"Chief Rock Sino General" - Freeman guru-to-be?

[Chief2k13]

Well, so from what i gather so far from this forum, i maybe wrong so please let me know.

That our nations who were here first and whos land it is( am i wrong on this as well ?).

Your all suggesting that i go to the very people who stole the land by force, i go and plead to them a case about our rights or prove that we do not fall under their laws at all?

I just wanna be really clear on this matter or position i am starting to see most of the members in agreement that whitemans (English) laws and govt are a higher authority than the laws of the Original Nations who were here prior to the murder and rape of millions.

You feel our lands are not property of Canada/ U.S fair and square done deal?

You agree Canadian law/U.S laws, are the laws the original Nations should follow and obey without Question ?

If we are to question we must do so in front of the very people who stole and occupy the lands, because they have absolutely no interesting in preserving their stake here on the trillions and trillions made from our resources (Gold,Silver etc..oil). Is that what i am to be at peace with ?

I really need to wrap my head around the thought process here and the explanations. I got your case laws and courts opinions or judgements but i still have yet to read a rationale explanation as to why and by whos authority they are superior to our nations position as being original. Is that to much to ask or request ?

[Hilfskreuzer Möwe]

In contemporary usage, dictatorship refers to an autocratic form of absolute rule by leadership unrestricted by law, constitutions, or other social and political factors within the state.
a dictatorship is a form of government that has the power to govern without consent of those being governed (similar to authoritarianism), while totalitarianism describes a state that regulates nearly every aspect of public and private behavior of the people. In other words, dictatorship concerns the source of the governing power and totalitarianism concerns the scope of the governing power. - I feel, the last paragraph sounding more and more like Canada at this moment in time. The without consent is what goes on everyday in U.S and Canada. In Mr Greens trial, the officer who arrested him was asked by Mr Green, did you have my consent to enter into my car and do a search ? She said, i DONT NEED YOUR CONSENT !. There we have it, sounds alot like a dictatorship than some Govt who is fair and just, i maybe wrong but if so please enlighten ?

I finally managed to get a little time and wow - there are a lot of posts here. I’ll try to catch up with what I hope will be some helpful thoughts.

That police officer was absolutely correct. State actors may detain and arrest someone, search and seize their property, and enter into a home or other property – all within the law. Police officers can do that without either your or my consent. There are two general ways that can happen. One is when a court makes an order that someone like a police officer can conduct a search without the property owner’s consent. That court order is called a search warrant.

Any other kind of search is called a warrantless search. This takes us to the Charter of Rights and Freedoms in the Canadian Constitution:

8. Everyone has the right to be secure against unreasonable search or seizure.

Notice the word “unreasonable”. A “reasonable” search is always lawful, even if Mr. Green did not like it. A search based on a search warrant is automatically reasonable – with one little loophole that I will get back to in a little bit.

A very important legal principle is that any evidence that is obtained during a warrantless search is, presumptively, not evidence that can be used to convict a person of a criminal offence. That comes from the Charter as well:

24. (2) Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

If you want to know how this rule works, read this case: R. v. Grant, 2009 SCC 32 (http://canlii.ca/t/24kwz). As a super-quick summary, if evidence comes from an illegal search then it is excluded unless the illegality was an innocent mistake, the evidence would have been discovered anyway, or if the crime in question is something very serious. This last bit is to deal with what people sometimes call ‘technicalities’. For example, someone made a very minor goof in collecting evidence and because of that a horrible child sex offender might get away – in cases like that the evidence may still be admitted, but it’s always iffy if there was an illegal search.

So, as I said, warrantless searches are presumptively illegal unless they fall into a number of loopholes. The loopholes make a ton of sense – at least to me! One is that the evidence might be about to be destroyed and so it will take too long to get a search warrant. For example, a child pornography suspect might delete computer files, and that could be a basis for a police officer to seize a computer without a search warrant. Not to look at what's on the computer - but just to seize it so the evidence (if there is any) is safe.

Another loophole is a ‘safety search’. When a police officer stops someone they have a legal right to do a ‘pat down’ search to check the detained person for weapons. That’s a common-sense thing – criminals sometimes have weapons and other dangerous things, and it’s safer for everyone – the police officer and the detainee – if there is less risk of a sudden surprise attack. This is the Supreme Court of Canada case that explains how those searches are legal: R. v. Mann, 2004 SCC 52 (http://canlii.ca/t/1hmp1).

Another legal basis for a warrantless search is when a police officer stops a person in a vehicle as police are allowed to conduct a warrantless search for evidence of something illegal that they think is going on. There’s a really neat recent case from the Supreme Court of Canada that shows how this works: R. v. Nolet, 2010 SCC 24 (http://canlii.ca/t/2b8jp). What happened here was an RCMP officer in Saskatchewan noticed a semi which was missing a government regulation sticker. So that was evidence of an offence – and permitted a search for more evidence of that problem. He asked the driver for documentation – and that documentation showed that the truck did not have a permit to carry cargo in Saskatchewan and the logbook numbers were wonky – another offence. The driver said "we don’t have any cargo” – and sure enough, the trailer was empty. But now the RCMP officer had real suspicions that something was up, so he searched the cab for more documents that maybe explained the driver’s story was innocent or not. And in a duffelbag he found $115,000 in cash. Whoops!

Ok – so up to this point the only evidence of something illegal was driving without proper documentation - regulatory things that lead to a minor penalties. But all that cash suggest drugs and that the RCMP officer had discovered drug smugglers – the officer now had reasonable grounds to investigate this new offence. And sure enough, it turned out the ‘empty’ trailer had a hidden compartment that contained 392 pounds of marijuana.

Notice there was never a search warrant. The Supreme Court said all those searches – though without a warrant – were ok, because the officer had a reasonable basis to think a crime had happened and a search to look for evidence of that crime was therefore reasonable.

So let’s look at when a vehicle search is or is not reasonable by two examples.

1. A police officer stops a car which is missing a licence plate. That missing plate is evidence of an offence: driving an unregistered vehicle. The officer has a legal right to investigate that offence and look for evidence of that. It would be reasonable for the officer to go to the car window and ask for the driver’s licence and registration – to investigate if maybe the licence plate had been stolen or something and the driver just didn’t even know that. Note that there would be no reasonable reason for the officer to enter into the car, particularly if the driver could produce those documents.

