brief - breach of undertaking march 4 2013

7/29/2019 Brief - Breach of Undertaking March 4 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

______________________________________________________

BRIEF RESPONDING TO SECTION 145(3)(b)Allegation of Breach of an 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



i

SELF REPRESENTED, ANDRE MURRAY’S BRIEF

RESPONDING TO SECTION 145(3)(b) OF THE CRIMINAL CODE OF CANADA

BREACH OF UNDERTAKING

INDEX

Page

INDEX ___________________________________________________________________ i

1 Introduction _____________________________________________________________ 1

2 Breach of Undertaking _____________________________________________________ 1

3 Onus of Proof____________________________________________________________ 2

4 (A) The accused was bound by an undertaking __________________________________ 4

5 (B) Accused committed an act which was prohibited by the undertaking _____________ 5

6 (C)That the accused had the appropriate mens rea _______________________________ 11

7 Lawful Excuse ___________________________________________________________ 14

8. Further claims of Breach of Undertaking ______________________________________ 22

9. Biased Investigation by Constable David Beck _________________________________ 23

10 Conclusion _____________________________________________________________28

ORDERS SOUGHT ________________________________________________________29



1

1

INTRODUCTION

1. The Crown has charged Andre Murray with a Breach of his June 5, 2012, Undertaking,

signed by Andre Murray. They have claimed that Andre Murray "did fail, without lawful excuse

to provide Fredericton Police Force Station Officer his address by Tuesday, June 19, 2012 and

after that, to notify Fredericton Police Force Station Officer within 48 hours of any change in his

address, employment or occupation, a condition of said undertaking, contrary to Section

145(3)(b) of the Criminal Code of Canada and amendments thereto."

2. It is a fundamental principle of criminal law that an information must provide the accused

with sufficient information to identify the specific transaction which gives rise to his alleged

criminal culpability so that he may make full answer and defence to the charge: See: R. v.

Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C.R. 1020, R. v. Jimmy, [2004] B.C.J. No. 1555,

R. v. Gauthier 1995 B.C.J. No. 1527 (C.A.), R v. Katsiris 2008 BCCA 251.

3. A person charged with a criminal offence in Canada is presumed to be innocent of the

offence until the Crown has proven beyond a reasonable doubt the elements of the offence with

which he is charged. The Crown must convince the Court that a conviction is supported by the

evidence, therefore reasonable; that the evidence must over come the principle of reasonable

doubt considering the law and evidence; properly considers the principle of men srea and lawful

excuse.

2


4. The herein above mentioned subject Section 145(3)(b) of the criminal Code of Canada; Breach of Undertaking reads as follows:

Failure to comply with condition of undertaking or recognizance (3) Every person who is at large on an undertaking or recognizance given to or

entered into 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 witha direction under subsection 515(12) or 522(2.1) or an order under subsection516(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



2

(b) an offence punishable on summary conviction.

5. Andre Murray comprehends according to In R. v. Custance, that the required elements of

an offence under s. 145(3) are:

(1) that the Crown must prove that the accused was bound by an undertaking or

recognizance;

(2) that the accused committed an act which was prohibited by that undertaking orrecognizance or that the accused failed to perform an act required to be performed by thatundertaking or recognizance; and

(3) that the accused had the appropriate mens rea, which is to say that the accusedknowingly and voluntarily performed or failed to perform the act or omission which

constitutes the actus reus of the offence.

See R. v. L.T.W., [2004] N.J. No. 260 (QL) (Prov. Ct.) at paras. 19-20.

11 In terms of the actus reus, it is clear that the Crown has proven that Mr.Custance was bound to the recognizance and failed to comply with the

conditions. However, counsel for the accused argues that there was no mens rea proven.

12 Gary T. Trotter, in his text The Law of Bail in Canada, 2d ed.

(Toronto: Carswell, 1999) at 449, states that in order to have the requisite mensrea, theaccused must knowingly or recklessly infringe the conditions of the undertaking. The

Crown does not have to prove that the accused intended to breach the recognizance, but

rather only that the accused intended to commit the actusreus. While recklessness (theconduct of one who sees the risk and nonetheless who takes the chance) will fulfill the

mensrea requirement, mere carelessness or negligence will not. See Sansregret v.The

Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at 581-82, per McIntyre J., and R. v.

Legere1995 CanLII 1551 (ON CA), (1995), 95 C.C.C. (3d) 555 at 565 (Ont. C.A.).

R. v. Custance2005 MBCA 232005 MBCA 23 (CanLII), <http://canlii.ca/t/1jrjw>at para.

10,11 and 12.

3

ONUS OF PROOF

6. In R. v. Dempster, the Court reiterated a well established principle, that the accused is

presumed to be innocent of the offence until the Crown has proven beyond a reasonable doubt

the elements of the offence with which he is charged:



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Onus and Standard of Proof under s. 145(3)

[28] A person charged with a criminal offence in Canada is presumed to be innocent

of the offence until the Crown has proven beyond a reasonable doubt the elements of theoffence with which he is charged.

R. v. Dempster, 2012 BCPC 275 (CanLII), http://canlii.ca/t/fsb8b paragraph 28

4

(A) QUESTION: WAS THE ACCUSED BOUND BY AN UNDERTAKING

7. Keeping in mind the above stated, as in R. v. Custance, further as to the required

elements of an offence under s. 145(3), however, nevertheless, if the Crown is to obtain a

conviction of Andre Murray under section 145(3) the Court hearing the matter must be

convinced by the Crown, that the accused was bound by the subject undertaking. This question is

yet to be determined, considering the questionable circumstances under which the accused was

April 18, 2012, initially arrested, immediately thereafter compelled to sign (be mindful - under

protest and duress) the original Undertaking to a Police Officer, (although impugned) therefore,

back dated as: Date: April 16, 2012, while sequentially denying the accused his Section. 810.1

Court Hearing pursuant to due process.

8. The Charter assures a Section. 810.1 Court Hearing pursuant to due process in which the

defendant could argue why the Undertaking was unnecessary. Without following proper

procedure, the defendant has been subject to Section 1(a),1(b), 2(a), 2e, 2(f), 7 and 9 Charter

violations. Remember the Charter protects all individual’s liberty by guaranteeing the right not to

be deprived thereof except by due process of law. A defendant has the right to equality before the

law and the protection of the law, for these reasons should not be subject to arbitrary arrest,

detention, or imprisonment.

9. The Charter assures the people of Canada will be treated equally under the law; however,

Andre Murray has been (regarding this herein subject matter) deprived of a Court Hearing

according to section 810.1, therefore Andre Murray is not bound to comply with any condition

of this subject undertaking or recognizance, other than, that, which his own conscience dictates.



