PETITION TO: UNITED NATIONS HUMAN RIGHTS COUNCIL
UNITED NATIONS GENERAL ASSEMBLY

 

In the Matter of
 Mohd Ali Hirji and Parin Mohd Ali Hirji Lalani, Citizens of Canada
v.
Government of Canada

URGENT ACTION REQUESTED

Petition Submitted for consideration for Relief Pursuant to Optional Protocol to the

International Covenant on Civil and Political Rights
   Adopted and opened for signature, ratification
and accession by General Assembly
  Resolution 2200A (XXI) of 16 December 1966

entry into force 23 March 1976, in accordance with ARTICLE 9

 

To

The United Nations Human Rights Committee

c/o Petitions Team

United Nations Office

8-14 avenue de la Paix

1211 Geneva 10

Switzerland

 

                                                                                                          November 26, 2018

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TABLE OF CONTENTS

 

I. AUTHOR OF THE COMMUNICATION......................………………........………………………………………...…3

II. THE VICTIM……………........……………..........………………………………………………………………………3

III. STATE PARTY………............……….......……………....……………………………………………………………...3

IV. SUMMARY OF THE CLAIM……............…….......…………………………………......…………………………....4

Summary of Facts……………………….....……………………………………………………………….......….4

Summary of Domestic Remedies Exhausted……...............……………………………………………….......…..5

Summary of Violation of Violation of ICCPR……..................………………………………….………….......…6

V. STATEMENT OF FACTS…………………………............…………………….…………………….........................…8

Background…………………………………….……………………………………………………......……..…..8

Financial losses and miseries suffered by Hirjis……………….........................…………………......…..………..8

Filing of Lawsuit………………………………………………..………………………………......…….….......10

Commencement of Trial and fabrication of Evidences………...........................………………......………...…..10

Hirjis’ quest for Justice……………………………………….......…………………………….................……...11

Evils of Injustice that would rendered Hirjis Homeless…….............................…………………………....…....12

Upholding of Void Judgment in the Court of Appeal………........................…………………………....….…....12

Hirjis Pleadings to Investigate Injustice met with denial………............................................................................13

Hirjis were denied further remedies by Supreme Court of Canada……………....................................................14

Miscarriage of Justice………………………………………………………………………………….................14

Denial to appeals to ratify Miscarriage of Justice……………………………………………………...................19

VI. ADMISSIBILITY…………………………………………………………………………………………....................21

Jurisdiction………………………………………………………………………………………..........................21

No Other procedure International Investigation or Settlement………………………….......................................21

Exhaustion of Domestic Remedies………………………………………………………………….............…... 22

Details of Domestic Remedies Exhausted and the Fair Trial Claims Raised.........................................................22

VII. VIOLATION OF THE ICCPR…………………………………………………..........…………………..................25

Violation of the Right to be tried by an Independent and Impartial Court.………………....................................26

Violation of the Right to Have Duly Reasoned Judgment………………………….……………….....................28

Violation of the Right to Have the Conviction Reviewed by a Higher Tribunal…….......................................     29

Violation of the Right to be Presumed Innocent………………………………………….....................................30

Violation of Right to be treated in an impartial manner by Member State……………….....................................31

Violation of the Right to develop the possibilities of Judicial Remedy………………………..............................31

VIII.A DETERRENT OF MISCARRIAGE OF JUSTICE IN SIMILAR CASES..………….....................................  32

The importance of damage awards as a remedy for constitutional violations

As per Chief Justice of Canada the Right Honourable Beverley M. Mclachlin….................................................32

Summary….…………………………..………………………………………………………………………..…34

IX. REMEDIES....................................................................................................................................................................35  

X.  LIST OF EXHIBITS…..…………………………………………….................……………………...........................36

 

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I. AUTHOR OF COMMUNICATION


1.               This communication is prepared byMr Mohd Ali Hirji born on June 22, 1945, who files this complaint on his and on behalf of his wife, Parin Mohd Ali Hirji Lalani, born on December 12, 1942. Both of them Immigrated to Canada with their two daughters from England in 1987, and became Canadian citizens and settled in Vancouver British Columbia Canada.


2.               This communication is prepared pro se as no legal counsel would agree to represent the Hirjis or even provide them with legal advice or even help them draft a petition because it exposes the unlawful and flagrant acts of members states judiciary and because of the reprisals by the states court against the legal counsels or the law enforcement officers who expose the criminal activities of the Canadian Judiciary or the Ministry of Justice or the Government officials[1].


II. VICTIMS


Name: Hirjis
First Name(s) : Mohd Ali Hirji with Parin Mohd Ali Hirji (wife)
Nationality: Canadian
Profession: Computer Programmer
Date of birth: June 22, 1945 (Mohd Ali Hirji)
December 12, 1942 (Parin Mohd Ali Hirji)
present address : 1084 Lillooet Road, North Vancouver,
British Columbia V7J 2H8,
Canada.


III. STATE PARTY


3.               Mr Mohd Ali Hirji and Mrs Parin Mohd Ali Hirji re-submits this communication against the State Party Canada, which acceded to the International Covenant on Civil and Political Rights[2] and its First Optional Protocol entered into force on 23 March 1976[3].
_______________________________________________________________

[1] Retired RCMP inspector William majcher swears affidavit about corrupt Canadian lawyers and judges.
https://donaldbest.ca/wp-content/uploads/2018/01/SCC-Affidavit-William-Robert-Majcher.pdf
https://donaldbest.ca/2017/07/
https://donaldbest.ca/retired-rcmp-inspector-william-majcher-swears-affidavit-about-corrupt-canadian-lawyers-and-judges/


[2] International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49

 

 

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SUMMARY OF THE CLAIM.


4.            The Government of Canada and its agents acting as Canadian judge(s) (“judicial officers”) and public officials of the Government of Canada have failed to protect Hirjis’ guaranteed rights under the Canadian Constitution And Charter Of Rights And Freedom to be treated “Equally before and under law and equal protection and benefit of law” and their constitutional right to a fair trial by an impartial tribunal and equal benefit of law that has been expressly enshrined in International Covenant on Civil and Political Rights (“ICCPR”).


While pursuing this case, the state judiciary did not act in an impartial manner and issued unlawful orders that will stripe down Hirjis of their lives assets and make them homeless.


5.            The court was not impartial in Hirjis case, the trial, appeal and Supreme courts failure to prevent serious procedural and substantive mistakes should be seen as an obvious indication of their bias.


6.            In its judgment, the trial court’s bias and misstated facts based its decision on inadmissible evidence and its refusal to act lawfully and comply with the Constitution and Charter of rights and freedom and its refusal to uphold the law and illegally impose Miscarriage of Justice on theHirjis and fraudulently deprive them of justice is clearly evident to a reasonable observer throughout the Reasons for Judgment rendered by the trial court on November 6, 2015.


7.            While pursuing this case many evidences presented by Hirjis and many appeals were filed by Hirjis in the court of appeals and in Supreme Court of Canada requesting them to see the miscarriage of justice served upon Hirjis in pursuance of state Judicial System. However, the Supreme Court of Canada rejected their pleas of appeal and denied any further remedies under state law stating that “Supreme court of Canada has no further jurisdiction”. Hence, violating Hirjis’ right to fair trial and equal benefit of the law.
 

Summary of facts:


8.            On February 8, 2007, Hirjis commenced a lawsuit against the state authority of Strata Council owing to the neglect of their legal obligation from 1991 to 2007 to maintain and repair the common property of strata council. The Strata’s unreasonable refusal to grant the conduct of repairs in violation of strata bylaws prevented the Hirjis to sell their house and inject the required capital into their Currency Arbitrage business.

__________________________________________
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[3] Optional Protocol to the International Covenant on Civil and Political Rights Adopted and opened for signature, ratification, and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 9

https://www.ohchr.org/en/professionalinterest/pages/opccpr1.aspx

 

 

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9.              On April 7, 2015, the trial commenced before the Supreme Court of British Columbia. Despite proving their burden of proof and the defendants’ failures and the Negligence and breach of contract and unreasonable refusal of the defendants to grant the conduct of repairs on same terms and condition granted to other owners and the damages they have suffered on preponderance of evidence and balance of probabilities; the Court refused/failed to act lawfully and dismissed Hirjis case.


10.            The trial court of Supreme Court of British Columbia unlawfully omitted all of Hirjis exculpatory evidence in reasons for judgment and fabricated the evidence in the reasons for judgment rendered on November 6, 2015, and denied justice to the Hirjis. The trial court willfully admitted fabricated and inadmissible evidence of the defense witness into evidence that renders the trial unfair.


11.            The trial court violated Hirjis rights to a fair trial before competent impartial and independent tribunal as envisaged in Article 14 (1) of ICCPR and rendered the decision that is null and void in law and that is unenforceable in law and has no legal force or effect.


12.            Hirjis filed numerous appeals to higher courts for the reconsideration of the trial court judgment, including the Supreme Court of Canada, requesting a review of unlawfully imposed “Miscarriage of justice” on them.


13.            In their appeals, the Hirjis has repeatedly claimed that their fundamental rights for a fair trial and Constitutional Rights were violated both during the trials and chambers hearings. None of the courts substantively addressed claims raised by the Hirjis in their appeals.


14.            All courts upheld the fraudulent and unlawful acts of lower instance court’s decision of November 6, 2015, imposing a miscarriage of justice on Hirjis and defrauding them out of their legitimate claim for damages that the Hirjis are entitled to under the law.


Summary of domestic remedies exhausted.


15.            On February 8, 2007, Hirjis commenced a lawsuit against the state authority of Strata Council owing to the neglect of their legal obligation from 1991 to 2007 to maintain and repair the common property of strata council.


16. On April 7, 2015, the trial commenced before the Supreme Court of British Columbia. Mr. Hirji represented the case pro se. Despite proving their burden of proof and the defendants’failures and the Negligence and breach of contract; the Court refused/failed to act lawfully and dismissed Hirjis case.

 

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17.            The trial court of Supreme Court of British Columbia unlawfully omitted all of Hirjis exculpatory evidence in reasons for judgment and fabricated the evidence in the reasons for judgment rendered on November 6, 2015, and denied justice to the Hirjis. The trial court willfully admitted fabricated and inadmissible evidence of the defense witness into evidence that renders trial unfair.


18.            Hirjis filed numerous appeals to higher courts for the reconsideration of the trial court judgment, including the Supreme Court of Canada, requesting a review of unlawfully imposed “Miscarriage of justice” on them.