For fun, let’s say the police officer has stopped a Freeman-on-the-Land, who gets out of the car and begins yelling: "I'm exercising my common law right to travel! I am not engaged in commerce and I am not subject to your law - I don't consent, you policy enforcement officer jerk!" Now the police officer would have a reasonable basis to look inside the car for registration and licence documents – heck, that Freeman might actually be following the law and have registration, but is just being a twit about things. And if that search turned up the right documents, the officer would have to let the Freeman go. But if the search turned up evidence of another crime, like a dufflebag full of marijuana, then it would be ok for the officer to start looking for other evidence of illegal drug activities.

Now another example:

2. A police officer has been tailing a guy who he thinks is a dial-a-doper. Let me know if you don’t know what that means – it’s a common drug distribution scheme. The officer sees what he thinks is enough evidence of drug trafficking and can now detain and search the doper, so the officer stops the dial-a-doper-mobile. What kind of search is reasonable? A search for drugs and evidence of trafficking. That would mean the officer could root around in the dial-a-doper-mobile looking in all sorts of places where drugs might be hidden. Why? Because the kind of suspected crime determines the scope of a reasonable warrantless search.

So let’s go back to Mr. Green. I don’t know the details of his case, so I can only explain what might have been some things a defence lawyer could have argued to help Mr. Green avoid being convicted.

First, if marijuana was found in Mr. Green’s car by a warrantless search, the lawyer would have asked very careful questions to the police officer about what was the basis for the search. Was it a traffic stop? Then there is no reason to look inside the car if Mr. Green produced his documents. Was Mr. Green patted down for safety, and drugs were found that way – and that led to the vehicle search? Then the lawyer would probably talk about where the drugs were found on Mr. Green – is it a place that a weapon might be hidden? Questions like these can establish a warrantless search is not reasonable (Charter, s. 9) and the drug trafficking evidence should be excluded (Charter, s.24(2)).

So way back I said that searches based on search warrants are always reasonable. Well, a defence lawyer can sometimes still exclude evidence even if there is a search warrant. To get a search warrant a police officer has to go to a judge, usually a Justice of the Peace, and provide evidence that provides reasonable and probable grounds that an offence is taking place. If the judge is convinced then a search warrant can be issued to look for specific things. A police search with the warrant is legal and any evidence located can be used in court.

Usually the police officer writes a document called an “Information to Obtain a Search Warrant”, which is an affidavit, to explain to the judge why a search warrant is reasonable. A smart defence lawyer reads that document very carefully, and will ask the police officer to explain everything in there, to make sure it’s all accurate and fair. If the police officer got things wrong, then the search warrant may have been issued without a proper reason, and then the search warrant is invalid, the search is unlawful, and the evidence again gets excluded.

So I’ve gone on a long time about how it is entirely lawful for a police officer or other government agent to conduct searches and seizure without anyone’s consent. It’s not an unlimited right, and many people accused of crimes are found innocent because of problems with unlawful searches – it happens every day. What helps is to understand why it is ok for the state to check into things, and in Canada there always must be evidence of something unlawful to start that intrusion into our constitutionally protected rights.

Something else which I didn’t discuss but which you might find interesting is that different things are more private than others, and whether a search is reasonable or not depends on the ‘privacy’ of what is searched. A car has relatively low privacy. Your home has very high privacy. The outside of your clothed body has low privacy – that’s why the ‘pat down’ search is ok. The opposite is true for your nudity, or even worse, a body cavity search. A police officer needs a very good reason to search you that way.

There’s been a very interesting development on this privacy subject of late. In R. v. Morelli, 2010 SCC 8 (http://canlii.ca/t/28mrg) the court said that your personal computer is an extremely private thing, and that no police officer should be allowed to look at the contents of your computer and its information unless there is a direct reason linked to the alleged offence that makes the computer’s information relevant. I think that’s an excellent rule when you think about all the very private stuff that one can learn by looking into someone else’s computer.

So you see, that’s why I don’t think we live in an unfair country. We elect the people who make laws in Parliament and the provincial legislatures. If we don’t like the laws they make, we can elect different people to enact different laws. I certainly think some of the laws enacted by our elected officials are wrong, and I hope at the next election maybe enough other Canadians will have the same opinion and that a new government will change certain laws to something I think is better. But as I am in the minority so far, on those issues at least, I have to live with that.

In any case, the courts and our Constitution protect people in Canada from unfair government action. It’s a balancing act. In a lot of senses, I control pretty much everything about my life and my privacy. But there are laws which restrict my freedom and allow the state to intrude, and affect me, whether I consent or not. Those laws have to be made by a government authorized to make that law – that’s jurisdiction – and have to comply with the Charter of Rights and Freedoms. Something Freemen seem to miss all the time is that our Charter rights are not absolute. Let's look at the first section of the Charter:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

If you want to know how rule works, here’s the case that explains that: R. v. Oakes, [1986] 1 SCR 103 (http://canlii.ca/t/1ftv6).

This, by the way, is a pretty important difference between Canada and the United States and how their constitution works. The U.S. does not have a constitutional clause like this – I’m sure our American friends here will correct me if I’m wrong on that – and that makes Canadian rights more subtle and contextual rather than absolute rules. Personally I think the Canadian approach is a good one, and that Charter, s. 1 is one of the better features of our Constitution.

Again, I hope that helps and is of interest!

SMS Möwe

[LightinDarkness]

I just wanna be really clear on this matter or position i am starting to see most of the members in agreement that whitemans (English) laws and govt are a higher authority than the laws of the Original Nations who were here prior to the murder and rape of millions.

Stop it. No one here is falling for this - you are trying to deflect from reality by claiming that because your ancestors had atrocities committed against them, that somehow you hundreds of years later are not subject to the law as it is. Its not "white mans law" it is THE law, the only law in Canada and the only one that will remain there until (1) you change it by voting or (2) violently overthrow the government.

For the record, I am not a Canadian but as someone in the United States that is Native American, people like you make me sick. We have your type here too - the people that cling to their ancestry in order to justify doing anything they don't want on the one hand while gladly taking every benefit they can from the government on the other hand. Your ancestry - in terms of the applicability of the law - is irrelevant. It applies to everyone in Canada, even you. No amount of screaming racism is going to change that.