4

10. The Charter assures the people of Canada the right to fair Court Hearings in accordance

with the principles of fundamental justice for the determination of Rights and Obligations;

alternatively will not, deprive a person charged with a criminal offence, of the right to be

presumed innocent, until proven 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.

11. Andre Murray despite having not voluntarily agreed to sign the subject coerced,

therefore, illegally obtained ‘Undertaking’ Andre Murray has been arrested twice, spent two days

in jail, furthermore has been prejudiced by the possibility of criminal charge violations flowing

from the subject unwarranted undertaking which has had a duration of 11 months, (used by

Members of FREDERICTON POLICE FORCE to without just cause, therefore, vindictively add

more charges. In all these matters, the defendant’s rights have been trampled upon and injustice

has overcome the justice system. How can the public maintain confidence in the administration

of justice, if this is allowed to continue and a correction is not made? Without a valid

‘Undertaking’ procedure involving a section 810.1 Court Hearing, there is no valid

‘Undertaking’ therefore a Breach of ‘Undertaking’ cannot be.

12. The taint of bias has poisoned these proceedings, form: the Biased Police investigation;

the Crown’s questionable pursuit of these charges; to the unjustifiable refusal of the Court

(hearing these subject matters) to hold a Section 810.1 Court Hearing, (again, contrary to due

process), to decide if the subject Undertaking was justified in the circumstances.

13. Until a Court conclusively decides this matter of breach or no breach of an undertaking,

the question of whether the accused was actually compelled, under a valid undertaking at the

time of the alleged offence, is still unknown. The Crown will have to prove that the

recognizance was binding on the accused on the date he allegedly breached his Undertaking as of

Date: June 19, 2012.However, should the Crown fail to prove this first essential element of the

offence, namely that recognizance was binding on the accused, the Court must acquit the accused

of the alleged offence.



5

5

(B) ACCUSED COMMITTED AN ACT WHICH WAS PROHIBITED BY THE

UNDERTAKING

14.

The second part of the test, for the Crown to succeed on a conviction under section145(3) of the criminal Code, the Court must be convinced, that the accused committed an act

which was prohibited by the subject ‘Undertaking’ or that the accused failed to perform an act

required to be performed by that subject ‘Undertaking’ .

15. In R. v. Kelly, The Court found that The Crown had failed to prove beyond a reasonable

doubt, the charge of a breach of undertaking, the Crown could not provide evidence that the

accused was not inside 9 Mount Batten Road, the residence specified in the recognizance,

therefore an acquittal was entered:

THE BREACH OF RECOGNIZANCE OFFENCE OF JULY 16, 2011

[49] As we have seen Mr. Kelly was released on a recognizance on December 17, 2010. Itincluded a condition requiring that Mr. Kelly remain in his “residence at 9 Mount Batten

Road in Corner Brook between 9 p.m. and 7 a.m. daily.” Thus, in order to obtain a

conviction in this case the Crown must prove that on July 16, 2011, Mr. Kelly failed to

comply with this condition. The Crown has failed to do so. Let me explain why.

[50] The Crown established that on July 16, 2011, Mr. Kelly was not inside 68B HumberRoad after 9 p.m., but it led no evidence that he was not inside 9 Mount Batten Road, the

residence specified in the recognizance. Constable McNeil referred to information from

another officer, but the Crown made no application for an exception to the hearsay

prohibition to be applied. In addition, there is no evidence that the recognizance was variedto change the address. Mr. Kelly had no authority to do so. Thus, the Crown has failed to

establish that Mr. Kelly breached his recognizance on July 16, 2011 and an acquittal is

entered.

R. v. Kelly, 2012 CanLII 5325 (NL PC), http://canlii.ca/t/fq0v4 paragraph 49 and 50

16. The crown has charged accused Andre Murray with a Breach of Undertaking, namely

the Crown has claimed that Andre Murray "did fail, without lawful excuse to provide Fredericton

Police Force Station Officer his address by Tuesday, June 19, 2012 and after that, to notify

Fredericton Police Force Station Officer within 48 hours of any change in his address,



6

employment or occupation, a condition of said undertaking, contrary to Section 145(3)(b) of the

Criminal Code of Canada and amendments thereto."

17. June 1, 2012, the accused Andre Murray was (in conflict with rights guaranteed by the

Charter of Rights and Freedoms) unlawfully evicted from his residential leasehold of civic

address 29 and 31 Marshall Street, Fredericton, New Brunswick, Canada, despite Andre Murray

having prior to the pending eviction filed with Court of Queen`s Bench, Fredericton, Trial

Division, an Notice of Application regarding constitutional issues, and or a Charter Challenge

regarding the legality of such an impugned herein subject Order to vacate the accused from his

residence. The matter is yet to be decided on it’s merits. At the time of the alleged ‘Undertaking

Breach’, the accused was still receiving mail and other correspondence at civic address, duplex

29 and or 31 Marshall Street, Fredericton, New Brunswick, Canada

18. Please consider that at civic address, duplex 29 and 31 Marshall Street, Fredericton, New

Brunswick, Canada was the place where mail or other communication has always been sent to

Andre Murray, since year 2005, even after the impugned eviction. The accused Andre Murray

considers 29 and 31 Marshall Street, Fredericton, New Brunswick, Canada, his home. Andre

Murray believes that, when successful on the scheduled Notice of Application regarding

constitutional issues, the subsequent Court order should re-establish Andre Murray as a lawful

tenant, who’s residential Tenancy rights are protected, the same as all other Residential Tenants,

throughout the rest of Canada. The hearing has been unilaterally rescheduled twice by the Courts

since the alleged breach of undertaking.

19. Black's Law Dictionary defines address as follows:

ADDRESSaddress, n.

1. The place where mail or other communication is sent.

2. In some states, a legislature's formal request to the executive to do a particular thing,such as to remove a judge from office.

3. Equity practice. The part of a bill in which the court is identified.

Black's Law Dictionary (8th ed. 2004), Page 117



7

20. Following the June 1, 2012, eviction from 29 and 31 Marshall Street, Fredericton, New

Brunswick, Canada, and on the date of the alleged breach April 19, 2012, Andre Murray did not

move into another residence, or change his mailing address. Andre Murray, the accused

continuously move from place to place, staying with various acquaintances and friends, while the

matter of the legal status of the Tenancy was resolved. Even to the day of the filing of this Brief,

Andre Murray has not technically moved out of 29 and 31 Marshall Street, Fredericton, New

Brunswick, Canada. That is still considered his home, and the legality of the eviction is still to be

determined. The first time Andre Murray provided a address different from 29 and 31 Marshall

Street, Fredericton, New Brunswick, Canada, was because, he was arrested, placed on remand, in

custody, and would not be released without providing a new address. The address which Andre

Murray provided to the Crown’s satisfaction, was the address of a friend whom attended Court

that day and on behalf of Andre Murray offered her residential civic address. This person was

merely attending Court and by coincidence happened upon the hearing, and agreed to provide a

temporary address so Andre Murray could be released from custody. Please Note: at the time of

the subject alleged Breach of an Undertaking Andre Murray was still receiving his mail directed

to 29 and 31 Marshall Street, Fredericton, New Brunswick, Canada. The herein subject eviction

was contested by Andre Murray and the legality of same has yet to be decided.

