Glenn's trial decisions in his smuggling matter in Alberta Provincial Court have been released. Congrats Glenn! It's triplets!
All three judgments are nicely written - very thorough. The first decision discusses the trial itself, and finds Glenn guilty on all counts. The media reports appear generally accurate. One gets the impression that Judge Redman wanted to get a point across from the manner in which he opens the decision:
[1] A fundamental and pervasive feature of Canadian society is the universal applicability of the Rule of Law. An effective criminal justice system is a key aspect of the Rule of Law. This system must ensure that adjudication is timely and impartial, free of outside influence and that it recognizes and enforces due process of law and the rights of the accused. The Rule of Law also maintains that all individuals, no matter their beliefs or standing, are accountable under the law. When they absent themselves for the purpose of impeding or frustrating the due process of the law, with an intention to avoid its consequences, that person’s purpose will not be fulfilled and his intention will be defeated.
Short form - don't screw around with the courts! It looks like Glenn really tried hard to shut down the trial before he started. In addition to the Queen's Bench application documented in
Fearn v Canada Customs, 2014 ABQB 114, Glenn also tried these in the Provincial Court (para. 5):
1. Demand to dismiss and counterclaim filed October 24, 2013.
2. General demurrer and counterclaim filed November 7, 2013.
3. Notice of Void Judgment and Notice of Non-Suit, filed December 4, 2013.
4. Demand for a common-law jury trial filed February 11, 2014.
5. Notice of Objection and Non-Consent to this proceeding, under Roman Civil Law in Your Show Trial and Notice of Contempt by Affidavit, filed February 11, 2014.
6. A series of Notices of Constitutional Question, filed February 25, 2014
7. Declaration of Fraud filed February 25, 2014.
8. Declaration of Fraud filed March 3, 2014.
They didn't deserve much comment (para. 11):
...The applications were dismissed for the following reasons:
- 1. Those applications which related to constitutional questions were not served upon the Crown in a timely fashion as required by the Judicature Act of Alberta.
2. Mr. Fearn, when first asked about preliminary applications, only made reference to his request for a jury trial and to no others. In addition he did not return to Court and so did not pursue them. As such I deem them to be abandoned.
3. There was no, or at least an insufficient evidentiary foundation, for his applications.
4. Mr. Fearn’s applications were the same or substantially similar as those argued before Mr. Justice Tilleman and were carefully analyzed by Justice Tilleman and rejected.
There is a succinct account of Glenn's brief stay in court:
[6] Although Mr. Fearn refused to stand at the commencement of these court proceedings, he, with some reluctance, confirmed that he was the person named in the Information before the court and the trial commenced.
[7] The parties were then asked if there were any preliminary applications to be made. The Crown responded by applying for an Exclusion of Witnesses, which was granted. Mr. Fearn applied to have a trial by jury. After hearing brief submissions, this application was rejected as the Crown had proceeded by way of summary conviction process and there was no right in law for the matter to proceed by way of jury.
[8] Mr. Fearn then made no further applications, but instead attempted to disrupt the court. He purported to fire me and indicated that he was taking his box of materials and leaving, which he did. The court then recessed for a few moments to determine if Mr. Fearn was going to return and to give the Crown an opportunity to consider their position. When the court returned, Mr. Fearn was not present and the court recessed until 10:00 a.m. to again determine whether Mr. Fearn was going to voluntarily return. ...
Of course, he never did. The Crown sought to have the matter proceed in Glenn's absence, and Judge Redman agreed:
[10] After considering the matter I directed that the trial proceed ex-parte for the following reasons:
- 1. Mr. Fearn, by his conduct in court, displayed disregard for court process in both his language and mannerisms. After he left the courtroom and did not return, I concluded his actions were indicative of a desire to delay and disrupt the proceedings and he did so with the intent of impeding or frustrating the trial with the intention of avoiding its consequences.
2. The applications which Mr. Fearn had filed with the Provincial Court in this matter were the same or substantially the same as the arguments advanced before, and rejected by Mr. Justice Tilleman, in Fearn v Canada Customs.
3. The language used in the applications that Mr. Fearn filed with the Provincial Court display a total disregard for the process of the Court and a total lack of respect for court process and court officials.
