Between:

HER MAJESTY THE QUEEN

Respondent

and

JAMES BRADFORD MEDD

Appellant

FACTUM

Michael Swinwood
Barrister & Solicitor
346 Waverley Street
Ottawa, ON K2P 0W5
Tel: (613) 563-7474
Fax: (613) 563-9179

TO: Gemmill Farn & Reynolds

Barristers & Solicitors
6 Albert Street North
Lindsay, ON K9V 4J1
Fax: (705) 324-3577
Attn: Ivan Reynolds

AND: The Attorney General of Canada

284 Wellington Street
Ottawa, ON K1A 0P4
Fax: (613) 954-1920

- 1 -

PART 1

This is an appeal from three convictions pursuant to Section 238.1 of the Income Tax Act of Canada R.S.C. 1985, C1, as amended, before Provincial Court Judge L. Chester on December 17, 1999 at Lindsay, Ontario. The case for appeal is as stated in the Notice of Constitutional Question (Appendix "A"). He was convicted of three counts of failing to file income tax for the years 1995, 1996 and 1997, and fined $9,000 total, or in default, 180 days.

PART 2

Summary of the Facts

Mr. Medd first appeared on the three charges on January 29^th, 1999 and a trial was held before His Honour Judge Chester on December 7, 1999. He was convicted and this is the appeal.

PART 3

Issues and the Law

The issues and the law are set out in the Notice of Constitutional Question (attached hereto as Appendix "A") and this Factum addresses each point as follows:

A. Misprision of Treason and Fraud - Royal Proclamation of 1763 and complicity in Genocide.

The Royal Proclamation of 1763 which continues to be the law in Canada by virtue of the Constitution Act, 1982 declared " ... that the several Nations or Tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our Dominions and Territories as, not having being ceded to or purchased by Us, are reserved to them or any of them, as their Hunting grounds", and further, "... upon any lands whatever, which, not having been ceded to or purchased by us as aforesaid are reserved to the said Indians, or any of them".

Royal Proclamation 1763 - See Book of Authorities

The principle established by the Royal Proclamation is today still in force. Any lands not ceded or purchased continues to be the jurisdiction of the indigenous people; the County of Victoria, and the Town of Lindsay find themselves within such a designation, as there is no ceding or purchase of this land from the indigenous people.

Accordingly, the assumption of court jurisdiction by federal and provincial courts in this unceded indigenous territory, is misprision of treason and fraud within the meaning of the Royal Proclamation of 1763 and deprives the court of its jurisdiction in this matter.

Royal Proclamation of 1763 - See Book of Authorities

Furthermore, the territory from Lake Nippising all the way down the Ottawa River and up the Gatineau River is unceded Algonquin territory, thereby depriving those in the federal government in Ottawa of legitimate legislative authority due to their displacement of the original legitimate inhabitants.

Royal Proclamation of 1763 - See of Book Authorities

As the Royal Proclamation of 1763 was not properly followed, there is no existing constitutionally valid legal alternative whereby the crown governments and courts can derive jurisdiction over unceded aboriginal territory.

The assumption of jurisdiction by federal and provincial crown courts constitutes "Misprision of Treason and Fraud." The term "misprision" dispenses with the need to prove mens rea on the part of the judges. As defined in William Blackstone, Commentaries on the Laws of England, 1825, 474-5, 119-22 that crime is established by operation of law and without such proof, as an absolute offence.

This statement in the Royal Proclamation of 1763, regarding misprision of treason and fraud was, and still remains, the great legal device by which the imperial government sought, from a distance, to control the colonist’s governmental and judicial proclivity toward usurping the aboriginal’s jurisdiction and possession before the aboriginals sold in accordance with the strict terms of the constitutional law. This constitutional law has never been further amended or repealed. It exists and is affirmed in the Constitution Act of 1982.

This leads to constitutional usurption, offending the Royal Proclamation of 1763, thereby depriving the federal government and their Majesty the Queen of proper legislative authority in this territory, (county of Victoria) and the territory know as Ottawa-Carleton.

The consequence of treason and fraud is genocide, contrary to the "Convention for the Prevention and Punishment of the Crime of Genocide, 1948". Article 2 (b) defines genocide to include the imposition of serious mental harm, with intent to destroy, in whole or in part, a national ethnical, racial or religious group. This is what was and continues to be visited on the indigenous people of this territory, commencing with bullets, than pen and paper (laws), all intended to further the crime of genocide. This unaddressed crime of genocide, deprives the federal and provincial courts and legislatures jurisdiction in unceded aboriginal territory.

