Memorandum

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Court of Appeal File No.___________  Court of Appeal Registry Vancouver

3ON APPEAL FROM: The Supreme Court of British Columbia, Vancouver Registry, His Lordship the Honourable  4 Mr. Justice E.R.A. Edwards and his Order as made June 8th, 2001 in:  5 6 7

Supreme Court File No S004040 Supreme Court Registry Vancouver 

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In the British Columbia of Appeal Court (The Supreme Court of British Columbia)

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MICHAEL KAPOUSTIN et al

10Between

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Plaintiffs (Appellant)

14And

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REPUBLIC OF BULGARIA ET AL Defendant (Defendant)

18And

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APPELLANT'S MEMORANDUM

20Mr. Michael Kapoustin 21Sofia Central Penitentiary 2213 General Stoletov Street 23Sofia, Bulgaria 24 25

_________________________ Appellant Representing Himself

26Mr. Patrick Lewis 27Sugden, McFee & Roos 28Barristers and Solicitors 29200­375, Water Street 30Vancouver, British Columbia 31V6B 5C6 Canada 32 33

1Form 6 - Rule 12 [am.B.C.Regs.221 84, ss.11-12.]

_________________________ Counsel for the Defendant 

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CONTENTS OF MEMORANDUM [1]COMES NOW MICHAEL KAPOUSTIN, the Plaintiff Kapoustin and presents this Memorandum of facts and law on his application for leave to appeal. The Memorandum to speak before the Court in the form of prosopopoeia for the Plaintiff Kapoustin as Plaintiff Kapoustin, it providing the only means available to a person deprived of liberty to speak on the most fundamental of his democratic rights as a citizen, the right to a full and fair judicial hearing of his lawful complaints.

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Part I.

[I.A]

STATEMENT OF FACTS

Course of the Proceedings

[2]Following is a history of the proceedings before the trial court, including relevant events leading up to the commencement of the lawsuit and the present applications before the Appeal Court. A.1 ORIGINATING THE PROCEEDINGS

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[3]On July 25th 2000, the Plaintiff Kapoustin together with his wife and son, the "Plaintiffs", as residents of the province and citizens of Canada, brought a civil action before the British Columbia Supreme Court. Plaintiffs named residents of the Republic of Bulgaria as joint and several Defendants. Named in the complaint are Mr. Stefcho Georgiev, Mr. Mario Stoyanov, Ms. Emilia Mitkova, Ms. Kina Dimitrova, Ms. Iveta Anadolska, Mr. Dimitar Shackle as well as the Republic of Bulgaria, then represented by Mr. Muravei Radev former Minister of Finance.

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[4]Also named as a joint and several Defendant in the lawsuit is a resident and citizen of Canada, Mr. Derek Doornbos an employee of the R.C.M.P. and servant of the crown at its Embassy to Austria at Vienna.

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[5]All Defendants have received originating documents. In the case of Defendant Doornbos service was affected through the facilities of his employer, the Government of Canada, R.C.M.P., at Ottawa and its office at the Embassy of Canada to Austria.

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[6]By November 15th 2000 all the Bulgarian Defendants cited above were in default of appearance. As of this application both the Defendant, Doornbos, nor the Crown as his employer, has filed any appearance in the above styled cause of action.

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A.2 APPLICATIONS TO THE REGISTRAR

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[7]On or about November 23rd 2000 the Plaintiff Kapoustin Kapoustin delivered a number of Rule 17, Rules of Court applications to the Supreme Court of British Columbia [SCBC] Registrar. The Plaintiffs applied for desk orders entering judgement for an unspecified amount, jointly and severally, against those Defendants found in default of appearance.

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[8]These applications were returned. The SCBC registrar remarked the affidavits of service and attached documentation was deficient. The Plaintiff Kapoustin undertook to address the deficiencies.

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[9]On December 7th 2000, the Defendant Bulgaria made a defence in the form of a letter from the Ministry of Justice Republic of Bulgaria from the then deputy minister Ms. Z. Rousseva. The letter in response to the Plaintiff Kapoustin having served the Ministry of Justice a copy of his statement of claim and writ against the Defendant.

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[10]On December 9th 2000 prisoner administrators of the Sofia Central Penitentiary served the Plaintiff Kapoustin the prepared defence of the Defendant Bulgaria.

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[11]On December 29th 2000 the Plaintiff Kapoustin filed with the Registrar of the SCBC a copy of the Defendant government's (Republic of Bulgaria) written defence. The Plaintiff Kapoustin noted the statement of defence to be discursive, and its form as well as style not conforming to the court's practice.

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[12]The Plaintiff Kapoustin prepared a Reply to the Defendant Bulgaria and a separate Notice to Admit facts and documents. The form required by the Rules of Court was observed, and the Reply as well as Notice served in the time fixed by the Rules. No response has been forthcoming from the Defendant within the time fixed by the Rules.

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[13]In January 2001 or thereabouts the Plaintiff Kapoustin Kapoustin corrected the previous deficiencies identified by the trial court [SCBC Registrar] in November 2000. Again applications for desk orders were submitted. The Plaintiff Kapoustin Kapoustin requested orders declaring all the Defendants except the Defendants Bulgaria and Doornbos in default of appearance. It further requested default Judgement be entered against the Defendants for an unspecified amount.

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[14]As well the Plaintiff Kapoustin Kapoustin brought other applications before the SCBC Registrar, his petitions raising further issues of, inter alia, extending the time for service and response, the manner of ex juris service, and a question on how the Plaintiff Kapoustin, as an indigent person deprived of his liberty, was to appear or otherwise be represented in proprio persona before the trial court. The orders petitioned for are as follows:

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1.

Desk orders to enter judgement against all the Defendant's in default of appearance, with the exception of the Defendant, the Government of the Republic of Bulgaria and Defendant Doornbos.

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2.

An ex parte order extending time, by 90 days, for all parties to affect any acts required under the Rules of Court.

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3.

An ex parte order to require each party of record comply with Rule 13(12)(c), Rules of Court and the Hague Convention of the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters ("Hague Convention"), at once respecting and observing the declarations made to the Hague Convention by the Republic of Bulgaria. This to include officials or agencies of the Defendant responsible for delivering documents to this Plaintiff Kapoustin.

