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Here’s a rough draft of the Memorandum of Argument I’m looking to file with the Courts in reference to my Charter Challenge. Anyone interested in making comments, or suggestions can email me at abyss@paradigmslip.ca.

MEMORANDUM OF ARGUMENT

PART I.                  STATEMENT OF FACTS

OVERVIEW

  1. The Applicant, ANDREW ABBASS (“Mr. Abbass”) submits that the judicial process invoked by Subsections 318(3), 319(6) and 320(7) (the “Subsections”) of the Criminal Code of Canada (the “Code”) are not compliant with the Canadian Charter of Rights and Freedoms (the “Charter”) and subject to just remedy under Section 24 (1) of the Charter or found to have no force or effect under Section 52 (1) of the Constitution Act of 1982.
  2. Whereas the Applicant believes his right to equality before, under and in the benefit of and protection of the law, guaranteed by Section 15(1) of the Charter have been violated by the judicial proceedings initiated through his exercising of his responsibility as a citizen of Canada to uphold Canada’s laws, subject to just remedy under Section 24(1) of the Charter.
  3. Whereas Section 52(1) of the Constitution Act of 1982 requires the Charter to be upheld as the Supreme Law of Canada, in that the preamble of the Charter recognizes the rule of law as a founding principle, the Subsections represent a direction violation of the rule of law capable of impeding fundamental justice.
  4. The Applicant will argue that these Subsections should be recognized by this Court as special privileges afforded to the Attorney General for interpreting the language and context of the laws in good faith, not an inalienable interpretive language right protected by the Charter or any Act.
  5. The Applicant therefore seeks an order rescinding, repealing or revoking Subsections 318(3), 319(6) and 320(7) of the Criminal Code of Canada under Section 52(1) of the Constitution Act of 1982, or amending them by adding “unless interested” at the end of each subsection, or any just remedy the Court considers appropriate under Section 24(1) of the Charter.


BACKGROUND FACTS TO THIS CASE

Mr. Abbass’ filing of the Charge of Incitement towards Genocide

  1. On July 16th, 2014 the Applicant, Andrew Abbass, learned of the deaths of 4 children on a beach in Gaza. Video coverage and pictures of the aftermath of the event were widely available on social media outlets.
  2. The following day, July 17th, 2014, while looking for a Canadian response on CBC’s website pertaining to the funeral of the 4 children killed the previous day, the Applicant found minimal coverage of the event.
  3. During his search, the Applicant discovered a Huffington Post article about a YouTube video the Conservative Party of Canada had quietly released to its Israeli supporters on July 16th, 2014. (Through Fire and Water)
  4. In viewing the video, the Applicant and was disturbed by the splicing together of military and political footage with aggressive music and quotes from Prime Minister Stephen Harper and then Foreign Affairs Minister John Baird.
  5. The Applicant showed the video directly to several associates who were also offended by the juxtaposition of aggressive imagery, quotes and music.
  6. To better understand the nature of what the Applicant felt was offensive, he compiled a transcript of the video to analyze the selected quotes and imagery.
  7. In compiling this transcript, the Applicant found what he believed to be a sophisticated language of hatred and incitement towards genocide.
  8. The purpose of this use of this language, in the opinion of the Applicant, was to incite the Israeli people towards attacking the people of Gaza, implying that their actions were justified and morally correct in the eyes of Canada.
  9. The Applicant initially telephoned the RCMP in Ottawa on the 20th of July to report the crime, but was informed he would have to file the charges through his local jurisdiction.
  10. On the morning of July 21st, the Applicant filed charges with the RNC in Corner Brook, Newfoundland. As the crime occurred outside their jurisdiction, an RNC liaison officer was assigned and the charges were forwarded to the RCMP in St. John’s.
  11. The Applicant received a phone call from RCMP officer JOHN DOE on July 30th, requesting a meeting for August 1st.
  12. The Applicant met with the plain clothed RCMP officer on August 1st, who informed the Applicant that no charges were being pressed.
  13. The officer informed the Applicant that the video and statement by the Prime Minister were being considered a governing policy, not criminal and that his only option was to vote in the next election.
  14. The following Tuesday, August 5th, the Applicant filed a complaint with the Commission for Public Complaints against the RCMP.
  15. The report compiled by the Officer undertaking the investigation of the complaint has been completed and a letter of Disposition is to be made available in the coming months. (Document)


PART II.                                STATEMENT OF QUESTIONS IN ISSUE

  1. The Applicant submits that the process he has undertaken as part of his responsibilities as a Canadian citizen raise the following important issues of law that are of national and public importance:

Issue 1:   Do the Subsections violate the rule of law by placing the Attorney General’s interpretation of what constitutes incitement towards genocide and the creation and dissemination of hate propaganda above the law?

