Burnaby49 wrote:Just found something that I should have put in my trial posting but forgot until I was rummaging through my backpack this morning and found some paperwork that Simpson gave me.
I had a talk with Simpson during the lunch break just before court resumed and (unknown to me) after he had made his plea bargaining deal with the Crown. He said he planned to continue his efforts "in commerce", whatever that means to him, and gave me a photocopied sheet that apparently proved his innocence. It was a printout of a page from the Government of Canada's Justice Laws Website. He highlighted part 15 of the document, an excerpt from the Criminal Code of Canada;
Obedience to de facto law
15. No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.
R.S., c. C-34, s. 15.
Apparently a complete defense being ignored by the corrupt courts. ...
I've encountered this argument on a number of occasions, it seems most commonly applied by the Freeman-on-the-Land community but it may date back to Eldon Warman. In any case, this potential application of
Criminal Code, s. 15 has not actually been rejected in any court decision of which I am aware, though it was at least mentioned in
Szoo’ v. RCMP, 2011 BCSC 696 (
http://canlii.ca/t/flngx) as part of the rationale why police action had been illegal, and therefore the police could be sued in damages.
Section 15 has not been the subject of much court comment - it just doesn't come up too often. There are a couple Supreme Court of Canada decisions which help indicate its application. The first is
Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 SCR 629 (
http://canlii.ca/t/1gzjn), where a private gas company was successfully sued for having charged illegal interest rates via "late fees" that it charged customers for overdue payments .The gas company argued it had been instructed by a government entity, a utility board, to order charge those fees. That was a "de facto" government authority, and so the gas company's misconduct would be sheltered by the s. 15 defence.
The answer was no. The intent of s. 15 is something quite different (paras 80-81):
...
Consumers’ Gas is not a government official acting under colour of authority. While the respondent points to the Board orders as justification for its actions, this does not bring the respondent into the purview of the de facto doctrine because the case law does not support extending the doctrine’s application beyond the acts of government officials.
The underlying purpose of the doctrine is to preserve law and order and the authority of the government. These interests are not at stake in the instant litigation. As a result, Consumers’ Gas cannot rely on the de facto doctrine to resist the plaintiff’s claim.
Furthermore, the de facto doctrine attaches to government and its officials in order to protect and maintain the rule of law and the authority of government. An extension of the doctrine to a private corporation that is simply regulated by a government authority is not supported by the case law and in my view does not further the underlying purpose of the doctrine. In Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, this Court held, at p. 756, that:
There is only one true condition precedent to the application of the doctrine: the de facto officer must occupy his or her office under colour of authority.
It cannot be said that Consumers’ Gas was a de facto officer acting under colour of authority when it charged LPPs to customers. Consumers’ Gas is a private corporation acting in a regulatory context, not an officer vested with some sort of authority. When charging LPPs, Consumers’ Gas is engaging in commerce, not issuing a permit or passing a by-law.
[Emphasis added.]
So, section 15 is not even intended to protect a private citizen who breaks the law - it is a defence made available to a government actor who attempts to enforce a law that is not authorized. Our friends in the OPCA community have entirely reversed the meaning of this provision. It would be of no use to Mr. Simpson, unless he could prove he had been authorized (incorrectly and illegally) to be a peace officer.
Ironically, section 15 is instead a defence for the RCMP officers who arrested the Nanaimo Five. If they had been wrong, and the Nanaimo Five were indeed real peace officers, then this provision would potentially shield those officers from criminal charges. Again - the OPCA community has got this provision backwards.
Further indication of the meaning of s. 15 and its intent is found in
R. v. Finta, [1994] 1 SCR 701 (
http://canlii.ca/t/1frvp), a case involving an alleged Hungarian war criminal. The main focus of the case is an exception to s. 15 which knocks it out if the defence is applied to a government officer/actor who is allegedly guilty of war crimes.
So, taken together, there is no real question that
Criminal Code, s. 15 is of no assistance to a Canadian Sovereign Citizen/Freeman-on-the-Land. Assuming I'm wrong on that point, then this provision would still be a problem, if argued in court. Section 15 is clearly a defence, and only applies if a "de facto" (illegal/unauthorized) government authority exists. The accused would have to at least provide evidence to raise a possibility, an "air of reality", that the Canadian government is unauthorized before the defence would be considered. I am hard-pressed to see any basis for that - but of course I could be wrong.
My thoughts, for what they are worth.
SMS Möwe
