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NOTICE OF INTENTION ACCORDING TO ARTICLE 95 C.p.c. 2nd (warrantless seizure) - CNN iReport (article link)

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"DECLARE that assessment orders for non-criminal responsibility before trial that can circumvent the right to a trial and charter violation issues presented at trial to be unconstitutional;"
"DECLARE that the warrantless seizure of private computers is unconstitutional;"
"GRANT the demander who is a human rights defender and a victim of false allegations that involve the freedom of expression, which is essential for a free democracy and the pursuit of the truth without fear of persecution, and the search and seizure of private computers an exemplary amount;"


http://ireport.cnn.com/docs/DOC-832221

 

CANADA

PROVINCE DE QUEBEC

DISTRICT DE LAVAL

Numéro du greffe : 540

No: 540-17-005409-122

No: 540-01-048499-118

No: LVL-110221-041

Superior COURT OF JUSTICE

(CIVIL COURT)

__________________________________________

DANNY HUNT;

Demander

v.

Attorney General of QUEBEC;

Defender

__________________________________________

NOTICE OF INTENTION ACCORDING TO ARTICLE 95 C.p.c.

Destination : Attorney General of Québec

Palais de justice de Montréal

1, rue Notre-Dame Est, bureau 8.00

Montréal (Québec) H2Y 1B6

And.

Deputy Attorney General

Quebec Regional Office

Department of Justice Canada

Guy-Favreau Complex

East Tower, 9th Floor

200 René-Lévesque Boulevard West

Montréal, Quebec

H2Z 1X4

And.

Directeur des poursuites criminelles et pénales

1, rue Notre-Dame Est, bureau 4.100

Montréal (Québec) H2Y 1B6

TAKE NOTICE that by procedure 94 and articles 24(1) and 52(1) the demander Danny Hunt has the intention of having declared inapplicable constitutionally or invalid in regards to the Canadian Charter of Rights and Freedoms or the Charter of Human Rights and Freedoms (chapter C-12) a disposition in the criminal code for non-criminal responsibility before trial 672.12 (1), 672.12 (1)(3) (a), 672.12 (1)(3)(b) and for warrantless seizures of private computers.

672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.

(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

(a) the accused puts his or her mental capacity for criminal intent into issue; or

(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.

FURTHER MORE, TAKE NOTICE that the date of audience of this cause is set for 25 September 2012, at 9:00 am, or as soon as the court will permit, in front of one of the Honourable Superior Court Judges, Civil Court, District of Laval, at the Palais de Justice de Laval , in room 2.02.

The pretentions of Danny Hunt and his arguments are to the effect;

[1] That 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 criminal proceedings to be unconstitutional;

[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 decisionmaking 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 defense and not as a consequence of the prosecution's having raised the issue in the middle of the trial process.”>>;

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

[5] THAT following the Laval 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 demander 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 demander for April 13, 2012;

[16] That non-criminal responsibility before trial if successful circumvents the right to a trial and charter violation issue presentation at trial;

[17] That because non-criminal responsibility before trial circumvents the right to a trial, charter violation issues, and can make an unreasonable search and seizure of private information legal it can be abused for 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] THAT on February 21, 2011 the Laval Police seized the Applicants computers without a warrant;

[20] THAT a Motion on March 9, 2011for the return of the seized items was granted on April 1, 2011, April 12, 2011;

[21] THAT the Crown stated on the return of the computers on April 12, 2011 that no analysis of the data would be required;

[22] THAT the Crown stated that no data copies of the seized computers exist and therefore no Order to destroy any copies is required or can be issued, no object for the order exists, on December 21, 2011;

[23] THAT the Laval Police may have data copies of the computers and private information without the Crown’s knowledge;

[24] THAT according to the defendants understanding of the legal consequences; if the Crown is mistaken and the Police do have copies the defendant would have to sue the Crown for damages in Civil Court; If an order was issued any existing copies resulting from the seizure by the police would be illegal, which is a considerable difference;

[25] THAT the Laval Police want on vacation following the demand for restitution of the computers on March 9, 2011 with evidence, the article in question. The Police therefore did not have any justification to keep and search the computers. The Laval Police left for vacation till March 23, 2011 and the Crown was no longer available till April 12, 2011;

[26] THAT a possible scenario example to circumvent an order to destroy any existing copies is by returning the computers after a warrantless seizure, claiming the Laval Police have no copies and to the Crowns knowledge there are no copies, and therefor there is no object for the demand for destruction; in addition to this, it is possible that another Police organization such as the Surete du Quebec or RCMP obtained copies through a sealed investigation during the vacation period ;

[27] THAT the Crown stated that he had returned the computers and no copies existed on January 12, 2012 at the Superior Court but had no rebutted his burden of proof for the seizure without a warrant, a charter violation;

[28] THAT because of the Crown’s claim that there are no copies, there is no object to issue an order for the destruction of computer copies as is allowed in a seizure with a warrant;

[29] 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:

[30] The Laval Police demand for incarceration and psychological evaluation;

[31] The assessment order of February 23, 2011 and June 13, 2011;

[32] The transcript of February 23, 2011, June 13, 2011, October 21, 2011, November 21, 2011, December 21, 2012, January 12, 2012;

[33] Judgments R v Swain, R v Muschke, R v Creighton;

[34] The thick booklet with charter violation issues;

[35] Human Rights Complaint booklet 1st and 2nd Presentation;

[36] Affidavit and Factum; and

[37] Such further and other material as counsel may advise and this Honourable Court may permit.

THE ORDER SOUGHT IS:

[38] A declaration that non-criminal responsibility before trial can circumvent the right to a trial, charter violation issues presented at trial, unreasonable search and seizure, the right to privacy 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 to be unconstitutional, and to declare the use of assessment orders for non-criminal responsibility before trial and warrantless search and seizure of private computers to be unconstitutional in regards to the Constitutional Act, The Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms.

FOR THESE MOTIVES, MAY IT PLEASE THE COURT:

DECLARE that assessment orders for non-criminal responsibility before trial that can circumvent the right to a trial and charter violation issues presented at trial to be unconstitutional;

DECLARE that the warrantless seizure of private computers is unconstitutional;

GRANT .. ;

GRANT the demander who is a human rights defender and a victim of false allegations that involve the freedom of expression, which is essential for a free democracy and the pursuit of the truth without fear of persecution, and the search and seizure of private computers an exemplary amount;

THE WHOLE .. .

PLEASE ACT ACCORDINGLY

Laval, the 23 August 2012