Issue 2:    Do the current form of these Subsections allow a conflict whereby the consent privileges given to the Attorney General by the Code can impede the course of fundamental justice in crimes where he is personally interested?

  1. These issues warrant consideration by this Honourable Court on the basis that:
    • These are both novel and important questions of law.
    • The Subsections have never been tested for Charter compliance in this manner.
    • Variations of the Subsections are also present in other sections of the Code, as well as pending Bill C-51.
    • The need to have these issues addressed is pressing and the objective is both proportional and justifiable to maintain a free and democratic society.
    • The means are rationally connected to the objective and result in the minimal impairment of rights of all Canadians.


PART III                               STATEMENT OF ARGUMENT

This Is A Case That Raises Issues of National and Public Importance

  1. Incitement towards genocide and the creation and dissemination of hate propaganda are crimes made infamous by the Nationalist Socialist Party of Germany. Section 318, 319, and 320 of the Criminal Code of Canada were drafted with the legislative intent of criminalizing these types of behaviors before they can do substantial damage to the public good.
  2. The potential for the impairment of justice on these matters through conflicting interpretations of the Criminal Code of Canada has a significant impact on Canadians. Laws expected to provide protection to citizens from the abuses of power that allowed Nationalist Socialist Germany to undertake the Holocaust should not allow for interpretations capable of impeding fundamental justice.
  3. To that end, the Criminal Code of Canada together with the Charter have the expectation of being designed to protect the rights and freedoms of law abiding citizens by ensuring that a proper legal framework exists to have such matters addressed by the judicial system in a timely and just manner.
  4. Delaying justice on a matter involving the incitement towards hatred and the dissemination of hate propaganda has the effect of increasing the damage to society and the public good on a national and global scale. In the opinion of the Applicant, The RCMP and Commission for Public Complaints against the RCMP do not have the legal authority to engage in a proper and timely balancing of the importance of the rights at stake in this matter.
  5. Section 15(1) of the Charter states that every individual is equal before and under the law and has the right to equal protection and equal benefit without discrimination. In dismissing the charges with no legal justification offered or route for appeal, the Applicant feels his rights to engage the legal process in a matter of grave importance have been violated, therefore allowing the Court to proscribe just remedy under Section 24(1) of the Charter in consideration of the circumstances of the violation.
  6. In filing an Originating Application (“Contract”) with the Supreme Court of Newfoundland as a self-representing citizen, the Applicant brings this matter before this Honourable Court to advance the pursuit of fundamental justice in the spirit of good faith and the public interest.
  7. The Supreme Court of Canada acknowledges that good faith as it applies to the matter of contractual obligation should be a founding principle from which the Court manifests its interpretation of the Common Law of Contracts:

There is an organizing principle of good faith that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily.  An organizing principle states in general terms a requirement of justice from which more specific legal doctrines may be derived. An organizing principle therefore is not a free‑standing rule, but rather a standard that underpins and is manifested in more specific legal doctrines and may be given different weight in different situations.  It is a standard that helps to understand and develop the law in a coherent and principled way.(2014 SCC 71 – J Cromwell)

  1. While the opinion of individual citizens on legal matters carries little weight in determining the proper course of the law, the ruling of this Honourable Court can provide guidance and direction to the Applicant and other citizens in determining if the issues presented require an expeditious, lawful and just remedy to maintain a free and democratic society.


