Criminal law — Summary conviction proceedings — Appeal to a Court of Appeal — Requirement of leave — Courts — Jurisdiction .
Application by the appellant, Warman, for leave to appeal from the dismissal of his appeal from convictions in the Provincial Court on charges of assaulting a police officer and failing to appear. Warman argued that the Canadian legal system lacked the authority to prosecute him on these charges and that the Provincial Court judge erred in convicting him based on the evidence. He argued that he was entitled to a court of exclusive common law jurisdiction, and as the Provincial Court was not a court of exclusive common law jurisdiction, the judges lacked jurisdiction over him. He argued that the Criminal Code was applicable only to fictitious persons as defined therein, and that the judge erred in finding that he was a fictitious legal entity called a person. The Summary Conviction Appeal Court found that the Provincial Court judge canvassed the jurisdictional, constitutional and factual issues. It found that the judge made no error of law and that the decision on the merits of the offences was based on the evidence.
HELD: Application for leave dismissed. Warman's submissions on the jurisdictional issue were rejected as being without any legal, historical or constitutional foundation. There was no other meritorious ground of appeal. The convictions were reasonable and supported by the evidence.
Statutes, Regulations and Rules Cited:
Criminal Code, ss. 145(5), 270(2).
Legal Professions Act, S.B.C. 1998, c. 9, s. 15(3)(b).
Counsel:
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The appellant appeared on his own behalf. R. Flannigan, for the respondent. |
¶ 1 HOLLINRAKE J.A.:— This is an application by the appellant seeking leave to appeal to this Court from the judgment of the Summary Conviction Appeal Court Judge (Mr. Justice Blair) dismissing his appeal from the judgment of the Associate Chief Judge of the Provincial Court. The convictions followed charges of assaulting a police officer in the execution of his duty and failing to appear contrary to ss. 270(2) and 145(5) of the Criminal Code.
¶ 2 The position of the appellant was, as stated by the Summary Conviction Appeal Court Judge, and as it is before this court:
Mr. Warman's position on appeal is that the Canadian legal system, as constituted, lacks the authority to prosecute him on these charges and that the Provincial Court judge erred in convicting him on the offences, based upon the evidence. |
¶ 3 The conclusion of the Summary Conviction Appeal Court Judge was:
I conclude the associate chief judge canvassed the jurisdictional, constitutional and factual issues raised by Mr. Warman on appeal. I can find no error in law in the decision reached by Associate Chief Judge Stansfield. In fact, I concur with the reasons expressed in his judgment. I find that his decision on the merits of the offences is based on the evidence. The appeal is dismissed. |
¶ 4 The appellant appeared on his own behalf in the Provincial Court and in the Summary Conviction Appeal Court. In this Court there appeared on his behalf one David-Kevin: Lindsay - this is how Mr. Lindsay's name appears in the material. Mr. Lindsay advised the Court that he appeared as agent for the appellant without remuneration. Mr. Lindsay is not called to the bar in any province in this country. His appearance as agent was objected to by the Crown based on Mr. Lindsay's record in the courts of Alberta and Manitoba where he sought to appear as agent without remuneration. I do not propose to deal with the facts leading to the reasons for this objection on the part of the Crown as those facts and reasons can be found in the following cases which were referred to by the Crown. R. v. Main, [2000] A.J. No. 128 (Alberta Court of Queen's Bench); Manitoba (Attorney General) v. Lindsay, [2000] M.J. No. 174 (Man. C.A.); Manitoba v. Lindsay, [1998] M.J. No. 576 (Man. Court of Queen's Bench); and Manitoba (Attorney General) v. Lindsay, [1997] M.J. No. 404 (Man. Court of Queen's Bench).
