Michael Millar - Detaxer & Poriskyite's tax evasion trial

[The Observer]

That clear, crisp, soggy northern climate must be conducive to it.

I vote for overdosing intravenously on maple syrup.

[notorial dissent]

That clear, crisp, soggy northern climate must be conducive to it.

I vote for overdosing intravenously on maple syrup.

Actually, considering the mental caliber of some of them I would go with either snorting or smoking.....

[Burnaby49]

Millar's sentencing judgment has been released;

http://canlii.ca/t/h0rdr

I spent an hour or so listening to the judge read it orally. The kind of thing that I do in retirement.

[Burnaby49]

Something old,
Something new,
Something borrowed,
Something blue.
And a sixpence in her shoe.

traditional rhyme which details what a bride should wear at her wedding for good luck

I have a copy of Millar's Notice of Appeal but I'm not going to do a detailed review of it. Millar has carried his hallmark "everything but the kitchen sink" style from the courtroom to his Notice of Appeal with relentless repetition. Even the clerk at the British Columbia Court of Appeal registry who printed the notice out for me commented on the huge number of Grounds For Appeal of Conviction that Millar had listed. I've had enough of relating Millar's gibberish over and over so I'll instead just try and analyze the basic themes. That hopeful bridal poem gives me a handy reference guide to break it down into topics. If you are so inclined you can read the document here;

http://www.mediafire.com/file/5hq3xhdow ... appeal.pdf


Something Old

Millar has included every last argument he made in court and is trying, yet again, to re-litigate them all. Every one of them. No argument, no matter how many times he lost it at trial or in prior hearings, has been discarded. The bulk of the notice is just padding due to his obsessive repetition, a style he used in court at a cost to me in time wasted while he incessantly rambled on about capitalization and all of his other beloved arguments. They are all back here for an encore. As examples of repetition

- Grounds 1, 6, 23, 23 and 24 are all relate to capitalization.

- Grounds 12, 25, 26, 27, 28 and 31 relate to the Stewart decision. I'll discuss Stewart in more detail in "Something Borrowed".

- Grounds 8, 9, 10, 11, 14, 15, 16, 17, 20 and 22 cover his claimed status as natural man and a private person with private property and private contract rights immune to law and taxation.

- Grounds 2, 3, 5, 6, 7, 18, 19, and 21 all relate to how the nasty mean judge abused and mistreated him, ignored his legal brilliance, had him detained and cuffed and inflicted various other indignities to the point that it shocked the public conscience! Also the judge failed in her duties by refusing to act as his defense counsel and, in that role, finding him not guilty. Ground number 18 is going to particularly impress the Court of Appeal, but not favorably, because it's an outright lie;

18. During a chambers hearing called because of the above notice being filed the day before, immediately prior to jury selection, the judge ordered me to be taken into custody by the sheriff without warning or proper explanation as to why, creating an atmosphere lacking in impartial, reasoned adjudicator who would seek to de-escalate and maintain the decorum of the court process, completely inconsistent with the public's expectation of how a judge should treat an accused, unrepresented party and was shocking to the conscience.

I was there and saw the entire event. Millar started ranting at the judge and she told him to stop. He didn't, in fact he ranted even louder. She told him if he didn't stop she'd have the sheriff put him in custody. He ranted on and he was cuffed. I wrote about it here;

viewtopic.php?f=50&t=10834#p227241

So the judge warned him, ordered him to stop, and told him the consequences if he didn't. He was handcuffed because he chose not to obey the judge's clear instructions. Apparently, in Millar's world, he can disrupt proceedings whenever he wants with intemperate rants and, if the judge responds by trying to keep order in her court, he has grounds for an appeal. He takes the position that he could act as badly as he wanted and the judge had the responsibility to gently "de-escalate" a situation he created through of his own offensive aggressive behaviour. But his comments in ground 18 opens up questions. Firstly what members of the public had their expectations violated? I was the only member of the public at the hearing and I thought the judge's actions completely appropriate. And who's conscience was shocked? I've not noticed any groundswell of public indignation at the reprehensible treatment inflicted on Millar. In fact the "public" seems unaware of his existence.

Perhaps Millar thinks he can give the Court of Appeal one of his indignant hours-long speeches about this abuse and the court will sympathize at the injustice of it all. Except that they will have the transcript, will read what actually happened, and have it confirmed that anything Millar says can't be trusted unless backed by the record.


Something New

Appellants are not allowed to introduce new arguments on appeal. The trial is over and the purpose of the Court of Appeal is to review the judge's decision, not give the appellant another shot at things he could have argued at trial but didn't. But when have rules of court had any meaning for Michael? So he's trotted out a few new ones he didn't get around to trying at trial. First is the Stewart case which is discussed below. Millar did not bring up Stewart at trial, at least that I can recall, but now he's seen the light and become a convert. Millar does not mention Stewart by name or citation in his reasons but he's clearly referring to it in comments like these;

26. The judge did not use the test for source of income prescribed by the Supreme Court of Canada, which is a miscarriage-legal error, or she did not know, therefore not a fair hearing legal error by not applying the legal tests, Not considering a reasonable interpretation, which ignores the individual accused state of mind.

27. From reading the judge's decision it is apparent that she did not use the source of income test prescribed by the Supreme Court of Canada and this constitutes a serious error of law of one of the essential elements of the charge.

Note to Michael - If you claim that the Supreme Court has prescribed a source of income test you'll have to cite the case and show them an actual prescribed test. Just a vague comment that there is one and the judge ignored it won't cut it with the Court of Appeal. They will want the facts supporting your accusations.

Another new argument is not explained and I don't know what he's getting at. In Ground 13 (also mentioned in passing in 9) he claimed that the court and Crown presumed that he was an Agent of Her majesty, acting under franchise or license for all activities at all times. It might relate to his not remitting GST tax in respect to his business activities (although "business" is a fraught word within the Grounds of Appeal). It appears that by assuming that he was acting under franchise the court denied all of the private person rights he would have otherwise had and constantly demanded. No doubt he'll flesh it out with a few hours of explanation at his hearing.


