S3CA: Response To Motion To Strike


TABLE OF CONTENTS

WRITTEN SUBMISSIONS

ISSUES

FACTS

APPLICABLE LAW
-Right to self-representation
-Federal Court jurisdiction
-Private & Public standing
-Charter Provisions Engaged

  • 91 (POGG)
  • 15 (Equality)
  • 35 (Indigenous Rights)
  • 38 (Amending process)

-Unjust enrichment
-Unconscionability
-High burden to strike out
-Amending as an option
-Defense misrepresentation

ORDER SOUGHT


1. Written Submissions

2. Issues


-Does the Plaintiff have the right to self represent in this case?
-Does the Federal Court have jurisdiction to hear the case?
-Is there private or public interest standing in this case?
-Are the following Constitutional provisions engaged: 91 (POGG), 15 (equality rights), 35 (Indigenous rights), 38 (amending the constitution)?
-Does allowing fake refugees into Canada violate the doctrine of unjust enrichment?
-Does allowing fake refugees into Canada violate the doctrine of unconscionability?
-Does this motion meet the “very” high burden to strike out?
-Is amending the Claim a better option?
-Does the Government lawyer misrepresent the facts?

3. Facts

  1. Canada the US signed the S3CA in 2002. It came into effect in 2004.

  2. Canada is recognized as a safe country, which provides protection to people seeking genuine asylum

  3. The United States is also recognized as a safe country, and offers protection to people seeking protection from persecution based on: race, religion , political beliefs, and identity

  4. Both Canada and the US receive hundreds of thousands of refugee applications annually.

  5. Although there is a loophole in the agreement (which omits crossings “between” official ports), it was never meant to be a path for illegal immigration, or fraudulent refugee claims.

  6. Crossings from the US into Canada mainly fall into 2 categories:
    (a) Those coming to the US on tourist visas, with the intent of using the US as a stopover country,
    (b) Those living in the US illegally, who have decided to “asylum shop”

  7. There are AT LEAST 40,000 illegals who have snuck into Canada, likely many more.

  8. The Plaintiff is a self-representing, Canadian citizen, concerned about the impacts of illegal immigration. She is interested both as a private citizen, a taxpayer, and as a Canadian.

  9. Preventing illegal immigration (and bogus refugee claims), is both a private interest, and a public interest.

  10. Self represented people have every right to have their cases heard in court.

  11. Illegal immigration (such as via this loophole) undermines the integrity of the immigration system, costs cities and provinces money they don’t have, and undermines the security of the country

  12. For example, the Mayor of Toronto, John Tory, has reported that illegals have taken up almost half of the available space in homeless shelters

  13. The Federal Government has had to reimburse the Provinces (mainly Quebec and Ontario), over $300 million so far due to costs these “refugee claimants” have racked up.

  14. The Federal Government has also been paying the homeowners near Roxham Road — using taxpayer money — for the damage caused to their properties.

  15. Recently, a group of illegal “refugee claimants” has announced plans to sue Quebec for subsidized daycare.

  16. The flood of fake refugees has caused a strain on the health care system, particularly in Ontario and Quebec.

  17. All of the above statements are not “mere assertions”. They are facts which can be proven in the course of the trial and via discovery.

  18. The Government makes at least 3 serious misrepresentations.

  19. First, the Government’s lawyer, Aman Owais, misrepresents the truth when claiming the loophole was “intentionally” written into the agreement. This is provably false, since even Trudeau has publicly spoken about the need to cut the illegal border crossings.

  20. Second, there is a strawman argument that this is about refugee protections. Wrong, it is about protecting the public from illegal immigration.

  21. Third, and furthermore, Aman Owais suggests that it would be better to have a refugee claimant make this claim. This is complete nonsense. A person using legal channels wouldn’t be impacted by this case. A person using illegal means to enter Canada would have no reason to pursue this, as it would be a big conflict of interest.

4. Applicable Law

22: Self representing litigants: From Pintea v. Johns, [2017] 1 SCR 470, 2017 SCC 23 (CanLII)

[3] As a result, the finding of contempt cannot stand.
[4] We would add that we endorse the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf
B. PROMOTING EQUAL JUSTICE
STATEMENT:
Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation.
PRINCIPLES:
1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.
4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:
(a) explain the process;
(b) inquire whether both parties understand the process and the procedure;
(c) make referrals to agencies able to assist the litigant in the preparation of the case;
(d) provide information about the law and evidentiary requirements;
(e) modify the traditional order of taking evidence; and
(f) question witnesses.