21. It is worthy of note that the Crown insisted upon receiving a permanent address from

the accused, when the accused had none other to give, than 29 and 31 Marshall Street,

Fredericton, New Brunswick, Canada, the Crown persisted on this matter, despite the criminal

Code of Canada not requiring a permanent address to be provided in any case. The Crown flat

out refused to accept civic address duplex 29 and 31 Marshall Street, Fredericton, New

Brunswick, Canada, as an address, and refused to allow the accused to be given his liberty for 24

hours that he may secure a Motel or Hotel address to satisfy the Crown. It was the Court,

Madame Justice Mary Jane Richards who pointed out that the Crown was engaging in an

irregularity regarding interpretation of the law and declared that according to the law any civic

address or to that affect is simply enough.

22. As herein above mentioned the accused was placed in a unfair/unjust position by the

Crown compelling Andre Murray to provide an address alternative to his current address at the



8

time, however, the Crown assured the Court that the Police, would verify same, the alternative

to providing an alternate address other than his own, was for Andre Murray to potentially spend

months in jail, on remand from July 4, 2012, until the scheduled hearing of April 13, 2013. It is

an awful injustice to hold a self-represented man in jail, for 8 months merely because he has no

address other than his own to provide to the Police and Crown.

23. Despite the Charter guarantee of equality, more was demanded of the accused, than the

Criminal Code of Canada required. The accused was being compelled with the threat of spending

8 months in jail, (therefore, unable to prepare his own defence) to provide an address other than

his own to the Police and Crown. Remember, no other address existed, and the Police could not

have had any evidence of the existence of an alternative, because no second address existed. This

terrible injustice cannot be allowed to stand.

24. The Court must consider the question: Can the accused be compelled to do the

impossible? The response to this question is embodied in two Legal Maxims:

• The law does not compel the doing of impossibilities or

• The law requires nothing impossible

25. The latin source of these Maxims states: “Lex Non Cogit Ad Impossibilia”, or “et

impotentia excusat legem”, which when translated to English reads “The law does not compel a

man to do that which is impossible”. Herbert Broom calls this a "fundamental legal principle".

Broom describes the application of the principle in more detail:

"... that ... where the law creates a duty or charge and the party is disabled to perform it,

without any default in him, and has no remedy over, the law will in general excuse

him...."

Broom, Herbert, A Selection of Legal Maxims Classified and Illustrated, 10th Ed.,

(London: Sweet & Maxwell Limited, 1939), pages 162-169

26. In Hughey v. JMS Development, Justice Owens of the United States Court of Appeals

used these words:

"Lex non cogit ad impossibilia: The law does not compel the doing of impossibilities."

Or this:

"Lex non cogit ad impossibilia, the law requires nothing impossible."1



9

Hughey v. JMS Development Corp., 78 F. 3d 1523 (1996)

27. In 2012, Justice Frankel of the British Columbia Court of Appeal, considered the maxim

“the law does not compel a person to do that which he or she cannot possibly perform” as

follows:

[53] To order Mr. Virdi “to immediately disclose ... the whereabouts of [the]

Ferrari”, Sigurdson J. must have been satisfied that Mr. Virdi had the ability (i.e.,

knowledge) to comply with that order. To make that order in the absence of being so

satisfied would violate the maxim lex non cogit ad impossibilia, i.e., the law does not

compel a person to do that which he or she cannot possibly perform.

Transportaction Lease Systems Inc. v. Virdi, 2010 BCCA 347 para 53

28. At the time of the alleged Breach Andre Murray believed that 29 and 31 Marshall Street,

Fredericton, New Brunswick, Canada, was his home, and though he may not have been sleeping

there, this address was still being used for Correspondence, legal or otherwise. At that time, the

hearing of the Application regarding constitutional issues or Charter Challenge was pending, and

it appeared to Andre Murray that Charter Challenge application would be quickly decided in his

favour.

29. On June 20, 2012, the accused had not moved his belongings out of his civic address 31

Marshall Street, Fredericton, New Brunswick, home. Moreover, the Charter Challenge of the

Residential Tenancies Act of New Brunswick, matter should have been quickly heard by Court

of Queens Bench, thereby resolving unsettled matters, re-establishing the lawful tenancy of the

accused back to civic address duplex 29 and 31 Marshall Street, Fredericton, New Brunswick,

Canada.

30. Despite the occurrence of enforcement of an impugned eviction Order, at civic address 29

and 31 Marshall Street, Fredericton, New Brunswick, Canada by Members of FREDERICTON

POLICE FORCE, the Crown Prosecutors cannot be in possession of any evidence of the accused

living anywhere other than 29 and 31 Marshall Street, Fredericton, New Brunswick, Canada at

the time of the alleged Breach, June 20, 2012. Traveling for work or staying at someone’s house

over night cannot be considered changing someone’s address. Staying at various places,



10

changing night by night until the Residency issue is resolved cannot be reasonably or rationally

considered a “change in his address”. For the accused to provide a new address to the Police or

to the Court, which did not exist, would have been a lie. How can someone be compelled to

provide an address WHICH DOES NOT EXIST? The law does not compel a person to do that

which he or she cannot possibly perform, so how can the accused be facing criminal charges for

not doing the impossible?

31. It is wrong to tell someone, that they must lie or go to jail. Put another way, how can

someone be facing criminal charges for not having lied to the Police or to the Court? To convict

someone of a crime for not having lied about his address, would bring the administration of

Justice into disrepute. FREDERICTON POLICE FORCE and the Crown are pursuing a charge

which is groundless, frivolous and vexatious. The actions of members of FREDERICTONPOLICE FORCE and the crown resemble a COINTELPRO operation (which was for the

purpose of sabotage of legitimate dissent), rather than the legitimate pursuit of Justice.

COINTELPRO (an acronym for Counter Intelligence Program) was a series of covert, and at

times illegal, projects conducted by the United States Federal Bureau of Investigation (FBI)

aimed at surveying, infiltrating, discrediting, and disrupting domestic political organizations. The

Accused runs a Blog Titled “Justice Done Dirt Cheap”, and has revealed unfavorable

information regarding members of FREDERICTON POLICE FORCE that they want stifled.