Something Borrowed

Stewart (Stewart v. Canada, [2002] 2 SCR 645, 2002 SCC 46 (CanLII), http://canlii.ca/t/51sg) was a Supreme Court of Canada decision in respect to expense deductions. Essentially, if you are losing money on a business venture can you deduct these expenses against other income? Stewart said yes. Keith Lawson tried to turn this decision on it's head and use it as proof that it was really about the taxability of income. It was his argument that Stewart allowed him to choose whether his income from Paradigm was taxable or not. The Supreme Court of Canada, through Stewart, allowed him to claim that his income was from a hobby and, if he said that magic incantation "this is a hobby", any money he made from any source became tax free. Lawson said that once he'd made that determination nobody, the CRA, the government, the courts, could argue or dispute it. Apparently, apart from Lawson, nobody in Canada, all the tax lawyers, accountants, judges, understood that this was the true meaning of Stewart. Needless to say it didn't work for Keith. I reviewed Keith's obsession with Stewart here;

viewtopic.php?f=50&t=8223&start=100#p236215

Apparently Millar's confidence in his own legal interpretations is shaken, at least to some extent, and he appears to have thrown Stewart in as insurance. Millar did not make any Stewart arguments at trial, at least while I was watching, but he's suddenly seen the light and become a convert on appeal. If Lawson wins on it in his appeal (0% probability) Millar wants to be on the bandwagon too.

He's also appropriated Lawson's argument that if a defendant comes up with a more lenient interpretation of the law than the court or Crown's interpretation then, for some reason, the court is required to accept the defendant's interpretation. Lawson said in his Notice of Appeal;

14. Where a statute is reasonably capable of two interpretations, the most favourable to the liberty of the Appellant was to be utilized. In a complex statute such as the Income Tax Act, where the legal onus is on the Appellant to voluntarily comply with the terms and provisions therein, errors of interpretation and/or application of the Act by the Appellant cannot form a basis for criminal or penal liability. These are not strict nor absolute liability offenses. The Honourable Trial Judge failed to so exercise her discretion accordingly

Millar has come up with esentially the same argument;

30. The judge has failed to consider and apply three fundamental legal principles; to read the act as a whole, consider possible alternative interpretations, and apply the more lenient interpretation.

So in their dream world all they have to do is tell the judge that her interpretation of the law is wrong, that they have a different interpretation, and they get to walk. Doesn't matter if the judge is actually wrong or if they are right, they just have to say that they thought their interpretation was right. Hell of a loophole!


Something Blue

That would be me, caught in my own personal Groundhog Day nightmare of having to review this garbage over and over and over . . .


And a Sixpence in Her Shoe

This is the one line that doesn't easily fit within the narrative. More of a personal note on Millar's current circumstances. The judge waived the victim surcharge fine because Millar is, as the court noted, impecunious and unable to pay even a small fine. So no doubt even finding some small change in the couch cushion or in a shoe in the closet would no doubt be a welcome augmentation of his income.

In addition to the above a few odds and ends that don't fit the themes.

In Ground 33 Millar complained that the Crown broke the law in asking for a DNA sample. Clearly a reason to throw everything out! I was in court when the request was made and, while the judge refused the request, she certainly found nothing odd or illegal about it. I guess she has no ability to interpret the law either, a point Millar has been making all through the Notice of Appeal. He has the same complaint about having his Paradigm material seized and forfeited. Since it is the private property of a private person the Crown had no right to take it under the warrant in the first place and certainly no right to keep it.

I'll leave you readers to interpret Ground 35. Just gibberish to me.

The Court of Appeals doesn't know what it's facing. Most appellants want to get it done with but it's my guess that Millar would be happy to argue, demand, rage and admonish the court for decades if the court allows it. It won't. The Court of Appeal doesn't have to contend with the weighty issues of guilt or innocence, just legal correctness, a much easier task. Although Millar will do his best to re-argue his entire case from scratch the appeals court will soon have him on a tight leash. I believe they actually allocate the amount of time an appellant has to present his case and, unlike the Supreme Court of British Columbia they mean it. What's he going to do if he's unhappy about that? Appeal? Supreme Court of Canada here we come!

And there's big trouble brewing for Michael. It's right there in the document. Something that I'm sure a legal expert like Michael has noticed but has chosen not commented on directly in his Grounds of Appeal. The British Columbia Court of Appeal is, like the Supreme Court of British Columbia, an illegitimate court not sanctioned by legislation!

Ground 24 of Millar's notice stated;

. . . . it was admitted by the prosecutor they intended to prosecute the case in the "Supreme Court of British Columbia pursuant to the Supreme Court Act section 2(1)" and in the "Vancouver Westminster Judicial District and County of Vancouver" section 8(d.1) which it appears the trial and decision ultimately did not take place within . . .

Section 2(1) of the Supreme Court Act states;

2(1) The Supreme Court of British Columbia is continued under the name and style of the "Supreme Court of British Columbia".

And 8(d.1) says;

(d.1) the County of Vancouver and the County of Westminster are collectively a judicial district under the name of the "Vancouver Westminster Judicial District"

Yet, notwithstanding these clear definitions, the name of the Supreme Court of British Columbia was styled on various documents used in his prosecution as THE SUPREME COURT OF BRITISH COLUMBIA rather than the legitimate name as prescribed by 2(1). Same for the judicial districts. This is the entire basis of his jurisdiction defense. If a court doesn't style itself exactly as styled in its enabling Act it isn't a legitimate court and has no jurisdiction.

With this in mind, here is a copy of the Court of Appeal Act;

http://www.canlii.org/en/bc/laws/stat/r ... -c-77.html

Check out the definitions in Section 1 where it says;

"court" means the Court of Appeal

Note the use of upper and lower case. And indeed the Court of Appeal Act styles the court's name throughout as the Court of Appeal. However, in the standardized Notice of Appeal form that Millar was forced to use to file his appeal, the court is referred to as the COURT OF APPEAL. A smoking gun! Exactly the same issue that Millar is appealing in Ground 24! So, if the Supreme Court of British Columbia can brazenly ignore the clear wording of the statute that created and regulates it how can Michael expect anything different from the Court of Appeal? If the Court of Appeal agrees with him about capitalization then it means that it is also an illegitimate court and therefore has no jurisdiction over the Supreme court of British Columbia so it can't give him any relief from that court's decision. But if it doesn't agree with him it's going to support the status quo and agree that the Supreme Court of British Columbia is a legitimate court notwithstanding that it refers to itself in all capital letters. A perfect Catch 22. He's screwed.