23: There is nothing in the Pintea v. Johns ruling that says self-represented people can “only” appear in certain courts or in certain types of cases

Federal Court has jurisdiction to hear the case

24: Consider that the test for determining if a matter is within the Federal Court’s jurisdiction is stipulated in ITO-International Terminal Operators LTD v Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 SCR 752 at 766 [ITO-International]:

1. There must be a statutory grant of jurisdiction by Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act.

Furthermore, the Federal Courts Act (under Rule 25) has original jurisdiction if no other court is designated as such.
Extraprovincial jurisdiction.

Rule 25: The Federal Court has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

25: Although designed for Judicial Review Applications, the Federal Court does have authority under Rule 18.1(5) of Federal Courts Act to correct errors in form or technical defects. The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just.

Defect in form or technical irregularity,
(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.

26: Immigration matters are within the jurisdiction of the Federal Court. And this case is essentially about illegal immigration and border security. Furthermore, if this case prevailed, it would certainly have an impact on how asylum claims were handled in the future.

27: The Canadian Border Services Agency enforces the border, and enforces approximately 90 different acts. So there is ample Federal law to be looked at here. They are given their authority under the Customs Act.

28: Furthermore, CBSA enforces such acts as

Access to Information Act [R.S.C. 1985, c. A-1]
Aeronautics Act [R.S.C. 1985, c. A-2]
Agriculture and Agri-Food Administrative Monetary Penalties Act [S.C. 1995, c. 40]
Appropriation Acts [R.S.C. 1985, c. Z-01 ]
Bankruptcy and Insolvency Act [R.S.C. 1985, c. B-3]
Canada Agricultural Products Act [R.S.C. 1985, c. 20 (4th Supp.)]
Canada Grain Act [R.S.C. 1985, c. G-10]
Canada Post Corporation Act [R.S.C. 1985, c. C-10]
Canada Shipping Act, 2001 [S.C. 2001, c. 26]
Canada Transportation Act [S.C. 1996, c. 10]
Canada-Chile Free Trade Agreement Implementation Act [S.C. 1997, c. 14]
Canada-Costa Rica Free Trade Agreement Implementation Act [S.C. 2001, c. 28]
Canada-Israel Free Trade Agreement Implementation Act [S.C. 1996, c. 33]
Canada-United States Free Trade Agreement Implementation Act [S.C. 1988, c. 65]
Canadian Environmental Protection Act, 1999 [S.C. 1999, c. 33]
Canadian Wheat Board Act [R.S.C. 1985, c. C-24]
Coasting Trade Act [S.C. 1992, c. 31]
Consumer Packaging and Labelling Act [R.S.C. 1985, c. C-38]
Criminal Code [R.S.C. 1985, c. C-46]
Cultural Property Export and Import Act [R.S.C. 1985, c. C-51]
Customs and Excise Offshore Application Act [R.S.C. 1985, c. C-53]
Customs Tariff [S.C. 1997, c. 36]
Department of Agriculture and Agri-Food Act [R.S.C. 1985, c. A-9]
Department of Citizenship and Immigration Act [S.C. 1994, c. 31]
Department of Industry Act [S.C. 1995, c. 1]
Energy Efficiency Act [S.C. 1992, c. 36]
Excise Act [R.S.C. 1985, c. E-14]
Excise Act, 2001 [S.C. 2002, c. 22]
Excise Tax Act [R.S.C. 1985, c. E-15]
Explosives Act [R.S.C. 1985, c. E-17]
Export Act [R.S.C. 1985, c. E-18]
Export and Import Permits Act [R.S.C. 1985, c. E-19]
Feeds Act [R.S.C. 1985, c. F-9]
Fertilizers Act [R.S.C. 1985, c. F-10]
Financial Administration Act [R.S.C. 1985, c. F-11]
Firearms Act [S.C. 1995, c. 39]
Fish Inspection Act [R.S.C. 1985, c. F-12]
Fisheries Act [R.S.C. 1985, c. F-14]
Food and Drugs Act [R.S.C. 1985, c. F-27]
Harbour Commissions Act [R.S.C. 1985, c. H-1]
Hazardous Products Act [R.S.C. 1985, c. H-3]
Health of Animals Act [S.C. 1990, c. 21]
Immigration and Refugee Protection Act [S.C. 2001, c. 27]
Importation of Intoxicating Liquors Act [R.S.C. 1985, c. I-3]
Industrial and Regional Development Act [R.S.C. 1985, c. I-8]
International Boundary Commission Act [R.S.C. 1985, c. I-16 ]
Meat Inspection Act [R.S.C. 1985, c. 25 (1st Supp.)]
Motor Vehicle Safety Act [S.C. 1993, c. 16]
National Defence Act [R.S.C. 1985, c. N-5]
National Energy Board Act [R.S.C. 1985, c. N-7]
Navigable Waters Protection Act [R.S.C. 1985, c. N-22]
Nuclear Safety and Control Act [S.C. 1997, c. 9]
Pest Control Products Act [S.C. 2002, c. 28]
Pilotage Act [R.S.C. 1985, c. P-14]
Plant Breeders’ Rights Act [S.C. 1990, c. 20]
Plant Protection Act [S.C. 1990, c. 22]
Precious Metals Marking Act [R.S.C. 1985, c. P-19]
Preclearance Act [S.C. 1999, c. 20]
Privacy Act [R.S.C. 1985, c. P-21]
Privileges and Immunities (North Atlantic Treaty Organisation) Act [R.S.C. 1985, c. P-24]
Proceeds of Crime (Money Laundering) and Terrorist Financing Act [S.C. 2000, c. 17]
Radiation Emitting Devices Act [R.S.C. 1985, c. R-1]
Radiocommunication Act [R.S.C. 1985, c. R-2]
Seeds Act [R.S.C. 1985, c. S-8]
Special Economic Measures Act [S.C. 1992, c. 17]
Special Import Measures Act [R.S.C. 1985, c. S-15]
Statistics Act [R.S.C. 1985, c. S-19]
Textile Labelling Act [R.S.C. 1985, c. T-10]
Trade-marks Act [R.S.C. 1985, c. T-13]
Transportation of Dangerous Goods Act, 1992 [S.C. 1992, c. 34]
Visiting Forces Act [R.S.C. 1985, c. V-2]
Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act [S.C. 1992, c. 52]
Source: https://www.cbsa-asfc.gc.ca/agency-agence/actreg-loireg/legislation-eng.html