Because of the Publicising of this information the accused has been singled out and as a

consequence, a victim of multiple unwarranted Police encounters.

32. It is unreasonable that the accused should be obligated by a as in this case an unlawful

undertaking “to notify Fredericton Police Force Station Officer within 48 hours of any change in

his address,” when the address the accused sleeps, may or may not change every night and is not

in fact his mailing address. The logical result would be that the accused would be providing the

FREDERICTON POLICE FORCE, with a different address every two days which is potentially

two days old and or not the current address where the accused could be found, furthermore, the

accused could attend the Police Station every 48 hrs, to report that he had moved two times

within that time period, this of course is ridiculous should the FREDERICTON POLICE FORCE

want to reach him in any case.



11

33. The Court must further consider that, this criminal charge has been raised as an issue

apparently by Constable David Beck a member of FREDERICTON POLICE FORCE, currently

(at the time) being legally sued by Andre Murray. Constable David Beck is biased. The matter of

the Biased investigation will be more thoroughly review below in the section Title “Biased

Investigation by Constable David Beck”

34. If the Crown should fail to prove this second essential element of the offence, namely that

the accused committed an act which was prohibited by the subject ‘Undertaking’, the Court must

acquit the accused of the offence.

6 (C) THAT THE ACCUSED HAD THE APPROPRIATE MENS REA

35. For the Crown to satisfy allegation, of a ‘Breach of an Undertaking’, the Crown must first

prove actus reus aspect of the offence, which is two parts; first, that accused in fact changed

addresses, second that after the accused changed addresses, he did so without informing the

FREDRICTON POLICE FORCE within 24 hours. Without evidence of a new Address, the

Crown cannot prove actus reus. However, should the Crown satisfy the Court with evidence of

the impossible, the next thing they must do to succeed on a conviction under section 145(3), is

that the Court must be convinced by the Crown, that the accused had the mens rea, which is to

say that the accused knowingly intended and therefore voluntarily failed to perform the act or

omission which constitutes the actus reus of the offence.

36. Gary T. Trotter, in his text The Law of Bail in Canada, 2d ed., supra, states that in order

to have the requisite mens rea, the accused must knowingly or recklessly infringe the conditions

of the undertaking. The Crown does not have to prove that the accused intended to breach therecognizance, but rather only that the accused intended to commit the actus reus. While

recklessness (the conduct of one who sees the risk and nonetheless who takes the chance) will

fulfill the mens rea requirement, mere carelessness or negligence will not.

37. Black's Law Dictionary provides the definition of MENS REA as follows:



12

mens rea , [Law Latin “guilty mind”] The state of mind that the prosecution, to secure a

conviction, must prove that a defendant had when committing a crime; criminal intent orrecklessness <the mens rea for theft is the intent to deprive the rightful owner of the

property>. • 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

38. The mens rea is knowingly or recklessly doing what the accused knows he is not

permitted to do under the recognizance or failing to do what was required to be done. Following

the June 1, 2012, eviction from 29 and 31 Marshall Street, Fredericton, New Brunswick, Canada,

Andre Murray did not move into another residence, or change his mailing address. Andre

Murray, the accused continuously move from place to place, staying with various acquaintances

and friends, while the matter of the legal status of the Tenancy was resolved. Even to the day of

the filing of this Brief, Andre Murray has not technically moved out of 29 and 31 Marshall

Street, Fredericton, New Brunswick, Canada. That is still considered his home and is a legal

question which has yet to be answered, by the pending Application regarding constitutional

issues.

39. The first time Andre Murray provided a different address other than 29 and 31 Marshall

Street, Fredericton, New Brunswick, Canada, was because he was arrested and remanded, in

custody, and would not be released without providing a new address. The address provided to be

released was the address of a friend whom Andre Murray was not and had not been staying with.

This person was merely attending Court and by coincidence happened upon the hearing, and

agreed to provide a temporary address so Andre Murray could be released. At the time of the

alleged Breach Andre Murray was still receiving his mail that which remained directed to 29 and

31 Marshall Street, Fredericton, New Brunswick, Canada. The eviction was contested and the

legality of same has yet to be decided.

40. In this matter before the Court, the accused, did not change his address to a new one.

Since there was nothing to report to FREDERICTON POLICE FORCE, no change of address

was reported. If the accused had moved all of his things out of 29 and 31 Marshall Street,

Fredericton New Brunswick, to a new location, that move would have been reported to the

Police, as per the conditions of the undertaking. There is no criminal intent or recklessness on the



13

part of the accused. Without a move, there is nothing to report. A bald faced assertion by

members of FREDERICTON POLICE FORCE, reportedly Constable David Beck, who did so

without any evidence to support the claim, that the accused has a new residence is not enough to

create a legal obligation for the accused to act. Since the wording was “ to notify Fredericton

Police Force Station Officer within 48 hours of any change in his address” and no change of

address occurred, therefore nothing to report. There is no obligation to inform a “Fredericton

Police Force Station Officer”, unless any a “change in his address” occurred.

41. Proof of the accused Andre Murray’s belief in his address remaining 31 Marshall Street,

Fredericton New Brunswick, can be found in the words of Constable David Beck, in the

FREDERICTON POLICE FORCE CROWN PROSECUTOR'S REPORT Occurrence Number:

2012-12177, Dated July 5, 2012 at page 4, the report reads:"While obtaining information for the C216 (ICA Form), Cst Beck asked the accused what

his current address was to which the accused stated it was the same (31 Marshall St). Cst

Beck advised the accused that this was not his address anymore to which he responded it

was as this is where all his belongings are still located.”

42. Evidence of Andre Murray’s belief in his address remaining 31 Marshall street,

Fredericton, New Brunswick, at the time of the alleges breach, including the statement that all

the accused’s belonging were still in the Marshall street residence, is further proof that the

accused did not move out of 31 Marshall Street, into a new Home.

43. The Court must need more than bald statements provided by the Crown, that a change of

address occurred. The Court needs evidence and proof that a change in address occurred, before

it can be claimed that the accused breached a duty to, within 48 hours report the change of

address to the Police. The accused was not negligent, when there was no obligation to report

unless specified conditions occurred. Without those conditions (change of address), there is no

obligation to report with 48 hours.

44. If the Crown fails to prove this third essential element of the offence, namely that the

accused had the appropriate mens rea, the Court must acquit the accused of the offence

7



14

LAWFUL EXCUSE

45. Only after the Crown having established a prima face 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 areasonable 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 a prima face case of breach of condition, theaccused 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 in

R. v. Flores-Rivas 2008 BCSC 1595 (CanLII), 2008 BCSC 1595 at paras. 15-16 referringto R. v. Ludlow 1999 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 as

to mitigate or negative the mens rea. Rather, if accepted by the trial judge, itprovides an excuse for his acts or omissions and thereby avoids a conviction that

would otherwise result.

