File No. 01DV569

In the Court of Appeal for Ontario

Divisional Court

 

Between:

Thomas Kennedy,
                                                                                                                                                     Natural Person, Appellant,

- and -


Canada Customs and Revenue Agency,

 

- and -

 

The Ottawa Carleton District School Board,

Respondents.

 

Factum

Canada is governed by the Rule of Law, ie. the common law. The common law traces its origins to the Bible. The common law has developed over the years through such constitutional documents as the Magna Charta 1215, Confirmation of Magna Charta 1297, The English Bill of Rights, the Petition of Right 1628, the Act of Settlement, and the Canadian Bill of Rights. Rooted in confirmation of Magna Charta 1297, s. 37, any judicial decision that is contrary to Magna Charta 1215 is null and void. (TAB 6, Blackstone’s Commentaries, p. 127, see also "Inherent Rights", The Honourable Justice C.H. O’Halloran, quoted from "Obiter Dicta" 1948)

TAB 1 – Magna Charta 1215
TAB 2 – Confirmation of Magna Charta 1297
TAB 3 – English Bill of Rights 1689
TAB 4 – Act of Settlement 1700
TAB 5 – The Canadian Bill of Rights 1960
TAB 6 – Inherent Rights, O’Halloran, J. BCSC Part One p. 35-37

Canada, in adopting the British North America Act, 1867, accepted same "..with a Constitution similar in principle to the United Kingdom" thus the constitutional documents above mentioned now are part of our Constitution, as recognized by The Honourable Justice Sedgewick. Thus, the Income Tax Act, R.S.C. 1985 as amended, is required to comply with the Constitution, including the above mentioned Constitutional Documents.

"Sovereign power is no parliamentary word. …..Magna Charta is such a fellow that he will have ‘no sovereign.’" Lord Coke 1628

TAB 7 -- British North America Act 1867
TAB 8 – Lord Denning on the Magna Charta 1215

3. Constitution:

"The fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise."

TAB 9 -- Black’s Law Dictionary 7th Ed.

"The fundamental law of a state, directing the principles upon which the government is founded, and regulating the exercise of the sovereign powers, directing to what bodies or person those powers shall be confided and the manner of their exercise."

         TAB 10 – Bouvier’s Law Dictionary 1914

4. Under our common law, there are two types of persons, natural, as GOD has created us, with all the attending GOD given rights and freedoms as set forth in para. 6. There are also artificial persons, or fictitious legal entities, created by man. These entities only possess the rights and privileges given to them by man. These include businesses, corporations, governments and similar entities.

TAB 11 – Blackstone’s Commentaries, Book 1 p. 123
TAB 12 – Definition Artificial Person, Black’s Dictionary of Law

5. Under our common law, the individual, ie. natural person is supreme, not the government, nor the judiciary, nor corporations, nor private groups, nor the community. The fundamental principle of our law is that everyone has the absolute right to attain the maximum amount of happiness in their lives, restricted only by the rights and freedoms of others to do likewise.

TAB 13 – Reasons for Decision of the Supreme Court of Canada, October 3, 1950 (p.34)
TAB 14 – History and System of the Common Law, Pound 1921 Chapter 1

6. Among the absolute rights and freedoms guaranteed to all, there are three absolute, inalienable rights which cannot be denied, except through due process of law. They are personal security, personal liberty, and right of personal property. Personal security, right of personal property and a man’s right to his court, encompassed in the absolute right to due process of law, are the material issues in dispute.

Supra @ TAB 11 Book 1 P. 143
TAB 14-- New Abridgement of the Law, Bacon p. 117 para. 128-129, inclusive

7. Wages earned by the Natural Person, Appellant are without question, his property. It is sacred, it is inviolate and inalienable and can only be taken from him by due process of law through a lawfully obtained judgement from a court of law. Society’s sole reason for existing is the preservation of this fundamental right.

Supra @ TAB 11 p. 124 para. 124

8. The common law right of property, inclusive of the free use and disposal of same, cannot be abrogated save only by due process of law.

"So great moreover is the regard of the laws for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community."

