may 3, 2012, notice of application and constitutional issue and supporting affidavit combined (new...

8/2/2019 May 3, 2012, NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE and supporting Affidavit combined (New Bruns

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Court File Number: 93818New Brunswick Provincial Court,Provincial Court Office of Fredericton,BETWEEN:

THECITYOF FREDERICTON,RESPONDENT

AndANDRE MURRAY,

APPLICANT

(New Brunswick Rules of Provincial Court Practice)FORM 3

TAKE NOTICE t hat the Applicant, ANDRE MURRAY,will bring an application at am/pm on the day of. .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. . ' .' 2 012 , at Courtroom no Justice Building, 427 Queen Street, Fredericton,New Brunswick, for an ORDER granting a dismissal of Charges and appropriate remedy on the grounds of Cana d i a nCha r i e r of R ig hts a nd F re ed om s (hereafter the Cha r i e r ) violations against the Applicant by the Respondent.

THE GROUNDS FOR THISAPPLICATION ARE:INTRODUCTION

1. Democratic values and principles under the Charter demand that legislators and the executivetake these into account; and if they fail to do so, courts should stand ready to intervene to protect thesedemocratic values as appropriate. As others have so forcefully stated, judges are not actingundemocratically by intervening when there are indications that a legislative or executive decision wasnot reached in accordance with the democratic principles mandated by the Charter

2. To respond, it should be emphasized again that our Charter's introduction and the consequentialremedial role of the courts were choices of the Canadian people through their elected representativesas part of a redefinition of our democracy. Our constitutional design was refashioned to state thathenceforth the legislatures and executive must perform their roles in conformity with the newly

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conferred constitutional rights and freedoms. That the courts were made the trustees of these rightsinsofar as disputes arose concerning their interpretation was a necessary part of this new design.

3. So courts, in their trustee or arbiter role, must necessarily scrutinize the work of the legislatureand executive not in the name of the courts, but in the interests of the new social contract that wasdemocratically chosen. All of this is implied in the power given to the courts under s. 24 of the Charterand s. 52 of the Constitution Act, 1982.

(A) Section 7

4. Pursuant to this traditional analysis, a claimant must therefore first establish that there has beenor could be a deprivation of life, liberty or security of the person. With respect to this first step, theApplicant submits that the prohibition of riding on a sidewalk, even an empty sidewalk, with a bicycle, incircumstances where the alternative is to dangerously drive on the side of road ways, in the path ofthousand pound machines knows as cars, driven by possibly careless drivers paying attention to whoknows what, the consequence of their action and inattention resulting in bicyclist's death or seriousinjury, is a unjustified interference with s. 7 interests of a bicyclist in several ways. First, interfering withthe ability to direct one's life and death decisions, in one's best interest, interferes with the provision ofthe basic necessities of life. Second, preventing adults from responsibly conducting themselves withtraffic of relatively the same size such as pedestrians interferes with their liberty interests. Third, forcingadult bicyclist onto dangerous roadways, the consequence being deathly, interferes with their basicbodily integrity, and thus constitutes interference with security of the person

5. The Applicant submits that the Bylaws attacks the key values of dignity and personal autonomyunderlying the liberty right so as to interfere with the ability of the affected persons to truly be free andto participate meaningfully in the democratic process. The Applicant submits that the Charter must beinterpreted and applied in a manner consistent with Canada's international obligations, which includethose obligations that recognize the value of human life and the dignity of self direction as afundamental human right.

6. With respect to the first step of the s. 7 analysis, the Applicant submits that for a s. 7 right to beimplicated, the deprivation must arise as a result of state action. The claimant must prove that thedeprivation of his or her right is caused by the state, and that "but for" the state's action, he or she

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would not be so deprived, the impugned Bylaw does cause the Applicant to be placed into an unjustifieddangerous position, hence the condition in which they find themselves is the result of state action.

1 Does this Claim Follow Within the Scope of Section 7?(a) Is There Sufficient State Action?

7. The Bylaws at issue prohibit certain conduct. BY-LAW NO. T-4 Section 15 of the Fredericton CityBylaws provides that a person who contravenes the provisions commits an offence and is liable topenalties imposed by the Bylaw and the Provincial Offences Procedure Act, SNB 1987, c P-22.1. In theApplicant's view, the impugned Bylaw at issue in this proceeding constitutes state action that directlyengages the justice system, by threat of arrest at the hands of the Police, and is sufficient in order to fallwithin the scope of s. 7.

(b) Is the State Action the Cause of the Deprivation?8. The Applicant submits that the source of the deprivation at issue is the impugned Bylaw,therefore the claim does fall within the scope of s. 7, since the deprivation of protected interests is theresult of state action. Each level of democratic government is entitled to deference in the policy choicesit makes, especially when dealing with significant and complex issues. It is, however, the responsibility ofgovernment, in making these decisions, to act in conformity with the Constitution. In a constitutionaldemocracy, governments must act accountably and in conformity with the Constitution and the rightsand liberties it guarantees. In the matter before the Court the Applicant Asserts that the City ofFredericton, through the impugned bylaw, has trespassed on the Applicant's charter protected rights.Simply put, the fact that the matter engages complex policy decisions does not immunize the legislationfrom review by the courts pursuant to the Charter.