As similarly noted in R. 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, the

accused 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 “theproof of which lies upon him”.

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

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

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 reasonableexcuse. 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 to R. 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 may



15

justify his actions after a prima 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

46. In Transportaction Lease Systems Inc. v. Virdi, the Court reiterated, the maxim, that the

law does not compel a person to do that which he or she cannot possibly perform:

[53] To order Mr. Virdi “to immediately disclose ... the whereabouts of [the]

Ferrari”, Sigurdson J. must have been satisfied that Mr. Virdi had the ability (i.e.,

knowledge) to comply with that order. To make that order in the absence of being so

satisfied would violate the maxim lex non cogit ad impossibilia, i.e., the law does not

compel a person to do that which he or she cannot possibly perform.

Transportaction Lease Systems Inc. v. Virdi, 2010 BCCA 347 (CanLII),

http://canlii.ca/t/2bjcs paragraph 53

47. 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; without repeating the arguments

above it will suffice to say, that there was no obligation to report unless specified conditions

occurred. Without those conditions (change of address), there is no obligation to report with 48

hours.

48. There is no Court Order which did specify that the accused was compelled to move into a

different Residence or acquire a new address. Without being compelled by Court Order to

acquire a new address, how can the accused be found in default of an undertaking, when the

undertaking specified “to provide Fredericton Police Force Station Officer his address by

Tuesday, June 19, 2012 and after that, to notify Fredericton Police Force Station Officer within

48 hours of any change in his address,” The address which FREDERICTON POLICE FORCE

had was the accused’s address, for all intents and purposes. It is a lawful excuse

that the accused was acting under the belief of the address provided was his address, and until a

move happened it is unreasonable to report a change of address.

49. If the Crown convinces the Court that a change of address occurred, without any

evidence to substantiate the phantom move. The lawful excuse, if accepted, does not relate to an



16

element of the offence, so as to mitigate or negative the mens rea of the offence. 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.

50. The offence of failing to report a change of address, cannot be one of particularly high

stigma and in appropriate cases, a court could impose a discharge disposition upon a finding that

an accused had breached a section of the subject Undertaking. It would be impossible to envisage

every situation that could amount to a lawful excuse for failure to provide a change of

address. Sudden illness, a breakdown of transport, loss of a phone, inability to access a phone

and the like would seem to be clear instances of situations that could amount to a lawful excuse

for failure to provide a new address. Of course, to succeed in any such defence would have to be

based on evidence that the trier of fact believed.

51. It must not be overlooked, that an obligation is imposed by statute on a person bound by

an undertaking or recognizance, who are directed by the terms of the operative

document. Forgetting to provide a new address is one thing, but not having an address to give is

another. This should appear to the Court, to be a very marked departure from the requirement

imposed on an accused, at liberty, on an undertaking to faithfully observe the requirement(s) of

the undertaking to report, if there is something to report. Most people would and should

recognize that, a serious obligation concerning the proper administration of justice is thereby

imposed on an accused, and a failure to follow the undertaking, absent a compelling reason, will

usually result in a finding of a breach of the section.

52. The fault or mens rea requirement, for this class of offence, has a large element of the

objective about 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

state of facts that would excuse non-reporting of an address change.

53. The Court must ask the proper question, namely:

(a) Did the accused have an honest and reasonable belief in a state of facts that excusedhim from the necessity of reporting a change of address?



17

(b) If this question is posed and the facts are properly analyzed, there could have been but

one answer, namely the accused had made out a lawful excuse, therefore the Court shoulddirect a verdict of acquittal.

Under Protest and Duress, Non-Assumpsit, All Rights reserved, Without Prejudice

54. The accuse signed the Undertaking and Promise to Appear documents, “Under Protest

and Duress, Non-Assumpsit, All Rights reserved, Without Prejudice”. When one signs a

document under protest, that is because a threat of harm was made to compel a person to do

something against his or her will or judgment. A Contract that is induced by duress is generally

voidable. A signature is evidence of an oath that the instrument upon which it can be found is

valid. We live in a society where one will often be in a position where a signature is demanded or

one can face negative consequences. In criminal proceedings one may face a threat of jail or

other hardships. Under these situations one can write “Under Duress” before one signs the

document. Doing so means the oath is invalidated and cannot be held against the accused as

evidence of the accused’s consent .

55. The accused signed the various Undertakings, by writing the following on the documents

to protect one’s rights and freedoms. The accused’s understanding of these terms are as follows:

Without Prejudice – In this case means the substance of the documents cannot be relied

upon or used to act upon the signator in any legal manner.All Rights Reserved - means the signator is reserving all rights of that which existed

before the signature was placed upon the document therefore these remain intact

regardless.

Non-Assumpsit – Non Assumpsit is a Latin tern which means he did not undertake. By

writing this one ensure that one does not accept any obligations that are expressly stated.

He did not undertake or promise any obligation in the manner or form set forth in the plaintiff's

complaint.

Under Protest and Duress - signing “under protest and duress”, means a signator does

not wish to participate further does not agree therefore “under protest” furthermore, a

signator is experiencing or perceiving some kind of threat hence the duress.

56. Black's Law Dictionary provides the definition of Without Prejudice:



18

WITHOUT PREJUDICE

without prejudice, adv. Without loss of any rights; in a way that does not harm or cancelthe legal rights or privileges of a party <dismissed without prejudice>.

Black's Law Dictionary (8th ed. 2004), at Page 4945

57.

Black's Law Dictionary provides the definition of Under Protest

UNDER PROTEST

under protest. See PROTEST(3).

PROTEST

protest,n.1. A formal statement or action expressing dissent or disapproval. • Under some

circumstances, a protest is lodged to preserve a claim or right.

3. A formal statement, usu. in writing, disputing a debt's legality or validity but agreeing

to make payment while reserving the right to recover the amount at a later time. • The

disputed debt is described as under protest. [Cases: Payment 88. C.J.S. Payment § 111.]Black's Law Dictionary (8th ed. 2004), at Page

58. Black's Law Dictionary provides the definition of Duress:

DURESS

duress 1. Strictly, the physical confinement of a person or the detention of a

contracting party's property. • In the field of torts, duress is considered a species of fraud

in which compulsion takes the place of deceit in causing injury.“Duress consists in actual or threatened violence or imprisonment; the subject of it must

be the contracting party himself, or his wife, parent, or child; and it must be inflicted or

threatened by the other party to the contract, or else by one acting with his knowledgeand for his advantage.” William R. Anson, Principles of the Law of Contract 261–62

(Arthur L. Corbin ed., 3d Am. ed.1919).

