referal applicants post hearing brief

8/3/2019 Referal Applicants Post Hearing Brief

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Court File Number: F/M/1/11F/M/22/11

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDRE MURRAYApplicant,

-and-

THE NEW BRUNSWICK POLICE COMMISSION

Respondent,

_____________________________________________________________________

The Applicants Post-Hearing Brief Rules of Court, Rule 38.06.1

For joint Hearing regarding Court File Number: F/M/1/11 and F/M/22/11Filed by the Self Represented Applicant Andr Murray

_____________________________________________________________________

Andr MurrayThe Applicant

31 Marshall Street,Fredericton,New Brunswick,E3A 4J8Telephone Number:

E-mail address:[email protected]

Debora M. LamontStewart McKelveyBarristers, Solicitorsand Trademark AgentsSuite 600 Frederick Square 77Westmorland StreetP.O. Box 730Fredericton NBE3B 5B4Direct Dial:

506.443.0125Main Tel:

506.458.1970Fax: 506.444.8974Email:[email protected]

Debora M. LamontSolicitor for Respondent

The New Brunswick Police Commission / 435 King Street,Suite 202 / 435,Fredericton NBE3B 1E5Tel.(506) 453-2632Fax.(506) 457-3542


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PART 1 INDEX

The Plaintiffs Post-Hearing Brief PAGE

A. PART I INDEX ____________________________________ ii

B. PART II - ISSUES ____________________________________ 1

1. 1.02 Application______________________________________ 4

1.03 Interpretation ______________________________________ 5

Jurisdiction____________________________________________14

FORM 1 REFERRAL __________________________________ 35

Closing ______________________________________________ 36

NOTE _______________________________________________ 39

C. PART III ORDERS SOUGHT ________________________ 40 {(d) a concise statement of the relief sought by the party.}

D. Schedule A - A list of authorities in the order referred to in the Post Hearing Brief; _______________________________ 40

D. Schedule B - The text of all relevant provisions of Statutes orRegulations ___________________________________________45


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PART II - ISSUES

1. Maxim - Neminem laedit qui jure suo utitur . A person who exercises his

own rights injures no one. If as in this case the Applicant was actually

Defending a criminal matter then according to natural Justice a alleged

Defendant in a criminal matter would have the right to confront all

evidence intended for use in a fair hearing (therefore all substantive

information/material would have been revealed), which is one of the

fundamental principles of Justice adhered to in Canada. One of the

fundamental principles of justice is that no accusation be allowed to stand

unless there is sufficient evidence to support the allegation, however, the

Applicant in this matter has suffered injury and harm by judgment without

trial, experienced by arrest without warrant, therefore in the interest of

preventing further injustice, the Applicant to gain the information

necessary for his safety inter alia, is requesting of the Courts assistance to

take this alternative route, as contemplated by the drafters of Right to

Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6,.

2. The Applicant claims this Court has the power to order an investigation

at the behest of the alleged matters herewithin alluded to, (this is such a case)

when it is in the interest of the public good.

3. The Applicants request is believed to be meritorious requiring

therefore consideration of alleged substantive matters, as distinguished from

procedural issues in a case, furthermore Section 66 of the Right to Information

and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, provides this Courtwith the appropriate procedure and therefore jurisdiction to make the

requested Order.


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4. The Applicant believes that (pursuant to section 12 (1) (e) of the Police

Act) each police officer of the Fredericton Police Force is charged with

responsibility for serving and executing court process in respect of offences

against the law,

5. The purposes of this Right to Information and Protection of Privacy

Act, S.N.B. 2009, c. R-10.6 pursuant to section 2 (a ) is to allow any person a

right of access to records in the custody or under the control of public bodies,

subject to the limited and specific exceptions set out in this Act,

6. The Applicant believes that this subject request is: Necessary for the Applicants protection, safety and wellbeing.

Legally right; lawful; equitable

Congruent with fair and proper administration of laws.

Appropriate and well adapted to fulfilling intended objectivesas found drafted and issued therewithin the Right toInformation and Protection of Privacy Act.

Congruent with application of judicial discretion, that beingexercise of judgment by a judge or court based on what is fairunder circumstances and guided by rules and principles of law

7. The Applicant believes this subject request is not frivolous or

vexatious nor amounts to an abuse of the right to access as contemplated by

the drafters of Right to Information and Protection of Privacy Act, S.N.B.2009, c. R-10.6.


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8. The Applicant believes that without this Honorable Courts

intervention, the applicant will continue to be harassed, harmed, and injured,

furthermore, it is plain and obvious after 6 years of this abuse at the hands of

members of FREDERICTON POLICE FORCE (three separate arrests without

charge, including and or in some cases involving several illegal entries and

searches of the Applicants Residential Marshall Street Property) that the

Fredericton Police Force have no intention to uphold their Duty, to act to

protect the Applicant.

9. To assist this Honorable Court to come to a decision regarding theCourts Jurisdiction and Discretion to grant APPLICANTS requested Order,

as alleged herewithin, requiring for that reason an investigation into abuse and

malicious manipulation of the FREDERICTON POLICE FORCE services,

further, determining the volume and substance of telephone reports and

complaints containing erroneous and provocative allegations against Andr

Murray (Applicant in this matter) and further and most importantly that this

Honorable Court Order disclosure of same investigation to the APPLICANT.

10. The APPLICANT will review and define the relevant sections of the

law as the APPLICANT understands them as follows:

Judicature Act, R.S.N.B. 1973, c. J-2 Rules of Court of new Brunswick 1.02 Application, 1.03

Interpretation (1) (2) and 1.08 Orders on Terms Interpretation Act, R.S.N.B. 1973, c. I-13 section 17 Right to Information and Protection of Privacy Act, S.N.B.

2009, c. R-10.6 Section 2 and Section 66 The Police Act, SNB 1977, c P-9.2 section 12 Expressio Unius Est Exclusio Alterius definition: Latin: the

expression of one thing is the exclusion of the other.


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Leges posteriores priores contrarias abrogant. Latin:Subsequent laws repeal prior conflicting ones.

1.02 Application

11. 1.02 Application

These rules apply to all proceedings in the Court of Queens Bench andthe Court of Appeal unless some other procedure is provided under anAct.

12. Reference there is the underlying consideration of doing justice

between the parties (Grewal v. Minister of Employment and Immigration

(1986), 63 N.R. 106 (F.C.A.), as summed up by Mr. Justice Strayer ).

13. Black's Law Dictionary (8th ed. 2004), defines Justice, at Page 2527

2528 as follows:

JUSTICE justice. 1. The fair and proper administration of laws.

14. The following definition of fair is found at Merriam Webster online at

the following: address: http://www.merriam-webster.com/dictionary/fair

Main Entry: 1fair 6 a : marked by impartiality and honesty : free from self-interest,prejudice, or favoritism b (1) : conforming with the established rules : allowed

(2) : consonant with merit or importance : due c : open to legitimate pursuit, attack, or ridicule

15. Black's Law Dictionary (8th ed. 2004), defines fair, at Page 1788 as

follows

FAIRfair,adj.1. Impartial; just; equitable; disinterested


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19. 1.03 Interpretation

(1) Except where a contrary intention appears, the Interpretation Act andthe interpretation section of the Judicature Act apply to these rules.

(2) These rules shall be liberally construed to secure the just, leastexpensive and most expeditious determination of every proceeding on itsmerits.

20. As stated in section 1.03 (1) Except where a contrary intention appears,

(in this case there is none) the Interpretation Act and the interpretation section

of the Judicature Act apply to these rules

21. Black's Law Dictionary (8th ed. 2004), defines Justice, at Page 2527

2528 as follows:

JUSTICE justice. 1. The fair and proper administration of laws.

