brief - lawful excuse for failure to appear march 13, 2013

7/29/2019 Brief - Lawful Excuse for Failure to Appear March 13, 2013.

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Information No.

09458205, 09479105, and 09497005

New Brunswick Provincial Court (Provincial Court Office of Fredericton)

BETWEEN:

HER MAJESTY THE QUEEN

and

ANDRE CHARLES MURRAY

______________________________________________________

BRIEFFailure to Appear/Breach of Undertaking

Filed by Self Represented Litigant

Andre Murray

______________________________________________________

ANDRE MURRAY,

Applicant/Defendant/Accused

103 Huntingdon Circle,Fredericton, New Brunswick,

E3B 0M1, Canada,

[email protected]

Fredericton Crown ProsecutorChristopher Lavigne

Fredericton Crown Prosecution [email protected]

Hilary Drain

Regional Director of

Fredericton Crown Prosecution [email protected]

Reception: (506) 453-2819Fax: (506) 457-4812

Mailing AddressJustice BuildingRoom: 313

P. O. Box 6000,

Fredericton, NB,E3B 5H1, Canada


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SELF REPRESENTED, ANDRE MURRAYS BRIEF

REGARDING FAILURE TO APPEAR/BREACH OF UNDERTAKING

March 13, 2013.

INDEX

Page

INDEX __________________________________________________________________ i

(1) Introduction ___________________________________________________________ 1

(2) Failure to Appear _______________________________________________________ 2

(3) Breach of Undertaking ___________________________________________________ 6

(4) Considering the surrounding circumstances, __________________________________ 8

(5) Lawful Excuse _________________________________________________________ 9

(6) Conclusion ____________________________________________________________ 14


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(1)INTRODUCTION

1. I Andre Murray will rely on the entirety of the Written Briefs and evidence I have filed sofar, that the Court may proceed in my absence. This Brief will provide the arguments as to why

the Honorable Court in the interest of Justice, should not issue an arrest warrant for Andre

Murray, further should not accept Informations regarding potentially further charges of Failure

to Appear or Breach of Undertaking, for Andre Murray not appearing March 13, 2013 for a

scheduled Trial regarding the charge of Assault, Breach of Undertaking, further, a s.810

Undertaking Hearing.

2. Considering all the Briefs submitted into this file and the evidence provided by AndreMurray, and the argument below, it would be a disservice to the administration of Justice, to vex

Andre Murray, any further, regarding these meritless charges before the Court. Further,

considering the reasons why Andre Murray will not be appearing, the values of society, indeed of

the criminal law itself, are better promoted by Andre Murray disobeying the (unjustified) subject

Undertaking than by observing it.

3. No Court has yet to have jurisdiction to Order a s. 810 Undertaking, to be enforced uponAndre Murray. The Court has previously based its impugned actions on erroneous hearsay, made

decisions without jurisdiction in a perverse or capricious manner, failed to observe a principle of

natural justice, procedural fairness or other procedure that it was required by law to observe and

in particular the prerequisites in section 810 of the Criminal Code. The Courts actions appear

"capricious", which is to be so irregular as to appear to be ungoverned by law.

4. I Andre Murray have lost faith in the Judiciary. Considering the circumstanceshighlighted in four Brief files thus far, Andre Murray is in a position of no longer trusting the

Judiciary/Justice System, and cannot risk further harm, because of negligence, vengeance,

retribution or misapprehension on the part of Police, Crown Prosecutors or the Court. A simple

appearance, has now become a dangerous trap, leading potentially to further, charter

infringements, lengthy unjustified incarceration and further harm to Andre Murray. Justice is

defined by Blacks Law Dictionary as fair application of the law, it would be most unfair for


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Andre Murray to experience further, incarceration and harm, when he is an innocent man, and

the audio/video evidence provided to the Crown, conclusively proves that to anyone with eyes

and ears.

(2)

FAILURE TO APPEAR

5. Since it is yet to be Ordered that Andre Murray is bound by a valid, justified s.810Undertaking, there is no legal obligation which would otherwise be imposed by statute on a

person bound by a valid Undertaking, (established through due process and so Ordered to attend

at court), as required or directed by the terms of the operative document. Furthermore, the

offence of failing to appear is not one of particularly high stigma and, a Justice has the discretion

whether or not to Order a warrant for an accused, who had apparently breached that particular

section of a valid Undertaking. Despite failure to appear, a Defendant may still make out lawful

excuse for non-attendance, if indeed bound by an Undertaking.

