempted to run as a Green Party candidate and attempted to run against David Lametti in Laval…
At the Provincial Court before Justice Sicotte and all of the communications beforehand were all about respect for procedure and constitutionality. I came to the Supreme Court and requested the writ of mandamus which is the appropriate next level and I appealed your failure to respond to that to the Court of Appeal which is the correct procedure to follow, but I was denied at that forum. In 2021, I submitted a complaint to the Parliamentary Committee on Justice and Human Rights in Parliament, but … one of the clerks at that entity deleted the submission. I subsequently submitted a complaint to the Parliamentary Committee on the Status of Women explaining the problems that men not having right to the trial transcript, how that could possibly lead to frustrations with the justice system and a feeling of unfairness. They did accept that submission which I pretty much was trying to figure out why the Parliamentary Committee on Justice and Human Rights didn’t do the same.
…in 2022 when … resubmitted the complaint to the Justice Committee they did accept because I was pretty forceful in the way that I put it…it was before all the members of the Parliamentary Committee on Justice and Human Rights as they were debating the Judge’s Act and I had presented them with the entire problems that I understood are within the Judge’s Act. However, it was not brought up to the attention of the committee and it was ignored completely and the Judge’s Act was passed in the Parliament unanimously with that brief before them.
I did write a letter to the Governor General regarding her duties for the minority government a month prior to the NDP/Liberal confidence agreement. I never received a response back from my letter to the Governor General. I have communicated in the past before and I have received responses. The absence of that response is troubling. Follow-up communications were ignored.
I did communicate with the Minister of Justice. I did communicate with the Prime Minister’s office on constitutional matters. I did submit the complaint to the Emergencies Act and interestingly enough they did finally respond acknowledging receipt of that on December 26th, 2022. I submitted also the evidence to the various committees, the parliamentary committees on the Emergency Act and Public Safety. And I have emailed the official opposition and the shadow Minister of Justice and my Member of Parliament, my nearest local Member of Parliament who is not a Liberal party. And also all the other NDPs sitting on the committee of Justice and Human Rights. And I also notified CSIS. I wrote registered letters to the Premier’s of the Provinces and they received them early in December, a week prior to their request for the Prime Minister Trudeau to meet with them regarding healthcare funding. And then I have also submitted the evidence to the Senate Committee on Justice and Constitutional affairs. I’ve got a copy here for you if you would like to have a copy of that.
THE COURT: I — I don’t think I — I — I need copies of these various pieces of correspondence. I am understanding you to be saying you have taken every possible route that you could to raise your concerns…
THE APPELLANT: That’s correct.
THE COURT: Okay. I need you to be conscious of the time, Mr. Holsworth.
THE APPELLANT: Okay. How much time do I have?
THE COURT: Seven minutes.
THE APPELLANT: Seven minutes. Okay. I have not heard a single defence to the…conduct of either lawyers, judges or cabinet ministers involved. I have heard, however, from the people of Canada. So, in regards to my argument regarding due diligence and financial capacity to pay, I have presented some of this argument before on Wednesday. So I talked about in Holsworth v.Holsworth, 2007, Judge Shaw decided that Kootenay Experience Limited had a share value of zero but for the purposes of divorce a value of $295,000 and also the fact that I was saddled with a debt and had no funds… Court has on numerous occasions admitted to my lack of funds… One of the members of the community…offered to pay for transcripts and other financial support that I would need to help expose the lack of accountability in the judiciary. I am very thankful for the support of the people. It makes this possible for me. I do have that support because my conduct is in the public interest…I have been thinking a great deal about reform possibilities and I have been trying to communicate those. Are we going to…create solutions or attempt to punish me because you don’t like to hear of my experiences that I’ve had in the justice system? I am a victim of — of abuse. I have a right to face my abuser in a fair and impartial tribunal, but as I have made very clear this is not it. I have noted that there has been other people, not just myself, that have similar concerns.
[As read in]: “I am attempting to communicate the problems facing the legal system from the perspective of the public. It would be an interesting explanation to hear how this is any different from the story of a big strong man beating up or raping a weak vulnerable woman or a drunk woman, something that the legal system takes very seriously.”
This is a huge problem and it’s not going to go away, but I am standing here offering to help given my extensive experience as a member of public, the most important element of the legal system and my perspective continually is deemed irrelevant. That conduct by the judiciary is decidedly undemocratic and has not been justified at all. You all swear an oath to work to improve the justice system and that action could only be seen as a sincere effort to restore the public trust in the administration of justice.