22. Furthermore, regarding the New Brunswick Rules of court, Rule

1.03(2) to secure the just, least expensive and most expeditious determination

of every proceeding on its merits, it is my understanding that Judgment onthe merits is a judgment made after consideration of the substantive, as

distinguished from procedural issues in a case. Further to this point please find

the following definition of Merits.

23. Black's Law Dictionary (8th ed. 2004) at Page 3136 May it please the

Honorable Court the defines merits as the following:

MERITS

merits. 1. The elements or grounds of a claim or defense; thesubstantive considerations to be taken into account in deciding a case,as opposed to extraneous or technical points, esp. of procedure .


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2.EQUITY(3) .

24. The rules of Court 1.03 (2) states These rules shall be liberally

construed ; may it please the Honorable Court the please find the following

definition of Construed.

Black's Law Dictionary (8th ed. 2004) at Page 947 defines Construe asfollows:

CONSTRUEconstrue (kn-stroo), vb. To analyze and explain themeaning of (a sentence or passage) .

Furthermore: May it please the Honorable Court the

Black's Law Dictionary (8th ed. 2004) at Page 2526 defines Just as follows:

JUST just, adj. Legally right; lawful; equitable

25. When viewed in the here within above language, the defined words arefollowed by bracketed definitions, the Rule 1.03 (2) reads: These rules shall

be liberally construed (analyzed and the meaning of explained ) to secure the

just (Legally right; lawful; equitable), least expensive and most expeditious

determination of every proceeding on its merits (The elements or grounds of a

claim or defense; the substantive considerations to be taken into account in

deciding a case, as opposed to extraneous or technical points, esp. of

procedure).

26. Furthermore, May it please the Honorable Court the Merriam-

webster.com defines merit at the following address


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(http://mw4.merriam-webster.com/dictionary/merits) as follows:

Main Entry: 1merit1 a obsolete : reward or punishment due b : the qualities or actions thatconstitute the basis of one's deserts c : a praiseworthy quality : virtue d: character or conduct deserving reward, honor, or esteem; also :achievement2 : spiritual credit held to be earned by performance of righteous actsand to ensure future benefits3 a plural : the substance of a legal case apart from matters of

jurisdiction, procedure, or form b : individual significance or justification

27. The APPLICANT, requests that the Court keep with the general

direction contained in the New Brunswick Rules of court Rule 1.03(2). to

secure a fair, just and balanced determination, based on the MERITS. There is

a need to protect against rigid compliance with the rules taking precedence

over resolving the dispute and furthermore, securing a just and meritorious

determination. In this case the rules of Court grant this Court the jurisdiction

and discretion to grant the relief sought by the APPLICANT, so there is no

procedural hang up in issue.

28. The APPLICANT justly seeks a fair opportunity to have this

Honorable Court make an Order which may resolve the issues which the

APPLICANT is requesting relief, and this Court has the discretion to grant this

requested Order.

29. In Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H.McLellan stated his view regarding the discretion of the Trial Judge and also

his view that the Court of Appeal has reaffirmed that matters of civil


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procedure should be decided on their substance and merits, May it please the

Honorable Court found at page 9 to page 17 as, follows:

It seems to me to be worthy particular emphasis that thephrase "should not be granted except for the most compellingreasons" are not found in the Rules of Court. Those wordsappear to me to be inconsistent with both the letter and the spiritof the Rules and the Judicature Act, which, for example, in s.26(3) uses words such as "as to the Court seems just".

30. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327

provided the following excerpt:Leges posteriores priores contrarias abrogant. Subsequent lawsrepeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S.Statutes 287, 294.]

31. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294

provide the following excerpt:

Expressio unius est exclusio alterius. The expression of one thing is theexclusion of another.

32. The definition of Expressio Unius Est Exclusio Alterius may be found

at the following website

(http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlteri

us.aspx ) and is reproduced below for convenience:

Expressio Unius Est Exclusio Alterius definition:Latin: the expression of one thing is the exclusion of the other.

In Rodaro, Justice, at 856, defined the Latin maxim expressio uniusest exclusio alterius as follows:"... a maxim of interpretation meaning that the expression of one thingis the exclusion of the other. When certain persons or things arespecified in a law, contract or will, an intention to exclude all others


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from its operation may be inferred. In this case, the reference to theassignment to a financial institution excludes assignment to any other

entity."

In Dorval, Justice Cameron expressed it as:"... to express one thing is to exclude another."

33. Rule 59.01 of the Rules of Court, state that the costs of a proceeding

are in the discretion of the Court, subject to any Act and these rules of Court,

Rule 59.01 of the Rule so of Court is reproduced as follows:

59.01 Authority of the Court(1) Subject to any Act and these rules, the costs of a proceeding or astep in a proceeding are in the discretion of the court and the court maydetermine by whom and to what extent costs shall be paid.

34. Rule 59.01 of the Rules of Court, specifically expresses the courts

discretion when awarding Costs to Parties. Rule 59.01 recognized that the

discretion regarding cost is subject to the Acts of New Brunswick as well as

any Rules of Court to the contrary. Section 76 of the Right to Information and

Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is just such a Rule, the

Maxim Leges posteriores priores contrarias abrogant (Subsequent lawsrepeal those before enacted to the contrary, a.k.a. "Last in Time") and affirmed

by the Maxim Expressio Unius Est Exclusio Alterius (The express mention

of one thing excludes all others) }, which limits the discretion of the Court,

when deciding Costs on a Referral Hearing.

35. Section 76 of the Right to Information and Protection of Privacy Act,

S.N.B. 2009, c. R-10.6 provides the following

Costs76(1) If a matter is referred to a judge of The Court of Queens Benchof New Brunswick under subsection 65(1) or appealed to a judge of The Court of Queens Bench of New Brunswick under section 75, the


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judge shall award costs in favour of the person who referred orappealed the matter

(a ) where the person is successful, and

(b) where the person is not successful, if the judge considers it to be inthe public interest.

76(2) Despite subsection (1), a judge of The Court of Queens Benchof New Brunswick may award costs in favour of the public body if the

judge considers that the matter for review or appeal is frivolous orvexatious or amounts to an abuse of the right to access.

36. Section 76 of the Right to Information and Protection of Privacy Act,S.N.B. 2009, c. R-10.6 according to the Maxim to express one thing is to

exclude another makes its interpretation clear, specifically regarding costs

that The Court of Queens Bench of New Brunswick may award costs in

favour of the public body only if the judge considers that the matter for review

or appeal is frivolous or vexatious or amounts to an abuse of the right to

access. In comparison Section 66 of RTIPPA not so limited.


S.N.B. 2009, c. R-10.6 states the following

Decision of The Court of Queens Bench66(1) If a matter is referred to a judge of The Court of Queens Benchof New Brunswick under subsection 65(1), the judge shall hold ahearing and,

(c) may make any other order that is, in the opinion of the judge,necessary.


S.N.B. 2009, c. R-10.6 is restrictive regarding the Order as to Costs that this

Court may make, probably because the Right to Information and Protection of


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Privacy Act, S.N.B. 2009, c. R-10.6 is a tool to be used by the people and for

the peoples benefit. The idea of the publics tax dollars being used to fund a

legal council hired thereby to advise the executive head of a public body

(funded by public tax dollars) who for that reason will fight a Taxpayer in the

Honorable Court of Queens Bench; moreover a Tax payer who is attempting

to retrieve information the Taxpayer believes he is entitled to. Section 76 of

the Right to Information and Protection appears to be legislation issued as a

governor on the throttle, so as to limit the harm imposed on the public.

39. Section 66 is in the alternative is expansive, allowing this Court thediscretion to make any other order that is, in the opinion of the judge,

necessary to provide relief to the public, and allow for the Court to be creative,

in areas where the drafters of the Right to Information and Protection of

Privacy Act, S.N.B. 2009, c. R-10.6, left out possible just relief.

