The Crown's response to Menard's Statement of Claim is linked below. A real surprise! Instead of bowing down to the natural justice of Menard's demands and the unassailable legal logic of Menard's arguments the Crown said (in polite legalese) that Statement of Claim is a reeking pile of bovine excrement filed by an idiot. At least how that's how I interpret the Crown's Motion to Strike. Menard's acolytes might see some genius in his approach that I'm missing. If so they can berate me here on Quatloos.
The Crown wants the whole thing thrown out without leave to amend and costs from Menard for wasting their time by making them respond to monumental stupidity.
Motion to Strike
http://www.mediafire.com/view/448h5laf9 ... Strike.pdf
Affidavit
http://www.mediafire.com/view/9ukgz2ik8 ... idavit.pdf
The Crown stated;
9. The Defendant submits that while the Plaintiff seems to have a broad perception of who can be encompassed by the expression "other person employed for the preservation and maintenance of the public peace" it clearly appears from a reading of section 2 in its entirety that the legislator's intention was to grant peace officer status only to those individuals who derive such status from federal or provincial legislation.
10. The Supreme Court of Canada analyzed the definition of peace officer in Section 2 of the Criminal Code in its 1987 decision of R. v. Nolan and stated that:
On the level of principle, it is important to remember that the definition of "peace officer" in s. 2 of the Criminal Code is not designed to create a police force. It simply provides that certain persons who derive their authority from other sources will be treated as "peace officers" as well, enabling them to enforce the Criminal Code within the scope of their pre�existing authority, and to benefit from certain protections granted only to "peace officers".
[...]
I would therefore conclude that the definition of "peace officer" in s. 2 of the Criminal Code serves only to grant additional powers to enforce the criminal law to persons who must otherwise operate within the limits of their statutory or common law sources of authority.
11. The Plaintiff has not submitted any evidence that he is a member of any legislatively recognized law enforcement agency.
12. The Defendant submits that the Plaintiff therefore does not fall under the scope of the definition of "peace officer" within the Criminal Code as he fails to demonstrate in his Statement of Claim that he derives any kind of pre-existing authority granted by federal or provincial regulation.
13. In his Statement of Claim, it seems that the Plaintiff is trying to be recognized as a peace officer in order to create his own police force that would effectively not be subject to any legislative control.
Note - this statement is entirely wrong. Menard is not trying to create a "police force", he has constantly stated that he is trying to create a "peace force". Just ignore my comment in a prior post where I said exactly the same thing. Just dramatic license on my part. Menard doesn't want to go out willy-nilly arresting judges and juries or whomever disagrees with him, he wants to help us all peacefully. Just a big-hearted patriotic Canadian.
14. Moreover it is plain and obvious that his statement of claim discloses no reasonable cause of action;
[...]
Pick, pick, pick. Just because, as the Crown says, Menard has not submitted any facts supporting his argument and his claim has no basis in law there is no reason for the Crown to get on its high horse about all this. I'm sure if this went to court Menard would dazzle them all with his oral arguments.
So what does the Crown want? Check out page 10 which has a very succinct draft order for the judge to sign striking the Statement of Claim without leave to amend and allowing costs to the Crown.
The Crown cites R. v, Nolan, 1987, 1 S.C.R. 1212, 58 CR as it's only supporting caselaw. However if you are going with only one case the Supreme Court of Canada is a damn good place to pick one. You can read Nolan here;
http://www.canlii.org/en/ca/scc/doc/198 ... lii66.html
The issue at trial was whether military police, clearly acting under statutory authority to act as peace officers on base could also do so off base where the suspect was a civilian.
1. THE CHIEF JUSTICE The sole issue raised in this appeal is whether a military police officer is a "peace officer" within the meaning of s. 2 of the Criminal Code, R.S.C. 1970, c. C�34, as amended, when he or she is purporting to exercise authority over a civilian who is not subject to the Code of Service Discipline. Although the point is a narrow one, it is important to define the scope of authority of the military police with clarity so as to avoid a confusing overlapping of jurisdiction with the civil police.
The accused, a civilian, was seen driving out of a military base at an excessive speed and was followed by two military policemen and detained on a public highway. After observing the accused's staggering, his glassy eyes, and the strong smell of alcohol on his breath, the military police brought the accused to a police station and asked him to provide a breath sample. The accused refused. He was then charged with refusing to comply with a breathalyzer demand contrary to s. 235(2) of the Criminal Code. At trial, the accused was acquitted. The judge found that the military police officer was not a peace officer as defined in s. 2(f) of the Criminal Code and that, therefore, he was not authorized to issue a breathalyzer demand to a civilian. The Crown's appeal by way of a stated case was allowed. The Court of Appeal held that any person appointed under s. 134 of the National Defence Act is a "peace officer" for all purposes of the Criminal Code. This appeal is to determine whether a military police officer is a "peace officer" within the meaning of s. 2(f) of the Criminal Code when he is purporting to exercise authority over a civilian who is not subject to the Code of Service Discipline.
The full section of the Nolan decision quoted by the Crown reads;
18. The weight of authority points, therefore, to the conclusion that s. 2(f)(i) does not extend the authority of military police to act as "peace officers" throughout a province and in relation to all residents of a province, duplicating the role and function of the civil police. Of course, the mere preponderance of authority is not sufficient in itself to justify a particular conclusion before this Court, unless that authority is grounded in reason and fairness. In the present case, however, authority, common sense and principle all lead to the same conclusion.