And a tragic personal story that came to mind from my found money comment. During our 2015 trip to New York my wife and I were walking across a busy downtown intersection when I saw a wad of bills on the ground in front of me. Right in the middle of the pedestrian crossing with people hurrying each way. It must have been just dropped but when I picked it up and looked around nobody obvious in the milling crowd. So I thought I'd keep it (about $65) with the expectation that it would pay for the rest of my planned visits to McSorley's Saloon (I went seven times in total).

Then my wife intervened. She told me it was bad luck to keep found money and we had to give it away. Huh? First time I'd ever heard of that superstition. When I enquired who I was to give it to she noted that there were plenty of street beggars in New York. I pointed out, quite logically I thought, that If I gave the beggars the money they would have the bad luck passed on to them and they looked like they had enough already. So I generously volunteered to end the cycle by keeping the money and carry the burden for them. She wasn't having that and since I wasn't going to give it away I gave her my newly found wealth so that she could dispose of it. But she kept looking for people who she thought needed it or deserve it which I felt went against the whole point of the superstition. If I got it by blind luck without needing or deserving it then, logically, the recipients should be in the same position. So I told her to just give the whole amount to any stranger on the street. However logic doesn't work in situations like this and she played Lady Bountiful for a few days doling it out in bits and pieces. And I had to pay for McSorley's dark ale out of my own pocket.

[notorial dissent]

Just as a side question, did he actually shut up during sentencing or did he continue to rant?

I am curious though, will that glollop actually go directly to the court, or will it go through a Master first to if there is anything actually functional in it?

[grixit]

I've never heard that one-- about found money being bad luck. All i've ever heard is that found money should be spent on something fun.

[Burnaby49]

I've never heard that one-- about found money being bad luck. All i've ever heard is that found money should be spent on something fun.

I'm on board with that one. I wanted to get drunk at McSorleys, my idea of fun;

https://en.wikipedia.org/wiki/McSorley% ... _Ale_House

It took me almost 40 years of being married to her to find out this dark side.

[Burnaby49]

Just as a side question, did he actually shut up during sentencing or did he continue to rant?

I am curious though, will that glollop actually go directly to the court, or will it go through a Master first to if there is anything actually functional in it?

He said nothing during the judge's reading of sentencing but had a rant at the end when he found out he was actually being given a jail sentence. That was when he started shouting that he was never going to jail. Good luck with that.

There are no masters at the Supreme Court of British Columbia. Masters don't handle criminal offenses. I'm not familiar with the rules of the court however the Notice of Appeal form says that if an appeal against a conviction involves a question of law alone there is a right to appeal. It's hard to tell from the dog's breakfast that Millar coughed up what's involved but there are clearly issues apart from questions of law.

The Notice also says that if an appeal is based on any grounds other than a question of law then leave to appeal must be granted by the court. This would cover his incessant whining about how mean that nasty judge was too him. As I wrote, they just have to compare his version of what happened when he was taken into custody during a hearing to the transcript to realize that his complaints of mistreatment are more fantasy than fact. However I'm not clear if an appeal, such as this one, which has both questions of law and "other grounds" gets an automatic right of appeal or must be approved. The Notice says;

1(a) If your appeal against conviction involves a question of law alone you have a right of appeal.

So he may not have an automatic right.

[notorial dissent]

Just from a quick overview, I'd say that "dog's breakfast" was more just him whining about about the mean nasty ole judge than anything else. The capitalization stuff isn't really a question of law that I can see, fantasy yes, law no, and other than the stuff he didn't bring up at trial I really don't see much to get traction, and he jibbers too much to really get a coherent claim from.

[Burnaby49]

Millar was released on bail pending appeal on Friday, March 3rd. The Crown consented to his release on specified conditions. The Court apparently had the same opinion of Millar's Notice of Appeal that I did. The judge actually asked the Crown why it was consenting to bail since the grounds for appeal appeared frivolous. The Crown’s position was that ground #32 related to the dismissal of Millar’s Charter s.11(b) application and might actually involve an arguable question of law. So, out of thirty-six grounds for appeal, Millar managed to come up with exactly one that wasn't entirely frivolous. Not an encouraging number but at least it kept him out of jail! For the time being.

This is Ground 32;

32. A time delay Charter application was dismissed during which the judge, of her own accord, on an issue not raised by the Crown, searched out case law and applied it to her decision, advancing the Crown's case, thereby unfairly assisting the Crown, to my prejudice.

Ground 32 relates to this decision;

R. v. Millar, 2016
BCSC 1887
http://canlii.ca/t/gv4pw

Delay is suddenly a serious issue in Canadian courts. The Jordan case pretty much came out of nowhere and upended the entire Canadian judicial system;

R. v. Jordan
[2016] 1 SCR 631, 2016 SCC 27
http://canlii.ca/t/gsds3

The ramifications were discussed on the front page of my newspaper a few days ago;

In the wake of the game-changing Supreme Court of Canada R. v Jordan ruling on trial delays last July, more than 800 accused criminals have walked — including individuals charged with murder and child sexual offences.

http://vancouversun.com/opinion/columni ... ice-crisis

Oddly enough the Supreme Court of British Columbia, an entirely provincial court, has it's judges appointed by the federal government. As the article says the federal government has a backlog of about sixty judges to appoint nationally.

[The Observer]

Hopefully, they invested in a Judge Rooke Cloning Machine.

[Burnaby49]

Back in the saddle again! I was at one of Michael's appeal hearings yesterday. Just like old times. Same Crown counsel, same Michael although looking a little different. He's shaved off his moustache. Back in the Supreme Court of British Columbia courthouse in downtown Vancouver.

First an update. At the end of next month it will be a year since Millar was sentenced. During that time the case has bogged down at the British Columbia Court of Appeal. As far as I can see not even close to the actual appeal hearing yet. Today was just a procedural case management hearing regarding him filing an Amended Notice of Appeal and the production of court transcripts. I'll give an overview and then a chronological report of events.

