IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Ambrosi v. Duckworth,

 

2011 BCSC 1582

Date: 20111121

Docket: 90342, 90344, 90345,

90346, 90347 and 90348

Registry: Kamloops

Between:

Daniel Ambrosi

Applicant

And

David Duckworth, Frank Rhebergen, Jen Fretz, Jim McNeeley,
Len Hrycan and Randy Diehl

Respondents

Before: The Honourable Mr. Justice Powers

Reasons for Judgment

Dan Ambrosi appeared on his own behalf.

 

Counsel for the Crown:

J. Gold

Place and Date of Hearing:

Kamloops, B.C.

November 1, 2011

Place and Date of Judgment:

Kamloops, B.C.

November 21, 2011

 

BACKGROUND

[1]             Mr. Ambrosi has filed an ex parte notice of application seeking the following orders:

1.     an Order in the nature of certiorari, reviewing and quashing the judgment of the Honourable Judge Pendleton, where he did refuse to issue process against the accused herein and wherein he further did permit Mr. Dickey to appear as counsel for the accused rather than as an independent agent for the Attorney General of British Columbia, contrary to s. 507.1(3)(b-d) of the Criminal Code;

2.     an Order in the nature of mandamus, compelling the Honourable Judge Pendleton to reconsider his decision, and issue process in this matter;

3.     an Order extending any time periods if and as required to permit this application to be heard;

4.     that the Applicant appear by way of his chosen agent;

5.     costs;

6.     such further and other relief as may be requested.

[2]             The application came on for hearing on December 13, 2010 and Mr. Ambrosi asked leave to have an agent appear on his behalf and argue his application. The agent that Mr. Ambrosi wished to represent him is a Mr. David Lindsay. The matter came back to court on February 14, 2011, to fix a date for hearing the issue of whether Mr. Lindsay would be allowed to act as agent. A date was set for hearing of the agency issue and dates were set for the delivery and exchange of submission materials. The matter was back before me on June 2, 2011. Mr. Ambrosi made his argument in support of Mr. Lindsay as agent and the Crown responded. Mr. Ambrosi was then given an opportunity to reply and time to prepare his reply. The matter was back before me on November 1, 2011, to hear Mr. Ambrosi’s reply. Mr. Ambrosi submitted a written argument and I stood down in order to read that argument. I heard some brief oral submissions and reserved my decision.

[3]             The law regarding the court’s inherent jurisdiction to allow or not allow someone to appear as an agent was discussed by our Court of Appeal in the decision R. v. Dick, 2002 BCCA 27, a case in which Mr. Dick wanted Mr. Lindsay to appear as agent. The court reviewed the law in para. 6 and 7:

6          The Crown raised a preliminary objection to Mr. Lindsay's appearing and brought to our attention several reasons why, in the Crown's submission, Mr. Lindsay should not be accorded the privilege of audience. We use the word "privilege" advisedly, there being clear authority for the proposition that, subject to statutory provisions otherwise, it lies within a court's discretion to permit or not to permit a person who is not a lawyer, to represent a litigant in court. In particular we note the judgment of Lord Denning in Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service et al. (No. 1), [1979] 3 All E.R. 223 (C.A.) at 225, the decision of the Privy Council in O'Toole v. Scott et al., [1965] 2 All E.R. 240 at 247; the comments of this Court in Venrose Holdings Ltd. v. Pacific Press Ltd. (1978), 7 B.C.L.R. 298 at 304, where it was said that the discretionary power to grant a privilege of audience to other persons should be exercised "rarely and with caution"; and the decision of Esson J. (as he then was) in B.C. Telephone Co. v. Rueben, [1982] 5 W.W.R. 428 (B.C.S.C.), at 434.

7          There are strong public policy reasons for this general rule. Each court has the responsibility to ensure that persons appearing before it are properly represented and (in the case of criminal law) defended, and to maintain the rule of law and the integrity of the court generally. As was said by the Ontario Court of Appeal in R. v. Romanowicz (1999), 138 C.C.C. (3d) 225:

The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused's constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (eg. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.