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4.

An ex parte order requiring the Defendant have its agencies (1) conduct the Plaintiff Kapoustin in custody to any hearing as may be fixed by the Defendant or at any trial before the SCBC; or (2) to alternatively permit the incarcerated Plaintiff Kapoustin to communicate electronically or transmit in writing his pleadings on any applications the court required be spoken to. This order in particular relied on the inherent jurisdiction of a court of Canada to guarantee all litigants their s. 15(1) Charter of Rights and Freedoms, (hereinafter the "Charter") and the procedural relief available from the Rules of Court as found under Rules 40 and 59, particular attention placed on the provisions in 40(4), 40(40), 59(3) and 59(4).

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5.

An order declaring the Plaintiff Kapoustin indigent, the court asked to provide him the appropriate relief from court fees.

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[15]On January 21st 2001 the Plaintiff Kapoustin Kapoustin's applications are again returned by the SCBC Registrar, the Duty Master having requiring, inter alia, that the applications made be spoken to by the Plaintiff Kapoustin Kapoustin or a legal representative and a payment of $62.00 filing to be fee per application. The Duty Master made the Order notwithstanding the Plaintiff Kapoustin Kapoustin having made clear in his petitions and affidavits that he could neither appear nor pay the fees.

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[16]By February 8th, 2001 only one appearance had been filed with the provincial court, that of the Defendant Bulgaria.

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[17]On February 24th, 2001 the Plaintiff Kapoustin learned of the Defendant' Bulgaria having retained legal counsel in Vancouver, Attorney Patrick Lewis, Mr. Lewis filing the appearance. No other Defendant has since filed an appearance or offered a defence before the trial court.

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[18]On or about April 2001, for the third consecutive time, the Plaintiff Kapoustin Kapoustin again amended and re-filed his petitions with the SCBC Registrar, having this time asked his father, Robert Kap pay the $62 dollar fee and at least have the Court judicially review and rule on his indigence application. The Plaintiff Kapoustin Kapoustin identified the circumstances of his incarceration and poverty, pleading to the Court that his circumstances prevented him from appearing having asked the Duty Master to heat his pleadings only in writing and ex parte of the Defendant.

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A.3 DECISIONS OF THE DUTY MASTER AND CHAMBERS JUDGE

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[19]On April 18th 2001, the Duty Master reviewed all the applications and again ordered them returned. The learned Master required that all applications be fixed for a hearing and spoken to by the Plaintiff Kapoustin Kapoustin or his legal representative.

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[20]On June 5th 2001, the Plaintiff Kapoustin Kapoustin having relied on s. 24(1) of the Charter and form 61 Rule 53(7), Rules of Court proceeded to petition the SCBC for relief from its’ Duty Master's order. As grounds for relief the Plaintiff Kapoustin Kapoustin stated the following:

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1) Plaintiff Kapoustin’s rights as guaranteed under s. 15(1) of the Charter are breached by the Duty Master's Order having the effect, if not intent, of "exceptionally" prejudicing the rights of one party, the Plaintiff Kapoustin, more than it would any other person and solely because of the Plaintiff Kapoustin's distinct social status. This unintended prejudice demonstrably occurs in any application of the Order to a person having the status of an indigent person deprived of his or her liberty.

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2) The Plaintiff Kapoustin's asserted to the Chambers Judge that the Master's application of Rule 41(16.5(b)) having the affect of being discriminatory when applied to him or any citizen in a similar situation of having lost his right of self-determination as a consequence of a foreign incarceration as well as the capacity to earn an income. Such circumstances are aggravated when having one party in the proceeding incarcerated by the other party in the same proceeding having a legal interest adverse to that of the person seeking relief.

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3) The Plaintiff Kapoustin asserted to the Chambers Judge that the Duty Master's order to him to either appear or alternatively hire a lawyer was unreasonable, the Master having placed an onus on the Plaintiff Kapoustin in the nature of a judicial Order requiring he as a person deprived of liberty do something that was impossible and therefore unreasonable to expect him to do.

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4) The Order must in principle be wrong in law as it results in placing an unreasonable reverse onus on the Plaintiff Kapoustin such an as it could be seen to be prejudiced in favour of one party, the Defendant Bulgaria.

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5) It was identified to the learned Chambers Judge that the party most negatively affected by the Master's order was the imprisoned Plaintiff Kapoustin Kapoustin who is kept by the Defendant Bulgaria from complying with the terms of the Duty Master’s reverse onus.

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6) This Plaintiff Kapoustin argued to the Chambers Judge that if Defendant Bulgaria remained unchecked, or the Order remained unmodified, the effect would be the continued prejudicing of not only the Plaintiff Kapoustin Kapoustin’s s. 15(1) Charter rights but would bring the very outcome of any future trial court proceeding into question as to its procedural fairness.

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7) On appeal the Plaintiff Kapoustin insisted to the Chambers Judge that the factors of incarceration and indigence created a disadvantaged class of person [citizen] by the very fact of his or her imprisonment. That these factors, when combined, acted as a very real legal disability and required a special standard of judicial review and care necessary to procedural fairness.

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8) It was asserted to the learned Chambers Judge the Duty Master as having had the constitutional duty and jurisdiction to review and answer all the Plaintiff Kapoustin’s complaints made under s. 24(1) of the Charter, notwithstanding the Plaintiff Kapoustin as an indigent prisoner could only speak to the Court in writing.

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9) The Plaintiff Kapoustin Kapoustin claimed to the Chamber Judge that his Charter grievances were within the ambit of s. 15(1). They are real, not imagined, and he asked the Court to exercise its procedural possibilities under the Rules, as well as applicable enactments and international treaties in order to secure for the Plaintiff Kapoustin as a citizen of Canada his rights before the trial court, notwithstanding he is a person deprived of liberty and property by the Defendant Bulgaria, the party responsible for the Plaintiff Kapoustin’s afflictive status.