¶ 5 In addition to the above cases referred to by the Crown Mr. Lindsay referred to R. v. Dick, [2000] B.C.J. No. 2756, Provincial Court of British Columbia, Vernon Registry No. 33956, November 27, 2000. In the Dick case Mr. Lindsay sought to appear as agent of the accused in a "failure to file" income tax proceeding. The position of the Crown in that case was that the judge should not permit Mr. Lindsay to appear as agent on the grounds that, as stated by the trial judge:
| a) | Mr. Lindsay is prohibited from practicing law in another jurisdiction and therefore, by operation of s. 15(3)(b) of the Legal Professions Act S.B.C. 1998 c.9, is not permitted to engage in the practice of law in the province of British Columbia; and |
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| b) | Mr. Lindsay's representation of the defendant will "interfere with the proper administration of justice because he will advance frivolous and vexatious arguments through the production of irrelevant materials. Mr. Lindsay's arguments have been rejected by several courts." |
Associate Chief Judge Stansfield wrote detailed reasons dealing with this issue of right to audience, reviewed cases in this Court and in Alberta and Manitoba as to Mr. Lindsay acting as agent and concluded, [2000] B.C.J. No. 2199:
I have determined that in this particular case the interests of justice require that I grant to Mr. Dick the "indulgence" of permitting him to be represented by Mr. Lindsay as his agent, for so long as I remain satisfied that Mr. Lindsay's participation neither damages the fairness of the proceedings, nor impairs the court's ability to command the respect of the community. It is my view that in the circumstances as they presently exist, the interests of justice would be impaired were I to exclude Mr. Lindsay's participation in the proceeding based upon the reasons advanced by the Crown. |
¶ 6 During the course of Mr. Lindsay's submissions to me on the agent issue and whether or not he would be granted right of audience I advised the parties that, in my view, the Law Society of British Columbia should be made aware of this case and permitted to intervene to make submissions on this issue if it so wished. That would have meant an adjournment. Having made this observation Mr. Lindsay then advised the Court that the appellant did not have funds to travel again to Vancouver from, I believe it was Calgary, and rather than adjourn the hearing before me, Mr. Lindsay would step aside and not pursue his submissions as to audience and the appellant himself would make the submissions. This is what happened and Mr. Warman made his submissions to me.
¶ 7 I am putting these reasons in writing so it will be clear that no decision was made on Mr. Lindsay's right to audience.
¶ 8 The Amended Memorandum of Factum and Law of the appellant asserts that the trial judge erred in finding that he had jurisdiction over the appellant, that the police officer involved had jurisdiction over the appellant and that the Summary Conviction Appeal Court Judge erred in upholding the trial judge on this issue of jurisdiction. These matters were addressed by the trial judge in his reasons.
¶ 9 On the issue of jurisdiction I am going to set out references from the appellant's written submissions to show the reader the basis the appellant asserts in support of the position he takes on the jurisdiction issue.
As a commoner with all applicable common law rights and freedoms, including those rights and freedoms enshrined in the constitutional document, Magna Charta 1215 and subsequent confirmations, the Appellant is entitled by law to a court of exclusive common law jurisdiction. The Appellant states that the Court he was subjected to before the Honourable Judge Overend, the Honourable Judge Sundhu, Honourable Association Chief Judge Stansfield and the Honourable Justice Blair was not a court of exclusive common law jurisdiction and thus the Honourable Judges lacked jurisdiction over him. |
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This was a summary court. A summary court is a court of military jurisdiction. The Criminal Code, in providing for summary conviction matters, will, if permitted to so do, strip the Appellant of many of his constitutional common law rights and freedoms, including those set forth in the Magna Charta 1215, the English Bill of Rights, the Petition of Right and the Act of Settlement. The Honourable Judges did not possess jurisdiction to permit a summary court to convene and try the Appellant under that jurisdiction, notwithstanding the Honourable Judge's consideration of any common law principles. |
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The Appellant further tenders that the Criminal Code is only applicable to fictitious persons, as defined therein. The Appellant, as a sovereign, flesh and blood living man, is not within the applicable definitions as contained in the Criminal Code. |
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The Appellant further relies upon expressio unius est exclusio alterius, the expression of one thing is the exclusion another. |
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The Appellant relies upon ejusdem generis in that if Parliament could have included a sovereign flesh and blood man in their definition of "everyone", "person", and, they would have. That they have left this out clearly demonstrates their lack of jurisdiction to so do. |
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The Honourable Judges erred in equating the Appellant with a "sovereign natural citizen" and "resident" both of which were never asserted by the Appellant which are more fictitious legal entitles. |
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The Honourable Judges further erred in finding that the Appellant was a fictitious legal entity called a "person", on p. 17 of his reasons for decision, so as to be encompassed by the Criminal Code. The Honourable Judge Stansfield further erred in assigning a fictitious connotation to the Appellant's common law true name. |
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The Appellant tenders that if and whenever the words "natural person" are used by the Appellant, his intended meaning is the definition given in Blackstone's Commentaries as being a man created by the GOD of nature with absolute, unalienable rights of life, liberty and property. The meaning derived by this definition from Blackstone's Commentaries by the Appellant is that of an unlimited liability man, whereas the Crown is a limited liability entity and therefore can only have authority of limited liability entities and fictitious entities. In the beliefs of the Appellant, it is understood that a man can make a contract to make himself a limited liability person, however no such contract exists or is to be construed as existing in relation to the Appellant. |
