THIS IS A COURT PLEADING I DID MYSELF, IT WAS REVISED AND THEN FILED IN lINDSAY oNTARIO, THERE WILL BE MORE TOMORROW
STATEMENT OF THE CASE The Applicant, Delmart Edward Vreeland, United States Naval Intelligence Officer (recently resigned), is an inmate, having been incarcerated in Jails of the Province of Ontario continuously, since December 6, 2000, when arrested by Toronto Police Service, Peace Officers.
Since December 6, 2000 the Applicant has been denied natural justice in the following related cases of the Applicant, which are, in reality one case which is of a political character: Ontario Court, Criminal Division, File Number 4811 998 00 10019678 00; Superior Court of Ontario, Case File Number M 81801 ( Motion Habeas Corpus); and Extradition File Number E-12/01.
Require an Urgent motion for a Writ of Certiorari with Writ of Habeas Corpus ad Subjiciendum in aid, on the Grounds of: 1. Errors of Law on the Face of the Record 2. Arbitrary Detention 3. Cruel and Unusual Treatment 4. Denial of Natural Justice 5. Non-Arraignment
SUMMARY OF THE FACTS
1. There are blatant highly significant errors of law on the face of the records in the related cases of the Applicant: Ontario Court, Criminal Division, File Number 4811 998 00 10019678 00; Superior Court of Ontario, Case File Number M 81801 ( Motion Habeas Corpus); and Extradition File Number E-12/01.
2. The Information in Provincial Court (Criminal Division) Court File Number 4811 998 00 10019678 00 shows that the Applicant was arrested on December 6, 2001 which is the date specified on page 1 within Counts 3, 4, and 5 of the Information of Stephen Bone Toronto Police Service, Peace Officer. Exhibit "A" page 1.
3. The Information in Provincial Court (Criminal Division) Court File Number 4811 998 00 10019678 00 was sworn before a Justice on December 15, 2000, nine days (9 days) after the December 6, 2000 arrest of the Applicant.
4. The Applicant was denied the 24 hour requirement for appearance before a Justice or Judge.
5. The first entry on the Information of the Applicant is dated December 15, 2000, with the bail and/or other action section, showing no action was taken other than adjournment ( Exhibit "A")
6.The Applicant was not properly arraigned as shown in (Exhibit "A") Information Court File # 4811 998 00 10019678 00, wherein, all 24 entries on Page "A" the bail and/or other action column contains only court room numbers and times of hearings; Page No. 2 is blank, other than for the December 15, 2000 swearing of the Information by the Informant at the top of the page.
7. The Applicant was deprived of the right to make an election The RECORD OF Information of Court File # 4811 998 00 10019678 00, has nothing in the area where the Crown makes his election to proceed, the section where the accused makes his election is blank, Elects Trial by Judge, Judge and Jury, Judge; on Counts, Abs. Jurisdiction, Pleads Guilty of Count and Not Guilty to Counts; all sections are left blank, only court room numbers and times appear in the "Bail and/or other action" column. Exhibit "A"
8. The last 2 entries on Page "A" show that 2 Bench Warrants were issued for the arrest of the incarcerated Applicant for non-appearance by a lawyer hired by the incarcerated Applicant.
9. The record shows that for the 24 Court appearance dates 3 Crown Attorney's appeared 3 times each, 4 Crown Attorney's appeared twice each, 6 Crown Attorney's appeared once each, and there was one time when the Crown Attorney did not appear.
10. There are 24 entries in the Appears Adjournment ( Remand to) column. First entry is dated December 15, 2001 Dec. 15, 2000 adjourned to Dec. 19, 2000 Dec. 19, 2000 adjourned to Dec. 22, 2000 Dec. 22, 2000 adjourned to Dec. 28, 2000 Dec. 28, 2000 adjourned to January 3, 2001 January 3, 2001 adjourned to January 12, 2001 (adjourned 9 days) J. Di Luca appeared on behalf January 12, 2001 adjourned to January 19, 2001 January 19, 2001 adjourned to January 25, 2001 January 25, 2001 adjourned to January 30, 2001 January 30, 2001 adjourned to February 2, 2001 February 2, 2001 adjourned to February 15, 2001(adjourned 13 days) Tendell appeared on behalf February 15, 2001 adjourned to February16, 2001 February 16, 2001 adjourned to February 21, 2001 February 21, 2001 adjourned to February 23, 2001 February 23, 2001 adjourned to March 2, 2001 March 2, 2001 adjourned to March 7, 2001 March 7, 2001 adjourned to March 13, 2001 March 13, 2001 adjourned to March 14, 2001 March 14, 2001 adjourned to March 21, 2001 March 21, 2001 adjourned to March 26, 2001 March 26, 2001 adjourned to April 17, 2001 (Adjourned 21 days) Lawyer Di Luca appeared April 17, 2001 adjourned to April 25, 2001 April 25, 2001 adjourned to April 30, 2001 Non- appearance by lawyer on behalf of inmate. April 30, 2001 adjourned to May 28, 2001 Non- appearance by lawyer (adjourned 28 days) Bench Warrant issued against jailed applicant for non- appearance.
