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Note: While I quote extensively from it here, Justice Fergus O’Donnell’s decision in R. v. Duncan should be required reading for all of us, if only for the footnotes.

It’s also brilliant to read how skillfully this honourable judge essentially protected the defendant from himself.

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Abraham Lincoln, a crafty lawyer before he became an immortal president, said: “He who represents himself has a fool for a client.”

After reading the court transcript, I’m left to wonder if Matthew Duncan of Grimsby, Ontario, is proof of Honest Abe’s point, but to answer the question posed in the title of this commentary, if you have a judge with an exceptional sense of humour and an equally exceptional knowledge of the law, the answer is yes.

“It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.”

— Justice Fergus O’Donnell

The Case

Matthew Duncan was stopped and ticketed at 2:48am on December 2, 2011, for entering his apartment-building parking lot without using his turn signal.

What on any other day would be a routine traffic stop for Niagara Regional Police Service Constable Paul Eles, a relatively junior member of the Niagara Regional Police Service, turned into “a slight detour through territory that might have confused Lewis Carroll.”

Full props to Ontario Justice Fergus O’Donnell for his willingness, not only to save a man from his own folly, but for a written decision that rivals any of Carroll’s classics.

The April 6, 2013 edition of the National Post described it this way.

After an Ontario man tried to fight a minor traffic violation with lengthy, Internet-researched manifestos claiming that he was exempt from Canadian law, an Ontario judge replied with a lengthy manifesto of his own, decrying the man’s “regrettable descent … into foolishness.”

According to the Post, Matthew Duncan refused to produce his driver’s licence because he claim the police didn’t have jurisdiction over him. The confrontation escalated into a scuffle that ended up with Duncan being zapped with a taser, arrested for assault and resisting arrest.

From the written ruling of R. v. Duncan, 2013 ONCJ 160 by Justice Fergus O’Donnell:

“You should get out of town”, the man said.

And so began the journey 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 suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.

And thus I came to meet Mr. Duncan.

At heart, Mr. Duncan’s case was unremarkable. A minor alleged Highway Traffic Act offence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer.

Nothing unusual in all that. The bread and butter of provincial court.

Of course, I hadn’t counted on the freemen on the land.

The Arrest

Instead of producing a driver’s licence, Matthew Duncan produced a large binder of information “proving” the Niagara Regional Police Service had no jurisdiction over him. Constable Eles disagreed.

Constable Eles asked Mr. Duncan for his identification, specifically a driver’s licence.  Later, in response to a rather leading question on a highly material point, Constable Eles said that he also asked for even a verbal identification.  He said that he and Constable Pilkington repeatedly asked for identification and warned Mr. Duncan that he would be arrested if he failed to do so.

At some point in this interaction, Constable Eles said that Mr. Duncan pulled out a red binder and told Constable Eles that he would be giving him a fee schedule.  He told the officers that they had no jurisdiction over him and accordingly had no authority to arrest him.

As Justice O’Donnell noted above, a tussle ensued and, alleged lack of jurisdiction notwithstanding, Constable Eles and his partner, Constable Pilkington, arrested Mr. Duncan and hauled him of to jail.

The tussle was described thus:

Later, when they were up by a fence near the back door of the building, Mr. Duncan was swinging his arms.  Mr. Duncan ignored a warning by Constable Pilkington that he would be “Tasered” and he was, in due course, “Tasered”, taken to ground and handcuffed.

The Trial

Matthew Duncan pleaded not guilty and represented himself in the Ontario Court of Justice.

We did not finish Mr. Duncan’s trial on the first day.

As I left court that day and contemplated returning in the autumn to finish the trial, it occurred to me that I would have to write rather a lot to address the various procedural issues raised by Mr. Duncan in his tome and his verbal arguments.

Now, don’t get me wrong about this; I’d be happy to write until the cows came home about matters of substance relating to the guilt or innocence of the defendant and the liberty interests of a citizen vis a vis the constabulary, but the idea of having to disentangle all of the palaver, nonsense and gobbledygook in the document Mr. Duncan presented to me was not particularly appealing.

The Gods are Kind

There is an ancient proverb to the effect that “those whom the gods would destroy, they first make mad”.  The prospect of disentangling Mr. Duncan’s adopted argument and his volume of internet-derived gibberish made me wonder if, for some reason, the gods had me in their cross-hairs.  This concern, however, was dissipated in mid-September, 2012 when the gods made their benevolent nature clear.