6. The prerequisite, Criminal Code s. 810 Undertaking Hearing is an importantconstitutional safeguard, without the prerequisite s. 810 Undertaking Hearing, Andre Murrays

Right to due process, and Charter guarantees are violated, rendering any subsequent Undertaking

improperly Ordered, without jurisdiction, therefore a nullity (nullity n. something which may be

treated as nothing, as if it did not exist or never happened). Considering potential restraint of

Liberty, in a prerequisite Undertaking Hearing regarding Section 810 of the criminal Code, it is

most important to note that a Judge considering a s.810 Undertaking in open Court, must

attempt to balance two competing interests:

(1) the right of Defendant Andre Murray to privacy or to be left alone;

(2) the right of informant Neil William Rodgers to protective intervention in appropriate

circumstances.

7. The prerequisites of a Section 810 Undertaking Hearing, provides opportunity forbalance, of the competing rights of the Parties, by setting out subjective and objective grounds

that must be satisfied prior to the issuance of the Undertaking sought. Without the prerequisite

hearing to determine if the Undertaking is justified, a balance cannot be reached in due process,


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as required by law. The justice who conducts the trial must be satisfied, (at least on a balance of

probabilities), that the subjective and objective elements have been proven is evidence. Unless

both elements have been proven the justice has no jurisdiction to make the order.

8. Considering the circumstances highlighted in Andre Murrays four Briefs filed thus far,Andre Murray is in a position of no longer trusting the Judiciary/Justice System, and cannot risk

further harm, because of negligence, vengeance, retribution or misapprehension on the part of the

Police, the Crown or the Court. Charter protected Rights and procedural safeguards which have

been enacted Canada wide to keep the innocent from unwarranted freedom infringements, have

been thrown out the window in Andre Murrays case. This train wreck of a Charter infringing

case against Andre Murray has to be forthwith corrected to maintain public confidence in the

Judiciary, and the attendance of a falsely accused Andre Murray (potentially and most likelyfacing months in jail on remand, based on Police conduct thus far), will do nothing to help the

real issues before the Court. The real issues are, whether Andre Murray did, assault, and harass

Neil Rodgers April 10, 2012 and is a section 810 Undertaking appropriate in the circumstances.

There is enough evidence and legal briefs to address this matter conclusively, as Andre Murray is

innocent.

9. Andre Murray has been treated by the Judiciary as if guilty until Ordered guilty andfurthermore, was denied, every constitutional safeguard to maintain his Charter right of being

considered innocent until proven guilty.

10. The eye witness audio/video evidence provided to the Crown, should be enough for anyrational observer to see that Andre Murray did not Assault Neil Rodgers, or Threaten Neil

Rodgers April 10, 2012. To maintain public confidence in the administration of Justice, these

subject Charges of Assault, Undertaking and Breach of Undertaking which stem from the subject

April 10, 2012 exchange between Andre Murray and Neil Rodgers should be immediately

quashed.

11. Despite being innocent, of the allegations against him, Andre Murray is in a position,potentially facing months in jail, before the Courts come around to the inevitable and just

conclusion ofthe truth that Andre Murray is innocent. As I do believe is a similar experience


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where recently Mr. Justice Dickson granted the Crown motion to withdraw the charge and told

Armstrong he was free to go, on charges of Assault, having spent 10 days unnecessarily incarcerated

despite his innocence. Andre Murray has a long history of years of faithful appearances in civil

Court, but Andre Murray cannot rationally risk the damage, injustice and harm that will be

caused to Andre Murray by further Charter infringements and groundless incarceration. Based on

the actions of members of FREDERICTON POLICE FORCE thus far, there is a very real risk of

unwarranted and unjustified incarceration, for a indeterminate amount of time. This is further

exacerbated by the potential of Self Represented Andre Murray spending months in jail on

remand, if the Court Orders an adjournment of these proceedings, losing the resources (internet

and computer access) and time opportunity to defendant himself from these and any further

charges as the Crown may be intending to lay . Furthermore, considering the biased and

vindictive conduct of members of FREDERICTON POLICE FORCE, thus far and their pushing

for more charges of Breach of an Undertaking which should not have existed in the first place, it

is unreasonable and irrational for Andre Murray to make a Court Appearance, when the four

Briefs, and evidence already submitted, provide legal argument, sufficient grounds for a Justice

to forthwith resolve these matters and dismiss the charges against Andre Murray, based on the

written submissions alone.