"The Foundations of the Authority and the Problem of Enforcement" - 19 Modern Law Review (1950)

"International Law and World Order" Weston Falk and D’Amato, West Publishing Co., 1980, p. 11

"Werner Levi, Contemporary International Law: A Concise Introduction", Westview Press, Colorado, 1979 at p. 25

"Declaration of Rights and Duties of States, adopted by the International Law Commission 1949.

"The Judgement of Nuremberg, International Military Tribunal, Trial of the Major War Criminals", 171, (1947)

As stated in international law or individuals acting as agents of the state may not excuse themselves for violations of international law on the basis that its municipal or internal constitution or laws permitted such violations

- Werner Levi, ibid

- Declaration, ibid

- Judgement at Nuremberg, ibid

International law, applicable to and binding upon Canada are part of the supreme law of the land and the extent that the Income Tax Act or any other internal law contradicts or violates such international laws, the internal laws are unconstitutional and unenforceable.

- Declaration, ibid

- Judgement at Nuremberg, ibid

Before Confederation, instituted by the British North America Act of 1867 and post 1867, the federal government and Her Majesty the Queen, are complicit in genocide and continue to violate the Royal Proclamation of 1763. The many acts of atrocities are too numerous to mention however such events as the massacre at Frog Lake, Saskatchewan, the murder of Louis Riel, the standoff at Gustafesen Lake, the murder of Dudley George, the outlawing of aboriginal spirituality and the devastating effects of residential schools should all serve as examples of the fact of genocide, jointly participated in by Canada and Great Britain.

- Pitawanakwat v. Canada - U.S. District Court, Oregon, U.S.A. (2000)

The British North America Act of 1867 did not establish a government of the people, by the people or for the people, but was primarily the creature of the minority anglo-saxons who believed in the doctrine of divine right of the minority to govern the majority. In reality, Canada has no constitution, only legislative pronouncement emanating from the United Kingdom and mirrored in domestic legislation (ie. Constitution Act of 1982).

In addition to the fact of genocide in Canada, are various pronouncements which acknowledge its existence. In the judgement of the Upper Canada Law Society v. Clark (June 19^th, 1996), in its reasons, this body pronounced:

"The genocide of which Mr. Clark speaks is real, and has very nearly succeeded in destroying the native Canadian community that flourished here when Europen settlers arrived. We are sympathetic, moreover to Mr. Clark’s assertion that the courts have been unwilling to listen to his argument."

Upper Canada Law Society v. Clark, 1996

Pitawanakwat v. Canada, ibid

It is submitted that the crime of genocide is a crime of international law and Article I of the Genocide Convention confirms that "genocide committed in time of peace or in time of war, is a crime under international law which they (Contracting Parties) undertake to prevent and to punish." and furthermore, Article IV: "Persons committing genocide ... shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.", thereby depriving the federal government of its inherent jurisdiction in this matter.

- Convention on Genocide, United Nations, 1948

- "A Little Matter of  Genocide: Holocaust, and denial in the Americans, 1492 to Present", Ward Churchill

- "The Genocide Machine in Canada", Robert Davis and Mark Zannis

- " Ethnic Cleansing and Genocide in North America and Kosvo, Dr. Anthony J. Hall, The School of Native Studies, 1999

- "No Occassion for Celebration", speech, Kevin Gover, Assistant Secretary, Bureau of Indian Affairs, U.S.A., September 8, 2000.

The Orders in Council of March 9^th, 1704 and July 31^st, 1740 are to be taken into account as examples of third party adjudication which conforms to the statement of the Canadian Bill of Rights: "Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law". It is submitted that genocide in this territory offends the moral and spiritual values of freedom, adversely impacting the rule of law and depriving the legislature and the courts of their inherent jurisdiction.

- Order- in-Council, March 9^th, 1704

- Order-in-Council, July 31^st, 1740

- Canadian Bill of Rights, August, 1960

The Constitution of Canada is the Supreme Law of Canada and any law that is inconsistent with the provisions of the constitution, is, to the extent of the inconsistency, of no force or effect."

- S. 52, Charter of Rights and Freedoms

It is submitted that the Supreme Court of Canada decision in Attorney General of Canada v. Lord Nelson Hotel Company, October 3^rd, 1950, stands for the proposition that "the Parliament of Canada and each provincial legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matter assigned to it under S. 91 or S. 92 of the Britain North America Act, as the case may be. Neither is capable therefore of delegating to the other the powers with which the other has been vested."