19.            In their appeals, theHirjis has repeatedly claimed that their fundamental rights for fair trial and Constitutional Rights were violated both during the trials and chambers hearings. None of the courts substantively addressed claims raised by the Hirjis in their appeals.


20.            All courts upheld the fraudulent and unlawful acts of lower instance court’s decision of November 6, 2015, imposing a miscarriage of justice on Hirjis and defrauding them out of their legitimate claim for damages that the Hirjis are entitled to under the law.


Summary of Violation of ICCPR.


21.            The Supreme Court of Canada has left the Hirjis with unlawfully impose “Miscarriage of Justice” and unlawfully allowing the defendants to place a charge on the Hirjis Home preventing them to make a living. The Supreme Court of Canada allowed the Hirjis to continue to suffer the damages they have suffered as a result of unlawful acts of Canadian Courts and have left the Hirjis without the redress or remedies and an unlawfully placed charge on their home depriving them of their liberty.


22. The Government of Canada violated its obligations under the International Covenant on Civil and Political Rights (ICCPR) by denying theHirjis:


A.              The Canadian courts failed to act as independent and impartial bodies because they acted unlawfully and committed Fraud upon the Court and fraudulently deprived Hirjis of justice and the enormous damages they have suffered that the Hirjis are legally entitled to under the law.[4]

____________________________________________
[4] Article 2(1) of ICCPR states that “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,

 

 

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B.             The trial court consciously fabricated evidence in reasons for judgment and unlawfully imposed a Miscarriage of Justice on the Hirjis. Flagrant violations of Hirjis right to fair trial and equal benefit of the law [5] were of such gravity as to give the deprivation of liberty an arbitrary character.


C.             The trial court ignored and violated the Rules of Civil Procedure and the Rules of Evidence [6] , the trial court perpetrated obstruction of justice. The Local Rules of Civil Procedure require that all alleged statements of fact in motions and other filings must be allowed.


D.             The right to be tried by an independent and impartial court.[7] The Canadian courts failed to act as independent and impartial bodies because they willfully admitted inadmissible and incriminating evidence of the defendants’ evidence with full knowledge of its consequences and the negative impact it will have on the lives of Hirjis and excluded all Hirjis exculpatory evidence.


E.             The right to have duly reasoned judgment.[8] The Canadian courts failed to provide duly reasoned judgments and failed to address the substance of the case.


F.              The right to have the “Miscarriage of Justice” reviewed by a higher tribunal. Given the fact that the appeal courts failed to provide duly reasoned judgments, Hirjis were deprived of their rights to have their “miscarriage of Justice” reviewed by a higher tribunal.


G.             The right to be presumed innocent. The Canadian appellate courts failed to act impartially and failed to examine the facts and evidence with due diligence and an open mind that were presented to the appellate courts which leaves no doubt in the minds of reasonable observer of “fraudulent acts” committed by the Canadian courts to willfully deny justice to the Hirjis and unlawfully impose “Miscarriage of Justice” and the court issued orders that will illegally deprive the Hirjis of their lives savings and make them homeless.

______________________________________________________
 without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx


[5] Article 14(1) of ICCPR states that every individual is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx


[6] As per Sub-Rule 2.1 of Rule 2 General Evidence; ‘'Evidence' includes all the means of proving or disproving any matter, i.e., oral testimony, written records, demonstration, etc….’’

https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu02.aspx#21


[7] Article 14(1) of ICCPR states that every individual is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

 

[8] Article 2(3)(b) of ICCPR states that “Each State Party to the present Covenant undertakes:To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”;

 

 

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H.             The Canadian courts fabricated evidence in Reasons for Judgment against the Hirjis to willfully deny justice to the Hirjis and when the Hirjis confronted the trial court and requested the trial court to correct the palpable errors that amounts to “Miscarriage of Justice” the trial court willfully refused to correct the errors and consciously violated and deprived the Hirjis of their right to a due process of law and right to a fair trial by an independent and impartial court and right to equal benefit of the law and willfully imposed “Miscarriage of justice” on the Hirjis.


V. STATEMENT OF FACTS


Background


23.           Mr. Mohd Ali Hirji and Mrs. Parin Mohd Ali Hirji Lalani reside in North Vancouver, in the province of British Columbia, Canada. Both Mr. and Mrs. Hirji immigrated to Canada from London England in 1987 with their two daughters and became Canadian Citizens.


24.           Mr. Hirji by profession is a Computer programmer and he has been in currency arbitrage and Hedging business since the 1980s. Hirjis Bought their residential townhome 1084 Lillooet Road in a Strata complex located at North Vancouver and known as Strata Plan VR-44 in 1988. Under the Strata Property Act, duty is imposed on the Strata council to maintain and repair the common property of the owners of the Corporation[9]. From 1991 to 2007 the strata council neglected their duty of care owed to the Hirjis and discriminated against the Hirjis and failed to carry out their legal obligations imposed on them by the legislation.[10]


25.           Despite the legal advice from their own legal counsel the Strata Corporation (“the defendants”) failed to act reasonably and refused/failed to carry out their legal obligations.[11]


Financial Losses and Miseries Suffered by Hirjis

_________________________________________________________
[9] As per section 99(1) of Strata Property Act, “……owners must contribute to the strata corporation their strata lots' shares of the total contributions budgeted for the operating fund and contingency reserve fund by means of strata fees calculated in accordance with this section and the regulations”


[10] As per section 3 ofStrata Property Act “the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners”. http://www.bclaws.ca/Recon/document/ID/freeside/98043_02#part2


[11] http://www.bclaws.ca/Recon/document/ID/freeside/98043_02#part2

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26,            The unreasonable acts of the Strata Council and failure of the council to act on the advice of their legal counsel resulted in the loss of sale of the Hirjis home and prevented the Hirjis to inject the required capital of $500,000 as they had planned to inject in their currency arbitrage and Hedging business. Unreasonable acts of the Strata Corporation and their refusal to act on the advice of their legal counsel resulted in enormous damages for the Hirjis.


27.            Hirji’s requests to the council to grant them the permission to carry out the required repairs that had been neglected from 1991 by the council that forced the Hirjis to live in substandard conditions. The Strata council discriminated against the Hirjis and refused to grant the Hirjis same privileges and permission granted to other owners of the Corporation.[12]


28.            Hirjis offered to forgo all the damages and forgo the damages they had suffered from 2001 to 2007 of around $150,000 in loss of rental income and end this litigation in 2007. However, the defendants unreasonably refused to act reasonably and kept violating their legal obligations.


29.            The defendants failed/declined to grant the conduct of the required repairs to the Hirjis so that they can carry out the required repairs on the same terms and conditions granted to other owners and sell their unit and inject the required capital in their business and secure the futures of their children and grandchildren.


30.            Not only the negligence of the defendants that forced Hirji to live in substandard conditions from 1994 to 2008 but the defendants' Negligence also destroyed the Hirji business and Hirji lifelong work and the financial losses which were the reasons for Hirji grief, and mental agony. When Hirji sought remedies for the decimation and injustice through the Canadian Judicial system, the State consciously chose to disregard the Human Rights and willfully aided and abetted the defendants to totally destroy the business, the lives, reputation and image of the Hirji.


31.            The Hirji appeared before the trial court in good faith in pursuit of truth and justice and proved their burden of proof and their case at the trial. The trial court unlawfully issues orders that would strip down the Hirji’ of their entire lives possessions and their home and make them homeless. The willful abuse of trusted judicial office by the trial court and their malicious and unlawful acts are contemptible and criminal because these acts and crimes are committed by the member state WILLFULLY and DELIBERATELY to discriminate against the Hirji and deprive them of justice and their constitutional Rights so that the defendants and their insurers can escape the huge liability at the expense of Hirji and the Canadian taxpayers.

 

___________________________________________________________________

[12] http://www.bclaws.ca/Recon/document/ID/freeside/98043_00

 

 

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Filing of Lawsuit.


32.           On February 8, 2007, the Hirjis commenced a lawsuit against the Strata Corporation. It should be noted that neither the Strata Corporation’s lawyer Mr. Jamie Bleay nor the Hirjis were in favor of continuing with this lawsuit, all of them agreed it was not in the best interest of either the Strata Corporation or the Hirjis to pursue this litigation and wanted to end it amicably as soon as possible. Had the Strata Corporation acted reasonably and granted the conduct of repairs in September 2007 to the Hirjis on same terms and condition granted to the other owners of the corporation this litigation would have ended and no one would have suffered any major damages. However, the defendants and or the defendants' insurers refused/failed to act on their counsel’s advice or on the views expressed by the chambers judge of Supreme Court of British Columbia on October 24, 2008.


33.           On October 24, 2008, In a chambers hearing, the chambers Judge’ based on the limited evidence presented to him by the defendants' counsel and the Hirjis, the chambers judge told the defense counsel in no uncertain terms that the defendants are going to concede. He made it very clear to the defense counsel his views on the passage of time from 1991 to 2008 and unreasonableness of the Strata Council and possible outcome of this litigation based on the limited facts that were presented to him by both parties. The defendants and their insurers chose to ignore the views of the chambers Judge’ and continued to peruse the litigation when they had no reasonable defense against the statutory breach and willfully inflicted enormous damages on the Hirjis.


Commencement of Trial and fabrication of evidence.

 

34.           On April 7, 2015, the trial commenced before the Supreme Court of British Columbia. The Hirjis proved their burden of proof and the defendants’ failures and the Negligence and breach of contract and the damages they have suffered on the preponderance of evidence and balance of probabilities. The defendants failed to negate Hirjis evidence.


35. The trial court of Supreme Court of British Columbia unlawfully omitted all of Hirjis exculpatory evidence in reasons for judgment and fabricated the evidence in the reasons for judgment rendered on November 6, 2015, and denied justice to the Hirjis. The trial court willfully admitted fabricated and inadmissible evidence of the defense witness into evidence that renders the trial unfair.

 

 

 

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36.            The trial Court willfully admitted the inadmissible expert reports of the defense that does not comply with the SCCB court rule 11-6.[13] The trial court committed fraud on Hirjis and violated all the required Norms of fairness of the trial, and Hirjis right to be tried by a competent, independent and impartial court that is an essential requirement for a fair trial. The trial court by willfully committing fraud upon Hirjis unlawfully imposed “Miscarriage of justice” on the Hirjis.


Hirjis’ Quest for Justice.


37.           On November 26, 2015, Hirjis filed their Notice of Appeal in compliance with the court rules and within the required time limit in the Court of Appeal[14].