Michael, as the appellant, is required to provide the Court of Appeal transcripts of his court appearances. Given how he spent years fighting the charges in various courts with many, many hearings there are probably a massive amount of potential transcripts. They are expensive and I'm assuming that he's broke. From what I can recall the first set of transcripts from a trial is very expensive because someone has to sit down with headsets and transcribe it all by listening to the tapes or CD's, whatever it was recorded on. After the first set additional sets are much cheaper but still expensive. And Michael is required to provide five sets, on for himself, one for the Crown, and one for each of the appeal judges. He's questioning the necessity of him providing transcripts from all of his hearings.

As far as Millar's Amended Notice of Appeal goes I wrote this about his first Notice of Appeal;

I have a copy of Millar's Notice of Appeal but I'm not going to do a detailed review of it. Millar has carried his hallmark "everything but the kitchen sink" style from the courtroom to his Notice of Appeal with relentless repetition. Even the clerk at the British Columbia Court of Appeal registry who printed the notice out for me commented on the huge number of Grounds For Appeal of Conviction that Millar had listed. I've had enough of relating Millar's gibberish over and over so I'll instead just try and analyze the basic themes. That hopeful bridal poem gives me a handy reference guide to break it down into topics.

Millar has included every last argument he made in court and is trying, yet again, to re-litigate them all. Every one of them. No argument, no matter how many times he lost it at trial or in prior hearings, has been discarded. The bulk of the notice is just padding due to his obsessive repetition, a style he used in court at a cost to me in time wasted while he incessantly rambled on about capitalization and all of his other beloved arguments. They are all back here for an encore.

Well the new one is no better. The first had thirty-six grounds for appeal, the new one has fifty-seven. I haven't had a chance to go through it in detail and I may not, it's a real dog's breakfast of gibberish like this;

2.5 only upon the trial judge's requirement to respond, prosecution led the court and the Appellant to believe that the trial was to take place within a lawful 'Supreme Court of British Columbia" within the lawful "County of Vancouver" within the lawful "Vancouver Westminster Judicial District" (as defined by the British Columbia Legislature relevant Acts - see NOTE 1) the trial appearing to take place in some other undisclosed jurisdiction with prosecution's knowledge and original intent,

Millar has pages of this stuff and, based on my painfully earned experience at his trial, I'm assuming he plans to spend weeks yammering away on each individual point until he's forced to stop. Which will be very quickly because the Court of Appeal, unlike the trial court, keeps a very tight restriction on allowed time. If Michael wants to spend all of that time on the above jurisdiction issue he's free to do so but he won't be allowed extra time for the other fifty-six grounds. If he doesn't like it he can always appeal. No doubt the Supreme Court of Canada would be fascinated by Michael's legal theories.

Anyhow on to the hearing. Millar introduced himself as 'Michael in private status, private capacity". He chanted that magic incantation all through his trial but was still convicted however he still seems to believe it has some magical effect.

He wanted to file a motion but the registry wouldn't accept it because he was too late so he wants to file it today in court. It relates to a January 12th hearing where he was given until January 23rd to file an Amended Notice of Appeal. He apparently made that deadline but he also want to file an application allowing him to minimize the costs of getting transcripts by reducing the transcript requirement but neglected to file it on time. Crown opposes reducing his requirements. The judge pointed out how Millar has a history of not meeting court requirements in allotted time. There were three requirements made by the court at the last case management hearing and Millar only met one of them. Judge wanted to know why. I forgot or I didn't understand. Implied that it was Crown's fault for not reminding him. Anyhow he was ready to file his application to reduce transcription requirements right now if the court would accept it. Crown didn't oppose so judge allowed it. We sat and waited while judge read it.

Millar said that he was at a loss to identify what transcripts were actually needed at appeal. The jurisdiction based grounds for appeal were evidence based rather than testimony so no need for transcripts for those. He doesn't know what transcripts already have been made and are available. The judge said that some of Millar's grounds for appeal needed full transcripts. As examples (he said there may be more) he pointed two out;

3.11 the trial judge denied full cross exam of CRA witness Jason Rauh denying right to full answers and defense.

4. In the alternative it is submitted that the application for reasonable apprehension of bias was dismissed in error, as the judge failed to provide proper assistance to an unrepresented man, obstructed right to full and fair hearing and defense, denied equitable remedies, failed to review key issues of law, and had the appellant arrested in court for no justifiable, lawful reason.

The judge said that these two points required full transcripts for the appeal court judges to review and there may be more. Also Millar was claiming unreasonable delay based on the Supreme Court of Canada decision in Jordan and the appeal judges would require all available material on the trial delay.

I've already explained Jordan a number of times including in this unrelated posting;

viewtopic.php?f=50&t=11111&p=236550#p236550

Millar said he had a copy of something, I didn't catch whether he meant the whole trial transcript or not. He asked judge why he couldn't just photocopy that. Judge said there may be copyright issues. He said he didn't know but he needed copies. A comment from me here. If Millar pursues number 4 above he's going to have everything, including the numerous voir dire hearings that Millar kept insisting on. A review of a judge's conduct at trial is serious and the appeals court won't accept less than the full transcripts.

Judge suggested to Millar that he think about narrowing the scope of his appeal which might limit what is needed. He said just a suggestion. He said Millar could discuss this with Crown and perhaps they could come to an agreement on transcripts based on what Millar was willing to remove from the Amended Notice of Appeal. This would require an Amended Amended Notice of Appeal but this was allowable. So judge suggested discussing with Crown and coming back to court with whatever the result is. But "Time is marching on" so if Millar is proceeding with the unreasonable delay argument they have to get moving. So the judge said that he expected all of the required transcripts and appeal books at the next hearing. Judge repeated that he wasn't telling Millar to amend his Notice of Appeal, just suggesting.

"If you come back before me without these documents we'll have to discuss where this case is going. Time is limited and we have to go forward. I'll require by the next meeting that you have at least ordered entire trial transcript". Judge implied that this was a minimum and he may require more depending on how the discussion with Crown worked out and what remains in the Notice of Appeal.

Then, just before we adjourned, bail issues. Millar is on bail but it expires February 28, a year from sentencing. Millar must make an application to the court to get it extended. Crown said if Millar could provide a draft of what he wanted in a week Crown could respond by February 16th. Judge said the next hearing would require at least an hour (this one was a half hour) so probably next hearing February 26 or 27. Millar wanted to know if he could make a bail extension application then. Yes. Then we adjourned with parties and court to determine next date.