29: The border clearly is being protected in accordance with Federal laws, and Acts passed by Parliament. So loopholes which make it harder for them to do their job at least conflict with Federal laws.

30: It has also long been held that,

The Supreme Court of Canada has ruled that the Constitution does not belong to the federal or provincial governments, but to Canadian citizens (Nova Scotia (AG)), and that it is a tool for dispute resolution, of which one of the most important goals is to serve well those who make use of it: Reference Re Residential Tenancies Act, 1996 CanLII 259 (SCC), [1996] 1 SCR 186 at 210.

There private & public interest standing in this case

31: Three cases which are used to determine public interest standing are:

(a) Thorson v. Attorney General of Canada, (b) Nova Scotia Board of Censors v. McNeil, and (c) Minister of
Justice v. Borowski. The trilogy was summarized as follows in Canadian Council of
Churches v. Canada (Minister of Employment and Immigration):

It has been seen that when public interest standing is sought, consideration must be given to three aspects.
First, is there a serious issue raised as to the invalidity of legislation in question?
Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity?
Third, is there another reasonable and effective way to bring the issue before the court?

32: First: if this “interpretation” of the S3CA is as the Government claims, then effectively the Canada/US border disappears, except for a small number of official crossings. That is pretty serious. Illegal immigration cannot simply be shrugged off if it is not the government raising the issue.

33: Second: Yes, I am effected by illegal immigration. As a taxpayer, and as a citizen who wants secure borders. Clearly I have a genuine interest here. Why else go to court to do this? It is insulting and misrepresents reality to suggest that citizens are not concerned and interested in the external security of their nation.

34: Third, there doesn’t seem to be another reasonable or effective way to bring it to the Courts. It is the Government itself, with a majority mandate, which seems content to end-run the intent of the law.

35: Note: Public-interest standing is also available in non-constitutional cases, as the Court found
in Finlay v. Canada (Minister of Finance)

36: Plaintiff submits that there clearly is standing to bring forward these justiciable issues on the facts pleaded. This standing is personal, but it is also public interest-based and is in line with recent jurisprudence: Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (CanLII); Galati, above.

Following Constitutional provisions engaged:

  • 91(POGG),
  • 15 (equality rights),
  • 35 (Indigenous rights),
  • 38 (amending the constitution)

Peace, Order & Good Governance (Section 91)

37: Consider the case of R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, 1988 CanLII 63 (SCC).