If December 7, 1941 is a day that will live in infamy, for anyone faced with “freemen on the land” or similar litigants, September 18, 2012 is a day that will shine in virtue.

On that day, Mr. Justice J.D. Rooke, the Associate Chief Justice of the Alberta Court of Queen’s Bench, delivered a judgment in the matrimonial case of Meads v. Meads 2012 ABQB 571.

Given that the judgment weighs in at a mammoth 736 paragraphs, I wonder if these litigants are perhaps more prevalent in wild rose country than they are in Ontario.

Be that as it may, Justice Rooke’s comprehensive judgment on what he labels “Organized Pseudolegal Commercial Argument Litigants” (of various iterations), wonderfully frees me from having to address any more effort to the jurisdictional arguments raised by Mr. Duncan.

As I have said, there is a lot of patent rubbish on the internet; if Mr. Duncan wishes to while away a few hours more productively on something that actually makes sense, I commend Justice Rooke’s judgment on CanLII.org to him.

There is no merit to Mr. Duncan’s jurisdictional argument.  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.

The Decision

Despite himself (and with a great deal of assistance, patience and humour from Justice Fergus O’Donnell), Duncan was acquitted on all counts.

When we returned to continue the trial, before calling on Mr. Duncan to announce if he was calling a defence, I asked the Crown to comment on whether or not there was a case to meet.

I asked this because it seemed to me that, whatever evidence the state might theoretically have possessed, the evidence as articulated at trial, was seriously deficient.

It also seemed to me that the case was based on an incomplete understanding of the Highway Traffic Act, i.e. that in the words of another, more ancient, Matthew, the Crown’s case was a house built upon sand.

Men of principle exist. Justice Fergus O’Donnell is such a man.

At this point, Matthew Duncan pray to whatever God he believes in, I hope, for sending such a wise and thoughtful man to hear his case. A lesser man in the judge’s place may have convicted Duncan for the sheer stupidity of his defence.

It is self-evident that a charge of assault to resist arrest requires proof of a lawful arrest.  This is not a Charter issue; it is a fundamental element of the offence.  The requirement reflects the important fact that in a democracy agents of the state operate within limits.  If an arrest is unlawful, resistance to that arrest is not unlawful.

Justice O’Donnell then proceeded to school the Crown attorney about the relevant statute in the Highway Traffic Act before moving on to explain why he was acquitting Mr. Duncan on the remaining charges.

Near the beginning of his comments to me at the outset of this trial, Mr. Duncan proclaimed that he had no obligation to produce identification to the police officers.

In that moment, before he continued down the Alice in Wonderland garden path of trusts 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.

Applying the rather more prosaic concepts of the elements of the offence and an analysis of  “who did what to whom why”, the only conclusion reasonably open to me on the evidence at this trial was that the police and Crown failed entirely to articulate a lawful foundation for the attempt to arrest Mr. Duncan.

The evidence before me failed to demonstrate that the purported arrest of Mr. Duncan was lawful.

A citizen is entitled to resist an arrest that is unlawful.

Thus, even assuming that I were to accept the police evidence of Mr. Duncan’s actions as making out the assault beyond a reasonable doubt, an issue that is not entirely free of controversy, a nonsuit and thus an acquittal is the only outcome that is lawfully open to me on the evidence before me.

Mr. Duncan is entitled to his acquittal and none should begrudge him it.

In assessing how much of the “freeman of the land” type of philosophy that he wishes to adopt in future, a philosophy that appears to focus to an unhealthy degree on freedom from societal obligations, he might, however, wish to contemplate some more productive reading on the internet, reading which emphasises the importance of responsibilities as much as society’s ongoing and sometimes exclusive fixation on rights.

None of us is the centre of the universe, or, as best expressed by John Donne, “No man is an island entire of itself; every many is a piece of the continent, a part of the main.”

Mr. Duncan did not strike me as a fool and individual acts seldom define people, but the red binder he offered to the officers and the “affidavit of truth” he offered to me in court were regrettable descents into foolishness and Mr. Duncan would be well-advised to be more discriminating on what parts of the internet he models himself upon in the future.

 

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Justice O’Donnell also references an Alberta Court of Queen’s Bench ruling, Meads v. Meads, 2012 ABQB 571, which deals with the “freeman on the land” issue. It’s not a small read, but anyone interested in this line of rights protection owes it to themselves to read that decision as well.