The remainder of the decision deals with some logical issues, the evidence itself, and the conclusion on guilt. There are some amusing tidbits, such as Glenn's not-at-all unsuspicious responses to Canada Customs officers (para 22):
Matthew Patching was working at the Coutts border crossing in the primary inspection lane when a Dodge half ton truck pulling a travel trailer approached his booth and stopped. Officer Patching noted that there was a male person driving the vehicle and asked for his I.D. and vehicle registration. The male produced a Canadian passport and the registration for the vehicle. Officer Patching scanned the passport into a Customs data base which provides, amongst other things, a risk assessment of a traveller. This individual’s name as it appeared on the passport was Glen Winningham Fearn and the System noted that he was categorized as “armed and dangerous”. Officer Patching asked Mr. Fearn a series of standard questions which included the question, “Do you have any firearms or weapons?” to which Mr. Fearn responded, “I do not believe in them”. Noting that Mr. Fearn was evasive in his answer, he again asked Mr. Fearn if he possessed any firearms or weapons to which Mr. Fearn replied, “No”. He also noted that Mr. Fearn was evasive in one other question with respect to whether or not he possessed any alcohol or tobacco, to which Mr. Fearn responded, “I do not drink or smoke”. Upon being asked the question again, Mr. Fearn responded in the negative.
Glenn's evasive answers become a key element in proving he was very well aware of what was in his locked trailer and that it was contraband (para. 43):
[43] I have concluded that the Crown has established beyond a reasonable doubt that Mr. Fearn possessed the necessary mens rea to possess these items and that he knew their characteristics. In that regard I rely upon the following:
- 1. Mr. Fearn was the lone occupant of a truck which was connected to and towing a travel trailer.
2. Mr. Fearn was deliberately misleading to Officer Patching when he was asked if he possessed any weapons or firearms and he responded that he did not believe in them.
3. Mr. Fearn, by being evasive and by subsequently lying to Officer Patching regarding whether he had any weapons or firearms, was attempting to divert suspicion from himself. This is probative of the question as to whether he had actual knowledge that the items seized were in the trailer and whether he was aware of their characteristics. ...
The Crown did face an interesting evidentiary issue - Glenn left before any of the Crown witnesses could identify him! Fortunately there was a solution (para. 25):
Officer Van Dyke was outside the courtroom where this trial was being conducted. Shortly after the trial commenced he saw a man burst from the courtroom, carrying a box of materials, in an agitated state and watched him as he went down the stairway from the second floor in the courthouse. He confirmed that this individual was the same person who he had dealt with at the border on October 11th and 12th, 2013.
Skulking Customs Officer skulks!
The second judgment simply deals with the appropriate response when a person is convicted of two offences that have the same illegal basis - a Supreme Court of Canada case called
Kienapple requires one of the duplicates be stayed. Four of Glenn's charges were stayed on that basis.
Last we move to sentencing. Again, that tone emerges. The Crown suggested that the proceeding adjourn until Glenn was there to argue his sentence. Judge Redman rejected that outright:
[5] I decided to proceed in absentia for the following reasons:
- 1. Mr. Fearn attended the opening of the trial, was well aware that it was proceeding and elected to absent himself in circumstances that could have been deemed contemptuous.
2. Before the trial commenced, Mr. Fearn brought a series of applications before the Provincial Court which could be categorized as organized pseudo-legal commercial arguments (“OPCA”) of the type that were comprehensibly reviewed in the decision of Meads v Meads, 2012 ABQB 571 (CanLII), 2012 ABQB 571. As the filing of Mr. Fearn’s applications progressed, the contents became increasingly foul, rancorous and severe, clearly designed to delay, defeat and otherwise frustrate the due process of the Court.
3. Mr. Fearn also filed an application in the Court of Queen’s Bench disputing the jurisdiction of the provincial court to hear and deliberate on these charges. His application was dismissed by Mr. Justice Tilleman in Fearn v Canada Customs, 2014 ABQB 114 (CanLII), 2014 ABQB 114. In Fearn v Canada Customs, Justice Tilleman reviewed Mr. Fearn’s litigation history and identified a total of three Canadian and seventeen U.S. actions initiated by Mr. Fearn. All were dismissed as fatally flawed or otherwise abandoned. Justice Tilleman determined that Mr. Fearn’s application met the criteria for frivolous and vexatious litigation and ordered that Mr. Fearn be precluded from filing anything in the Alberta Court of Queen’s Bench related to the border action, without first obtaining an order of that Court. It is clear from Mr. Fearn’s actions as described in Fearn v Canada Customs and from his conduct in this matter that he is not interested in advancing any legitimate argument. To delay his sentencing to a future date would only accede to his desire to delay and disrupt the administration of justice.
4. There is no evidence before me that would suggest there is any reasonable likelihood that if the matter is delayed, it can proceed within a reasonable time.
[6] The inescapable conclusion that I reached were that his actions were for the purpose of impeding or frustrating the trial and avoiding the consequences of the trial. It cannot be said that his absence was unexplained or excusable. By is own conduct, he voluntarily excused himself. He had the opportunity to return over the last three days and did not do so. There is no miscarriage of justice to proceed with sentencing in absentia. It is correct that the Court did not have the benefit of submissions by Mr. Fearn. This however falls squarely on the shoulders of Mr. Fearn.