It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused's right to a fair trial. Other examples where the administration of justice would suffer irreparable harm if an agent were allowed to appear are found in the material filed on this appeal. They include representation by an agent facing criminal charges involving interference with the administration of justice and representation by an agent whose background demonstrates pervasive dishonesty or a blatant disrespect for the law. Representation by persons who have convictions for crimes of dishonesty or who have otherwise demonstrated a lack of good character can only bring the administration of justice into disrepute in the eyes of reasonable members of the public. This is so even if those agents have the requisite forensic ability. We emphasize, however, that we do not suggest that a criminal record or some discreditable conduct automatically disqualifies someone from representing an accused. We are referring to situations in which the agent's criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied on to conduct a trial ethically and honourably. [paras. 73-74]

[4]             The court in that case concluded at para. 17 “A review of all the evidence leaves little doubt that Mr. Lindsay should not be given the privilege of appearing as an agent on behalf of a person charged with an offence, such as Mr. Dick.”

[5]             I did not allow Mr. Lindsay to act as Mr. Ambrosi’s agent to argue the issue of whether Mr. Lindsay should be allowed to act as Mr. Ambrosi’s agent in the application for certiorari. I did advise Mr. Ambrosi that there was nothing to prevent Mr. Lindsay from assisting him in preparing his materials and his arguments. I make no finding whether Mr. Lindsay is being paid for that service or whether he is in breach of the Legal Profession Act, S.B.C. 1998, c. 9. That matter is not before me.

[6]             Mr. Ambrosi did present a lengthy memorandum of argument regarding agency and a lengthy reply to the Crown’s submissions. Mr. Lindsay helped him prepare that material.

[7]             Mr. Ambrosi argues that it is his wish to have Mr. Lindsay act as his agent. He says that he is incapable of presenting his own argument without Mr. Lindsay’s assistance. The argument says that he has certain physical impairments and lacks knowledge of the law and legal procedures and would be incapable of responding to legal questions.

[8]             Mr. Ambrosi argued that the Attorney General should not be allowed to appear or make submissions on the issue of agency. I did allow Mr. Gold on behalf of the Attorney General of British Columbia to make submissions. I was satisfied that they would assist me in determining this issue. I was also satisfied that they were entitled to appear and make argument on the application for certiorari, and should be able to make representations on the issue of agency.

[9]             I note that the Attorney General was allowed to argue the issue of agency, when it came before the court in Dick.

[10]         Mr. Ambrosi argues that this is really an issue of access to justice and refers to newspaper articles and comments made by the Chief Justice of Canada and the Chief Justice of British Columbia, which deal with the difficulty that unrepresented litigants have and the prohibitive cost of litigation.

[11]         Initially, Mr. Ambrosi’s position was that he had hired lawyers in the past and was unhappy with their work. He did say that he spent a great deal of money on lawyers, but did not say that he could not afford to hire a lawyer to represent him. He did not wish to hire a lawyer. He also expressed the difficulties he had in obtaining a lawyer in Kamloops who was prepared to take his case. He said that he had not sought the assistance of a lawyer with regard to this particular application, that is, the application for certiorari.

[12]         He said that Mr. Lindsay is simply a friend of a friend, who had helped him put together his material for this application for certiorari. He said that they were his materials but that Mr. Lindsay helped organize them and that he agrees with Mr. Lindsay’s ideas. Mr. Ambrosi has not demonstrated that he is unable to afford a lawyer, but I accept that he is unhappy with the legal advice that he has received in the past.

[13]         Mr. Ambrosi argues that if he is unable to have Mr. Lindsay appear as his agent, that he will be denied access to the courts and denied justice. He argues that it is his choice and his right to have Mr. Lindsay appear for him and he believes that Mr. Lindsay will do a better job than he can. He argues that without the right to access the courts, there is no access to justice. He argues that justice will not be seen to be done unless he has an agent of his choice.

[14]         He argues the right to a fair hearing includes the right to full answer and defence and fully presenting his case in the manner in which he chooses. He argues that where he has these constitutional rights, it is necessarily incidental that he have an agent of his choice to present his case. He argues a right without a means of exercising it, is no right at all.

[15]         He also argues that his constitutional right to freedom of expression entitles him to present his argument in the manner in which he wishes and that is through the agent of his choice. He argues that anyone who can present his case in a respectful manner and more clearly, or better than Mr. Ambrosi can, is an acceptable agent, and that it is up to Mr. Ambrosi to choose that agent. He argues that his right to appear before the court and to exercise his freedom of expression before the court is not restricted to representation by a lawyer, but does include the right to an agent of his choice.