33. From this survey of the opinion expressed in this Court concerning the national concern doctrine of the federal peace, order and good government power I draw the following conclusions as to what now appears to be firmly established:

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;

2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;

3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

38: In looking this through the Peace, Order and Good Government (POGG) doctrine, it is worth asking should we allow actions that our laws seem designed to prevent?

34(1)(b.1) of the Immigration and Refugee Protection Act prohibits: engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada.

39: Allowing fake refugees to slip in arounf official border ports in order to “jump the queue” seems hardly in keeping with the POGG principle, or Rule 34(1)(b.1). Again, it is submitted that poor wording, not intent is the cause of this loophole.

40: The Court must also consider the national security implications of protecting the border. This should be obvious, but a nation that cannot control its border ceases to be a nation.

41: Currently, illegal border jumpers (fleeing war zones in Minnesota and New York State), are able to illegally enter Canada. They are processed, then released into the public often within hours. There is no public interest in doing this.

42: Given the vast amount of unscreened and unvetted fake “refuges” entering, there is no way to keep the public safe. This is not consistent with POGG in any sense.

43: Again, the Government’s lawyer “claims” that this loophole was intentionally written into the S3CA. This is even while Justin Trudeau and other Government members profess their desire to cut illegal entries. Obviously, both statements can’t be true.

44: As cited above, there are literally dozens of Acts which members of the CBSA are charged with enforcing. Obviously, enforcing the border is a sign of POGG. Now, how does adding a loophole to bypass some of these Acts make any sense?

45: How does it now undermine our national security? Borders are meant to be the protected outer areas of a nation. No one, except the most disingenuous would argue that borders do not matter. However, the Government does an end run around that (violating POGG doctrine), by claiming the loophole in the S3CA was intentional.

46: Border security “doesn’t” matter, apparently, as long as you go around the official checkpoints.

Section 15; Equality Rights:

47: This seems like a strange one to bring up. However, the Government of Canada’s website on Charter cases brought up an interesting argument about equality under the law.

(a) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue
Section 15 has a significant remedial component (Andrews, supra at 171). Therefore, one of the most compelling factors is the impact of the governmental action on individuals or groups who are vulnerable, the object of stereotypes, disadvantaged or members of “discrete and insular minorities” (Law, supra at paragraphs 63-68). A member of a group that historically has been more disadvantaged in Canadian society is less likely to have difficulty in demonstrating discrimination (Law, supra at paragraph 68). When considering intra-group distinctions within a larger disadvantaged group (for example, as between status and non-status Indians, as determined pursuant to the Indian Act), there is no requirement that the claimant group be the more disadvantaged; there is no “race to the bottom” (Lovelace, supra at paragraph 69). Where no such unique disadvantage is established, as distinct from the broader group which provides the basis for comparison, this factor does not play a significant role (Gosselin, supra; Martin; Laseur, supra at paragraph 88).

48: In this case, the disadvantaged people are those who immigrate legally into Canada, and go through proper channels.
True, Canada’s immigration system is slow, expensive, and very complex. But that is a debate for another day. Point is, hundreds of thousands of people follow proper due process every year.

49: They are the ones who suffer as “border jumpers” push ahead of them, and get preferential treatment, and access to benefits. Furthermore, they are the ones who suffer the public backlash as Canadian get fed up with mass, illegal immigration.

50: In short, legal applicants suffer because of the actions of criminals.

Section 35: Indigenous Rights

51: From the case: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII), the issue of duty to consult to brought up.

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests.

52: The case of Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74 (CanLII), should also be considered, and for much the same principle.

25 As discussed in Haida, what the honour of the Crown requires varies with the circumstances. It may require the Crown to consult with and accommodate Aboriginal peoples prior to taking decisions: R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1119; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013; R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168. The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify infringement. That understanding of consultation would deny the significance of the historical roots of the honour of the Crown, and deprive it of its role in the reconciliation process. Although determining the required extent of consultation and accommodation before a final settlement is challenging, it is essential to the process mandated by s. 35(1). The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.

53: It is a serious question here: how much consultation (if any), was done before signing a document that — the Federal Government now claims — eliminates the security of the Canada/US border? Just because there isn’t a claim pending doesn’t mean there are not valid Indigenous interests to be considered

54: No consultation process took place — EVER — which would fulfill the obligations to negotiate in good faith with Indigenous groups. The Government claims that the S3CA was “designed” to allow for entrants from the United States to make refugee claims, as long as they bypass the official border ports.