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[21]On June 11th 2001 the learned Chambers Judge, His Lordship E.R.A. Edwards, returned the appeal of the Plaintiff Kapoustin and requiring as the Duty Master, the Plaintiff Kapoustin appear as petitioner or have his legal representative appear before the Court.

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[22]On June 23rd 2001, the SCBC Registrar advised the Plaintiff Kapoustin’s father, Robert Kap of His Lordship's decision to order the Plaintiff Kapoustin must appear to have his Appeal spoken to, however, the Court provided no direction as to how as an incarcerated and indigent person the Plaintiff Kapoustin was supposed to comply with the terms of the Order. Furthermore, no answer was forthcoming from His Lordship Edwards J., as to the Plaintiff Kapoustin Kapoustin’s complaint having accused the Defendant Bulgaria's of unlawfully refusing to agree or otherwise undertaking to secure his appearance in police custody before the court and physically obstructing and intimidating him from continuing or defending in his suit at law.

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His Lordship provided no direction to the Plaintiff Kapoustin Kapoustin on how, or where he could secure the funds or legal aid necessary to retain an attorney to represent him, in proprio persona, at a hearing of his applications. The court having known, or should have known, that as a rule and practice legal aid is not available to incarcerated persons in pursuit of their civil claims.

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[23]On June 25th 2001 the Plaintiff Kapoustin advised the SCBC Registrar that he intended to appeal the Duty Master's Order and decision of His Lordship Edwards J. to the British Columbia Appeal Court.

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[24]On June 26th 2001 the SCBC Registrar advised the Plaintiff Kapoustin he had received the letter notifying him of the Plaintiff Kapoustin's intention to appeal. Also the SCBC Registrar advised the Plaintiff Kapoustin that only the Defendant Republic of Bulgaria had to that date filed an appearance other Defendants remained in default.

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[25]On July 5th 2001, the Plaintiff Kapoustin advised the Registrar of the British Columbia Appeal Court ("B.C.A.C") of the nature of his appeal, and the practical consequences of his incarceration and indigence. The Plaintiff Kapoustin asked the Registrar to provide him with some direction as to the procedures and practice of the B.C.A.C., the Registrar graciously consented and has provided the Plaintiff Kapoustin with the badly needed information and assistance.

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A.4 FIRST HEARING - JULY 13TH 2001

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[26]The Defendant Bulgaria’s lawyer fixed the date of the first hearing before the trial court for July 13th 2001 before a Master; the Defendant relied on the provisions of Rule 65, Rules of Court.

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[27]On July 6th 2001 the Plaintiff Kapoustin Kapoustin made a written enquiry with the SCBC Registrar on how he should proceed under circumstances of the Duty Master's order having required he appear or retain an attorney. Would the Master at the July 13th court session "hear" only in writing, the Plaintiff Kapoustin Kapoustin appearing as the Respondent? The Plaintiff Kapoustin Kapoustin having been left no alternative since neither the Duty Master [providing procedural relief], or alternatively the Defendant Bulgaria [providing escorted conduct] are prepared to undertake to make accommodation for the Plaintiff Kapoustin's physical limitations in bringing his arguments or alternatively himself to the hearing scheduled before the Master.

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[28]Understandably the SCBC Registrar could provide no answer to the Plaintiff Kapoustin beyond a willingness to deliver any documents the Plaintiff Kapoustin Kapoustin cared to file and to set before the court at the time of the hearing. The Master would make determination what if anything to do next.

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[29]Also in July the Plaintiff Kapoustin contacted both the Defendant Bulgaria through its Ministry of Justice as well as the Defendant’s legal counsel in Vancouver. The Plaintiff Kapoustin advised both the Defendant and its counsel of his intention to appeal the decision of His Lordship Edwards J.

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Furthermore, the Plaintiff Kapoustin Kapoustin advised Vancouver counsel of his an intention to bring other applications, and additional arguments at the time of hearing fixed for July 13th 2001. As well the Plaintiff Kapoustin advised counsel of new evidence to be filed in response to his motions to dismiss under Rule 13, jurisdiction simpliciter, and Rule 14, forum non conveniens.

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In order to do so the Plaintiff Kapoustin Kapoustin requested additional time from the Defendant Bulgaria, having made a written plea to the newly elected government of the Republic of Bulgaria and asking it to direct the counsel in Vancouver to fix a later date for the hearing.

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[30]The July 13th hearing was by consent adjourned to August 24th 2001.

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A.5 SECOND HEARING - AUGUST 24TH 2001

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[31]On August 24th 2001 legal counsel for the Defendant Bulgaria appeared before a SCBC Master to plead the Defendant's jurisdiction simpliciter and forum non conveniens applications. The Plaintiff Kapoustin Kapoustin, unable to obtain legal aid was not represented. Defence Counsel had fixed the hearing for approximately 2 hours, the Plaintiff Kapoustin having previously made objections the time fixed as to short advised Defence Counsel that issues of simpliciter and forum non conveniens turned on more than the points of law raised in his Rules 13 and 14 applications.

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The Plaintiff Kapoustin identified to Counsel before the trial court that the factual matrix leading to the causes of action are complex and having to be examined quantitatively by the Master if not qualitatively. The Plaintiff Kapoustin's principal argument was that the practice found in the common law required the Plaintiffs display all the facts, and documental evidence they relied on. Case law provided clear precedents to guide the Master on the standard of review and procedural fairness expected when reviewing jurisdiction applications the likes of the Defendant Bulgaria’s.

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Prior to the August hearing the Plaintiff Kapoustin advised Counsel he had posted to the court (4) four bound volumes consisting of approximately 500 pages each of documentary evidence of, inter alia, contracts, cash, bank and other transaction with the Defendant Bulgaria connected to the province including numerous third party affidavits having to do with establishing the required factual nexus to British Columbia as well as to prove, prima facie a case fit for trial. On the basis of this it was emphasised to the Defendant Bulgaria's Vancouver counsel that any hearing must require not less than one, and possibly more than a day.

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[32]At the hearing (August 24th 2001) the SCBC Registrar, as promised, placed before the Master the Plaintiff Kapoustin's four (4) volume Factum, and appendices of contracts, affidavits and other evidence.