2. Is there a Deprivation of One of the Protected Rights?(a) Life

9. In the present case, the Applicant asserts that the ability to avail oneself of adequate responsiblechoices, with possibly fatal consequences hanging in the balance, is a necessity of life, that falls withinthe ambit of the s. 7 provision "life". The impugned Bylaw, and enforcement of this policy, prohibits thechoices that are necessary to protect the individual from this risk. I believe that the impugned Bylaw

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and the operational policy of the City engages the right to life. The ability to decide for oneself, theconsequence of those decisions being life or death, falls within the ambit of the s. 7 provision of thenecessity of life. Without the ability to make decisions to provide for those necessities, the entire ambitof other constitutionally protected rights becomes meaningless. Not every threat to life commends itselfto Charter scrutiny. The threat must flow from the actions of the state. If the root cause of death derivesas a consequence of The City of Fredericton mandating that people on bicycles must travel dangerouslyon the shoulder of the roadway, that act places an individual in harms away, then a law that preventsfreedom of choice that can prevent death consequences clearly engages the right to life.

(b) Liberty10. An aspect of the respect for human dignity on which the Charter is founded is the right to makefundamental personal decisions without interference from the state. This right is a critical component ofthe right to liberty. Liberty, is a phrase capable of a broad range of meaning, in my view, this right,properly construed, grants the individual a degree of autonomy in making decisions of fundamentalpersonal importance. For the Applicant to be able to decide what to do and how to do it, to carry outone's own decisions and accept their consequences, seems essential to one's self-respect as a humanbeing, and essential to the possibility of that contentment. Such self-respect and contentment arefundamental goods for human beings, the worth of life itself being on condition of having or striving forthem. The Applicant believes he is being deliberately denied the opportunity of self-respect andassociated contentment. As a consequence the Applicant is suffering deprivation of his essentialhumanity. The choice made, by an adult, of where to travel by bicycle, with life-threateningconsequences as a result, is such a decision which should be protected by the Charter.

11. The Applicant believes that in considering the Applicant's liberty interest, the Court shouldconsider that in at least two ways. First, the threat of criminal prosecution and possible imprisonmentitself amounts to a risk of deprivation of liberty and therefore must accord with the principles offundamental justice. Second, as this case arises from a bylaw mater, dealt with by the Provincial Court,in the criminal law context (in that the state (City of Fredericton) seeks to limit a person's choice of non-vehicular travel, through threat of criminal prosecution), liberty includes the right to make decisions offundamental personal importance, such as where is the safest path of travel by bicycle. Deprivation ofthis right to choice should be ranked as "fundamental and deserving of the highest order of protection",

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which must also be in accord with the principles of fundamental justice. The choice of where to travel bybicycle, with life-threatening consequences is such a decision. Making a responsible decision to protectoneself from dangerous traffic, free from threat of arrest and the often dangerous and harmful arrestprocedure, is a matter critical to an individual's dignity and independence. The state's intrusion in thisprocess interferes with the individuals' choice to protect themselves and is a deprivation of libertywithin the scope of s. 7.

(c) Security of the Person

12. The judgments of the Supreme Court of Canada Court can be seen to encompass a notion ofpersonal autonomy involving, at the very least, control over one's bodily integrity, free from stateinterference and freedom from state-imposed psychological and emotional stress. The threat of arrestand bodily harm associated with contravening a City of Fredericton Bylaw, is such a threat, imposed bythe state. In the present case, the City of Fredericton has legislated away a potentially life saving choice,of where to safely ride one's bicycle. The City has prohibited the reasonable choice of driving a bicycleon the side walk, with traffic of reasonably the same size and much closer to the speed they aretraveling, thereby as a consequence exposing bicyclist to a risk of significant health problems or evendeath by mandating they bicyclist ride on the shoulder of the roadways The state action, by means of asanction has deprived the bicyclist of access to paths of travel, required for adequate protection fromthe dangers of vehicles on the road. A bicyclist is left to choose between a breach of the Bylaws and theunreasonable consequences of same (Police assault, arrest, detainment, fines in the name of publicsafety), in order to obtain adequately safe path of travel or alternatively a dangerous path of travelalong the roadway, exposing him or her to increased risks to significant health problems or even death.State action which has the likely effect of impairing a person's health engages the fundamental rightunder s. 7 to security of the person .The Applicant asserts that this prohibition by the impugned Citybylaw constitutes a deprivation of the security of the person.

(d) Summary13. In summary, the Applicant asserts that the prohibition in the subject Bylaw BY-LAW NO. T-4 A BY-LAW RESPECTINGSTREETSAND SIDEWALKS 15. BICYCLESAND MOTORCYCLES,that IINo person shallride or drive a bicycle or motorcycle upon any sidewalk except for the purpose of crossing such footpathor sidewalk" by mandate, exposes the bicyclist to a risk of significant health problems or even death. A

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bicyclist who contravenes the impugned bylaw is subject to be dangerously arrested, assaulted,detained and potentially facing criminal charges at the hands of the Police. The impugned bylawremoves the freedom of choice, essential to human dignity. The prohibition constitutes a deprivation ofthe rights to life, liberty and security of the persons protected under s. 7.