40. The definition of opinion may be found at the following website

(http://www.merriam_webster.com/dictionary/opinion) and is reproduced

below for convenience:

Definition of OPINION1 a : a view, judgment, or appraisal formed in the mind about aparticular matter

2 a : belief stronger than impression and less strong than positiveknowledgeb : a generally held view

41. The definition of opinion may be found at the following website

(http://www.thefreedictionary.com/opinion) and is reproduced below for

convenience:

opinion [??p?nj?n] n


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1. judgment or belief not founded on certainty or proof 2. the prevailing or popular feeling or view public opinion

3. evaluation, impression, or estimation of the value or worth of aperson or thing

42. The definition of DISCRETION is provided by Black's Law Dictionary

(8th ed. 2004), at Page 1405 and 1406

DISCRETIONdiscretion (di-skresh-n).1. Wise conduct and management;cautious discernment; prudence.

2. Individual judgment; the power of free decision-making.sole discretion. An individual's power to make decisions withoutanyone else's advice or consent.

4. A public official's power or right to act in certain circumstancesaccording to personal judgment and conscience, often in an official orrepresentative capacity. Also termed discretionary power.

administrative discretion.A public official's or agency's power toexercise judgment in the discharge of its duties. [Cases: AdministrativeLaw and Procedure 324, 754. C.J.S. Public Administrative Law and

Procedure 60, 206, 223.] judicial discretion. The exercise of judgment by a judge or court basedon what is fair under the circumstances and guided by the rules andprinciples of law; a court's power to act or not act when a litigant is notentitled to demand the act as a matter of right. Also termed legaldiscretion. [Cases: Courts 26. C.J.S. Courts 3, 6465, 67.]

43. The definition of NECESSARY AND PROPER is provided by Black's

Law Dictionary (8th ed. 2004), at Page 3273

NECESSARY AND PROPERnecessary and proper,adj. Being appropriate and well adapted tofulfilling an objective.


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44. When read in the above referenced language, bold words are defined

with the following brackets, section 66(1) ( c) reads as follows the Court may

make any other order that is, in the opinion ( judgment, or appraisal formed in

the mind about a particular matter) of the judge, necessary (Being appropriate

and well adapted to fulfilling an objective.). This is congruent with the

definition of judicial discretion, which is the exercise of judgment by a judge

or court based on what is fair under the circumstances and guided by the rules

and principles of law.

45. The Right to Information and Protection of Privacy Act, S.N.B. 2009,c. R-10.6, 66(1) ( c), states the jurisdiction and the discretion of this Honorable

Court as follows (Honorable Court) may make any other order (jurisdiction

stated) that is, in the opinion (discretion) of the judge, necessary (Being

appropriate and well adapted to fulfilling an objective.). The APPLICANT

believes that this statement is most similar to the definition of judicial

discretion found in blacks Law Dictionary, which reads The exercise of

judgment by a judge or court based on what is fair under the circumstancesand guided by the rules and principles of law; a court's power to act or not act

when a litigant is not entitled to demand the act as a matter of right .

Jurisdiction

46. In determining if this Honorable Court has Jurisdiction to make an

order, which would Order the Fredericton Police Force to conduct an

investigation as requested by the APPLICANT, may require the interpretation

of three statues namely:

Right to Information and Protection of Privacy Act, SNB 2009, cR-10.6


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Judicature Act, R.S.N.B. 1973, c. J-2

Police Act, SNB 1977, c P-9.2

47. Judicature Act, R.S.N.B. 1973, c. J-2 claims that the Act is

notwithstanding any other Act, which would of course include Right to

Information and Protection of Privacy Act, SNB 2009, c R-10.6 and the

Police Act, SNB 1977, c P-9.2.

48. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327

provided the following excerpt:

Leges posteriores priores contrarias abrogant. Subsequent lawsrepeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S.Statutes 287, 294.]

49. The definition of the Maxim Leges posteriores priores contrarias

abrogant is provided at the Legal Dictionary website at the following URL at

(http://legal-

dictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abrogant)

Leges posteriores priores contrarias abrogant. Subsequent laws

repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co.

626, 630. A Law Dictionary, Adapted to the Constitution and Laws

of the United States. By John Bouvier. Published 1856.

50. The definition of Leges posteriores priores contrarias abrogant is

provided by Wikipedia, at the following URL:

http://en.wikipedia.org/wiki/Implied_repeal

Implied repeal


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The doctrine of implied repeal is a concept in English

constitutional theory which states that where an Act of Parliamentconflicts with an earlier one, the later Act takes precedence and theconflicting parts of the earlier Act are repealed (i.e. no longer law).This doctrine is expressed in the Latin phrase "leges posteriorespriores contrarias abrogant".

51. Leges Posteriores Priores Contrarias Abrogant: This method of

statutory construction in this case, could apply to:

Right to Information and Protection of Privacy Act, SNB 2009,

c R-10.6 and, Judicature Act, R.S.N.B. 1973, c. J-2. and, Police Act, SNB 1977, c P-9.2,

but it does not , because there is not conflicting portions or sections . The

concept of this maxim is the newer statute later abrogates a prior statute only

where the two are manifestly inconsistent with and repugnant to each other.

The rationale for this form of construction is that the newer statute more

accurately depicts the current societal mood or more appropriately applies

Jurisdiction to a given subject.

52. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which

includes notwithstanding is reproduced below as follows:

9(1) Notwithstanding anything in the provisions of this or any otherAct or the Rules of Court, the Trial Division shall have and exercisegeneral and original jurisdiction in all causes and matters including

jurisdiction in the following matters, namely:

(a) all causes and matters, civil and criminal, that were within theexclusive cognizance of the Supreme Court in the exercise of itsoriginal common law jurisdiction, before the commencement of theJudicature Act, 1909;


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(b) all causes and matters that prior to July 1, 1966, were assigned toor cognizable by the Chancery Division;

(c) all causes and matters that prior to September 4, 1979, were withinthe jurisdiction of the County Court of New Brunswick; and

(d) all causes and matters that prior to September 4, 1979, were withinthe jurisdiction of the Queens Bench Division of the SupremeCourt.

53. For the benefit of the Court, the following definition of

notwithstanding is provided from:

http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspxNotwithstandingIn spite of, even if, without regard to or impediment by other things.

In spite of, even if, without regard to or impediment by other things asstated.

54. Additionally, the following definition of notwithstanding is from

Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows:

NOTWITHSTANDINGnotwithstanding, prep. Despite; in spite of .

55. To understand the use of the term and meaning of notwithstanding

requires that we interpret the subject statutes. The interpretation of a statute is

a question of law, and correctness is the standard of review applicable in this

case. Statutory interpretation should be approached with the following

analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII

837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41:

Although much has been written about the interpretation of legislation. . ., Elmer Driedger in Construction of Statutes (2nd ed. 1983) best


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encapsulates the approach upon which I prefer to rely. He recognizesthat statutory interpretation cannot be founded on the wording of the

legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of anAct are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

56. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2

S.C.R. 559 Justice IACOBUCCI J., provided the following insight into the

Principles of Statutory Interpretation:

Today there is only one principle or approach; namely, thewords of an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with thescheme of the Act, the object of the Act, and the intention of Parliament.

provides that every enactment is deemed remedial, and shallbe given such fair, large and liberal construction andinterpretation as best ensures the attainment of its objects.

words, like people, take their colour from their surroundings.This being the case, where the provision under consideration isfound in an Act that is itself a component of a larger statutoryscheme, the surroundings that colour the words and the schemeof the Act are more expansive.., as the principle of interpretation that presumes a harmony, coherence, andconsistency between statutes dealing with the same subjectmatter.

Other principles of interpretation such as the strictconstruction of penal statutes and the Charter valuespresumption only receive application where there isambiguity as to the meaning of a provision.