[16]         He also argues that unless he is expressly prohibited from doing something, he is permitted to do something; that is appear by an agent. He argues that in the role of prosecutor, that is the person or informant who swears the information, he should be entitled to appear by an agent of his choice.

[17]         He refers to the inherent jurisdiction of the court to allow him to do, through an agent, what he is unable to do on his own.

[18]         He does not refer to the comments of our Court of Appeal in Dick, which I have referred to earlier. Mr. Lindsay prepared his materials and I am satisfied would have been aware of that decision, but chose not to include it in his authorities.

[19]         On the issue of whether Mr. Lindsay should be allowed to act as his chosen agent, Mr. Ambrosi argues that there is no evidence that Mr. Lindsay “in the capacity as an agent, has the been the recipient of any judicial admonishment, nor that David will act in any manner contrary to the best interests of the Informant, this Honourable Court and this case itself.” He also argues that there is no evidence that Mr. Lindsay has caused unnecessary delays, nor acted improperly as an agent.

[20]         He refers to some favourable comments made about Mr. Lindsay in which former Chief Judge Stansfield of the Provincial Court commented favourably on Mr. Lindsay’s conduct in court.

[21]         He refers to the transcripts from the proceedings at trial (arraignment hearing), R. v. Lindsay, Kelowna Registry, file number 59021-1, May 10, 2004:

I will say, and I’ve said it to you before and I’d be happy to say it anytime to anyone, that I agree with you that you have always - - at least in the court when I am presiding you’ve always been courteous. You’ve always come prepared. You’ve always thought through your position. And while, on a number of occasions, you and I have not agreed about that position, you’ve argued it strenuously and, very frequently, very affectively, and I respect your right to do so.

Mr. Lindsay was representing himself in that case.

[22]         Mr. Ambrosi argues that Mr. Lindsay should be allowed to appear at least until he does something seriously improper or creates unnecessary delays or shows disrespect.

[23]         I am satisfied that the comments made by our Court of Appeal in Dick are a more comprehensive view of the court’s jurisdiction to allow someone to appear as an agent and how that jurisdiction should be exercised.

[24]         Mr. Ambrosi refers to cases in which Mr. Lindsay has been allowed to appear as agent and also states that Mr. Lindsay has been involved in several of these types of applications successfully in the past and is familiar with the issues. One of those cases was Pugsley v. Moroshkin, 2007 BCSC 1415. The copy of the decision I have been provided with does not include any discussion about Mr. Lindsay appearing as agent, although from the record it appears that he did so.

[25]         Mr. Ambrosi refers to transcripts of proceedings on a mandamus application: Kennedy v. Warman, July 3, 2002 Ont. S.C.J., Justice Lalonde presiding. In that case Mr. Lindsay appeared on his own behalf and also as an agent for Mr. Kennedy. There was no discussion about whether he should be allowed to appear as agent or not.

[26]         Mr. Lindsay refers to the comments of Mr. Justice Rice in the transcripts of proceedings at hearing (in chambers), Doak Shirreff v. David Hunter Thomson, Kelowna file number 68725, August 23, 2005. Mr. Lindsay appeared as agent for Mr. Thompson. After a very brief discussion about whether Mr. Lindsay should be allowed to act as agent and why, Mr. Lindsay asked Rice J. if his presentations had met with the court’s approval. Mr. Justice Rice had no reason to take issue with the presentation Mr. Lindsay had made to that point and thanked him for his hard work. Mr. Justice Rice, before his retirement was always known as a kindly and courteous judge and I take his comments in that context. I do not find that they were meant to be a general endorsement of Mr. Lindsay’s court appearances.

[27]         Mr. Ambrosi then refers to other cases in which Mr. Lindsay has assisted litigants by preparing materials for them and having them present them on their own.

[28]         Mr. Ambrosi then argues that the recent judgments labelling Mr. Lindsay vexatious relate only to the civil context and says that there is no case which he has instituted where a judge has declared him to be vexatious. He also argues that the Court of Appeal decision, dealing with s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, which ordered that Mr. Lindsay required leave of the court to commence proceedings, is still before the Court of Appeal.

[29]         In response to the Crown’s submissions, Mr. Ambrosi argues that Mr. Lindsay would be subject to the immediate and ongoing control of the court if he were allowed to act as agent. He also argues that Mr. Lindsay promises to comply with all court orders and directions. He also argues that it is unreasonable or unfair for the Crown to argue that the application for certiorari itself is without merit, and therefore Mr. Lindsay should not be allowed to act as agent.