Today the general rule is that any wrongful act or threat which overcomes the free will of

a party constitutes duress. This simple statement of the law conceals a number of

questions, particularly as to the meaning of ‘free will’ and ‘wrongful.’ ” John D.

Calamari & Joseph M. Perillo, The Law of Contracts § 9-2, at 337 (3d ed. 1987).

2. Broadly, a threat of harm made to compel a person to do something against his or her

will or judgment; esp., a wrongful threat made by one person to compel a manifestationof seeming assent by another person to a transaction without real volition. • A marriage

that is induced by duress is generally voidable.

3. The use or threatened use of unlawful force — usu. that a reasonable person cannot

resist — to compel someone to commit an unlawful act. • Duress is a recognized defense

to a crime, contractual breach, or tort. See Model Penal Code § 2.09. SeeCOERCION.“[In most states,] the age-old rule of duress — that the doing of a prohibited

act is not a crime if reasonably believed to be necessary to save from death or great



19

bodily injury — together with the equally ancient exception in the form of the

‘inexcusable choice,’ are as firm today as ever except for the realization that they coveronly part of the field.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1064 (3d ed.

1982). “Among defenses, necessity needs to be distinguished from duress. Necessity is

generally regarded as a justification, while duress is held to be an excuse. This means that

the person who acts under necessity chooses to act in a way that the law ultimatelyapproves. The person who acts under duress acts in a way that the law disapproves and

seeks to discourage, but he acts under circumstances which make conviction andpunishment inappropriate and unfair. This is so because to act under duress is to act under

pressures that a person of reasonable firmness would not be able to resist. Thus, both the

theory of necessity and the theory of duress refer to the pressure of exigentand extraordinary situations, but they do so in different ways.” Thomas Morawetz,

“Necessity,” in 3 Encyclopedia of Crime and Justice 957, 959 (Sanford H. Kadish ed.,

1983).

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

59. Section 17 of the Criminal Code of Canada codifies the defense of Duress:

Compulsion by threats

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 out and if theperson 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 is committed 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 an offence under

sections 280 to 283 (abduction and detention of young persons).

60. In Canada (Citizenship and Immigration) v. Maan, the Court analysed the Defense of Duress and

concluded that in order to rely on the defense of duress, a person must prove that:

(1) there exists an urgent situation of clear and imminent peril,

(2) compliance with the law is demonstrably impossible,

(3) the harm inflicted is less than the harm sought to be avoided:

ANALYSIS

Defense of Duress



20

[15] The application of the defense of duress is whole fact based and thus reviewable on a

standard of patent unreasonableness. (Minister of Citizenship and Immigration v. Hussain) 2002

F.C.T. 209.

[16] Reliance on the defense of duress is subject to specific conditions as set out by Chief

Justice Lamer, at paragraph 62 in R. v. Hibbert , 1995 CanLII 110 (CSC), [1995] 2 R.C.S. 973,

(followed in R. v. Latimer , 2001 CSC 1 (CanLII), [2001] 1 R.C.S. 3, 2001, CSC 1, at paragraphs 32

and 33 and also in R. v. Ruzic, 2001 CSC 24 (CanLII), [2001] 1 R.C.S. 687, 2001 CSC 24, at

paragraph 96), which states as follows:

[. . .] Furthermore, I believe that the internal logic of the excuse-based defense,

which has theoretical underpinnings directly analogous to those that support the

defense of necessity (as set out in Perka, supra), suggests that the question of

whether or not a safe avenue of escape existed is to be determined according to an

objective standard. When considering the perceptions of a "reasonable person",

however, the personal circumstances of the accused are relevant and important, and

should be taken into account.

[17] In order to rely on the defense of duress, a person must prove that (1) there exists an

urgent situation of clear and imminent peril, (2) compliance with the law is demonstrably

impossible, and (3) the harm inflicted is less than the harm sought to be avoided. (R. v. Perka,

1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232 at p. 248 ff.; Latimer, above at paragraphs 28 to

31). The burden of proof lies on the party relying on the defense of duress and it is then up to

the Crown to disprove duress. (Ruzic above at paragraph 71).

[18] The same principles apply with respect to exclusion and the defense of duress inimmigration matters (Ramirez v. Minister of Employment and Immigration), reflex, [1992] 2 F.C.

306, 327 and 328 (C.A.); Kathiravel v. Canada (Minister of Citizenship and Immigration), 2003

CFPI 680 (CanLII), [2003] F.C.J. No. 882 (QL), 2003 CFPI 680, at paragraphs 45 to 47.)

[19] The first element of the test requires proof that the accused reasonably believe that the

threat would be carried out if he did not commit the crime and that there is a close temporal

connection between threat and harm. In other words, “the threat need not operate instantly,

but must be a present one in the sense that it creates an immediate pressure to act.” (Ruzic,

above paragraphs 71-72).

[20] Secondly, the requirement that there be an alternative legal solution implies that the

person who relies on the defense of duress must prove that he or she had no option but to

break the law in order to avoid or prevent harm. Otherwise the defense of duress is not

available. Latimer, above at paragraph 30 states as follows:



21

[. . .] [T]he requirement involves a realistic appreciation of the alternatives open

to a person; the accused need not be placed in the last resort imaginable, but he must

have no reasonable legal alternative. If an alternative to breaking the law exists, the

defense of necessity on this aspect fails.

[21] To meet the third part of the test, it must be established that the harm avoided was

greater than the harm inflicted in committing the crime under duress.

[22] The Applicant argues that the Board neither referred to nor applied these fundamental

elements of the defense of duress. Rather it based its conclusion on purely subjective elements

to find that the Respondent transported illegal under duress. The Board placed too much weight

on the fact the Respondent was 17 years old. This is a subjective factor and it is not an

assessment of the threat from the point of view of the reasonable person in a similar situation.

Canada (Citizenship and Immigration) v. Maan, 2007 FC 583 (CanLII), http://canlii.ca/t/1rq66

paragraph 15 - 22.

61. As provided above in Canada (Citizenship and Immigration) v. Maan, the first part of any

test to apply the Defense of Duress, requires proof that the accused reasonably believes that the

threat would be carried out if he did not do the act in question, and that there is a close

connection between threat and harm. In this subject matter, had the accused not signed the

undertaking, the accused may have been committed to prison for up to twelve months. Please see

Criminal Code of Canada section 810.1 (3.1)

Refusal to enter into recognizance

(3.1) The provincial court judge may commit the defendant to prison for a term not

exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

62. The Second part of test to apply the Defense of Duress, provides the requirement that the

person who relies on the defense of duress must prove that he or she had no option but to Sign

the Undertaking or go to jail. Otherwise the defense of duress is not available.