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What, then, in law is an ambiguity? It is only when genuineambiguity arises between two or more plausible readings, each

equally in accordance with the intentions of the statute, that thecourts need to resort to external interpretive aids (emphasisadded), to which I would add, including other principles of interpretation.

57. For comparison, let us review The New Brunswick Interpretation Act,

R.S.N.B. 1973, c. I-13 which states:

17 Every Act and regulation and every provision thereof shall bedeemed remedial, and shall receive such fair, large and liberal

construction and interpretation as best ensures the attainment of theobject of the Act, regulation or provision.

58. It is a well established principle of statutory interpretation that the

legislature does not intend to produce absurd consequences. According to

Ct, supra , an interpretation can be considered absurd if it leads to ridiculous

or frivolous consequences, if it is extremely unreasonable or inequitable, if it

is illogical or incoherent, or if it is incompatible with other provisions or with

the object of the legislative enactment. Sullivan echoes these comments notingthat a label of absurdity can be attached to interpretations which defeat the

purpose of a statute or render some aspect of it pointless or futile.

59. The Applicant will refer to and rely on the well established principle of

statutory interpretation, that:

the legislature does not intend to produce absurd consequences.

an interpretation may be considered absurd, if it leads to ridiculousor frivolous consequences, if it is extremely unreasonable orinequitable, if it is illogical or incoherent, or if it is incompatiblewith other provisions or with the object of the legislative enactment


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a label of absurdity may be attached to interpretations which defeat

the purpose of a statute or render some aspect of it pointless orfutile.

60. APPLICANT in this matter, argues that a label of absurdity may be

attached to interpretations of the Right to Information and Protection of

Privacy Act, that, which may defeat the purpose of a statute or render some

aspect of it pointless or futile.

61. In applying this principle it is instructive to look at the objectives set

out in section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides

the Trial Division shall have and exercise general and original jurisdiction in

all causes and matters , while at the same time, section 66 (1) (c) of the Right

to Information and Protection of Privacy Act, SNB 2009, c R-10.6 clearly

reiterates the jurisdiction of a Judge of The Court of Queens Bench of New

Brunswick in relation to matters governed by Information and Protection of

Privacy Act, S.N.B. 2009, c. R-10.6. The Applicant reasonably submits that

the legislation in question, Right to Information and Protection of Privacy Act,S.N.B. 2009, c. R-10.6 is not by any means ambiguous, and the intention is to

make abundantly clear the relationship, role and jurisdiction of Judges of The

Court of Queens Bench Trail Division of New Brunswick.


S.N.B. 2009, c. R-10.6 provides the following

Decision of The Court of Queens Bench66(1) (c)If a matter is referred to a judge of The Court of QueensBench of New Brunswick under subsection 65(1), the judge shall holda hearing and,

(a ) where the matter is referred by an applicant,


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(i) if the head of a public body denied a request for information

in whole or in part, may order the head of the public body togrant the request in whole or in part, and

(c) may make any other order that is, in the opinion of the judge,

necessary

63. The following explanation of Statutory interpretation is provided at

Wikipedia located at the following URL:

http://en.wikipedia.org/wiki/Statutory_interpretation

Conflicts between sources of law

Where legislation and case law are in conflict, there is a presumptionthat legislation takes precedence insofar as there is any inconsistency.In the United Kingdom this principle is known as ParliamentarySovereignty. In Australia and in the United States, the courts haveconsistently stated that the text of the statute is used first, and it is readas it is written, using the ordinary meaning of the words of the statute.

U.S. Supreme Court: "[I]n interpreting a statute a court should

always turn to one cardinal canon before all others. . . .[C]ourtsmust presume that a legislature says in a statute what it meansand means in a statute what it says there." Connecticut Nat'lBank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "whenthe words of a statute are unambiguous, then, this first canon isalso the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.

Supreme Court of Virginia: "A fundamental rule of statutoryconstruction requires that every part of a statute be presumed tohave some effect, and not be treated as meaningless unlessabsolutely necessary." Raven Coal Corp. v. Absher, 153 Va.332, 149 S.E. 541 (1929).

Supreme Court of Alaska: "In assessing statutory language,unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to beconstrued in accordance with their common usage." Muller v.


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BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska1996);

64. An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra,

can also be buttressed by the maxim expressio unius est exclusio alterius.

Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6

clearly defines the role of a judge of The Court of Queens Bench of New

Brunswick, in relation to matters governed by the Right to Information and

Protection of Privacy Act, S.N.B. 2009, c. R-10.6. In section 66 (1)(c) of the

Act, Section 66(1) (c) reaffirms the jurisdiction of a Judge of The Court of

Queens Bench of New Brunswick to act and in that capacity. If the legislation

within the Right to Information and Protection of Privacy Act, S.N.B. 2009, c.

R-10.6, intended that a Judge of The Court of Queens Bench of New

Brunswick shall not have unlimited jurisdiction already granted by Section

9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been

a need to include conditions on how a judge of The Court of Queens

Bench of New Brunswick has jurisdiction to act and in what capacity ,

(example Section 76 of the same Act) which has the effect of excluding whilelimiting the already granted jurisdiction of the Court as per the maxim

expressio unius est exclusio alterius.

65. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294

provide the following excerpt:

Expressio unius est exclusio alterius. The expression of one thing is theexclusion of another. Also termed Inclusio unius est exclusio alteriusor enumeratio unius est exclusio alteriu. [Cases: Contracts 152;Statutes 195. C.J.S. Contracts 307, 318322, 327, 331; Statutes 323.]


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66. The definition of Expressio Unius Est Exclusio Alterius may be found

at the following website

(http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlteri

us.aspx ) and is reproduced below for convenience:

Expressio Unius Est Exclusio Alterius definition:Latin: the expression of one thing is the exclusion of the other.

Sometimes referred to in short form as expressio unius.

In Rodaro, Justice, at 856, defined the Latin maxim expressio unius

est exclusio alterius as follows:"... a maxim of interpretation meaning that the expression of one thingis the exclusion of the other. When certain persons or things arespecified in a law, contract or will, an intention to exclude all othersfrom its operation may be inferred. In this case, the reference to theassignment to a financial institution excludes assignment to any otherentity."

In Dorval, Justice Cameron expressed it as:"... to express one thing is to exclude another."

In Transpacific, Justice Lysyk described it as follows:"The principle ... expressio unius est exclusio alterius: the expressmention of one or more things of a particular class may be regarded asimpliedly excluding others."

Although the doctrine is useful in determining the extents of contracts,it is also an important principle in the construction of statutes. In herbook on the topic, jurist Ruth Sullivan wrote:

"One of the so-called maxims of statutory interpretation is expressiounius est exclusio alterius: to express one thing is to exclude another.

"The maxim reflects a form of reasoning that is widespread andimportant in interpretation .... the a contrario argument ... negativeimplication ..implied exclusion ...

"An implied exclusion argument lies whenever there is reason to


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believe that if the legislature had meant to include a particular thingwithin the ambit of its legislation, it would have referred to that thing

expressly. Because of this expectation, the legislatures failure tomention the thing becomes grounds for inferring that it wasdeliberately excluded. Although there is no express exclusion,exclusion is implied."

REFERENCES:Dorval v Dorval 2006 SKCA 21Rodaro v Royal Bank of Canada 2000 OJ 272Sullivan, R., Driedger on the Construction of Statutes, 3rd Ed.(Toronto: Butterworths, 1994), page 168Transpacific Tours Ltd. v. Director of Investigation & Research 25

DLR 4th 202; also at (1986) 2 WWR 34; 24 CCC 3d 103; 8 CPR 3d325; 20 CRR 337 and 68 BCLR 32

67. The APPLICANT believes, that, the herewithin above principles of

statutory interpretation are persuasive, especially when considering, that, when

certain things are specified in a law, an intention to exclude all others from its

operation may be inferred, or to put it another way the intention is a

expression of the one thing is the exclusion of the other thing. Because of

this expectation, the legislatures failure to mention the limitation of

jurisdiction of this Court (regarding Section 66 of Right to Information and

Protection of Privacy Act, S.N.B. 2009, c. R-10.6), becomes grounds for

inferring that it was deliberately not exclusionary, hence for that reason this is

an expression of the Honorable Courts jurisdiction to act, therefore, is the

exclusion of the possibility, that this Court has limitations of jurisdiction to

render decisions, which, may not at first glance, appear to be under the Right

to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6.