It would be disingenuous for the Federal Government to claim that it wouldn’t be aware of any obligation to consult prior to “erasing” the US/Canada border.

55: The Government breached is S35 obligations if, by this defense, the S3CA was drawn up with the loophole “intentionally” left in.

Substantial Consent required (section 38)

56: If the Government truly believes that POGG, and other obligations can be circumvented by intentional poor wording, then we need to amend the constitution to change what POGG means.

57: This was decided regarding the issue of changing the Senate rules (Reference re Senate Reform, [2014] 1 SCR 704, 2014 SCC 32 (CanLII) (S38). The Court cited the amending procedure.

[34] The process set out in s. 38 is the general rule for amendments to the Constitution of Canada. It reflects the principle that substantial provincial consent must be obtained for constitutional change that engages provincial interests. Section 38 codifies what is colloquially referred to as the “7/50” procedure — amendments to the Constitution of Canada must be authorized by resolutions of the Senate, the House of Commons, and legislative assemblies of at least seven provinces whose population represents, in the aggregate, at least half of the current population of all the provinces. Additionally, it grants to the provinces the right to “opt out” of constitutional amendments that derogate from “the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province”.

58: If what the Government says is true, then the doctrine of Peace, Order and Good Government (POGG) has been distorted to such a degree that a Constitutional amendment should be required.

59: These constitutional arguments are not exhaustive, and will be expanded on more fully as the case progresses. The point here, is that the case at hand (the loophole in the Safe Third Country Agreement), engages the same Charter rights as what is cited here.

Doctrine of unjust enrichment

60: The Court must also consider how allowing illegal immigration and fake refugees to gain priority over legal immigrant violates the doctrine of unjust enrichment.

61: Citing from 3 cases:
Kerr v. Baranow, [2011] S.C.J.
Kerr v. Baranow, 2009 BCCA 111
Vanasse v. Seguin, 2009 ONCA 595

62: These cases set the standard for unjust enrichment. (a) the person received a benefit, (b) the claimant suffered a loss corresponding in some way to the benefit, and (c) there was no juristic reason for the benefit and the loss.

63: As stated in the facts, these so-called “refugees” have been accessing public services. This costs money, and takes away from actual citizens.

64: And forget the money factor for a moment. Isn’t Canadian residence or citizenship a thing of value itself? If we consider that being Canadian is something to be valued, then doesn’t obtaining it (or Permanent Residence, or Protected Status) under false pretenses count as illegally obtaining a benefit?

Doctrine of unconscionability

65: From the Immigration and Refugee Protection Act, trying to circumvent proper immigration channels should not be rewarded.

34(1)(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

66: If the loophole in S3CA was written in such a way as to circumvent very legitimate national security and immigration concerns, then how valid and enforceable is it?

67: Remember, Aman Owais, (the Government’s lawyer) has pleaded the intent of the agreement was “not” to apply the proper screening rules as long as self-identified “refugees” bypass official border ports. This is claimed to be intentional, not accidental.

68: Notwithstanding that no reasonable person could view it that way, and notwithstanding the Canadian Government has made announcements to cut down on these crossings, how valid are these provisions?

Does this motion meet the “very” high burden to strike out

69: Even if there are deficiencies in the Statement of Claim, they can usually be cured by filing an “amended” Statement of Claim. That must always be considered when asked to strike out. This is settled by a great many cases.

In terms of the general principles that ought to be applied on a motion to strike, the Plaintiffs assert that the facts pleaded by the Plaintiffs must be taken as proven: Canada (Attorney General) v Inuit Tapirasat of Canada, 1980 CanLII 21 (SCC), [1980] 2 SCR 735; Nelles v Ontario (1989), DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle, above; Hunt v Carey Canada Inc 1990 CanLII 90 (SCC), [1990] 2 SCR 959 [Hunt]; Dumont v Canada (Attorney General), 1990 CanLII 131 (SCC), [1990] 1 SCR 279 [Dumont]; Nash v Ontario (1995), 1995 CanLII 2934 (ON CA), 27 OR (3d) 1 (Ont CA) [Nash]; Canada v Arsenault, 2009 FCA 242 (CanLII) [Arsenault].

The Plaintiffs echo the test referenced by the Defendants, asserting that a claim can be struck only in plain and obvious cases where the pleading is bad beyond argument: Nelles, above, at para 3. The Court has provided further guidance in Dumont, above, that an outcome should be “plain and obvious” or “beyond doubt” before striking can be invoked (at para 2). Striking cannot be justified by a claim that raises an “arguable, difficult or important point of law”: Hunt,

The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim.