As a bonus Keith Lawson has a hearing on Friday and Porisky has one mid February. Unfortunately I won't be able to attend either of them. When not boozing Burnaby49 is a family man with responsibilities. The two hearings are on a Thursday and Friday and the wife and I baby-sit our grandson on those days.

[Burnaby49]

Michael's up on charges again. This time it's S. 214.2(1) of the Motor Vehicle Act, use of an electronic device while driving. I assume he's been caught using a cellphone while driving.

Prohibition against use of electronic device while driving

214.2 (1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.

(2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message.

214.1 In this Part:
"electronic device" means

(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,

(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or

(c) a prescribed class or type of electronic device;

"use", in relation to an electronic device, means one or more of the following actions:

(a) holding the device in a position in which it may be used;

(b) operating one or more of the device's functions;

(c) communicating orally by means of the device with another person or another device;

(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

The penalty for this scofflaw behavior is;;

The fine for a single distracted driving violation ticket is $368, along with 4 penalty points that will be applied a driver’s record. On a first infraction, these points will also result in a driver paying a further $175 ICBC Driver Penalty Point premium, for a total of $543 for a first infraction.

Drivers who get two or more distracted driving convictions in a three-year period are charged a Driver Risk Premium (DRP), which is billed annually and is separate from any insurance premiums you may have. This amount will increase for each additional conviction.

For example, drivers with two or more convictions for the use of electronics devices while driving over a three-year period could pay as much as $2,000 in penalties - an increase of $740 - in addition to their regular vehicle insurance premium.

https://www2.gov.bc.ca/gov/content/tran ... stractions

But Michael's not taking this lying down! He's fighting it in court! He has an all-day hearing scheduled on November 26th. Is this his trial? What a moronic question! Who knows better than me how Michael's trials go? I had years of Michael's Tax evasion court hearings inflicted on me before he was eventually dragged into an actual trial.

The reason for the current hearing is given as ARG which means Arguments. I assume in this case a Charter argument how something or another has violated his Charter rights. With Michael it could be anything. Right for a private person to go about his private affairs, right to travel, court has no jurisdiction, from my experience at his tax trial it could be anything at all. And, as I saw at his tax trial, he's willing to string this along forever if the court lets him. If I can make it we'll find out in November.

[grixit]

is he allowed to drive meanwhile?

[Burnaby49]

is he allowed to drive meanwhile?

I assume so. If the penalty on conviction doesn't include the loss of his license I don't see why he'd lose it in the interim.

[Burnaby49]

Well, time to get down to it, pop open a beer, put Miles Davis' Workin' sessions on the headphones, and get to work on Michael Millar's conviction appeal hearing. When I wrote up Keith Lawson's conviction appeal hearing I whined about the twenty-two pages of notes I'd written that I'd have to transcribe for the posting. Little did I know that that was just a warm-up to what I was to face in Millar's hearing.

My attendance at Millar's income tax evasion and fraud trial, listening to his endless ranting of his idiotic legal theories, ate up a huge tranche of my rapidly diminishing actuarial lifespan, all recorded in endless detail in Quatloos. However I thought that the two hour speaking limit that the British Columbia Court of Appeal would impose on Millar would severely constrain the amount of lunacy that I'd have to record and report on regarding his hearing. I was wrong. I foolishly wrote in one of my Keith Lawson postings;

"It will be a pleasure to watch Millar try to summarize anything in a two hour framework."

It wasn't. Millar's June 18th appeal hearing was two hours of full throttle, full frontal, sometimes ranting, randomly lucid gibberish and I ended up with twenty-six pages of notes. I've been making excuses to avoid trying to beat this bloated pig into some form of coherent shape. Babysitting my grandson! Hosting visiting relatives! Even volunteering to do garden work! But it's time to get to it. So here it is in three parts because it came to, in total, over 17,000 words, well in excess of the Quatloos maximum individual posting limit.

Bright and early on June 18th (but not too early, the British Columbia Court of Appeal starts hearings at 10AM), I was out the door and downtown for the hearing in courtroom 61, the same room used for all of the Paradigm appeal hearings I've been reporting. It only has eighteen spectators seats and, until now, has been sparsely attended, Lawson and Porisky, fighting their last epic battles, were almost totally ignored by the world at large. But Millar drew a crowd! A bunch of young adults people in a group to my right and three men, clearly lawyers, to my left. Turned out to be all government. All of the Poriskyites who ended up at trial on criminal charges were nailed by the Canada Revenue Agency's Investigations section. The younger people were Investigation trainees attending for some real-life experience in how their files end up. The guys to my left were from the Public Prosecution Service of Canada;

https://www.ppsc-sppc.gc.ca/eng/bas/index.html

Not the kind of support I assume Michael was hoping to get.

Michael looked dapper in a brand-new black suit. He usually dresses casually. The sheriff complimented him on it. Unusually the three judge bench was all male, generally it's a mix. Millar, as usual, introduced himself as attending as a private person on a special appearance acting in a private capacity. I fail to see the point of this ritual magic. It's done him no good whatever through the entire trial process. But who am I to question deeply held religious beliefs?

As with my report on the Lawson appeal hearing when I write that the "court" said something it could be any one of the three judges. Once the hearing started I rarely looked up to see who was speaking. I was too busy trying, futilely, to more or less keep up with the torrent. A judge opened proceedings by explaining to Millar, since he did not have legal representation, how the appeal would proceed.

Court - It is not our role to re-try the case. We have read the factum and cited judgments. In paragraph 59 of the factum you point out 16 errors. A to K and M and N (note - 13 of the claimed errors) are all founded on theories related to your legal status. The Crown says that these articles were rejected in the Porisky and Lawson cases and are not legally valid. Two other articles are of a procedural nature. Your claimed arrest without legal reasons and that the trial judge did not follow cross-examination rules. We cannot address cross-examination because you haven't mentioned it in the factum. In the last article you address the argument related to delay, that the judge did not stay the charges because of delay. The Crown says that this is the only substantial argument you have and it's the only one they've filed a reply to. You have two hours. Allocate the time as you see fit bearing in mind my comments.