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68. The Right to Information and Protection of Privacy Act, S.N.B. 2009,

c. R-10.6 specifically designates authority or jurisdiction to a Judge of The

Court of Queens Bench of New Brunswick under subsection 66(1) (c)

specifically as the Court's power to decide a case or issue and the Court may

make any other order that is, in the opinion of the judge, necessary.

69. Maxim - Neminem oportet esse sapientiorem legibus . No one ought to

be wiser than the laws. The Police Act, SNB 1977, c P-9.2 section 12 lists the

Duties of police officer as follow:

12(1) Each police officer is charged with responsibility for

(a) maintaining law and order,

(b) preventing offences against the law,

(c) enforcing penal provisions of the law,

(d) escorting and conveying persons in custody to orfrom a court or other place,

(e) serving and executing court process in respect of offences against the law,

(f) maintaining order in the courts,

70. The Police Act, SNB 1977, c P-9.2 section 12 lists the Duties of police

officer including performing the Order as requested by the APPLICANT for

these reasons would further promote the members of FREDRICTON POLICE

FORCE pursuant to The Police Act, SNB 1977, c P-9.2, to be maintaining lawand order, preventing offences against the law and to be serving and executing

court process in respect of offences against the law.


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71. Maxim Nemo est supra leges. No one is above the laws. The Police

Act, SNB 1977, c P-9.2 does not preclude this Court from making Order as

requested by the Applicant, for that reason, the expression of one thing is the

exclusion of another, meaning: the Court may issue such an Order, that,

which, would in fact be congruent with the mandate of the Police Act, SNB

1977, c P-9.2 and would, therefore, be directly aiding the members of

FREDRICTON POLICE FORCE in their prescribed Duties of a police officer,

according to above section 12.

72. The APPLICANT submits, that because of Jurisdiction {not reduced orabrogated in anyway pursuant to the Maxim Leges posteriores priores

contrarias abrogant (Subsequent laws repeal those before enacted to the

contrary, a.k.a. "Last in Time") and affirmed by the Maxim Expressio Unius

Est Exclusio Alterius (The express mention of one thing excludes all

others) }, this Honorable Court can and should (in this matter) render a

decision which would provide necessary relief as requested by the

APPLICANT, which may clearly determine the nature and degree of thealleged Obstruction of the Police inter alia:

1. Order an investigation to determine is there is substance to thealleged abuse and malicious manipulation of the Fredericton PoliceForce services.

2. The Investigation shall reveal the excessive volume of `nonproductive` complaint telephone calls regarding the Applicant and orApplicants residence 29 31 Marshall Street over the 6 year periodfrom 2005-2011

3. The Investigation shall reveal the number of non eventresponses by FREDERICTON POLICE FORCE to Investigate theApplicant and or Applicants residence 29 31 Marshall Street overthe 6 year period from 2005-2011


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4. Moreover, the Investigation may conclusively reveal the

unfounded substance of the telephone reports and complaints toFREDERICTON POLICE FORCE regarding the Applicant and orApplicants residence of 29 31 Marshall Street over the 6 year periodfrom 2005-2011.

5. The Investigation may reveal the identity of the telephonereports and determine why the complaints are without substancenevertheless caused suffering of the innocent Applicant by relentlessstalking and or surveillance or the Applicants residence of 29 31Marshall Street occurring regularly over the 6 year period from 2005-

2011.

6. Finally Order full disclosure of same investigation to theApplicant that the Applicant may acquire a Cease and desist Order forthe protection of his body and sole.

73. The Applicant researched CanLii for cases providing examples,

therefore, of a Court of Queens Bench actually Ordering an investigation of a

Municipal Police Force furthermore Ordering a Police Force to reveal records

as the case may be. The closest two themes of decisions which referred to acourt ordered investigation are concerning Business Corporations Act,

S.N.B., 1981, c. B-9.1 and Family Services Act (S.N.B. 1980, c. F-2.2).

74. Business Corporations Act refers to Court of Queens Bench ordering

an investigation into corporate conduct, by checking the corporate records,

inter alia, to protect the shareholders of corporations.

75. In Catalyst Fund General Partner I Inc. v. Hollinger Inc., 2004 CanLII

66299 (ON SC), Justice C. Campbell J.: stated the following regarding the


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issues of scope, extent, timing and cost of Court of Queens Bench court

ordered investigation.

[62] In my endorsement I indicated that an opportunity would beprovided to counsel to address the issues of scope, extent, timing andcost of inspection.

[63] Some of these issues may be formulated in the followingquestions that arise from the matters referred to in s. 230(1) of theCBCA :

1. What are the matters to be investigated?

2. What mandate should the inspector have?

3. Who is an appropriate person or persons to conduct theinspection?

4. How will the inspection be carried out?

5. Extent of access the inspector should have, furthermore, accessto which type of material in the possession of which parties?

6. Which person or persons should be required to respond toinquiries and should their responses be evidence given byoath?

7. Schedule of timeframe thought to a reasonable estimate forcarrying out the inspection?

8. Estimated cost and who should bear that cost?

9. How will the report be provided to the Court?

10. How to avoid disputes between the interests of Partiestherefore establishing a credible inspection deserving of respect?


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76. As similarly contemplated in Catalyst Fund General Partner I Inc. v.

Hollinger Inc., 2004, the Applicant respectfully suggests the following

procedure:

1. What is the criterion to be investigated?

The Investigation should reveal the precise volume of complaintcalls received by FREDERICTON CITY POLICE FORCEregarding 29 31 Marshall Street over the 6 year period from2005-2011

The Investigation should reveal the number of FREDERICTONCITY POLICE FORCE responses to 29 31 Marshall Street overthe 6 year period from 2005-2011

The Investigation should reveal the substance of the telephonereports and complaints of calls to FREDERICTON CITY POLICEFORCE regarding 29 31 Marshall Street over the 6 year periodfrom 2005-2011.

The Investigation should reveal the identity of the caller of thesubject FREDERICTON CITY POLICE FORCE telephone reportsand complaints regarding calls to 29 31 Marshall Street over the6 year period from 2005-2011.

Order disclosure subject investigation to the Applicant.

2. What mandate should the inspector have?

Black's Law Dictionary (8th ed. 2004) , at Page 3049 provides thedefinition of MANDATE:

mandate,n. 2. A judicial command directed to an officer of thecourt to enforce a court order.

The investigator for that reason assigned to this case may have themandate to resolve how it is that so many complaints are unfoundedwithout substance and further solve the questions mistaken identity

resulting inter alia in false arrests that which is in public interest tocritique and entirely eliminate dangerous practices of theFREDERICTON CITY POLICE FORCE. What are the matters to beinvestigated?


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3. Who is an appropriate person or persons to conduct theinspection?

The FREDERICTON CITY POLICE FORCE, have designatedindividuals who conduct investigations on a regular basis. These sameindividuals would likely be the most experiences and directedindividuals to conduct the requested investigation.

4. How will the inspection be carried out?

May this please the Honorable Court: Since we live in the days and ageof computers, to produce the results from the computers used by TheFREDERICTON CITY POLICE FORCE, who reasonably have

computerized databases to keep track of such calls (topic of thisrecitation) which the FREDERICTON CITY POLICE FORCEregularly receive; this computerized search would reasonably take littletime at all. It is a matter of typing in key word searches and hit theprint button.