[30]         He also argues that there is not one case before the court that any judge in the past has declared an action by Mr. Lindsay to be vexatious. Mr. Lindsay clarified that when he was allowed to make a few comments; by that he meant that he had not commenced any actions that the court had found to be vexatious, not that any steps that he had taken in any proceedings had not been found to be vexatious.

[31]         Mr. Ambrosi also argues that the Court of Appeal had no jurisdiction to grant the order declaring Mr. Lindsay vexatious, nor did the Supreme Court because he had not repeatedly instituted vexatious proceedings in the past. He argues that any judgment given without jurisdiction is void and that therefore I should give no weight to the Court of Appeal judgment on that issue.

[32]         He then repeats that the materials that Mr. Lindsay has helped him prepare, so far were not objectionable. He also argues that the material that Mr. Lindsay has prepared so far have not met with any objection from the Crown for being improper. He then repeats his earlier arguments and references to cases where Mr. Lindsay has successfully assisted people. He argues that this particular application dealing with s. 337 of the Criminal Code has nothing to do with any cases Mr. Lindsay has been involved with in the past. However, the application for certiorari certainly is something Mr. Lindsay has been involved in, in the past as an agent and on his own personally.

[33]         Mr. Ambrosi argues that although Mr. Lindsay has been politically active for 15 to 20 years and been involved in a lot of cases, the fact that he has not been successful in some of them does not mean that he has been vexatious. He also argues that any issues between the Crown and Mr. Lindsay personally are not relevant to problems that Mr. Ambrosi is dealing with or the fact that he wishes Mr. Lindsay to represent him as his agent.

[34]         He argues that he will not be able to present his case without Mr. Lindsay’s assistance.

[35]         The Crown’s argument is that it is for the court to decide whether Mr. Lindsay should be allowed to act as agent. It is a matter of discretion. The Crown’s position is that Mr. Ambrosi would be better served with the assistance of a lawyer, who is an officer of the court and responsible to the court. The Crown then referred to a number of decisions which it says illustrate that Mr. Lindsay has his own agenda to pursue and has a record in the past of making unreasonable, unmeritorious and vexatious applications resulting in a good deal of expense and delay to all the participants in the judicial process.

[36]         The Crown referred to a Saskatchewan decision Hill v. Hill, 2008 SKQB 11. The Hill case was a contentious family matter involving issues of family law and contracts. The issues involved some agreements which the wife took issue with; issues of spousal support, division of property, separation and a counter petition brought by the wife. The court dealt with the issue of Mr. Lindsay acting as agent at para. 25 through 30 as follows:

25        I advised Ms. Hill at the hearing that David Lindsay (a.k.a. David-Kevin:Lindsay) would not be permitted to appear as her agent. As a result, she made representations on her own and, in fact made a further application, at a later date, to provide additional material because she had not been prepared to argue on her own at the hearing date. The further application was denied, with costs.

26        Much of the material filed by Ms. Hill on her applications is irrelevant to the matters she wishes the court to consider. Her affidavit material is very difficult to comprehend. It follows no logical sequence, but jumps from one unrelated event to another. Her first application was entirely incorrect legally. She requested the opening up of a divorce to deal with issues that had been previously severed from the divorce. A simple reading of the court file by Ms. Hill, or her agent, would have saved Mr. Hill the court time in responding to a completely specious argument. In addition, Ms. Hill has filed hundreds of pages of case law and affidavit material that Mr. Hill has had to respond to that is not relevant to her application. From the material alone, a court could have no confidence in Ms. Hill's advisor(s).

27        David-Kevin:Lindsay is a familiar figure in the courts in Saskatchewan and elsewhere in Canada. In British Columbia, in a decision upheld by the Court of Appeal (British Columbia (Attorney General) v. Lindsay, 2007 BCCA 165; [2007] B.C.J. No. 565 QL), Beames J. declared Mr. Lindsay to be a vexatious litigant within the meaning of The Supreme Court Act of British Columbia. The Court of Appeal stated:

27        It can fairly be said that almost all of the applications Mr. Lindsay has made on his own behalf have been without any merit and so found by the courts who have considered them. They establish a record that amply justifies a finding that Mr. Lindsay has "habitually, persistently and without reasonable grounds" instituted applications in criminal and civil proceedings in the Supreme Court, in the Provincial Court and in this Court against the same and different persons that are vexatious as that term was explained in Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 at 691, 59 O.R. (2d) 353 (Ont. H.C.J.).

