Email sent to TCN/Untax/Checkmatrix subscribers on December 8th, 2001
Greetings TCN/Untax/Checkmatrix Readers and/or otherwise:
This December 8th, 2001 email will update readers on my November 26th, 2001 CCRA Appeal, File No. 01DV569, Ontario Superior Court of Justice, Divisional Court
On November 26th, 2001, I attended the Divisional Court at 161 Elgin St., Ottawa, Ontario at 10:00 AM to witness Michael Swinwood argue my Appeal of Judge Sedgewick's decision of August 31st, 2000. I had engaged Michael Swinwood to make the presentation to the Divisional Court since my former Agent Dave Lindsay was not permitted to represent me with the Appeal. Apparently, there is a rule in the Ontario Court Rule Book stating that one must represent him/herself in the Appeal process or engage a lawyer.
Some background details are necessary to understand what happened on November 26th, 2001. In mid-September 2000, Dave Lindsay and myself travelled (notice I did not type 'drove' :) to Toronto to file the Intent To Appeal papers within the 30 day time allotment. The clerk at the Court of Appeal at Osgood Hall refused to accept the Intent To Appeal with Dave Lindsay's name as my Agent. I had to go back home, revise the documents and take Dave Lindsay's name off the front and back covers. The following week, I served the Crown, the Attorney General of Canada and the Attorney General of Ontario and the Ottawa-Carleton District School Board and then I paid a $225. fee and filed the Intent To Appeal with the Court of Appeal. This time, I had signed my own name.
Dave Lindsay left for Western Canada and during the last week of September 2000. About the same time the Crown, Roger LeClaire faxed me a letter stating that the Appeal belonged in the Divisional Court as the amount in question was less than $20,000. He indicated that he was planning to put forth a motion to transfer my Appeal Case to the Divisional Court in Ottawa.
Since I did not have experience with court procedures and I did not want to make any errors, I asked Michael Swinwood if he would help me with the procedures and speak on my behalf when the Appeal was scheduled in Court. Michael agreed and I engaged him to be my lawyer for the Appeal.
The Appeal was transferred from the Ontario Court of Appeal to the Divisional Court in Ottawa. In the Spring of 2001, Dave Lindsay helped with the preparation of the arguments for the Appeal. Dave and I spent hours at the University of Ottawa Law Library researching and photocopying documents for the Factum and the Book of Authorities. The documents were prepared, served on the parties involved and filed with the Court within the deadlines. Of course, more fees were charged at the Divisional Court and I never got reimbursed for the fees which I paid to the Court of Appeal.
The date for the Appeal was scheduled for November 26th, 2001 at 10:00 AM
I posted the date of the Appeal on the front page of The Cyberclass Network www.cyberclass.net I was preparing an email to send out to my email contacts on Thursday, November 22nd, 2001 when my computer screen went black. Very quickly I learned that the motherboard had fried. I was unable to get my computer running again until after November 26th. My email address book was lost so I was unable to send out an email about the Appeal scheduled for Monday, November 26th. (Please tell anyone who might like to know what is happening at The Cyberclass Network and/or The UsuryFree Network to send an email to email@example.com so that I can re-enter their email in my address book.)
My daughter, Sarah who attends the University of Montreal in Montreal had been home for the weekend. As she did not have a class on the morning of November 26th, I invited her to accompany me to the courthouse. She accepted and I'm grateful that she did. Sarah was the only supporter that was in the courtroom to support me. Later in the morning, after the proceedings were finished Michael Swinwood looked around the courtroom and wondered why there were no supporters. He said to me: "I'd be recommending that we continue with the Court of Appeal if the courtroom was full of supporters and if they were willing to help with the funding of the Appeal."
Three Justices with the Divisional Court, Mr. Justice McRae, Mr. Justice Granger and Madam Justice Wallace entered the Courtroom 13 at 10:00 AM. Michael Swinwood was present on my behalf - the appellant and Roger LeClaire and a law student named Rosemary were present on behalf of the CCRA - the respondent. The date was November 26th and the courtroom was number 13. With my fascination and intrigue about the 13 and its multiples and reversals I wondered what was ahead!
After the formalities of introducing who was present in the courtroom, one of the Justices started asking question about (1) service, (2) the Factum, (3) the constitutional argument and (4) jurisdiction. For some reason Justice Madam Wallace was asking Michael why he had not filed an amended Factum. In response, both Michael and Roger went through the explanations of what had happened previously. One of the Justices wondered out loud why Mr. Dave Lindsay had even been allowed to appear on my behalf before Justices Kealey and Sedgwick in the summer of 2000. He was sure that Mr. Lindsay should not have been permitted to speak on my behalf in the previous court appearances.
