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----- Original Message -----
From: The McElheran's
To: Sam Bournefree
Sent: Saturday, January 20, 2001 10:41 PM
Subject: UPDATE: Requirement to Pay Goes to Trial - Costs awarded
against the Crown As a good number of the e-mail recipients know, I
had two 'irons' in the fire involving 3 court jurisdictions.
The first 'iron' being the quasi-criminal
charge laid by CCRA against me for 'failing to provide a document' (failing to
file a tax return) which the charge was dismissed by the judge once
I established and showed "reasonable doubt" on January 8th,
2001.
The second 'iron' being a civil matter filed by
myself at Small Claims Court concerning a garnishee issued by CCRA instructing
the contractor I sub-contracted to, to seize 100% of my paycheque and forward it
to the Receiver General - Canada Fund.
Brief History:
Last June, 2000, I personally served a subpoena
upon the Tax Director, Reid Corrigall of the Calgary Office to appear
as my witness to authenticate the "Requirement to Pay" (RTP) document
authorizing the seizure.
The Department of Justice (DOJ) quickly stepped in
and issued a teleconference call with Judge Hess at the Civil Court and
argued that the subpoena was an "abuse of the Court" and should be
dismissed. I argued and said that since the Court admitted that "we do
not get these kind of things in this court" and the contractor's lawyer is
only there waiting for instruction as to who to send the money to, the Tax
Director must come as my witness, answer my questions and help us all to
understand the RTP. Judge Hess then agreed with me and ordered Mr.
Corrigall to appear for trial.
The DOJ then filed an ORIGINATING NOTICE at
Queen's Bench -- Reid Corrigall. v. Judge Hess, and was able to
get in on the morning of Trial (July 11, 2000). Judge Hess did not appear to
defend his order so I intervened in the matter and presented my
arguments. Justice Lomas then ordered the Crown and myself to set a
Special Chambers hearing so that we had more time to present our arguments. He
also granted a Stay of Judge Hess's Order.
Special Chambers was set by myself and the DOJ and
scheduled for October 2nd, 2000.
On August 20th, 2000 I tried to file my first
NOTICE OF MOTION and learned from the Chambers Clerks that the matter
Reid Corrigall v. Judge Hess had mysteriously disappeared off the
books and computer system. With much concern of the Clerks and myself, I had
the case matter reinstated and filed my MOTION.
October 2nd arrives for the Special Chambers
hearing and I can not find the Docket # anywhere and asked the Clerks where
the case is being heard. The action had disappeared again !! The Clerk is
looking all over the place. I'm standing around not knowing how to make sense of
this so the Clerks get on the phone to the DOJ (in Edmonton) and inquired into
the matter. The DOJ WAS NOT GOING TO SHOW UP! Their application was then
struck.
The DOJ then re-filed their application 2 days
latter and set a Special Chambers hearing for Friday January 19, 2001 but I did
not receive their pleadings until I was dealing with my trial at
Provincial Court
On Wednesday, I went to Queen's Bench to file my
"NOTICE OF REBUTTAL MOTION" to the DOJ's pleadings. The Chamber's
Clerks would not accept it as my time to file it had expired. I was then given
the name of the presiding Justice assigned to the matter and I went up to the
court room where she was dealing with some other case. I waited patiently until
she had given her ruling in that matter.
While the Justice was writing up the
ruling in that matter, the Clerk instructed her that I wanted to address some
issue with her. She then instructed me to
come into the Bar and speak. I gave her my NOTICE OF REBUTTAL MOTION and
AFFIDAVIT and explained I was late in filing but was a party to the matter
Reid Corrigall v. Judge Hess and was intending to intervene on Friday.
She looked over my paper work then gave me "leave" to file it. To which I did
right away and served the DOJ.
On Friday, Judge Hess did not appear again so I
just set up at the counsel's table and was ready to argue.
The hearing then proceeded by the Crown giving a
good strong argument that took 40 minutes. The Justice then gave me 40 minutes
to present rebuttal. One issue I wish to express to the readers is that
the DOJ was greatly offended that I take such an issue concerning "Justice
being served" and that making such statements in my REBUTTAL MOTION is
inappropriate and the MOTION should be struck.
I then explained that my research into the Judicial
Counsel of Canada and Supreme Court rulings concerning the independence of the
judiciary and purpose with the Courts is to uphold and bring honour to the
Courts. That all to often, extreme pressure is applied to the Justices and
Judges of our Courts by the State and Tax Department to force rulings to go
in favour of the State. That yes, pressure is there, but independence gives the
judiciary the power to serve Justice inspite of peer pressure. The Justice
excepted my explanation and I moved on to other issues of the subpoena and
status of the CCRA.
After I had my 40 minutes, Madam Justice adjourned
for an hour and came back with her ruling and laid out the Facts concerning the
case. She read all the questions I presented the Director in the subpoena and
found that the Director would have to prove that he has
no documents or knowledge of what I require but that because I am
currently suing the contractor and not CCRA, the subpoena is quashed. She did
find that some of the questions on the subpoena were oppressive and others were
appropriate. (Can't win them all) She addressed the DOJ's Affidavit and set it
down as she would not entertain the news articles from the Calgary Herald and
the Canadian Business Mag. which details what the media describe as the "De-Tax
movement".
Madam Justice took issue with the DOJ not showing
up for the October 2nd, 2000 hearing and ordered them to pay me $500 dollars.
She then ordered an investigation into the disappearing docket which was left
open for remedy. She did not award costs to
the Crown.
These transcripts are a good example
of argument presentation and more information on "who" the CCRA is to which
the DOJ nor the Justice challenged in argument or ruling. The media was not
there again as the public is not to know about these cases.
If anyone would like a set of these transcripts
copied and sent, contact the e-mail address below. A donation of $50
dollars to cover the costs and postage is requested.
Till next time,
Just doing my part in, "Standing on Guard for
Thee"
Kevin McElheran [EMAIL PROTECTED]
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