11. The Applicant does not appear on the Information as having been present at any of the proceedings.
12. The legal counsel for the Applicant did not appear on April 30 or May 28, 2001, nor did he ask the Judge to sign an Order releasing the Prisoner, Applicant, to appear at the courtroom for proceedings against the Applicant on April 30, 2001 or May 28, 2001.
13. The record shows that on April 30, 2001 and again on May 28, 2001 a Bench Warrant for the Arrest of the Applicant was issued by the Court for non-appearance while the Applicant was still incarcerated and in the custody of the Ministry of Corrections, Ontario.
14. No entries appear on the Information beyond May 28, 2001. (creating the appearance that the Applicant may not have been in the custody of the Ministry of Corrections, Ontario, which he was).
15. The Court Integrated Court Offence Network Inquiry System which is updated on a daily basis, on Dec. 3, 2001 shows the disposition of the Case, as being the outstanding Bench Warrant for the Arrest of the Applicant. Exhibit "C ".
16. The Applicant has been in jail in the Province of Ontario continuously from December 6, 2000, to the hearing of this Motion by this Honourable Court.
17. Within the Information, the Estreat/Consideration column shows the Applicant has not had a Bail hearing and he was not released on bail or otherwise.
18. It is understood that Crown Counsel will generally provide advice to the police, with respect to the drafting and laying of charges. Exhibit "D"
19. The Crown Attorney at none of the appearances mentioned above has entered anything in evidence to support or prove the Crown's contention that the Applicant would skip bail, since the Applicant has no history of skipping out on cash bail, bond, or any other instrument.
20. Court file # 4811 998 00 10019678 00 of the Applicant contains a Judicial Interim Release Order for the Applicant dated March 26, 2001.
21. The Applicant learned of the Extradition Warrant on March 26, 2001, the same day the Judicial Interim Release Order was issued, about four months after the Dec. 6, 2000 arrest of the Applicant, and according to legal counsel of the Applicant, the foreign extradition warrant is the reason that the Applicant has since been held in Preventative Detention.
22. The Information contains no details about the Judicial Interim Release Order, which has not been voided, and which shows that no money was received into the court. 23. The Judicial Release Order was not executed.
24. The Applicant, a foreign national, is the subject of an Extradition Warrant from a foreign government with which Canada has an International Extradition Treaty, in the Mutual Legal Assistance in Criminal Matters Act.
25. The Applicant was arraigned on the Extradition Warrant on May 8, 2001, and not offered bail owing to the speculation or conjecture of the Crown that the Applicant would abscond, whereby the Applicant continued to be held in preventative custody, for a foreign government for an offense which in reality is of a political character.
26. The Applicant is aware that gathering evidence against the Applicant is done through international cooperation which requires coordination through appropriate channels.
The Applicant is aware that the Ministry of the Attorney General for Ontario, through Provincial Crown Attorneys, work in conjunction with the Ministry of Justice of Canada and the Federal Crown Attorneys' on Canadian Charter matters in Provincial Courts, and in consultation with the International Assistance Group, which is part of the Federal Department of Justice and works on behalf of the foreign governments, with which Canada has International Extradition and other Juridical Treaties. All requests by foreign governments must be approved by the Prosecution Group Head or the Regional Director of the International Assistance Group. From time to time Federal and Provincial Crown counsels hold informal discussions with their foreign counterparts
27. The Applicant is aware that the Criminal Law Division of the Office of the Attorney General of Ontario, supervises and coordinates Crown Counsel in the Crown Law Office-Criminal, and work with the Federal government on extradition matters. This Division also supervises General Division Court Bail, which facilitates litigation of review of detention orders and judicial interim release orders including those before the Supreme Court of Ontario. Exhibit "D"
28. On the 8th day of December 2000, the Applicant attempted to file a Refugee Claim while in custody, and then again through his legal counsel, Joseph DiLuca.. The Refugee claim was ultimately filed in June 2001.