Supra @ TAB 14, Bacon page 139 para. 139
Supra @ TAB 5, para. 1(a)
Supra @ TAB 1 -- Magna Charta 1215
Supra @ TAB 2 -- Confirmation of Magna Charta 1297 s. 29

9. The right of property of the Natural Person, Appeallant is absolute and inalienable. The following comments on our law is applicable herein.

"From the foregoing far from exhaustive review, it appears that the existence of inalienable rights in the individual forms the foundation of the system of constitutional Government which has evolved in England and the Dominions….These fundamental first principles have come to mark the dividing line between constitutional democracy and totalitarian Government in various degrees of the later ranging from past despotisms in monarchial form to more modern examples of dictatorship by an individual, a group or a party. In the former the dignity and liberty of the individual are implicit, whereas under the totalitarian system the will of the State as interpreted by those temporarily in charge of the machinery of Government over-rides all other considerations."

Supra @ TAB 6 – O’Halloran Part Three, p. 37

Further, the principle of "The divine right of kings was not rejected in order to put in its place a doctrine of the "divine right" of Parliament or of the Executive to permit the latter in their turn to assert an "omnipotence" denied by the ancient law affirmed time and again over six centuries." (my emphasis)

Supra @ TAB 6, Part Three p.24
Law of the Constitution, 8th Ed. Dicey 1931 p. 69, from supra @ TAB 6

"Everyone, again, knows as a matter of common sense, that whatever lawyers may say, the sovereign power of Parliament is not unlimited, and that Kings, Lords, and Common suited, do not possess anything like that "restricted omnipotence"…There are many enactmentes, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would and (to speak plainly) never could pass. If the doctrine of Parliamentary Sovereignty involves the attribution of unrestricted power to Parliament the dogma is no better than a legal fiction, and certainly is not worth the stress here laid upon it." (my emphasis)

"…but any theory which would deny a man the right to own a piece of land on which to live, or which would deny him the right to own a house or a motor-car or the money he earns by working or from sale of commodities or things he owns, must be founded on denial of individuality and the attributes of personality which by nature attach to an individual. Man was not given that non-individualistic character for which the bees and ants are noted."

Supra @ TAB 6, O’Halloran, J. Part Three p. 27

10. It is within the above constitutional framework that the Natural Person, Appellant states that the decision by the Honourable Justice Sedgewick is in error, a fortiori, his decision is of no force and effect as it contravenes the Constitution of Canada, as reflected in the Constitutional Documents above mentioned in para. 1.

11. Neither the government nor a judge can do indirectly what he/she/it cannot do directly. The sole reason people have entered into society, created governments and expressly created the judiciary, is the preservation of our fundamental rights and, inter alia, the inalienable right to property.

12. The Honourable Justice Sedgewick erred in utilizing the words of the Income Tax Act to determine if taxes are voluntary. One must use the constitutional documents outlined in para. 1 herein to make this determination. Unquestionably, verified by Magna Charta and subsequent constitutional documents protecting the inalienable right of property, taxation is voluntary. Insofar as a stranger cannot simply take one’s money, which is one’s personal property, without his consent, neither to can a government, itself a legal entity given only the powers which man has so provided. The Constitutional Documents herein mentioned do not permit this legal entity to compel the people who created it to give up their constitutional right of property without their informed consent. See para. 28 herein.

13. Sedgewick J. further erred in determining that the definition of "person" in the Income Tax Act includes the Natural Person. The ITA, a statute, created by an artificial person, must be in subordination to the various constitutional documents the people in this county look to for their protection of their property. The Act, if construed to include natural persons as Blackstone has described them to be, violates the very fundamental principles for which our constitutional documents were put in place to protect. S. 224 on garnishment permits the government to take one’s property without due process of law and without a lawfully obtained court judgement. One is guilty until proven innocent. The entire Act, or virtually all of it, is reverse onus. It denies to a man his absolute right to his court of common law jurisdiction. Tax Court only deals with the amount of money owed, the presumption existing that one already owes money, wholly contrary to common law. Most importantly, it compels one to give up their personal property without their consent. This violates every constitutional document we possess. Many other examples abound.