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[33]The Plaintiff Kapoustin Kapoustin as well did fax a Notice of Motion to the presiding Master scheduled for the August 24th hearing. The petitions to the Master may be summarised as the following:

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1.

To order the Defendant Bulgaria to agree to conduct the Plaintiff Kapoustin Kapoustin in police custody before the Court. The issue of costs to be agreed between the parties.

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2.

In the alternative to grant leave to have the Plaintiff Kapoustin Kapoustin application and the Defendants motions spoken to in writing by the Plaintiff Kapoustin, having gorunded the request on the fact of the Plaintiff Kapoustin’s deprivation of liberty by the Defendant Bulgaria. The court requested to so permitting until such time as the Defendant Bulgaria agreed to allow an escorted conduct of the Plaintiff Kapoustin Kapoustin to any future hearings before the courts of law in Vancouver.

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3.

To accept the 4 Volumes of the factum, and the affidavits and other exhibits placed into evidence by the Plaintiff Kapoustin in response to the Defendant Bulgaria's simpliciter and forum non conveniens applications.

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4.

To first hear the Plaintiff Kapoustin’s' cross application having requested the Master to set aside the Defendant Bulgaria's ex juris service of documents to the Plaintiff Kapoustin in Bulgaria, the Application relying on Rules 13 and 14, Rules of Court and the Hague Convention on Service of Documents as has previously been cited.

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5.

To order joinder of three SCBC Vancouver Registry law suits, C974299, S004040 and S005440 where the Defendant Bulgaria is named as Defendant.

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6.

To grant leave to the Plaintiffs to amend their claims, adding the Ministry of the Attorney General of British Columbia as a Defendant, Plaintiffs having relied on the Crown Liability and Proceedings Act R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21.

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[34]After inspecting the three volumes of the Plaintiff Kapoustin's materials the Master adjourned the matter generally and advised counsel for the Defendant Bulgaria to fix at least a full day to hear the Defendant’s applications.

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[35]The Plaintiff Kapoustin regularly enquires of the Defendant Bulgaria and its legal counsel. Such written enquiry includes a request to Counsel in co-operating on fixing a new date having in mind to prepare a joint filing of materials to be placed before a Master at the next hearing.

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[36]As of the date of this Memorandum there is no reply to requests for fixing a new hearing date. Representatives of the Defendant Government continue to refuse to reply to the Plaintiffs correspondences under the above styled cause of action, continuing to be uncooperative as well as active in the obstruction of the Plaintiff Kapoustin Kapoustin in his efforts to continue or defend in the suit at law before the trial court. The issues raised by the Defendant Bulgaria [jurisdiction simpliciter and jurisdiction forum non conveniens] remain outstanding.

[I.B]

Facts Existing In Aggravation of Plaintiff Kapoustin Claims

B.1 COMPLAINTS AS TO THE CROWN

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[37]Detailed facts placed before the SCBC Master provide a strong prima facie case of the Defendant Bulgaria having employed physical violence as well as psychological torment against the Plaintiff Kapoustin in an attempt to extract information required by the Crown in an unrelated ongoing criminal investigation in British Columbia. Such facts existing in aggravation of non-pecuniary damages and may be summarized as follows.

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[38]Allegations are made before the trial court of officials of the Defendant Bulgaria having unlawfully and repeatedly attempted to extort money from the Plaintiff Kapoustin’s family in the province with threats of violence against him while in Bulgarian remand. The specific issues of these claims are brought by the Plaintiffs in the nature of a quasi-criminal proceeding against the Defendant Bulgaria and the individual Bulgaria Defendants named.

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[39]The claims so formed are in aggravation of those other claims that sound in tort and the fact that the governments of Canada and the Defendant Bulgaria having not apologized and continue, in their silence, to reaffirm the defamation and criminal misconduct of police and prosecutors in performance of their duties as follows.

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[40]The available documentary evidence strongly suggests the Plaintiff Kapoustin’s beatings and solitary having ended on the occasion of the Crown faxing in the summer of 1998 faxed its intent to close the its side of a three-year investigation into Canadian funds allegedly transferred from Bulgaria to Canada by the Plaintiff Kapoustin. The reasons given the Defendant Bulgarian by the Crown Defendant Doornbos is the Bulgarian prosecution's failure to provide the Crown the data it first sought in May of 1995.

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[41]Affidavits of the Plaintiff Kapoustin family members allege their having complained repeatedly to officials of the Government of Canada that agents of the Defendant Bulgaria made repeated attempts to extort money from family and friends in Canada, either by telephone or through intermediaries visiting Canada, this a breach of Canadian criminal law. Officials of the Defendant Bulgaria's police, and prosecution having promised to end the physical and psychological torment of the Plaintiff Kapoustin while in remand and even possibly arranging his release in exchange for substantial sums of money. Having endured years of such attempted extortions the Plaintiffs in British Columbia grew deeply distressed and anxious about the Plaintiff Kapoustin's safety, their anxiety and depression resulting in severe mental as well we physical distress and illness. Plaintiffs maintain they have a record of each such complaint, including diary entries, dozens of letters and press statements making mention of the beating and drugging the Plaintiff Kapoustin suffered during his solitary confinement a Bulgaria remand centre. The Plaintiffs claim the Crown failed to take concrete steps to engage the Defendant Bulgaria in putting an end to the use of threats of further physical as well as psychological abuse of the Plaintiff Kapoustin as well as the acts themselves.

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[42]Plaintiff Kapoustin first complained of his drugging in a small note smuggled to a Canadian consular officer Mr. Jamie Bell in August of 1997. It was only after having been removed from remand to the Sofia Penitentiary in 1998, and his later release from solitary confinement that the Plaintiff Kapoustin went openly to Canadian authorities and the press public with his complaints.

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[43]Plaintiffs allege the beating and drugging endured by Plaintiff Kapoustin as having a sinister purpose connected to the May and July 1995 demands of the Crown for information on money alleged by the Crown to be transferred by the Plaintiff Kapoustin banks in British Columbia.