28        Mr. Lindsay is similarly regarded in the Province of Manitoba. In the decision, R. v. Lindsay, [2004] M.J. No. 380, the Court of Appeal commented:

2 The appellant is a pro se litigant who is well known to the courts of this and other provinces. In these proceedings, he challenges the validity of all legislation enacted by Parliament since 1931, when the Statute of Westminster, 1931, 22 Geo. V, c. 4, was passed by the Imperial Parliament, and the jurisdiction of any judge to hear his challenge. Specifically, he says that the Criminal Code (the Code), under which he has been charged with an offence, is of no force and effect. ...

35 The appellant's court filings abound with unfounded and scurrilous accusations of "corruption and criminal activity at all levels of the justice and political levels," "unlawful Gestapo [S]earches," "unlawful court fees for justice" and judges who "wilfully violated a court order" and "participated in the cover up." Even on the first page of his notice of appeal we find this gratuitous and insulting greeting:

I'm Baaaack!!

And you thought I was gone! NOT! I still demand the rule of law be obeyed -

If you know how.

The appellant takes issue with words such as "scandalous, vexatious, frivolous, and irrelevant" that the motions judge used in describing portions of his affidavit and brief. That description was clearly invited and justified by the tenor of his material.

29        Rule 10 of the Queen's Bench Rules allows litigants to appear in person or with a lawyer. Accordingly, the Rule does not allow Mr. Lindsay to appear, except with leave of the court. By way of example, in criminal matters, agents are permitted to appear for accused persons on summary conviction offences, within certain limits, by virtue of the Criminal Code. However, the Ontario Court of Appeal in R. v. Romanowicz (1999), 138 C.C.C. (3d) 225, held that the court retains the authority to deny an accused person the agent of his or her choice:

[61] A power to deny audience to an agent whose participation in proceedings would either damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process is entirely consistent with the exercise of the power recognized in the authorities referred to above. Surely, representation by an agent who has been shown to be [page 247] incompetent or disreputable can imperil the accused's right to a fair trial and can undermine the integrity of the proceedings just as much as if an accused who was incapable of representing himself were required to proceed without counsel.

30        I see no benefit to Ms. Hill in having the assistance of Mr. Lindsay, only detriment to her case and a significant increase in the length of the proceedings and expense to the parties. It is for these reasons that I denied Ms. Hill's request to be represented by David Lindsay as her agent.

[37]         I have already referred to our Court of Appeal decision in Dick. Dealing with whether Mr. Lindsay should be allowed to act as agent, the Court of Appeal said the following:

8          Ms. Meneguzzi for the Crown argued that in this case, there is every reason to believe Mr. Dick's representation by Mr. Lindsay would indeed endanger the proper administration of justice, including Mr. Dick's right to a fair trial on serious charges. In particular, counsel referred to R. v. Main (2000), 259 A.R. 163, in which the Alberta Court of Queen's Bench noted various proceedings in which Mr. Lindsay had been directly or indirectly involved. The Court said these proceedings demonstrated:

. . . an intention not to be bound by rules and governing procedures in court. Mr. Lindsay has demonstrated by his conduct in the courts of Manitoba and in Alberta that the court cannot rely on Mr. Lindsay to represent Mr. Main in an honest and ethical manner. To allow Mr. Lindsay's application would in my view undermine the integrity of the proceedings. [para. 36]

9          Counsel also referred to a decision of the Manitoba Court of Queen's Bench in Manitoba (Attorney-General) v. Lindsay, [1997] M.J. No. 404, in which the Attorney-General of Manitoba sought an injunction to prohibit Mr. Lindsay from, inter alia, swearing Informations against peace officers acting on the direction of court staff without leave of a judge; and to prohibit Mr. Lindsay from attending at the offices of the Provincial Court except in certain conditions. Macinnes J. reviewed the court's power to punish, by contempt of court proceedings, those who interfere with the due administration of justice, and then granted the injunction. He observed:

            As for the Crown's application for an injunction, the same is granted. On the material before me, there is a strong prima facie case and/or serious question to be tried. There is clearly irreparable harm suffered by the individuals who have been subjected to the defendant's conduct and if left unchecked, to the justice system itself. Further, the balance of convenience clearly favours the plaintiff.

