Professional Documents
Culture Documents
No. S004040
VANCOUVER REGISTRY
AND:
MINISTRY OF JUSTICE
REPUBLIC OF BULGARIA
RESPONDENT
NOTICE OF APPEAL FROM DUTY MASTER
WHEREAS on the 18th day of April, 2001, Brent Messenger, Manager Civil Programs Vancouver Law
Courts, advised the Plaintiff that the Duty Master had made an Order to return all Form 56 applications by
praecipe and Form 56A orders filed with the court. The Duty Master having ordered that the Plaintiff have
his applications spoken to. It is further complained here that, among other things, no copy of the Order was
provided the Plaintiff.
TAKE NOTICE THAT the Plaintiff appeals from that order and relies on provisions of subrule 59(2)
Rules of the Court and ss.3. 3(2) Supreme Court Act [RSBC 1996] to make application directly to Chief
Judge Baird Allen for Judicial Direction on the subject matter. Plaintiff does so as a result of the
circumstances of his imprisonment, the complex international nature of the case and urgency of the matter.
Judicial direction is sought from His Honor as to the practical matter of how best might the Charter rights
of the Plaintiff be guaranteed. This requirement is a result of the Defendant, Republic of Bulgaria, having
openly rejected the international, sine qua non, civil right of a citizen of Canada to participate in judicial
proceeding to which he or she isa party. In what manner, other than appearing before the Court, is the
Plaintiff to obtain judicial relief from an Order that as a practical matter has the dubious distinction of
procedurally obstructing the Charter rights of one party. Plaintiff appeals on the following grounds:
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1. The Order manifests as its practical consequence a violation of the ss.15 (1) Charter rights of
the Plaintiff. The Duty Master could easily ascertain from the applications and affidavits filed
that the circumstances of the Plaintiff, inter alia, his imprisonment; its duration of more than 5
years; the conditions of that imprisonment; the written statement of the Republic of Bulgaria
to not recognize the Plaintiff's civil rights; the health of his family and the personal
implications and impact on the Plaintiff, including his indigence, provided elements
recognizably making it difficult for the Plaintiff to have his Form 56 applications spoken to.
The Duty Master wrongly ordered the Plaintiff do something that the available facts setout
before the court demonstrated the Plaintiff could not be reasonably expected to do.
2. The Order effectively discriminates against a class of litigant that, due to circumstances
beyond his or her control, could not reasonably be expected to attend the court on his or her
own initiative or free will and in the absence of financial resources to secure legal counsel.
This state of affairs does unmistakably invoke a legal disability that makes impossible, in the
absence of a court subpoena, the Plaintiff to comply with any such Order that requires his
appearance. A fact sufficiently plain to the Master as to prejudice the equal protection and
benefit under law rights of the Plaintiff.
3. The Order has a further practical consequence, it obstructs the ss. 24(1) Charter rights of the
Plaintiffs. In the Master requiring the Plaintiff to do something that it is apparent from the
facts he can not possibly do without the court to assist, the Master has imposed, as a vicarious
element of his Order, a procedural obstruction to exercise a Charter guaranteed right.
4. The Order carries an undesirable consequence for any Canadian citizen who has the
misfortune to find himself or herself imprisoned and impoverished at the one and the same
instance. The Order denies a citizen of this unfortunate class any possibility or hope to
effectively pursue his or her lawful interests any farther than has this Plaintiff. The Master, in
this instance, has gone beyond the reasonable intent to hear the Plaintiff and has proceeded
toward the paradox of discriminating against one class of citizen who happen to be unfortunate
enough to be indigent, imprisoned and in litigation against a State.
5. The Order procedurally denies the possibility to this class of citizens to apply to a competent
court for any appropriate remedy to their complaints and such relief as might prove
appropriate and just in the circumstance. It is repressive and can be seen employed by the
Defendant to its advantage in the aboveentitled cause of action. The deprivation of liberty
imposed by the Defendant on the Plaintiff Kapoustin is regrettable, however it is not at issue in
case presently before the court. Instead deprivation of liberty and civil rights by the Defendant
are factors that by coincidence work together with the Order to obstruct the Plaintiffs Charter
rights.
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These are governing factors that make impossible for the Plaintiffs to be heard or otherwise
provide the court with substantive facts and documents. The Order denies the Plaintiff' the
possibility to provide written evidence essential to prove, among other things, that the Ministry
of the Attorney General of Canada is vicariously culpable to violations of the Plaintiffs S.7,
S.8 and S.12 Charter rights when making public untrue investigative conclusions. And that
apparently the Ministry of the Attorney General of Canada assisted in the violation of Plaintiff
Kapoustin's S.9, S.10, and Ss.11(a)(b)(d) Charter rights when failing to disclose its
participation in his arrest and prosecution on materials collected in the Province.
It is immaterial that the Plaintiff is incarcerated in a foreign State or if the Plaintiff was or was
not in the Province when his Charter rights where breached by agencies of the Government of
Canada and instrumentalities of the Republic of Bulgaria. However, it is of material
significance that a defendant in the aboveentitled proceeding is that foreign State imprisoning
the Plaintiff and apparently willing to interfere his international civil rights, the Charter and
powers of this Honorable Court.