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[44]During the Plaintiff Kapoustin's beating, and other interrogations, it became apparent to him that there was an ongoing criminal investigation in British Columbia somehow connected to the criminal investigation and prosecution initiated by the Defendant Bulgarian. At the time the Plaintiff Kapoustin knew nothing about any Crown element possibly connected to the Bulgarian criminal allegations.

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[45]It was only after numerous special interrogations by prosecution investigators in the absence of his attorneys that it then became apparent to the Plaintiff Kapoustin he was being repeatedly beaten, deprived of sleep, apparently drugged and then questioned all in an effort to force him to disclose the whereabouts of money claimed in letters from Officers of the Crown to the Defendant as originating in Bulgaria and now in British Columbia banks.

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[46]On or about August 1998, after the Crown determined the Plaintiff Kapoustin had not affected the transfer of any criminal proceeds to Canada or elsewhere. At the same time the beatings and other cruel punishment suffered by the Plaintiff Kapoustin since 1996 abruptly ended, and the Bulgarian side of the investigation as well closed.

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B.2 DEFENDANT RELIANT ON CRIMINAL PROSECUTION OF PLAINTIFF

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B.2.1Relevance If Any Of He Criminal Proceedings

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[47]The Plaintiff Kapoustin considers now, as he did in his written pleadings before the trial court, that the facts surrounding his arrest and the related charges are immaterial to the proceedings in Canada except as they might aggravate or alternatively mitigate any damages the Plaintiffs suffered in British Columbia.

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[48]It is nonetheless worthwhile to briefly comment on the history of Plaintiff Kapoustin's prosecution, arrest and treatment by the Respondent, only in so far as the Defendant Bulgaria, in its written pleadings, has undertaken to make these facts material to the present proceedings before the trial court and relies on them to support its argument of immunity.

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[49]On February 28th 2001 a Ms. Maya Dobreva, Minister Plenipotentiary and Consul ("Dobreva") for the Respondent's embassy in Canada, in sworn written testimony, introduced to the trial court facts of the Defendant Bulgaria's criminal prosecution of the Plaintiff Kapoustin.

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[50]The foresaid information was allegedly provided to Dobreva by a third party, a Mr. Dimitar Tonchev, the then Deputy Minister of Justice, Republic of Bulgaria.

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[51]The statement of Dobreva appears to rely on the Defendant Bulgaria's sovereign right to criminally prosecute whom it likes, and relies on the existence of its criminal prosecution of the Plaintiff Kapoustin as adequate cause to invoke its state immunity and deny jurisdiction to a court of Canada.

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[52]In her affidavit Ms. Dobreva traversed such immaterial averment as the nature of the criminal charges brought by the state of Bulgaria against the Plaintiff Kapoustin in 1995, and the participation of the Crown in the prosecution, location and arrest of the Plaintiff Kapoustin. This has been detailed above.

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[53]Ms. Dobreva failed to provide any factual particulars as to what information or assistance was provided by the Crown to the Defendant Bulgaria.

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[54]It appears to this Plaintiff Kapoustin that the controversy raised by Ms. Dobreva over the jurisdiction of a court of Canada is a moot issue if, as Dobreva asserts, the Crown jointly conducted investigative actions in and outside of Canada with the Defendant Bulgaria.

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[55]According to the said Dobreva, both governments participated in the prosecution and arrest of this Plaintiff Kapoustin, having done so on an information, and charges, originating from the Crown in British Columbia.

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[56]The fact of the Crown having participated in the indictment, arrest and extradition of the Plaintiff Kapoustin (Kapoustin) are alone sufficient to bring a part of the Plaintiffs' claims within the jurisdiction of a trial court of the province, and to make the Defendant Bulgaria a legitimate party to any proceeding before a trial court of the province, notwithstanding its sovereign immunity.

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[57]If this Plaintiff Kapoustin understands the common law, and the principles of international comity, it is not for this Honourable Court to make any judgement on the criminal charges raised in the Dobreva statement for the Defendant Bulgaria.

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[58]A review of the Respondent government's charges and sentence under the criminal law, "lex loci delecti", of Bulgaria are made relevant to the present facts of the case before the trial court only insofar as the character of the accusations and nature of the sentence may affect the processes of a trial court of Canada, and the individual rights of a party under the law of the "lex fori".

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[59]Of particular significance to the enquiry here are the facts of the case that document the Defendant Bulgaria obstructing the Plaintiff Kapoustin's access to a trial court of the province in pursuit of his claims.

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[60]The Plaintiff Kapoustin is asserting that neither the character of criminal charges, or nature of any sentence under the "lex loci delecti" of Bulgaria do not, and cannot, permit the Defendant government's agencies to hinder, or otherwise limit the fundamental civil rights of a person deprived of liberty when acting under the "lex fori" of a trial court in Canada.

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[61]In the alternative, the Defendant Bulgaria having wrongly claimed before the trial court that persons deprived of their liberty are also deprived of other fundament civil rights, i.e. to appear before a civil court to prosecute or defend their legitimate interests and property rights against the Defendant Bulgaria. The court is asked to refer to the May 9th 2001 letter of the Defendant Bulgaria [see Vol 1, Tab. No. 9 of the Plaintiffs Factum].

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[62]A principal of law relied on by the Plaintiff Kapoustin before the trial court holds that a person whose liberty has been deprived continues to retain his or her civil rights as naturally flow from principles found in international law binding on both the "lex loci delecti" of the Defendant Bulgaria, and the "lex fori" of the provincial trial court. International law recognising as equal to other citizens the legal rights of a prisoner to access a civil proceeding before any court of a member state, Canada included.

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[63]The course of the proceedings before the trial court show the Plaintiff Kapoustin as only asserting his fundamental civil right of access to this, or any, court's processes and jurisdiction. That such rights cannot be limited by the Defendant Bulgaria, its officials, agencies or instrumentalities, since no such limitation is prescribed in the law of the "lex loci delecti" of Bulgaria.

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[64]If any such limitation on the rights of the Plaintiff Kapoustin, or other persons deprived of liberty were to exist as national law, such law would be in conflict with the accepted principles and obligations of international conventions and therefore invalid.

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[65]Having said the above, then how can the events of the criminal proceedings be relevant to the Defendant Bulgaria limiting the Plaintiff Kapoustin's other civil rights? They cannot.