- Attorney General Canada v. Lord Nelson Hotel, S.C.R. (1951), 30

- British North America Act 1967

- Submission of Province of Ontario - direct taxation, 1954

- Dominion-Provincial Tax Conference - December 18^th, 19^th, 1942

- Dominion-Provincial Tax Agreement, 1942

- Federal Provincial Tax Rental Agreements, 1952

It is submitted that the Province of Ontario has a direct taxation power, over property and civil rights, income to an individual by way of salary, wages or profit being property, and that the federal government used a temporary device, the War Measures Income Tax Act of 1917, to gain entry into a field not given to it by the British North America Act of 1867. Furthermore, debates from the House of Lords, Great Britain, Earl of Carnorvan, explicitly stated: "The several Provinces, which are now free to raise a revenue as they may think fit, surrender to the Central Parliament all powers under this head except that of Direct Taxation".

- War Measures Income Tax Act, 1917

- House of Lords, Debates, 1867

Furthermore, in a debate on a Finance Bill of 1894, in the House of Commons in Great Britain, Lord Baden Powell stated: "In the Imperial Act by which they enabled the provinces of North America to federate into one Dominion in 1867, the Dominion government, by the Imperial Act, was expressly forbidden levying any direct taxes and that perrogative of taxation, and of representation and executive sovereignty, was explicitly reserved to the provincial legislature".

- House of Commons Debates, Great Britain, 1894, Hansard

It is submitted that the principles enunciated in Winterhaven Stables (1984) and Regina v. Caron (1922) are incomplete and run contrary to the principles enunciated in the Lord Nelson case in the Supreme Court of Canada.

- Winterhaven

- Regina v. Caron (1922)

- Attorney General v. Lord Nelson

It is submitted that the Appellant has the right to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law, as enunciated in the Canadian Bill of Rights. The impugned legislation sets up an assumption contract, which deprives the individual of his right to enjoyment of property, thereby offending rights commenced with the Magna Carta, captured by the Statute of Frauds, 1670, and subsequently in both Canadian Bill of Rights and the Charter of Rights and Freedoms.

It is submitted that the Provinces are sovereign in relation to direct taxation on income and this was further confirmed in the Statute of Westminister, 11 December 1931. As stated by M.P. (Jasper-Edson) W.F. Kuhl in a speech in the House of Commons November 8, 1945: "... the British government relinquished its authority over them. This was done through the enactment of the statute of Westminister on December 11, 1931. By section 7, paragraph 2 of this statute, the provinces of Canada were made sovereign, free and independent in order that they might consummate the federal union they wished to create in 1867, but were not permitted to do so".

- House of Commons Debates, November 8, 1945, Hansard

- "Fraud and Deception, Manipulation", Robert A. Marquis, 1997, ISBN 0-9684802-0-9.

It is submitted that the learned trial judge and opposing counsel had a duty as officers of the court, to assist the Appellant in advancing his constitutional arguments, particularly when the Appellant was not represented by counsel.

It is submitted that the fines imposed on the convictions are contrary to Section 12 of the Charter of Rights and Freedoms, as well as the imposition of jail for failure to pay the fines.

- Charter of Rights and Freedoms, Section 12

- Regina v. Piscione (1997) 12 C.R. 131

PART 4

Order Requested

That the Income Tax Act of Canada be declared ultra vires the federal government powers and render the prosecution against the appellant a nullity.

Alternatively, quash the convictions, order a new trial and allow the Appellant to properly prove his constitutional arguments and to properly advance them before the court.

Alternatively, substitute the penalties imposed with a conditional discharge or suspended sentence.

Schedule

Notice of Constitutional Question, attached hereto as Appendix A, page 8.

References

"A Little Matter of Genocide: Holocaust and Denial in the America’s, 1492 to Present", Ward Churchill, 1994.

"The Genocide Machine in Canada", Robert Davis and Mark Zannis.

"No Occasion for Celebration", Speech, Kevin Gover, September 8, 2000.

"Ethnic Cleansing and Genocide in North America and Kosvo", Dr. Anthony J. Hall, 1999.

Contemporary International Law: A Concise Introduction, Westview Press, Colorado, 1979 - , Wesiner Levi

Foundations of the Authority of International Law, Fitzmaurice, 19 Modern L. Rev. 1

International Law and World Order, Weston Falk and D’Amato, West Publishing Co., 1980

Judgement of Nuremberg, 1 International Military Tribunal, Trial of Major War Criminals, 171

Upper Canada Law Society v. Clarke, 1996.

Pitawanakwat v. Canada, District Court of Oregon, 2000.

DATED this 8^th day of February, 2001. All of which is respectfully submitted.

_____________________________

Michael Swinwood
Barrister & Solicitor
346 Waverley Street
Ottawa, ON K2P 0W5
Tel: (613) 563-7474
Fax: (613) 563-9179

Solicitor for the Appellant