- Perreal v Knibb, 2014 ABQB 15: http://canlii.ca/t/g2jtm
There are many interesting aspects to this relatively brief decision. The overall scenario is, in many ways, rather straight forward. Two persons were in a motor vehicle, and an accident occurred. The passenger, Perreal, was allegedly injured. She later sent the driver, Knibb, a foisted unilateral agreement that claimed to create and settle an injury claim of about 3/4 million dollars, unless Knibb replied and refuted her "Statement of Claim with Notice and Demand" in 30 days. The UCC, naturally, is invoked. Knibb did nothing. Perreal declared victory and then went to court to enforce her claim.
Justice Rooke dissects this process in some detail (paras. 6-20), and much of the Statement of Claim with Notice and Demand is reproduced as an appendix to the judgment. Unsurprisingly, Meads v. Meads, 2012 ABQB 571 is invoked as the standard authority for evaluation of OPCA strategies and to classify this mechanism as unlawful:
Perreal follows up the Statement of Claim with Notice and Demand with another letter, then goes to the Court of Queen's Bench, with a conventional statement of claim, but only to enforce the allegedly proven debt. A supporting affidavit states:[8] In August 2012, Mr. Knibb received (by fax) an unorthodox document entitled “Statement of Claim with Notice and Demand”, dated August 27, 2012. An abridged version of that document is attached to these Reasons as Schedule A. This document appears to purport to both initiate a legal action (a “Statement of Claim”), but without the document being filed in any Court of competent jurisdiction. However, in doing so, it also purports to set that action “in commerce”, according to the “... Uniform Commercial Code as adopted and enacted in Canada and all Canadian Provinces”. The Uniform Commercial Code [“UCC”] is U.S. legislation and has no relevance to Canadian litigation: Meads, para 331. Overbroad reference to the UCC is a common feature in OPCA litigation: Meads, para 150.
[9] The August 27, 2012 document continues outlining Mr. Knibbs’ alleged misconduct and Ms. Perreal claims for damages, which total $749,000.00. The “Notice and Demand” component of the “Statement of Claim with Notice and Demand” at para 1 broadly states that Mr. Knibb has 30 days to reject and prove incorrect all his alleged misconduct. If he does not do so, then this document becomes “... a self executing consensual, valid, ratified contract and true bill ...”. Mr. Knibb is deemed then to have waived all possible defences, consented to default judgment against him, and agreed that he is “... without recourse to any Legislative created Administrative Tribunal or Court ...”. That, presumably, would include the Alberta Court of Queen’s Bench.
[10] The August 27, 2012 document is what is classified in Meads as a foisted unilateral agreement (paras 447-528). In this instance Ms. Perreal’s “Statement of Claim with Notice and Demand” appears to both create and resolve a legal claim against Mr. Knibb unless he replies and disproves her allegations. This is a common application of foisted unilateral agreements: paras 474-486.
[11] The “Statement of Claim with Notice and Demand” is unusual in that it purports to straddle two domains of law; in certain ways it resembles a document that could initiate a lawsuit, if it were filed in a court of competent jurisdiction (which it was not), but the “Statement of Claim with Notice and Demand” also has contract-like aspects; it claims to be commercial and to operate under commercial law.
[12] It is trite law that a person has no obligation to respond to a Statement of Claim that is not filed in court and then served. At the most generous I could interpret the August 27, 2013 document as a kind of contract offer. If so, then the principle in Felthouse v Bindley (1862), 11 CB (NS) 869, 142 ER 1037 (Ex Ch) that a person cannot impute agreement in contract from silence means Mr. Knibb had no obligation to reply to this “Statement of Claim with Notice and Demand” - see also Meads, at paras 458-472. The document’s claim to exclude all court authority is equally ineffective; a superior provincial court, such as the Alberta Court of Queen’s Bench, has an inherent jurisdiction which cannot be defeated in this manner: Meads, paras 351-378.
In other words, I win.That I herewith enclose and make this Affidavit in Support a part of my Court of Queen’s Bench, Form 10, Statement of Claim, to certify and affirm that Ernie Knibb, herein Defendant, was served with my Private commercial Statement of Claim … I allowed Defendant thirty days to respond, deny or refute the facts and claims contained therein. … Defendant failed to answer or respond in any manner whatsoever. I then served upon Defendant a Notice of Default/Dishonor and Opportunity to Cure and Contest Acceptance … Defendant failed to deny, refute or respond in any manner, therefore, Defendant by his silence and failure to respond consented to all the terms of said Private commercial presentment, Statement of Claim, in commerce, whereby said presentment became a self executing, consensual, valid, ratified contract, wherein Defendant, by his silence, stipulated and agreed to all facts and claims made within said Private commercial presentment, Statement of Claim, a True Bill in Commerce and further agreed that Defendant was thereby devoid of and waived all defences and became a Debtor for the full amount of said claim.