12. Andre Murray has been a litigant in more than twelve reported decisions involving theCourt of Queens Bench. With respect to matters decided in the Court of Queens Bench, and

Court of Appeal of New Brunswick, they range from 2009 to 2013. Two of the cases made their

way to the Supreme Court of Canada. In all instances Andre Murray was self-represented: see

Murray v. Royal Bank of Canada, [2009] N.B.J. No. 395 (C.A.) (QL);Murray v. Danielski, 2011

NBQB 173 (CanLII), 2011 NBQB 173, 374 N.B.R. (2d) 367, affd2011 NBCA 103 (CanLII),

2011 NBCA 103, 380 N.B.R. (2d) 385, leave to appeal to SCC refused [2012] S.C.C.A. No. 54

(QL);Murray v. Danielski, 2011 NBCA 1 (CanLII), 2011 NBCA 1, [2010] N.B.J. No. 431 (QL);

Murray v. Royal Bank of Canada, [2011] N.B.J. No. 407 (C.A.) (QL);Murray v. Royal Bank of

Canada, [2011] N.B.J. No. 415 (C.A.) (QL);Murray v. Royal Bank of Canada (2011), 384

N.B.R. (2d) 288, [2011] N.B.J. No. 509 (C.A.) (QL), leave to appeal to SCC refused [2012]

S.C.C.A. No. 43 (QL); Murray v. New Brunswick Police Commission, 2012 NBQB 154

(CanLII), 2012 NBQB 154, [2012] N.B.J. No. 148 (QL);Murray v. Fredericton (City), 2012

NBQB 169 (CanLII), 2012 NBQB 169, [2012] N.B.J. No. 168 (QL);Murray v. Rodgers, [2012]


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N.B.J. No. 187 (C.A.) (QL). This record is evidence of Andre Murrays history of consistently

appearing for Court Hearings.

13. Since it is yet to be Ordered that Andre Murray is bound by a valid, justified s.810Undertaking, issued through due process, there is no legal obligation which would otherwise be

imposed by statute on a person bound by an undertaking to attend at court as required or directed

by the terms of the operative document. If it was not for the impugned conduct of members of

FREDERICTON POLICE FORCE, Crown and even the Court thus far, Andre Murray would in

good faith attend scheduled Court Hearings, (if for no other reason than) to respond to and

disprove these vexatious, fraudulent misrepresentation made against him.

14. Under the circumstances, unless the Court completely and unlawfully, withoutjurisdiction or air of reality departs from:

the custom of rendering a verdict supported by the evidence; applying the principle of reasonable doubt considering the law and evidence and; properly considering the principle ofmens rea;

there is no rational way a verdict of guilty can arise from the facts before this Honorable Court,

regarding the charges of Assault, Breach of Undertaking or a s.810 Undertaking.

15.

These above three, basic criminal Court concepts were reviewed in R. v. Custance, asfollows:

8 The accused argues that the trial judge erred in:

(1) rendering a verdict not supported by the evidence, and therefore

unreasonable;(2) failing to apply the principle of reasonable doubt considering the law and

evidence; and

(3) not properly considering the principle ofmens rea.

R. v. Custance, 2005 MBCA 23 (CanLII), http://canlii.ca/t/1jrjw para 8

16. Under normal circumstances, (hopefully these circumstances are not normal) AndreMurray would recognize an obligation imposed on an accused bound by a valid Undertaking.

Failure to attend, is justified in these circumstances, because Andre Murray has an honest and

reasonably based belief that attendance would result in greater injustice, than the injustice that

has already befallen Innocent Andre Murray. Considering all that has befallen Andre Murray so


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far, the possibility of incurring another meritless charge of failure to appear, is of no valid

consequence when a innocent man is faced with the certainty of unmerited time in jail, as a

consequence of simply appearing in good faith for a Hearing. The rational choice (in the

circumstances) of not Appearing, should not result in a finding of a breach of (a yet to be

lawfully Ordered) Undertaking or charge of Failure to Appear.

(3)

BREACH OF UNDERTAKING

17. The Crown must prove beyond a reasonable doubt that the accused intended to breach hisUndertaking conditions. This means the accused must have known that he was bound by a valid

Undertaking Order as well as the terms of the order. Once the Crown establishes a prima facie

case, the accused is responsible to "establish a lawful excuse for not complying" with the

conditions of the Undertaking, and the Crown must prove beyond a reasonable doubt that the

defence does not apply.

18. Black's Law Dictionary provides the definition of MENS REA as follows:mens rea , [Law Latin guilty mind] The state of mind that the prosecution, to secure aconviction, must prove that a defendant had when committing a crime; criminal intent or

recklessness . Mens rea is the second of two essential elements of every crime at common law,the other being the actus reus. Also termed mental element; criminal intent; guilty mind.