38.           On January 12, 2016, the Hirjis wrote a 7-page letter to the Ministry of Justice and requested the Ministry of Justice to investigate the Miscarriage of justice imposed on Hirjis[15]


39.           On January 28, 2016, the defendants based on the void orders of the trial court obtained a Court Order for security for costs of $8000 from the court of Appeal of British Columbia.[16]


40.           On February 04, 2016 Ministry of justice advised Hirjis to refer to section 63-69 of the Judges Act,[17] and request to the Canadian Judicial Council who is empowered to address complaints relating to the conduct of federally appointed judges.


41.           On February 16, 2016, the Hirjis complied with the order of Court of Appeal issued on January 28, 2016, and made a payment of $8000 in the Supreme Court of British Columbia.


42.           On February 24, 2016, Hirjis communicated with the judicial council to investigate the misconduct of the trial judge[18].

 

_____________________________________________________
[13] http://www.bclaws.ca/civix/document/id/complete/statreg/168_2009_02#rule11-6
[14] As per section 14 of court of appeal act, an appeal The time limit for bringing an appeal or an application for leave to appeal is (a) 30 days, commencing on the day after the order appealed from is pronounced, or
(b) if another enactment specifies a different period, that different period. http://www.bclaws.ca/Recon/document/ID/freeside/00_96077_01
[15] Exhibit 1: Binder 7 page 67 https://drive.google.com/open?id=1Lwpd-B6gQImSGdEzpUd_knYn9-HOAaDu
[16] Exhibit 2; Binder 7 page 74 https://drive.google.com/open?id=1Lwpd-B6gQImSGdEzpUd_knYn9-HOAaDu
[17] Sec. 63(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court. https://laws-lois.justice.gc.ca/eng/acts/j-1/page-14.html
[18] Sec.63 (1) The Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d). https://laws-lois.justice.gc.ca/eng/acts/j-1/page-14.html

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43.           On March 11, 2016, the judicial council failed/refused to carry out an investigation into the misconduct of the trial judge of willfully and unlawfully imposed miscarriage of justice on the Hirjis by the trial judge contrary to section 63-69 of the Judges Act[19] and closed the Hirjis file.


Evils of Injustice that would render Hirjis Homeless.


44.           On June 3, 2016, the defendants based on the Void judgment [20] and court orders of trial court unlawfully registered a charge on the Hirjis home depriving the Hirjis of access to equity in their home preventing them to fight this unlawfully imposed miscarriage of justice or continue to make a living.


45.            Trial Court defrauded the Hirjis’ out of their legitimate claim for damages and issued orders amounting to over $900,000 with the full knowledge that this would unlawfully strip down the Hirjis’ of their lives assets and their home and unlawfully make them homeless, particularly when the Hirjis’ have proved their burden of proof and their case with indisputable evidence at the trial.


46.           On June 4, 2016, Mrs. Hirji underwent an open-heart surgery. The court and the defense counsel were made aware of this fact in May 2016.


Upholding of Void Judgement in the Court of Appeal


47.           On August 22, 2016 Hirji filed a letter in the Court of Appeal of British Columbia [21] informing the court of appeal of B.C of willfully imposed “Miscarriage of Justice” on Hirjis by the trial court. [22]

___________________________________________________________
   [19] https://laws-lois.justice.gc.ca/eng/acts/j-1/page-14.html


[20] Fraud upon the court" makes void the orders and judgments of that court.It is also clear and well-settled Illinois law that any attempt to commit "fraud upon the court" vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters ..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).


[21] Letter filled in court of appeal of B.C. https://drive.google.com/open?id=1WtMUmZtwZ9bTziNpqm_4Ziz6z6N8xA0b


[22] Respondent’ has the right to submit pro se briefs on appeal, even though they may bein artfully drawn but the court can reasonably read and understand them. See, Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). Courts will go to particular pains to protect pro se litigants against consequences of technical errors if injustice would otherwise result. U.S. v. Sanchez, 88 F.3d 1243 (D.C.Cir. 1996).

 

 

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48.           On September 29, 2016 court of Appeal of British Columbia chambers judge consciously upheld the void judgment [23] of the trial court and allowed the “Miscarriage of Justice” unlawfully imposed by the trial court on the Hirjis to continue [24].


49.           On November 25, 2016, penal of three judges consciously upheld the decision and void orders of the chambers judge of the court of appeal and allowed the “Miscarriage of Justice” unlawfully imposed on Hirjis to continue. [25]


50.           On April 27, 2017, Supreme Court of Canada consciously upheld the decision [26] and void orders of penal of three judges of the court of appeal of British Columbia and allowed the “Miscarriage of Justice” unlawfully imposed on Hirjis to continue.


Hirjis’ Pleadings to Investigate Injustice met with denial


51.           On May 1, 2017, Hirjis wrote 14 page letter[27]to the Honourable Chief justice of Canada to reconsider its unlawful acts and unlawfully Imposed Miscarriage of Justice by lower courts approved by the Supreme Court of Canada[28] and copied the letter to the Office of the High Commissioner for Human Rights via email.

______________________________________________________

[23] In The People of the State of Illinois v. Fred E. Sterling, 357 III.354;192 N.E. 229[15] (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); In re Village of Willowbrook, 37 III. App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”). Under Federal law, when any officer of the court has committed “fraud upon the Court”, the orders and judgment of that court are void or of no legal force or effect.
https://casetext.com/case/the-people-v-sterling-1


[24] Because the Plaintiff is pro se, the Court has a higher standard when faced with a motion to dismiss, White v. Bloom, 621 F.2d 276 makes this point clear and states: A court faced with a motion to dismiss a pro se complaint must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2D 263 (1972).


[25] Pro se litigants' Court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers. If the court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with rule requirements. Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999)

.
[26] Exhibit 4: Supreme court of Canada; Judgement dated April 27, 2017;

https://drive.google.com/file/d/1conXS9-7luFbEFaRREB7Un6lf00WviKO/view


[27] Hirjis Letter to Chief Justice of Canada dated May 1, 2017; https://drive.google.com/file/d/1M_rChyuk58JAG4ikdPYWNRmJATtMfSE9/view


[28] https://www.scc-csc.ca/home-accueil/index-eng.aspx

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52.           On May 18, 2017, Hirjis filed their Notice of Motion to a judge or a registrar to reconsider its decision of unlawfully imposed Miscarriage of justice by the lower courts approved by the supreme court of Canada[29] .


53.           On November 1, 2017, Supreme Court of Canada Registrar refused to file the motion for reconsideration.[30] On November 14, 2017, Hirjis’ wrote to the registrar[31] and communicated to him and informed him that court has acted unlawfully and the orders of the Supreme Court of Canada are unlawful and void and unenforceable in law.


54.           On December 4, 2017, the Hirjis communicate with all judicial officers of Supreme Court of Canada and put all of them on notice[32] and requested them to act lawfully and quash the Void orders of the trial court to prevent an enormous damage to the Hirjis running into tens of millions of dollars. The Supreme Court of Canada failed to act reasonably or lawfully and refused to quash the void orders of the lower courts that are unenforceable in law.


Hirjis’ were denied further remedies by the Supreme Court of Canada.


55.           On December 4, 2017, the Supreme Court of Canada confirmed and informed the Hirjis in an email[33] that Supreme Court of Canada no longer has the jurisdiction on the case and has no further remedies for Hirjis[34] depriving them of their liberty.


56.            The Hirjis have exhausted all the available remedies to them in the domestic courts as confirmed by the highest court of the land the Supreme Court of Canada. Therefore this communication meets the admissibility requirement under Article 5 of ICCPR.[35]


Miscarriage of Justice


57.           While pursuing this case Hirjis had to endure a miscarriage of justice unlawfully imposed upon them by the judicial system of the member state. Hirjis were made to go through many hardships in their quest to seek justice and to end their ordeals. However, at every step of their fight against the injustice, they were unlawfully denied their rights of fair and impartial remedy before the law.

______________________________________________
[29] As per rule 73(1) of the supreme court of Canada At any time before judgment is rendered or within 30 days after the judgment, a party may make a motion to the Court for a re-hearing of an appeal.

https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-156/page-10.html


[30] Exhibit 6: Supreme Court of Canada;s refusal to reconsider the decision; https://drive.google.com/file/d/1uF9Wf9pcCNs6DargFGbXpVWkjCyYl2_9/view


[31] Exhibit 7: Letter written by Mr. Hirji to registrar dated November 14, 2017; https://drive.google.com/file/d/1VUXrYH_sA5qSdNMjvGMkQ1HylkEbJHtJ/view


[32] Exhibit 8: Hirjis letter to chief justice putting all judges of scc on notice for their acts of bad faith and uphold the rule of law and the constitution;

https://drive.google.com/file/d/1o7VZP1VIGhOGY2DwWnoZgJyCpHlIfZwS/view


[33] Exhibit 9: Email from Supreme Court of Canada dated December 4, 2017 informing Hirjis that the court no longer has the jurisdiction on the case;

https://drive.google.com/file/d/1bcs9JCvNLti_iqsARvAgSQypNj2jy7Ib/view


[34] Article 5(1) of ICCPR: “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”


[35] https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

 

 

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58. The trial started in Supreme Court of British Columbia on April 7, 2015 and lasted until May 8, 2015. During the trial the Hirji submitted their prime documented evidence and proved their burden of proof and the defendants Negligence and breach of contract with Cogent evidence supported by corroborating testimonies of some of the defense witnesses. The defendants failed to negate Hirjis’ evidence.


59. One of the most important and the primary and central issue in this litigation apart from statutory breach of the defendants from 1991 to 2008 was the violation of Strata bylaws s. 5(1) and 5(2)[36]. The defendants’ unreasonable refusal to grant the conduct of the repairs to the Hirji on same terms and conditions granted to other owners of the corporation that would have ended this litigation in September 2007. Neither the Hirji would have suffered enormous damages in their currency Arbitrage and Hedging business, nor the defendants would have suffered and major damages. At the trial the defendants admitted they were aware of the Hirji business losses being an issue. The trial Court refused failed to address this issue that established the defendants' Negligence[37] that resulted in the collapsed sale of the unit preventing Hirji to access to the equity of $500,000 in the unit and injecting the required capital in their corporate currency Arbitrage and Hedging account resulting in Hirji enormous damages.