5. Type of access the inspector should have to identified materialin the possession of which parties?

The Fredericton Police Force, investigator would likely only need toconduct a search of the Fredericton Police force computerized

databases.

6. Which person or persons should be asked to respond toinquiries? Should there be evidence under oath?

Members of FREDERICTON CITY POLICE FORCE, would onlyneed to conduct a search of the FREDERICTON CITY POLICEFORCE computerized databases for that reason eliminating any needto question the source of the information.

7. What timeframe is a reasonable estimate for carrying out the

inspection?

We live in the days and age of computers, to produce the results fromthe computers used by FREDERICTON CITY POLICE FORCE, whoreasonably have computerized databases, would take little to no time at


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all. It is a matter of typing in key word searches and hit the printbutton. The time frame to organize in preparation and execute search

thereby including accumulation of relevant information would involveno more than an hour or two of time.

8. What is the estimated cost and who should bear that cost?

FREDERICTON CITY POLICE FORCE, naturally have individualsdesignated who for that reason conduct investigations on a regularbasis. They are of course already paid to provide investigativeServices moreover appear to be victims of Obstruction.

9. How will the inspector report findings?

The Investigator should provide a written report first of all for thisHonorable Courts consideration, which may be forwarded at theCourts discretion to the Applicant and THE NEW BRUNSWICKPOLICE COMMISSION.

10. How will disputes with respect to the conduct of theinspection be dealt with?

77. In R. v. Lam, 2008 BCPC 248 (CanLII), though the requested Order is

different, regarding The issue in this case is whether a Provincial Court

judge can order the police to release items seized The Honourable Judge M.

F. Giardini, discusses the subject of the Authority of the Court To Make an

Order, further the Court states It is possible that a court with inherent

jurisdiction may have jurisdiction to make the order sought , from paragraph

35 through to and including paragraph 45 as follows:

Is Authority To Make Order Implied?

[35] The next question, in the absence of an express provision allowing this Courtto make such an order, is whether such authority is conferred by necessaryimplication or on some other basis.

[36] Mr. Lam brought this application under s. 490(1) and (2) so I will specificallyconsider whether those subsections give this Court the authority to make the order


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Mr. Lam seeks. In doing so I am guided by the comments and conclusions of Chief Justice McLachlin in R. v. Raponi . In that case the Supreme Court of Canadaconsidered whether a Provincial Court judge had the jurisdiction to order the returnof $35,000 which had been seized by police without a warrant and withoutdemonstrating reasonable grounds. The procedure, history and background facts of that case are somewhat convoluted and will not be repeated here. However, theconclusions of the court on the issue of jurisdiction are apposite to the matter beforeme.

[37] The Provincial Court judge in that case made an order returning the money tothe applicant. In doing so he held the Code conferred on him the jurisdiction to makean order implicitly, if not expressly. The first question the Supreme Courtconsidered was whether the Provincial Court judge could order improperly seizeditems returned under s. 490(2). The Supreme Court ruled he could not and stated:

... While the Provincial Court judge acted in a s. 490(2) hearing, that section dealsonly with extending the time of detention beyond three months. The only question tobe considered by the Provincial Court judge is whether continued detention isrequired by a proceeding that has been instituted or by an investigation. [para. 29]

[38] This application is brought by Mr. Lam under s. 490(1) and (2), however,neither of those sections provide a basis for the order sought. Section 490(1)provides for detention of seized materials and for the return of seized materials to thelawful owner or person who is lawfully entitled to possession unless the justice issatisfied the things seized should be detained. In this case a determination under s.490(1) was made by a justice on January 18, 2008. This subsection does not, in myview, provide a basis to make the order now sought.

[39] Section 490(2) provides that things seized cannot be detained more than threemonths unless proceedings are instituted which may require the things detained orunless a justice is satisfied that continued detention is warranted. As noted in R. v.

Raponi the only question to be considered by a Provincial Court judge under thissubsection is whether continued detention is warranted. The hearing on that issue isset for January 12, 2009 and is not before me on this application. Accordingly, thissubsection does not provide a basis to make the order now sought.

[40] Mr. Lam submits that the authority to grant the order sought can be gleanedfrom s. 490 as a whole and in particular s. 490(1)(b), s. 490(2), s. 490(5). He submitsI should give the legislation a fair, large and liberal interpretation pursuant to s. 12 of the Interpretation Act .

[41] In my view, the sections of the Code to which I was directed do not supportthe proposition, by necessary implication, that a Provincial Court judge can orderpolice to place lawfully seized things with the Registrar of the Provincial Courtpending the hearing of a contested extension application. My conclusion isstrengthened by the fact that s. 490 contains a specific provision (s. 490(4)) regarding


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the circumstances when a justice shall forward things detained pursuant to s.490(1), (2) and (3) to the clerk of the court.

Is there Authority to Make Order on Other Basis?

[42] Mr. Lam argues it is not fair or just for the police to retain possession of theitems in question and to continue to deal with them pending the hearing set forJanuary 12, 2009. He says by the time that hearing takes place, the application maywell be moot. Given those arguments I have considered whether I have jurisdictionto make the order sought on some other basis. A similar question was raised in R. v.

Raponi where the applicant argued the Provincial Court judge had implied powersbased on the common law. In that case the court noted:

A number of objections can be raised to this position. First, it ignores the fact thatbefore a judge can make any order, there must be a legal substratum or vehicle to

support the order. The legal vehicle for the return of goods unlawfully taken or heldis the civil action of replevin before the Court of Queen's Bench. Another vehiclemight be a Charter application to a judge of the Court of Queen's Bench. Yet otherpossibilities may exist. The point is simply that a claim must be grounded in a legalcause of action that permits the judge to grant a remedy.

Second, even if the difficulty of a proper cause of action or source of law could bemet, a Provincial Court judge has no jurisdiction to deal with such an action, sincethe Provincial Court is a court of statutory not inherent jurisdiction. No remedy wasavailable to Raponi in Provincial Court: any cause of action of which he could haveavailed himself would have been located in a superior court.

I conclude that the Provincial Court judge had no power to order the return of the

money outside the Code. Even though it has not been validly challenged and hencestands for the time being, the Provincial Court judge's order for the return of themoney to Raponi was made without jurisdiction, and is liable to be set aside in anappropriate proceeding. [paras. 33 to 35]

[43] I was not specifically directed to any other basis upon which a ProvincialCourt judge could make the order sought. It is possible that a court with inherent

jurisdiction may have jurisdiction to make the order sought. A similar order appearsto have been made by Mr. Justice Legg in R. v. Papalia . However, the basis formaking that order is not set out in the decision. The decision simply notes that theorder was made. In the circumstances, I can find no other basis upon which the orderapplied for could be made by this Court.

CONCLUSION

[44] In this case the application before me was grounded in s. 490 and, inparticular in s. 490(1) and s. 490(2), which I have already addressed in these reasons.I have concluded those subsections do not provide express authority to make theorder sought. Further, express authority is not found in s. 490 as a whole, neither


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could I find such authority by necessary explanation. Additionally, I was not directedto any other basis upon which the order could be made by this Court.

[45] Accordingly, for the reasons set out above, I conclude that as a ProvincialCourt judge I do not have jurisdiction to make the order sought by Mr. Lam that thepolice forward the seized items in question to the Registrar of this Court.

______________________________

The Honourable Judge M. F. Giardini

Provincial Court of British Columbia

78. Honorable Justice M. F. Giardini stated is possible that a court withinherent jurisdiction may have jurisdiction to make the order sought . This

Court does have inherent jurisdiction by way of the Judicature Act, R.S.N.B.