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The Appellant states that his argument goes to the very foundation of how governments have usurped the rights and freedoms of the people in this country, with the continued use of legal fictions. Such an argument, though well known in the legal community, has never actually come before the courts before due to the lawyers who have steadfastly refused to so do. As such, it is imperative that this Honourable Court hear and determine this issue of jurisdiction. |
¶ 10 In the alternative to the above submissions and in submissions entitled "Merits" the appellant says this in his written argument:
The Appellant tenders that the Honourable Judge Stansfield and the Honourable Justice Blair erred in finding the Appellant possessed the requisite mens rea in this matter. The Appellant further states that the Honourable Judge Stansfield and the Honourable Justice Blair erred in that they failed to take into consideration all appropriate facts before him or if they did so take into consideration all facts in this matter, erred in determining that said facts constituted the necessary mens rea to convict the Appellant. The Appellant further states that the Honourable Justice Blair erred in upholding this decision of the Honourable Judge Stansfield. |
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Common law deals with the mind, not the body. The Appellant tenders and relies upon the common law maxim, actus non facit reum, nisi mens sit rea, ie. An act does not make a man a criminal unless his intentions be criminal. The Appellant has filed an Affidavit denying any criminal intent in this matter. Unless there is proof otherwise, and there is none in this matter, his Affidavit stands true and correct. |
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The Appellant further relies upon actus legis nemini facit injuram, an act of law wrongs no man, in that an act of law is to be so limited in its operation that no right shall be prejudiced. The divine right of kings was never rejected so as to be replaced with the divine right of Parliament or the executive. |
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The Appellant states that at no time were his actions of a criminal nature with the requisite mens rea. The Appellant has for decades taught Canadians the principles of common law, having been taught same by Roger Elvick, Inns of Law of Wisconsin. The Appellant is a man who lives what he believes and teaches. Comments made by Mr. Harris under oath clearly show that the Appellant had no evil or criminal intent but rather, was simply asserting his belief in the operation of the law, as supported by various maxims and lawful principles of common law. |
¶ 11 The Crown in its written argument sets out the issues, as it sees them, as follows:
| A. | Did the summary conviction appeal judge err in upholding the trial judge's decision that he had jurisdiction over the Appellant with respect to the two charges before him? |
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| B. | Did the summary conviction appeal judge err in not finding that the convictions before him were unreasonable and unsupported by the evidence? |
¶ 12 The Crown says in its submissions, "Put simply, the appellant does not recognize the jurisdiction of the Canadian Courts to try him."
¶ 13 The submissions of the appellant on the issue of jurisdiction are, as I see them, a complete denial of the constitutional history of this country as it applies to the rights and obligations of its people before the law.
¶ 14 The submissions of the appellant must be and are rejected as being without any legal, historical or constitutional foundation whatsoever.
¶ 15 On the merits of this leave application, other than the jurisdictional issue, I can see no merit whatever. I have read and considered all of the material placed before the Court and I am of the view that the findings of the judge below cannot be impugned. The convictions are reasonable and supported by the evidence. There is in my opinion no ground upon which I could conclude that leave should be granted to put these convictions and the judgments of the court before the Court of Appeal for its consideration.
¶ 16 I agree with what is said in the concluding paragraph of the Crown's written submission:
In conclusion, the verdicts on both convictions were ones that a properly instructed trier of fact, acting judicially, could have rendered. The appeal court judge made no error. The Appellant has not shown that there is an issue of importance here, or that there is a reasonable possibility of success if this matter were to proceed further. |
¶ 17 The application for leave to appeal is dismissed.
HOLLINRAKE J.A.
QL Update: 20010907
cp/i/qldrk/qlsng/qlbrl
Criminal law — Offences against person and reputation — Assaults — Assault of a peace officer — Defence, self-defence — Evidence and proof.
Trial of the accused, Warman, who was charged with assaulting a peace officer engaged in the execution of his duty. The officer, Harris, stopped Warman's vehicle, as it appeared he was driving an out-of-province tour bus without the proper licence. Warman became indignant that he had been stopped and became emotionally agitated. He knocked Harris's cap off and pushed him into a ditch. Warman testified that he didn't know who did what to whom and that the whole thing was a blur. He stated that he acted the way he did because he felt he was in peril.
HELD: Warman was convicted. At the time of the assault, the officer was engaged in the execution of his duties. Warman's alleged belief that he was in peril was not reasonable or credible. Warman was indignant and impatient as a result of being stopped and acted quickly and impulsively towards the officer.
Statutes, Regulations and Rules Cited:
Constitutional Questions Act.
Criminal Code, s. 2.
Police Act.
Counsel:
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Steen D. Blechingberg, for the Crown. No counsel for the accused. |
¶ 1 STANSFIELD A.C.J. PROV. CT. (orally):-- The defendant in this criminal assault trial, Eldon Gerald Warman, is in the unhappy position of being tried in a forum whose jurisdiction he does not recognize, in a court which he asserts is a creature of a usurper or hoax government.
¶ 2 Before going any further beyond that observation I pause to observe that through the course of this proceeding I have gained some considerable respect for Mr. Warman, for having the courage of his convictions, and most especially for the courtesy he has shown to a court whose authority he does not acknowledge.
