Delvin & Janis Herbison: This Land is Our (Granted) Land

[Hilfskreuzer Möwe]

The British Columbia Supreme Court has released a new decision in which a husband and wife pair unsuccessfully sued an assortment of government authorities in an attempt to defeat a CRA debt lien on their property:

• Herbison v. Canada (Attorney General), 2013 BCSC 2020: http://canlii.ca/t/g1rsh

Justice Saunders provides a narrative background. It appears Delvin owed tax for 1992-1995, and 2008. The CRA got a Federal Court order (a “certificate”) to that effect, and then placed a lien on the Herbison’s property (paras. 3-5, 7). Interestingly, Mr. Herbison did not challenge that debt (para. 6).

Instead, the Herbisons' claim is the fact that their land was originally provided to a private owner by a Crown Grant has special significance, and makes the Herbison’s downstream ownership of that land absolute. No-one has a right to register an interest against this land. The Herbisons' put it this way (para. 10) in their Statement of Facts:

1. And it is hereby agreed;

The Crown Grant as being the Supreme evidence of ownership in land (granted by the King) under the Great Charter and the Common Law and the accompanying Certificate of Indefeasible Title confirmation of it. Therefore the evident disregard of Jurisdiction and violations of it (by B.C. Lands Title Survey Authority, Province of B.C. and Crown in Right of Canada) are found unacceptable by the PLAINTIFFS.

2. That the Crown Grant are issued under and governed by The Great Charter, the Common Law and CONTRACT LAW. Therefore the concealment of the Indefeasible Title and Crown Grant through fraud and forgery in the 19th, Feb. 1976.,
transfer exchange fails to meet the requirements to be called an INDEFEASIBLE TITLE, because of the deletion from, and the variance to, the original Contract. All property exchanges from this date 19th, Feb. 1976 forward have been issued illegally and unlawfully, contrary to the contract and the Common Law with intent to CONCEAL. This act of forgery is without consent and in violation of the CONTRACT.

Legal Maxims; That which was originally void, does not by lapse of time become valid.

3. The changing of a deemed to be a judgment to a judgment without a trial or conviction is a violation of Personal Security, Personal Liberty, and Personal Property and contrary to the Common Law. The personal judgements by Quote “THE TEAM” is found repugnant and a blatant violation of all rights. The further placement of Judgements against the Crown Grant (our property) by the Crown in Right of Canada and B.C. Lands Title Survey Authority is out of JURISDICTION and contrary to the Common Law.

Quote; “Jacobs Law 1811 vol. 4 p. 152” That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.

At one point the Herbisons' attempted to have the head of Land Titles in British Columbia, a Mr. Blaschuk, remove the CRA interest, but that was refused. Needless to say that was a no-no.

4. The refusal of Larry Blaschuk B.C. Lands Title to respond as evidenced under LT 454 734 495 ca. dated Feb. 26th, 2009 further confirms intent to cause injury and is found unacceptable by the plaintiffs. This act further confirms the following “The registrar has thereby abdicated responsibility for all fiduciary obligations incumbent upon him and his office, and had made the B.C. Land Title Office and the Province of British Columbia vicariously liable.” Mr. Blaschuk, B.C. Lands Title Authority, Province of British Columbia, Crown in Right of Canada, have failed to remain WITHIN THEIR JURISDICTIONS and have caused the Plaintiffs injury. WE DO NOT CONSENT.

5. The fact that we did not get a single responsive answer to the Letter Rogatory confirms that all parties have acted outside of their respective JURISDICTIONS.
Therefore; BY WHAT AUTHORITY DO YOU DO THESE THINGS?
DOES YOUR AUTHORITY EMPOWER YOU TO DO THESE THINGS?

The Herbisons’ allege lots of breaches, including such Criminal Code provisions as making false statement, using the mails to defraud (apparently for not responding to letters) and … treason!