Black's Law Dictionary (8th ed. 2004), at Page 3124

19. Breach of an Undertaking through failure to Appear would be under section 145(3) of theCriminal Code of Canada:

(3) Every person who is at large on an undertaking or recognizance given to or enteredinto before a justice or judge and is bound to comply with a condition of that undertaking

or recognizance, and every person who is bound to comply with a direction under

subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails,without lawful excuse, the proof of which lies on them, to comply with the condition,

direction or order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding twoyears; or

(b) an offence punishable on summary conviction.20. The fault or mens rea requirement for this class of offence has a large element of theobjective about it. Conviction can be avoided if an accused establishes a lawful excuse by a


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showing of due diligence to satisfy the obligation, including an honest and reasonable belief in a

state of facts that would excuse non-attendance. The Court must ask the proper question, namely:

Did the accused have an honest and reasonable belief in a state of facts that excused himfrom the necessity of attending court?

21. Considering that Andre Murray will rely on the entirety of the Briefs, Affidavit andAudio/Video Evidence provided by Andre Murray, there seems little reason for Andre Murrays

attendance, except as a formality. If this question is posed and the facts properly analyzed, and

considering the surrounding circumstances, there could have been but one answer; namely the

accused had made out a lawful excuse. Consequently, the Court should ensure that a charge of

failure to appear is not entered/endorsed or a dismissal is immediately entered on the charge of

failure to Appear or Breach of Undertaking.

22. In R. v. Ludlow, the Court analyzed the concept and application lawful excuse for failureto attend court as follows:

[36] Criminal liability based on a marked departure from a reasonable care standard hasalso been upheld as permissible in offences involving the careless use or storage of

firearms contrary to regulation see R. v. Finlay, 1993 CanLII 63 (SCC), [1993] 3

S.C.R. 103, 83 C.C.C. (3d) 513 and R. v. Smillie 1998 CanLII 7050 (BC CA), (1998),129 C.C.C. (3d) 414 (B.C.C.A.).

[37] Provided it is open to an accused to establish a defence of due diligence, conviction

for certain offences on the basis of negligent conduct is constitutionally permissible.[38] The offence of failing to appear is not one of particularly high stigma and inappropriate cases, a court could impose a discharge disposition upon a finding that an

accused had breached the section.

[39] It seems to me that it would be impossible to envisage every situation that couldamount to a lawful excuse for failure to attend court. Sudden illness, a breakdown of

transport and the like would seem to be clear instances of situations that could amount to

a lawful excuse for failure to appear. Of course, any such defence would have to bebased on evidence that the trier of fact believed.

[40] It must not be overlooked that an obligation is imposed by statute on a person bound

by an undertaking or recognizance to attend at court as required or directed by the termsof the operative document. Forgetting to appear seems to me a very marked departure

from the requirement imposed on an accused at liberty on an undertaking or recognizance

to faithfully observe the requirement to attend. Most people would and should recognize

that a serious obligation concerning the proper administration of justice is therebyimposed on an accused and a failure to attend, absent a compelling reason, or as in the

instant case, an honest and reasonably based belief that no attendance is required, should

usually result in a finding of a breach of the section. I would say the fault or mens rearequirement for this class of offence has a large element of the objective about


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it. Conviction can be avoided if an accused establishes a lawful excuse by a showing of

due diligence to satisfy the obligation, including an honest and reasonable belief in a stateof facts that would excuse non-attendance.

[41] I do not consider that in the instant case, the learned summary conviction appeal

court judge asked the proper question, namely, did this appellant have an honest and

reasonable belief in a state of facts that excused him from the necessity of attendingcourt? In my opinion, if that question had been posed and the facts properly analyzed,

there could have been but one answer, namely he had made out a lawful excuse. I wouldallow this appeal and direct a verdict of acquittal.

R. v. Ludlow, 1999 BCCA 365 (CanLII),

(4)

CONSIDERING THE SURROUNDING CIRCUMSTANCES

23. Andre Murray has been falsely alleged to have Assaulted and Harassed Neil RodgersApril 10, 2012, which led to the Crown laying Information(s), for: Assault; a s. 810 Undertaking;

and then for a Breach of Undertaking. Eyewitness Affidavit, Audio/Video evidence now

provided to the Crown and to the Court establishes conclusive objective evidence that no such

Assault or Harassment took place April 10, 2012. Considering the testimony of Neil William

Rodgers and Thomas Neil Rodgers, everyone can clearly see and hear that Neil William Rodgers

and Thomas Neil Rodgers, (as an objective fact), clearly lied on their witness statements.