Anybody notice what the court was really saying with those opening comments? Why did the court tell Millar what the Crown's position was regarding the strength of his arguments? It's in the Crown's response and Millar is presumed to have read it. So why spell it out for him? I'm guessing that the court, within the limit of judicial propriety (my own phrase), was giving Millar a very broad hint that all of his arguments except delay were complete garbage, doomed to failure, and in his own best interests perhaps he'd be best deep-six all those losers and focus his limited time on delay, the only issue with any chance of succeeding. If that was what the court was suggesting they failed spectacularly.

Court continued by saying that there was an application to include fresh evidence. We will review it and we may and we may consider it. We will accept submissions as to whether or not it is admissible. The test is whether it existed at trial and why wasn't it led. You claim that it didn't exist at trial. We will now hear your submissions.

I'm going to cut in here, before Millar starts the avalanche that overwhelmed me until break, to explain the delay issue. I will review this in some depth now because this is his only substantial argument and it has enough merit that he has at least a chance of winning on it. If the court does accept his delay argument his convictions will be set aside and a stay of proceedings entered.

Delay is the amount of time that the trial process takes. As the old adage goes "Justice delayed is justice denied". Until July 8, 2016, nobody really paid much attention to delay, trials seemingly lasted forever. When delay was considered an issue the analysis of whether or not it was excessive was based on a Morin analysis, taken from a Supreme Court of Canada ("SCC") 1992 decision.

R. v. Morin,
1992] 1 SCR 771
http://canlii.ca/t/1fsc6

However, on July 8, 2016, the SCC released the Jordan decision;

R. v. Jordan
[2016] 1 SCR 631, 2016 SCC 27
http://canlii.ca/t/gsds3

This judgment, also in respect to delay, superceded Morin and set up a new standard for analyzing delay because it claimed that Morin, the court's own decision, had;

. . . . . . . given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over�burdened trial courts. From a practical perspective, the Morin framework’s after�the�fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.

Effectively Jordan said that the trial courts needed to smarten up and get more efficient and Jordan was the SCC's cudgel to beat them into compliance. This is the analytical framework the SCC set up;

A new framework is therefore required f ... ed delay.

Jordan set a strict 30 month time limit for criminal trials to conclude after charges were laid. While the analysis is complex it essentially starts by calculating total time period between charges being laid against the defendant and the conviction. The court, after listening to arguments by the Crown and the defendant, determines how much of this time can be allocated to the defendant. What's left is considered delay by the Crown and the inherent delay of the system, the inertia of the court system. If the time remaining after deducting the defendant's portion of delay from the entire trial time period exceeds the 30 months Jordan limit, the defendant's conviction is set aside and proceedings stayed, which is what happened to Barrett Jordan as a result of his SCC win.

The problem was that Jordan just got dumped on Canada's inefficient, lackadaisical trial culture without warning and it applied to trials already underway, trials which had already exceeded the 30 month limit and trials that were too close to the limit to remedy. This resulted in a landslide of appeals, many of which won. High profile trials of very serious crimes like murder ended up with charges stayed and even the few minor Paradigm trials I attended were affected. Peter Balogh, convicted of income tax evasion, won a stay on a Jordan argument (in my opinion a seriously flawed, incorrect decision by the trial judge). This was later reversed on appeal and the convictions confirmed but it is under appeal yet again.

However there was some relief given for the transition period for cases where charges were laid before the release of Jordan.

For cases currently in the system, a contextual application of the new framework is required to avoid repeating the post�Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice.

The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

You'll be hearing about that "transitional exceptional circumstance" escape clause later in this review when the Crown attempted to convince the court to accept Morin provisions because this was a transitional case started before Jordan was released.

Millar tried, and failed, to get his charges stayed because of delay during his trial.

R. v. Millar
2016 BCSC 1887
http://canlii.ca/t/gv4pw

Unfortunately this judgment was, as Crown conceded at the appeal hearing, badly flawed. However it was the Crown's position that while the analysis in the judgment was in error the judge eventually arrived at the correct result. More about that later.

So delay was Millar's best argument, in fact the only argument that could win him a last minute victory. But, as you'll see, he did his absolute best to squander it. Had he retained a lawyer to represent him at the hearing delay would have been the sole issue considered. But that wouldn't have worked for Millar because he wanted to, yet again, proselytize about his obsessions regarding capitalization, the private man, and jurisdiction, all areas a real lawyer would refuse to argue because they are just demented fantasies. These theories were the basis of Millar's claimed thirteen trial errors that the court had just said were "founded on theories related to your legal status" and, which I'd concluded from the court's hints, were dead on arrival. I wrote this about his obsession with these lunatics theories in my review of his sentencing hearing;

As far as I can tell Millar, after being given a month to prepare for his sentencing hearing, came to it totally unprepared for anything except a further continuation of his obsessions with capitalization, jurisdiction and private persons. He's lost these arguments over and over in court but seemed to think he had the right to continue arguing them forever. Even worse he didn't seem to understand the basic purpose of the hearing. He seemed to think it was yet another chance, in a string of endless opportunities, to fight the charges through argument, adjournment, and applications where he controlled the process through his demands on the court.

http://www.quatloos.com/Q-Forum/viewtop ... 40#p238462

He did essentially the same thing here at the court of appeal.

So, with that legal history lecture done, back to Millar's hearing. I went off on my tangent at the point where the judge told Millar he could begin his submissions. But before he started Millar asked about his procedural arguments L & O. There were in respect to his courtroom arrest and the judge's claimed denial of his right to conduct a full cross examination. I was in court when he was arrested and this is what I wrote about it;

http://www.quatloos.com/Q-Forum/viewtop ... 34#p227241

Millar's complaint about cross examination related to his demand at trail that he be allowed a virtually unlimited fishing expedition to cross examine Canada Revenue Agency employees about issues totally irrelevant to his charges when considered in the context of real law but not, in his mind, irrelevant within the context of his bizarre legal beliefs. Things like CRA employee training and the contents of internal CRA publications and whether they were strictly followed. However the trial judge, bound by the strictures of real law, refused him permission to spend six months or so cross examining CRA employees in the hopes of finding undisclosed information that would exonerate him.

After Millar was done asking about his procedural questions he started the clock by rambling on about the wording on various court forms, his status as a person, the correct venue for his trial, all issues he'd gone into in exhausting detail at his criminal trial and lost. But it was his two hours so the court, after essentially telling him what he should argue, let him babble on about what he really wanted to argue.