SUBMISSIONS FOR CROWN/RESPONDENT BY CNSL M. ERINA:
CNSL M. ERINA: When Mr. Holsworth advances seven grounds of appeal and according to the Crown’s submission none have merit, he has not demonstrated that there is an error of law or a miscarriage of justice that would require that the verdicts be set aside. And before I get started with the submissions I think it’s important to say — in fact, it’s stating the obvious that this, of course, is an appeal from the decision of Judge Brown. It’s not a trial of the criminal justice system. Yet, of course, that’s how Mr. Holsworth wants to use it. And by his own admission, of course, it’s a political protest. It’s a platform that he is using in part or in large measure to advance his grievances with the criminal justice system…
THE COURT: I think it’s broader than the criminal justice system. I think it would certainly include the family law system.
CNSL M. ERINA: I think the justice system generally, that’s — that’s correct. And he sees things through a particular lens and that, of course, is coloured in his perception of the entire justice system and that is coloured, in my submission, his grounds of appeal, his conduct at the trial, his conduct today in appeal, and all the proceedings previously. Much of which is completely irrelevant.
… I briefly described what occurred at the fix date on August 10th before Judge Brown because that’s relevant to one of Mr. Holsworth’s grounds of appeal….I just want to give a brief just high level overview…Mr. Holsworth was present for the Charter aspect and he wasn’t present for the trial proper. When Justice Brown ruled against him, Mr. Holsworth I think fair to say was upset, had some choice words which I won’t repeat. They’re in the transcript. Left the courthouse not to return. The Crown applied to proceed with the trial on an ex parte basis. That application was granted. The trial proper proceeded… And after the Crown’s submissions on the trial proper Judge Brown carefully considered the evidence and ultimately found Mr. Holsworth guilty…
I am going to now turn to the grounds of appeal. Now, with the greatest respect Mr. Holsworth trying to understand some of the grounds of appeal is a bit difficult and made it a bit more challenging by the fact that Mr. Holsworth didn’t submit a statement of argument which of course he’s not required to do, but, of course, a statement of argument would amplify or perhaps clarify so I have done my best to reframe what I believe Mr. Holsworth’s complaints are on each of the seven grounds of appeal and I have reframed them and as set out in the Crown’s factum.
…the most important issue before the court on this appeal because as I am going to try and show Mr. Holsworth’s Charter application … encompasses his grievances, his various manifestations of it, and the trial judge exercised, in my submission, his discretion and exercised it properly in dismissing summarily the application because it had not reasonable prospects of success. And the standard of review is deferential when exercise the discretion in that manner and, in my submission, the trial judge made no error.
So these are the complaints right — just right at the gate; judges and lawyers have engaged in poor behaviour, sharp practices, the Law Society of British Columbia has engaged in improper conduct, lawyers unable to represent Mr. Holsworth to protect his rights, there’s a conflict in the ethical duties, lawyers were in breach of the Charter, the Crown was in breach of the Charter for failing to comply with the enforcement procedure of the Charter. And I pause, that of course has come up many times in Mr. Holsworth’s submissions. And I believe what he’s referring to is the Crown not responding to his notification of Constitutional Question Act which ultimately was the subject…of the Charter application….Attorney General…not complying with the enforcement procedure of the Charter.
Mr. Holsworth made his submissions and right from the get-go he raises that word political protest… “This is my political protest. Everyone deems my life experiences irrelevant, but it is relevant.”
And he talks about there being insufficient procedure safeguards so that he can get a fair trial. In my submission that also supports the idea that what this Charter argument is about are his grievances. And he goes on to, I think, fairly described in the Crown factum was a diatribe with a litany of more complaints which I have summarized, and I won’t repeat…decisions are arbitrary. He questions the authority of the Court of Appeal stating it’s not operating legitimately according to the Charter.
And interestingly he states [as read in]: “I have no rights. You’re going to rule against me. This process is arbitrary and my evidence will be disregarded.”
…trial judge found in the judgment that what Mr. Holsworth’s Charter complaint was essentially the same one that he made at the first trial…I am bound by their decisions…I conclude there is no reasonable prospect of success.
Because they’re irrelevant. In my submission, there is no error in the trial judge coming to that decision and he goes on to dismiss them summarily.
It was a proper exercise of the trial judge’s, again, screening function as set out in the Cody case; essentially the same reasoning that Your Justice stated in the first summary appeal with respect to how Mr. Holsworth’s Charter application was dealt with by Judge Sicotte. Exactly the same.