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[66]The attempts by the Defendant Bulgaria to justify the restrictions it has placed on the Plaintiff Kapoustin are doomed to fail before any court of law in Canada or any international tribunal.

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B.3 FACTS OF CRIMINAL PROSECUTION OF PLAINTIFF

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[67]The Plaintiff Kapoustin, at the risk of being redundant, believes it for the sake of clarity to be worth repeating the facts of the criminal proceedings initiated by the Republic of Bulgaria against the Plaintiff Kapoustin in the context of the civil proceedings initiated by the Plaintiffs in Canada. What follows are fact confirmed by the Defendant Bulgaria absent of the following details.

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[68]On July 7th 1995 Government of Canada, in a letter to the Respondent, provided it with R.C.M.P. conclusions, including a statement of facts allegedly collected in British Columbia, of what the R.C.M.P. concluded was the Plaintiff Kapoustin's criminal activities in Canada and in Bulgaria. The letter goes on to identified to the Respondent that the R.C.M.P. had concluded that the activities of the Plaintiff Kapoustin and his "LifeChoice" companies are an international criminal organisation operating in Canada and Europe. The R.C.M.P. concluded that Plaintiff Kapoustin's activities were criminally qualified under Canadian law as a major fraud and money laundering businesses operating in British Columbia and elsewhere.

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[69]The foresaid letter made conclusions of a connection between criminal activities in British Columbia to the Plaintiff Kapoustin's activities and company in Bulgaria. The Government of Canada requests the Defendant, the Government of Bulgaria, to prosecute the Plaintiff Kapoustin and his company on the evidence and conclusions provided in the letter, on doing so to then forward any operative information to the Attorney General of British Columbia.

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[70]On July 8th 1995, Defendant government of Bulgaria officials use the facilities of state owned, or controlled, mass media agencies to publicly distribute the oral, and written, R.C.M.P. conclusions and information on this Plaintiff Kapoustin's allegedly criminal activities, his charges and his convictions in British Columbia. None of the Defendant Bulgaria's public statements and distribution of the information originating from the Crown proved to be true.

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[71]On July 17th 1995, as a direct result of the conclusions and request provided by the Crown, the Defendant Bulgaria instructed its agencies to take legal action against the Plaintiff Kapoustin, his company and any companies or persons associated to him. The Defendant Bulgaria agreed to act on the Crown request to criminally prosecute the Plaintiff Kapoustin, having ordered the Main Public Prosecutor of the Republic of Bulgaria to bring charges and arrest the Plaintiff Kapoustin.

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[72]The Defendant Bulgaria also proceeded to order its scientific and commercial enterprises to terminate all joint commercial activities and contracts with the Plaintiffs connected to the Plaintiff Kapoustin.

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[73]Commencing on or about July 1995 the Defendant Bulgaria ordered its tax, customs and police agencies, to seize all the Plaintiffs’ assets, tangible and intangible, and documents in Bulgaria. The said agencies having placed the Plaintiffs’ property under the control of private parties appointed by it.

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[74]On October 26th 1995 the Defendant Bulgaria had its national police services, know as the "National Investigative Service" ("NIS"), seize the remainder of the Plaintiffs’ assets and records in Bulgaria. The Defendant having charged the Plaintiff Kapoustin of the crime of embezzlement through a "pyramidal fraud", and relying solely on the previously mentioned the July 1995 representations of the Crown.

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B.3.1Plaintiff Kapoustin's Arrest and Extradition

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[75]On November 22 1995 the Defendant Bulgaria agency, the National Investigative Service (NIS), ordered police investigator, the Defendant S. Georgiev, to issue the international warrant for the Plaintiff Kapoustin. Defendant Georgiev relied on the exact words found in the July 1995 Crown request to indict the Plaintiff Kapoustin.

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[76]Here significance must be attached to the fact that there is no participation whatsoever by any judge or court in the preparation or authorisation or issuance of a warrant for arrest. Upto very late in 2000 decisions on matters of habeas corpus having been within the exclusive ambit of police and prosecution officials who formulated the charge, issued warrant, affected the arrest and prosecuted the case in the absence of judicial supervision or review. This practice and procedure was later legislatively amended in 1998, and again in 2000, after a number of European Court (EC) of Human Rights judgements against Bulgaria, beginning with the seminal case of Assenov and Others v. Bulgaria, Judgement of 28 October 1998 Reports of Judgements and Decisions 1998, [see among others: Nikolova v. Bulgaria Judgement of 25 March 1999, Reports of Judgement and Decisions 1999].

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[77]The Plaintiff Kapoustin's first judicial review of his arrest did not occur until more than two years and two months after his arrest. Furthermore, there existed at the time of the Plaintiff Kapoustin's arrest no procedure for appellate court review of a detention order issued by the prosecutor or a district court judge.

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[78]The charge brought by Bulgarian police (NIS) in November of 1995 was an alleged embezzlement by the Plaintiff Kapoustin as an "official" (director) employed by the Plaintiff Kapoustin's company in Bulgaria.

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[79]The court will recall it was a servant of the Crown, Defendant Doornbos, having contacted the Defendant Bulgaria in May and July of 1995, and wrongly accusing the Plaintiffs' companies as part of an international criminal organisation operating out of Canada.

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[80]It was known at the time of the Crown's indictment of the Plaintiff Kapoustin Kapoustin, that its charges were legally and factual unsupportable, in point of law or fact completely groundless.

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[81]The seminal case on this particularly question of fact, an alleged misappropriation, and law, a collective decision by a management body, was reviewed by the EC of Human Right in Lukanov v. Bulgaria, judgement of March 20 1997, Reports of Judgements and Decisions 1997-II. There the court found against the Respondent Bulgaria for bringing accusations of embezzlement against one official for what had been a collective decision approved by all responsible officials, none of whom had independently lodged any complaint. In the cited EC judgement the transaction involved public funds, in the Plaintiff Kapoustin's circumstances the transaction involved private funds the patrimony of which, by the Defendant Bulgaria's own admission, must devolve to the Plaintiffs' company in British Columbia by way of their 100% ownership of the Bulgarian company's shares.