Also, just for the record, nothing is YOUR land or YOUR resources. The ownership of land and resources is determined by the conquerors, not the conquered. You don't have to like it, but it is reality. Even if we were to accept your warped version of reality, the truth is what you think of as YOUR land and YOUR natural resources was at various times owned by other tribes before your tribe took it from them. That is what people did - they form groups and take stuff from other people. Yet somehow if we lived in your fantasy version of reality I doubt you'd want to determine just who REALLY owned what you think is your land, as if we looked I'd bet you just about all of it could be traced to being won by war or some other atrocity against another tribe. You going to hand all that land and resources back to them?

[LordEd]

I need to know: are you claiming your 'theories' apply to everyone, or just you due to heritage.

[Judge Roy Bean]

Well, so from what i gather so far from this forum, i maybe wrong so please let me know.

You are wrong, for any number of reasons.

... but i still have yet to read a rationale explanation as to why and by whos authority they are superior to our nations position as being original. Is that to much to ask or request ?

History and law are written by the victors.

Your "nations" are no more original than the current ones. By your theory, the world should be restored to some prehistorical stasis. Do some research on the concept of entropy, more specifically social entropy.

In the mean time, you are subject to extant law whether you agree with it or not. Your option is to find a place to live that will accept your theories - good luck with that.

[Famspear]

But....

(sniff.....)

.....but......

.............but it's not faaaaaaiiiirrrrrr!



We understand, Chief2k13, that you feel it's not fair.

Grow up.

[wserra]

Even if we were to accept your warped version of reality, the truth is what you think of as YOUR land and YOUR natural resources was at various times owned by other tribes before your tribe took it from them.

Exactly, and - unlike ChiefDate's scribbles - well put. Moreover, from time to time the conquering tribe would enslave the survivors of the conquered tribe.

There is no question that Native Americans were oppressed on a grand scale, because Europeans were in a position to do that. If there had been a Native tribe in a similar position before the arrival of Europeans, they likely would have done exactly the same.

And, of course, none of this has anything to do with ChiefDate's ability to ignore Canadian law.

[tm169]

but can you get a mortgage on a house without a signature, can you not just affirm you will pay it back by verbally saying so ?

In England at least you can create a legal mortgage which must be by a signed deed or and equitable mortgage. Equitable mortgages could be created orally and through giving the bank you title deeds. Now even an equitable mortgage must be "in some writing" under the LPA 1989.

So why do you have to sign for visa buys? These days not so much but for the longest time you had to sign once purchased. Why do you have to sign for a cheq? Lately i havent signed the back of a Cheq for the past 5yrs now, a little here and there but out of say 100 cheqs i signed maybe 3.

I think you are getting somewhat muddled with formality requirements to create a contract and formality requirements in payment methods.

Formality requirements are secondary in contract law. The existence of a contract is often proved by a meeting of minds. Of in other words proving that both parties intended to form a contract on the specified terms and intended to enter into legal relations.

Also, there is absolutely no way these banks dont sell off the promissory notes as securities on the market bundled up ? I cannot say for sure but in the U.S i read about cases where banks brought originals in and there are many other bank stamps on the back of them. I would have to find these stories and the bank court cases it referred to. Anyways.

There is a massive and important difference between securitisation and assignment on the one hand (both common and legal) and the fmotl analysis of mortgages as a negotiable instrument.

Mortgages are not a promissory note by the statutory criteria and common law so your claim the "note" is sold can't stand up to scrutiny unless you can prove that document in question is a note.

Unless you have a mortgage which is totally unconditional and intended to be a promissory note by both parties, you do not have a promissory note.

It might be that your mortgage liability as a "thing in action" has been securitised but this has no relevance on your mortgage and does not cause you any loss. Maybe Canadian law is different but arguments that securitisation effects individual mortgages has failed in England.

Such an argument was described as "technical and unmeritorious" in Paragon Finance plc v Pender. It goes into some detail about what securitisation is and why it doesn't mean that you no longer have to pay your mortgage.

http://www.bailii.org/ew/cases/EWHC/Ch/2003/2834.html


Edit: autocorrect errors

[Hilfskreuzer Möwe]

Ok very good, Now our nations are absolutely Sovereign at least those whom live as citizens of that nation and not Canadians. So, as citizens of our nations there are some whom are training to be or are Judges for our nations courts. Yes we are building Courts and Police and Sheriffs who will be given a task to begin arresting those whom are committed acts against our nations and to be brought forth before our judges for trial and placed into our jails once they are complete. As a nation we have a De Jure Nation/Government which all aspects are being implemented as we speak and worked on, as well as our own currency, central Bank.
(De jure (in Classical Latin de iure) is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact". The terms de jure and de facto are used instead of "in law" and "in practice", respectively, when one is describing political or legal situations.) So yes our courts can and will be issuing judgments for civil cases as well, appointing Notaries whom are and will be bonded with securities among our own nations. Cannot say much more but im sure you are getting the idea. alot of the Nations now do have police and many more will be implementing more and more officers and eventually an Army. So, do we have the right to do so, fucking right, its our land, the occupation of Canada will soon be over may not in the next 10 years but its coming down the pipe. Canada being a de facto Government their laws truly do not have no can ever have real laws, only the ones they enforce behind the barrel of a gun and tazer.

So on to the topic of aboriginal rights in Canada. Chief Rock Sino General, I am not going to respond globally to your saying that aboriginal groups are going to set up their own nation-states with courts, police, armies, and so on. The reason I am not going to talk about that directly is that there is a rule here on the Quatloos forum that we are not permitted to discuss things that are political topics. The items you have identified are not ones that I understand are authorized by law in Canada. That broader kind of self-governance may be something that emerges in the future, but if it does, that will be decided by Canadian provincial and federal politicians, and aboriginal politicians. I will not comment one way or another on if I think that is right or wrong - that is not a subject for Quatloos, in my opinion.

I suspect comments on the legitimacy of certain actions in places like the Middle East would also fall into this prohibition. Only a guess.

If I’m wrong on this I am sure the administrators will straighten me out.

So instead, to law. I understand aboriginal people in Canada have special rights, and that these are protected by the Constitution via the Charter of Rights and Freedoms, s. 35:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

A couple quick observations, you will notice that Canada’s law treats Indian, Inuit, and Métis in the same way. I know you previously wondered whether law concerning the Métis applies to other aboriginal peoples, and as you can see here, it does.

