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Human Rights Complaint and Non-Criminal Responsibility Before Trial Unconstitutional 24(1) and 52(1) - CNN iReport (article link)

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A human rights complaint from a human rights defender to the OHCHR Petition Team and Special Rapporteurs on the situation of human rights defenders and freedom of expression, and an Application to the Superior Court of Canada to declare the use of non-criminal responsibility before trial unconstitutional.

 

Psychological Harassment Information Association
http://www.psychologicalharassment.ca

Special Rapporteur on freedom of expression, situation of human rights defenders, Petitions Team
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10
Switzerland
Fax: 41 22 917 9006

6 August 2012

The Human Rights Complaint:

[1] The Petitioner is a human rights defender, the creator and founder of the only English website on psychological harassment, which involves workplace mobbing, bullying, sexual harassment, and discrimination;

[2] The Petitioner wrote and published a Mobbing Research article on CNN iReport, and shared it on the Facebook CSPAN discussion area;

[3] Following this publication on February 21, 2011 the Petitioner was arrested and incarcerated. The criminal allegation was “uttering threats towards women” on Facebook;

[4] The article involves mobbing, the use of homelessness as weapon, and people “hitting back” by committing terrible crimes. It involves the possibility that someone else wrote a suicide note to hide the cause of a terrible crime by using a stereotype, an Arab father, which is linked to discrimination. At the time of Marc Lepine’s terrible crime several years ago the media focused on his Arab father while others focused on homelessness;

[5] The criminal proceedings against the Petitioner involves a stereotype and discrimination, mental illness, the use of non-criminal responsibility before trial assessment orders that could make the false allegations valid, circumvent the right to a trial, and circumvent the presentation of charter violation issues at trial such as the freedom of expression, entering and searching a dwelling home without a warrant, seizing private computers and information without a warrant, and making this seizure legal;

[6] A previous article was written and published on February 13, 2011 with most of the same information, a list of terrible crimes that have different links to financial loss and homelessness, people “hitting back” by committing terrible crimes. The Marc Lepine massacre crime stands out because it is the only one that the perpetrator wrote a suicide note stating in it that this was not the cause of his terrible crime;

[7] Several charter violations were presented at trial on June 4, 2012 and were all dismissed, which includes the freedom of expression;

[8] The Petitioner was acquitted at trial on June 4, 2012 after long and delayed criminal proceedings that lasted about 16 months, were costly, and created a large financial debt.;

[9] The dismissal of all the charter violation issues presented at trial by the Lower Court Judge may be linked to the civil lawsuit that followed the acquittal to recover the financial loss and damages;

[10] The Petitioner claims that throughout these criminal proceedings he was assaulted by radiation technology and powerful radar in his own home from neighboring homes, in public places, and in the court house too; and that these continue during the civil lawsuit period of time along with mounting pressure to discontinue the civil lawsuit;

[11] The powerful radar type of weapon assaults focused on the shins linked to the shin bone marrow, damaging the bone marrow, and inflicting leukemia; on the lungs area linked to inflaming the lungs, damaging the lungs, scaring the lungs, and inflicting lung cancer; on the testicles linked to damaging the testicles, reducing the production of testosterone, and destroying a man’s fertility;

[12] In this last statement the Petitioner and Human Rights Defender would like to express what he stated to the Lower Court Judge during the criminal proceedings "The defendant stated that those who document workplace psychological harassment and mobbing are targeted by those who use these and have an interest in repressing information and knowledge, these give victims credibility instead of ridicule.";

[13] To the Special Rapporteurs on the freedom of expression, the situation of human rights defenders, and the Petitions Team; the freedom of expression, the situation of human rights defenders, stereotypes and discrimination, the right to a trial, the right to privacy, and the right to security.

Sincerely,
Danny Hunt

__________________________

Danny Hunt
Human Rights Defender
Psychological Harassment Information Association
--
--
Canada --
Tel/fax:

 

CANADA
PROVINCE DE --
DISTRICT DE --
Numéro du greffe : --

No. DE DOSSIER: --
No. DE DOSSIER: --
No. D'EVENEMENT: --

SUPERIOR COURT OF JUSTICE
(CIVIL COURT)
______________________________________
DANNY HUNT;

APPELLANT - PETITIONER - DEMANDER

v.

