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the study, theory and practice of litigation as it relates to The Court of Queen's Bench of New Brunswick, Provincial Court and The Court of Appeal of New Brunswick; Filing, and Procedure, in general.
2013 New Year's Resolution: To however, cause the Judiciary of New Brunswick to uphold the Canadian Charter of Rights and Freedoms. Reason being, that, the Charter is applicable in New Brunswick, just as all provinces are bound by the Constitution. Despite the Canadian Charter of Rights and Freedoms was adopted in 1982, it was not until 1985, that, the main provisions regarding equality rights (section 15) came into effect. The delay was meant to give the federal and provincial governments an opportunity to review per-existing statutes and strike potentially unconstitutional inequalities.
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NOTICE: above provided image is a link to the 'Public Forum regarding our legal and judicial system
NOTICE: above provided image is a link to the 'RANT' area of contributing Self Represented Litigants
'LEAVE TO APPEAL' - from a decision of a
summary conviction is under s.813 of the Criminal Code
Appeal by defendant, informant or Attorney General
813. Except
where otherwise provided by law,
·(a) the
defendant in proceedings under this Part may appeal to the appeal court
o(i) from
a conviction or order made against him,
o(ii) against
a sentence passed on him, or
o(iii) against
a verdict of unfit to stand trial or not criminally responsible on account of
mental disorder; and
·(b) the
informant, the Attorney General or his agent in proceedings under this Part may
appeal to the appeal court
o(i) from
an order that stays proceedings on an information or dismisses an information,
o(ii) against
a sentence passed on a defendant, or
o(iii) against
a verdict of not criminally responsible on account of mental disorder or unfit
to stand trial,
and the Attorney General
of Canada or his agent has the same rights of appeal in proceedings instituted
at the instance of the Government of Canada and conducted by or on behalf of
that Government as the Attorney General of a province or his agent has under
this paragraph.
Time for Filing 'LEAVE TO APPEAL' to THE Court of Appeal OF New Brunswick
First of all, a 'Notice of Motion for Leave to Appeal' (Form 62A) shall be served within 7 days from the date of the order or
decision sought to be appealed, one (when calculating time) shall not count the first day of the decision; this is pursuant to rule 3.01 (where a
number of days is prescribed, it shall be reckoned exclusively of the first day
and inclusively of the last day,)
Note:
Where a party seeks to appeal from (a) an interlocutory order or decision, (b)
an order or decision as to costs only, or (c) an order made with the consent of
the parties, leave to appeal must be obtained by MOTION to a judge of the Court
of Appeal (hence, filing a Leave to Appeal). I personally always file 'LEAVE TO APPEAL' since I may be confused as to whether to go directly to APPEAL which allows for 30 days, consequentially, in this case, the seven day limitation for filing'LEAVE TO APPEAL' would expire..
Essential Time line for Filing an Appeal (Notice: different from Leave to Appeal)
Date of Decision being Appealed
(1)
A Notice of Appeal shall be issued within
30 days from the date of the order or decision
appealed
from I
do not count the first day (date of decision) pursuant to rule 3.01 (where a number of days is prescribed, it shall be
reckoned exclusively of the first day and inclusively of the last day,)
(2)
Within 15 days after a Notice of Appeal
is issued, the appellant shall serve a copy on all persons whose interests
may be affected and file the Notice of Appeal and proof of service with the
Registrar forthwith after completion of service, and forward a copy to
the clerk of the Judicial District in which the proceeding was commenced, or the court appealed from.
(3)The appellant shall serve on each respondent,
with the Notice of Appeal, a Certificate of Appellant (Form 62F).
When considering whether to grant Leave to Appeal or not, the Court considers the following Rules of Court:
62.03 Leave to Appeal
(1) Where a party seeks to appeal from
(a) an interlocutory order or decision,
(b) an order or decision as to costs only, or
(c) an order made with the consent of the parties,
(4) In considering whether or not to grant leave to appeal,
the judge hearing the motion may consider the following:
(a) whether there is a conflicting decision by another
judge or court upon a question involved in the proposed
appeal;
(b) whether he or she doubts the correctness of the order
or decision in question; or
(c) whether he or she considers that the proposed appeal
involves matters of sufficient importance.