14. Blackstone and others have been open in conceding that a person can be either natural or artificial. However, at no time have any learned judiciary conceded that a person can be both at the same time. Blackstone’s quote, "Persons also are divided by the law into either natural person or artificial" ( TAB 1, para. 124) is a recognition that one must fall into one category or the other. (my emphasis) In construing the definition of the word "person" as defined in the Income Tax Act, Sedgewick J. erred in coming to the conclusion that this included a natural person for several important reasons. Of highest priority, it is re-iterated that such an interpretation is contrary to our Constitutional Documents which forbid the taking of one’s property without their informed and express consent. The taking of one’s property cannot be done by fraud, deceit or any other unlawful means. Nulla pactione effci potest ut dolus praestetur (see 1297 Magna Charta), applies in that No contract can provide that a fraud shall be committed, applies herein.

Supra @ TAB 1 - para. 12,14 ,15

15. Further, applying fundamental principles of statutory interpretation, it is clear that a statute cannot be so construed as to deny or abrogate Constitutional rights and freedoms. (see def. Constitution above para. 3, and TABS 1-6) To profess otherwise is to lay claim to a dictatorial state. The principle of ejusdem generis applies in that the entire definition section of the Income Tax Act reserved for defining the word "person", wholly relates to legal entities and artificial persons. A natural person cannot be found to be within the same class of persons as artificial persons, either in writing in the Act or by insinuation, again as the Act must conform to the property rights of the Natural Person, Appellant. Artificial persons can be subject to laws that are unconstitutional when applied to natural persons. The Income Tax Act is such a case.

16. The Honourable Justice erred in giving ordinary definitions to words in a statute contrary to the specific definition contained therein whereby the effect of same is the result of constitutional rights deprivations. To interpret the Income Tax Act so as to encompass the Natural Person, Appellant and thus constitute constitutional rights deprivations is an absurdity.

17. The French law is one of civil law, based upon principles which is the antithesis to the common law. The Honourable Justice cannot apply the French definition, confirmed upon principles of law from a foreign jurisdiction, and apply to same to the common law. It would be as if one was to take a rule of football and apply to a game of hockey.

18. Sedgewick J. was also in error in determining that because the Income Tax Act definition today refers to the "..heirs, executors, administrators..of such a person" that this is further proof that the Act applies to the Natural Person, Appellant. In 1916, the government passed the Business Profits War Tax Act, which, as the name implies, was an act for the levying of taxes only upon the incomes of businesses. This Act was a precursor to the Income War Tax Act, which Sedgewick J. by inference in his decision also interpreted to include natural persons, by one year, and also had a definition of the word "person." This definition also contains the material sections quoted by Sedgewick J., as follows:

"Person: means any individual or person and any syndicate, trust, association or other body and any body corporate, and the heirs, executors, administrators, curators and assigns or other legal representatives of such person, according to the law of that part of Canada to which the context extends."

TAB 15 – The Business Profits War Tax Act, 1916
TAB 16 – The Income War Tax Act, 1917

19. The use of the word "means" implies a restrictive meaning to the word "person" as only being applicable to that set out in the definition. There is no mention of natural person in this definition and thus it does not apply to same. Sedgewick J.’s comments that "Only a natural person who has died has ‘heirs, executors, administrators.." is clearly in error for the definition above quoted from the Business Profits War Tax Act only applied to businesses, which are artificial persons, and yet this same definition was applied to these artificial persons in 1916. That it was included in 1916 Act is evidence that indeed artificial persons are capable of these qualities in some recognized manner.

20. With the presumption applying that Parliament can only pass laws in subordination to the Constitution, inclusive of Magna Charta and other Constitutional Documents referred to in para. 1, it is clear that when Parliament passed the Income War Tax Act of 1917, from which the current Act is derived, the Act could only be construed to encompass artificial persons, or legal entities. And so it was worded in a manner which did not include a natural person in its definition of person. Successive governments however have been fraudulently telling Canadians that it does.