63. To meet the third part of the test, it must be established that the harm avoided, was a

greater perceived harm and or threat than signing the Undertaking under Protest and Duress.



22

64. Since the Undertaking was signed under protest and duress, the Undertaking is not in fact

binding on the accused, and despite a possible conviction for the Breach, the Court should acquit

the Defendant. Anyone witnessing and thereby reading the Undertaking could read the words

“Under Protest and Duress”. The Duress Defence provides lawful excuse.

65. If the Crown succeeds in proving the three essential elements of the offence, namely:

a. The accused was bound by an undertaking

b. Accused committed an act which was prohibited by the undertaking

c. That the accused had the appropriate mens rea

66. The Court may still acquit the accused of the alleged subject offence, if the Court accepts

Andre Murray’s Lawful Excuse.

Further claims of


67. It is my belief, based on the harassing conduct of members of FREDERICTON POLICE

FORCE and more specifically Constable David Beck that FREDERICTON POLICE FORCE,

will attempt to charge me Andre Murray, again with another Breach of undertaking.

68. Constable David Beck has repeatedly, at all hours of the day and night, come to my civic

address door at 103 Huntington Circle, Fredericton, New Brunswick and demanded of my

roommate, information therefore asking intrusive questions regarding my whereabouts and or

activities, further, making unusual demands to see my belongings and my room. Constable David

Beck behaviour has been Intrusive, further, his conduct and demands go beyond any obligation

imposed upon the accused by the subject Undertakings. Members of FREDERICTON POLICE

FORCE have repeatedly demanded that I appear at the address door at 103 Huntington Circle,

Fredericton, New Brunswick, despite the fact that I was not there at the time. Members of

FREDERICTON POLICE FORCE have gone all about Fredericton, New Brunswick, inquiring

with anyone, they believe may have information regarding my whereabouts, interalia, despite the

fact know that I live at 103 Huntington Circle, Fredericton, NB.



23

69. The newest expression of the Undertaking, Dated: September 27, 2012, states:

“2. Will reside at 103 Huntington Circle, Fredericton, NB and will advise the Fredericton

City Police of any change in address in advance of moving from that residence.”

“3. You must present yourself at the door, if you are home, to prove you are in

compliance with this Order.”

70. There has been no curfew imposed upon the accused, therefore no requirement to be at

civic address 103 Huntington Circle, Fredericton, NB at any particular time, for an inspection,

and the accused travels extensively for work, so Andre Murray is away often.

71. Members of FREDERICTON POLICE FORCE have to date, since year 2005 taken every

opportunity to cause me Andre Murray difficulties. So far, I have had my home illegally

searched, without court issued warrant, three separate times, I have been many times harassingly

arrested, assaulted, and battered without due cause, then released without charge, I have been

targeted, numerous times while engaged in innocent mundane activities, and consequently issued

monetary fines alleged as breaches of City of Fredericton bylaws. I believe Members of

FREDERICTON POLICE FORCE will attempt to have me charged with every criminal charge

possible in retribution, for my civil law suits filed against Members of FREDERICTON POLICE

FORCE. If members of the FREDERICTON POLICE FORCE continue to pursue these subject

claims of ‘Breach of an Undertaking’ , the claims will reasonably be based on nothing but

circumstantial evidence.

72. The Court should dismiss the subject charges or acquit the accused.

9

Biased Investigation by Constable David Beck

73. The Court must further consider that, this criminal charge of Breach of an Undertaking

has been raised as an issue apparently only by Constable David Beck. This is pursuant to a

Biased Investigation, conducted by David Beck. The only evidence for the alleged breach of an

undertaking comes from the FREDERICTON POLICE FORCE CROWN PROSECUTOR'S



24

REPORT Occurrence Number: 2012-12177 Dated July 5, 2012, written by Constable David

Beck, Badge Number: 377 on page 3 and 4:

• "On 20 June 2012, Cst Beck was aware that Andre Charles Murray (hereafter referred to

as the accused) was required to notify the FPF of his current address by the 19th of June2012."

• "At 1512 hrs, 20 June 2012, Cst Beck contacted the Provincial Court Office (room 105)and inquired if any change to teh accused's address was on record."

• "The address on record is 31 Marshall Street, Fredericton, NB."

• "31 Marshall Street is theformer address of the accused who was evicted from thisresidence weeks prior and is still the address on record with the Police."

• At about 1820 hrs, 20 June 2012, Cst Beck checked with the FPF Station Officer (CstCane) to see if any change of address had been reportedby the accused and none has beenadvised. The FPF in-house computer system (RMS) still showed the address of 31

Marshall Street,Fredericton, NB. Cst Beck checked the FPF Station Officer copy of the

Undertaking that was breached and no amendment was noted.

• "While obtaining information for the C216 (ICA Form), Cst Beck asked the accused whathis current address was to which the accused stated it was the same (31 Marshall St). Cst

Beck advised the accused that this was not his address anymore to which he responded itwas as this is where all his belongings are still located.

74. Black Law Dictionary defines Bias as:

BIAS

bias,n. Inclination; prejudice; predilection <the juror's bias prompted a challenge for cause>.— bias,vb. — biased,adj.

actual bias.Genuine prejudice that a judge, juror, witness, or other person has against some

person or relevant subject. Cf. implied bias.

implied bias.Prejudice that is inferred from the experiences or relationships of a judge, juror,

witness, or other person. — Also termed presumed bias. Cf. actual bias.

75. The Particulars of the biased investigation are that Constable David Beck Claims that

Andre Murray was obligated to provide anew address by June 19, 2012, which is not the case.

June 19, 2012 was merely the next scheduled Court Hearing Date.



25

76. Constable David Beck Claims that it was him who unilaterally pursued the investigation

regarding the Charge of Breach of undertaking, no superior Officer is noted as requesting this

investigation, nor doesConstable David Beck Claim that he was charged somehow with this

duty, for any reason whatsoever. It appears that Constable David Beck had a personal interest in

the matter and pursued it.

77. That personal matter may be because:

• Andre Murray has filed two separate complaints regarding Constable David Beck’s

conduct, one for an incident in October 23, 2009, (where Constable David Beck

participated in an illegal and unlawful eviction of Andre Murray, where members of the

FREDERICTON POLICE FORCE threatened Andre Murray and caused bodily harm

through a particularly violent arrest to cause Andre Murray to be motivated to vacate thepremises;

• The other complaint filed by Andre Murray was regarding an incident which occurred

October 7, 2011, where Constable David Beck, after recognizing Andre Murray, then

from behind Andre Murray, Constable David Beck surprise football style tackled Andre

Murray, tackling Andre Murray from off his bicycle, and onto the ground, only to serve a

50.00 ticket for riding on the sidewalk with a bicycle;

• Andre Murray has personally served Constable David Beckwith a lawsuit for damages,

wherein Andre Murray is the Plaintiff and Constable David Beck is personally named as

a Defendant;

• Andre Murray has had Constable David Beck on the witness stand, in open Court,

revealing that FREDERICTON POLICE FORCE and THE CITY OF FREDERICTON

have been unlawfully, issuing bylaw tickets, for as long as anyone in that Court could

remember, furthermore, without serving a Notice of Prosecution upon the Defendants

(which is contrary to the Provincial Offences Procedures Act). This blunder could open

up a class action law suit against THE CITY OF FREDERICTON and FREDERICTON

POLICE FORCE.