            If the defendant's conduct were permitted to continue unchecked to its logical conclusion, and if other citizens were to follow the lead of the defendant and act in a similar manner, the combined effect of such conduct could bog down the justice system to the point of seriously reducing access to the courts by litigants and/or creating gridlock. While I appreciate that has, in fact, existed in this case on the evidence is a great distance from creating systemic gridlock, the point remains that the process is there and available, and intended for any citizen of this country acting in a bona fide manner. It is not, and never has been, intended to be or become a tool of oppression. What we see on the evidence is a wrongheaded, destructive, malicious use of the justice system by the defendant to effect a purpose which is the very antithesis of that which the section intends. Defendant's conduct brings the justice system into disrepute. That clearly constitutes irreparable harm, including to the plaintiff as superintendent of the justice system. [paras. 29-30]

10        Further, there is evidence that Mr. Lindsay has, in this province, been advertising himself as an expert on legal matters or permitting others to do so on his behalf. In advance of a recent "seminar" that he instructed, he was described in an Internet notice (essentially promotional material for the seminar) as "Canada's foremost freedom expert on the secrets of laying criminal charges against government officials." The notice continued:

Dave will examine some of the common law, principles and obligations as well as some of the rights and freedoms we have there under. Included will be answers to pertinent and repeatedly asked questions involving our RIGHT to use the highways, how this right has been denied to us, how the courts have self-admittedly been a part of this fraud, what happens with insurance, and how the Charter of Rights and Freedoms does not protect you.

You will learn how the criminal process works, Dave will be explain [sic] how one can lay their own private criminal charges against anyone in the country, including government ministers, CCRA and other government officials, and even police officers. . . .

11        According to other material published on the Internet, Mr. Lindsay has also negotiated an "exclusive agreement" with a publisher:

. . . to work with our subscribers as a court procedure assistant. Whether it means getting help in drafting up court documents correctly, how to lay charges against government agents or how to deal with your own lawyer more effectively, Lindsay has the solution. . . .

Lindsay has been involved in court procedures literally hundreds of times, for both defendant and plaintiff's challenges, or for filing court documents on their behalf. Lindsay is not a "lawyer" but has the ability to act as an "agent" for anyone who has to go to court and wishes to do so without spending a fortune on lawyer fees.

We have arranged to make Lindsay available for one-on-one telephone assistance to any Canadian who needs help with court challenges or wishes to learn how to deal with court challenges for their own benefit.

...

15        Finally, Mr. Lindsay says that no "complaints" about his conduct have been made by British Columbia courts and that the Law Society of British Columbia has not "charged" him with the unauthorized practice of law, contrary to the Legal Profession Act, S.B.C. 1998, c. 9. He notes that the Provincial Court judge was quite content to hear him, that the transcript does not disclose any "disrespectful" comments on his part, and that he (Mr. Lindsay) does "quality work". If Mr. Lindsay were not permitted to continue, he says, Mr. Dick, who cannot afford a lawyer, would be unable to defend himself because he does not have the skills and knowledge Mr. Lindsay does.

 

16        It is precisely because of Mr. Dick's circumstances that it is all the more important he be represented by counsel who is competent and who is unlikely to engage in abusive or vexatious conduct before the court. Mr. Lindsay has engaged in such conduct in the past, and there is no reason to think he will not run true to form in this province. Indeed, the written comments he has made to friends (which he says were put on the Internet by someone else) concerning his hearing before Dohm, A.C.J., show that his attitude is anything but "respectful" as he claims. Whether the published comments amount to contempt is also a matter not before us.

17        A review of all the evidence leaves little doubt that Mr. Lindsay should not be given the privilege of appearing as an agent on behalf of a person charged with an offence, such as Mr. Dick. We therefore order that the Crown's objection is sustained. Mr. Dick may of course proceed with the substantive appeal, subject to his filing in this Court a Notice of Appeal signed by himself or a solicitor acting on his behalf.

[38]         The Court of Appeal refused the application to allow Mr. Lindsay to act as agent in that case.