21. Justice Sedgewick erred in his determination that the Natural Person, Appellant tendered before the court that he should make an inference in relation to the definition contained in today’s version of the Income Tax Act as compared with the original version in 1917. (para 14) No such inference was requested. The position taken by the Natural Person, Appellant is that the original Income War Tax Act and Business Profits War Tax Act utilized the word "means" in thus restricting its definition to those entities so described therein. Thus the Income War Tax Act did not apply to natural persons. The current definition is an addendum. The current Act does not apply to the Natural Person, Appellant inasmuch as the original version did not apply to the Natural Person, Appellant. If the government could have written the Act so as to encompass the Natural Person, it would have. It cannot however, because it is constrained by six centuries of common law and constitutional documents preventing it from so doing.

22. It is to be noted as well that Sedgewick J. erred in failing to take into consideration the defintion of the word "resident". This word comes from the word "res" meaning a thing. Thus when the Income Tax Act states that a tax must be paid by every person "resident" in the country, this can only apply to artificial entities as noted in the below quoted definitions.

    Res: an object, interest, or status, as opposed to a person

    TAB 17 - Black=s Dictionary of Law, 7th Ed.

    Res: (Latin, things)

    TAB 18 - Bouviers Law Dictionary 8th Ed. 1914

    Ident: location of in relation to something else

    23. A tax by its very definition, is the taking of someone’s property whether he/she agrees to it or not. This power has never existed in common law. The Magna Charta was recognized as a recognition of the principles of the common law in that no tax could be laid without the consent of the freemen of the realm.

    "By the statute 25 Edw. I. C. 5 and 6, it is provided that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. St. 4 c. 1, which enacts that no talliage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land;.."

    Supra @ TAB 14 p.129

    24. It is thus tendered that the Honourable Justice Sedgewick erred in determining that the definition of the word "person" as defined in the Income Tax Act, 1985 as amended, encompasses the Natural Person, Appellant so as to require the Natural Person, Appellant to comply with the Income Tax Act by filing returns and giving up his personal property without his consent, such a decision being contrary to six centuries of common law and constitutional documents which protect the inalienable right to property and voluntary taxation of the Natural Person, Appellant.

    25. How then has this happened? The Natural Person, Appellant tenders that he is only required to prove that there is a constitutional violation, no more, no less. He has done this. However he does tender the belief that the only way this could have happened is by the government passing a law which creates an artificial person, or legal entity as defined below, and then imposing this tax upon this entity, which the government then tells Natural Person they are responsible for. When a Natural Person accepts this, knowingly or unknowingly, he has entered into an assumpsit contract of some nature and is then compelled to comply with the Act. This may be in error in specifics, however the general nature of it is most likely correct. The Natural Person, Appellant in this case, has cancelled all contracts with the Federal Government and in so doing is not responsible for any legal entity or artificial person which may have been existed. It is contrary to law for the Federal Government or any government to impose this type of legislation upon the natural persons in the country.

    Legal Fiction: AAn assumption that something is true even though it may be untrue, made esp. in judicial reasoning to alter how a legal rule operates.@

    Fictitious person: AAn entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being. (aka artificial person)@

    It is interesting to note that the definitions of these words did not exist until just recently when the government began to fraudulently utilize them.

    26. The Natural Person, Appellant tenders that the hierarchy in our system of common law is as follows:

      1. GOD, as recognized in Magna Charta 1215, and most every other constitutional document.
      2. Man
      3. Constitution
      4. Governments

        27. GOD has given Man certain inalienable rights and freedoms, restricted only by the rights and freedoms of others. Right of ownership of property falls into this category. Man has then devised a Constitution based upon the laws of GOD, and reflected in several documents and lawful judicial decisions upholding these principles. Man has then created a government, subservient to Man and the Constitution, to regulate societies of Man and in subordination to the rights and freedoms of Man. Government cannot deny the absolute rights of Man who created it.


        "The State cannot diminish the rights of the people."