_______________________________________________
  [36] Strata Property Act; Schedule of Standard Bylaws
(a) the structure of a building;

(b) the exterior of a building;

(c) chimneys, stairs, balconies or other things attached to the exterior of a building;

(d) doors, windows or skylights on the exterior of a building, or that front on the common property;

(e) fences, railings or similar structures that enclose a patio, balcony or yard;

(f) common property located within the boundaries of a strata lot;

(g)those parts of the strata lot which the strata corporation must ensure under section 149 of the Act.
Section 5; (1) An owner must obtain the written approval of the strata corporation before making an alteration to a strata lot that involves any of the following:
which the strata corporation must ensure(2) The strata corporation must not unreasonably withhold its approval under subsection (1), but may require as a condition of its under section 149 of the Act approval that the owner agrees, in writing, to take responsibility for any expenses relating to the alteration.
(3) This section does not apply to a strata lot in a bare land strata plan.
http://www.bclaws.ca/civix/document/id/complete/statreg/98043_18
[37] LAW ON NEGLIGENCE IS VERY CLEAR.
In Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] EWCA Civ 17:
The court states:
"Once the duty of care is held to exist and the defendants' negligence is proved, the Appellant only has to show that by reason of that negligence he has lost a reasonable chance of employment (which would have to be evaluated) and has thereby sustained loss: McGregor on Damages 1 4th ed. (1980), pp. 1 98 202, paras. 276 278 and Chaplin v. Hicks [1 911] 2 KB 786. He does not have to prove that, but for the negligent reference, Scottish Amicable would have employed him,"

 

 

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60.           During the trial, the Hirji brought to the attention of the trial court the views of the Supreme Court Chambers judge on the unreasonableness of the defendants and his views on the passage of time and the possible outcome of this litigation. The trial court failed/ refused to give any weight to the views on the law of a more senior and experience chambers judge.


61.            The trial court’s entire reasons for Judgment is arbitrary and it is based on sole testimonies of only the defense witnesses mainly the Strata council members that is unsubstantiated nor backed by any cogent or documented evidence nor supported by any expert reports. The trial court ignored all of the Hirji prime documented evidence and the Hirji expert witnesses testimonies. The trial court ignored and violated the Rules of Civil Procedure and the Rules of Evidence.


62.            The trial court based its judgment solely on unsubstantiated evidence of the defense witnesses that did not exist in the record. The testimonies of the defense witnesses that did not exist are inadmissible as evidence in law. The trial court despite being aware of the facts and the law before the order was sealed that the defense witnesses’ testimonies that do not exist are inadmissible. Nevertheless trial court admitted the inadmissible testimony of the witnesses because without the inadmissible evidence and the perjured testimonies of the defense witnesses the defendants had no defense and under the law the Hirji must succeed and are entitled under the law to all the damages they have suffered and the court has a legal obligation and must award the damages to the Hirji they have suffered under the law.


63.            The trial court willfully chose to deny justice to the Hirji and discriminate against the Hirji and chose to act unlawfully and willfully chose to violate Hirji guaranteed rights to a fair trial and equal benefit of the law before a competent impartial and independent tribunal. The trial court "falsified the facts" in reasons for judgment and chose to commit one of the most serious offenses in the Criminal Code and willfully denied justice to the Hirji and unlawfully imposed Miscarriage of justice on the Hirji by abusing the trusted judicial office for the purpose other than the public good.


64.            After the failure of the defense counsel to settle the issue of enormous damages suffered by the Hirji on their own unreasonable terms the defendants their insurers and the defense counsels or all of them resorted to illegal tactics and obstructed the course of justice during the judicial proceedings and submitted concocted testimonies and evidence of the defense witness that never existed and was never an issue before the trial.[38]

______________________________________________
[38] Exhibit 10: Binder 6 para 47. https://drive.google.com/open?id=1tQEpdeNzei_61dpwqrvH5XAdYqGireov
As a result, it was my view at the time that vR44's First Formal offer was presented, the

16

 

65.            The defense counsel, as well as the trial court, knew before the order was sealed that the evidence of the witnesses never existed and was never an issue before the trial and it is false and untrue and inadmissible as evidence. The trial court knew that without the false and perjured testimonies of the witnesses the defendants had no reasonable or credible defense and the Hirji must succeed in their case and under the law Hirjis are entitled to all the damages they have suffered. The trial court willfully admitted the inadmissible evidence into the record and unlawfully denied justice to the Hirjis.


66.            The trial court held the chambers hearing on the request of the defendants, the trial court refused to grant the same privilege to the Hirjis and Hirjis request to trial court to reconsider the concocted testimonies of witnesses that is inadmissible as evidence and was repeatedly brought to attention of the trial court via emails on more than one occasion between January 28, 2016 and February 22, 2016[39]. The trial court failed/refused to abide by the principle of the equality of arms that is inherent in a fair trial and declined to grant chambers hearings or permit Hirji to cross-examine Mr. Alex Eged, lead counsel for the Strata, on concocted evidence in the affidavit filed in the Supreme Court proceedings on

 

______________________________________________
 

plaintiffs would have been set to receive a total of more than $210,000 had they accepted the offer. This figure is more than four times what I had assessed as the plaintiffs. best day in court in terms of an award of damages if the matter were to proceed through trial.


[39] Exhibit 11: On January 28, 2016, before the order was sealed Mr. Hirji sent an email to Trial scheduling seeking to set down a full-day hearing before Justice Sharma in order to cross-examine Alex Eged, lead counsel for the Strata, on an affidavit filed in the Supreme Court proceedings. In that email, Mr. Hirji alleged various Strata witnesses had committed perjury at trial and that counsel for the Strata had mislead the Court and failed to fulfill its duty to the Court. In response to Mr. Hiri.i's request for a hearing, Trial Scheduling advised Mr. Hirji that having made her decision, the issue of costs was the only issue Justice Sharma would consider at the hearing on February 11, 2016, and his recourse was to appeal if he disagreed with Justice Sharma's decision. (binder 7 page 91) https://drive.google.com/open?id=1Lwpd-B6gQImSGdEzpUd_knYn9-HOAaDu

 

Exhibit 12 On February 5, 2016 Mr. Hirji again informed and requested trial court to grant a full days Hearing and stated “I will be asking at the hearing that the defendant's defense be dismissed with prejudice and substantial aggravated cost. The application “ is already scheduled for two hours to be heard on February 11, 2016”. (binder 7 page 116)

https://drive.google.com/open?id=1Lwpd-B6gQImSGdEzpUd_knYn9-HOAaDu

 

On February 22, 2016, Mr. Hirji yet again sent an email to Trial Scheduling, seeking a full-day hearing before Justice Sharma so that he could present evidence regarding the fabrication of evidence by counsel for the Strata:
"Correct omitted and misstated facts in Reason for Judgement (sic) and dismiss the defendant's defense with prejudice and Strike off fabricated testimonies of witnesses".

 

“The Judgement in this case is not perfected. The trial judge was misled by the defense witnesses with fabricated evidence on primary issues. Plaintiffs Requests the Honourable Madam Justice Sharma for a full day hearing so that plaintiffs can present the evidence how the evidence was fabricated by the defendants to obtain this judgement against us.”

 

Exhibit 13:“The counsel for the defendants has been provided with details of the fabricated evidence and was requested to inform the court of the false evidence provided by the defense witnesses, under professional Code of conduct Rule 4.01 (5)”. (binder 7 page 121) https://drive.google.com/open?id=1Lwpd-B6gQImSGdEzpUd_knYn9-HOAaDu

 

 

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November 23, 2015 before the order was sealed. The trial court failed/refused to act lawfully as a competent impartial and independent tribunal and consciously imposed Miscarriage of justice on the Hirjis. The trial court violated Hirjis rights to a fair trial and equal benefit of the law.


67.           The trial court refused to grant a hearing to Hirjis and violated Hirjis right to a fair hearing and fair trial before competent impartial and independent tribunal and allowed the concocted testimonies of the defense witness into evidence that never existed. The trial court fraudulently imposed the “Miscarriage of Justice” on Hirjis and committed fraud on the court and fraud on Hirjis. The trial Court unlawfully deprived the Hirjis of justice and defrauded them out of their legitimate claim for damages.


68.           During the chambers hearing the trial court refused to consider and apply the case law put before the trial court issued by the higher court that confirms the trial court has a jurisdiction to change its mind if it is in the interest of justice to correct the error. To ensure justice is properly rendered is the primary function of the court of law.


69.           During the trial, there were no defense expert witnesses called by the defendants to testify. The only expert witnesses who testified were the Hirjis two witnesses, first, witness a certified structural engineer Mr. Jerry lum who had complied with SCBC Rule 11-6 and submitted his certified report to the court. Mr. Jerry lum’s report was challenged by the defense Structural engineer or was it repudiated by the defense engineers. Second witness a realtor who testified and confirmed the reason for the collapsed sale of the unit was due to the failures of the defendants to complete the agreed and required worked and their failure to meet the deadline.


70.           The trial court discriminated against the Hirjis and allowed the defendants' engineers reports as expert reports that did not comply with court Rules 11-6[40] that is inadmissible as evidence that is in violation of court rule 11-6 that violates Norms of fairness and violated Hirjis rights to a fair trial before a competent impartial and independent tribunal.


71.           During the trial, the trial court unreasonably refused to allow the Hirji prime exhibits of the business losses into evidence into court record. The trial court failed/refused to abide by the Rules of Civil Procedure and the Rules of Evidence, the trial court perpetrated obstruction of justice. The Local Rules of Civil Procedure require that all alleged statements of fact in motions and other filings must be allowed.

_______________________________________________
[40] http://www.bclaws.ca/civix/document/id/complete/statreg/168_2009_02#rule11-6

 

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72.           During the trial, the Hirjis played their prime evidence recorded live on CDs of the profits made in the currency trading account. The trial court after watching the evidence for few minutes unreasonably refused the Hirjis’ prime evidence to be entered into evidence as exhibits “O”and”P” despite the fact that the defense counsel raised no objection or disputed the authenticity or its contents, or profits made by Hirji in the account with the aid of his currency analyzer software recorded live on the CD’s. The Local Rules of Civil Procedure require that all alleged statements of fact in motions and other filings must be allowed. However, the court failed/refused to abide by the Rules of Civil Procedure.


73.           During the trial, the trial court watched some of the evidence of loss of income suffered by Hirji in the video presentation for a short while. The evidence submitted to the trial court confirms from the opening of the account in segment 1 on the cd from February 16, 2015 to close of account in segment 25 on the cd on March 13, 2015 Mr. Hirji made a net trading profit of U$2,363,191.60 in his currency trading account under a period of a MONTH with an initial investment/deposit in the account of U$500,000. Mr. Hirji made the profit as confirmed in the account with the aid of his computer software called currency analyzer with full access granted to the defense counsels Mr. Eged and Mr. Safarik to monitor each transaction 24/7 In Trial Exhibits “O” and ”P”.