The injustice of his treatment at the hands of the trial judge by having him arrested at his own trial hearing was apparently consuming him and he started on about it. He was interrupted by a judge who said that he seemed to have abandoned that issue.

Millar - "It was not my intention to take it off the table." He wanted to argue that his arrest proved that the trial judge was biased against him. He'd taken it out of his factum because he wanted to avoid getting the trial transcripts. An explanation regarding that comment. It is the responsibility of an appellant to obtain copies of the trial transcripts. However these can be very expensive and Millar, as far as evidence at his sentencing hearing showed, is broke. So he's appealed without them but this precludes him from making any arguments that rely on information in the transcripts. The arrest is very much one of these issues and even my riveting account of the event won't serve as a substitute. The judge told him that abandoning the argument then trying to revive it at this hearing was essentially ambushing the Crown which hasn't prepared for it. However the Crown spoke up and said that they were willing to accept arguments on it. And why wouldn't they be? If Millar wants to piss away his two hours pointlessly pursuing totally irrelevant arguments that's probably just fine with the Crown.

This was not a new argument, nothing he argued today was new. Millar has previously claimed bias by the trial judge. In fact he's already had a hearing and an adverse decision on the issue;

R. v. Millar
2017 BCSC 323
http://canlii.ca/t/gxqf7

I wrote about the decision here;

http://www.quatloos.com/Q-Forum/viewtop ... 40#p241729

Millar dropped the arrest issue and said he wanted to talk about the appeal as a whole (whatever that meant) rather than on statutes and interpretations. He wants to discuss principles of law and said that his main focus was "What is the intent of the actual legislation and are they being followed?" He said he had a case that supported something or another but, as usual, didn't have a copy of it to give the court. Something about procedures and policies not being followed and a time stamp. He'd lost me already. He said that people get sloppy with procedures. Then more court citations, something about oaths. Millar had been given a clear path to follow by the court but he's chosen instead to flail away through a jungle of gibberish. It's just like his trial, he's caught up in his own legal brilliance and isn't focusing on his goals. More cases about errors in procedural issues. He didn't try to link them to anything or explain their supposed relevance, he just rambled through the names. By this point, almost at the beginning of his submissions, I'd already lost any track of what he was getting at. He said that issues are considered when statutes are written up. The prosecution had to follow the law as written. If there are ambiguities then the charges must be dismissed and the laws re-written. "My position and perception is to the private man and private person. These are terms recognized by law. But prosecutors and courts are dismissive and abusive of persons claiming to be private persons. In the early 2000s natural persons were not in the Income Tax Act so there were no private persons in the Income Tax Act but natural persons were later included in 271 and 118(2) so there is now limited use of natural persons in the Act."

While he said section 271 of the Act he clearly meant subsection 270(1) since there is no section 271 on the Income Tax Act. Subsection 270(1) is a definition section for PART XVIII of the Act which is titled "Enhanced International Information Reporting". And it includes this definition;

natural person (means an individual other than a trust. personne physique)

I don't know what he was going on about regarding 118(2). He must have meant 118.2 because there is no 118(2) in the Income Tax Act. 118.2 is in respect to the medical expense credit and the phrases "natural person" or "private person" are not in the subsection.

He said that the legislation did not include natural person or private person when the Income Tax Act was written so natural persons and private persons did not exist in it but now they are in specific subsections. Then he went on to the definition of "person" in the Income Tax Act and said that it was legally ambiguous. Now that private and natural persons are in the Act (note that he gave no examples of "private persons" being in the Act) the legislators have implicitly indicated that natural persons weren't previously in the Act. There has always been a separation between "private persons" and "persons". This is a foundational issue!

So fucking what you readers are asking yourself? What does this nonsense have to do with anything? But thoughts like that just indicate how little you readers know about fantasy law. I'll explain. The income tax says;

2 (1) An income tax shall be paid, as required by this Act, on the taxable income for each taxation year of every person resident in Canada at any time in the year.

Note that it does not say;

2 (1) An income tax shall be paid, as required by this Act, on the taxable income for each taxation year of every person or natural person resident in Canada at any time in the year.

This is how the Income Tax Act defines "person" for the purpose of 2(1);

person, or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of (Canada to which the context extends;personne)

Note that it does not say;

person, or any word or expression descriptive of a person or a natural person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of (Canada to which the context extends;personne)

As stupid as it sounds that distinction forms the core of the whole Paradigm tax evasion scheme. I once watched, and reported on, an interminable video by Russell Porisky, the carpenter who single-handedly thought up the entire Paradigm tax evasion scheme, where he covered essentially the same topic. The video was shown over two years ago during his trial but the sheer stupidity of his point still lingers in my memory. I wrote;

He said that if parliament had wanted natural persons to be taxable they would have specifically included it in the definition of persons. . . . .

Russ was big on the hidden meanings buried in statutes like truffles to be sniffed out by the astute. On to natural persons. If you carry on a business as a natural person you aren't taxable. He went into what we in the CRA called REOP, reasonable expectation of profit. If you make a profit as a natural person you really haven't made a profit because that is just the return you make as a natural person. You are worth the profit so it isn't taxable. So you have no REOP no matte how much money you make.

He went through section 248 if the Act to prove that natural persons are not included in the definition of persons. Section 248 is the basic definition section of the Act. It's huge. Anything in it is deemed to be the correct interpretation of the word anywhere within the Act unless another definition elsewhere overrides it. . . . . .

A big point for Russ was that the term "natural person" was not included as one of the section 248 definitions. Why not? Because the government did not intend to tax natural persons! I'd have thought, if that were the case on such an important issue, that parliament wouldn't have left it to be concluded from it's absence but would have made a positive statement to the effect that natural persons are not subject to income tax under this Act. But what do I know? Russ said that neither the definition of individuals or the definition of taxpayer specifically included natural persons. The only conclusion that could be drawn from this was that the government did not intend to tax you if you become a natural person.

http://www.quatloos.com/Q-Forum/viewtop ... 5&p=222629

So "natural persons", whatever that phrase may be considered to mean, are not, in Paradigm's magical realm, taxable, because the Income Tax Act does not specifically state that natural persons are taxable. I'm guessing that Millar is advancing the same argument. During the period in which he was convicted for evading taxes the phrase "natural person" was not included in any context in the Income Tax Act. The fact that the phrase "natural person" was later included in the act, albeit in a very limited context, proved to Millar that the prior exclusion was a deliberate choice made by parliament to allow natural persons exemption from income tax. However parliament chose to not specifically state that natural persons weren't taxable. The exemption was there by inference. In Millar's fantasy world this meant that if he claimed to be a natural person he wasn't taxable.