Remember, according to Provincial Offences Procedures Act, section 35 and 64, to lie on a

Witness statement can result in 180 days in jail.

24. Provincial Offences Procedures Act, section 35(3), 35(4) and 34(5) and 64(1), provideconsequences to every person who knowingly makes a false statement in a witness statement,

which is to commit a category H offence.

Provincial Offences Procedures Act.

35(3) A witness statement shall be in prescribed form and shall be signed by the witness

in the presence of another person.

35(4) The evidence of a witness given by way of a witness statement has the same force

and effect as evidence given orally under oath or solemn affirmation.

35(5) Every person who knowingly makes a false statement in a witness statement

commits a category H offence.


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64(1) A judge may, in relation to a category H offence, sentence a defendant to a term of

imprisonment of not more than one hundred and eighty days.

25. Considering the questionable actions of members of FRDERICTON POLICE FORCE,Crown Prosecutors and the Court so far, Andre Murray has lost faith in the Criminal Justicesystem. Bias, prejudice, misuse and abuse of the Criminal Code of Canada and improper

procedure violating Charter guarantees have over run this Court matter concerning Andre

Murray.

(5)

LAWFUL EXCUSE

26. Andre Murray has relied upon, Charter guarantees, that Canadian citizens, will not besubject to arbitrary detention or imprisonment. Only after the Crown having established a primaface case of breach of condition, can the Court consider lawful excuse of the conduct in question.

In R. v. Dempster the Court confirms that The Crown has the burden to prove each and every

element of the criminal offence beyond a reasonable doubt. Under either s. 145(3) or s. 794(2)

the burden shifts to the accused to provide an excuse or exception only after the Crown has

proved each element of the offence:

[30] On the Crown having established aprima face case of breach of condition, the

accused stands convicted unless he can establish a lawful excuse for not complying with

the condition of his undertaking or recognizance. This is set out succinctly inR. v. Flores-Rivas2008 BCSC 1595 (CanLII), 2008 BCSC 1595 at paras. 15-16 referring

toR. v. Ludlow1999 BCCA 365 (CanLII), (1999), 136 C.C.C. (3d) 460, 125 B.C.A.C.

924:1. The accused bears the onus to show on a balance of probabilities that he had a

lawful excuse for not complying with a condition of his undertaking or

recognizance;

2. The lawful excuse, if accepted, does not relate to an element of the offence so asto mitigate or negative the mens rea. Rather, if accepted by the trial judge, it

provides an excuse for his acts or omissions and thereby avoids a conviction that

would otherwise result.As similarly noted inR. v. Ludlow, supra, at para. 30:

As I interpret Code section 145(2), it provides that when the Crown establishes

non-attendance by an accused contrary to an undertaking or recognizance, theaccused should be found guilty unless he can point to some evidentiary basis

supportive of a lawful excuse for his failure to appear. The section speaks of the

proof of which lies upon him.[31] The phrase "without lawful excuse, the proof of which lies upon him" in the

context ofs. 145(3) permits an accused to raise a defence absolving him or her of liability


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despite proof of the actus reus and mens rea beyond a reasonable doubt:R v Holmes,

1988 CanLII 84 (SCC), [1988] 1 SCR 914 at paras. 13 and 22.[32] A lawful excuse under law is equivalent to a defence of reasonable

excuse. Such an excuse is said to refer to matters extraneous to the essential elements of

the offence: R. v. Moser(1992), O.J. 602 (C.A.) per Doherty J.A. at para. 42 referring

inter alia toR. v. Holmes, above.[33] The defence of lawful excuse under s. 145(3) expressly and explicitly places a

burden on the accused to establish on a balance of probabilities an excuse which mayjustify his actions after aprima facie case for conviction has been established by the

Crown.

R. v. Dempster, 2012 BCPC 275 (CanLII), http://canlii.ca/t/fsb8b paragraph 30 -33

27. The accused bears the onus to show on a balance of probabilities that he had a lawfulexcuse for not complying with a condition of his undertaking; A person who commits a criminal

act under threats of death or bodily harm may also be able to invoke an excuse-based defence, either

the statutory defence set out in s. 17 of the Criminal Code or the common law defence of

duress. This is so, regardless of, whether or not, the offence at issue is one where the presence of

coercion also has a bearing on the existence ofmens rea. The operative standard for the defence of

necessity is to be an objective one, based on whether "there is a reasonable legal alternative to

disobeying the law". Members of FREDERICTON POLICE FORCE have created a situation

where, Andre Murray is under duress, because, to Appear March 13, 2013 would most likely result

in further, unmerited arrest, further unjustified charges and potentially a long time on remand, in jail

until this matter is sorted out. The actions of the Crown, Police and the Court thus far, have caused

Andre Murray to completely lose faith in the possibility of attaining justice, so Andre Murray is left

with no reasonable legal alternative, but to disobeying the (yet to be established as valid)

Undertaking, by not appearing at the scheduled March 13, 2013 Trial and Hearing.