At this point Dale Martin Jacobi appears and identifies himself as Perreal's representative, appointed via a power of attorney. Jacobi sends a letter to Knibb's lawyer, claiming the lawyer is a third-party interloper in a contractual relationship between Perreal and Knibb. Justice Rooke disposes of that too, at para. 19:
Justice Rooke concludes at para. 21 this entire strategy to create, prove, and then enforce this claim is fatally flawed, and he would had disposed of it on that basis on the authority of Meads v. Meads, but he was not asked to do so.[19] This demand by Mr. Jacobi represents another common OPCA concept: that all relationships are in contract and contract alone: Meads, paras 379-416. Mr. Jacobi attempted to apply the principle of privity of contract to exclude Mr. Knibb’s lawyer as a ‘non-party’ to the “Statement of Claim with Notice and Demand”. This is, of course, incorrect in law, as the Legal Profession Act, RSA 2000, c L-8 permits lawyers to represent persons, inside and outside of court proceedings.
The second component of the decision is also very interesting, because it homes in on Perreal's associate, Jacobi. It turns out that Jacobi has a history; he is one of the leaders of the Montana Freemen from the mid 1990's. The judgment at paras 28-32 provides a brief recap of that group, Jacobi's key role in that group, and other elements of his history. Jacobi is Canadian, a former member of the Calgary Police Service, who then embraced increasingly radical beliefs and ultimately became a core member of the Montana Freemen. While it is not mentioned in the judgment, Jacobi was arrested when the FBI tipped off local police that a snatch team was on its way to 'arrest' a local judge for summary common-law trial and a hanging. There is lots of other very interesting documentation on Jacobi online. Definitely a dangerous individual. He was sentenced to a little under 14 years prison time in the U.S.Though it was not argued before me, an attempt to enforce a ‘debt’ in the Court of Queen’s Bench on this basis could not succeed. I would have struck out this action on that basis per Alberta Rules of Court, Alta Reg 124/2010, Rule 3.68, as this action is based solely on legally incorrect OPCA concepts that are frivolous, vexatious, and cannot succeed at law.
Knibb somehow got wind of Jacobi's history - judgment does not explain how. Knibb's first lawyer appears to have quit - I suspect after finding out the kind of person on the other side. Knibb's replacement lawyer subsequently made an ex-parte application that they remain anonymous and appear only by telephone, as Jacobi was a substantial and realistic threat to her safety. This kind of order has been granted in the past in Canada, first in ANB v Alberta (Minister of Human Services), 2013 ABQB 97. The threshold in that case for such an order was low:
Jacobi without question met that threshold, and so the order was granted: paras. 13-14.[26] In ANB, I permitted several lawyers to appear anonymously. ANB had a history of criminal misconduct directed at opposing lawyers. In those Reasons I observed that litigants who use OPCA strategies are known to direct violent and harassing activities against persons they see as enemies, typically peace officers, government and court employees, lawyers, and members of the judiciary. This misconduct flows from their ideology as I noted at para 14 of ANB:
[27] At para 20 of ANB I concluded the threshold for safeguards such as anonymous representation should be low provided that the proposed step does:… his potential aggression flows from the false historical and theoretical constructs within which OPCA concepts are advanced. An OPCA litigant is typically advised (incorrectly) by a guru with whom he is associated, that the state has no hold over the litigant. That is meant to indicate (again incorrectly) that any state action must be unlawful, and, in the result, the OPCA litigant is therefore (improperly) counselled to be free (and often encouraged) to strike back at his ‘oppressors’.
… not affect an OPCA litigant’s ability to advance and respond to arguments in court. … A court may order a safeguard of this kind where a party establishes an air of reality to an actual or potential threat or danger. …
This analysis is interesting in a number of ways. One is that the Canadian courts are taking an aggressive stance to protection of persons potentially affected by threats driven by OPCA ideology. In an "executive summary" to the decision A.C.J. Rooke states:
I think that is sensible, and though no doubt 'peace loving' Freemen will shriek foul, the test from ANB v Alberta (Minister of Human Services) is very practical - persons with these beliefs have no right to information that is not relevant to their litigation because they are known to misuse it.The Court will grant orders to protect officers of the Court and their staff, court staff, and others involved in or connected to litigation, from all realistic potential threats to their safety, and to prevent intimidation which targets any lawful activity in the litigation process.
It is also interesting to see the court is considering not only litigants but logically involved parties. And Jacobi was probably the mind behind this whole thing - that is Justice Rooke's guess as well: para. 33.