12. TREASON: CRIMINAL CODE OF CANADA $46(2).
The betrayal of a Trust. BC Lands Title have betrayed our trust.

There was a jurisdiction argument before the court which Justice Saunders classified as “incoherent, and which Mr. Herbison was unable to explain to me in plain English.” (para. 12). The state’s authority to legislate was not in question, rather the focus was the character of a Crown Grant claim as absolute (para. 14):

The plaintiffs acknowledge the ability of Her Majesty the Queen in Right of Canada and in Right of the Province of British Columbia to enact legislation, but say that the legislation cannot defeat the indefeasible rights granted by King George VI: in argument, Mr. Herbison asked rhetorically, “How can the Queen defy the King?”

Unsurprisingly the defendants, including the luckless Mr. Blaschuk, sought to have this action struck out as hopeless and vexatious. Unsurprisingly, they were successful. Justice Saunders offers a nice and detailed rebuttal to the Herbisons’ argument that a Crown Grant completely negates the capacity of any other entity to impose an interest on the granted land.

[25] It appears from the pleadings, the affidavit evidence, and the submissions made by Mr. Herbison at the hearing, that the plaintiffs’ position as to the nature of the Crown Grant and of the validity of the registration of the judgments is based on a profound misunderstanding of the nature of property rights at common law, and the constitutionality of statutory provisions affecting property rights.

[26] Crown Grants under the Land Act did nothing more than convey land in fee simple (see the definition of “Crown Grant” in the 1908 Land Act, s. 2). At common law, fee simple was the greatest estate that could exist in land; but it was still a form of tenure subject to the absolute ownership of the Crown. Though the feudal burdens to which an owner in fee simple was subject under the common law have largely been abolished by statute, title to lands still remains subject to constitutional legislation.

The right to enforce a debt against land has existed since 1285 (para. 29):

It is the case that under the common law of antiquity, the lands of a judgment debtor were not liable in satisfaction of the debt: Morse v. Kizer, [1919] S.C.R. 1 at p. 4. However, that all changed in the year 1285 with the passage of the Statute of Westminster 2nd (13 Edw. 1, c. 18), which provided for the use of writs of elegit, or election:

When a debt is recovered or acknowledged in the King’s Court, or damages awarded, it shall be in the election of him who sues for such debt or damages to have a writ of fieri facias to the sheriff, for levying the debt upon the lands and chattels, or that the sheriff deliver to him all the chattels of the debtor (saving only his oxen and beasts of the plow), and a moiety of his land, until the debt be levied, by a reasonable price or extent … .

There can be no doubt that the conveyance of the subject lands under the Crown Grant of 1946 was subject to the common law as it had been modified by statute, more than 650 years previously. The provisions of the Land Title Act, R.S.B.C. 1996, c. 250 and the Court Order Interest Act, R.S.B.C. 1996, c. 79 under which the subject judgments were registered do not offend any principle recognized by the common law over the last seven centuries.

The Herbisons’ also argued that the English Bill of Rights (1688) applied, but that was rejected on the basis of an analysis in a 1994 decision, Ford Credit Canada Ltd. v. Canada (Deputy Minister of National Revenue, Custom and Excise - M.N.R, (1994), 100 B.C.L.R. (2d) 162, [1995] 2 W.W.R. 664 (S.C.). At paras. 31-36 Justice Saunders reviews that decision and its analysis, concluding:

… The principle underlying the English Bill of Rights’ prohibition on fines and forfeitures before conviction is that persons ought not to suffer punishment without due process. That principle is recognized in Canadian constitutional law. The provisions of the Income Tax Act and the Court Order Enforcement Act which the Herbisons appear to take issue with are consistent with that principle. Even assuming those provisions fall within the scope of the “fines and forfeitures” addressed by the English Bill of Rights, those provisions do not violate the Herbisons’ right to due process. Mr. Herbison had the right to contest his tax assessment. He failed to do so, and thereby became subject to judgment. He cannot now complain that his rights have been infringed.