28. Criminal Code, R.S.C., 1985, c. C-468. ...

(3) Every rule and principle of the common law that renders any circumstance a

justification or excuse for an act or a defence to a charge continues in force and appliesin respect of proceedings for an offence under this Act or any other Act of Parliament

except in so far as they are altered by or are inconsistent with this Act or any other Act

of Parliament.

17. A person who commits an offence under compulsion by threats of immediate

death or bodily harm from a person who is present when the offence is committed is

excused for committing the offence if the person believes that the threats will be carried


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out and if the person is not a party to a conspiracy or association whereby the person is

subject to compulsion, but this section does not apply where the offence that iscommitted is high treason or treason, murder, piracy, attempted murder, sexual assault,

sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated

sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or

causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or anoffence under sections 280 to 283 (abduction and detention of young persons).

29. The leading case on necessity as a defence and its applicability is the case of R v. Perka1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232. In the circumstances where either "necessity" or

duress is relevant, there are both actus reus and mens rea. In both sets of circumstances there is

power of choice between two alternatives; but one of those alternatives is so disagreeable that even

the possibility of a serious infraction of the criminal law seems preferable. Andre Murray is faced

with just such a choice. Appear at the March 13, 2013, hearing and most likely (based on past

conduct) be vindictively arrested by members of FREDERICTON POLICE FORCE, for more

vexatious charges of Breach of Undertaking or whatever other meritless charges they can dream up,

to therefore, lay unfounded charges against Andre Murray. The alternative is to not appear, to

instead therefore, argue in writing why the Court should not entertain charges of failure to Appear

or Breach of Undertaking. In R. v. Hibbert, the Supreme Court of Canada provided the following

insight:

51 The similarities between defences of duress and necessity have been noted on

previous occasions by other commentators. As Lord Simon of Glaisdale observed inhis dissenting reasons inLynch, supra, at p. 692:

In the circumstances where either "necessity" or duress is relevant, there are

both actus reus and mens rea. In both sets of circumstances there is power ofchoice between two alternatives; but one of those alternatives is so disagreeable

that even serious infraction of the criminal law seems preferable. In both the

consequence of the act is intended, within any permissible definition of

intention. The only difference is that in duress the force constraining the choiceis a human threat, whereas in "necessity" it can be any circumstance

constituting a threat to life (or, perhaps, limb). Duress is, thus considered,

merely a particular application of the doctrine of "necessity"....In Canada, of course, a distinction between the two defences exists as a result of the

fact that the defence of duress has been partially codified (in relation to principals)

by s. 17, while necessity remains a purely common law defence: Perka v. The

Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232. In the present case, however,

we are concerned only with those cases of duress falling outside the ambit of s. 17,

where the common law remains applicable -- that is, cases of party liability(Paquette, supra). In my view, the clear similarities between the factual

circumstances in which the common law defence of duress and the common law


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defence of necessity arise imply that comparisons between the two remain highly

relevant, notwithstanding the existence of a partially codified version of the defenceof duress applicable in other situations. It would, I believe, be highly anomalous if

the common law defence of duress were to be understood as based on substantially

different juridical principles from the common law defence of necessity.

52 In Perka, supra, the status of the defence of necessity in the common law ofCanada was firmly established. In his majority reasons, Dickson J. summarized the

considerable debate in the academic literature over the question of whether thedefence of necessity should be conceptualized as a "justification" or an

"excuse". Dickson J. described the justification-based approach to the defence of

necessity in the following terms (at pp. 247-48):As a justification [the defence of necessity] can be related to Blackstone's

concept of a "choice of evils". It would exculpate actors whose conduct could

reasonably have been viewed as "necessary" in order to prevent a greater evil

than that resulting from the violation of the law. As articulated, especially insome of the American cases, it involves a utilitarian balancing of the benefits of

obeying the law as opposed to disobeying it, and when the balance is clearly infavour of disobeying, exculpates an actor who contravenes a criminalstatute. This is the "greater good" formulation of the necessity defence: in some

circumstances, it is alleged, the values of society, indeed of the criminal law

itself, are better promoted by disobeying a given statute than by observing it.R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, para 51 and 52

30. Please Note: based upon past conduct of the Crown and members of FREDERICTONPOLICE FORCE, in this matter so far, the next time Andre Murray is arrested and held in custody,

the Crown will do everything in their power to irrationally keep Andre Murray remanded in custody

and not released under an undertaking, despite Andre Murrays innocence.

