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Docket: |
CA027832 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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BETWEEN: |
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REGINA |
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RESPONDENT |
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AND: |
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ELDON-GERALD: WARMAN |
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APPELLANT |
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Before: |
The Honourable Mr. Justice Hollinrake |
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(In Chambers) |
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The Appellant appeared on his own behalf |
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R. Flannigan |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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August 20, 2001 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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September 4, 2001 |
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Reasons for Judgment of the Honourable Mr. Justice Hollinrake:
[1] 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, 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
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:
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.
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.
The Appellant further relies upon expressio unius est exclusio alterius, the expression of one thing is the exclusion another.
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.
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.
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.
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.
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.
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.
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.
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:
[1] 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?
[2] 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.
"The Honourable Mr. Justice "Hollinrake