The Herbisons also appear to have sent documentation to the British Columbia Land Titles branch that attempted to use a foisted unilateral agreement to deem that poor Mr. Blaschuk was guilty of stuff. Justice Saunders quotes a “remarkable paragraph” at para. 39:

NOW THEREFORE TAKE NOTICE AND HEED THAT, AS TIME IS OF THE ESSENCE, the Noticed Party, Larry Blaschuk, Registrar of Titles, Land Title and Survey Authority of British Columbia, is hereby and herein given notice, knowledge of consequence and opportunity to cure, that he has ten (10) days to rebut, with particularity, each of the herein enumerated conclusions, facts, presumptions and/or interpretations with which the Noticed Party disagrees. The Complainant will assume and presume that the Notices Party, pursuant to the doctrine of acquiescence and tactic admission, has granted his lawful, legal and binding agreement by tacit procuration to the Complainant’s conclusions, facts, presumptions and/or interpretations as stated herein, as being true and correct, thereby compelling the deregistration and/or non-registration of the subject CERTIFICATE by the Registrar of Titles, which will be effected without protest or objection by the Noticed Party. The Complainant will further assume and presume that the Noticed Party, pursuant to the doctrines of acquiescence and tacit admission, has granted his lawful, legal and binding agreement by tacit procuration, that this matter is closed, for which a Second Notice of Default establishing all said presumptions in general will be delivered to the Noticed Party.

The Complainant

DELVIN DWAIN HERBISON

Per: “Delvin Herbison”

Justice Saunders was not impressed (para. 40):

Paragraph 4 of the NCC appears to assert a cause of action founded on Mr. Blaschuk’s failure to respond to the document. This pleading is ludicrous. One does not create legal rights by advancing specious demands and setting a deadline for a reply.

Analogous correspondence to other defendants receives a similar evaluation:

[41] It advances a number of incoherent legal arguments, and poses a number of nonsensical questions. As with the LT Document, it purports to put the recipients on notice of the legal consequences of any failure on their part to provide answers considered by Mr. Herbison to be sufficiently responsive. For example, it states:

AND TAKE FURTHER NOTICE: If you fail to provide a responsive answer, determined solely by the undersigned, to all the questions contained hereunder, you agree that you have caused the undersigned injury and are liable under s. 3 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50,

and,

AND TAKE FURTHER NOTICE: The undersigned is competent to handle their own affairs and does not seek or desire any legal determinations to be made on behalf of or for the undersigned. Attempts to make such determination is stultifying the undersigned and shall be immediately billed thirty million Canadian dollars, payable immediately.

[42] The assertions in the letter are absurd. It need hardly be said that they do not create a cause of action recognized in law.

Justice Saunders was equally bemused by the Herbisons seeking relief from the British Columbia Supreme Court, but then challenging the very authority of the court from which they wanted assistance (para. 55):

Remarkably - given that he is a plaintiff, and therefore required this court to take jurisdiction, in order to grant the relief he was seeking - he also filed, in this proceeding, a “Restricted/Special Appearance to Challenge Jurisdiction”:

Kindly enter on the record in this Case a restricted/special appearance of the PLAINTIFF, without prejudice, to challenge jurisdiction. Please note, this is NOT to be construed as a general appearance or consent.

Now on to an interesting analysis. Justice Saunders investigates the Herbisons as OPCA litigants. Some of the defendants sought a vexatious litigant order (para. 48). They identified a guru who collaborated with Herbison (Delvin) in the mid 2000’s, a “David Butterfield, a self-styled “Educator and Defender of Universally Recognized Human Rights and Fundamental Freedoms” to be his “Plenipotentiary””. The defendants also complained they had received a lot of documents from the Herbisons, at times Herbison (Devlin) got aggressive (para. 53), and that during this period they had received “…unsolicited email messages from persons advising that the government had been foreclosed under the Uniform Commercial Code.” (para. 54). Sounds like OPPT stuff to me!

While the defendants claimed that Herbison (Devlin) had been abusive, the court concluded there was no evidence of that. Justice Saunders observed Delvin behaved properly in court (para. 56), unlike many OPCA litigants.