…The defence of due diligence is well known to the law, take all reasonable steps to comply. And so there’s no basis to suggest Mr. Holsworth was not provided with a proper explanation. Moreover, the fact that Mr. Holsworth left the courtroom before the trial proper started hardly puts him in a position to complain that he wasn’t given the proper opportunity to address his guilty mind defence however he wished to do so. He left because he didn’t like what happened in the Charter argument. … the trial judge probably would have given him another explanation of due diligence in the trial proper. Mr. Holsworth didn’t stick around. And as far as the offence being one of due diligence, one of the elements is not a guilty mind. The Crown proves the actus reus; identity, jurisdiction, the fact that the notice of requirement were served, the fact that they weren’t complied with. That is the Crown’s case. And then if the Crown establishes its case beyond a reasonable doubt Mr. Holsworth has the option of raising a defence of due diligence or he can demonstrate that the amount of time given wasn’t adequate or…for an [im]proper purpose…
I did note the trial judge … and this is an error with the greatest of respect — stated that [as read in]: “… the Crown must prove all parts of the offence” — That’s true. But then said: “and that you intended to commit them.” That’s not correct. But nothing in my submission turns on that because when one looks at the trial judge’s reasons in the trial proper there was no test for mens rea that was employed. And, in fact, that would work to Mr. Holsworth’s advantage anyway because it would put a higher burden on the Crown to have to prove mens rea which it doesn’t have to. So nothing turns on the appeal on that statement.
…this case is a little bit different because to the extent that Mr. Holsworth’s abuse applications are based on completely irrelevant matters…Mr. Holsworth argues it’s an abuse of process to have fixed a date and heard the trial in the face of overwhelming evidence of abuse of process. Well, there is no overwhelming abuse of process. That is his grievances. They’re irrelevant. And it’s also, at least with respect to the suggestion it was an abuse to hold the trial. Justice Newbury’s decision is the complete answer. Justice Newbury ruled that … the new trials was correct. No error on summary appeal. The trial had to be heard. It’s not open for Mr. Holsworth to complain about that. That can’t be an abuse. All these issues were raised before Justice Newbury who dismissed them and I won’t repeat her quote at the end, but it’s certainly applies here.
…is it conduct that brings into question the integrity of the justice system, hardly. There is no basis to this ground of appeal.
…there is no issue with jurisdiction. As I have stated in the factum, Mr. Holsworth was before a Provincial Court judge on a summary conviction offence in a Provincial Court. There is no evidence, and I can’t imagine how there would be, to suggest anything else. Judge Brown had full jurisdiction over this offence by virtue of the Criminal Code and full jurisdiction over Mr. Holsworth the person to try this case and there is no merit whatsoever…
…Mr. Holsworth could complain all he wants about the Court of Appeal to the trial judge, but the trial judge has no power to do anything… The Court of Appeal held Your Justice’s ruling that there be a new trial. That is the end of the matter. Mr. Holsworth can be upset as much as he wants about what the Court of Appeal has to say, but the Provincial Court has no jurisdiction to not hear his trial or to do otherwise.
…Mr. Holsworth appears to challenge the…jurisdiction of the Crown to prosecute because of the complaint that the Crown hasn’t responded to his Charter application. … this has no merit…Federal Crown counsel, represented himself as such. There’s no basis to suggest he wasn’t duly appointed to be Federal Crown and … full power to prosecute this… the argument that the Crown never responded, that’s not entirely true. Of course, the Crown did respond, but the response is, it’s not relevant. That’s what the Crown’s position was at trial. That’s what the Crown’s position was on appeal. It’s what the Crown’s position was on the leave for appeal to Court of Appeal and now at the latest trial and here again. That’s a response. It’s just not the response that Mr. Holsworth wants to hear. I think what Mr. Holsworth means is he wants the Crown to actually carry out the — fix the system as he would like to see it fixed and there’s no obligation on the Crown to do that. The obligation on the Crown is to litigate issues that are relevant to the appeal.
REPLY SUBMISSIONS ON HIS OWN BEHALF BY THE APPELLANT:
Obligation of the Crown is to comply with fundamental justice and to comply with the Charter and my assertion is… not complying with fundamental justice and…to provide fair and impartial trial… as Justice Sicotte… said it’s a very large argument. I agree it’s a very large argument.
It’s not that I feel like Judge Brown did me wrong or something like that… Judge Sicotte dealt with the issue to the best of his ability so did Judge Brown… I did ask… for clarification on the elements that I was to defend and my understanding from Justice Newbury is that I was entitled to two elements, due diligence and the lack of a guilty mind… I tried to present argument regarding my protest nature to establish that lack of guilty mind, but I was refused… that is why I left the room because… I wasn’t being listened to. If I wasn’t going to be listened to at the initial stages, at the Charter stage, then when would I be listened to? … In order to assert that, I had to leave.