1973, c. J-2 section 9(1) which states as follows:



79. This Court is not restricted by the criminal Code of Canada, and furtherhas Jurisdiction granted and enforceable in pursuance with the following acts

and rules of Court:

Judicature Act, R.S.N.B. 1973, c. J-2 Rules of Court of new Brunswick 1.02 Application, 1.03

Interpretation (1) (2) and 1.08 Orders on Terms Interpretation Act, R.S.N.B. 1973, c. I-13 section 17 Right to Information and Protection of Privacy Act, S.N.B.

2009, c. R-10.6 Section 2 and Section 66

The Police Act, SNB 1977, c P-9.2 section 12


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80. Furthermore, the Honorable Court will be acting in furtherance of the

spirit of Right to Information and Protection of Privacy Act, S.N.B. 2009, by

granting the Order as requested by the Applicant.

FORM 1 REFERRAL81. FORM 1 REFERRAL ( Right to Information and Protection of

Privacy Act , S.N.B. 2009, c.R- 10.6, s.65(1)( a )) pursuant to Right to

Information and Protection of Privacy Act, SNB 2009, c R-10.6 does not

contain a location which is designated for an APPLICANT to provide the

detail by which the Honorable Court ( c) may make any other order that is, inthe opinion of the judge, necessary

82. FORM 1 REFERRAL is unlike Rule 37.03 of the Rules of Court which

states clearly the requirements that should be present on the face of a Notice of

Motion.

37.03 Content of Notice of Motion or PreliminaryMotionA Notice of Motion or Preliminary Motion shall(a) state the precise order sought,(b) state the grounds to be argued, including a reference to anystatutory provision or rule to be relied on, and(c) list the documentary evidence to be used at the hearing of themotion

83. Furthermore, FORM 1 REFERRAL is unlike Rule 38.04 of the Rules

of Court which states clearly the requirements that should be present on the

face of a Notice of Application.

38.04 Content of NoticeA Notice of Application shall(a) state the precise order sought,(b) state the grounds to be argued, including a reference to anystatutory provision or rule to be relied on, and


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(c) list the documentary evidence to be used at the hearing of theapplication.

84. Therefore, no obligation existed compelling the APPLICANT to

provide a written notice of the relief which the APPLICANT was requesting

of this Court on the FORM 1 REFERRAL.

Closing

85. When considering Section 2 of the Right to Information and Protection

of Privacy Act, S.N.B. 2009, c. R-10.6 as it relates to the Applicant, provides

as follows:

Purposes of this Act2 The purposes of this Act are

(a ) to allow any person a right of access to records in the custody orunder the control of public bodies, subject to the limited and specificexceptions set out in this Act,

(c) to allow individuals a right of access to records containing personalinformation about themselves in the custody or under the control of

public bodies, subject to the limited and specific exceptions set out inthis Act,

86. Furthermore, Section 66 of the Right to Information and Protection of

Privacy Act, S.N.B. 2009, c. R-10.6 provides for the following


(a ) where the matter is referred by an applicant,(i) if the head of a public body denied a request for informationin whole or in part, may order the head of the public body togrant the request in whole or in part, and


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necessary

87. Furthermore applicable Rules of Court of New Brunswick:

1.02 ApplicationThese rules apply to all proceedings in the Court of Queens Bench andthe Court of Appeal unless some other procedure is provided under anAct.

1.03 Interpretation(1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules.

(2) These rules shall be liberally construed to secure the just, leastexpensive and most expeditious determination of every proceeding onits merits.

1.08 Orders on TermsWhen making an order under these rules, the court may impose suchterms and give such directions as are just.

88. Furthermore, interpretation of the three relevant statues namely:

Right to Information and Protection of Privacy Act, SNB 2009,c R-10.6



Interpretation Act, R.S.N.B. 1973, c. I-13 section 17

89. A label of absurdity may be attached to interpretations which defeat thepurpose of a statute or render some aspect of it pointless or futile; the

Applicant is requesting this Honorable Court provide the remedies as


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contemplated by the drafters of the Right to Information and Protection of

Privacy Act, S.N.B. 2009, c. R-10.6.

90. The following is found at legal-dictionary.thefreedictionary.com at the

following internet web address provided below:

http://legal-dictionary.thefreedictionary.com/audi+alteram+partem

audi alteram partem [Latin, hear the other side.] It embodies theconcept in Criminal Law that no person should be condemned unheard;it is akin to due process. The notion that an individual, whose life,liberty, or property are in legal jeopardy, has the right to confront the

evidence against him or her in a fair hearing is one of the fundamentalprinciples of Constitutional Law in the United States and England.

91. It is ironic, that, if the Applicant was actually a criminal then according

to natural Justice the Applicant would have the right to confront the evidence

against him in a fair hearing, which is one of the fundamental principles

Justice adhered to in Canada. However the Applicant is in fact not a criminal

and the Applicant is requesting of the Courts assistance to take this alternative

route, as contemplated by the drafters of Right to Information and Protectionof Privacy Act, S.N.B. 2009, c. R-10.6, to gain the information necessary for

his safety inter alia

92. The remedy found herein requested is in accordance with the Rules of

Court, the Right to Information and Protection of Privacy Act, SNB 2009, c R-

10.6, the Judicature Act, R.S.N.B. 1973, c. J-2 and the Police Act, SNB 1977,

c P-9.2.

93. Furthermore the Applicant has argued why this Honorable Court does

in fact have the Jurisdiction to grant the relief sought according to Rules of


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Court, the Right to Information and Protection of Privacy Act, SNB 2009, c R-

10.6, and the Judicature Act, R.S.N.B. 1973, c. J-2.

94. In closing let us review The New Brunswick Interpretation Act,

R.S.N.B. 1973, c. I-13, section 17 which states: 17 Every Act and regulation

and every provision thereof shall be deemed remedial, and shall receive such

fair, large and liberal construction and interpretation as best ensures the

attainment of the object of the Act, regulation or provision. The Applicant

believes that in fulfillment of these stated goals, this Court should grant the

Applicants Order as requested, which would in the Applicants view be Justice,

which by the Applicants definition is the fair and proper administration of

laws.

NOTE

95. The Solicitor acquired by the NEW BRUNSWICK POLICE

COMMISSION, has not been hired to represent the interests of the

FREDERICTON POLICE FORCE, therefore there is no reason for this Court

to receive representations from the Solicitor who is acting in the interest of theNEW BRUNSWICK POLICE COMMISSION, regarding this issue of an

investigation into the abuse and malicious manipulation of the Fredericton

Police Force services, regarding the volume and substance of the telephone

reports and complaints containing erroneous and provocative allegations

against Andr Murray (Applicant In this matter) and most importantly an order

disclosure of same investigation to the Applicant.

ALL OF THIS respectfully submitted this ______day of ____________2011.

____________Andr Murray


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PART III ORDERS SOUGHT 1. Order an investigation to determine is there is substance to the

alleged abuse and malicious manipulation of the Fredericton PoliceForce services.

2. The Investigation shall reveal the excessive volume of `nonproductive` complaint telephone calls regarding the Applicant and orApplicants residence 29 31 Marshall Street over the 6 year periodfrom 2005-2011

3. The Investigation shall reveal the number of non eventresponses by FREDERICTON POLICE FORCE to Investigate theApplicant and or Applicants residence 29 31 Marshall Street over

the 6 year period from 2005-2011

4. Moreover, the Investigation may conclusively reveal theunfounded substance of the telephone reports and complaints toFREDERICTON POLICE FORCE regarding the Applicant and orApplicants residence of 29 31 Marshall Street over the 6 year periodfrom 2005-2011.

5. The Investigation may reveal the identity of the telephonereports and determine why the complaints are without substance

nevertheless caused suffering of the innocent Applicant by relentlessstalking and or surveillance or the Applicants residence of 29 31Marshall Street occurring regularly over the 6 year period from 2005-2011.

6. Finally Order full disclosure of same investigation to theApplicant that the Applicant may acquire a Cease and desist Order forthe protection of his body and sole.