There are two kinds of rights recognized explicitly: aboriginal rights, and treaty rights. Treaty rights are something I’ll talk about later, but let us first discuss what are aboriginal rights. The Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507 said these rights are part of aboriginal culture: “... an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right ...” and that is a “... crucial [element] of the distinctive aboriginal societies that occupied North America prior to the arrival of Europeans ...”.

Aboriginal rights are not just treaty rights, but exist even after Britain and then Canada took authority over this land. It was put this way in Tsilhqot’in Nation v. British Columbia, 2012 BCCA 285 at para. 167:

The assertion of Crown sovereignty did not, as a matter of common law, serve to extinguish the pre-existing traditional rights of First Nations, and those rights survived. Aboriginal rights, then, are recognized rather than created by the common law.

So you see, common law and aboriginal rights are different.

There are a huge number of cases that talk about aboriginal rights and when they still exist today. I am going to just look at one Supreme Court of Canada case, Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 (http://canlii.ca/t/fnr69) as it is quite recent and illustrates how these rights work. In this case a group of British Columbia Indian bands claimed they had an aboriginal right to operate a commercial fishery. The Supreme Court said they did not.

This is a four step process (see para. 46):

1) what is the actual right claimed?

2) has the aboriginal group proved “(a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right and (b) that this practice was integral to the distinctive pre-contact Aboriginal society.”

3) is the modern claimed aboriginal right ‘connected’ to the pre-contact practice:

Third, determine whether the claimed modern right has a reasonable degree of continuity with the “integral” pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.

4) what is a modern form of the aboriginal right that is fair to both the aboriginal people and Canadians as a whole.

In this case there was absolutely no question that the Indian band’s ancestors had engaged in an extensive fishery, so that was clearly an aboriginal right. What they had not done is engaged in a commercial fishery. They did not engage in trade of fish or fish products in a manner that made that “an integral part of their distinctive culture”: para. 52.

There is a complication in that an aboriginal right that existed at contact can be taken away, or "extinguished", by either a treaty or by a “unilateral act of the sovereign”. The treaty part is simple - if a treaty for example limits the area of land used by an Indian band to do something then that “extinguishes” the aboriginal right to do things outside that space. “Unilateral act of the sovereign” means just that - the Crown (Britain or Canada) has created rules, usually legislation, that takes away a right to do something by displacing it.

I found a case that is very helpful in understanding when a treaty or aboriginal right is extinguished: Mitchell v. M.N.R., 2001 SCC 33 (http://canlii.ca/t/521d). Mohawks from Akwesasne claimed they had an aboriginal right to import things into Canada without paying customs. They argued this was a modern extension of their traditional trade practices. The Supreme Court of Canada talks about when rights are extinguished.

You have asked why aboriginal communities do not have full rights today? The law for that is explained at para. 9:

Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse of land in organized, distinctive societies with their own social and political structures. The part of North America we now call Canada was first settled by the French and the British who, from the first days of exploration, claimed sovereignty over the land on behalf of their nations. English law, which ultimately came to govern aboriginal rights, accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation: see, e.g., the Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1, and R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1103. At the same time, however, the Crown asserted that sovereignty over the land, and ownership of its underlying title, vested in the Crown: Sparrow, supra. With this assertion arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation, a duty characterized as “fiduciary” in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335.

So there you go. Pre-contact aboriginal rights were removed by cession (aboriginal people not using those rights), conquest (self-explanatory) or legislation. So what about the Mohawk’s claimed international trade rights? It turned out they didn’t have the evidence to back up that actually occurred and was an integral part of their pre-contact culture: para. 60.

These cases talk about “Crown sovereignty”. That means, bluntly, ‘there can only be one boss’. When English law governed Canada that meant the ‘country-like’ functions of aboriginal people like law-making, running courts, waging war - all those went away. They belong to the Crown, and that is that.

But, as you remind us, this is not just a one-way street. When the Crown took over those rights it gained an obligation identified in Mitchell v. M.N.R. “... to treat aboriginal peoples fairly and honourably, and to protect them from exploitation”. We’ll talk about that fiduciary duty later.

So, this answers your argument that aboriginal people can just set up their own governments - they lost those rights in return for Crown protection. Further, many of the things you mentioned have clearly been extinguished by legislation. Aboriginal groups have no right to set up their own police forces because any right to that was “extinguished” by the Criminal Code and legislation that authorized police forces. The same goes for courts - the only right to organize courts is found in the The Constitution Act, 1867, 30 & 31 Vict, c 3 (http://canlii.ca/t/8q7k), ss. 91-92. And the same goes for “Militia, Military and Naval Service, and Defence.”: s. 91.

Oh, and if an aboriginal group were to somehow set up a court? Again, the inherent jurisdiction of the Canadian superior courts would mean the inherent jurisdiction courts would have the right (and duty) to review and reject any 'aboriginal court' decisions that are contrary to Canadian law. The same, by the way, goes for Indian band counsels - their decisions are currently reviewed by the Federal Court.

So let’s talk about treaties. I found a very interesting Supreme Court of Canada case, R. v. Sioui, [1990] 1 SCR 1025 (http://canlii.ca/t/1fsvg) that talks about what treaties with aboriginal people are and how they come about. And it’s a neat historical story, too! The case on its surface deals with something very different. Four Huron were arrested and convicted for cutting down trees and camping in a Quebec provincial park. They said they had a treaty right to do that. The Supreme Court agreed.

Now the “treaty” the Huron identified is short so let’s look at the whole thing:

THESE are to certify that the CHIEF of the HURON tribe of Indians, having come to me in the name of His Nation, to submit to His BRITANNICK MAJESTY, and make Peace, has been received under my Protection, with his whole Tribe; and henceforth no English Officer or party is to molest, or interrupt them in returning to their Settlement at LORETTE; and they are received upon the same terms with the Canadians, being allowed the free Exercise of their Religion, their Customs, and Liberty of trading with the English: -- recommending it to the Officers commanding the Posts, to treat them kindly.

Given under my hand at Longueil, this 5th day of September, 1760.

By the Genl's Command,
JOHN COSNAN, JA. MURRAY.
Adjut. Genl.

It was signed by Brigadier General James Murray of the British army. He was the commander of the British military in what would later become Canada.

These were exciting times! Britain and France had been dueling over North America for close to a century, and for France the end was at hand. The previous year Britain had invaded Quebec, and in 1759 the climactic battle of the Plains of Abraham decided the contest. The French were defeated and the British seized the entrance to the St. Laurence river. Remaining French forces retreated to Montreal, where, surrounded, they surrendered. That ended France’s military presence in what is now Canada.

So who were these Huron, and why did Murray make this arrangement with them? They were Indian allies of the French, and with this agreement they made peace with Britain after the defeat at Quebec City.

Interesting stuff - so what else does this case tell us about treaties? A lot. For one, a treaty with an aboriginal community is not an international law treaty - it is something different:

... an Indian treaty is an agreement sui generis which is neither created nor terminated according to the rules of international law (p. 404).

...

... a treaty with the Indians is unique, that it is an agreement sui generis which is neither created nor terminated according to the rules of international law. ...

That quotes another Supreme Court of Canada, Simon v. The Queen, [1985] 2 SCR 387 (http://canlii.ca/t/1fv04), and I think it might be helpful to quote the whole passage, for context:

... While it may be helpful in some instances to analogize the principles of international treaty law to Indian treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law. R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), at pp. 617 18, aff'd [1965] S.C.R. vi, 52 D.L.R. (2d) 481; Francis v. The Queen, 1956 CanLII 79 (SCC), [1956] S.C.R. 618, at p. 631; Pawis v. The Queen, reflex, [1980] 2 F.C. 18, (1979), 102 D.L.R. (3d) 602, at p. 607.

A treaty with an aboriginal group is “sui generis”. Frankly, I don’t like that term, it’s latin for “of its own kind and therefore unique”. A treaty with an Indian community is not an international treaty because Indian communities are not countries, but it is a bargain:

... a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity. ...

A treaty created this way is a treaty under s. 88 the Indian Act - again, not an international treaty.

Here there was a promise by the Huron to cease fighting, and the British to respect the religion and customs of the Huron and “treat them kindly”. However, was it “solumn” enough? The Supreme Court says it was, even though there was no providing of traditional peace treaty belts. This was negotiation in wartime, and the paperwork was good enough for all.

The court also investigates whether this right was extinguished and determines it was not.

There is something else interesting in R. v. Sioui. Freemen seem to talk a lot about “de jure” and “de facto” governments and authority. Well, the Supreme Court here makes clear that is a very foolish argument. British “de facto” authority was established by military conquest, in 1760:

In fact, the total defeat of France in Canada was very near: the Act of Capitulation of Montreal, by which the French troops stationed in Canada laid down their arms, was signed on September 8, 1760 and signalled the end of France's de facto control in Canada.

“De jure” authority was established three years later, by international treaty between Britain and France:

Great Britain's de jure control of Canada took the form of the Treaty of Paris of February 10, 1763, a treaty which inter alia ensured that the "Inhabitants of Canada" would be free to practise the Roman Catholic religion. Some months later, the Royal Proclamation of October 7, 1763 organized the territories recently acquired by Great Britain and reserved two types of land for the Indians: that located outside the colony's territorial limits and the establishments authorized by the Crown inside the colony.

Where did Canada get it’s “de jure” authority? In 1867 the U.K. passed the The British North America Act, 1867 (now called the Constitution Act, 1867) and Canada was granted authority to govern itself, as a country, by the country (the U.K.) that had previously had that authority. You can think of it as one country splitting into two.

So much for all that “de facto” crap.

So, last major point. I was a little disappointed you did not look closer at the Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (http://canlii.ca/t/fwfft) because as I read the decision it requires Canada maintain a duty called the "honour of the Crown" to all aboriginal people in Canada (para. 66):

The honour of the Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people”: Haida Nation, at para. 32. In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to “the several Nations or Tribes of Indians, with whom We are connected, and who live under our Protection”: see Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 (CanLII), 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42. This “Protection”, though, did not arise from a paternalistic desire to protect the Aboriginal peoples; rather, it was a recognition of their strength. Nor is the honour of the Crown a paternalistic concept. The comments of Brian Slattery with respect to fiduciary duty resonate here:

The sources of the general fiduciary duty do not lie, then, in a paternalistic concern to protect a “weaker” or “primitive” people, as has sometimes been suggested, but rather in the necessity of persuading native peoples, at a time when they still had considerable military capacities, that their rights would be better protected by reliance on the Crown than by self-help.

In this case Canada did not live up to its obligation in a bargain with the Métis. The Métis had their own community in what is now Manitoba, the Red River Settlement:

In 1869, the Red River Settlement was a vibrant community, with a free enterprise system and established judicial and civic institutions, centred on the retail stores, hotels, trading undertakings and saloons of what is now downtown Winnipeg. The Métis were the dominant demographic group in the Settlement, comprising around 85 percent of the population, and held leadership positions in business, church and government.

The Métis were prepared to defend their community and its independence (para. 26-27), but in the end Canada and the Métis came to an agreement. The Red River Settlement would join Canada as a province, Manitoba, and the Métis in return would get a large grant of land to maintain their community: paras. 30-31.

The sad remainder of this judgment discusses how that bargain was not respected by the Canadian authorities and the Métis land grants were either delayed, had ‘strings attached’, or were set up in a way that broke up the Métis community. That failure to live up to the bargain breached the honour of the Crown, and ultimately indirectly led in 1885 to an armed Métis rebellion in what is now Saskatchewan.

The Supreme Court of Canada does not say what should be done to fix the breach of the honour of the Crown because the Métis and Canada did not ask for that answer, so now presumably there are going to be some very interesting negotiations in the next few years!

So I hope that is helpful and interesting. I certainly learned a lot more about aboriginal title, rights, and treaty reading these cases.

I am also quite convinced that your position is absolutely incorrect, in law, in Canada.

SMS Möwe

[tm169]

@Möwe

Thank you for that well researched and educational post. This is an area of public law I know nothing about but your info has inspired me to read further. Thanks

[Dr. Caligari]

I just wanna be really clear on this matter or position i am starting to see most of the members in agreement that whitemans (English) laws and govt are a higher authority than the laws of the Original Nations who were here prior to the murder and rape of millions.

I am a lawyer. When I use the word "law," what I mean, to paraphrase Oliver Wendell Holmes, is "an accurate prediction of what a court will say tomorrow if a given dispute is presented to it." Notice that this definition does not refer to fairness, or even justice, because many people will disagree as to what is fair or just. By that definition, if you are in Canada, your actions will be judged by Canadian law.