3. Is the Deprivation in Accordance with the Principles of Fundamental Justice?(a) Overview

14. The principles of fundamental justice are concerned not only with the interest of the person whoclaims his liberty has been limited, but with the protection of society. Fundamental justice requires thata fair balance be struck between these interests, both substantively and procedurally, the principles offundamental justice are to be found in the basic tenets of our legal system, they do not lie in the realmof general public policy but in the inherent domain of the judiciary as guardian of the justice system.Unlike s. 1, s. 7 is not concerned with whether a limit on life, liberty or security of the person isjustified,but with whether the limit has been imposed in a way that respects the principles of fundamentaljustice. In the matter before the Court a balancing of the interest of the state and the individual isrequired.

15. It is unbalanced that a bicyclist, who may cause a minor inconvenience to a pedestrian on asidewalk (societal interest), is subject to being dangerously arrested, assaulted, detained and potentiallyfacing criminal charges at the hands of the Police. The principles of fundamental justice relevant to thecase should be observed in substance, having regard to the context and the seriousness of the violation.The issue before the Court is whether the process is fundamentally unfair to the affected person, theeffect of a bylaw, prohibiting bicyclist from being even on an empty sidewalk, is fundamentally unfair tothe Applicant in this matter. To be a bicyclist on an empty sidewalk can, at this time, result in a Bicyclistbeing dangerously arrested, assaulted, detained and potentially facing criminal charges at the hands ofthe Police. The deprivation of life, liberty or security of the person simply does not conform to therequirements of s. 7. It is now up to the City of Fredericton to establish that the flawed process isnevertheless justified having regard to the public interest.

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(b) Application inNon-Criminal Legislation16. The right to choose where the safest path is to travel by bicycle falls within the scope of theliberty interest protected by s. 7 as part of the irreducible sphere of personal autonomy, whereindividuals may make inherently private choices free from state interference. The right to choose wherethe safest path is to travel by bicycle is afforded explicit protection in the International Covenant on Civiland Political Rights, Can. T.S. 1976 No. 47, to which Canada became a party in 1976, see Article 1 asfollows: PARTI Article 1: (1). All peoples have the right of self-determination. And (3). The States Partiesto the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, andshall respect that right, in conformity with the provisions of the Charter of the United Nations.

17. The economic benefits generated for the municipality from the ticket revenue because of such animpugned bylaw respecting sidewalks, is not a sufficient interest to override the constitutionalguarantee of freedom of choice, further this bylaw does not survive constitutional scrutiny. The right tochoose where the safest path is to travel by bicycle falls within the scope of the liberty interestprotected by s. 7 as part of the irreducible sphere of personal autonomy, where individuals may makeinherently private choices free from state interference, the result is that the infringement created by thesubject impugned bylaw does not conform to the principles of fundamental justice.

18. With respect to the principles of fundamental justice the Court should conclude, when weighingthe right at issue, which is a bicyclist's the right to choose where (they believe) is the safest place totravel, which is weighed against the interests pursued by the state (The City of Fredericton) in causingthe infringement, those interest being: the generation of revenue and causing 'probable cause' for theFredericton Police Force to arrest people otherwise protected by the Charter, from arbitrary arrest.(c) Overbreadth

19. In the present case, to arrest and fine a bicyclist for merely riding on an empty sidewalk is morebroadly framed than necessary to achieve a vague legislative purpose. If the purpose is public safety,then the Bylaw does not even use the word safety, or dangerous actions, in its description anywhere.The impugned Bylaw appears first to merely to be a tool to arbitrarily arrest suspects, who the Policewould be otherwise unable to arrest, because the suspects would be appropriately protected from

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arbitrary arrest by the Charter, and secondly to generate money for the city of Fredericton, like a hiddentax on the random passerby bicyclist.

20. The effect of overbreadth in this case is that the law is arbitrary or disproportionate in thecircumstances. The Fredericton Police use the City Bylaw, regarding riding on the sidewalk with abicycle, to dangerously tackle people off their bicycles, possibly fatally or grievously injuring the bicyclist,furthermore, this action cannot be justified in the interest of public safety. To create a ground for thePolice to attack a peaceful bicyclist is completely the opposite to the interest of pubic safety.

21. The Police should have no powers to arrest for such a minor bylaw infraction, and adultcompliance should only be voluntary. The City of Fredericton could instead advertise a campaign tobroaden public awareness of respecting each others rights of way and space on the sidewalks. Withminima public discourse, the copasetic shared use of the sidewalk could be easily achieved.

(d) Arbitrary Provisions

22. In this case, the subject impugned Sidewalk bylaw is arbitrary because it bears no relation to, or isinconsistent with, the objective that lies behind it, furthermore, it does not promote the interest ofpublic safety and does the opposite, in fact, by mandating that bicyclists must be placed into apotentiality deadly situation of riding along the shoulder of the roadways. How could forcibly,dangerously and arbitrarily arresting bicyclists be in the interest of public safety? In this case the stateinterest seems to be to generate revenue and create a probable cause to arrest people who would otherwise be protected from arbitrary arrest by the Police.

23. In order not to be arbitrary, and in this case the bylaw is arbitrary, the limit on life, liberty andsecurity requires not only a theoretical connection between the limit and the legislative goal, but a realconnection on the facts. The question in this case is whether the measure is arbitrary in the sense ofbearing no real relation to the goal and hence being manifestly unfair. In this case, to force bicyclists intoa dangerous situation and fine them for not complying, in the name of public safety, is a seriousimpingement on the person's liberty and security, further has no real relation to the objective of public

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safety. Where the individual's very life may be at stake the reasonable person would expect a clearconnection, in theory and in fact, between the measure that puts life at risk and the legislative goals, inthis case there is none.

(e) The Rationale for the Provisions24. Allowing both bicycles and pedestrians to share the sidewalks is a benefit to public safety, thosecyclists who choose to ride on the shoulder of the roadways will continue to do so and those bicyclistswho are riding on the sidewalk will no longer be victims of police encounters and assault. Pedestriansand bicyclist can share the sidewalk and this is simply a matter respect for each others space. A very rareoccasion of a rude bicyclist dominating the sidewalk should not be a bar to the 99% of respectfulbicyclists who share the same sidewalks. If a Bicyclist is causing a nuisance then the Police have othertools at their disposal and may act to intervene if there is an effected pedestrian.

Section 7 Conclusion

25. A significant number of people in The City of Fredericton have chosen to ride bicycles, and manyof them ride on the sidewalk for safety reasons. The City's subject impugned Bylaw prohibits thosebicyclists from freely making important life or death choices, of where they will ride their bicycles withtheir own safety in mind. The effect of the subject impugned bylaw prohibition is to impose upon thosebicyclists, who may be among the most vulnerable and marginalized of the City's residents, significantand potentially severe additional health risks. The prohibition on riding a bicycle on even an emptysidewalk, contained in the subject Bylaws and operational policy, constitutes an interference with thelife, liberty and security of the person of these bicyclists. Finally, the Court should conclude that theprohibition is both arbitrary and overbroad and hence not consistent with the principles of fundamentaljustice.

8 Section 15

26. Pursuant to Section 15(1) of the Charter it is blatant discrimination that the City would notprovide equal use of the public sidewalks, to both pedestrians and bicyclists (who are pedestrians with abicycle between their legs), simply because it may be a minor inconvenience to an occasionalpedestrian. Therefore to allow this element of discrimination to stand, is to confirm a different standard

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for the Applicant in this matter, a bicyclist who believes that it is safest to travel by sidewalk than totravel by bicycle on the shoulder of the road, exposing oneself to lethal dangers of a inattentive driver ofa motor vehicle, compared to pedestrian who wished to walk the sidewalks, which therefore has theeffect of demeaning this Applicant's human dignity.

27. Test: (1) Has there been differential treatment? Yes, (2) Is the differential treatment based on anenumerated or analogous ground? Yes and (3) Is there discrimination? Yes.

28. Pursuant to Section 15(1) of The Charter, it is blatant discrimination that responsible bicyclist arenot afforded equal use of the sidewalks in Fredericton. Grass verges and wide sidewalks are prevalent inFredericton and give ample space for a cycle lane on the sidewalks ...this would be preferable to plantingtrees to obstruct cycle routes ...1 see no law requiring trees to be planted? That would be scenic notfunctional....

29. Therefore to allow this element of discrimination to stand is to confirm a different standard forthe Applicant in this matter, compared to every other pedestrian within the City of Fredericton whofinds convenience by walking the sidewalks of Fredericton, which therefore has the effect of demeaningthis Applicant's human dignity. From the earliest stage of Charter interpretation the Supreme Court hasmade it clear: the function of The Charter is to provide for the unremitting protection of individual rightsand liberties.

c. Section 11. Overview

30. The next issue to be addressed is whether the City can establish that the Bylaws are justifiedpursuant to s. 1 of the Charter.

31. The rights protected by s. 7 -life, liberty, and security of the person, including as explained above,as an adult, the freedom to choose, especially when the consequences of those choices are as serious asdeath or grave bodily harm- are basic to our conception of a free and democratic society, and hence arenot easily overridden by competing social interests. It follows that violations of the principles of

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fundamental justice, are difficult to justify under s. 1, especially when the competing social interestsappear to be nothing more than a money generating tool for the City of Fredericton, and or theimpugned bylaw is used by the Police as a reason to create a probable cause to arrest someone, whowould otherwise be protected by the Charter from such an arbitrary infringement of their rights.Vehicular traffic and vehicle drivers' rights and obligations are protected, regulated and clearly defined,in law, as are pedestrians', but not the obligations and rights of byciclists, which are wrongly designatedas the same as those of vehicles when on the road and with no rights when compared with pedestrians.Since Bicyclists are the same as pedestrians in that they are unprotected travelers this needs to beaddressed. Where Motorcyclists and car drivers must carry insurance by law they are, therefore, in adifferent category of road user than bicyclists.

