Did you know it is not technically illegal to make a turn or lane change in your vehicle without signaling?
I didn't either. This came to my attention thanks to an Ontario court justice with a flair for unorthodox decision-writing, a defendant with a penchant for over-reaching self-defence and a Yorkton court judge who turned out to be a godsend for a crime columnist in search of compelling subject matter.
A March 26 decision by Justice Fergus ODonnell in The Queen v. Matthew Duncan tried at the Ontario Court of Justice at St. Catharines is, without question, the most entertaining and fascinating legal document I have ever read and not because of the revelation about signaling.
"'You should get out of town,' the man said," Justice ODonnell begins in the Overview of the case. "And so the journey began that resulted in my path intersecting with Matthew Duncan's path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll."
I was immediately hooked. Perhaps the judge's lead would not wind up in the annals of literature with Dickens' "It was the best of times, it was the worst of times" or Melville's "Call me Ishmael.", but it was a far cry from the usual dry stuff of court documents.
The justice then explains "the man" of the above quote was a friend and colleague, who suggested the two of them trade places for a fortnight, thus ODonnel's presence in St. Catharine's rather than his normal stomping grounds in Toronto.
He notes Duncan's case was on face value, 'unremarkable.'
Too true. According to the evidence, at nearly 3 a.m. on December 2, 2011, two Grimsby Ontario patrol officers witnessed the young man make a right turn without signaling and pull into the parking lot of an apartment building.
The officers followed and demanded identification. When Duncan refused, the cops told him they would arrest him if he didn't comply to which he replied they had no jurisdiction over him and accordingly no authority to arrest him.
An altercation ensued and Duncan was charged with failing to signal a turn, failing to produce identification and assaulting a police officer.
"Nothing unusual in all that," ODonnel wrote. "The bread and butter of provincial court. Of course I hadn't counted on the freemen on the land."
The freemen of the land have become a bit of a problem for Canadian courts recently, but more on that later.
In his narrative, the judge chastises the young man for his chosen defence, an "affidavit of truth" ODonnell described as "a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like "jurisdiction" and the like then cobbling them together in such a way that makes James Joyce's Ulysses look like an easy read."
While the main body of the Overview provides much wonderful verbiage and literary references such as the preceding, it is within the lengthy and sometimes rambling footnotes that ODonnell reveals his true flair for commentary, albeit commentary of a highly irregular and irrelevant nature for a court decision. "William Shakespeare," he wrote, "was a sixteenth century English poet and playwright of some skill. He is remarkable insofar as he and Joseph Conrad are among the very few English-language authors of particular merit who were not either Irish or Scottish."
On the Internet he opines, "...it is probably fair to say that its advent is of no less significance than the invention of the printing press. However, just as the printing press has been put to odious use from time to time, the internet (sic) has its own Jeckyll and Hyde nature: it is a near certainty that future generations will look back on these decades, obsessed as we are with the twin behemoths of "reality" television and "ooh, look at me, I must tell the world what I had for breakfast" narcissism of social media and at the billions of hours thus lost to a near psychotropic escape from any useful pursuit and wonder if Aldous Huxley only a few details wrong in Brave New World."
In contrast to the Overview section, the Evidence section was pretty standard stuff. But, the judge does not disappoint, continuing with a section I have never seen before and alas, shall probably never see again, a section entitled The Gods are Kind, another lively and welcome digression from the usual drudgery of legal documents.
The trial had not concluded on the first day leaving Justice ODonnell lamenting "the idea of having to disentangle all of the palaver, nonsense and gobbledygook in document Mr. Duncan presented to me."
The godsend hinted at in the title of the section was a September 18, 2012 decision in the divorce case of Meads v. Meads by Justice J.D. Rooke, associate chief justice of Alberta's Court of Queen's Bench. The decision is a scathing, 185-page evisceration of freemen on the land tactics for evading taxes, parking fines and spousal support and living up to societal obligations such as registering vehicles and firearms.
The freeman on the land movement is based on the idea that god-created "natural persons" are under no obligation to adhere to man-made legislation such as, in Duncan's case, produce a driver's licence or submit to arrest.
It's a defence that is much more prevalent in the United States and United Kingdom, but has gained enough ground in Canada, Justice Rooke decided it was time for a precedent.
Rooke described people who try to use the defence as Organized Pseudolegal Commercial Argument (OPCA) litigants.
"These persons employ a collection of techniques and arguments promoted and sold by "gurus" to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations and individuals," he wrote.
ODonnell acknowledged, in another entertaining footnote, that Duncan did not consider himself a freeman on the land, but Rooke's precedent was enough for the Ontario justice to dismiss the defendant's jurisdictional defence outright.
"Such arguments are a waste of the court's time and resources, a selfish and/or unthinking act of disrespect to other litigants and deserving of no further attention, energy or comment," he wrote.
Nevertheless, the judge ended up acquitting Duncan in the end because of a argument that he made, perhaps unwittingly, at the beginning of the trial that he had no obligation to produce identification to the police.
"In that moment, before he continued down the Alice in Wonderland garden path of trust and jurisdiction and dollar amounts and contracts and natural persons and administrators, Mr. Duncan momentarily hit upon the concept that would ultimately lead to his acquittal, albeit not by the rather circuitous and, with all due respect, silly path he wanted to go down," ODonnell wrote.
It is a concept we all ought to know about.
In dismissing all charges, including assault of a police officer, the judge wrote: "If no lawful basis for the stop has been articulated, there was no lawful basis for the demand for identification. If there was no lawful demand for identification, the arrest for the "failure to identify" was unlawful. If the arrest was unlawful, assuming that Mr. Duncan resisted as described, he was entitled to do so."
I am not advocating taking this route, but it pays to know the law.
As it turns out, Justice Rooke's decision was not only a godsend to Justice ODonnell, but to me as well.
As much as possible, I try to find inspiration for the Crime Diary in what I hear and see in Yorkton court. On Monday as I sat in the public gallery, I struggled to find anything of interest.
During one of the (many) breaks, Judge Patrick Koskie looked in my direction and said, "come up here." I looked behind me; surely he wasn't talking to me."
He was. In the years I have covered courts I have been questioned by judges while in the gallery, I have been invited into chambers to conduct an interview, I have been cautioned by the Crown and threatened by defence attorneys, but I have never been asked to approach the bench-even when court was not in session.
Maybe he saw me tweeting. I prepared to show him my Ministry of Justice-accreditation that allows me to do so, but he just wanted to hand me a copy of the Crown v. Duncan judgment.
Thank you, Judge Koskie, Justice ODonnell and Justice Rooke for a very entertaining read and an exceptionally fun column to write.