Perhaps that could be restated as "Jerks deserve a reduced standard of procedural justice."
The Crown asked for five month and suggested no sentence served in the community - Glenn wouldn't follow the instructions (para. 8 ). Glenn himself was a cypher, and little was known of him beyond he did not have a Canadian criminal offence history (para. 7).
The principle sentencing considerations were denunciation and deterrence (para. 17):
In my view a fit and appropriate sentence in cases of this nature must emphasize the principles of general and specific deterrence and must denounce the serious nature of these crimes. That is not to say that the other principles are to be ignored, but the court must recognize that these are very serious crimes. The goods Mr. Fearn attempted to import had the potential of wreaking havoc on an unsuspecting public.
And generally the relevant factors here were aggravating (para. 19)
In considering the gravity of this offence and the degree of responsibility of this offender and taking into account the mitigating, aggravating and other circumstances, I note the following:
- 1. At the time of the commission of these offences, Mr. Fearn had no criminal record in Canada. Accordingly, he should receive the benefit accorded to someone who is of previous good character.
2. It is aggravating that Mr. Fearn showed no remorse or insight into his criminal behaviour. In fact, within days of the commencement of the trial, Mr. Fearn sent a Notice which contained a declaration of war to not only the prosecutor charged with the responsibility of prosecuting this matter, but also numerous judges, political persons and other persons associated with the administration of justice.
3. Both the number and type of prohibited devices and weapons is an aggravating factor. The magazines were designed for an AK-47 assault rifle. It is hard to imagine a peaceful purpose to which these items could be put. They were certainly not found in a state where it could reasonably be concluded that they were for a benign purpose such as a collector. It seems more likely that they were for the purpose of distribution or possessed in support of his “declaration of war”.
4. As noted in R v Ross, 2010 BCCA 314, the border context of the offences is a further aggravating circumstance. Importing prohibited weapons and devices into Canada from the U.S. is behaviour that may further impede the ability of law abiding citizens of each country to conveniently cross the border. See also R v Jacques (1996), 110 CCC (3d), (SCC).
Sadly, Glenn's declaration of war has not yet come to light. One can only hope!
Jerks don't get conditional (in the community) sentences (para. 27):
In considering the safety of the community I am concerned about Mr. Fearn’s willingness to abide by any terms imposed upon him. It appears by the nature of the statements contained within the applications he has brought before this Court and before the Court of Queen’s Bench in this matter, and his behaviour in court, and his absconding, he has no intention whatsoever in complying with any obligations placed upon him by a judicial authority.
A four month sentence was ordered (para. 30), which is harsh for a first-time offender when the maximum sentence was six months. There are a lot of ancillary orders (para. 30):
Mr. Fearn will also be subject to a Probation Order for a period of two years, commencing on the termination of his period of imprisonment. The conditions of his probation will include:
- 1. He shall:
a. Keep the peace and be of good behaviour
b. Appear before the Court when required to do so by the Court; and
c. Notify the Court or the probation officer in advance of any change of name, address, employment or occupation.
2. He shall remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer.
3. Outside his actual residence, he shall not carry on his person or possess any weapon, including a knife, save to the extent that it is used for culinary or work purposes.
4. He shall have no contact or communication, direct or indirect with any Justice of the Alberta Court of Appeal or of the Alberta Court of Queen’s Bench, or any Judge of the Alberta Provincial Court, or any prosecutor, Canada Border Services officer or employee, or any person who is providing services related to the administration of justice, except when he is legally required to do so, or through legal counsel or pursuant to subsequent Court order.
5. He shall attend for assessment and complete to the satisfaction of his probation officer, such counselling as may be recommended by his probation officer which may include, but is not limited to: psychiatric/psychological counselling.
6. He shall not consume or possess any alcohol or intoxicating substance or any substance within the meaning of the Controlled Drugs and Substances Act except as prescribed by a medical or dental practitioner.
7. He shall not permit or allow any alcoholic beverage or intoxicating substance or substance within the meaning of the Controlled Drugs and Substances Act to be in his approved residence unless prescribed by a medical or dental practitioner.
8. He shall reside at such place of residence as approved by his probation officer.
I think number 4 will be breached, probably sooner rather than later. Can Glenn resist the temptation to file/mail paperwork? I'm skeptical. As for number 5, oh, to be a fly on the wall during a head-shrinking appointment...
And a 10 year weapon's prohibition (para. 34) and Victim Fine Surcharge (para. 33).
Nothing too hugely surprising, but again, a nice detailed and careful analysis - which is a good thing since my take on Glenn is that he'll appeal this decision in no time.
And that appeal will go to the Alberta Court of Queen's Bench. Hmm, I wonder how that would turn out...
SMS Möwe