In brief, Justice Saunders concludes at para. 58 that Herbison (Devlin) was a sucker, rather than a leader:

I also detected in Mr. Herbison none of the guile commonly displayed by the more sophisticated OPCA litigants who appear before this court. For example, I asked him to explain what he meant by calling his letter addressed to the Governor General and others a “Letter Rogatory”. Had Mr. Herbison been well-versed in the arcanae of OPCA concepts, I would have expected him to reply with some double-talk about Letters Rogatory being an appropriate form for him as a sovereign legal entity to communicate with representatives of a sovereign authority, or similar nonsense. I heard nothing of the kind; he avoided the question. When I asked him where he got the idea, he tapped his head, indicating that he had conceived of this on his own. I felt he was being disingenuous. I saw and heard nothing in Mr. Herbison’s presentation that made me think he was capable of conceiving, on his own, of calling such a communication a “Letter Rogatory”. His presentation of his legal argument was simplistic. He gave no sign of being an “OPCA guru”. He gave the strong impression of being, not a leader, but a follower, and of having been misled and misinformed.

The defendants had not provided evidence that indicated that the Herbison (Delvin) was an ongoing issue, and instead he was no more than a nuisance (para. 62). Delvin had not engaged in actions that represent vexatious litigation (at least not yet) (paras. 63-64).

[63] I find no basis on the evidence for restraining Mr. Herbison from communicating with government authorities. Should he persist in such communications concerning the registration of the subject judgments, notwithstanding the outcome of this litigation, he may expose himself to the risk of a further application for an injunction being filed.

[64] Mr. Herbison has not engaged in habitual, persistent litigation. I have made some effort to explain to Mr. Herbison in these reasons why his ideas about the common law, and Crown Grants, are incorrect. If he chooses to disregard what I have said, and to engage in further vexatious litigation before this or any other court, he will run the risk of a vexatious litigant order being made.

The proverbial ‘shot across the bow’, so to speak.

The defendants received costs awards, and in several cases argued successfully that their costs should be elevated because of the scandalous claims made “completely without foundation” (paras. 66-71):

… Mr. Herbison has put the parties to considerable expense and inconvenience as a result of his own desire to press his own peculiar interpretation of the law. He told me, in the course of submissions, that he sought legal advice from several different lawyers, and could find no one prepared to take his case. That ought to have told him something. Mr. Dalmyn, in particular, went to great lengths to explain to Mr. Herbison, in correspondence, why his action was misconceived. Mr. Herbison’s decision to pursue this action was completely unreasonable, and his making allegations of fraud and criminal wrongdoing was reprehensible.

All in all, an interesting judgment. While the result is unsurprising, it’s nice to see a clear and emphatic analysis that disproves the idea that Crown Grants / Land Patent grants have some extraordinary significance. I also appreciate how Justice Saunders has obviously made an effort to clearly break down, classify, and debunk the Herbisons’ more commonplace OPCA-type claims.

The cost claim is a logical response and penalty for such ungrounded litigation. I am curious whether the idea that pointing out that OPCA ideas are legally incorrect will become a standard basis for elevated cost awards. It certainly re-enforces the ‘foolhardiness’ aspect of pursuing litigation of this kind.

So I did some digging, and found some stuff.

Delvin appears to more commonly go by the first name “Del”. His online activities disclose a curious mix of interests. For example, he has served on the board of the Peace River Internet Society (http://portal.pris.ca), a very laudible collective effort to bring Internet service via a co-op to the Peace Region of British Columbia, which is quite a rural location. He appears to operate an amateur-built aircraft he calls the Herbison Special (http://www.regosearch.com/aircraft/ca/FAXP). Unfortunately I could not find a photo of it.

Delvin’s wife, Janis Herbison, appears to be a well known and respected local-area watercolour painter and teacher. There’s a nice little video montage of her work in this video (http://www.youtube.com/watch?v=gMMZgFJSC9Y).