--;

RESPONDENT - DEFENDER
______________________________________

APPLICATION TO DECLARE THE USE OF ASSESSMENT ORDERS FOR NON-CRIMINAL RESPONSIBILITY BEFORE TRIAL TO BE UNCONSTITUTIONAL ACCORDING TO ARTICLES 24(1) AND 52(1) OF THE CONSTITUTIONAL ACT, THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

TO ONE OF THE HONORABLE JUDGES OF THE SUPERIOR COURT OF JUSTICE, CIVIL COURT, IN THE DISTRICT OF --, THE APPLICANT PRESENTS THE FOLLOWING:
INTRODUCTION

[1] An Application for an order allowing the application, granting the application, a declaration that non-criminal responsibility before trial can circumvent the right to a trial and charter violation presentation, and that because of this it can be abused for these reasons and motives, to declare the use of non-criminal responsibility before trial instead of at the end of trial as indicated in the Canadian Supreme Court Judgment R v. Swain in any case to be unconstitutional, and grant the Application to declare the use of assessment orders for non-criminal responsibility before trial to be unconstitutional under articles 24(1) and 52(1) of the Constitutional Act, The Canadian Charter of Rights and Freedoms.

THE GROUNDS FOR THIS APPLICATION ARE:

[2] THAT an assessment order for non-criminal responsibility must be made at the end of trial as to not interfere with the defendant’s defense according to the Supreme Court of Canada in R v. Swain;

[3] THAT according the Supreme Court of Canada Judge in R v. Swain <<I believe, moreover, that conferring on the prosecution a conditional right to raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter. It denies the mentally disabled, a group in our society which has been negatively stereotyped and historically disadvantaged, the control over their defences reposed in other accused persons and does so in a way which is discriminatory. In denying the mentally disabled personal autonomy in decision‑making it reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests. In a word, it denies them equality with other accused persons under the guise, putting it at its best, of a benign paternalism. -- It seems to me that the principle advanced in support of the prosecution's right to introduce evidence of insanity can be effectively implemented by having the issue of the accused's insanity raised at the conclusion of the trial in cases where the defences put forward by the accused have been rejected and the essential elements of the offence have been established by the prosecution beyond a reasonable doubt. At that point I think either party should be free to raise the issue of the accused's insanity. I realize, of course, that there is an element of circularity involved in this approach in that insanity has a direct bearing on proof of mens rea. However, I prefer this approach since it both respects the accused's right to waive the defence of insanity and ensures that any resultant prejudice he suffers in the finding of guilt flows from his own decision not to avail himself of the defence and not as a consequence of the prosecution's having raised the issue in the middle of the trial process.”>>;

[4] THAT the -- Police made a demand on February 23, 2011that the defendant remain incarcerated for a psychological evaluation;

[5] THAT following the -- Police demand the Crown made a demand on February 23, 2011 for an assessment order before trial for non-criminal responsibility, which would circumvent the right to a trial if successful;

[6] THAT the February 23, 2011 assessment order before trial for non-criminal responsibility if successful would circumvent the presentation of several charter violation issues at trial such as the freedom of expression, entering and searching a dwelling home without a warrant, seizing private computers and information without a warrant, and make this seizure of private computers and information legal;

[7] THAT the Crown on February 23, 2011 did not provide any evidence to support his demand for the assessment order for non-criminal responsibility before trial by way of affidavit or oral testimony;

[8] THAT according to the criminal code and the Supreme Court of British Columbia Honourable Justice Pitfield in R v. Muschke, evidence on an application before a court is provided by way of affidavit and, occasionally, by oral testimony must be presented by the Crown to make a demand for non-criminal responsibility 672.12(3)(b); <<[31] .. recital of what were referred to by the Crown as facts was insufficient for purposes of ss. 672.11 and 672.12, affidavit or viva voce evidence was required,-- [40] In the ordinary course, evidence on an application before a court is provided by way of affidavit and, occasionally, by oral testimony. -- [47] .. In the case of R. v. Dobrotic, [1995] N.B.J. No. 222 (Q.L.), the New Brunswick Court of Appeal concluded that even with the consent of the accused to assessment, an order should not be made unless there was sufficient evidence before the judge to provide reasonable grounds to doubt the accused's criminal responsibility. -- [48] Even if they could have been relied upon to establish reasonable grounds for belief, the recitation of facts by counsel disclosed unusual and quite possibly unacceptable conduct on the part of the applicant but did not provide reasonable and probable grounds for believing that the accused was incapable of appreciating the nature and quality of his acts in the form of the alleged threats or of knowing that his acts were wrong. -- [51] .. the application was made by the prosecutor pursuant to s. 672.12(3)(b) of the Code. Had fitness been an issue, there was nothing before the judge, whether by statements from counsel or otherwise, which would have justified the formulation of a belief based on reasonable grounds that the applicant, on account of mental disorder, was unable to understand the nature or object of the proceedings in which he was involved, understand the possible consequences of the proceedings, or communicate with counsel. One or more of these factors are necessary in order to formulate an opinion that one is unfit to stand trial as the phrase is defined in s. 2 of the Code. -- [52] It follows that because the initial order was unlawful, the extension was equally invalid. .. -- 672.12 (3)(b); (3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if; (b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.>>;