74.           On November 6, 2015, the trial court in Reasons for Judgment willfully made up the facts that the trial court knew to be false and untrue. The trial court knew that its false and untrue statement would be incompatible with the provisions of the Constitution and the Rule of the Law of the land. It will constitute violations of Hirjis fundamental rights to a fair trial and equal benefit of the law and it will unlawfully impose Miscarriage of Justice on the Hirjis. It will destroy the lives the credibility, reputation, and the image of the Hirijs. Nevertheless, the trial court willfully made false findings of facts throughout the Reasons for Judgement which the trial court can’t justify nor can it substantiate their unlawful acts to destroy the Hirjis lives their credibility and their image.


Denial to Appeals to ratify miscarriage of justice


75. On August 22, 2016, Hirjis’ filed the following letter in the Court of Appeal registry and informed the “Administration of Justice” the following amongst other things;


“I particularly request this application be heard by Honorable Chief Justice so that he can see for himself how the lives, the reputation, and image of a litigant is destroyed by the Supreme Court trial court by willfully fabricating the trial evidence submitted in the trial and willfully deprive and inflict enormous damage on the state by fabricating and misstating the facts in reason for judgment”

 

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76.           The Court of Appeal senior officials of the “Administration of Justice” failed/refused to investigate this extremely serious issue of national importance of Miscarriage of Justice unlawfully imposed on the Hirjis by the trial court and violations of Human Rights and failed/refused to take any steps to ensure that the rule of law is upheld and Miscarriage of Justice unlawfully imposed on the Hirjis by the trial court is prevent.


77.           On September 29, 2016 The Appellate court upheld the decision of the lower court and ignored and declined/failed to address serious allegations of unlawfully imposed Miscarriage of Justice and fraudulent acts of the trial court and failed/refused to apply the correct legal principle applied in other similar cases and unreasonably declined to grant the leave for extension of time and dismissed the Hirjis’ application.[41] The Appellate court knew the facts of the miscarriage of justice from the materials and affidavits failed in the registries and in the Hirjis Amended notice of appeal filed on August 17, 2016.[42] The Appellate court in reasons for judgment schedule II list the allegations made by the Hirjis.


78.            The Appellate court failed to address any of the allegations made by Hirjis in their amended Notice of Appeal and fulfill its function as Appellate court and prevent this Miscarriage of justice. The Appellate court failed to act impartially and violated Hirjis rights to a fair trial and equal benefit of the law. The Appellate court failed to provide a reasoned judgment.


79.           On November 25, 2016, the penal of Appellate court ignored and declined/failed to address the violations of constitutional rights and the issues raised by Hirjis in their Notice of Motion.[43]  The Appellate court failed to fulfill its function as Appellate court and failed to prevent and address Miscarriage of justice unlawfully imposed on Hirjis and refused to address the violations of their Charter rights in Notice of Motion. The penal of the Appellate court violated Hirjis Rights to a fair trial before a competent impartial and independent tribunal and equal benefit of the law. The penal of the Appellate court upheld the unlawful and void orders of the trial court and void orders of chambers judge of the Appellate court. The penal of Appellate court failed to provide a reasoned judgment.

______________________________________________

[41] Because the Plaintiff is pro se, the Court has a higher standard when faced with a motion to dismiss, White v. Bloom, 621 F.2d 276 makes this point clear and states: A court faced with a motion to dismiss a pro se complaint must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2D 263 (1972)


Pro se litigants' Court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers. If the court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with rule requirements. Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).


[42] Exhibit 14: See Binder # 7 page 233 to page 235 https://drive.google.com/open?id=1Lwpd-B6gQImSGdEzpUd_knYn9-HOAaDu


[43]See binder # 2 page 162 to page 164 https://drive.google.com/open?id=1VF-BbgrgodmoR6f53M8z5ywnVPam2_75

 

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80.          On April 27, 2017, The Supreme court of Canada upheld the lower courts decisions of unlawfully impose Miscarriage of Justice on the Hirjis. The Supreme Court of Canada ignored and declined/failed to uphold the Hirjis Rights to a fair trial before competent impartial and independent tribunal. The Supreme Court of Canada failed/refused to address the issue of National Importance of Fraud committed by lower courts that is of paramount public interest and unlawfully deprived Hirjis of justice and defrauded them out of justice and deprived them of their lawful claim for damages by violating their Constitutional rights. The Supreme Court of Canada failed to provide a reasoned judgment.


81.          The Highest court in the land violated Hirjis Constitutional rights to a fair trial and equal benefit of the law and challenges the ruling of U.S. Supreme Court in United States v. Lee, 106 U.S. 196 (1882)[44] which provides that “No one is above the law”


VI. ADMISSIBILITY


82.           This communication meets the admissibility requirement under Article 5[45] of the first Optional Protocol. The Canadian government is a party to ICCPR. Hirjis have exhausted all domestic remedies and has not submitted a complaint to another international or regional mechanism.


Jurisdiction.


83.           The Canadian government acceded to the ICCPR and the first Option Protocol to the ICCPR on 23 March 1976, in accordance with ARTICLE 9 [46]. The violations of Hirjis rights under the ICCPR cover the time period from April 7, 2015, to December 4, 2017. Therefore, this communication meets the admissibility requirement in Article 1 of the first Optional Protocol to the ICCPR which states that “A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol”.

_______________________________________________
[44] U.S. Supreme Court in United States v. Lee, 106 U.S. 196 (1882)[9] states the following;
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it’’. https://supreme.justia.com/cases/federal/us/106/196/


[45] Article 5(2) of the First Optional Protocol to ICCPR provides the admissibility criteria of any communication received from a citizen against member states. It states that “The Committee shall not consider any communication from an individual unless it has ascertained that: (a) The same matter is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged’’.


[46] Article 9: 1. Subject to the entry into force of the Covenant, the present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or instrument of accession. 2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

 

 

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No other procedure of international investigation or settlement.


84.           No other procedure of international investigation or settlement have been submitted a complaint to another treaty body and/or a regional mechanism regarding Hirjis unlawful “Miscarriage of Justice” Therefore, this communication meets the admissibility requirement in Article 5(2)(a) of the first Optional Protocol to the ICCPR.


Exhaustion of domestic remedies.


85.           Hirjis have exhausted all available remedies. They filed numerous appeals to higher courts, including the Supreme Court of Canada, requesting a review of unlawfully imposed “Miscarriage of justice” on them.


86.           In their appeals, the Hirjis has repeatedly claimed that their fundamental rights for a fair trial and Constitutional Rights were violated both during the trials and during chambers hearings. None of the courts substantively addressed claims raised by the Hirjis in their appeals. All courts upheld the fraudulent and unlawful acts of lower instance court’s decision of November 6, 2015, imposing a miscarriage of justice on Hirjis and defrauding them out of their legitimate claim for damages that the Hirjis are entitled to under the law. Therefore, this communication meets the admissibility requirement in Article 5(2) (b) of the first Optional Protocol to the ICCPR.[47]


Details of Domestic Remedies Exhausted and the Fair Trial Claims Raised:


87.           On November 06, 2015 the trial court of British Columbia dismissed the Hirjis case and awarded damages against the Hirjis despite the fact that at the trial Hirjis proved their burden of proof and their case and the negligence and breach of contract of the defendants on the preponderance of evidence and balance of probabilities with corroborating testimonies of the defense witnesses. The defendants failed to negate Hirjis evidence. This demonstrates and confirms the state’s judicial officers WILLFULLY abused

______________________________________________
[47] Article 5(2)(b) of the First Optional Protocol to ICCPR; The Committee shall not consider any communication from an individual unless it has ascertained that: (a) The same matter is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.

 

 

22

 

their judicial office and have placed themselves above the rule of law and according to the law have declared war against the constitution. see Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958)[48]


88.          On November 26, 2015, Hirjis submitted and filed their Notice of appeal in the Court of Appeals of British Columbia. On August 17, 2016, Hirjis filed their amended Notice of Appeal in the court of appeal of British Columbia. The Hirjis listed 27 items relating to the trial courts failures and willfully imposed Miscarriage of Justice on the Hirjis as well as violations of Hirjis Constitutional Rights amongst other rights listed in the footnote.


89.          On August 22, 2016, Hirji filed a letter in the Court of Appeal of British Columbia informing the Administration of Justice of Court of Appeal of British Columbia of unlawfully and willfully imposed “Miscarriage of Justice”


90.           On September 14, 2016, the Hirjis submitted their appeal to the court of appeal.[49] In Hirjis case, the appeal courts failed to provide duly reasoned judgments and failed to address the substance of the appeals.


a) For example, the trial court admitted into evidence the defendant’s expert report of December 4, 2009, that does not comply with Court Rule 11-6 and it is inadmissible as evidence and renders the trial unfair;


b) The defense witnesses’ inadmissible testimonies under oath entered into evidence by the trial court that did not exist and it is inadmissible as evidence and renders the trial unfair;


c) The trial court violated the Hirjis right to a fair trial before competent impartial and independent tribunal and rendered the decision that is null and void in law and that is unenforceable in law and has no legal force or effect.

 

_____________________________________________
[48] Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958).
Note: Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the supreme law of the land. The judge is engaged in acts of treason. The U.S. Supreme Court has stated that "no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it". See also In Re Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).


[49] On September 14, 2016 “Administration of justice of British Columbia” assigned Madam Justice Newbury (“the chambers judge”) to hear the HirjisExhibit 15: Affidavit# 1 filed on’ application for extension of time. Mr. Hirji at the hearing submitted his Affidavit # 1 filed on August 19, 2016and copy of his written submissions provided to justice Newbury and defense Counsel Mr. Safarik.August19,2016; https://drive.google.com/file/d/1e676uioG25Z1qKfRV_VlKiKuuxrMhRDr/view
Exhibit 16: copy of his written submissions provided to justice Newbury and defense Counsel Mr. Safarik; https://drive.google.com/file/d/1zpcWqbE1oE0B7MCHE47QVnbj0ArZCbo8/view

 

 

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91.          On September 29, 2016, the Hirjis appeared before the Court of Appeals of British Columbia. The Court of Appeals of British Columbia upheld the decision of the trial court and unlawfully imposed Miscarriage of Justice on the Hirjis by the trial court. The Court of Appeals of British Columbia failed to evaluate any of the violated rights and issues raised in the Hirjis Notice of appeal or provide a reasoned judgment.