29. The Immigration Division did not review the reasons for the continued detention of the Applicant, within 48 hours after being taken into detention. Furthermore the Immigration Division did not review the reasons for the continued detention, during the seven days following the review which was to have taken place, nor during each 30-day period following each previous review. 30. The Immigration Division did not request an officer to bring the Applicant, (Inmate), to an Immigration Division or to a specified location to do a review of the continued detention. 31. The Applicant was taken to the courthouse to attend only one of the nine court proceedings held. 32. The Crown Attorney Kevin Wilson appeared for the Crown in all ten court proceedings with regard to the Refugee Claim and Extradition. He appeared on May 8, 2001, May 15, 2001, May 25, 2001, June 20, 2001, July 5, 2001, July 12, 2001, Sept. 7, 2001, Sept. 17, 2001, October 22, 2001, October 26, 2001. And for the 5 days of proceedings commencing on December 17, 2001
33. On December 17, 2001, more than one year after the arrest of the Applicant, the Applicant, being in the custody of the Ministry of Corrections, was removed from the Jail to be transported to the Superior Court at the Toronto Courthouse at 361 University Avenue, for the start of the hearing of the Applicant for a Writ of Habeous Corpus ab subjucidium.
34. Since December 17, the Applicant has attended 5 continuous days of court proceedings in hand and leg shackles and full body chains.
35. The Applicant was chained and shackled ( approximately 9 hours causing pain, swelling, and slight bleeding) from his transport to and from the jail to the Courthouse, and for the duration of the court proceedings for the Writ of Habeas Corpus ad subjiciendum, to test the legality of the imprisonment of the Applicant and for the submission of further evidence.
36. The Judge of the case, upon his perusal of the record, failed to note the blatant errors on the face of the record, showing that the Applicant has never had bail as shown in the empty space within the Estreat/Consideration column.
37. The Judge noted the presence and suffering of the Applicant on each of the aforementioned days of the court proceedings and failed to offer bail to the Applicant.
38. The Applicant understands that the relevant part of the Bill of Rights, Chapter 2.(a), 1688,has not been applied to the Applicant, though it is one of the Constitutional Acts of the Imperial Parliament in force in Ontario, - " That excessive bail ought not to be required. nor excessive fines imposed , nor cruel and unusual punishments inflicted. That jurors ought to be duly impaneled and returned."
39. Being a foreign national, who is becoming familiar with Canadian law, the lack of bail has deprived the Applicant of accessibility to a law library or to otherwise properly prepare a full answer and defense to the charges in the aforementioned cases, which is a statutory right, and is needed by the Applicant.
40. The Applicant has read the Canadian Bill of Rights, Revised Statutes of Canada 1985, Appendix 3, which states: "no law of Canada shall be construed or applied so as to 2.(f)deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal or of the right to reasonable bail without just cause."
41. The issues at the Dec. 17, 2001 proceeding in Superior Court with Judge Macdonald presiding, did not result in the Applicant getting bail, or in removal of the Bench Warrant.
42. Since Certiorari has not been done up to now, the Applicant understands that an appeal from the Superior Court lies to the Court of Appeal.
43. As the Applicant has already undergone severe repression and is being prosecuted for reasons of a political nature, as well as, for indictable offences, and since the character of the Applicant is in question, since the liberties of the Applicant have been removed and since the security and life of the Applicant is at risk, the Applicant is petitioning that the Ontario Court of Appeal order that the Applicant be released on bail or on his own recognizance and that a Jury trial be held forthwith so that the Applicant may be fairly tried by a Jury of his peers and not barred from having just and equitable treatment under the law. The Applicant's innocence and the Applicant's right to full answer and defense requires the Applicant's appearance before a Court of law and a trial with a Jury.
44. The want of prosecution as shown in the record of Court File 4811 998 00 10019678 00 is evident owing to the loss of Jurisdiction over the matter, due to the non-arraignment of the Applicant following 22 court adjournments. Section 485.1 of the Criminal Code of Canada now requires the personal consent in writing by the Attorney General or his Deputy to proceed; the letter to proceed is not within the record. ???.End??..
ISSUES AND LAW
1. URGENT Motion under Court of Appeal Criminal Appeal Rule 2.(1) and Rule of Civil Procedure 37:17; Urgent motion for a Writ of Certiorari with Writ of Habeas Corpus ad Subjiciendum in aid, as per Criminal Code s. 777.(1);Courts of Justice Act 6(3), 7(1)(3). Patterson v. The Queen (1971) 2 CCC(2d)227; Rex v Cantin (1917) 28 CCC.341 Regina v. Botting (1966) 2 O.R. 121 to138;
2. Notice re Certiorari On a Motion for relief in the nature of Certiorari, the Court of Appeal shall not grant relief : Unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper. The Ontario Court of Appeal has also taken the view that it is bound by its own earlier decisions which operate in favour of the liberty of the subject R.v. Maika (1974)27 C.R.N.S. 15 (Ont.C.A.)
The following are some of the Grounds for the Motion for a Writ of Certiorari : 3. Review of Detention where Trial Delayed In the case of an indictable offence, within 90 days from the day on which the accused was taken before a justice or in the case of an offence for which the accused is being prosecuted in proceedings by way of summary conviction within 30 days from the day on which the accused was taken before a justice the person having the custody of the accused shall, forthwith upon the expiration of those 90 or 30 days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody. Upon receiving an application the judge shall fix a date for the hearing and direct that notice of the hearing be given to such persons, including the prosecutor the accused and in such manner, as the judge may specify. Upon the hearing described the judge may in deciding whether or not the accused should be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge.