The three justices questioned and listed to response from Michael and Roger until 10:30 AM. Then after a brief huddle, one of the justices said: "we'd like to know on what basis we have jurisdiction? We'll give you 15 minutes to tell us how you think we have jurisdiction." Then the three justices took a recess. They returned to the courtroom at 10:55 AM.
Michael and Roger clarified the historical details of the case. Roger read 'the order' of Justice Kealey, dated June 22, 2000. Then one of the justices said: "It was an application, therefore its proper place is the Court of Appeal of Ontario. They discussed the issue of the amount in question - approximately $1350 which has been illegally garnisheed by CCRA in co-operation with the Ottawa-Carleton District School Board in June of 2000. Then one of the justices said: "With the relief sought on the constitutional challenge, it would involve huge amounts of money and therefore it does not belong here."
One justice suggested that a Consent Order from the Court of Appeal might grant the Divisional Court jurisdiction. The three justices huddled briefly again and then one of them asked a question to Michael and Roger: "Do you both agree that we don't have jurisdiction?" Based on the discussions after the recess, both Michael and Roger agreed with the justices, that indeed the Divisional Court did not have jurisdiction on this matter at hand. Then one of the justices said: "We can't send it back to the Court of Appeal and we don't have jurisdiction. We are dismissing the Appeal for lack of jurisdiction."
Then just as one of the justices was preparing to write up The Endorsement, Roger inquired about 'costs.' The justice answered: "We have no jurisdiction so costs are reserved." Then he finished writing up The Endorsement which reads as follows: "Counsel both agree we do not have jurisdiction to hear this matter. It is dismissed without prejudice to being brought in again if the appellant wishes. Costs reserved."
Court adjourned at 11:10 AM.
Michael Swinwood agrees that the mission to expose CCRA is meritorious indeed BUT it is just too big an issue to take on single-handedly with no visible support in the courtroom and insufficient financial support to re-enter the Court of Appeal. My personal observation is that these three court justices were looking for a way out. They certainly were not going to be the justices who would be responsible for collapsing the 'system' which obviously serves them well. Certainly, we in Ontario have talked about launching a class action suit against CCRA BUT there since there is not sufficient financial support to see individual cases through to the Supreme Court there is obviously no way that the Untax/Detax/Refusetax/Anti-tax Movement could come up with the hundreds of thousands of dollars required to perfect a Class Action suit.
Michael talked with Sarah and myself at the cafeteria briefly after court was adjourned. It was Sarah's first day ever to sit in a court room. she thought the justices were very intimidating. Michael counselled me that it was ultimately my decision of whether I wished to bring the Appeal back to the Court of Appeal in Toronto and that I would have 30 days to take action should I choose to do so.
I have just read Sir Lawrence Leupol's 'Final Word On The Appeal Strategy" as message 3217 - posted at Untax at this URL: http://groups.yahoo.com/group/untax/message/3217 Just as Sir Lawrence Leupol is abandoning his Appeal so too am I abandoning any further pursuit of my Appeal. I have engaged countless hours of time and too many dollars (thousands) have gone down the black hole - court fees, court transcript, travel costs, photocopying, typing etc. It must stop somewhere and so it stops NOW. Intuitively, I know that it is time to quit and put my energy into new and more positive ventures.
I have not been able to 'gift' Dave Lindsay sufficiently to cover the many hours of time that he has spent on the both initial Application and the follow-up Appeal. Now I face legal fees for Michael Swinwood's preparation time as well as the day in court. I have now lost the $1350 which CCRA illegally garnisheed and in addition I am also saddled with $500 costs which were awarded to the Crown in Justice Sedgewick's decision of August 31st, 2000.
I am grateful to those who did donate money in the summer and fall of 2000. If anyone can help with to 'gift' Dave, to pay Michael and to cover the 'costs' I would appreciate whatever you can do. My address is: Tom-Joseph: Kennedy, P.O. Box 9333, Ottawa, Ontario K1G 3V1
Much like Joseph Borkovic expressed earlier in the fall and like Sir Lawrence Leupol recently expressed, I too am convinced that at this time we will not find any justices who are willing to take decisions as real 'white knights' and thereby collapse their 'system.' I do believe that the 'system' will collapse or implode upon itself at some future date.
I will spend my time now working with The UsuryFree Network to advance The UsuryFree Resolution. We will win BUT we will just have to do it differently. We must build a loyal database and change our shopping habits so that we do NOT support the Usury Elite's Group of Companies. This is why, in the spring of 2000, I advocated that we use Excel's long distance service - to give us a head-start on building a data-base from which we can build loyal networks to support each other locally and nationally. Read more details about this idea by reading this page and following the links: www.cyberclass.net/excel.htm
I have suggested that we build The Third Market - a database from which we can choose to buy our products and/or services and thereby support our own loyal network. Details at this URL: www.cyberclass.net/thirdmarket.htm
I encourage readers to re-read the article posted at this URL: www.cyberclass.net/shopathome.htm
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