[39]         Our Court of Appeal again dealt with an application by Mr. Lindsay in the case Lindsay v. Canada (Attorney General), 2005 BCCA 594. Mr. Lindsay had brought a petition in Supreme Court to have a lawyer, an agent for the Attorney General of Canada and two lawyers, two prosecutors for the Attorney General of Canada found in contempt of court for fraudulently procuring orders effectively barring Mr. Lindsay from appearing as agent for a person charged with an offence. The petition was dismissed. The respondent sought an application under s. 18, commonly known as the vexatious litigant provision to prevent Mr. Lindsay from bringing proceedings to the court without leave. That application was also dismissed on the basis that although Mr. Lindsay’s conduct was vexatious, it was not habitual.

[40]         On appeal, Mr. Lindsay stated that he wished to clear his name. He wishes to act as agent for representing tax protesters. Mr. Lindsay’s appeal was dismissed because it was clear that the Supreme Court had no power to deal with contempt in the face of other courts.

[41]         The Court of Appeal commented that Mr. Lindsay is active in the Freedom Movement and Tax Honesty Movement and travels across Canada seeking the privilege of audience in courts in order to defend persons of like mind, who refuse to file tax returns. (para. 11.)

[42]         The court then referred to Dick, a decision that I referred to earlier. It commented in para. 13 that Mr. Dick’s application for leave to appeal in the Supreme Court of Canada was refused on the 10th of October, 2002: R. v. Dick, [2002] S.C.C.A. No. 128. The court noted that Mr. Lindsay then applied to the Court of Appeal for clarification of its decision and that application was dismissed. The court noted that when the matter returned to the Provincial Court, Mr. Lindsay was refused audience.

[43]         Mr. Lindsay was also refused audience in R. v. Meikle, [2003] 4 C.T.C. 294; 2003 BCPC 162, which case is referred to in para. 15.

[44]         The Court of Appeal then discussed the nature of the meaning of vexatious proceedings under s. 18. They made the following comments at para. 25:

25        The respondents urged on us the summary provided by Henry J. in Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 at 691, 59 O.R. (2d) 353 (H.C.J.):

From these decisions the following principles may be extracted:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[45]         Ultimately, the court said at para. 27:

27        Here the debate is over the word "habitual". It has no special meaning. It is to be understood and applied as the circumstances dictate. I cannot say that the judge's determination was unreasonable. I will, however, permit myself to observe that Mr. Lindsay has surely taken himself so close to the line that any further litigious behaviour of a vexatious nature will put the matter beyond doubt and an order should be issued. The respondents offered examples of such conduct which occurred subsequent to the judge's decision. In my opinion, that is not admissible as fresh evidence in this Court - we do not conduct hearings de novo - but it may provide the basis for a new application under s. 18.

[46]         The Crown also referred to the decision British Columbia (Attorney General) v. Lindsay, 2007 BCCA 165. Madam Justice Beames had declared Mr. Lindsay to be a vexatious litigant and he appealed that order. Mr. Lindsay had brought on an application to have the Attorney General found in contempt and a cross-application was made under s. 18 of the Supreme Court Act, sometimes known as the vexatious litigant provision. The court referred to a number of proceedings which involved Mr. Lindsay, including those that I have referred to already and his own defence of a number of charges under the Income Tax Act, for failing to file income tax returns.

[47]         The court referred to proceedings in which Mr. Lindsay was a defendant in proceedings under the Motor Vehicle Act, and the history of those proceedings and Mr. Lindsay’s conduct.

[48]         The court also referred to civil proceedings instituted by Mr. Lindsay in British Columbia. This included actions against the RCMP, Ministers of Justice for British Columbia, the Attorney General of Canada, various named and unnamed sheriffs in instances where he attempted to commence criminal proceedings to avoid the cost of civil proceedings. The court also referred to instances where Mr. Lindsay laid private informations, alleging perjury, obstruction or perversion of justice by an investigator employed by Canada Customs and Revenue Agency and where process was refused. He also laid nine private informations against various sheriffs in the Province. The court then said at para. 27:

27        It can fairly be said that almost all of the applications Mr. Lindsay has made on his own behalf have been without any merit and so found by the courts who have considered them. They establish a record that amply justifies a finding that Mr. Lindsay has "habitually, persistently and without reasonable grounds" instituted applications in criminal and civil proceedings in the Supreme Court, in the Provincial Court and in this Court against the same and different persons that are vexatious as that term was explained in Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 at 691, 59 O.R. (2d) 353 (Ont. H.C.J.).