92.           On November 25, 2016, the Hirjis appeared before the penal of three judges of Court of Appeals of British Columbia. The penal of judges upheld the decision of trial court[50] and unlawfully imposed Miscarriage of Justice on the Hirjis. The penal of judges declined/refused to hear or admit the Hirjis submissions into evidence or address the issues of violations of their Charter rights raised by the Hirjis in their Notice Motion. The penal of judges of the Court of Appeals of British Columbia violated Hirjis right to due process of law and right to a fair hearing and fair trial before competent impartial and independent tribunal.


93.          On April 27, 2017, the Supreme Court Canada dismissed the Hirjis application for leave and upheld the void decision of the trial court and unlawfully imposed Miscarriage of Justice on the Hirjis. The Supreme Court of Canada upheld the void judgments of the penal of judges of the court of British Columbia. The Supreme Court of Canada failed to consider the claims raised by the Hirjis or provide a reasoned judgment.


94.          On May 1, 2017 Hirjis’ wrote a detailed 14 page letter[51] to the Chief justice of Canada and informed the Chief justice and requested the chief justice to reconsider the unlawful acts perpetrated by the lower court judges and the failures of all levels of Canadian courts including the Supreme Court of Canada to render justice according to the rule of law of the land and the willful violations of the Hirjis’ rights committed by the courts contrary to the provisions under the Constitution and also violations of basic human rights under ARTICLE 1, 7, 8, 10 and 30 of “the Universal Declaration of Human Rights”


95.           On May 4, 2017, Supreme Court of Canada wrote to Hirjis[52] and advised them to file a Notice of Motion for the court to reconsider its decision.


96.           On May 18, 2017 Hirjis’ failed their Notice of Motion to a Judge or the Registrar.[53]

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[50] Exhibit 17: the Void judgment of the panel of Court of Appeal of British Columbia rendered on November 25, 2016; https://drive.google.com/file/d/16Bty_ycuagVqhoOPWFbg_IYTx0ZIolMc/view


[51] Exhibit 18: On May1,2017 Hirjis’ wrote a detailed 14 page letter to the Chief justice of Canada requesting the chief justice to reconsider the unlawful acts perpetrated by the lower court judges;

https://drive.google.com/file/d/1FYuvE8LQvPQwbXxwIlRQQK6bSz2QiAln/view


[52] Exhibit 19: On May 4, 2017,Supreme Court of Canada wrote to Hirjis and advised them to file a Notice of Motion for the court to reconsider its decision;

https://drive.google.com/file/d/1Yfoti6jvePOjPRjmCLn2bgZ1aF1aVHR8/view

 

 

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97.           On November 1, 2017, Supreme Court of Canada informed Hirjis’ that their motion for reconsideration was not accepted for filing by the Registrar.[54] On November 14, 2017, Hirjis’ wrote to the registrar.[55]


98.           Finally on December 04, 2017 Mr. Hirji informed the Honourable Chief justice Beverley McLachlin as well as all other Honorable judges of Supreme Court Canada and put them on notice for their unlawful acts and their unreasonable and willful refusal to uphold the rule of the law of the land and approving the void orders and criminal acts committed by lower court judges and unlawfully depriving the Hirjis’ of justice
.
99.           On December 04, 2017 The Supreme Court of Canada informed the Hirjis’ and indicated to them via email that the Supreme Court of Canada no longer has the jurisdiction on subject matter and has no further remedies for Hirjis. [56]


100.         Finally, no lawyers that the Hirjis tried to retain were willing to take Hirjis case because they “smell[ed] foul smell.”


101.         Given the failure and willful refusal of the Appeals court to act lawfully and fulfill its function and uphold the rule of law and the failure of Supreme Court of Canada to act lawfully and uphold the rule of law and provide a reasoned decision in addressing the criminal acts of lower courts and the supreme court’s willful refusal to uphold the Hirjis constitutional rights to fair trial, and equal benefit of the law it would be futile for the Hirjis to argue violation of their rights in domestic courts.[57]


VII. VIOLATIONS OF THE ICCPR.


102.         The trial proceedings against the Hirjis were fundamentally flawed and unfair. The Canadian government violated its obligations under the ICCPR by denying the Hirjis:

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[53] On May 18, 2017 Hirjis’ filed their Notice of Motion to a Judge or the Registrar in four Sherlock binders Marked and refereed herein as Binder 3, Binder 4, Binder 5, Trial Transcripts Binder


Exhibit 20: Binder 3; https://drive.google.com/file/d/14GMiRHhEwu7TfKjw7jrK27K8jXaqY_KK/view


Exhibit 21: Binder 4; https://drive.google.com/file/d/1E3WNHgQowYVhHc-DtQKamQo-scAy0Uth/view


Exhibit 22: Binder 5; https://drive.google.com/file/d/1559wYu79ttTvv5vCDlJ_1siDS7vfvKRv/view


Exhibit 23: Trial Transcript Binder; https://drive.google.com/file/d/1fEpAuYzPypmgSpwVVgyqwppBTOzaay5s/view


[54] Exhibit 24: https://drive.google.com/file/d/1uF9Wf9pcCNs6DargFGbXpVWkjCyYl2_9/view


[55] Exhibit 25: On November 14,2017 Hirjis’ wrote registrar; https://drive.google.com/file/d/1VUXrYH_sA5qSdNMjvGMkQ1HylkEbJHtJ/view


[56] Exhibit 26: Email from Supreme Court of Canada dated December 4, 2017; https://drive.google.com/file/d/1OJCOKsto1sCgbKJt3ESW4090PQcvoAPk/view


[57] Article 5(2)(b) of the First Optional Protocol to ICCPR provides for a remedy Under ICCPR to a citizen of Member state in case the Individual has exhausted all available domestic remedies.
“5(2)The Committee shall not consider any communication from an individual unless it has ascertained that: ..; (b) The individual has exhausted all available domestic remedies. ……”
https://www.ohchr.org/en/professionalinterest/pages/opccpr1.aspx

 

 

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A. The right to be tried by an independent and impartial court; (Article 14(1) of ICCPR)
B. The right to have duly reasoned judgment; (Article 14(5) of ICCPR)
C. The right to have the judgment reviewed by a higher tribunal; (Article 14(5) of ICCPR)
D. The right to be presumed innocent; (Article 14(2) of ICCPR)
E. The right to be treated in an impartial manner by member state; (Article 2(1) of ICCPR)
F. The right to develop the possibilities of judicial remedy. (Article 2(3)(b) of ICCPR)


A. Violation of the Right to be tried by an Independent and Impartial Court


103.         Article 14(1) of the ICCPR[58] provides that “everyone shall be entitled to a […] hearing by a competent, independent and impartial tribunal.” The right to be tried by a competent, independent and impartial court is an essential requirement for a fair trial. The Human Rights Committee held that the fair trial guarantees provided in Article 14 of the ICCPR constitute an absolute right that is not subject to any exceptions[59]. The requirement of independence refers, inter alia, to the “independence of the judiciary from political interference by the executive branch and legislature.” The requirement of impartiality shall be analyzed through the reasonableness test. The court must appear to a reasonable observer to be impartial. Because the principle of the equality of arms is inherent in fair trial, court’s impartiality shall be analyzed in line with its ability to ensure equality of arms. The Human Rights Committee held that equality of arms “means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.”


In Dieter Wolf v. Panama, the Human Rights Committee held that “the concept of a "fair trial" within the meaning of [Article 14(1)] must be interpreted as requiring a number of conditions, such as equality of arms and respect for the principle of adversary proceedings.”

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[58] Article 14(1) of ICCPR: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”.


[59] Human Rights Committee, General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and To a Fair Trial, U.N. Doc. CCPR/C/GC/32 (2007), para. 19. See also, Gonzalez del Rio v. Peru, Communication No. 263/1987, U.N. Doc. CCPR/C/46/D/263/1987 (1992), para. 5.2. (“The Committee recalls that the right to be tried by an independent and impartial tribunal is absolute right that may suffer no exception.”).

 

 

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Manfred Nowak, former U.N. Special Rapporteur on Torture and author of the commentary on the ICCPR, commented that “the most important criterion of a fair trial is the principle of “equality of arms” between the plaintiff and respondent or the prosecutor and defendant.”


The court was not impartial In Hirjis case, the trial, appeal and the Supreme courts failure to prevent serious miscarriage of justice procedural and substantive mistakes should be seen as an obvious indication of their bias.


On April 14, 2015, at the trial the Hirjis played an unedited video recording of evidence of net currency trading profits of $2,363,191.60, made in the account by Hirji under a period of one month with an initial investment of $500,000 deposited in the account before the trial court. The trial court refused to admit the Hirjis prime evidence of business losses as trial Exhibits. The trial court declined to watch full version of the video recordings. The demonstration of the full version of the video was of relevance because it shows how the Hirji made the profits he claimed in the account.


During the trial, The defense did not raised any objections to the video recording or the authenticity of the recordings or the trades carry out by Hirji or the trading profits of $2,363,191.60, made by Hirji in the account with the Initial investment of $500,000 under a period of one month. The trial court unreasonably refused to admit the Hirjis prime evidence that proved Hirjis business losses as trial exhibits and refused / failed to comply with the rules of evidence.


In its judgment, the trial court’s bias and misstated facts based its decision on inadmissible evidence and its refusal to act lawfully and comply with the Constitution and Charter of rights and freedom and its refusal to uphold the law and illegally impose Miscarriage of Justice[60] on the Hirjis and fraudulently deprive them of justice is clearly evident to a reasonable observer throughout the Reasons for Judgment rendered by the trial court on November 6, 2015.


The trial court’s bias is also evident from how it dealt with the inadmissible evidence of the defendants expert reports that did not comply with the court rule 11-6 [61] and the defense witnesses’ inadmissible testimonies under oath entered into evidence by the trial court that did not exist.[62] The trial court violated the Hirjis right to a fair trial before competent impartial and independent tribunal and rendered the decision that is null and void in law and that is unenforceable in law and has no legal force or effect.

_____________________________________________
[60] The Court in Yates v. Village of Hoffman Estates, Illinois,[28]209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse." When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judge’s orders are void, of no legal force or effect.
https://law.justia.com/cases/federal/district-courts/FSupp/209/757/1411900/


[61] Supreme Court Civil Rules; Rule 11.6 Expert Reports; http://www.bclaws.ca/civix/document/id/complete/statreg/168_2009_02#rule11-6


[62] In The People of the State of Illinois v. Fred E. Sterling, 357 III.354;192 N.E. 229[15] (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); In re Village of Willowbrook, 37 III. App.2d 393 (1962) (“It is axiomatic that fraud vitiates

 

 

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Furthermore, the trial court failed to satisfy the Hirjis numerous requests to grant a hearing. For example, the court did not satisfy the Hirjis requests to grant a hearing on equal footing and refused to dismiss the defense witnesses’ perjured testimonies and the evidence that does exist and without the perjured testimonies of two key defense witnesses the defendants’ defense falls apart and the defendants have no defense. The trial court further failed to satisfy the Hirjis requests to cross-examine the lead counsel on his affidavit filed in the court registry on November 22, 2015.


