Friday, April 5, 2013

Stranger than Fiction: The Freeman on the Land...Again

On a couple of occasions before, I've posted about the "Sovereign Man" hoax, aka (or very similar to) the "Freeman on the Land."

In a nutshell, these are people who hold to a philosophy that they are not subject to governmental regulation. There's a bizarre pseudo-legal argument that they can somehow withdraw from jurisdiction of governmental authority.

So they don't feel beholden to the justice system.  But the justice system disagrees.  And, as a result, it is not unusual for freemen to end up in jail.

Not that they generally go out to commit particularly serious offences.  Regulatory offences, refusals to pay taxes, fines, and just debts, etc.  However, they fundamentally reject legal authority and the attempt to enforce obligations, and this gets them into deeper trouble.

So in one post, I discussed a few examples:  A person leasing a Mercedes then not making payments, then refusing to return the car...until he was jailed.  Another who registered a PPSA security against MBNA for $28 million, for no basis whatsoever, and refused to voluntarily delete it unless MBNA extended a significant line of credit to him.  Or the person who, in traffic court, refused to identify himself, then after the JP called a brief recess, purported to take control of the Court and dismiss the charges.  (It was a minor ticket for parking on his lawn, or some such trivial matter, and he was subsequently convicted in absentia and fined.)

In another post, I discussed another case involving the lawn-parker, who was charged criminally with trespass to property.  Apparently, the bank had taken possession of his house (one might theorize as to how that happened), and he allegedly broke back in, and was charged.  Bail was denied, and he was jailed until he entered a guilty plea to a lesser offence.

Part of the point of this blog is public education, and I want to put this in no uncertain terms:  The "Sovereign Man" and "Freeman" arguments are complete and utter nonsense.  They're routinely rejected by the Courts.

There's a new decision, which was covered in the National Post, recently released by Justice O'Donnell, in another typical freemen case.  Justice O'Donnell's writing is fantastic, structured as prose instead of traditional judicial writing, and I strongly suggest that anyone read the decision.

The Facts

Factually, the case was really simple, and a typical escalation of the freeman philosophy.  Mr. Duncan made a turn without signalling, and was pulled over.  The police asked him for his license, and he took the position that the police had 'no jurisdiction' over him.  The police disagreed, and the disagreement escalated to an arrest, which Mr. Duncan physically resisted.  So the failure to signal becomes an assault charge.

The Decision

Justice O'Donnell was not thrilled with the notion of having to actually respond to the freeman nonsense, so he felt very fortunate when, on September 18, 2012, Alberta's Justice Rooke released a behemoth decision comprehensively addressing the issues.

That being said, Mr. Duncan was acquitted anyways, albeit not because of anything he argued.

The trouble is that failing to signal is not, in and of itself, an offence.  It's only an offence where other traffic may be affected, and Justice O'Donnell found that there was no evidence of such an effect.  Given that the only authority relied upon for the stop was the failure to signal, which offence was not made out, the subsequent demand for documentation was not lawful, nor was the subsequent arrest, and therefore Mr. Duncan's resistance to the arrest could not have been unlawful.

I'll grant that this isn't my bailiwick, but I think there are challenges with the decision.  Firstly, the evidence is that the police officers were directly behind Mr. Duncan.  With a vehicle directly behind him, it becomes eminently reasonable to expect that that vehicle may have been affected by the manoeuver.

Secondly, I might question whether an acquittal on the reason for the stop automatically results in illegality of the demand for documents, or of the arrest.  The legality of an arrest is not determined by the question of whether the accused was innocent, but whether or not there were reasonable and probable grounds for the arrest.  I'm not entirely sure that it's the same question in this context.  As well, I know that the police don't need a reason to stop you and ask for your license and registration, though I'm not sure about the impact of having a reason for which the accused is ultimately acquitted.  Any comments from criminal lawyers in the gallery?

On a brief review of the case law, it looks to me like the facts of this case are pretty much on all fours with R. v. Clarke:  The defendant made a turn without signalling, with no other cars around, except for a police car half a block behind him.  The police attempted to pull him over, and he pulled into a parking garage, and the police followed.  They determined that he was intoxicated, and charged him with 'over 80'.

Clarke was convicted, with the trial judge accepting that the police cruiser 'may have been affected', then the Superior Court overturned the conviction on logic very similar to that used by Justice O'Donnell here.  Nobody was affected, therefore there was no basis to pull him over, therefore the police had no basis to detain him at the outset.

The Court of Appeal took a different view, finding that the trial judge's finding that the police car may have been affected was capable of being supported by the evidence and therefore entitled to deference, and that, even if the turn weren't an offence, for subtleties in legal definitions of which the police may not have been aware, the police were still empowered by the Highway Traffic Act to pull him over.
"I do not accept the respondent’s submission that we should approach this case on the basis that the police purported to arrest the appellant for an offence that does not exist in law.  There is an offence of failing to signal a turn and that is what the police, on reasonable grounds, thought he had done.  Even if the Crown was unable to establish that the police car was close enough to be a vehicle affected by the movement, to justify the actions of the police, the Crown only needs to prove the existence of reasonable grounds, not the actual commission of the offence"
I wonder if we'll see an appeal from Justice O'Donnell's decision.  Freemen are a little oblivious to legal nuance, and will see an acquittal as an endorsement of the freeman philosophy, despite the decision expressly rejecting that in no uncertain terms.

Other entertaining notes

CanLII provides 'key words' from each case in its search results, which are selected through an algorithm beyond my ken.  Justice O'Donnell's decision's key words include "monkeys with typewriters" and "gods".  The only other reported case of which I am aware, in which the 'monkeys with typewriters' image was invoked was a case which went to the Supreme Court in 1990 where Apple sued another company for copyright infringement relating to computer program code, and the probability of two programmers producing the same program was compared to the likelihood of monkeys with typewriters producing Shakespearean sonnets.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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