Moreover, as others have pointed out, virtually every nation and people on Earth has, at some point or other in history, displaced, conquered or enslaved another nation or people. This historical fact, as unfortunate as it may be, has no impact on what the "law" is.

BTW, I am still waiting for you to either (1) pay me my my four ounces of fine gold, or (2) admit that your definition of how a contract is formed is incorrect.

[Arthur Rubin]

I suspect comments on the legitimacy of certain actions in places like the Middle East would also fall into this prohibition. Only a guess.

Yes. My only excuse, as a moderator, is TL;DR.

Future discussion on that matter, and the degree as to which laws of the First People or of Canada should be applied, will be dealt with appropriately.

[JamesVincent]

Excuse my thoughts and ideas but are you suggesting that the U.S had any business in another territory bombing folks who for the most part had nothing to do with what they allegedly there for ? I am saying the U.S Govt uses Soldiers to go in and kill and take over lands and resources of other nations. WHo died and made the U.S God ? I can respect an army who is there to protect their citizens not running all around the world bombing,shooting and who knows what else they are doing. This whole discussion was to be on law and to be on, Contracts. I was told murder is not legal and in my humble opinion a bunch of guys in suits made it legal for armies to around shooting and killing folks is all im saying. Can you give me a reason or example of why an army would need to do such a thing to many families and children ? If you feel the killing that was done over was for a just cause do explain? Bin laden? 911? Why was Bush Sr over there and coincidence his son re-enters there to finish what his dad started....anyways we are wayyyy off topic here.

This is the purest form of political tripe. Your explanation for calling soldiers murderers is your disagreement with foreign policy. Soldiers do not make policy, they are the instruments of policy. As far as Bush Sr., Operation Desert Shield/ Desert Storm were 100% caused by the actions of Hussein invading and raping Kuwait. The US was not the only nation present in that theater, nor were they the only one's present during Operation Iraqi Freedom. To call out the US on foreign policy that was almost universally global in nature is hogwash. And, as a member of the US Army, I served during both conflicts. I can tell you, I did not have any hand in making the policy that took us there, nor were the commanders of the united armies in charge of policy. We were there as the instruments of that policy. You got a beef, you take it up with Congress, not the servicemen. By your line of reasoning, the 417k US serviceman who died in WW II were murderers also, we were not defending our land per se, we went all over the world murdering and pillaging. My guess is you would have been one of the ones calling my father a baby-killer after he came home from 5 tours in Vietnam, serving as a corpsman attached to a Marine unit or my stepfather, who served as a medic for 1.5 tours.

As far as your comments about police officers being knuckle draggin thugs, for every situation that reaches the news and is called police brutality, there are 100s if not 1000s that are not. I don't remember the exact number but I believe it was less then 100 people per year are killed in clashes with police. More then that have been murdered in Chicago so far this year. Wheres your outrage for that? A LEO is the first, and sometimes only, line of defense between an ordinary citizen and someone that wants to rob, maim or murder that person and risk their lives everyday they are on the job to protect that citizen. I do not always agree with decisions made by police officers but I give them great respect for doing what they do. Even a bad one is worth more then you are.

Moderators, the original comment made has been proven to be only political in nature. I ask it to be removed per our political policy. Remove any of mine that are political and any reference to them please. Like I said, I will not tolerate soldiers being put down, especially when I see almost every day news of another soldier losing his life due to PTSD and see the lines of wounded soldiers coming home. Whether we agree with what they are doing or not, they deserve respect since they guard the freedom that allows us to have the conversation we are having.

[Chief2k13]

Why thanks everyone for responding. I do enjoy the replies very much. I find some to be a little aggressive but all in all i got lots of reading to do.

I do my best to read as much as i can. I know i stated a few things on here that would need some validation. I got one have plenty of folks who either recorded their court sessions or video recorded. For myself, i was in debt in the amounts of around 20,000 or more. I did do a bunch of letters against all the debts to request an original contract to show my obligation to them. I do this very consistently with collection agencies as i know for sure i have no obligation to them at all. The whole factoring thing is between the company who SOLD THE DEBT and the one buying it.

Anyways i really have to go back to the start of all the posts that posted up case law so i can get a better idea of why those cases were judged the way they were. Thanks again Mowe for the replies and good nature of your calm confident words. I know not all will agree with the views i have come up with or read about. BUt i do really like the research and opinions on here besides the ones that attempt to name call or belittle. Please get ahold of yourself.

I got lots of reading to do, im still trying to get through the trust law books and newest contract law book. The dictionary is my friend at moment as is Canadian law books. Its good to get some passion in posts. I think i stirred that up in here. An honest set of questions thoe. I am no freeman guru i assure you. However, i do question everything. What i was wishing to ask here is can wait, i wish to go and read all the case laws and come back with another perspective. Yes i am willing to say i am wrong if in fact i am. We all have different views. As for someone who is claiming to be Native from the U.S,

For the record, I am not a Canadian but as someone in the United States that is Native American, people like you make me sick. We have your type here too - the people that cling to their ancestry in order to justify doing anything they don't want on the one hand while gladly taking every benefit they can from the government on the other hand.

So can you please let me know what benefits your aware of about me that i am accepting at the moment ? What did i accept or what am i enjoying as a benefit ? i cling to my ancestry ?

I am unsure what your position is ? You claim to be native, what nation ? Did you grow up in your culture or were you adopted into another family ? People like me make you sick ? Do you even know who i am or what i am about in order to assert such a strong position against so called ppl like me ?

Anyways guys i gotta go do some reading, i got ceremonies and song i need to prepare for, for my people who enjoy hearing my songs i sing. As much as i do like posting about law and contracts, i do love my music. So, i will be back in a few days or so after my review of these case laws, until than see you in a few days or maybe a week im moving as well.

[Chief2k13]

Yes you are correct, it is U.S policy and you men were used as a weapon. As I stated I do have respect for soldiers whom are there to protect their citizens of their nation. This U.S policy is in my thoughts wrong and I see many youtube videos where soldiers left or did not want part of what wad going on over there. As for police I generalized so forgive me, I have had good experiences and bad ones. Yes one bad apple doesnt ruin the bunch but why are the good officers not speaking out or something against the officers who are doing horrible crap giving them a bad name? The article I posted the officers was way past due for firing. Who is responsible for these acts? U.s. policy busy running around other countries and cant even get their own situation under control. Anyways this again is off topic. This isnt about the army or marines.