Schedule A - A list of authorities in the order referred to

in the Submission; and1. Reference: Maxim - Neminem laedit qui jure suo utitur .

A person who exercises his own rights injures no one.


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2. Reference: there is the underlying consideration of doing justice

between the parties (Grewal v. Minister of Employment and

Immigration (1986), 63 N.R. 106 (F.C.A.), as summed up by Mr.

Justice Strayer ).

3. Reference: Black's Law Dictionary (8th ed. 2004), defines Justice, at

Page 2527 2528

4. Reference: Black's Law Dictionary (8th ed. 2004), defines unjust as atPage 4775

5. Definition of fair is found at Merriam Webster online at the following:

address: http://www.merriam-webster.com/dictionary/fair

6. Reference: Black's Law Dictionary (8th ed. 2004), defines fair, at Page

1788

7. Reference: Black's Law Dictionary (8th ed. 2004), defines Justice, at

Page 2527 2528

8. Reference: Black's Law Dictionary (8th ed. 2004) defines merits at

Page 3136

9. Reference: Black's Law Dictionary (8th ed. 2004) defines Construe at

Page 947


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42

10. Reference: Black's Law Dictionary (8th ed. 2004) defines Just at Page

2526

11. Reference: Merriam-webster.com defines merit at the following

address

(http://mw4.merriam-webster.com/dictionary/merits)

12. Reference: on the merits is defined by legal-dictionary.com at the

following address: http://legal-

dictionary.thefreedictionary.com/on+the+merits on the merits

13. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.)

Justice H. H. McLellan stated his view regarding the discretion of the

Trial Judge and also his view that the Court of Appeal has reaffirmed

that matters of civil procedure should be decided on their substance

and merits, May it please the Honorable Court found at page 9 to page

17

14. Reference: Black's Law Dictionary (8th ed. 2004) APPENDIX B, at

Page 5294: Expressio unius est exclusio alterius. The expression of one

thing is the exclusion of another.

15. Reference: definition of Expressio Unius Est Exclusio Alterius may be

found at the following website

(http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclus

ioAlterius.aspx )


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16. Reference: definition of opinion may be found at the following

website (http://www.merriam_webster.com/dictionary/opinion)

17. Reference: definition of opinion may be found at the following

website (http://www.thefreedictionary.com/opinion)

18. Reference: definition of DISCRETION is provided by Black's Law

Dictionary (8th ed. 2004), at Page 1405 and 1406

19. Reference: definition of NECESSARY AND PROPER is provided byBlack's Law Dictionary (8th ed. 2004), at Page 3273

20. Reference: Black's Law Dictionary (8th ed. 2004) APPENDIX B at

Page 5327 : Leges posteriores priores contrarias abrogant. Subsequent

laws repeal prior conflicting ones.

21. Reference: definition of the Maxim Leges posteriores priores

contrarias abrogant is provided at the Legal Dictionary website at the

following URL at (http://legal-

dictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias

+abrogant)

22. Reference: definition of Leges posteriores priores contrarias abrogant

is provided by Wikipedia, at the following URL:

http://en.wikipedia.org/wiki/Implied_repeal

23. Reference: definition of notwithstanding is provided from:

http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspx


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44

24. Reference: definition of notwithstanding is from Black's Law

Dictionary (8th ed. 2004),at Page 3378

25. Reference: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,

[2002] 2 S.C.R. 559 Justice IACOBUCCI J

26. Reference: explanation of Statutory interpretation is provided at

Wikipedia located at the following URL:

http://en.wikipedia.org/wiki/Statutory_interpretation

27. Reference: Black's Law Dictionary (8th ed. 2004) APPENDIX B, at

Page 5294 :Expressio unius est exclusio alterius. The expression of one

thing is the exclusion of another.

28. Reference: definition of Expressio Unius Est Exclusio Alterius may be

found at the following website

(http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclus

ioAlterius.aspx )

29. Reference: Maxim - Neminem oportet esse sapientiorem legibus . No

one ought to be wiser than the laws.

30. Reference: Maxim Nemo est supra leges. No one is above the laws

31. Reference: In Catalyst Fund General Partner I Inc. v. Hollinger Inc.,

2004 CanLII 66299 (ON SC), Justice C. Campbell J.: stated the


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following regarding the issues of scope, extent, timing and cost of

Court of Queens Bench court ordered investigation.

32. Reference: In R. v. Lam, 2008 BCPC 248 (CanLII), from paragraph 35

through to and including paragraph 45 as follows

Schedule B - The text of all relevant provisions of Statutes or Regulations (orcopies of the complete Statute or Regulation may be filed and served with theSubmission).

Rules of Court

1.02 Application

These rules apply to all proceedings in the Court of Queens Bench andthe Court of Appeal unless some other procedure is provided under anAct.

1.03 Interpretation

(1) Except where a contrary intention appears, the Interpretation Act

and the interpretation section of the Judicature Act apply to these rules.(2) These rules shall be liberally construed to secure the just, leastexpensive and most expeditious determination of every proceeding onits merits.

37.03 Content of Notice of Motion or PreliminaryMotionA Notice of Motion or Preliminary Motion shall(a) state the precise order sought,(b) state the grounds to be argued, including a reference to any

statutory provision or rule to be relied on, and(c) list the documentary evidence to be used at the hearing of themotion

38.04 Content of Notice


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A Notice of Application shall(a) state the precise order sought,

(b) state the grounds to be argued, including a reference to anystatutory provision or rule to be relied on, and(c) list the documentary evidence to be used at the hearing of theapplication.

59.01 Authority of the Court(1) Subject to any Act and these rules, the costs of a proceeding or astep in a proceeding are in the discretion of the court and the court maydetermine by whom and to what extent costs shall be paid.




(a) all causes and matters, civil and criminal, that were within theexclusive cognizance of the Supreme Court in the exercise of itsoriginal common law jurisdiction, before the commencement of theJudicature Act, 1909;

(b) all causes and matters that prior to July 1, 1966, were assigned toor cognizable by the Chancery Division;

(c) all causes and matters that prior to September 4, 1979, were withinthe jurisdiction of the County Court of New Brunswick; and

all causes and matters that prior to September 4, 1979, were within the

jurisdiction of the Queens Bench Division of the Supreme Court

Interpretation Act, R.S.N.B. 1973, c. I-13

17 Every Act and regulation and every provision thereof shall bedeemed remedial, and shall receive such fair, large and liberal


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construction and interpretation as best ensures the attainment of theobject of the Act, regulation or provision.

Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6

Purposes of this Act2 The purposes of this Act are

(a ) to allow any person a right of access to records in the custody orunder the control of public bodies, subject to the limited and specificexceptions set out in this Act,

(c) to allow individuals a right of access to records containing personal

information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out inthis Act,


(a ) where the matter is referred by an applicant,

(i) if the head of a public body denied a request for informationin whole or in part, may order the head of the public body togrant the request in whole or in part, and


necessary

Costs76(1) If a matter is referred to a judge of The Court of Queens Bench of New Brunswick under subsection65(1) or appealed to a judge of The Court of Queens

Bench of New Brunswick under section 75, the judge shallaward costs in favour of the person who referred or appealedthe matter

(a ) where the person is successful, and


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(b) where the person is not successful, if the judge

considers it to be in the public interest.

76(2) Despite subsection (1), a judge of The Court of Queens Bench of New Brunswick may award costs in favourof the public body if the judge considers that the matterfor review or appeal is frivolous or vexatious oramounts to an abuse of the right to access.


12(1) Each police officer is charged with responsibility for

(a) maintaining law and order,

(b) preventing offences against the law,

(c) enforcing penal provisions of the law,

(d) escorting and conveying persons in custody to orfrom a court or other place,

(e) serving and executing court process in respect of offences against the law,

(f) maintaining order in the courts,

referal applicants post hearing brief

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