19. On the level of principle, it is important to remember that the definition of "peace officer" in s. 2 of the Criminal Code is not designed to create a police force. It simply provides that certain persons who derive their authority from other sources will be treated as "peace officers" as well, enabling them to enforce the Criminal Code within the scope of their pre�existing authority, and to benefit from certain protections granted only to "peace officers". Any broader reading of s. 2 could lead to considerable constitutional difficulties. Section 92(14) of the Constitution Act, 1867 provides that the administration of justice falls within provincial legislative competence. See Di Iorio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152, and Attorney General of Quebec and Keable v. Attorney General of Canada, 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218. Although the ability of the federal Parliament to create a national police force has never been challenged and any such exercise of authority is presumptively valid, to treat s. 2 of the Criminal Code as a broad grant of authority to thousands of persons to act as "peace officers" in any circumstances could well prompt a constitutional challenge. In the context of division of powers, legislation should be interpreted, when possible, so that it is not ultra vires. The assessment of legislation under the Canadian Charter of Rights and Freedoms is, of course, subject to different considerations. See Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110.
20. I would therefore conclude that the definition of "peace officer" in s. 2 of the Criminal Code serves only to grant additional powers to enforce the criminal law to persons who must otherwise operate within the limits of their statutory or common law sources of authority.
Unfortunately for Menard the Supremes weren't happy about anybody and his uncle having the self-appointed right to arrest people;
23. Finally, it must be stressed that a reading of s. 2(f)(i) that recognizes no limitation on the power of military police to act as "peace officers" would have the effect of broadening considerably the power of the military police to arrest without warrant. That power is granted by s. 134 of the National Defence Act. In R. v. Dean (1965), 47 C.R. 311, at p. 319 (Ont. C.A.), Laskin J.A. warned that "the Courts ought not to adopt a construction to enlarge the power to arrest without warrant unless the construction is plainly demanded by the words used in the relevant statute". I would endorse that view without reservation. As emphasized by Le Dain J. in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 644, when a citizen is confronted with police authority, there is always a strong element of "psychological compulsion" in any police demand. Although this "compulsion" may be useful in the maintenance of a peaceful society, the citizen should not be subject to the demands of a confusing array of authority figures. One of the hallmarks of our free and democratic society is the relatively low level of interference by officers of the state in the daily lives of the Canadian people. The exigencies of crime prevention and detection do not require an interpretation of s. 2(f)(i) of the Criminal Code that would permit military police officers to exercise the powers of a "peace officer" in relation to all Canadians and throughout the country. I would therefore read s. 2(f)(i) as according to persons appointed for the purposes of s. 134 of the National Defence Act the additional powers of peace officers under the Criminal Code, but only in relation to men and women subject to the Code of Service Discipline.
The Supremes dismissed Nolan's appeal on the facts of the case since the military police had asked Nolan to stop while he was still on base. The Supremes decided that the MP's were peace officers while on base. While Nolan drove off base and was apprehended outside of the base area his detention and arrest was valid because "there was such a clear nexus between the offence committed on the base and the detention off the base that I am convinced that the military police retained their status and authority as peace officers."
31. In summary, the authority vested in the military police by virtue of s. 28(1) of the Trespass Regulations was sufficient to fulfil the requirements of s. 22.01(2) of the Queen's Regulations: the military police officer was performing "lawful duties" flowing from a "specific order or established military custom or practice". To perform those duties of enforcing the criminal law against civilians on a military base, it was necessary, furthermore, to have the powers of a peace officer. I have already emphasized that the detection of inebriated drivers clearly falls within a number of the enumerated "matters" in s. 22.01(2). I would conclude, therefore, that the arresting officer was a peace officer within the meaning of s. 2(f)(ii) of the Criminal Code when read with s. 22.01(2) of the Queen's Regulations and s. 28(1) of the Trespass Regulations. Being a "peace officer", the military police officer in the instant case was entitled to invoke the statutory authorization of s. 235(1) of the Criminal Code and to issue a breathalyzer demand. I expressly leave aside the question what authority is vested in military personnel for the purposes of Part XI of the National Defence Act which relates to extraordinary use of the military in aid of the civil power. That question clearly is not raised on the facts of the case at bar.
32. One issue must yet be resolved. Although the offence took place on a defence establishment, the actual detention of the accused occurred on a public highway after the military police had followed Mr. Nolan out of the gates of the base. The question arises whether the military police retained their status and authority as peace officers once they left C.F.B. Shearwater. On the particular facts of the instant case, I have no difficulty in concluding that they did. The accused was seen committing a traffic offence on the base. The officers only saw the accused as he was speeding out of the gates of the base and, in order to enforce the law, the military police officers had to follow Mr. Nolan off the base. There is absolutely no evidence that the accused attempted to evade the military police, so the circumstances do not really raise the issue of "hot pursuit". Given the instantaneous police warning to the accused to stop his vehicle and the detention immediately outside the gates of the base, there was such a clear nexus between the offence committed on the base and the detention off the base that I am convinced that the military police retained their status and authority as peace officers.
So no comfort for Menard there.
Menard is aware of Nolan, he had it brought to his attention at JREF back in 2011 when he was babbling on about the entirely legal C3PO force he was going to create, but for some reason he neglected to cite it in his Statement of Claim. Probably just slipped his mind because he's preoccupied with all the high level executive work he's doing to help his fellow Canadians by making his free money debit card dream into a reality. The man just can't stop giving.
When Menard filed the Statement of Claim he posted a gleeful self-satisfied shot of him triumphantly holding it on his Face Book page. Think he will do the same with the Crown's response? Or that he will tell them about this when it all goes down in flames? Don't worry if he doesn't, you'll read it here.
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