¶ 3 It has occurred to me that were I in the position of being tried in a court whose authority I did not acknowledge, it would be a very difficult experience. Imagining that experience for Mr. Warman, it is significant that he has acted with such courtesy throughout.
¶ 4 Mr. Warman refers to himself as a "sovereign natural citizen of the Anglo-Saxon common law." He asserts that the inalienable personal rights recognized in 1215 and 1225 by King John and forming the subject of the written grants to King John's barons in Magna Carta remain the supreme law to which sovereign citizens are subject.
¶ 5 Pointing to Magna Carta, the 1628 Petition of Rights, and the 1689 Bill of Rights, Mr. Warman argues that the use of summary jurisdiction as a means of unauthorized taxation is prohibited. He asserts, as I understand him, that the only law of colonial Canada was admiralty law, which itself was a legacy of 13th century mercantile law, but that Admiralty law in Canada was abolished with the enactment of the Statute of Westminster in 1931.
¶ 6 He says, thereafter, Canada has existed in a constitutional vacuum with no valid law, but for the Anglo-Saxon common law. He argues that elections in Canada are unlawful, being nothing more than the action of a "club."
¶ 7 It follows from that perspective that in Mr. Warman's submission there exists no Canadian Constitution, or at least that what I look at as the Constitution of Canada has no validity. He does not recognize the Canadian Parliament nor the British Columbia Legislature. This court, then, becomes an extension of what he refers to as "hoax" or "usurper" governments.
¶ 8 One might ask why I mention all of this when Mr. Warman is before me charged with a relatively minor criminal offence. I do so because the very expression of that viewpoint is an exercise of what I understand to be the right of every citizen of Canada and indeed every resident of Canada.
¶ 9 It is clear to me, however, that Mr. Warman's perspective on the Constitution is profoundly inconsistent with the prevailing view of Canadian society, and just as inconsistent with my understanding of the Canadian Constitution and the laws enacted thereunder by which I am bound. But it is important and significant that he and indeed any other person brought before these courts have the right to articulate their views.
¶ 10 It is helpful in the ongoing understanding of our political and social systems and of the administration of justice that we listen, and strive to understand, and be open to testing other understandings of the rule of law against the assertions of those who come before the court.
¶ 11 The extent I have been required in this proceeding to do so, I thank Mr. Warman. To the extent this proceeding causes other persons residing in Canada to question their own understanding of the Constitution under which they live, they too should be grateful that the dialogue occurs.
¶ 12 As I have done my very best to listen respectfully to Mr. Warman and to understand the position he articulates, I hope he, and this room full of his like-minded supporters, will do the same as I respond briefly.
¶ 13 As I reflected on Mr. Warman's submissions my mind travelled to the fact that on April 15th, next month, it is going to be my great honour to preside at the swearing of a number of new Canadian citizens. Will they become members of a club? Perhaps so, but in my respectful view how fortunate they will be.
¶ 14 How fortunate are all of us that have been born into that club, if such it be, because it is my view, and in this regard I understand myself to articulate the perspective of the Canadian courts, that citizens of Canada enjoy assurances of fundamental rights and freedoms, in part but not entirely as enunciated in the Canadian Charter of Rights and Freedoms.
¶ 15 Those rights and freedoms are largely parallel to the inalienable rights granted under Magna Carta. Because of the relatively peaceful nature of our society, many Canadians have little awareness of the existence of the Constitution, let alone knowledge of its terms. But it is a measure of that Constitution, I suggest, and its preservation and enforcement through the rule of law, that permits that state of innocent disregard.
¶ 16 If we lived in a police state, if we had no courts through which to assert our rights, if the elections of which Mr. Warman is so dismissive suddenly were to vanish, the reality of our present state would be impressed upon each one of us much more clearly.
¶ 17 Am I so na ve as to suggest there is no inappropriate conduct by police in this country? Of course not. Do I suggest judges never make mistakes? No, of course not. Do I suggest all political action operates from the purest of motives? No. But do we enjoy freedoms and liberties? Yes, in my respectful view we do, and we do so through the assurances of the Constitution.
¶ 18 As for the courts and the office which it is my privilege to discharge, there exists a foundational principle of our Constitution known as judicial independence. It is an oft misunderstood principle, but in Canada with our Constitution flowing from the British Constitution, the assurance of judicial independence has existed since 1701 in the Act of Settlement, which followed just twelve years after the Bill of Rights in 1689, to which I referred earlier.
¶ 19 Since 1701 there has existed in the British Constitution, and thereafter in the Canadian Constitution, a healthy tension. That tension on which initially between the king on the one hand, and the individual citizens through their organization called parliament on the other. In the last few hundred years that tension has evolved to being between the legislative and executive branches of government on the one hand, and the individual citizen on the other.