31. The actions of the Judiciary thus far appear capricious, unpredictable and subject towhim, appear to not follow the law, logic or proper trial procedure. Black's Law Dictionary (8th

ed. 2004), Page 631 defines CAPRICIOUS as:

Capricious, adj.

1. (Of a person) characterized by or guided by unpredictable or impulsive behavior.2. (Of a decree) contrary to the evidence or established rules of law. Cf. ARBITRARY.

32. In Matondo, Justice Harington of the federal Court of Canada wrote:"To be capricious is to be so irregular as to appear to be ungoverned by law."

Matondo v. Canada (Minister of Citizenship and Immigration), 2005 FC 416

(CanLII) paragraph 1


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33. As a justification, the defence of necessity can be related to the concept of a "choice ofevils", that would exculpate someone, whose conduct could reasonably have been viewed as

"necessary" in order to prevent a greater evil than that resulting from the violation of the law. In

Andre Murrays case, this involves balancing of the benefits of obeying the impugned Undertaking

and appearing March 13, 2013, (guaranteeing arrest and incarceration) as opposed to disobeying the

impugned Undertaking (facing potential arrest and incarceration) and therefore, relying on the

Honorable Court to render a just decision in the circumstances, thereby re-establishing the Honor of

the Court itself, as credible in the eyes of the Public. When the balance is clearly in favour of

disobeying, defence of necessity exculpates Andre Murray who may have contravened a criminal

statute. This is the "greater good" formulation of the necessity defence: in some circumstances, it is

alleged, the values of society, indeed of the criminal law itself, in this case are better promoted by

disobeying a given statute than by observing it. If the Honorable Court cannot see its way through,

to the conclusion that the impugned s. 810 Undertaking was not valid, therefore, based upon the

Defendants evidence, that Andre Murray is innocent and deserving of an acquittal of the charges,

then Andre Murrays decision to not appear (thus avoiding further unjustified incarceration) is

justified and appropriate.

34. The question of whether the existence of a "safe avenue of escape" is to be determinedobjectively or on the basis of the accuseds own subjective knowledge and awareness at the

time. For Andre Murray, there is no "safe avenue of escape", there is merely a "choice of evils

(1) to appear March 13, 2013, inevitablymeans to go to jail, (based upon previous

experience with FREDERICTON POLICE FORCE)

(2) to not appear means, the Court mayissue a arrest warrant, if the Court does, Andre

Murray when arrested will most likely go to jail until the matter is sorted at a later date.

35. Staying out of jail allows self-Represented Andre Murray, to do legal research, draftdocuments and file evidence in his Defence. Until a correction is made, Andre Murray must, keep

free of a Charter violating Judiciary, whom have apparently forgotten their purpose. That purpose

was articulated by Chief Justice of New Brunswick as:

Free and democratic societies are founded on the supremacy of law, and an independent

judiciary is essential to ensure its unbiased application.


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Courts play an essential role within Canada s constitutional framework. They constitute

the judicial branch of government, a component that the Constitution of our country compels

the legislative and executive branches to preserve and protect.New Brunswickcourts are called upon, on a daily basis, to judge and apply the appropriate

law to disputes and provide a peaceful and professional mechanism for their resolution."

36. Andre Murray Going to Jail serves no rational purpose, because Andre Murray isinnocent of the alleged criminal charges, and the subject impugned Undertaking is not justified

in the circumstances. All of this initiated because of the (criminal/tortious) fraudulent

misrepresentation of Neil Rodgers, Trina Rodgers and Thomas Rodgers. The Court must be able

to see from the evidence provided that Andre Murray is innocent and public confidence in the

Judiciary will not be enhanced by further charter infringements upon victim Andre Murray.

(6)

CONCLUSION

37. Because the Crown Prosecutors, members of FREDERICTON POLICE FORCE and theCourt have not been following proper procedure, Andre Murray has been subjected to, but not

limited to: Section 1(a);1(b); 2(a); 2(e); 2(f); 7; and 9 Charter violations. Please remember The

Charter should protect the individuals liberty by guaranteeing, the right not to be

deprived thereof, except by due process of law. Andre Murray has the right to equality before

the law and the protection of the law and should not be subject to arbitrary arrest, detention, or

imprisonment. The Charter sufficiently guarantees that a person is not deprived of the right to a

fair hearing in accordance with the principles of fundamental justice, for the determination of his

rights and obligations; furthermore, shall not deprive a person charged with a criminal offence of

the right, to be presumed innocent until proved guilty, according to law, in a fair, and public

hearing, by an independent and impartial tribunal, and or the right not to be deprived of

reasonable bail, without just cause.