[9] THAT the defendant/applicant was contesting the assessment order for non-criminal responsibility before trial of February 23, 2011on June 13, 2011 when it was corrected or renewed;

[10] THAT the assessment order of February 23, 2011 did not contain the correct hospital information, it indicated Albert Prevost instead of CPLM, and was therefore made Out of Jurisdiction according to R v. Creighton, and was corrected or renewed to CPLM on June 13, 2011;

[11] THAT the Crown declared the assessment order expired at the Court of Appeals on October 14, 2011, an Appeal concerning the Crown making the demand before trial R v. Swain and without providing any evidence R v. Muschke, R v. Dobrotic;

[12] THAT the Appeal R v. Creighton of October 21, 2011 that was combined with a motion for Abuse of Process “ceased to exist” according to Superior Court Judge -- , resulting in the Abuse of Process motion being made Out of Jurisdiction at the Superior Court without the Appeal R v. Creighton;

[13] THAT the Crown stated that he wished to renew his demand for an assessment order for non-criminal responsibility before trial on October 21, 2011;

[14] THAT the Crown on November 9, 2011 stated that he wished to renew his demand for an assessment order for non-criminal responsibility before trial but required the testimony of a psychiatrist as indicated in R v. Muschke “application before a court is provided by way of affidavit and, occasionally, by oral testimony” <<Me -- : Bien, la problematigue c’est que je dois… -- … je dois communiquer avec son psychiatre parce que monsieur etait… il avait eu une… il y avait eu une ordonnance, la… -- … pour que monsieur soit… se fasse evaluer. -- Et le delai de soixante (60) jours etait termine pour cette ordonnance-la et l’evaluation est pas terminee. -- Et monsieur conteste cette ordonnance-la, donc je sais que je devrai assigner la psychiatre pour qu’elle vienne temoigner sur l’etat de monsieur afin de demontrer au Tribunal qu’il y a des motifs, la, pour soupeser cette demande d’ordonnance la. – Sauf que j’ai pas encore communique avec le psychiatre parce que c’est pas necessairement facile. – Et j’esperais, la, que le dix-huit (18) novembre j’aurais les dates de disponibilite de la psychiatre pour qu’on puisse fixer une audition.>>;

[15] THAT on November 9, 2011 the Lower Court Judge instituted proceedings and ordered a trial over the objections of the defendant/applicant for April 13, 2012;

[16] THAT non-criminal responsibility before trial can circumventing the right to a trial and charter violation issues presented at trial;

[17] THAT the abuse and the incentive to abuse the use of non-criminal responsibility before trial can be linked to these reasons and motives;

[18] THAT for these reasons that the Honourable Superior Court Judge declare the use of non-criminal responsibility before trial in any case to be unconstitutional;

[19] Such further and other grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING:

[20] The -- Police demand for incarceration and psychological evaluation;
[21] The assessment order of February 23, 2011 and June 13, 2011;
[22] The transcript of February 23, 2011, June 13, 2011, October 21, 2011, November 21, 2011;
[23] Judgments R v Swain, R v Muschke, R v Creighton;
[24] The thick booklet with charter violation issues;
[25] Human Rights Complaint booklet;
[26] Affidavit and Factum; and
[27] Such further and other material as counsel may advise and this Honourable Court may permit.

THE ORDER SOUGHT IS:

[28] An Order allowing the application, granting the application, a declaration that non-criminal responsibility before trial can circumvent the right to a trial and charter violation presentation, and that because of this it can be abused for these reasons and motives, to declare the use of non-criminal responsibility before trial instead of at the end of trial as indicated in the Canadian Supreme Court Judgment R v. Swain in any case to be unconstitutional, and grant the Application to declare the use of assessment orders for non-criminal responsibility before trial to be unconstitutional under articles 24(1) and 52(1) of the Constitutional Act, The Canadian Charter of Rights and Freedoms.

FOR THESE MOTIVES, MAY IT PLEASE THE COURT:
RECEIVE the APPLICATION;
DECLARE that assessment orders for non-criminal responsibility before trial that circumvent the right to a trial and charter violation issues presented at trial to be unconstitutional;
GRANT the Application and Declaration;
RENDER judgment in accordance to the demands of justice;
THE WHOLE without costs.
AND I SIGNED IN -- -- CANADA
The 7 August 2012
---------------------------------------------------------
Danny Hunt
Applicant - Petitioner - Demander