Another interesting point is that Knibb somehow got his hands on a police CPIC report (para. 32):
I thought these reports were confidential. I might be wrong. The fact this showed up in an affidavit that supported Knibb's anonymity application is very interesting. It suggests that police services are not only very well aware of the threat posed by Freemen/Sovereigns, but are willing to reach out and support not only other government entities, but private citizens. I'd love to know more about the backstory on that tidbit. Regardless, a good thing.Mr. Knibb’s affidavit attaches a March 2013 Canadian Police Information Centre report on Mr. Jacobi that cautions he is considered violent, armed and dangerous, and is a special interest to police due to his U.S. activities, described as “vigilantism & extremist”.
The CPIC report also hints at a much higher degree of watchfulness.
I did a little math from some of the sources I found and I think Jacobi is over 70 years of age now. Adding up dates, it sounds like his prison term ended only a short time before Perreal began her campaign against Knibb. I have no idea how much of that sentence was served in prison. I presume the U.S. deported Jacobi back to Canada after he served his time. I can't blame them.
The remainder of the decision addresses the actual basis on which the lawsuit was terminated. In brief, the statement of claim filed in the Alberta Court of Queen's Bench was filed too late (paras. 44-45) and in any case there is no authority to sue in tort for an accident in Manitoba as that jurisdiction has eliminated that remedy via a no-fault insurance scheme (paras. 46-47).
The hearing to strike out the lawsuit was held on Dec. 20, 2013. Perreal and Jacobi did not show. The last interesting tidbit is that A.C.J. Rooke indicates he would not have permitted Jacobi to appear and represent Perreal on several reasons: Jacobi is not a lawyer, he's an OPCA guru and is therefore an inappropriate representative, and because a power of attorney appointment does not make a person an attorney, no matter the name. Justice Rooke cites a couple cases for that point, and one, The Law Society of B.C. v Robbins, 2011 BCSC 1310 (http://canlii.ca/t/fn9rw), made me break out laughing. I'll reproduce the choice bit in full - because it is genuinely fun:
Now that is great stuff! Justice Grauer has an excellent sense of humour![43] Mr. Robbins does not make the mistake made by Mr. Bryfogle and others of arguing that he is therefore entitled to act as an "attorney" in the American sense, using the word as a synonym for "lawyer" (see Bryfogle, BCSC, at paragraphs 32 and 33). Mr. Robbins' argument is more ingenious. He points metaphorically to the Christian sacrament of the Eucharist. As the bread through the process of transubstantiation becomes the body, asserts Mr. Robbins, so does he, via his Powers of Attorney, become his wife and his mother-in-law in Action No. S-106413. On this analysis, he is in effect his wife and mother-in-law acting in person as permitted by s. 15(1)(a), not Glen P. Robbins acting in the name of another as prohibited by s. 15(5). It is a nice point.
[44] In addressing it, I find I do not need to reconsider the conclusion of the 13th session of the Council of Trent held in October of 1551. It is sufficient to note that the theological concept of transubstantiation is best left to the realm of religion and has no application to the Power of Attorney Act, R.S.B.C. 1996, c. 370. That Act equates the relationship between a donor and her attorney to that between a principal and her agent. It does not convert the agent into the principal. They remain distinct both empirically and substantially. The Powers of Attorney, at best, authorize Mr. Robbins to do what his wife and his mother-in-law can lawfully do by an attorney/agent (in the sense of the word “attorney” discussed by Groberman J. in Bryfogle). Among the things that Ms. Robbins and Ms. Matich cannot lawfully do by an attorney/agent is commence, prosecute or defend a proceeding in any court, unless that attorney/agent happens to be a practising lawyer.
So presumably that's the end of the lawsuit.
I did some digging. Perreal and Knibb are both involved in the equestrian world, she is an equine therapist, Knibb seems to be a horse trainer. Perreal shows no unusual interests that I could identify. I suspect she and Dale Jacobi are relatives, her father is a horse trainer named Glen Jacobi.
I have found no online presence for Dale Jacobi. Given his age and where he has spent the last decade-plus, that is, perhaps, not a surprise.
A few more general comments. I am going to be very interested to see if any Canadian legal academic commentators pick up on this case and Jacobi's most interesting history. There seems to be a tendency to date among those academics to characterize OPCA litigants as some kind of gentle, misguided fools. I am at this point tempted to invoke the "useful idiot" label. I now eagerly await a response: however will they respond to the fact that Canadian courts are facing what are, quite literally, domestic terrorists?
Second, I have a favour to ask my American colleagues here on Quatloos. I am not terribly familiar with much of the U.S. Sovereign Citizen documentation and argument, particularly the older material. Justice Rooke's decision reproduces a very large amount of one of Jacobi's key documents. I am curious as to whether this is the 'state of the art' in Sovereign circles in the mid-1990's? Or has Jacobi been keeping himself up to date? Any observations would be very welcome.
SMS Möwe