¶ 20 The independent courts exist as the fulcrum, if you will, between government on the one hand and the individual citizen on the other. The oft maligned Canadian Charter of Rights and Freedoms exists as the mechanism through which power is given to individual citizens enabling them to take to task the government of the day, through an assertion that the conduct of government is inconsistent with individual rights.
¶ 21 These are not things that we talk about every day. They are, however, principles with which all of us should struggle. It is that very struggle which I respect in Mr. Warman's submissions, though he and I need to agree to disagree on these points.
¶ 22 All that I have said, however, crystallizes in the context of a criminal prosecution. Mr. Warman, as the defendant in this prosecution, enjoys the presumption of innocence, the right to a fair and impartial hearing, and all of the assurances under the Charter.
¶ 23 He appears in a court before a tribunal which is not, and need not be, beholden to the state. It is that independent court to which other citizens may turn when their children are taken away by the state and they are cast into an adversarial relationship with extraordinarily high stakes, or to which other citizens may turn when their business is threatened by a regulatory agency or other branch of government.
¶ 24 At the outset of this proceeding Mr. Warman articulated a objection to the jurisdiction of this court. I dismissed it then, and I continue to proceed under the understanding that Canada is a society subject to the rule of law and this proceeding forms part and parcel of that Rule.
¶ 25 I turn then to the proceeding itself. Mr. Warman is alleged to have assaulted one Brian Harris, a peace officer, engaged in the execution of his duty on September 30, 1999, near Rogers Pass near Revelstoke, British Columbia.
¶ 26 I am going to go through the evidence.
¶ 27 The officer, Mr. Harris, was travelling in uniform in a marked vehicle when he observed a tour bus being operated by Mr. Warman. His attention was drawn to the front of the bus which seemed to him to lack a certain license plate which typically was found on tour buses. He decided to stop the bus to ensure it was licensed to operate in British Columbia.
¶ 28 He stopped the vehicle and caused it and his own vehicle to move off to the side of the highway. From his perspective it was a safe place to stop; from Mr. Warman's it was not. Mr. Harris then noticed an individual exit the bus, who turned out to be Mr. Warman. He says he explained why he pulled the vehicle over and asked Mr. Warman to show him what licenses he had. Mr. Warman co-operated and retrieved a plastic folder with license and registration.
¶ 29 Mr. Harris observed a sticker on the windshield indicating the vehicle was a non-resident commercial vehicle and that it derived from Alberta. He testified that non-residential permits typically include a portion indicating the payment of motor fuel tax payments. He says there were no entries in the permit indicating the fuel tax had been paid.
¶ 30 At that point there had been a discussion for a number of minutes, at a minimum, between the two gentlemen. In Mr. Harris' view, Mr. Warman's attitude was not very co-operative; his tone of voice was belligerent and loud; he appeared emotionally, not physically, agitated, and had been agitated almost from the first contact in Mr. Harris' opinion.
¶ 31 He says that at one point in their conversation, after considerable disagreement between the two gentlemen as to whether the bus was a private or a public conveyance, that Mr. Warman reached down and tried to grab the papers from Mr. Harris' hand. Mr. Harris says that the folder with the registration and insurance was snatched out of his hands, although he managed to hold onto the permit.
¶ 32 He says that immediately after that movement he saw Mr. Warman's arm coming towards him. Mr. Warman's hand made contact with the left side of Mr. Harris' head, knocking his cap flying into a ditch. He says that simultaneously Mr. Warman came down the stairs towards him and pushed him backwards, until the two of them stumbled backward into the ditch. He says that he defended himself and in doing so put a headlock on Mr. Warman and forced him to the ground.
¶ 33 On cross-examination Mr. Harris acknowledged that he had said words to the effect that he was going to issue a ticket as a "pure bluff"; there was no evidence to support any charges at that time.
¶ 34 Mr. Warman elected to give evidence.
¶ 35 As to how things got to the point they did, he said, after canvassing some preliminary matters, "I don't know exactly who did what to whom.".
¶ 36 Mr. Warman confirmed Mr. Harris was going to write a ticket even after Mr. Warman had stressed this was a private, not a public, transportation coach. He expressed the opinion that issuing tickets at the side of the road is to conduct a roving court not permitted by Section 17 of Magna Carta. He expressed the opinion that a peace officer is someone who keeps the peace, not a warden. He likened his own righteous indignation to that of Jesus confronting the money changers in the temple.
¶ 37 He says at that point he reached down and grabbed the papers. He says he saw Mr. Harris' hands drop the papers and move up in front of him in a manner which he inferred was the initiation of an attack; that he reached out at that point and his hand grazed the side of Mr. Harris' face; that when he saw Mr. Harris' hands moving up, he immediately reached out in a manner through which he touched Mr. Harris' face.