[AndyK]

Yes you are correct, it is U.S policy and you men were used as a weapon. As I stated I do have respect for soldiers whom are there to protect their citizens of their nation. This U.S policy is in my thoughts wrong and I see many youtube videos where soldiers left or did not want part of what wad going on over there. As for police I generalized so forgive me, I have had good experiences and bad ones. Yes one bad apple doesnt ruin the bunch but why are the good officers not speaking out or something against the officers who are doing horrible crap giving them a bad name? The article I posted the officers was way past due for firing. Who is responsible for these acts? U.s. policy busy running around other countries and cant even get their own situation under control. Anyways this again is off topic. This isnt about the army or marines.

Very well could be -- if it were in the least bit coherent.

[LightinDarkness]

Chief, you show what a liar and deception artist you are by copying and pasting only PARTS of my previous message to your facebook. Let me just point out how sad of a person you must be to do this - clearly trying to take me out of context in order to get affirmation and support from your insane group of followers. You know my post in context shows why you are wrong, but you need so bad to believe you are right you essentially take it to your supporters and quote it out of context in order to feel better about yourself when your rabid fans bash it. I don't have a facebook account so I only know this because someone told me, but if you have one ounce of honor you would either post the ENTIRE thing in context or delete it. But you won't, because if you've shown anything your not someone who acts with honor.

You have been debunked. Completely. Mowe (and others, including Wserra) have spent vast quantities of time showing you - in the most polite and sincere way - why you are wrong. Hats off to Mowe in particular though, whose posts are always educational and informative.

You clearly had no intent to come here to have a reasoned discussion about your views. Within 3 posts on page 1 your response to evidence that your freeman views were wrong were met with the now familiar refrain of "but white peoples laws" and "racism!". These are distractions, obfuscation techniques you are using because you don't want to admit even to yourself that your positions have no actual legal merit.

At this point, my fellow Quatloosians, we are simply providing a platform for this guy to espouse his rabid political beliefs. Hes entitled to his political beliefs, as illogical and nonsensical as they are, but that is not something we are really here to talk about. I am done posting in this thread.

[Chados]

do you seriously believe that the statutory laws of the jurisdiction that you are in do not apply to you simply because you woke up on the wrong side of the bed late one morning and decided out of a clear blue sky to aggregate unto yourself aborignal heritage?

Well, can you explain to me how/where the WHITE EUROPEAN LAW got its jurisdiction over my nations ? You know the original nations that were here and were murdered and raped and had a bio attack on them with small pox in blankets. Please if you could explain why or how a race who isnt from these lands now can determine what i have to do, under what authority please explain ? from what i can gather all those areas you wrote about Toronto, Montreal etc...who are territories already named by our nations the cities you speak of are nothing more than legal bs from English evaders who use force to get their way.

So, let me get this straight. Because of what a bunch of colonials did three hundred years ago, you and your besties can now up and unilaterally declare that the settled law of the land just doesn't apply to you? That's rich. Let's be clear. The "WHITE EUROPEAN LAW," as you put it is the law of Canada whether you like it or not. And it applies to you whether you like it or not, as long as you live within Canadian borders. You were born into a civilization that, to be civilized, has long since established certain rules. We call those "laws." Perhaps you've heard of them. You can't create new ones off the top of your head just because you've decided that Her Majesty takes too big of a bite out of your welfare check for your liking. That's called "anarchy" and civilized people think that's bad. And they have a professional police force that has guns. And there are more of them than there ever will be of you and your BFFs.

And I look forward to your establishment of your own military and police with great interest; no move will more quickly get the attention of the Canadian Army, Navy, Air Force, Marines, and every Mountie in a red jacket and funny hat. By all means, proceed.

Sure we will and are in the process of doing so. Mainly our courts are first and jails 2nd to be built. We will see how they like it when our judges pass down judgements from our laws and Govt rules we had 1000's of years before whiteman came.

Okay, now I know you're just trolling us. you're not being serious with this-you're just trying to get a reaction from us.You can't possibly be so dense as to actually think that the Canadian government is going to stand idly, and benignly, by, while a domestic terrorist organization sets up armed resistance and fake courts in its jurisdiction! Canada's got some pretty strict weapons laws. And they actually jail people for that. And from what I've seen, Her Majesty's Judiciary generally takes an attitude about those kinds of violations. Nice one, Chief. I like your sense of humor. It's real subtle

[JamesVincent]

This thread is much more enjoyable since I ignored the Chief. Should have done it earlier. Now I can enjoy Mowe's awesome posts without getting irritated.

[Hilfskreuzer Möwe]

So by pure coincidence today the Supreme Court of Canada released a fascinating judgment that dissects the continuity between U.K. and Canadian law:

• Conseil scolaire francophone de la Colombie Britannique v. British Columbia, 2013 SCC 42: http://canlii.ca/t/fzsvv

In brief, the appellants are parties interested in promotion of french language education in British Columbia. That province is not one of the Canadian jurisdictions that have a large proportion of persons who speak French as their native language. These appellants had sought to intervene in legal actions that involve public french language education in British Columbia. All that has no direct relevance on the Supreme Court of Canada’s decision, which instead focuses on a very narrow point.

In their intervention application the appellants filed affidavits that attached documents in French. These were rejected by the courts on the basis that all court documents must be in English. And where did that rule come from? A 1731 English statute entitled: “An Act that all Proceedings in Courts of Justice within that part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language, 1731, 4 Geo. II, c. 26". That law required that:

... all Writs, Process and Returns thereof, and Proceedings thereon, and all Pleadings, Rules, Orders, Indictments, Informations, Inquisitions, Presentments, Verdicts, Prohibitions, Certificates, and all Patents, Charters, Pardons, Commissions, Records, Judgments, Statutes, Recognizances, Bonds, Rolls, Entries, Fines and Recoveries, and all Proceedings relating thereunto, and all Proceedings of Courts Leet, Courts Baron and Customary Courts, and all Copies thereof, and all Proceedings whatsoever ...

... be in the English language, only.

The question for the Supreme Court of Canada was whether this 1731 English law, which had never been separately enacted in Canada, still was in force in the present day. The answer is yes, and the judgment by Justice Wagner carefully steps through the process of how and when this very old English law can still operate in Canada. As an aside, Wagner is a relatively new appointment to the Supreme Court of Canada, and to date I have been quite impressed with his careful and clear writing. This judgment is a nice bit of work and a very useful tool to examine this esoteric subject.