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[82]On February 6th 1996, the Plaintiff Kapoustin was arrested by German police while in transit to Greece at Frankfurt International Airport on the very same data as provided by Crown having been embodied in the Defendant Bulgaria's international police warrant.

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[83]According to the sworn statement of Ms. Dobreva before the trial court in this proceeding, the Plaintiff Kapoustin's location, and arrest, are possible only thanks to the assistance provided by the Crown and an agency of the Government of Canada.

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[84]On February 12th 1996, while detained by German police, the Defendant Bulgaria raised new charges against the Plaintiff Kapoustin of misappropriation of his company's funds by documentary fraud, general fraud, and income tax evasion.

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[85]On or about August 1st 1996 the Plaintiff Kapoustin, was hospitalised at the order of prison medical staff in Germany and placed on intravenous feeding.

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[86]On September 2nd 1996, at the order of the German federal prosecutor, prison medical staff removed the Plaintiff Kapoustin's intravenous feeding. German police officers arrived at the prison and carried the Plaintiff Kapoustin, unconscious, to an awaiting vehicle.

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[87]After a medical examination at Frankfurt international airport the Plaintiff Kapoustin was taken by airport ambulance, then physically carried to an awaiting Bulgarian Balkan Airlines aircraft. On arrival in Sofia, Bulgaria, the Plaintiff Kapoustin was hospitalised by the Defendant Bulgaria for an additional 16 days.

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[88]On September 18th 1996 the Plaintiff Kapoustin was relocated by the Defendant Bulgaria to a solitary confinement facility at a police detention facility in Sofia, Bulgaria, he remained there alone. The cell was unventilated, having no natural light. What was available was a 60 Watt yellow incandescent bulb. The Plaintiff Kapoustin experiencing his first beatings here.

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[89]On or about the end of October, early November, the Plaintiff Kapoustin was again relocated to another facility where he was isolated. His cell there differed little from that of the previous facility except for toilet facilities and some natural light. The beatings continued, and the Plaintiff Kapoustin reported to Canadian authorities having been drugged on more than one occasion. He remained in isolation here for an additional period of two (2) years.

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[90]The average maximum detention in such facilities is typically six (6) months. The Plaintiff Kapoustin continues to hold the Defendant's record for the longest period in solitary confinement at a police arrest facility since 1991.

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[91]On September 7th 1998 the Plaintiff Kapoustin was moved by the Defendant Bulgaria to solitary confinement facilities located at the Sofia Penitentiary where he remained an additional 6 months with intermittent stays at the prisons infirmary.

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[92]This Plaintiff Kapoustin remains remanded at the Sofia Central Penitentiary awaiting a final verdict.

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B.4 PLAINTIFF KAPOUSTIN'S ARRAIGNMENT AND TRIAL

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B.4.1The Indictment.

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[93]On December 10th 1998 the Defendant Bulgaria brought final charges, having entered an indictment for an embezzlement aided by a fraud.

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[94]It was alleged by the Defendant Bulgaria that the Plaintiff Kapoustin had misappropriated funds he had first defrauded from 4831 individuals. The alleged subject of the indicted crime, embezzlement, was the same subject of the preceding crime, the fraud, it being alleged that to get the funds to be embezzled later the Plaintiff Kapoustin had to first defraud others of the funds. Needless to say the Plaintiff Kapoustin and his attorneys at the time were completely confused by the indictments legal construction.

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[95]The Plaintiff Kapoustin argued estoppel, contending that since the subject of the alleged two misappropriations was one and the same property, the act misappropriation by embezzlement could not be linked to the preceding act of misappropriation by fraud.

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B.4.2The Trial and Conviction.

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[96]On April 16th 1999, three (3) years and three (3) months after his arrest, the Plaintiff Kapoustin was arraigned for the first time before a justice of the Sofia City Court.

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[97]The district court allowed bring new elements in the indictment different from those brought at the time the Plaintiff Kapoustin was arrested on February 7th 1996 and for which Germany later extradited the Plaintiff Kapoustin on September 2nd 1996.

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[98]A repeated defence thesis during the Plaintiff Kapoustin's arraignment was that an alteration of the extradition elements of the charge violated international law -the European Convention on Extradition - in the absence of the extraditing state's - German - consent.

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[99]On January 14th 2000, the Defendant Bulgaria withdrew the April 16th 1999 indictment and original accusations against the Plaintiff Kapoustin, raising instead a new charge, having different circumstantial and factual elements but the same criminal code qualification, the presiding judge allowing the new charges.

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[100]On March 13th 2001 the Sofia City Court convicted the Plaintiff Kapoustin of embezzlement of his companies funds and sentenced him to 23 years of hard time. The maximum sentence for embezzlement is 30 years. The only victim of the crime identified by prosecution and the convicting court was the Plaintiffs' wholly owned subsidiary company, "LifeChoice" incorporated by the Plaintiffs and the Plaintiff Kapoustin in Bulgaria.

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B.4.3The Acquittal.

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[101]On August 2nd 2001, on appeal, the Plaintiff Kapoustin was acquitted of the charge of embezzlement, the appellate court ruling that the first court had erred in law and in fact when allowing the new charges and elements of embezzlement as brought on January 14th 2000.

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[102]The Appeal court re-qualified the factual elements as having the character of a general fraud and convicted the Plaintiff Kapoustin, sentencing him to 9 years. The maximum sentence for fraud is 10 years.

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B.4.4Supreme Court of Bulgaria - Protest and Appeal.

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[103]On August 20th 2001 the Defendant Bulgaria ordered its prosecutor to protest to the Supreme Court of the Republic of Bulgaria that the appellate court had erred in law and fact when acquitting the Plaintiff Kapoustin. The Defendant Bulgaria seeking the Supreme Court of Bulgaria to declare the acquittal invalid, setting aside the appellate decision and returning the Plaintiff Kapoustin for a new trial before the first or second instance courts.