¶ 38 He acknowledged there was contact. He says in that regard that it's "a bit of a blur," but at that point he "jumped out" at Mr. Harris. Mr. Harris was coming at him so the only thing he could think of was "to bowl him over."
¶ 39 On cross-examination Mr. Warman said again that it was righteous indignation which led to his grabbing the documents; somehow in the confusion the two gentlemen ended up on the ground. He says he saw Mr. Harris' hands rising and that's when his arm came out. His hand came straight out; he was gesturing from his shoulder, but given the height difference between the two gentlemen it caused his hand to come into contact with Mr. Harris' head.
¶ 40 Mr. Warman talked of his frustration and righteous indignation over his belief that Mr. Harris had no authority to hold him, and of course all the occupants of his bus, after he had been told that it was a private conveyance. It was Mr. Warman's view that Mr. Harris just was not listening.
¶ 41 He said, "I don't know who did what to who. I can't put an actual finger on whether I put my hand out or the situation was something in which I felt I was in peril." He says he most definitely was upset with Mr. Harris and believed that Mr. Harris was acting as a forbidden roving court.
¶ 42 His peripheral vision caused him to perceive that Mr. Harris was springing into position. He commented parenthetically that if he had known who Mr. Harris was, perhaps he wouldn't have done it. He said he just didn't know what was going to happen. He wasn't in retreat. He was exercising his feeling of righteous indignation.
¶ 43 We adjourned last day and I heard evidence today from Mr. Kao, the tour operator. It had been hoped Mr. Kao may have been in a position to observe what occurred between these two gentlemen. Regrettably, Mr. Kao's evidence was not as helpful as one might have hoped. He observed the two gentlemen talking in the positions that each of them already acknowledged. He saw a pulling between the two gentlemen, regarding documents, and turned to talk to people on the bus. When he looked back, they were in the ditch on the ground. So the pivotal movements leading to the touching were not observed directly by Mr. Kao.
¶ 44 In his submissions Mr. Warman argues in essence that Mr. Harris was not a "peace officer engaged in the execution of his duty." He raises questions that I expect are one of concern to many citizens: the range of persons who by statute are indicated to be peace officers, the processes through which they are appointed, and what jurisdiction they are authorized to exercise.
¶ 45 He argues that Mr. Harris was acting unlawfully in stopping him in the first place, generally in the various respects to which I have already referred. In addition or in the alternative he argues that even if Mr. Harris as a matter of law is determined by me to have been acting in the execution of his duty, then Mr. Warman was acting in self-defence in holding a reasonable, even if mistaken, belief in the fact that he was about to be attacked.
¶ 46 Mr. Blechingberg for the Crown reviewed the statutory basis upon which Mr. Harris would constitute a peace officer within the meaning of the Criminal Code and the Provincial Police Act, and asserts that issue was proved in this proceeding.
¶ 47 As to the matter of self-defence, Mr. Blechingberg points out that the test in law is whether a person honestly and reasonably believes that an assault is imminent, and then uses proportionate force to resist the attack. He argues that any belief by Mr. Warman was not reasonable, and any force was beyond that which would have been proportional.
¶ 48 I spent some time at the beginning of these reasons commenting upon the constitutional framework within which this court operates. It is an essential condition of this and every court in the land that it be subject to the law, that it be subject to the constitution, and that it recognize, follow, and be bound by laws validly enacted by parliament or the legislature, unless and until it has been demonstrated that a law is contrary to the constitution. That latter process is one which requires notice to be given under the Constitutional Questions Act and certain processes to be followed.
¶ 49 Though I certainly understand the anxiety abroad in society today about the sense that there are various and sundry peace officers funded by I.C.B.C., and other agencies, such that Mr. Warman's admonition that a constable can only be appointed by the sheriff and not by the executive would meet a welcoming ear by some, I am satisfied that Mr. Harris on the 30th of September, 1999, was a "special constable" as defined by the British Columbia Police Act, and was functioning as a "peace officer" in the manner in which that term is defined in Section 2 of the Criminal Code.
¶ 50 I am satisfied that whether Mr. Harris was right or he was wrong as to the fuel tax issue, he believed himself to be in the course of a bona fide investigation regarding that issue. All of which is to say that he was engaged in the execution of his duty.
¶ 51 I turn then to the alleged assault. After taking into account the test for weighing credibility articulated by Mr. Justice Cory in Regina v. W.D., [1991] 1 S.C.R. 742, and providing to Mr. Warman the benefit of the doubt in all respects, on all the evidence but even on Mr. Warman's evidence alone, I cannot find that the apprehension that Mr. Harris was going to attack him was reasonable.