...

31        The order does not prevent Mr. Lindsay from instituting proceedings in either the Provincial or Supreme Court. It requires him to obtain leave to do so. Given his demonstrated history of filing and pursuing fruitless proceedings, that requirement seems amply justified.

[49]         In the result, the court did make an order under s. 29 of the Court of Appeal Act that Mr. Lindsay obtain leave of a justice before commencing or proceeding in the Court of Appeal. The court said at the end of its decision: “Mr. Lindsay's litigation conduct before this Court has been as fruitless and vexatious as it has been in the Provincial and Supreme Courts.”

[50]         Mr. Lindsay made a further application in the Court of Appeal dealing with that judgment. He sought permission to advance oral arguments on matters allegedly not canvassed or adjudicated upon. Mr. Justice Hall dealt with that application in the decision British Columbia (Attorney General) v. David Kevin Lindsay, 2011 BCCA 283. Mr. Justice Hall commented that generally when an order has been drawn and entered as that one had, a court is without jurisdiction to consider the case a new. Mr. Justice Hall referred to the enormous delay in bringing on the present application and stated at the end of para. 8:

It is difficult to appreciate how it could be in the interests of the proper administration of justice to allow matters to be revisited at this time, some four years post-judgment.

[51]         The court then said at para. 9:

As I noted, I consider that it is doubtful that this Court has jurisdiction to accede to the request of the applicant, but altogether aside from that, I am firmly of the view that the lengthy delay should be found to militate against granting this application.  In these circumstances the proper order is that this application for a new oral hearing before the panel that heard this case should be dismissed.

[52]         Mr. Lindsay believes that his written application is still before the court and may be adjudicated upon. Given Mr. Justice Hall’s comments, it is hard to accept that is the case. However, even if it is the case, that decision is still authorative for statements of the law and the findings with regard to Mr. Lindsay.

[53]         I also note that there were difficulties in getting the actual order filed because Mr. Lindsay insisted that the order contained what amounts to, recitals of arguments or reasons. That application issue was dealt with by the Court of Appeal in the British Columbia (Attorney General) v. Lindsay, 2009 BCCA 159. Mr. Lindsay also raised issues about the bias of the judge that heard an application for dismissing Mr. Lindsay’s application for want of prosecution. The court found that Mr. Lindsay had made serious and baseless allegations of bias that were unsupported by evidence. The court was satisfied that Mr. Lindsay was simply unhappy with the results of earlier proceedings before the same judge. The Court of Appeal said at para. 11:

11        Litigants in this Court do not choose which judges they will appear before, and they do not decide whether their applications will proceed or be adjourned when they have been set for hearing. Those are matters for the Chief Justice, and the judge presiding, to decide. In this case, Mr. Lindsay provided no grounds for adjourning his application, other than his refusal to appear before Lowry J.A. In those circumstances, Lowry J.A. made no error of any kind that would provide a basis for this division to vary his order dismissing Mr. Lindsay's application for want of prosecution.

[54]         The decision R. v. Lindsay, 2011 BCCA 99, is a decision of our Court of Appeal dealing with Mr. Lindsay’s own charges under the Income Tax Act and the lengthy and sometimes confusing unmeritorious arguments raised by Mr. Lindsay. It also refers to a number of the steps he took during the proceedings which the court found had been without any basis, including attempts to subpoena the Provincial Court Judge to give evidence about his oath of office and understanding of the same.

[55]         Based on all of the above, I have not been convinced that I should exercise my discretion to allow Mr. Lindsay to appear as agent for Mr. Ambrosi. I am satisfied that it would not be in the interest of justice to allow Mr. Lindsay to appear as agent. I dismiss Mr. Ambrosi’s application for Mr. Lindsay to appear as his agent. I am satisfied that Mr. Ambrosi can afford a lawyer if he wishes, or may even be able to find someone more appropriate to appear as his agent. My decision does not prevent Mr. Lindsay from assisting Mr. Ambrosi in preparing his arguments, materials and written submissions, if he wishes to do so. My decision does not prevent Mr. Lindsay from being present in court, and if Mr. Ambrosi needs to consult Mr. Lindsay during his submissions, so that Mr. Ambrosi may continue with his submissions, I will certainly entertain that request.

“R.E. POWERS J.”

POWERS J.