Issue 1:
   Charter Compliance of Code Sections 318-3, 319-6 and 320-7

  1. The existing language used in Subsection 318(3), 319(6) and 320(7) of the Code are a direct violation of the rule of law. They allowing the consent (“arbitrary decision”) of the Attorney General (“appointed official”) to govern the prosecution of criminal justice in these crimes.
  2. The original legislative intent of inserting the Subsections may have been to prevent charges from being filed for spurious reasons, but they also created the potential for limiting a citizen’s lawful ability to seek justice for any crimes committed by the Federal government under this Section of the Code.
  3. By placing the Attorney General interpretative privileges above the law in question, the Subsections violate the founding precepts of the Charter which recognize the Supremacy of God and the rule of Law. In accordance with Section 52(1) of the Constitution Act of 1982, the Subsections as they currently exist should be found to have no force or effect.
  4. The equality rights provided by Section 15(1) of the Charter have been interpreted by the Court to be aimed at preventing :

“violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudices, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.” (Iacobucci J. in Law v. Canada, [1999])

  1. To prevent further violation of essential human dignity through possible crimes against humanity, the Applicant taken a purposive approach to contextualize the dire need to address these Subsections within the broader scope of the law and requirement of maintaining a free and democratic society.
  2. The Applicant respectfully submits that grounds exist to challenge the Charter-compliance of the Subsections through either Section 24(1) of the Charter or Section 52(1) of the Constitution Act of 1982.


Issue 2:
Potential Consent-based Conflicts Of Interest in Criminal Code of Canada

  1. By denying the ability of the judicial branch to prosecute crimes of this nature without the consent of the Attorney General, the potential for a conflict of interest is created. It is difficult to envision a situation where the Attorney General would consent to the prosecution of a crime he himself may be found complicit in.
  2. To that end, several other instances of this particular formulation of the consent clause are found through-out the Code that can deny the prosecution of justice. Taken in this manner, they grant the Attorney General the ability to consent to the criminal act instead of prosecuting it.
  3. These consent clauses are found in wide range of laws, some of which are quite concerning when examined for their potential for abuse. The following list illustrates the possibility of crimes from the Code that can be committed with this embedded privilege providing immunity to prosecution:
  • 7(2.33) – offenses occurring in space
  • 7(4.3) – sexual offenses against children
  • 7(7) – denying prosecution of criminal foreign nationals
  • 54 – assisting a deserter
  • 24 – terrorism, hiding terrorist property, banking with terrorists
  • 136(3) – providing false evidence
  • 141 (2) – bribery
  • 164(7) – voyeurism, corruption of morals, child pornography, advertising sexual services
  • 283(2) – kidnapping
  • 318(3) – advocating genocide
  • 319(6) – public incitement of hatred
  • 320(7) – denying seizure of hate propaganda
  • 347(7) – allowing criminal interest rates
  • 385(2) – concealing title documents
  • 422(3) – breach of contract, intimidation and discrimination against trade unionists
  • 477.2 (1) – offenses committed by a non-citizen on a foreign ship in Canadian waters
  • 477.2 (2) – offenses committed in the economic zone of Canada by citizens or in relation to citizens
  • 477.2 (3) – offenses committed in non-recognized states (ie: Palestine)
  • 477.3 (3) – piracy
  • 810.01 (1) – intimidation of the criminal justice system or a journalist
  • 810.2 (1) – threatening violence, endanger safety, inflicting psychological damage and various forms of sexual assault
  1. While the list of Attorney General Consent clauses presented is not exhaustive, there is a pattern in that the majority of the offenses have the potential to be exceptionally socially damaging crimes and few reasons exist to allow such a clause to prevent justice.
  2. In addition, Bill C-51 introduces new consent clauses that can further impede the judicial process without due oversight.
  3. Through examining the legislative intent of the drafting of Bill C-51 in light of the comparable consent clauses already shown to have potential for abuse, the Supreme Court has the opportunity to provide guidance in ensuring that the principle of good faith is applied not only to common law contracts, but the social contract that provides for a good faith between Canadian citizens and the Government of Canada.


Summary And Conclusion

  1. pending


PART IV.               COST SUBMISSIONS

  1. This Applicant seeks for leave to raise issues of national and public importance before the court to seek a just and appropriate remedy. No costs are requested.


PART V.                NATURE OF ORDER SOUGHT

  1. The Applicant therefore seeks an order rescinding, repealing or revoking Subsections 318(3), 319(6) and 320(7) of the Criminal Code of Canada under Section 52(1) of the Constitution Act of 1982, or amending them by adding “unless interested” at the end of each subsection, or any just remedy the Court considers appropriate under Section 24(1) of the Charter.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at the City of Corner Brook in the Province of Newfoundland this *** day of February, 2015.

_______________
Andrew Abbass
Applicant