A judge may, before or at any time during the hearing of an application, upon application by the prosecutor or the accused or his counsel, adjourn the proceeding, but if the accused is in custody no such adjournment shall be for more than three clear days except with the consent of the accused.
R. v. Snarch (1969) 4 C.C.C. 284 The Public interest test, the standard set down in R. v. Snarch where Public interest means some thing in which the public has some vital interest which affects the public in either a pecuniary or personal sense. "Essential for the due administration of justice" was interpreted as applying to cases where there had been a "failure to properly administer the law".
4. New Evidence to be introduced. Cook v. Mounce (1979), 26 O.R.(2d) 129. New evidence should be admitted on Appeal when it is apparently credible and if admitted it would probably have an important influence on the result; and it could not have been obtained by reasonable diligence at the time of the original hearing. Mercer v Sijan (1976) 14 O.R.(2d)12; Boyle (1983) 41 O.R. 396; McNeil (1945) O.R.396; Re Hunter (1955) O.W.N. 477.
5. Trial by Jury: CCC s.471; 536(2),(3)(b); 536(4); 548(1); 560; 561; 562. Doyle v The Queen (1976) 29 CCC (2d) 177; Regina v Light (1969) 1 CCC 46; Regina v Locke (1977) 31 CCC 441-445; Regina v Bobyk (1963) 2 CCC vol.2 91, 92 .It was held that the Crown must strictly comply with the election of the accused. Regina v Brent (1972) 7 CCC (2d)560 Maliewski v. Pastushok (No.2) [1966} 1 O.R. 612 (Court of Appeals) There appears to be no difference between a special verdict and the giving of answers to specific questions. At common law, a jury could give a general verdict even though a judge requested a special verdict. The judge is permitted to require answers to specific questions. (This can satisfy determination for Refugee Application as well as decide the main issues
6. Habeas Corpus and Bench Warrant: Regina v Martin (1971) 2 O.R. 39; Ecrement v Seguin (1921) 39 CCC 113; Ex Parte Burns (1932) 58 CCC 231; Martin (1977) 34 CCC (2d) 453; R.v Mitchell (1975) 23 CCC 473; Khan v USA (1982) 70 CCC (2d) 5,7; Amos (1976) 24 CCC (2d) 552, 553, 554, 555, 556; Ex Parte Peters (1973) 10 CCC (2d) 221, 222, 226, 227.
7. Non-Arraignment: R. v Smith (1972) 7 CCC(2d) 174 Ont. C.A. The accused had not been arraigned, had not pleaded, had not elected, charge quashed as a nullity. Boyle (1983) 41 O.R.(2d)713 R. v. Ellis (1973) , 57 Cr. App. R. 571. Arraignment is basic to criminal trials by judge and jury. The general rule is that there must be an "arraignment of the accused of the offence charged and he must personally answer to it". 8.Preliminary inquiry (evidence taking): R. v Lacasse (1972) 8 CCC(2d) 270; R. v Lachance (1982) C.S.P.1075 Quebec; Collinge v Gee (1968) SCR 948; R. v Boire (1982) C.S.P. 1037 9. Arbitrary detention: Charles (1987) 36 CCC(3d)289; Koszulapp (1974) 20CCC(2d)193 Ontario Court of Appeals; Peters (1973) 23 CCC(2d) 559 re Bench Warrant. R. v Scheller (No.2) (1976) 32 C.C.C. (2d) 286 Ontario Court of Appeal
10. NATURAL JUSTICE:. Regina v. Dick (1968) 2 O.R. 351 Regina v. Botting (1966) 2 O.R. 121 R. v Forrester (1977) 33 C.C.C. 221; re: Abuse of Process Rourke (1977) 35 CCC (2d) 129; Abuse of Process Procedures.
11. BAIL or RELEASE FROM CUSTODY Smale (1979), 51C.C.C.(2d)126(Ontario Court of Appeal) A judge of the Court of Appeal has jurisdiction to release an appellant from custody after conviction but before sentencing:. Such jurisdiction should be exercised in unusual or limited circumstances, but the release only extends to the date of sentencing or the disposition of the appeal whichever is earlier RE: Smith (1984) 44 O.R.(2d) 609; Bail Hearing in a murder extradition case.
R v Quinn (1977) 34 C.C.C. (2d) 473;
R v Snarch (1969) 4 C.C.C. 284, "essential for the due administration of justice" was interpreted as applying to cases where there had been a "failure to properly administer the law." ???? END??????
Contact:
Delmart Vreeland Phone toll free: 1-800-459-8645 E-Mail : CALTVREELAND@AOL.COM
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