        TAB 21 -- Hurtado v California 110 US 516

In the Alternative

28. In relation to the further arguments tendered by the Natural Person, Appellant it is herein stated that the Honourable Justice Sedgewick erred in determining that the garnishment section utilized by C.C.R.A. to effect the garnishment of his property were lawful. In so doing, the Honourable Justice erred in failing to consider the Attachment of Wages Act of 1870 which has rendered unlawful the attachment or garnishment of one’s wages. The terms attachment and garnishment are afforded the same definitions in this context. If this Act had been considered, the garnishment of Mr. Kennedy’s property could never have been permitted.

    TAB 22 -- Attachment of Wages Act

    29.It is tendered that the Honourable Justice erred in his understanding and applying the case of Winterhaven Stables in this matter. The Natural Person, Appellant has not raised any arguments in relation to the divisions of powers, vis-a-vis s. 91 and 92. Rather, he has tendered that both levels of governments are required by s. 102 and 126 respectively of the BNA Act to collect their money and deposit it in their respective Consolidated Revenue Funds. There is no provision in the Act for one level of government to deposit its money collected into the Fund of another. Nor can such a proviso be read into the Act, in light of the mandatory nature of these sections. (see TAB 7, para. 102, 126)   

  1. 30. The Honourable Justice further erred in determining that the Requirement to Pay was lawful. There is no power of sub-delegation within the Act. S. 900 of the Regulations provides that only the Director/Taxation can issue a Requirement to Pay. His powers are expressly noted in this section. There is no proof that the person who placed the stamp upon the Requirement to Pay was authorized to so do. This stamp is not even the name of the Director/Taxation, but of a third party. No evidence was placed before the Court that the person who issued the Requirement to Pay had lawful authority to so do.

    2. TAB 23– s. 900 Regulations, Income Tax Act

    31. The Honourable Justice further erred in his determination of the lawfulness of the Tax Collection Agreements between the provinces and the Federal Government. The Crown has argued that these agreements are lawful because the funds are required to be segregated within the Federal Government’s Consolidated Revenue Fund. This is a gross mis-interpretation of the BNA Act, which requires each government’s revenues to go into a separate fund, not kept separately in the Federal Fund. Notwithstanding this, The Alberta Court of Appeal in Winterhaven recognized that these monies are not segregated and in fact it cannot be distinguished from where the money comes from. There is obviously a purpose in keeping each level of government’s finances separate. With the mixing of all monies, errors will undoubtably occur and the province loses control over its money, for this money is not now in their revenue fund, but the Federal Governments. Importantly, this money can only be expropriated by the Federal Government, not the provinces who are unable to get at their money from this fund when they so desire.

    TAB 24 -- Winterhaven Stables Ltd. V Canada 1988 p. 12, 17
  2. 32. The fact that the provincial monies which flow into the Federal Consolidated Revenue Fund eventually make their way back to the provinces, (there is no evidence as to how much makes it’s way back or to what provinces), is inconsequential when interpreting the BNA Act which specifically mandates that the monies "shall" go into their respective funds. The Court in Winterhaven Stables was clearly in error in that they simply stated that because the money so raised is impossible to track, it could not be proven that it was being used for provincial purposes. This is of no consequence when analyzing s. 102 and 126. The principles in Winterhaven Stables are not supported by the BNA Act in relation to these agreements which permit provincial monies to go into the Federal Fund.

    3. Addendum
  3. 33.The Natural Person, Appellant adopts the principles argued in the James-Bradford: Medd case as further described below.

    4. TAB 25 -- Factum of James Bradford Medd

    34. The Natural Person, Appellant states that because he lives in the City of Ottawa, on land which has not been purchased by the Crown or ceded to Her by the indigenous people, he is therefore, on land outside Parliament’s jurisdiction. Parliament has no authority or jurisdiction to exist on this land or to pass any legislation as a result. It is tendered that there is no agreement between the indigenous peoples of this area and the Federal Government permitting said government to occupy lands here.

    35. In addition to "..that part of Canada to which the context extends" as referred to in the definition of "person" in the Income Tax Act, the Natural Person, Appellant tenders that in addition to the provinces, the people on this land (in this matter, the Ottawa Valley) are not subject to federal taxation, which the Natural Person, Appellant tenders is that part of Canada to which the context does not extend being occupied territory.

    TAB 26 -- Income Tax Act Definition of "person"