The process by which English law ‘appears’ in a new location is call “reception”, and it is described in this way at para. 15:

The reception of English law is a common law principle, and it applies in several Canadian provinces in which it has not even been provided for by provincial statute .... At common law, reception was said to take place as a result of the presence of British subjects in a new territory ... That is to say, British subjects “carr[ied]” English law with them as they settled in the colonies ...

Reception occurs automatically when a new territory becomes subject to the U.K., but also may occur via legislation. That is what happened in British Columbia via the Law and Equity Act, R.S.B.C. 1996, c. 253, s. 2:

2 Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.

The intervener organizations had a bunch of arguments as to why the 1731 Act did not apply in British Columbia. The first is a statutory interpretation claim which Justice Wagner rejected as artificial and leading to an illogical result: paras. 18-26. The next question was whether the section 2 criteria above were met. There was no dispute that the 1731 Act was in force in England in 1858. But was that law “inapplicable” to the “local circumstances”?

Wagner rejects that this is a “necessity” test. An “applicable” law is one that is “suitable”, rather than “necessary”. His reasoning is interesting, because he in effect stresses that English law, both statute and common law, arrives as a ‘suite’ of legal tools that work together in combination. To pull out this or that and ask “does this fit?” risks breaking the legal apparatus and removes its context:

[32] Moreover, a requirement that necessity be assessed by comparing the historical circumstances in England at the time of the statute’s enactment to circumstances in British Columbia would unduly narrow the range of statutes that can be received. If reception depended on comparing the very specific historical circumstances that motivated a statute, almost no statutes would be received, because it is unlikely that the exact same social circumstances would have existed in colonies that were settled after relevant social structures had been abandoned in England: B. H. McPherson, The Reception of English Law Abroad (2007), at p. 378.

[33] This problem can be illustrated by considering one of the statutes that the appellants accept has been received, namely the Statute of Uses, 1535, 27 Hen. 8, c. 10. The appellants agree that the Statute of Uses is applicable and has been received in British Columbia (A.F., at para. 45). Yet the Statute of Uses was adopted to deal with the proliferation of the use, a device to avoid feudal taxes. Since feudalism, and indeed the use, never existed in British Columbia, it would be hard to argue that the Statute of Uses is necessary on the basis of the appellants’ own view of necessity. The test for reception cannot therefore be so narrow as to require proof of necessity as the appellants propose.

[34] It is my view that the Law and Equity Act, rather than requiring proof of necessity, requires that statutes be considered to be received unless they are unsuitable to local circumstances in British Columbia. A suitability test is consistent with the authorities and eliminates the need to engage in detailed historical comparisons or to speculate about the legislative intent behind a statute that was adopted hundreds of years ago. According to McPherson, the test is “whether the rule of English law can reasonably be applied or is suitable, or in its nature not unsuitable, to local needs, and not whether it would be beneficial or convenient to apply it” (pp. 373-74). Peter Hogg also discusses the common law rule for determining whether received law is applicable in terms of suitability, stating that received laws “did not include those laws that were not suited to the circumstances of the colony” (P. W. Hogg, Constitutional Law of Canada (2012 student ed.), at s. 2.2(b)).

Next, Wagner asks when does one test whether a potentially ‘received’ law is or is not ‘applicable’. On a single date - 1858 - the date formal “reception” occurred (para. 39):

This approach results in valuable certainty in the law, as a statute’s applicability will be assessed once, rather than on an ongoing basis. It is also respectful of the courts’ role of interpreting statutes and of the local legislatures’ role of amending them to reflect changing circumstances. The proper function of the courts is not to continually redefine the content of the received law in light of contemporary local conditions by identifying statutes that are no longer suitable.

However, that is not to say that a law which is potentially received needs to be immediately ‘applicable’. As long as the received law is not unsuitable to the recipient jurisdiction, it can remain “dormant” “until such time as circumstances arise that might call for their application”: para. 37.

In this case an English-only courts rule was perfectly applicable. At this point the majority of settlers were from the United States, as this was about the time of one of British Columbia’s various gold rushes. English was the commonly used language, so the 1731 Act was entirely ‘applicable’, and became a binding part of Canadian law though it is not enacted by a Canadian elected body: para. 41.

The next question is whether the 1731 Act still operates in British Columbia today. There was no dispute that no other law passed after 1858 had explicitly replaced or repealed it. However, there has been additional law that addresses language use and rights. Did that implicitly replace the 1731 Act? The test was that a ‘newer’ law implicitly modifies the received law only when (para. 44):

... the entire subject-matter has been so dealt with in subsequent statutes that, according to all ordinary reasoning, the particular provisions in the prior statute could not have been intended to subsist.

Only total replacement will do, otherwise aspects of the old legislation remain. In this case there were two ‘overlaid’ bits of purely Canadian law. The Criminal Code explicitly states a criminal trial can be in English or French, so that aspect of the 1731 Act is gone. Other court rules on language address aspects of court documents, but not in the same global manner as the 1731 Act.

Last, the appellants argued that the Charter of Rights and Freedoms had changed the rules. Wagner disagreed. Here two parts of that document interplay:

16.(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

...

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Section 16(1) would seem to support the appellants; if both languages are official and equal, why can’t they both be used in court? Wagner interprets 16(3) as a limitation on that, and concludes that since the British Columbia legislature has not repealed the 1731 Act, it persists as an expression of the authority in 16(3), even though that legislature has never said anything explicit about the question, or officially endorsed the 1731 Act.

Neat stuff for understanding how U.K. and Canadian law intermesh, and how U.K. law remains highly relevant in Canada.

If I were an OPCA guru, this is where I would turn my attention to unwind the Canadian state and its authority. As this case illustrates it is entirely possible that some old and moldering English statute or common law principle may have snuck its way into Canadian law and lain dormant, waiting to be re-discovered. But finding that nugget would take a lot of work, a really high end research library, a detailed understanding of obsolete U.K. court procedure and principles, and a tolerance and understanding of Ye Olde Englishe. Still, done right, that approach would be vastly superior to a usual claim such as the U.C.C. operates in Canada as international (and interstellar and intergalactic) law.

Just thought that would be potentially interesting given some of the other discussion in this message thread.

SMS Möwe