In Lang v. Tran, 2006 CanLII 32627 (ON SC), Justice CAVARZAN J.,
addressed the following regarding "importance of the issues" at
paragraph 11 as:
[11] With respect to the factor involving
the importance of the issues, I note that the rule does not refer to the
importance of the issues "to the parties". No doubt, when matters
require resolution by proceeding to trial the issues are important to
the parties. In my view, however, "importance of the issues" comprehends
matters of general importance affecting the rights of society at large,
analogous to the interpretation placed by the courts on the expression
"matters of such importance" in rule 62.02(40(b) of the Rules of Civil
Procedure. See Davidson Tisdale Ltd. v. Pendrick (1997), 18 C.P.C.
(4th) 131, 106 O.A.C. 241 (Gen. Div.).
"procedure is not the master but rather the servant of justice"
The Grounds
Pursuant
to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court, the
Court, may, extend time required for filing and service of the INTENDED
APPELLANT's NOTICE OF MOTION FOR LEAVE TO APPEAL;
The Court may
at any time dispense with compliance with any rule, unless the rule
expressly or impliedly provides otherwise, procedure is not the master
but rather the servant of justice and should be applied accordingly, to
see that justice is done.
A procedural error, including failure
to comply with these rules or with the procedure prescribed by an Act
for the conduct of a proceeding, shall be treated as an irregularity and
shall not render the proceeding a nullity, and all necessary amendments
shall be permitted or other relief granted at any stage in the
proceeding, upon proper terms, to secure the just determination of the
matters in dispute between the parties.
Canadian Judicial Council Statement of Principles on Self-represented Litigants and Accused Persons:
B. PROMOTING EQUAL JUSTICE
STATEMENT:
Judges,
the courts and other participants in the justice system have a
responsibility to promote access to the justice system for all persons
on an equal basis, regardless of representation.
PRINCIPLES:
1.
Judges and court administrators should do whatever is possible to
provide a fair and impartial process and prevent an unfair disadvantage
to self-represented persons.
2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
3.
Where appropriate, a judge should consider engaging in such case
management activities as are required to protect the rights and
interests of self-represented persons. Such case management should begin
as early in the court process as possible.
As stated in the
above Canadian Judicial Council Statement of Principles on
Self-represented Litigants and Accused Persons, Self-represented persons
should not be denied relief on the basis of a minor or easily rectified
deficiency in their case, further INTENDED APPELLANT respectfully
asserts, that that the balance of convenience favors the granting of the
relief therefore sought.
Andre Murray files Leave to Appeal decision regarding Referral in Court of Queen's Bench, File numbers: FM 1-11 and FM 22-11,
Date: 2012-05-04,
Docket: F-M-1-11; F-M-22-11
Citation: Murray v. NB Police Comm., 2012 NBQB 154 (CanLII)
B E T W E E N: ANDRÉ MURRAY, Applicant;
-- and --
THE NEW BRUNSWICK POLICE COMMISSION, Respondent.
Legislation cited (available on CanLII):
Police Act, SNB 1977, c P-9.2 — 28.2(2) http://canlii.ca/t/l3nv
Right
to Information and Protection of Privacy Act, SNB 2009, c R-10.6 — 2;
5(1); 5(2); 21(1); 21(2); 22(5); 29(1); 43(1); 65(1); 67 http://canlii.ca/t/l3pv
Video regarding May 11, 2012 - RTIPPA Request - Referral Hearing Being Appealed
To view New Brunswick Court of Appeal Files related to the above decision please follow these links:
Court of Appeal of N.B. File Number 50-12-CA Andre Murray V. The New Brunswick Police Commission:
May 4, 2012, Andre Murray filing Leave to Appeal - from Court File Number: F/M/1/11 and F/M/22/11) RTIPPA request denied
Court of Appeal File Number 50-12-CA
and
Court of Appeal File Number 50-12-CA
Court of Queen's Bench File Number: F/M/1/11 and F/M/22/11
Regarding Andre Murray v. THE NEW BRUNSWICK POLICE COMMISSION,
Debora M. Lamont Solicitor for The New Brunswick Police Commission
Stewart McKelvey Barristers, Solicitors and Trademark Agents
Suite 600 Frederick Square 77
Westmorland Street P.O. Box 730
Fredericton NB E3B 5B4
Direct Dial: 506.443.0125
Main Tel: 506.458.1970
Fax: 506.444.8974
Email: dlamont@smss.com
1. NOTICE OF MOTION FOR LEAVE TO APPEAL (FORM 62A) Filed and Dated May 4, 2012.
2. Affidavit of Andre Murray Dated May 4, 2012.
To view New Brunswick Court of Appeal Files related to the above decision please follow these links:
Court of Appeal of N.B. File Number 50-12-CA Andre Murray V. The New Brunswick Police Commission:
