Below are the transcripts. I was unable to obtain standing on behalf of public interest so it is now the Criminal Lawyers Association that has been contacted to aid in this endeavour.

——————————————————————————————————————————————————

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OCTAEVIUS ALTAIR

Applicant

-and-

ATTORNEY GENERAL OF CANADA and A.G. OF ONTARIO

Respondents

**********

M O T I O N

BEFORE THE HONOURABLE, MR. JUSTICE BELOBABA

on Monday, March 30th, 2009, at TORONTO, Ontario

**********

APPEARANCES:

O. Altair, Mr. Applicant (Unrepresented)

R.W.Y. Lee, Esq. Counsel for Respondent

N. Dennison, Ms. Counsel for Respondent

THE COURT: Good morning. Okay, good, so we can now start with the only matter that is before us today. Ms. Dennison, you are here?

MS. DENNISON: Yes.

THE COURT: Mr. Lee, good morning to you.

MR. LEE: Yes.

THE COURT: Mr. Altair?

MR. ALTAIR: Yes.

THE COURT: Good morning to you. And this is, to say the least, an interesting application or proceeding that has been brought by Mr. Altair to challenge the constitutionality of the recent amendment to the Criminal Code that raised the age of consent for having sex from 14 to 16 and Mr. Altair has not been charged with any offence under the new legislation, but you are simply, from your point of view…

MR. ALTAIR: To prevent anyone from being charged.

THE COURT: …to prevent anyone from being charged. You are here to vindicate the public interest, as you see it, and to try to bring this application or action, because it’s not clear what it is…

MR. ALTAIR: We could talk about that later, yes.

THE COURT: …to bring this to see if a Judge would, indeed, agree with you and find that the law is in some way and for some reason unconstitutional, right?

MR. ALTAIR: Sure.

THE COURT: Okay. So, Ms. Dennison, you are bringing the motion to dismiss the proceeding in the altogether, aren’t you?

MS. DENNISON: Yes, that’s correct.

THE COURT: And as an alternative claim, you are also looking to strike it out as non-disclosing a reasonable cause of action?

MS. DENNISON: That is correct.

THE COURT: All right.

MS. DENNISON: I just wanted to ensure that the Court had all the material before them, which would include a copy of the Attorney General’s factum, motion record, three books of authorities. Mr. Altair has also provided written submissions, as well as material in support of his written submissions and I hope you have received all of that.

THE COURT: I am looking for the written submissions of Mr. Altair. I don’t think I have that.

MR. ALTAIR: Oh, dear. I delivered it to your secretary last week on the 20th, or 19th, Friday. Oh, do I have to speak into that?

THE COURT: Yes, you really should stand up when you speak to me.

MR. ALTAIR: Oh. It would have been — oh, that’s it. You’ve got it right there. Right, that’s it. Sorry, I didn’t bind it.

THE COURT: Let me just take a few minutes to look at this, okay.

MS. DENNISON: Certainly.

THE COURT: I have your factum here, Mr. Altair.

MR. ALTAIR: There should be the factum, as well as the statement of claim and the notice of constitutional question.

THE COURT: No, I have all of that. Just the factum, though, has a bunch of appendices, right, of various press releases and things of that sort, right. Okay, let me just look at the factum quickly.

Where is the container for this? I don’t want to lose — okay, yes, we will just put this over here.

Okay, Ms. Dennison, I have gone through your factum — your factum, along with your colleague, Mr. Lee’s written argument and I really just need to hear argument on one point. In fact, I need Mr. Altair to respond to just one point.

MR. ALTAIR: Oh, all right.

THE COURT: And you have read the factum of the Attorney General of Canada?

MR. ALTAIR: Oh, yes. That’s why I brought it. I thought we would have a chat and follow along. I don’t know how these things…

THE COURT: Sir, you should stand up — stand up when you address the Court.

MR. ALTAIR: Oh, dear, I am sorry. Yes.

THE COURT: Okay, this is something that clearly concerns you and I don’t deny you the right, at least as you see it, to be concerned about it. It is something that may end up being litigated by you or by someone else where these constitutional issues and arguments may well be deployed, but the first hurdle you have and the hurdle that you have not cleared is that you don’t have standing to bring this lawsuit.

MR. ALTAIR: I thought that’s what we were here for.

THE COURT: No, I know, but…

MR. ALTAIR: Sorry.

THE COURT: …I am just saying to you — I am saying to you, sir, that the law could not be clearer on this and I want you to look at paragraph 39 of the Attorney General’s factum, because it’s set out in that paragraph.

MR. ALTAIR: Which book would that be in?

THE COURT: That’s called the factum of the Attorney General.

MR. ALTAIR: Oh, this one here. Oh, okay. I was under the impression that the reason why they were challenging was because I didn’t have standing.

THE COURT: Yes, you don’t have standing.

MR. ALTAIR: And, yeah, the purpose was to obtain standing. That’s what I thought.

THE COURT: No, you — the point is, you are claiming as a public interest litigant. You are not charged and before the Criminal Courts of our land.

MR. ALTAIR: And we don’t want anyone to be. That’s why I am here.

THE COURT: Right and you are simply someone who is interested in seeing that a certain law be tested constitutionally…

MR. ALTAIR: Correct, yes.

THE COURT: …and ideally, from your point of view, be set aside, all right. The Canadian Law, in fact, most laws in western society, don’t allow a public interest litigant to just come forward and as officious interveners start to challenge laws at whim to clear the public interest standing hurdle and that has been done in a very narrow category of cases. You have to satisfy two or three very critical tests. Failing any one of them means you cannot be a public interest litigant and this is set out in paragraph 39 of the factum — well, actually, it starts sooner than that. It starts on paragraph 33:

“No standing to claim violation of the rights of others.”

And the Attorney General sets out the law on this point and by the time they get to paragraph 39, this is the point that catches my attention, Mr. Altair and this is where it’s clear that this is not a case where any Court would allow you to proceed simply out of the public interest and let me read this out.

“The claim for public standing most clearly fails the third part of the test. Mr. Altair has not shown that there is no other reasonable and effective way for the issue to be brought before the Court.”

In other words, the test says you have got to show to the Judge there is no other effective way for this issue to be brought before the Court, unless I, Mr. Altair, get standing to litigate this on behalf of concerned citizens. Here, you are in the Criminal Code. Here, everyday across our fair land, sadly, people are being charged with criminal offences and sadly, especially under the sexual offence category, there are dozens, if not hundreds, of men and women that are being arrested everyday for various transgressions, various violations of the Criminal Code and that’s why they say in paragraph 39:

“The prosecutions under many of the offences in question occur on a regular basis. The validity of the provisions, as amended in 2008, will no doubt be questioned in the course of future prosecutions and Courts hearing these Charter challenges in future prosecutions will have the benefit of actual factual disputes featuring specific circumstances of actions accused persons and victims.”

MR. ALTAIR: Well, when I mentioned in my factum the violation of Charter — of s.15, I am speaking about what we have almost here, really, is a conflict of values, because there is simply no reason for these laws to be invented. I mean, we’re talking about a portion of the population that have been adults in this country that is currently in Canada for hundreds of years. Raising the age of sexual consent one year, is the same as raising it ten. It’s like raising the voting age.

THE COURT: Right.

MR. ALTAIR: It’s like — it’s like…

THE COURT: But those are Charter arguments. I am not there yet.

MR. ALTAIR: Oh.

THE COURT: I am not even talking about the other arguments that the Attorney General is making about s.15 or the other Charter claims. I am not even at the constitutional issue.

MR. ALTAIR: Oh.

THE COURT: I am simply at the very first, what’s called the threshold, the doorway issue.

MR. ALTAIR: Say, yeah, I thought that’s what we were here for.

THE COURT: Can you — can you be in this courtroom, in any courtroom in Canada, as a public interest litigant challenging these Criminal Code provisions in these circumstances and the answer, I think, is unequivocally, no, you cannot.

MR. ALTAIR: Oh, that’s a shame.

THE COURT: Why…

MR. ALTAIR: I was looking forward to it, you know.

THE COURT: Why, Mr. Altair? Because there are other reasonable and effective ways for the issue to be brought before the Court and that’s right from the Supreme Court of Canada, a line of cases that have said, basically, Mr. Altair, if there is no other way, if there is no other way for this matter to be heard by a court of law, then the public interest litigant should be given standing to voice the concerns on behalf of everyone or on behalf of his group of concerned individuals. But here, again, to repeat what I have said, the Criminal Code is active every day, from your point of view, unhappily arresting and prosecuting people in circumstances where they have allegedly violated the age of consent. In this case it would be having sex with boys and girls under the age of 16, if they are not within that five year, I think, age proportionality provision. So, everyday, literally, there are other men and women who are being arrested that will have the opportunity to test the validity of this law in the context…

MR. ALTAIR: Yeah, see, I was hoping I could do that before that happened, before anyone was tried, but no, eh? That’s a shame.

THE COURT: No, not with the Criminal Code where you have such a ready and active avenue of prosecutions where the Court will have the benefit of having John Doe or Jane Smith stand up and say I am in jail, I am charged, my liberty is at stake, I am entitled to bring and mount all these constitutional arguments to prove to you, Your Honour, that the law is unjust, unfair, unconstitutional. Here are — here is the evidence, here is what my lifestyle is like, what my interests are like and the Court then has the ability, with a very strong evidentiary foundation, to look at the person who is charged voicing a constitutional grievance or complaint and test against the Attorney General’s defence of the law whether or not the law is valid or invalid and to that extent, this massive undertaking on your part, which is documented extensively, to say the least, is to no avail. I mean, my advice to you — my advice to you is to be on the lookout for cases where people are charged and then come to their assistance with this additional line of argument…

MR. ALTAIR: I am prepared to do that.

THE COURT: …or, and I am not advising this at all, yourself…

MR. ALTAIR: Well, you know, I don’t…

THE COURT: You know, but there is no other…

MR. ALTAIR: …I don’t break the law.

THE COURT: …choice, sir, and that’s why, frankly, with respect to you, for what I think is still a very much misguided — a misguided action on your part, but that’s your right to bring a lawsuit as you deem appropriate. I found that in reading the materials, once I came across and reviewed the issue of the law on standing, which I did diligently, there was just simply no way in the world that this case could go forward…

MR. ALTAIR: Well, that was quick, then. I thought we would be here a lot longer than that.

THE COURT: …unless — unless you are, in fact, charged with this offence.

MR. ALTAIR: Oh. All right, I guess there is nothing we can do about that.

THE COURT: Now, so, I don’t have to hear from you, Ms. Dennison or you, Mr. Lee. Thank you both for the materials you have submitted. I will endorse the record accordingly. I will not say anything about the Charter issues, Mr. Altair, because I don’t need to get there.

MR. ALTAIR: Oh.

THE COURT: What I am saying is that the threshold has not been crossed…

MR. ALTAIR: Oh, I’m sorry, you are still talking. I am sorry about that.

THE COURT: You don’t — you have not established standing in this kind of a case where, typically, the argument is and should be made by people who are charged with the offence.

MR. ALTAIR: You see, I was a bit confused. I thought that’s what we were here to do today, to prove standing. I thought that’s what this was about. I guess not.

THE COURT: Well, no, you are, in a sense, to prove standing, but what I am saying to you, sir, is that there is no legal authority that I am aware of or that you could find, nor have you found any, that would provide you, as a public interest litigant, with the ability to challenge this law outside of a reality of being charged with the offence. It’s just not the way the system works. Otherwise — well, no need to explain the policy behind it. I think you understand.

MR. ALTAIR: Hm-hmm. No, I think I understand, yeah. That’s fine.

THE COURT: So…

MS. DENNISON: Your Honour, we took the liberty of drafting a draft order. We would like to…

THE COURT: Okay. Show it to Mr. Altair, though, would you?

MS. DENNISON: Yes, certainly.

MR. ALTAIR: Oh.

MS. DENNISON: It doesn’t say on what basis, so your endorsement would still be…

THE COURT: Yes, the endorsement is simply on the base of standing, not on the basis of the Charter challenge.

MR. ALTAIR: Well, I guess there is nothing we can do about that. I will have to — I agree, you know, if that’s the case.

MS. DENNISON: It says the basis of it is — this just says, “This Court orders that the proceeding be dismissed.”

THE COURT: Yes.

MS. DENNISON: So, I think that’s fair, in the circumstance and you can certainly endorse the record to reflect Your Honour’s opinion that there is no standing in this case. I apologize for it not being stapled.

THE COURT: Okay, so, I have signed one order, Mr. Altair and counsel. I will read the endorsement out to you.

R E A S O N S F O R D E C I S I O N

Belobaba, J. (Orally):

On March 30, 2009, Ms. Dennison and Mr. Lee for the Attorney General of Canada, Mr. Altair in person; motion by AG Canada to dismiss the proceeding brought by Mr. Altair.

The proceeding appears to be a combined application and statement of claim. I will refer to it as an action. The motion is granted. The action is dismissed primarily on the ground that Mr. Altair has no standing to bring this lawsuit. He has not shown that there is no other reasonable and effective way for the issue to be brought before the Court. Indeed, the more appropriate avenue is via a defendant who has been charged with the relevant criminal offence.

Order to go as per the order signed today and the order signed today, again, makes clear that this proceeding is dismissed.

Counsel, anything further?

MS. DENNISON: Thank you, Your Honour. Not that I am aware of.

THE COURT: No?

MS DENNISON: It’s my first civil case, so, thank you.

THE COURT: Okay, there is no request for costs, then?

MS. DENNISON: I don’t think so, in the circumstances.

THE COURT: Very good.

MS. DENNISON: Thank you.

MR. ALTAIR: Do I sign a piece of paper?

THE COURT: No.

MR. ALTAIR: Oh, okay.

THE COURT: No, you will get a copy of the endorsement, sir and a copy of the order…

MR. ALTAIR: Oh, okay.

THE COURT: …and that will be that. Thank you both — all three of you very much.

MS. DENNISON: Thank you.

***Adjourned***

*********

This is to certify that

the foregoing is a true

and accurate transcript

of my recordings to the

best of my ability and

skill.

_________________________

Jacqueline M. Johnston-Fierro

Official Court Monitor

March 30,2009

————————————————————————–

We have all documentation ready to restore law and order to Canada. Do feel free to contact the criminal lawyers association and impress upon them the urgency in this matter to obtain standing on behalf on any client charged for this gross violation of the Canadian people by the sick, Federal Government.

Criminal Lawyers Association