70: This case DOES raise an important point of law, one the Defendant pretends doesn’t exist. Can the Court close a plain and obvious loophole in the S3CA?

71: Can a clearly frivilious, fraudulent, abusive and vexxing defense filed by the Crown be overcome?

72: Note: this does not amount to a rejection of the agreement as a whole. For the most part, it is a fine document.

Amending the Claim a better option

73: The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just.

The novelty of the Amended Claim is not reason in and of itself to strike it: Nash, above, at para 11; Hanson v Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 OR (3d) 142 (CA); Adams-Smith v Christian Horizons (1997), 3 OR (3d) 640 (Ont Gen Div). Additionally, matters that are not fully settled by the jurisprudence should not be disposed of on a motion to strike: RD Belanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), 1991 CanLII 2731 (ON CA), 5 OR (3d) 778 (CA). In order for the Defendants to succeed, the Plaintiffs state that a case from the same jurisdiction that squarely deals with, and rejects, the very same issue must be presented: Dalex Co v Schwartz Levitsky Feldman (1994), 19 OR (3d) 215 (CA). The Court should be generous when interpreting the drafting of the pleadings, and allow for amendments prior to striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA).

74: The facts as laid out in the above section are not bare assertions. They can be proven in court, going through the discovery and document production phases. It is not at all plain and obvious that the Claim is baseless.

75: Any flaws in the Plaintiff’s Statement of Claim could be cured by amending.

Government lawyer misrepresents the facts

76: The Government claims, without any basis, that the S3CA was negotiated with the “loophole” deliberately written in. In essence, they are arguing that although the Canada/US border stretches for thousands of miles, only the few dozen “legal” entry ports should be considered. Anywhere else, people are free to walk across and claim asylum. If this were actually true, it would effectively erase the Canadian border.

77: Bald assertions, without supporting facts, are not sufficient to satisfy the rules of pleading. See Rule 174 and accompanying jurisprudence. This should also applies to motions to strike.

78: Bald assertions, without facts, are baseless. If any part of the claim is “plainly and obviously” without merit, it is the defense raised by the Government.

79: The claim that the S3CA was “intended” to allow illegal border crossings is fraudulent, and an attempt to mislead and deceive the court by Aman Owais. This is plain and obvious given that members of the Government, including Justin Trudeau himself, have publicly stated the need to stop illegal border crossings. The false defense violates Rule 221, as a frivilous, vexous, and abusive misuse of Court procedure.

80: This can and will be proven in a trial.

81: Also worth noting: according to Rule 221, “inconsistent pleadings” can be struck out. So if the Government ever tries to put another spin on this, it will automatically qualify for striking.

82: And to reiterate: the “remedy” suggested makes no sense. A person entering Canada legally would have no interest in the case, since it only covers illegal entry. A person entering Canada illegally would have no reason to pursue the case, as it would be a conflict of interest. This absurd solution wastes court resources.

83: The government also appears to distort the purpose of the case. It is about protecting the Canadian public from illegal immigration, not making things easier for people to cross the border.

84: To add insult, Aman Owais also implies that I have no business attempting this case since I am not a lawyer. Arrogance. Pintea v Johns (2017, SCC) enshrines protections for “all” self-representing litigants. It doesn’t limit it to certain types of cases, or certain Courts.

85: Will closing this loophole have an impact on current and future cases? Hopefully. Otherwise, what would be the point of going to Court?

4. Summary

86: Plaintiff has a right to self represent

87: Federal Court has jurisdiction

88: Plaintiff has both a private interest, and qualifies for public interest standing

89: Constitutional provisions engaged: 91(POGG), 15 (equality rights), 35 (Indigenous rights), 38 (amending the constitution)

90: Allowing fake refugees into Canada violates the doctrine of unjust enrichment & unconscionability

91: Motion doesn’t meet the “very” high burden to strike out

92: Amending the Claim a better option than striking without leave.

93: Note: This is not an attempt to get to court to make a final ruling on the case. Rather, it is to show that there is merit to the case

94: The Supreme Court of Canada has ruled that the Constitution does not belong to the federal or provincial governments, but to Canadian citizens (Nova Scotia (AG))

95: The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson

96: The Court should be generous when interpreting the drafting of the pleadings, and allow for amendments prior to striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA).

5. Order Sought

(a) Dismiss the motion; or
(b) Allow the Plaintiff an opportunity to amend the statement of claim.

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