38. Andre Murray has been arrested twice, spent two days in jail, and has been restricted byan unjustified undertaking for 11 months, (used by Members of FREDERICTON POLICE

FORCE to vindictively add more charges) without just cause. Members of FREDERICTON

POLICE FORCE are pursuing Andre Murray as if he is an escaped convicted criminal. In all

cases, regarding these herein mentioned matters, Andre Murrays rights have been trampled and


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injustice has overcome the justice system. Members of FREDERICTON POLICE FORCE are

hunting down and pursuing Andre Murray as if he is an escaped convicted criminal, questioning

his roommate, acquaintances and anyone they can think of, to establish evidence of their claim

that Andre Murray has further Breached an Undertaking. Members of FREDERICTON

POLICE FORCE are searching for evidence so they can charge Andre Murray to ensure a

conviction of their own assertions of Andre Murrays guilt. This is completely backwards, and

contrary to the role Police are supposed to play in their relationship to the Judiciary.

39. It is so well known, that Members of FREDERICTON POLICE FORCE are claimingAndre Murray does not reside at his residence, and are actively searching for evidence so they

can charge Andre Murray with a Breach of Undertaking in this regard, that a December 18,

2012, news article from the Daily Gleaner, authored by Don MacPherson, quoted MadameJustice Judy Clendening as prejudicially expressing Clendening said she thought Le-Blanc

would have trouble serving such a notice, noting officials aren't sure where Murray is living

now." When a Justice, having read documents filed by Andre Murray with his address all over

them, prejudicially states officials aren't sure where Murray is living now, it is shocking, that a

judge would make such a public statement. The truth is Officials and specifically members of

FREDERICTON POLICE FORCE have Andre Murrays address, but they just wont accept it;

they are actively seeking to find a Undertaking Breach, even if they have to create it themselves.

This behaviour is irrationally beyond their mandate, scope, jurisdiction of Law enforcement and

contrary to the Publics interests in the role Law enforcement is supposed to play. Law

enforcement should investigate alleged crimes, not create criminals, by predetermining a

persons guilt then finding evidence to prove their prejudicial predetermination.

40. The police were not acting in the exercise of a lawful duty, when, they arrested AndreMurray on April 18, 2012, at the Fredericton Police Station. Second, the herein subject,

therefore, impugned conduct of Police amounted to an unjustifiable use of police powers

associated with that duty. The Bias of FREDERICTON POLICE FORCE can be demonstrated

by the conduct of FREDERICTON POLICE FORCE members involved in the accuseds

investigation, moreover, history of interaction between the accused and FREDERICTON

POLICE FORCE members, further a history of harassing calls between Police Informants Neil


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Rodgers and Trina Rodgers to FREDERICTON POLICE FORCE regarding Andr Murray at his

residence civic address 29 and 31 Marshall Street, Fredericton, New Brunswick.

41. There is more than reasonable doubt to the credibility of the claims made by PoliceInformant(s): Neil Rodgers, and Trina Rodgers, including Thomas Neil Rodgers, yet

FREDERICTON POLICE FORCE members act as though Andre Murray was guilty until

proven guilty. Investigating members of FREDERICTON POLICE FORCE did not interview

Andre Murray regarding the alleged April 10, 2012, assault. Andre Murray was never asked if he

had an alibi. Andre Murray was never asked for his version of events. Andre Murray was never

asked if there was any witnesses to the alleged events, who could provide information.

42. Had members of FREDERICTON POLICE FORCE made visible their duty to considerperspectives other than Police Informant(s): Neil Rodgers, Trina Rodgers, including Thomas

Neil Rodgers, in the course of an investigation, FREDERICTON POLICE FORCE Investigators

would not have left the impression that they considered only the allegations of the Complainants,

rather than the rule of law, the final arbiter of Andre Murrays guilt for these alleged threats and

assault.

43. Considering all the above, the Court should, not accept the charge of failure to Appear orBreach of an Undertaking, furthermore, not sign any arrest warrant for innocent victim Andre

Murray.

DATED at Fredericton, New Brunswick, this _______day of March, 2013.

_________________________________________

ANDRE MURRAY: Applicant/Defendant/Accused

brief - lawful excuse for failure to appear march 13, 2013

Documents