¶ 52 It may have been an honestly held belief, but it was not reasonable. He may have had good cause to be indignant towards Mr. Harris. He may have had a disagreement which warranted being explored either then or at some later time. But there was nothing -- on Mr. Warman's evidence alone without even looking at Mr. Harris' evidence -- to cause him reasonably to believe that Mr. Harris was going to jump up the stairs into the opening of the bus and attack him in front of twenty-three tourists.
¶ 53 On all of the evidence, I have no doubt but that Mr. Warman was indeed righteously indignant, was impatient, and acted quickly and impulsively in reaching out towards Mr. Harris.
¶ 54 I will add that I wonder whether all of the actions of Mr. Harris thereafter were themselves proportional and necessary in all of the circumstances. It is arguable that he overreacted at that point.
¶ 55 But in the first instance Mr. Warman had no justification as a matter of law in instituting the physical contact with Mr. Harris, whether in the reaching out and striking his head or in the bowling him over, to use his language.
¶ 56 In the result and for the reasons that I have given, I am satisfied that the case has been proved. I find Mr. Warman guilty on the charge.
QL Update: 20001206
cp/i/nc/qltlm/qlhcs
Counsel:
None mentioned.
FRASER PROV. CT. J.:—
THE INFORMATIONS
¶ 1 On the 11th day of July, 2000, a Process Hearing was held ex parte and in camera before this Court under section 507(1) of the Criminal Code to determine whether process should issue on five separate Informations. After hearing the allegations and evidence in support, the matter was put over for decision to July 28, 2000, to allow the Court to review the allegations, the Informations and the exhibits tendered.
¶ 2 The Informant alleges that he has reasonable grounds to believe and does believe that:
"Constable E., on the 27th day of December, 1999, at the City of Calgary, in the Province of Alberta, |
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Being a peace officer, did commit breach of trust in connection with the duties of his office by deceiving the justice of the peace at the hearing of the Informant, Contrary to S. 122 of the Criminal Code of Canada |
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Being a peace officer, did commit a fraud in connection with the duties of his office by deceiving the justice of the peace at the hearing of the Informant, Contrary to S. 122 of the Criminal Code of Canada |
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Did wilfully attempt to pervert the course of justice in a judicial proceeding by falsifying evidence before the justice of the peace, Contrary to S. 139(2) of the Criminal Code of Canada |
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Did with intent to mislead, fabricate testimony with the intent that it should be used as evidence in a judicial proceeding, Contrary to S. 137 of the Criminal Code of Canada |
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Being a peace officer and being entrusted with the execution of a process, that being a bail hearing, wilfully misconducted himself in the execution of that process. Contrary to S. 128(a) of the Criminal Code of Canada". |
THE LAW
¶ 3 The Court followed the procedure as set out by the Ontario Court of Appeal in Southam et al v. Coulter et al (1990) 60 C.C.C. (3d) 267 and the ex parte hearing was held in camera. The Court applies the test as set out in Re Whitmore et al v. The Queen (1987) 41 C.C.C. (3d) 555 (Ont. H.C.). The test is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty, if that evidence were believed. There must be some evidence of culpability for every element of the crime.
¶ 4 The Court must first determine if the Information is valid on its face and secondly whether the allegations and the evidence disclose a prima facie case of the offences alleged based on the above test.
ARE THE INFORMATIONS VALID ON THEIR FACE
¶ 5 I have reviewed the wording on the face of each of the Informations and find them to be valid, that is, I find each contains an allegation of an offence as set out in the Criminal Code.
HAS A PRIMA FACIE CASE BEEN DISCLOSED
¶ 6 The test to determine if the allegations and evidence disclose a prima facie case involves a separate determination for each Information. However, the allegations and evidence given applies to each.
¶ 7 The allegations are that the Informant was arrested in Calgary, Alberta, on two warrants issued in Revelstoke, British Columbia. He was arrested by police officers of the Calgary Police Service and detained at a police station. He was taken before a Justice of the Peace for a Hearing pursuant to section 503(3)(b) of the Criminal Code to determine whether there were reasonable grounds to believe the Informant is the person who allegedly committed the offence in Revelstoke, B.C. The Justice of the Peace, having so satisfied himself, remanded the Informant in custody to await execution of the warrant from British Columbia. The Hearing took place the same day he was arrested. The Informant states he was detained three days in remand at which time the warrant was executed by the B.C. authorities and he was returned to Kamloops, B.C. where he was detained for 21 days until his trial, upon which he was convicted.
¶ 8 The Informant and/or his witness, a Mr. Lindsay, produced exhibits, being a copy of a transcript of the Hearing, copies of the two warrants from British Columbia, and a copy of a transmission of a message from the Calgary Police Service to the R.C.M.P. Detachment at Revelstoke, B.C. advising them the subject of their warrant was being held in custody; requesting information, and an indication of their wishes, presumably advice as to their intentions of execution.