2. Important Objective32. The City in the present case does not differentiate between the objective of the Bylaws as a wholeand the particular provisions at issue, as an example: the bylaw does not even distinguish between aMotorcycle and a bicycle, which are substantially different as the Motor Vehicle Act clearly defines. Thepurpose of the subject bylaw appears to be the preservation of safety of pedestrians on the sidewalks ofFredericton. The City appears to believe that only pedestrians may benefit from sidewalks in thecommunity. I believe that the preservation of pedestrian safety is an important objective, but it must bebalanced with other equally fragile members of society, namely bicyclists, who may manage to sharesidewalk space with pedestrians with much more proficiency than, and much less risk than, being forceddangerously onto the roadways with inattentive, distracted and careless drivers, the consequence ofsuch an encounter may be death or grievous injury.

3. Proportionality33. The next step in the s. 1 analysis requires the government to show that, on a balance ofprobabilities, the means chosen are reasonable and demonstrably justified. This is, as Chief JusticeDickson stated in R. v.Oakes, 1986 CanLll46 (SCC),[1986] 1 S.C.R. 103, a form of proportionality test.The impugned provision must have been "carefully designed to achieve the objective in question" andthe law must not be "arbitrary, unfair or based on irrational considerations": Oakes at p. 139. There arethree components to this proportionality inquiry.

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(a) Rational Connection34. The City's subject impugned sidewalk Bylaw is not rationally related to the legitimate andreasonable interests of preserving safe sidewalks for pedestrian's use. These impugned measures usean iron glove method, the consequence is bicyclists are subject to violent Police arrest procedure and anescalation of fines and possible criminal charges to address a minor issue, such as people respectingeach others space.

35. The question of who, and what, sort of traffic should be permitted on public sidewalks is broadlyencompassed in the impugned sidewalk bylaw. In that sense the provision has a connection to thepurpose of which we must infer: it appears to be in the interest of public safety. However, the ratherabstract matters, in this case related to the mere presence of a cyclist or motorcycle on a sidewalk, inthat respect, the provision is not rationally connected to the objective of public safety. The bylawappears to predominantly provide an excuse for the Fredericton Police to arrest persons, otherwiseprotected by the Charter from arbitrary arrest, and further to generate money for the City ofFredericton as a sort of hidden tax on bicyclists.

(b) Minimal Impairment36. The next step in the proportionality analysis requires that the impugned provision "impair 'as littleas possible' the right or freedom in question": see Oakes at p. 139. In that regard, the City's impugnedBylaw totally impedes a responsible adult bicyclist from making a choice of weather to utilize the Citysidewalks to their best advantage, paying respect to other pedestrians and for their own safety avoidingdangerous and likely lethal travel on the shoulder of the roadway. Bicyclists should remain free to usepublic property sidewalks on the same terms as all other members of the community, namely walkingpedestrians and non motorized means of travel. The impugned Bylaw unfairly prevents the merepresence of a bicycle on an empty sidewalk, the repercussions being violent arrest procedure, fines andescalating into potential criminal charges once the Police enter the scene.

37. Even if The City submits that the impugned Bylaw allows a better opportunity for sharing of thepublic space by all members of the community, this would be false because, bicyclists, though validmembers of the community, are unreasonably excluded from use of sidewalks, further the impugned

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Bylaw does not strike a balance between competing interests of its citizens, it completely fails to achievethis goal and is not even within the realm of reasonable alternatives.

38. In my view, the provisions do not satisfy this minimal impairment requirement, largely for thereasons set out above in the discussion of the overbreadth as a principle of fundamental justice. If theprofessed concern of the impugned bylaw is for public safety, why does the impugned provision applyonly to bicyclists, and how could Motorcycles be grouped into the same category, yet be gas powered,weigh hundreds of pounds more and be governed by its own Motor Vehicle Statute?

(c) Is the Impact Disproportionate?39. The impugned City Bylaws affects only bicyclists who may wish, for safety reasons, to use thesidewalk as a path of travel. Bicyclists suffer a disproportionately severe result where they areprevented from traveling on the sidewalk, the alternative being, bicyclists have to travel on the shoulderof busy congested roadways, where driver inattention and or mistake would be a fatal consequence toa small, not easily seen traveler on a bicycle. The minor inconvenience of a pedestrian on foot,occasionally crossing paths with a bicycle, is not proportionally worth making a bicyclist travel on adangerous and potentially fatal shoulder of the roadway and does not qualify as a competing socialinterest.

40. However, prohibition against a responsible adult bicyclist traveling on an empty sidewalk, underthreat of violent arrest, detainment, escalating monetary fines, and possible criminal charges once thePolice are involved, does not promote public safety, accordingly, their lives and health are put at risk.This is not a minimal impact.

41. The Applicant is not seeking to have the City create more spaces to travel by Bicycles, or expandthe streets to create special protected barrier bicycle lanes, the Applicant is not seeking any otherexpenditure of public funds. The Applicant is simply seeking to have a draconian, unnecessary, abusedand misused, vague bylaw to be repealed, so that adult responsible, considerate bicyclists may share thesidewalk with pedestrians in an orderly and satisfactory fashion without being threatened by violent

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a rre st, d eta in me nt, e sc ala tin g m on eta ry fin es , a nd p ossib le crim in al ch arg es o nce th e P olic e a reinvolved, w hich in no w ay prom otes pub lic sa fety

4. Conclusion Regarding Section 142 . In the result, the Applicant b elieves the C ourt w ill conclude that the im pact of the provisions atissue is disprop ortiona te to the advantag es. T he rights at issue are very S ign ificant. T he im pairm en t isnot m inim al. The C ourt should find that the im pugned By law , to the extent to which they prohib it anadult, respon sib le b icy clist, from utiliz ing the pub lic sidew alks for their ow n safety a nd b enefit, are notjustif ied.

4 3 . THAT s uc h fu rth er a nd o th er g ro un ds a s th is C ou rt m a y d ete rm in e a nd p erm it.

THE CONST ITUTIONAL ISSUES TO BE RA ISEDARE :i) Mu ltip le s ec tio n 7 Charte r o f R ig hts and F reedoms v io la tio ns a s des crib e d a bo ve ;ii) Mu ltip le s ec tio n 15 (1 ) Char te r o f R ig h ts and F reedoms v io la tio n s a s des crib e d a bo ve ;iii) T ha t th is is a n app ro p ria te Court u nder s .2 4 ( 1 ) o f th e Canadia n Charte r o f R ig h ts and F reedoms to hea r,

de te rm ine and remedy t he above desc ri bed Cha rte r v io la ti ons .THE CONST ITUTIONAL PR INC IP LES TO BE ARGUED ARE:

a) THAT the Applicant has b een prevented b y sub ject By law BY-LAW NO . T -4 A BY-LAWRESPECTINGSTREETSAND SIDEWALKS 15. B ICYCLESAND MOTORCYCLESfrom the fu ndamenta lC hoice of w here to tra vel b y b icy cle. In th is case, to force b icy clis ts into a dangerou s situa tionand fine them for not comply ing , in the nam e of pub lic safety , is a serious the impingem ent onthe person 's lib erty an d security ; further, the B y law is O verb readth and A rb itra ry .

b ) F REDERIC TON POL IC E FORCE a nd THE C IT Y OF FREDERIC TON a re c ha rg ed w ith a p ub lic a ndleg is la ted du ty to en fo rce , upho ld and p ro tec t t he App lic ant 's Cha rt er R igh ts and F reedoms ;

c ) THAT th e A pp lic an t h as b e en th e v ic tim o f e xtreme Cha rte r v io la tio ns b y FREDERICTON POLICE FORCEand TH E C ITY O F FR ED ER IC TO N w ho appear to use the im pugned By law B Y-LAW NO. T-4Sect ion 15, firs t to m erely b e a tool to arb itrarily arrest suspects , w ho the P olice w ould b eotherw ise unab le to a rrest. b ecause the suspects w ould b e appropriate ly protected fromarb itrary arrest b y the C harter, and secondly to generate m oney for the city of Fredericton, likea hidden tax on the rand om pa sserb y b icy clist;

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d) THAT the Applicant has b een caused undue and unnecessary emotional and phy sical distress and sufferingas a result of s. 7, and 1 5(1 ) C harter violations;

e) Such further details as will b e provided at a full and proper hearing of these matters under s.2 4{ 1 ) of theCha rte r o f R ig hts and F reedoms.

STATUTORY PROV ISIONS OR RULES UPON WHICH THE APPLICANT RELIES:

1 . Canadian Charter of Rights and Freedom s2 . Law Society Act 1996 SNB3. Rules and Code of Conduct pursuant to Law Society Act 19 96 SNB4. Canadian Bar Association Rules and Code of Conduct5. Provincial O ffences Procedures Act6 . Criminal Code of Canada7. Evidence Acts NB and Canada8 . Interpretations Act C anada.9 . Right to Information and Protection of Privacy Act NB10. NB Police Act11. BY-LAW NO. T-4, A BY-LAW RESPECTINGSTREETSAND SIDEWALKS 15. BICYCLESAND

MOTORCYCLES1 2. Any such further Acts and Rules as may b e applicab le

IN SUPPORT OF THIS APPLICATION THE APPLICANT RELIES UPON THE FOLLOWING :A ll re co rd s, re po rts , sta tements , a ffid av its , d ocumen ts, p ho tographs, d ig ita l re co rd in gs and v id eo s perta in in g to th epolic e in ve stig atio ns , charges and p ro se cu tio n o f th e App lic an t th at a re in th e pos se ss io n o f th e Cou rt, A tto rn eyGeneral, M inister of J ustice, Dep artment of Pub lic Safety , NB Police C ommission, a ny and all other parties w ithrelevant information.

THE RELIEF SOUGHT IS:

1. to stay proceedings against an accused, in whole or in part, or for any other remedy undersubsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982 on accountof an infringement or denial of any right or freedom guaranteed under the Charter orotherwise.

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2. to declare unconstitutional, or of no force or effect, in whole or in part, any regulation orbylaw made pursuant to an enactment of the Legislature of New Brunswick, the Parliamentof Canada or any by-law of any municipality in the Province of New Brunswick.

3 . A declaration that the subject impugned Bylaw is contrary to the Charter and of no force andeffect pursuant to s. S2 of the Constitution Act, 1982, to the extent that they prohibit adults ofthe age of majority from the choices associated with engaging in otherwise relatively harmlessactivities, such as riding on a empty sidewalk, or respectfully sharing the sidewalk withpedestrians, including the ability to keep themselves from harm, by staying out of potentiallydeadly street traffic, when it is in their best interests to do so.

4. to declare BY-LAW NO. T-4, A BY-LAW RESPECTINGSTREETSAND SIDEWALKS15. BICYCLESANDMOTORCYCLES"No person shall ride or drive a bicycle or motorcycle upon any sidewalk exceptfor the purpose of crossing such footpath or sidewalk." And the relative section 16. PENALTIES,violate s. 7 of the Canadian Charter of Rights and Freedoms in that they deprive bicyclists of life,liberty and security of the person in a manner not in accordance with the principles offundamental justice, and violates section 15(1) of the Charter, therefore are not saved by s. 1ofthe Charter.

5. to declare BY-LAW NO. T-4 A BY-LAW RESPECTINGSTREETSAND SIDEWALKS15. BICYCLESANDMOTORCYCLES"No person shall ride or drive a bicycle or motorcycle upon any sidewalk exceptfor the purpose of crossing such footpath or sidewalk." And the relative section 16. PENALTIESare of no force and effect insofar and only insofar as they apply to prevent adult bicyclist fromthe choice of traveling on the sidewalks, sharing same with pedestrians in the interest of safety.

6. to declare that, in the interest of Charter protection the Fredericton Police Force do nothave the disproportionate powers to arrest, over a simple and menial bylaw infraction,which caries with it a menial monetary penalty.

7 . Just remedy for the Charter v io la tions and unnecessary suf fe ring caused to the Applican t, and8 . Any such o ther matter as th is cou rt deems appropr ia te .

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The App lican t may be served w ith documents per tinen t to this App licat ion at the address provided .3 " ADated a t F redericton , NB th is ..~ ....... d ay o f May , 2 0 12 ,

Andre Murray31 Marsha l Stree t,Fredericton N.B.E3A4J8

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Court File Number: 93818PROVINCE OF NEW BRUNSWICKPROVINCIAL COURTJUDICIAL DISTRICT OF FREDERICTONBETWEEN:

THE CITY OF FREDERICTON,RESPONDENT,and-

ANDRE MURRAY APPLICANT,

AFFIDAVIT (FORM 2)I, Andre Murray, of the City of Fredericton, County of York, in the Province of NewBrunswick, Artist, MAKE OATH AND SAY AS FOLLOWS:1. I Andre Murray as above indicated am Applicant in this matter, as such havepersonal knowledge of the matters herein deposed to except where otherwise stated;2. I Andre Murray have previously made Special Appearances to challengejurisdiction of the Court in this matter, without attorning to the Court's jurisdiction, Ihave been tentatively named the Defendant, and am proceeding honorably;3. I Andre Murray, am currently a Residential Leasehold Tenant residing at 31Marshall Street, Fredericton New Brunswick;4. I Andre Murray, have no warrant(s) for my arrest, have never had an arrestwarrant for my arrest, never had a criminal record and am a productive member ofsociety.5. I Andre Murray while maintaining the peace, was at approximately 4:20 p.m.violently arrested, dangerously football style tackled off my bicycle, Friday, October 7,2011, at or near 525 Aberdeen Street Fredericton N.B. by members of the FrederictonPolice Force. I did immediately inform the arresting police officers that I Andre Murray,"I do not consent and I waive all the benefits". I Andre Murray understand to be fact andI verily believe to be true, the subject members of the Fredericton Police Force cannotassume or presume jurisdiction over an individual, namely myself Andre Murray, oncethey are informed otherwise.

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6. I Andre Murray was provided a document which was referred to as a "ticket", Iwas informed that I would have to pay $50 for riding on the sidewalk with a bicycle,FREDERICTON MUNICIPALITY BY-LAW INFRACTIONS/G 219324. I AndreMurray, in due diligence and in good faith conditionally accepted the "ticket", upon proofof claim that the "ticket" applied to me and that I Andre Murray was obligated to acceptthe benefits offered and furthermore, I was obligated to accept the "ticket". I AndreMurray was never asked to endorse the document with a signature and I did not at anytime provide my signature to the subject document.7. The arresting Fredericton Police Force members were Constable David Beckand Constable L.Comuzzi.8. I Andre Murray verily believe that the Applicant has been prevented by subjectBylaw BY-LAW NO. T-4 A BY-LAW RESPECTING STREETS AND SIDEWALKS15. BICYCLES AND MOTORCYCLES from the fundamental Choice, in my own bestinterest, of where to travel by bicycle. In this case, to force bicyclist into a dangeroussituation and fme them for not complying, in the name of public safety is a serious theimpingement on the person's liberty and security, further, the impugned By law isOverbreadth and Arbitrary.9. I Andre Murray verily believe that because of this impugned bylaw, bicyclist areleft to choose between a breach of the Bylaws and the unreasonable consequences ofsame (Police assault, arrest, detainment, fines in the name of public safety), in order toobtain adequately safe path of travel or alternatively a dangerous path of travel along theroadway, exposing him or her to increased risks to significant health problems or evendeath. State action which has the likely effect of impairing a person's health engages thefundamental right under s. 7 to security of the person. The Applicant asserts that thisprohibition by the impugned City bylaw constitutes a deprivation of the security of theperson. The state's intrusion in this process interferes with the individuals' choice toprotect themselves, and is a deprivation of liberty within the scope of s. 7.10. I Andre Murray verily believe that the ability to avail oneself of adequateresponsible choices, with possibly fatal consequences hanging in the balance, is anecessity of life, that falls within the ambit of the s. 7 provision "life". The impugnedBylaw and enforcement of this policy, prohibit the choices that is necessary to protect theindividual from this risk. I believe that the impugned Bylaw and the operational policy ofthe City engages the right to life. The ability to decide for oneself, the consequence ofthose decisions being life or death, falls within the ambit of the s. 7 provision of thenecessity of life. Without the ability to make decisions to provide for those necessities,the entire ambit of other constitutionally protected rights becomes meaningless. The rootcause of death in this case derives as a consequence of The City of Fredericton mandatingthat people on bicycles must as a consequence of the impugned bylaw travel dangerouslyon the shoulder of the roadway, that act places an individual inharms away, then thatbylaw which prevents freedom of choice that can prevent death consequences clearlyengages the right to life.

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11. I Andre Murray verily believe that FREDERICTON POLICE FORCE and THECITY OF FREDERICTON are charged with a public and legislated duty to enforce,uphold and protect the Applicant's Charter Rights and Freedoms;12. I Andre Murray verily believe, in relation to bicycling, for the Applicant to beable to decide what to do and how to do it, to carry out one's own decisions and accepttheir consequences, seems essential to one's self-respect as a human being, and essentialto the possibility of that contentment. Such self-respect and contentment are fundamentalgoods for human beings, the worth of life itself being on condition of having or strivingfor them. The Applicant believes he is being deliberately denied the opportunity of self-respect and associated contentment. As a consequence the Applicant is sufferingdeprivation of his essential humanity. The choice made, by an adult, of where to travel bybicycle, with life-threatening consequences as a result, is such a decision which should beprotected by the Charter.13. I Andre Murray verily believe that the Applicant has been the victim of extremeCharter violations by FREDERICTON POLICE FORCE and THE CITY OFFREDERICTON who appear to use the impugned Bylaw BY-LAW NO. T-4 Section15, first to merely to be a tool to arbitrarily arrest suspects, who the Police would beotherwise unable to arrest, because the suspects would be appropriately protected fromarbitrary arrest by the Charter, and secondly to generate money for the city ofFredericton, like a hidden tax on the random passerby bicyclist;14. I Andre Murray verily believe that the Applicant has been caused undue andunnecessary emotional and physical distress and suffering as a result of s.7, and 15(1)Charter violations;15. I Andre Murray have been injured by Fredericton Police Force, Friday, October7,2011, during my arrest which is a disproportionate and heavy handed repercussion ofthe powers to arrest, that Fredericton Police Force claim to have regarding bylaw matters.16. I Andre Murray verily believe that this Court should declare that, in the interestof Charter protection Fredericton Police Force, do not have the disproportionate andheavy handed powers to arrest, over a simple and menial bylaw infraction, which carieswith it a menial monetary penalty. The investigation and arrest procedure should notcause more damage than the possible violation of the offence, this is disproportionate andunfair.17. I Andre Murray verily believe it is wrong to force bicyclist into a dangeroussituation, such as traveling on the shoulder of the roadway and consequentially fine themfor not complying, in the name of public safety, which is a serious the impingement onthe person's liberty and security, further, the impugned Bylaw is Overbreadth andArbitrary.

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18. I Andre Murray verily believe FREDERICTON POLICE FORCE and THECITY OF FREDERICTON are charged with a public and legislated duty to enforce,uphold and protect the Applicant's Charter Rights and Freedoms;19. I Andre Murray verily believe I have been caused undue and unnecessaryemotional and physical distress and suffering as a result of s.7, and 15(1) Charterviolations;20. I Andre Murray verily believe I have bee a victim of multiple section 7 Charterof Rights and Freedoms violations and multiple section 15(1) Charter of Rights andFreedoms violations as described within the subject NOTICE OF APPLICATION ANDCONSTITUTIONAL ISSUE (FORM 3);21. I Andre Murray verily believe that this is an appropriate Court under s.24( 1) ofthe Canadian Charter of Rights and Freedoms to hear, determine and remedy the abovedescribed Charter violations.22. This affidavit is made in support of a NOTICE OF APPLICATION ANDCONSTITUTIONAL ISSUE (FORM 3) to the Provincial Court of New Brunswick,Judicial district of Fredericton, by Andre Murray.

SWORN TO AT THE City ofFredericton,In the County of York andProvince of New Brunswick this

3 Y c L day of ; ;>t~ 2012.BEFORE ME:

ANOTARYPUB ICorCOMMISSIONER OF OATHSPROVINCE OF NEW BRUNSWICK

TENA M. McCULLOI";C;-;commissioner of Oath-My Commission Ex.pi , i ; ~ :December 3 1 S L " . ' , U I

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may 3, 2012, notice of application and constitutional issue and supporting affidavit combined (new...

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