78. Public Confidence in the Justice System, will be effected by the appearance of bias.

Subject questionable actions of Constable David Beck, will not instil public confidence in the



26

justice system. The public has expectations that Police Officers will strive to overcome personal

bias and partiality and carry out the oath of their office to the best of their ability. In R. v.

Teskey, the Supreme Court of Canada described the concept of judicial integrity, which should

equally apply to Police Officers as follows:

20 The notion of judicial integrity was discussed at length by this Court

in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484. It encompasses the

expectation that judges will strive to overcome personal bias and partiality and carry out

the oath of their office to the best of their ability. Impartiality was described as followsby Cory J. (at paras. 104-5):

. . . impartiality can be described — perhaps somewhat inexactly — as a state of mind in which the adjudicator is disinterested in the outcome, and is open to

persuasion by the evidence and submissions.

In contrast, bias denotes a state of mind that is in some way predisposed to a

particular result, or that is closed with regard to particular issues.

The judge’s impartiality is essential to achieve trial fairness.

21 As reiterated in S. (R.D.), fairness and impartiality must not only be

subjectively present but must also be objectively demonstrated to the informed and

reasonable observer. Even though there is a presumption that judges will carry out theduties they have sworn to uphold, the presumption can be displaced. The onus is

therefore on the appellant to present cogent evidence showing that, in all the

circumstances, a reasonable person would apprehend ….

R. v. Teskey, 2007 SCC 25 (CanLII), [2007] 2 SCR 267, http://canlii.ca/t/1rq5q

79. Public confidence in the justice system relies upon the existence of a presumption of

integrity, rebuttable only by cogent evidence. The high threshold for displacing the presumption

that a Police Officer is acting with integrity and in accordance with his or her oath of office,

seeks to balance two significant public interests, both related to maintaining confidence in the

administration of justice: the right of Police Officers to be presumed to be acting with integrity

and the right of the accused to challenge Police Officers, when their conduct gives rise to a

reasonable apprehension of impropriety. The presumption of integrity, acknowledges, that Police

Officers are bound by their judicial oaths, and will carry out the duties they have sworn to

uphold. This includes not only a presumption — and duty — of impartiality, but also of legal

knowledge. This aspect of the presumption, would include that Police Officers are presumed to



27

know, and act, in accordance with their legal responsibilities. Police Officer’s impartiality is

essential to maintaining the peace with fairness, the accused will expect any Judge who reviews

this matter, of an undertaking, to see the injustice which has engulfed the accused, and in the

administration of Justice, dismiss all charges for wrong doing, associated with the undertaking or

any allegations of a breach flowing from same.

80. This presumption of integrity extends to Police and Crown Prosecutors, who should be

bound by their various oaths, and should carry out the duties, they have sworn to uphold. This

matter before the Court is abundant with cogent evidence, of impropriety, improper procedure,

Bias and reasonable apprehension of Bias, and requires Court intervention to right this glaring

injustice.

81. It appears terribly bad, when a Police Officer, Namely Constable David Beck, (not a

detective) randomly and unilaterally launches an investigation against Andre Murray, who has

filed 2 separate complaints, against Constable David Beck, with the New Brunswick Police

Commission, Andre Murray is suing Constable David Beck, in a lawsuit Court Filed with Court

of Queen’s Bench and has embarrassed Constable David Beck who was cross examined under

oath which revealed, inter alia, that FREDERICTON POLICE FORCE and THE CITY OF

FREDERICTON have been unlawfully, issuing bylaw tickets, for as long as anyone in that Court

could remember, which could consequentially open up a class action law suit against THE CITY

OF FREDERICTON and FREDERICTON POLICE FORCE. The Public will see this particular

incident as a situation where Constable David Beck against Andre Murray who complained

about Constable David Beck. What a great misuse and abuse of the justice system.

82. The only way the Court could shed itself of this apprehension of bias is to strike all the

evidence and anything produced through Constable David Beck apparently biased self-indulgent

investigation, which would leave nothing left, to convict the accused. The Charter is specific onthe point that the Court is obligated to strike out evidence which was collected, in such a fashion

as to bring the administration of Justice into disrepute. To preserve public confidence, in the

administration of Justice, the appropriate action is to acquit the accused of the offence.



28

10.

CONCLUSION

83. Was there actually a charge assessment- by Crown Council – did they review all reports

and investigations sent to them using assessment guidelines to determine whether to lay charges

– difficult to believe an educated person determined there must be substantial likelyhood of a

conviction – where is the strong solid case? How is this in the public interest? Can this really be

considered a serious matter? Where are the victims?

84. The Crown has charged/accused Andre Murray with “Breach of an Undertaking”, Dated

June 5, 2012. The Crown claimed that Andre Murray "did fail, without lawful excuse to provide

Fredericton Police Force Station Officer his address by Tuesday, June 19, 2012 and after that,

to notify Fredericton Police Force Station Officer within 48 hours of any change in his address,

employment or occupation, a condition of said undertaking, contrary to Section 145(3)(b) of the

Criminal Code of Canada and amendments thereto."

85. It is a fundamental principle of criminal law, that an information must provide the

accused with sufficient information, to identify the specific transaction, which gives rise to his

alleged criminal culpability, so that he may make full answer and defence to the charge. A

person charged with a criminal offence in Canada is presumed to be innocent of the offence,

until the Crown has proven beyond a reasonable doubt the elements of the offence with which he

is charged. The Crown must convince the Court, that a conviction is supported by the evidence,

therefore reasonable; sufficient enough that the evidence must overcome the principle of

reasonable doubt, thereby considering the law and evidence; and properly considering the

principle of mens rea.

86. To prove the actus reus, the crown would have to provide evidence of a residential civic address

that the Defendant lived at, on the date of the alleged breach, which could have triggered the offensive

and or contradictory act of the undertaking, then prove mens rea that the accused intended to commit

the actus reus

87. In consideration of the lack of evidence provided by the Crown, the question as to

whether there was a valid undertaking to breach in the first place, and the considerable actus

brief - breach of undertaking march 4 2013

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