Finally, the trial court based on the inadmissible evidence and perjured testimonies of defense witness and fabricated facts in Reasons for judgment, the trial court dismissed Hirjis case and unlawfully deprived the Hirjis of justice and their right to be tried by a competent, independent and impartial court and unlawfully imposed Miscarriage of justice on the Hirjis and awarded costs against Hirjis that would illegally strip down the Hirjis of their lives assets and make them homeless.
Violations of Hirjis Constitutional, as well as procedural rights and a Miscarriage of Justice, were raised in both the courts the court of Appeal and Supreme Court of Canada by the Hirjis. These courts willfully refused to act lawfully and declined to take any action to prevent Miscarriage of justice willfully imposed on Hirjis or reinstate Hirjis procedural rights.


B. Violation of the Right to Have Duly Reasoned Judgment.


104.         Article 14(5) provides that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” The fair trial requirements of Article 14 of the ICCPR require courts to provide reasoned analyses for their judgments. A person’s right to a duly reason judgment is directly linked to his right of appeal. Further, the court’s obligation to provide a duly reasoned judgment has a direct impact on the equality of arms principle.


In Dieter Wolf v. Panama, the Human Rights Committee held that “the principle of equality of arms is not respected where the accused is not served a properly motivated indictment. “The right to have one’s conviction reviewed by a higher court imposes on the State a duty to review the case substantively, both on the basis of sufficiency of the evidence and of the law. In addition to the obligation to review the case substantively, a higher court is under obligation to provide substantive reasons for its own decision.’’

______________________________________________
everything.”). Under Federal law, when any officer of the court has committed “fraud upon the Court”, the orders and judgment of that court are void or of no legal force or effect.

 

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In Hirjis case, the appeal courts failed to provide duly reasoned judgments and failed to address the substance of the appeals. For example On September 14, 2016, the Hirjis submitted in their appeal to the court of appeal that the trial court admitted into evidence the defendants expert report of December 4, 2009 that does not comply with Court Rule 11-6. Admitting the defendants’ inadmissible evidence into record by the trial court that renders trial unfair and orders of the trial court Void and in those cases re-trial is ordered by the appellate court. On September 29, 2016 the court of Appeal upheld the lower court’s decision. In its decision, the court of Appeal indicates that it did not reach its decision after “thorough, full and impartial examination” of the case. The decision of the court of Appeal is ten pages long. Of these ten pages, the court of Appeal spent eight pages restating the bias finding of facts of the case and summarizing the first instance court’s decision. The court’s reasons for upholding the trial court’s decision were composed of ten short paragraphs and comprised roughly two page of the decision. In those ten paragraphs, the court of Appeal just restated the lower court’s reasoning without giving any weight to the Rule of Law or Rule of Evidence or inadmissible evidence of the defendants that renders the trial unfair and Void and according to the court rules and case laws retrial is the remedy. The court of appeal failed to inquire into a substantive discussion of the trial court’s decision and the claims raised by the Hirjis in their Notice of Appeal. Hirjis were able to produce evidence in support of their claim and satisfied all the criteria as stated in Delgamuukwv. British Columbia (1993) 1993 Canl/14516 (BC CA), 5[63], required for reversing the trial court decision by the appellate court and instead the court of Appeal restated that Hirjis failed to prove their case. It should be noted that in addition to just repeating the bias reasons by the court of appeal relied on the lower court[64], the court of Appeal came to an unsubstantiated conclusion in flagrant violation of the presumption of innocence of the Hirjis.

 

______________________________________________

[63] In Delgamuukwv. British Columbia (1993) 1993 Canl/14516 (BC CA), 5
W. W.R. 9 7, Wallace J.A. in a concurring majority decision reviews in detail the principles
applicable to an appellate court's review of a trial judge's findings of fact and at page 197
,summarizes his conclusions as follows:


(1) The Court of Appeal may reverse findings of fact of the trial judge - even if they are based on credibility- if it is established that the trial judge made some 'palpable and overriding error' which affected his assessment of the material facts.


(2) Only in extraordinary cases should an appellate court find error on the part of the trial judge with respect to those aspects of the finding of facts which involve questions of credibility or weight to be given the evidence of a witness since the review court does not have the advantage the trial judge had of seeing and assessing the witnesses as they gave their evidence.


(3) A 'palpable and overriding error' exists; firstly, when it can be demonstrated there was no evidence to support a material finding of fact of the trial judge; secondly, when the trial judge wrongly overlooked admissible evidence relevant and material to the issue before the court; or thirdly, where the trial judge's finding of fact cannot be supported as reasonable, regardless of what the trial judge saw or heard during the course of the trial. An assessment of palpable error should be made on the totality of the evidence.


(4) In reversing the trial judge for 'palpable and overriding error' the Court of Appeal must designate the specific error and state why the nature of the error justifies reversing the trial judge's finding of fact.


[64] The significance of a reasonable apprehension of bias was considered by this Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLll 84 (SCC), [1992] 1 S.C.R. 623, at p. 645:

 

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C. Violation of the Right to Have the Conviction Reviewed by a Higher Tribunal.


105.        Given the fact that the appeal courts failed to uphold the rule of law and the provisions of the constitution and provide duly reasoned judgments, the Hirjis had no effective right to have their Miscarriage of Justice unlawfully imposed by the trial court reviewed by a higher tribunal. Article 14(5) of the ICCPR provides that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” The right to have duly reasoned judgment discussed above is of particular importance for the person to exercise his/her right to the conviction reviewed by a higher tribunal. The Human Rights Committee held in numerous occasions that States parties to the ICCPR are obliged to provide “duly reasoned” judgments so that a convicted person can have the conviction reviewed by a higher court. For example, in Little v. Jamaica, the Human Rights Committee held that “[i]n order to enjoy the effective exercise of [the right to have conviction reviewed by a higher court], a convicted person is entitled to have, within a reasonable time, access to written judgment [that is] duly reasoned […].” Furthermore, a higher tribunal is under obligation to give full evaluation of the evidence. The Human Rights Committee held that to meet the review requirements provided in Article 14(5), States parties shall render “full evaluation of the evidence and the conduct of the trial.” In Cesario Gómez Vázquez v. Spain, the Human Rights Committee held that the author was denied the right to a review of his conviction and sentence because “the review [was] limited to the formal or legal aspects of the conviction” only and failed to consider facts of the conviction.


In Hirjis case, the appeal court failed to uphold the rule of law and refused/failed to give a full evaluation of the evidence used at trail and the conduct of the lower court. In upholding the lower court’s decision, the appeals court limited itself to restating the facts of the case and evidence presented by the trial court, and thus denied the Hirjis their right to have Miscarriage of justice unlawfully imposed on them by the trial court to be reviewed by a higher tribunal.


D. Violation of the Right to be Presumed Innocent


106. Article 14(2) of the ICCPR provides that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty […].”The presumption of innocence is fundamental to the protection of human rights. It “imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, [and] ensures that the accused has the benefit of doubt […].”

______________________________________________
“As I have stated, it is impossible to have a fair hearing or to have procedural fairess if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it. is void.”

 

 

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In Hirjis case the trial court willfully refused to uphold the rule of law and the constitution and blatantly abused the power granted to the courts to fraudulently deny justice to the Hirjis and deprive them of the damages they have suffered by willfully imposing Miscarriage of justice on the Hirjis so that the defendants and their Insurers can escape the huge liabilities of tens of millions of dollars and profit from it at the expense of the Hirjis and at the expense of the state’s tax payers. As the discussions above demonstrated, there were numerous violations of Hirjis rights to fair trial.


The flagrant violations of the Hirjis rights to fair trial discussed above are of such gravity as to give the deprivation of liberty an arbitrary character. The Canadian government, along with denying Hirjis right to freedom of expression, failed to guarantee him independent and impartial court. The courts presumed Hirjis guilty, and failed to provide Hirjis with duly reasoned decisions and deprived them of the justice and the damages they have suffered that they are legally entitled to under the law and to have the Miscarriage of justice reviewed by a higher court.


E. Violation of the right to be treated in an impartial manner by member state.


Article 2(1) of ICCPR states that “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In this case Hirjis were denied equal treatment by the state authority of Strata council and rejected their pleas to conduct repairs on the same terms and condition granted to the other owners of the corporation. When Hirjis resorted to Judicial Remedies granted to all the individuals of member state, the Trial, Appellate and Supreme Court behave in impartial manner and served a willful miscarriage of justice by ignoring all the evidences presented by Hirjis. Hence, the right to be treated in impartial manner by the member state is violated.


F. Violation of the right to develop the possibilities of judicial remedy.


The Canadian courts failed to provide duly reasoned judgments and failed to address the substance of the case.


Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated.[65] Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an

_______________________________________________
[65] Article 2(3)(b) of ICCPR provides that “Each State Party to the present Covenant undertakes to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”

 

 

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effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.[66]


On December 4, 2017 the Hirjis communicate with all judicial officers of Supreme Court of Canada and put all of them on notice and requested them to act lawfully and quash the Void orders of the trial court to prevent an enormous damage to the Hirjis running in to tens of millions of dollars. To which the Supreme Court of Canada reverted in email on the same date and specifically denied any further remedies to Hirjis stating that Supreme Court of Canada no longer has the jurisdiction on the case and has no further remedies for Hirjis.Hence, the right to develop the possibilities of judicial remedy is denied to Hirjis.


VIII. A DETERRENT FOR MISCARRIAGE OF JUSTICE IN SIMILAR CASES.


The importance of damage awards as a remedy for constitutional violations As per Chief Justice of Canada the Right Honourable Beverley M. McLachlin.