6. The Order is inconsistent with Charter principles and the inherent jurisdiction of the court for
fair and efficient compensation for wrong and deterrence. The Master made no meaningful
effort in identifying or considering the controlling factors that might provide adequate causus,
ex proprio motu, for him to rely on provisions of subrule 53(5) Rules of the Court.
7. The Order denies the Plaintiff an opportunity to have the court exercise its residual fund of
procedural powers and tools necessary and at its disposal to ensure that the principles of the
Charter and natural justice are protected and sedulously fostered. This to be done at all stages
of every proceeding and manifestly must be seen to be done in a case of such complexity and
in the presence of one condition precedent of subrule 40(4) Rules of the Court. The Master, on
making the Order, failed to recognize the consequences to the Plaintiff's rights or to act to
protect those rights.
8. The Order failed to consider the imprisonment of the Plaintiff outside the district of the court
as a controlling factor on the Plaintiff. This despite it being apparent from the facts as
providing the cause for the Plaintiffs reliance on subrule 41(16.3) and subrule 41(13) Rules of
the Court. The situation before the Master was a conspicuous and sufficiently unique one to
have the court consider as appropriate one or more of the provisions of subrules 59(3) or (4)
Rules of the Court.
9. The Order failed to take reasonable and necessary steps to foster the Plaintiffs Charter rights
in one of the prescribed methods provided for by Rules of the Court. The Master failed to take
into account the residual fund of procedural powers of the Court to subpoena as provided for
by subrule 40(40) Rules of the Court and to employ provisions, mutatis mutandis, of ss.79
(1)(a) of the Extradition Act [1999 c.18]. This Honorable Court reasonably could have
required the cooperation of the foreign State Defendant, Republic of Bulgaria as a contracting
state party with Canada to the International Covenant On Civil and Political Rights, U.N.T.S.
No. 14668, Vol. 999 (1976), p.171.
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Applicable principles of international law consider it, sine qua non, a right of a litigant to be
heard and allowed to give evidence at any hearing or trial in which their lawful interests are at
risk. This procedural possibilty, as a practical consideration for imprisoned litigants, is
provided for in provisions of the Defendant foreign State's national Criminal Code of
Procedure Articles 463(2), 464, 465 and 466 and the principle of reciprocity among
democratic States and free societies. The Honorable Court, as a practical matter,is asked to
recall provisions of ss. 81(1) and S.82 of the Extradition Act as conditions that are consistent
with the Defendant's national law for temporary extradition.
THIS HONORABLE COURT IS REQUESTED TO:
1. Grant the Plaintiff leave and time sufficient to file a statement of facts in support of this appeal.
2. Contact the Defendant, Republic of Bulgaria counsel of record and obtain agreement of the Defendant
to not obstruct the Plaintiff's access to needed facilities and resources in pursuit of his lawful rights as
a litigant.
3. Accept into evidence Attachment No. 1, an English language transcripts of relevant provision of the
Criminal Code of Procedure, for the Republic of Bulgaria.
4. Accept into evidence Attachment No. 2, a true and correct copy of Defendant's correspondence
announcing to the Plaintiff that his civil rights have been restricted.
5. Accept into evidence Attachment No. 3, a true and correct copy of the April 18 th 2001 correspondence
of Mr. Brent Messenger, Manager Civil Programs Vancouver Law Courts.
This appeal to be heard in manner and in a place convenient to the Honorable Chief Judge at a time and on
a date to be set by him for an order or judicial direction.
Dated ....................................................... ...................................................................................
Plaintiff
Michael Kapoustin
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Attachment No. 1
Extracts Articles 462, 463(2), 464, 465, and 466 of the Criminal Code of Procedure Republic of Bulgaria.
Those provisions of law read as follows:
Chapter 22
Article 463
(1) …[Sic]
(2) Extradition of persons detained in custody to be interrogated
as witnesses or experts shall be allowed only in exceptional
cases by discretion of composition of the respective district
court, on the grounds of papers submitted by the other
country, provided the person gives his consent for
extradition, and the stay in the other country shall not
exceed the term of his detention in custody.
Procedure for Submission of Request to Another Country
Article 464
(1) The request for legal assistance shall contain data about:
the body filing the request; the subject and motive of the
request; full name and citizenship to whom the request
refers; name and address of person to whom papers are to
be submitted; where necessary the indictment and brief
description of the relevant facts.
(2) The request for legal assistance shall be forwarded to the
Ministry of Justice and Legal Euro-Integration, unless
another procedure is provided by international treaty to
which the Republic of Bulgaria is a party.
Execution of Request by Another Country
Article 465
Requests for legal assistance shall be executed pursuant to the
procedure provided by Bulgaria law. A procedure may also be
executed pursuant to procedure provided by the law of the other
country, should that requested and if it is not contradictory to the
Bulgarian law. The other country shall be notified of the time and
place of the execution of the request, should that be requested.
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Costs for Execution of Request
Article 466
The costs for execution of the request shall be distributed
between the countries in compliance with international treaties
to which the Republic of Bulgaria is a party, or on the basis of
the principle of reciprocity.
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