… the old precedent from the Bible, “Let he without sin cast the first stone.”
Crown is not entitled to discipline the public when they are not in compliance with the law….you have a background yourself in religious studies… one of the oldest precedents in the book, along with “do unto others as you would have them do unto you.”
How would anyone in this courtroom feel if they were subject to the abuse that I’ve been subjected to in the legal system. Would you feel like just laying down and complying with whatever was said or would you feel like you needed to stand up and say I believe this is wrong. I believe this wrong and I am taking a stand as is important for every Canadian to stand to protect the Charter. The Charter has no power in itself unless someone stands and says this is wrong.
…for transparency … on my own conduct, I will note that I have complied with the Income Tax Act. I have submitted all the income tax statements that were … not supplied before. They’re all up to date. The evidence is all before CRA. … This was not an issue of trying to avoid taxes or evade taxes. That was definitely not the purpose behind it… I made reference to the fact that I had been subjected to appeals by the CRA in the past. Well, for many, many years which caused me a lot of financial distress… but … it’s my obligation as a citizen. However… the conduct of the police and all the Public Service, if I don’t have a right to appeal and a fair and impartial trial, then … the Public Service comes into question… how do I respond or behave with an administration … that feels they have a right to ignore all the evidence that I can provide? How do I defend myself against errors in the Public Service if I can’t appeal that to a court and to resolve the issue and feel confident in that that my evidence will be listened to then I don’t have any rights in dealing with the Public Service? And that’s definitely the case that I feel is that CRA makes a ruling; well, what do I do with it? If it’s wrong, I can’t appeal to a court because the courts have already said that they can ignore every evidence that I can possibly provide… the entire Public Service is led by the court system so the accountability of the Public Service is compromised by the Canadian Judicial Councils claiming that judges can ignore all the evidence. It’s a massive problem.
THE APPELLANT: …if I can prove that the due diligence or the lack of guilty mind before the trial then the trial court’s evidence, all the rest of it is irrelevant.
THE COURT: Doesn’t that have the effect of shifting the burden onto you when the burden is on the Crown? It would be very odd for the accused to have to go first in a criminal case or quasi criminal case.
THE APPELLANT: … that’s true, but … going ahead with that case when I was trying to say… I didn’t have a guilty mind at all… Crown’s argument, in my submission, is irrelevant because… I exercised due diligence, but … I want to bring up the lack of guilty mind first because that is my right.
THE COURT: Okay. And you say Judge Brown didn’t allow you to do that —
THE APPELLANT: Right.
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Conclusion
According to the public prosecutor the APPEAL was DENIED but when asked for evidence to prove that – the written decision from the Appeal Judge – nothing has been provided as an answer.
However in an interesting twist in the comparison of the discretion of the judge and the prosecution a second identical case ( except against me personally, not a company ) that was scheduled for trial two weeks later was dropped , “in the public interest”. Requests for further details on the elements of the public interest engaged were denied.
The standard for finding guilt in a criminal trial is “beyond a reasonable doubt”
The standard of review at the Court of Appeal is reasonableness and correctness. Where an application involves issues of procedural fairness, no standard of review analysis is necessary.
The standard for the prosecution is “a reasonable prospect of conviction”
The legal definition of reasonable in Canada is the idea of having thorough, fair and sensible judgement and entails the act of being just, rational, appropriate, ordinary or usual in the circumstances.
The reasonable person is a hypothetical person used as a legal standard to determine whether the conduct of the parties in a case was proper in the circumstances. It is the standard of conduct adopted by persons of ordinary intelligence and prudence.
You dont have to be a lawyer or a judge to have a legal opinion. You just have to be reasonable. The problem confronting the legal system is why is there such a massive disconnect between the perception of what is reasonable from the perspective of the police, prosecution, judiciary and the general public whom they all purport to serve? Why they refuse for the limits of their discretion and compliance with the Charter to be legitimately checked as is appropriate in a free and democratic country in accordance with the Constitution?
“Judge not lest ye be judged”
We are equal under the law in a democracy and all are subject to the law
As Chief Justice of the SCC of Canada said in support of the Judiciary’s request to amend the Judges Act “It was not possible for the public to have trust”.
The question the Public has since nothing substantial has changed in the process as a result of the amended Judges Act,
How can Canadians have trust in the Judiciary?
My suggestions for reform of the Judicial Conduct Process
This is an edited version of the transcript to improve readability and remove irrelevancies but in the interest of transparency I include the official transcripts. (jan 11) (jan 13)