¶ 9 The Informant alleges the police officer, Constable E., who acted as the presenting officer at the Hearing and referred to as "for the Crown" in the transcript of the Hearing, committed offences because at the time of the Hearing the Informant was under arrest on the authority of a B.C. warrant not endorsed in Alberta pursuant to Section 528, commonly called "backing" of the warrant. The Informant had no information as to whether the warrant was endorsed or not. Mr. Lindsay was called as a witness and presented as a person who had researched this issue. Mr. Lindsay produced the copies of the warrants and the transmission entered as exhibits, but he had no information and did not know whether the warrants were endorsed. There is therefore no evidence before the Court as to whether or not the warrants were endorsed pursuant to Section 528 of the Criminal Code or if they were, when that took place. I point out that Section 503(3) of the Criminal Code allows for the arrest of a person without warrant for an indictable offence alleged to have been committed outside the territorial division of the arrest and allows him to be held in custody for up to six days to await execution of the warrant. The warrant alleges the Informant committed an offence under Section 270(2), assaulting a peace officer, which is a hybrid offence and deemed to be indictable, at least until the Crown makes their election.
¶ 10 In addition the Informant alleges Constable E., the presenting officer for the Crown, made misrepresentations to the Justice of the Peace at the Hearing. Specifically, he alleges Constable E., at page 4, lines 10 - 14 advised the Justice that the Informant was anti-government and in past court appearances in Edmonton and surrounding areas, he had been disruptive and he has information he had attempted to place judges and counsel under arrest. The Informant states he has not been in those areas when such incidents took place and in fact has not made court appearances as described. I accept the Informant has made a prima facie case that such information supplied to the Justice was in error. The Informant says nothing about the allegation he is anti-government. However, I point out this information supplied to the Justice was superfluous to the issue he was to decide, which was simply whether there was reasonable grounds to believe the Informant was the person alleged to have committed the offences in Revelstoke, B.C., as set out in the warrants.
¶ 11 I must now apply the allegations and evidence to the specific Informations.
¶ 12 The first Information alleges Constable E. committed a breach of trust in connection with the duties of his office by deceiving the Justice pursuant to Section 122 of the Criminal Code. To prove such a crime, the act alleged as contrary to his duty, must be for some personal benefit of the accused. Acts of administrative indiscipline or fault are not breaches of this section. I find the allegation of execution of an unendorsed warrant by Constable E. is not made out. There is no reliable allegation or evidence that the warrant was unendorsed. It is not necessary, in any case, that it be endorsed to arrest pursuant to Section 503. The Informant could lawfully be arrested in the circumstances without warrant. I also find there is no reliable allegation or evidence that Constable E. provided incorrect information to the Justice for personal benefit. In fact he was performing an administrative act for which the section does not apply. I therefore refuse to issue process on this Information.
¶ 13 The second Information alleges a fraud committed in connection with the duties of Constable E.'s office by deceiving the Justice of the Peace at the Hearing, contrary to Section 122 of the Criminal Code. This is essentially the same charge as the previous one, except fraud is substituted for breach of trust. For the same reasons I find no credible allegation or evidence that any fraud was committed in connection with his duty.
¶ 14 The third Information alleges a wilful attempt to pervert the course of justice in a judicial proceeding by falsifying evidence before the Justice of the Peace contrary to Section 139(2) of the Criminal Code. Clearly, based on the allegation and the evidence, Constable E. was not giving evidence and was not under oath. He was a presenter on behalf of the Crown. He, therefore, could not have been falsifying evidence in a judicial proceeding. The allegations do not support this charge and process will not issue.
¶ 15 The fourth Information alleges that he fabricated testimony with intent to mislead and with the intent that it should be used as evidence in a judicial proceeding, contrary to Section 137 of the Criminal Code. Again, I point out Constable E., as presenter, was not giving testimony so he could not be fabricating something he was not giving. The allegations do not support this charge and process will not issue.
¶ 16 The fifth Information alleges Constable E. misconducted himself in the execution of a process, contrary to Section 128(a) of the Criminal Code. Execution of a process, by a peace officer, I find refers to a process as set out in Section 29 of the Criminal Code, such as executing a document commanding a person to appear in court to answer a charge or the execution of a warrant for arrest or search warrant. It is not referring to a Hearing under Section 503(3) as a process. Therefore the allegations and evidence do not support this charge and process will not issue.
¶ 17 I, therefore find, based on the test set out in Re Whitmore, supra, that the allegations and evidence do not support the charges in any of the Informations. None of the allegations and/or evidence support culpability in all elements of the crimes alleged. The applications for the issuing of process on each Information is refused.
FRASER PROV. CT. J.
QL Update: 20001205
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