Justice Saunders wondered if the recurring footer text in some documents, “ALL RIGHTS RESERVED © 2008 INTERKOB HOLDINGS LTD.” indicated a guru (para. 55). If so then that link escaped me, but I did find that a British Columbia outfit called “Interkob Holdings Ltd.” has a number of what appear to be entirely legitimate marine technology patents, worldwide. So no link there.

Ultimately, I believe I have identified the Herbisons’ guru. “Del and Janis Herbison” left a post in the “Team Law Forums” (http://teamlawforum.net/viewtopic.php?f=3&t=994) which reads:

Re: Land Patents
by Janis » Friday December 9th, 2011 3:24 pm GMT

Please forward a contact number as we would like to acquire a Do it Yourself Land Patent Training Manual. We have the certified true original Crown Grant however we would like to learn more and understand the importance of having a complete abstract of previous ownership. We would consider becoming Team Law Beneficiaries member's.
Thank You... Del and Janis Herbison

This is the only post from the “Janis” account.

Team Law (http://teamlaw.net) is to me an unfamiliar U.S.-based commercial OPCA-concept promoter. Lots of stuff here. One of the services provided by Team Law is, you guessed it, “Land 101 – a mini course on Land, Land Patents, etc.” (http://teamlawforum.net/viewtopic.php?t=3), so I suspect that is where the Herbisons’ obtained their ideas and materials. The timing looks right too.

I found no link between the Herbisons and more ‘mainstream’ Canadian OPCA groups, such as the Freeman-on-the-Land movement.

SMS Möwe

[Burnaby49]

Just got home at 10PM from an evening pubbing to find this post. So I checked my tax service and found it had reported the case. Life confuses me. Two pubs we wanted to go to tonight were closed because it is November 11 but the CA institute's tax service is open for business?

Anyhow, excellent job on analysis. As we've found from US sovereign cases once the IRS (CRA in this case) puts a lien on property it's game over. In this, and in innumerable other cases both Canadian and American, the argument that the opposing party lost because they didn't respond to legally unrequired demands for unanswerable questions was answered quite succinctly;

Paragraph 4 of the NCC appears to assert a cause of action founded on Mr. Blaschuk’s failure to respond to the document. This pleading is ludicrous. One does not create legal rights by advancing specious demands and setting a deadline for a reply.

[Burnaby49]

I just finished plodding through the case. Usual rubbish. The hearing was on October 11th and the judgment released November 7th. Bernard Yankson's hearing was October 16. So possibly a Yankson published decision in the next week or so if Bernard's judge is as diligent as the Herbison's.

Mowe didn't note that the decision cited our landmark case Meads v. Meads, the subject of prior discussions starting with the one linked below. Meads is turning into one of the landmark cases for citation purposes. it seems like every judge covering an OPCA type argument relies on it. What I find intriguing about Meads is that it was a simple divorce case where the husband just threw some OPCA arguments at the court to see if anything would stick and Justice Rooke gave him both barrels. I believe the husband dropped the whole OPCA nonsense after being beaten over the head with Rooke's decision and the divorce issues were settled without further theatrics.

viewtopic.php?f=47&t=8805&p=147759&hilit=meads#p147759

[notorial dissent]

Slightly off topic, but now that you mention it. I'm really surprised that you haven't seen more OPCA type arguments flowing in to divorce, custody, and child support cases up north. The American version of those arguments have been popular with the sovrun idjit crowd here for the last few years, and I keep hearing of more and more attempts to get at least some of that into those types of situations. Doesn't work any better there than it does elsewhere, of course, and the family courts seem even less tolerant of it than the regular courts, and generally shut it down fairly quickly, like immediately, to the resultant wails of anguish from the practitioners.

[Fmotlgroupie]

The Herbisons have made their inevitable appeal to the BC Supreme Court (which is, naturally, not the province's highest court) and suffered their inevitable loss http://canlii.ca/t/gfd0p .