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[104]On August 22nd 2001 the Plaintiff Kapoustin appealed his innocence, and the appeal court having in part erred in law when, inter alia failing to observe applicable principles of international law on bringing new elements to a charge of fraud different from those for which the Plaintiff Kapoustin had been extradited. Having also erred in fact when finding, inter alia, that the Plaintiff Kapoustin had personally effected, at different times and places, each of the alleged misrepresentations, through intermediaries, and thereby having alone defrauded more than 2,500 individuals.

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[105]As of October 7, 2001 six (6) years and five (5) months have passed since the Defendant Bulgaria acted on the July 7th 1995 request of the Crown to prosecute the Plaintiff Kapoustin, its criminal investigation. Five (5) years and nine (9) months have passes since the Plaintiff Kapoustin's arrest.

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[106]As of the moment of this memorandum there is no final verdict or determination on what charges the Plaintiff Kapoustin will ultimately be sentenced on, or retried, by the Defendant Bulgaria. Such an indeterminate judicial state of an accused is consistent with the practice of the Defendant Bulgaria.

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B.5

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Part II. ERRORS IN JUDGEMENT

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[107]The untrained lay Plaintiff Kapoustin risks much when attempting the practice of law. Among these risks there exists the embarrassment and foolishness of making statements or arriving at conclusions that are inconsistent with the practice of the common law or intent of the enactment relied on.

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[108]If simplicity and clarity of purpose are twin virtues to the practice of any science, including law, then at the risk of appearing foolish this Plaintiff Kapoustin respectfully puts to this Honourable Court that the error in judgement is on a point of law, and might well be thus expressed:

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7.

Did the Master err in law when failing to observe the positive constitutional obligation of the court under the Charter, and Canada's international commitment to secure for all persons a guarantee of their fundamental right to equality and fairness before a court of law?

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8.

Did the Master err in judgement when failing to observe the negative consitutional restriction under the Charter on any practice and procedure that directly or indirectly discriminates solely due to a persons "other status" in Canadian society? i.e. as an indigent person having been deprived of his liberty abroad. The Master failed to be senitive to the negative legal affects of an order inevitably and unreasonably prejudicing the legitimate interests, and lawful rights of a citizen of Canada solely due to his other status. The Master's order unresponsive to the three observable elements representing insurmountable fiscal, physical and other practical barrieiers acting to jointly and severally bar a citizen in the exercise of his fundamental rights before the court.

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A.1

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[109]It can be seen from the correspondence with the Registrar of the Appeal Court and the Plaintiff Kapoustin's notice of motion that he is at this present time petitioning the Appeal Court for orders; (1) extending the time for him to appeal; (2) accepting his indigence application and granting him the appropriate relief, and; (3) giving leave to appeal the order of the Duty Master.

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[110]This Plaintiff Kapoustin seeks leave to appeal, an order he believes to be an error in judgement, and a practice and procedure of the SCBC he believes to be discriminatory on its application to an indigent person deprived of his or her liberty as follows.

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[111]It is asserted there exits a constitutional question to be answered by the Appeal Court. The controversy arises over what is alleged to be the discriminatory affect (as opposed to intent) of a practice and procedure under the Court Rules Act [RSBC 1996] Chapter 80, Rules of Court (Rule 41(16.5)(a)) acting to unreasonably limit the legal rights of all indigent person deprived of their liberty solely because they are indigent and deprived of their self-determination.

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[112]The impugned practice and procedure in question places a reverse onus on the affected party, requiring persons belonging to a distinct group and having a visible disadvantage, i.e. deprived of their liberty, to secure their own appearance at any hearing before a Master of Chamber Judge, or alternatively, although indigent, to secure at their own expense representation by legal counsel.

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[113]Until the affected person meets the courts reverse onus, the impugned practice and procedure is to deny members of the disadvantaged group their right under law to prosecute or defend their legal and property interests in a law suit.

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[114]The Master's order must be, as a consequence of the foresaid, is unreasonable, and therefore the Chambers Judge decision wrong. The order and decision have the practical effect of limiting a fundament right protected in law solely because one litigant is incarcerated and indigent.

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[115]The discriminatory affect of the impugned practice and procedure is further aggravated by the Defendant Bulgaria's uncooperative conduct and observable refusals to respect its international treaty obligations or the processes of a court of Canada.

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[116]

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A.2 PRESENT APPLICATIONS AT BAR

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[117]It can be seen from the correspondence with the Registrar of the Appeal Court and the Plaintiff Kapoustin's notice of motion that he is at this present time petitioning the Appeal Court for orders; (1) extending the time for him to appeal; (2) accepting his indigence application and granting him the appropriate relief, and; (3) giving leave to appeal the order of the Duty Master.

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[118]This Plaintiff Kapoustin seeks leave to appeal, an order he believes to be an error in judgement, and a practice and procedure of the SCBC he believes to be discriminatory on its application to an indigent person deprived of his or her liberty as follows.

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[119]It is asserted there exits a constitutional question to be answered by the Appeal Court. The controversy arises over what is alleged to be the discriminatory affect (as opposed to intent) of a practice and procedure under the Court Rules Act [RSBC 1996] Chapter 80, Rules of Court (Rule 41(16.5)(a)) acting to unreasonably limit the legal rights of all indigent person deprived of their liberty solely because they are indigent and deprived of their self-determination.

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[120]The impugned practice and procedure in question places a reverse onus on the affected party, requiring persons belonging to a distinct group and having a visible disadvantage, i.e. deprived of their liberty, to secure their own appearance at any hearing before a Master of Chamber Judge, or alternatively, although indigent, to secure at their own expense representation by legal counsel.

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[121]Until the affected person meets the courts reverse onus, the impugned practice and procedure is to deny members of the disadvantaged group their right under law to prosecute or defend their legal and property interests in a law suit.

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[122]The Master's order must be, as a consequence of the foresaid, is unreasonable, and therefore the Chambers Judge decision wrong. The order and decision have the practical effect of limiting a fundament right protected in law solely because one litigant is incarcerated and indigent.

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[123]The discriminatory affect of the impugned practice and procedure is further aggravated by the Respondent Bulgaria's uncooperative conduct and observable refusals to respect its international treaty obligations or the processes of a court of Canada.

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A.3

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