The purpose of the Charter is to protect fundamental rights and freedoms by placing them beyond the purview of legislatures and officials acting with governmental authority. The Charter heralded a new era in which the protection of minority rights from infringement by the majority, either by legislation or governmental conduct, has been secured to a greater extent. The degree to which the promise of the Charter is realized is directly dependent upon the degree to which damages are a realistic remedy for constitutional violations. The importance of robust remedies is essential to the protection of Charter rights, for, as Chief Justice McLachlin (as she is now) remarked "[w]ithout effective remedies, the law becomes an empty symbol; full of sound and fury but signifying nothing."[67]

 

 

______________________________________________
[66] General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant https://www.refworld.org/docid/478b26ae2.html para. 16


[67] Justice Beverley M.Mclachlin (as she then was), "The Charter. A New Role for the Judiciary?" (1991), 29 Alta. L. Rev. (No. 3) 540 at 548 (paper delivered on October 16, 1990, for the Weir Memorial Lecture at the University of Alberta. Edmonton,
http://albertalawreview.com/index.php/ALR/article/viewFile/1544/1533

 

 

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Damages as a remedy for constitutional violations achieve a number of goals, First, they provide- compensation to the victims and ensure that there is effective redress for the wrong that has been suffered. Second, damages achieve a notable deterrent effect. Theaward of damages for a past infringement of the Charter presumably deters future prospective infringers and encourages proactive compliance. This idea lies at the root of remedies law itself, which seeks to put aggrieved parties in the position they would have occupied but for the breach. Third, damages for constitutional violations can be viewed as a means through which infringers can be punished in the case of egregious violations. Fourth, the availability of damages promotes access to justice; any economic analysis of litigation dictates that the absence of personal benefit will deter the commencement of constitutional claims. Fifth, ineligibility for damages would seem to contradict accepted principles of standing, according to which the plaintiff gains party status because he or she is "directly affected" by a monetary interest, and conversely a public interest litigant only gains standing where there is no effective means for the dispute to come before the courts. For all of these reasons, damages as a remedy for constitutional violations serve the public interest by encouraging the continued respect for, and compliance with, Charter values.


The records of criminal justice are full with instances of wrongful convictions by the judicial officers. These miscarriages of justice have usually occurred when judicial officers willfully refused or failed to uphold the rule of law particularly against the pro se litigants by “falsifying the facts” by abusing the trusted judicial office and falsifying the facts in reasons for judgment to favor one party rendering the trial unfair in those cases. The committee member should consider the negative and ripple effect on violations of Human Rights that is currently running at colossal rate of over 40% according to fair trial. org. This is solely due to unfair trials similar to this case and due to unaccountability of some of the corrupt judicial officers round the world that brings into disrepute those judges who are honest and hardworking.


The misconduct in this case by the judicial officers is so egregious that the mere fact of going forward in light of it will be offensive. In arriving at conclusion committee must considered the societal interest and the effective and unlawful persecution of the Hirjis in this case by the Member state. The committee should be well aware that willful "falsification of facts" in reasons for judgment is the most serious offence in the Criminal Code and one that in normal circumstances ought to be determined on its merits to prevent violations of Human Rights by the Member State. The facts in this case are so transparent to any reasonable observer to conclude that the affront to decency and fair play, together with the damage caused to the Hirjis and the integrity of the judicial system by the actions of some judicial officers named in this petition, is disproportionate to the societal interests involved.
 

 

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United Nations Human Rights Committee has made tremendous progress over the past 70 years in improving Human Rights violations by the trusted judicial officers of all Member States. Nevertheless, it is still running at an astronomical rate of over 40% solely due to unfair trials. The credibility of United Nation Human Rights organization throughout society can in a great measure be improved further by careful and well-tailored measurers by the competent Human Rights Committee in this case and other similar cases and sending a clear message to all the member states by holding the perpetrators accountable with full force of the enforcement of the covenants. The committee should also be aware and bare it in mind that these violations are not due to judicial errors but they are willfully committed by the Member State to unlawfully deny justice to the Hirjis’ and to destroy their lives for the benefit of the insurers who make billions of dollars each year by abusing the court process as demonstrated by this case. The unlawful acts of the Member State blatantly undermines the authority and efforts of the United Nations to prevent Human Rights violations globally that currently accounts for 40% of all Human Rights violations that are willfully committed by judicial officers of some of the most civilized Member states like Canada who have agreed to protect the Human Rights and have ratified the ICCPR covenants.


Summary.


A. The defendants had no viable defense to pursue this litigation for their statutory breach from 1991 to 2007 in 2007.


B. The defendants had an opportunity to resolve and end this litigation in 2007 on their own terms by granting the conduct of repairs to the Hirjis. Had the defendants and their insures acted reasonably this litigation would have ended in September 2007 and no one would have suffered any major damages. The defendants/insurers refused/failed to act reasonably on the advice of their legal counsel and inflicted enormous damages on Hirjis.


C. The defendants failed/ignored to act on the advice of their legal counsel Mr. Bleay in 2007.


D. The defendants/insurers failed/ignored to act on the request or the views of well-respected and well experienced supreme court Judge Honourable Mr. Justice Silverman on the passage of time and the law and the possible outcome of this litigation in October 2008.


E. The State’s trial court breached its judicial duties as an Independent and impartial court of law. The trial court committed one of the most serious offenses in the Criminal Code by willfully "falsifying the facts" in reasons for judgment that cannot be justified by the trial court to unlawfully deny justice to the Hirjis. The trial court unlawfully defrauded Hirjis out of their claim for damages and issued orders that would unlawfully strip down the Hirjis of their lives assets and make them homeless by abusing the trusted judicial office for a purpose other than the public good.


F. The State’s appellate court breached its duties as an Independent and impartial tribunal and willfully aided and abated the criminal acts of the trial court and denied justice to the Hirjis. The Appellate court upheld and approved the "falsified facts" in reasons for judgment that would deny justice to the Hirjis. The State’s appellate court defrauded Hirjis out of their claim for damages and approved the trial court’s orders that are null and void and that would unlawfully strip down the Hirjis of their assets and make them homeless by abusing the trusted judicial office for the purpose other than public good.


G. The State’s Supreme Court of Canada breached its judicial duty imposed on the court by the Constitution to act as an Independent and impartial tribunal and willfully aided and abated the criminal acts of the appellate and trial courts and denied justice to the Hirjis. The Supreme Court of Canada upheld and approved the "falsified facts" in reasons for judgment that would deny justice to the Hirjis. The State’s Supreme Court of Canada defrauded Hirjis out of their claim for damages and approved the trial court’s orders that are null and void and that would unlawfully strip down the Hirjis of their assets and make them homeless by abusing the trusted judicial office for the purpose other than the public good.

 

 

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IX. REMEDIES


107.         The author of the communication respectfully requests the Committee to:


a.             Make a finding that the Canadian government violated its obligations under the International Convention on Civil and Political Rights to guarantee the right to be tried by an independent and impartial court, the right to have duly reasoned judgment, the right to have the Miscarriage of Justice and conviction reviewed by a higher tribunal, the right to be presumed innocent, the right to be free from arbitrary decisions, and the right to freedom of expression;


b.            Provide an effective remedy;


c.             make full restitution of the losses and the damages suffered by the Hirjisand put them in the position they would have occupied but for the state's breach;


d.            award the legal cost to Hirjis equaling to the amount awarded to the defendants;


e.             immediately issue orders to remove the charge fraudulently placed by the defendants on Hirjis Home;


f.             Urge the Canadian government to make a public apology to clear and restore the Hirjis name, reputation and their image in their community destroyed by the state courts.

 

g.             Urge the Canadian government to hold the perpetrators accountable and to introduce safeguards to prevent similar violations from happening in the future.

 

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FULL NAME AND ADDRESSES OF THE PERSON(S) SUBMITTING THE INFORMATION
Contact details.
Mr. Mohd Ali Hirji and Mrs. Parin Mohd Ali Hirji Lalani,
1084 Lillooet Road, North Vancouver,
British Columbia V7J 2H8,
Canada.
TEL:(604) 985-9383
Email: Moh2@ shaw.ca
Email: parin.lalani@ hotmail. Com
Website: http://www.mohdhirji.com

 

 

X. LIST OF EXHIBITS


Exhibit 1: letter written by Mr. Hirji dated January 12, 2016 to Ministry of Justice requesting to investigate the miscarriage of Justice.
Exhibit 2: Court order for security dated January 28, 2016 slapped on Hirjis for cost of $8000
Exhibit 3: Hirji filed a letter dated August 22, 2016 in the Court of Appeal of British Columbia
Exhibit 4: Supreme court of Canada; Judgment dated April 27, 2017
Exhibit 5: Hirjis Letter to Chief Justice of Canada dated May 1, 2017
Exhibit 6: Refusal of Supreme Court of Canada Registrar to file the motion for reconsideration dated November 1. 2017

 

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Exhibit 7: Letter written by Mr. Hirji to registrar dated November 14, 2017
Exhibit 8: Hirjis letter to chief justice putting all judges of Supreme Court of Canada on notice for their acts of bad faith and uphold the rule of law and the constitution dated December 4, 2017
Exhibit 9: Email from Supreme Court of Canada dated December 4, 2017 informing Hirjis that the court no longer has the jurisdiction on the case
Exhibit 10: Binder 6
Exhibit 11: Mr. Hirji sent an email to Trial scheduling seeking to set down a full-day hearing before Justice Sharma in order to cross-examine Alex Eged, lead counsel for the Strata, on an affidavit filed in the Supreme Court proceedings dated January 28, 2016
Exhibit 12: Request made by Hirjis to Trial Court to grant a full days Hearing dated February 5, 2016
Exhibit 13: The counsel for the defendants has been provided with details of the fabricated evidence and was requested to inform the court of the false evidence provided by the defense witnesses, under professional Code of conduct Rule 4.01 (5)
Exhibit 14: notice of appeal filed on August 17, 2016
Exhibit 15: Affidavit# 1 filed on August 19, 2016
Exhibit 16: copy of his written submissions provided to justice Newbury and defense Counsel Mr. Safarik
Exhibit 17: Void judgment of the panel of Court of Appeal of British Columbia rendered on November 25, 2016
Exhibit 18: letter to the Chief justice of Canada requesting the chief justice to reconsider the unlawful acts perpetrated by the lower court judges by Hirjis dated May 1, 2017
Exhibit 19: Supreme Court of Canada wrote to Hirjis and advised them to file a Notice of Motion for the court to reconsider its decision dated May 4, 2017,
Exhibit 20: Binder 3
Exhibit 21: Binder 4
Exhibit 22: Binder 5
Exhibit 23: Trial Transcript Binder

 

 

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Exhibit 24: Supreme Court of Canada informed Hirjis’ that their motion for reconsideration was not accepted for filing by the Registrar dated November 1, 2017
Exhibit 25: Hirjis letter to registrar dated November 14, 2017.
Exhibit 26: Email from SCC December 4, 2017.

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    Mohdhirji.com                        PETITION TO: UNITED NATIONS HUMAN RIGHTS COUNCIL

                                                                       UNITED NATIONS GENERAL ASSEMBLY