So, in a sense, Millar is correct. This argument is "foundational". It's foundational to the entire Paradigm tax evasion scheme and that foundation was kicked out from underneath Paradigm by the Kennedy decision, released in 2000, which said, in part;

[9] Under s. 2 of the Income Tax Act, the liability to pay income tax is imposed on resident or non-resident “persons”. Under s. 248(1) of the Act, a “person” is defined as follows:

“person”, or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, administrators or other legal representatives of such a person, according to the law of that part of Canada to which the context extends;

In his submissions, Mr. Lindsay emphasized the words “includes any corporation”. By inference, he says, Parliament intended to exclude natural persons from this statutory definition of a “person”. At least, that is what I understand to be the essence of his submission.

[10] Under s. 248(1) of the Income Tax Act, a “taxpayer” includes any “person” whether or not liable to pay tax. Therefore, in Mr. Lindsay’s submission, if someone is not a “person” as defined in the Income Tax Act, then that someone cannot be a “taxpayer” as defined by the Act.

[11] In support of this submission, Mr. Lindsay has drawn my attention to Black-stone’s Commentaries as to the Rights of Persons and to Magna Carta which, as he rightly reminded me, Lord Denning has described as the greatest constitutional document of all time. As Blackstone points out, “Persons are divided by the law into either natural persons or artificial”. He goes on to explain:

Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies of politic.

[12] It is significant for our present purposes that Blackstone considers both artificial persons and natural persons to be persons although they may have different characteristics (see para. [20] below.

[13] I was also referred to the definitions of “person” in The Business Profits War-Tax Act, 1916, S.C., 6-7 Geo V, c.11 and in The Income War Tax Act, 1917, S.C., 7-8 Geo V., c.28, forerunners of the present Income Tax Act. These statutes contain identical definitions of “person”, in the following terms:

“person” means any individual or person and any syndicate, trust, association or other body and any body corporate, and the heirs, executors, administrators, curators and assigns or other legal representatives of such person, according to the law of that part of Canada to which the context extends;

[14] Unlike its forerunners, the definition of a “person” in the current Income Tax Act does not expressly mention “any individual or person” (see para. [9] above). I am asked by the applicant to infer from this omission, that, in enacting the current definition, Parliament intended to relieve natural persons from their previous statutory obligation to pay income taxes.

. . . . . . .

[17] These definitions taken from dictionaries including dictionaries of legal terms are uniform and clear. A “person” in its ordinary meaning includes a human being or a natural person as well as an artificial person such as a corporation. The primary sense of the word is a natural person; the secondary sense, an artificial person such as a corporation.

[18] The Interpretation Act (Canada) is consistent with this ordinary meaning. Section 35 of that Act defines a “person”, as follows:

“person” or any word or expression, descriptive of a person includes a corporation.

The use of the verb “includes” extends the definition to include a corporation. The definition does not exclude a human being.

[19] I am, therefore, driven to the conclusion that in its ordinary meaning and in its common or popular sense, the word “person” in a statute includes both natural persons and corporations.

[20] I am also driven to the conclusion that there is nothing in the context of the Income Tax Act. or in the authorities to which Mr. Lindsay has referred me, that would support the interpretation that in the Income Tax Act, Parliament intended the word “person” to be used in the narrower sense of comprising only corporations or other artificial persons. The statutory definition of a “person” in section 248(1) of the Income Tax Act includes “the heirs, executors, administrators… of such a person”. Only a natural person who has died has “heirs, executors, administrators…”. A corporation or other artificial person does not.

[21] I find that a “person” as defined in s. 248(1) of the Income Tax Act includes both a natural person and an artificial person. It follows that the applicant is a “person” and a “taxpayer”. I also find that he is a person “resident” in Canada. Either a corporation or a person may be “resident” or, indeed, for other legal purposes “domiciled”, in Canada or elsewhere. As a “person”, the applicant has the same rights and obligations as any other “person” under the Income Tax Act. His obligations include the filing of annual income tax returns and the payment of any income tax owing under his returns.

Kennedy v. Canada (Customs & Revenue Agency)
2000 CanLII 22837 (ON SC)
http://canlii.ca/t/1wd1t

The natural person argument has been refuted in, literally, scores of convictions of Paradigm followers but Millar battles on. It doesn't seem to have crossed his mind that that ship has sailed and the court's hint about delay was possibly an expert opinion regarding what argument was really in his best interest.

Millar continued his natural person, private person ramble by discussing Facebook! He cited a case I didn't catch, somebody v, Facebook, that he said it was a decision from of the British Columbia Court of Appeal which addressed on point "person" v. "private person". He said paragraph 14 of the case had something of importance, at least to him, about private persons. In his interpretation of this case the cBritish Columbia Court of Appeal had already recognized that there is a distinction between "person" and "private person".

A quick check on CanLII and I had the case;

Douez v. Facebook, Inc
2015 BCCA 279
http://canlii.ca/t/gjldz

And Millar is right in one respect, it is an important case, it made it all the way up to the Supreme Court of Canada;

Douez v. Facebook, Inc
[2017] 1 SCR 751, 2017 SCC 33
http://canlii.ca/t/h4g1b

But it had nothing to do with private persons, it was about a jurisdictional issue. Should a lawsuit against Facebook by a British Columbia resident be heard in a British Columbia court or a court in Santa Clara, California, Facebook's home city?

Facebook, an American corporation headquartered in California, operates one of the world’s leading social networks and generates most of its revenues from advertising. D is a resident of British Columbia and has been a member of Facebook since 2007. In 2011, Facebook created a new advertising product called “Sponsored Stories”, which used the name and picture of Facebook members to advertise companies and products to other members. D brought an action in British Columbia against Facebook alleging that it used her name and likeness without consent for the purposes of advertising, in contravention to s. 3(2) of British Columbia’s Privacy Act. D also seeks certification of her action as a class proceeding under the Class Proceedings Act. The proposed class includes all British Columbia residents who had their name or picture used in Sponsored Stories. The estimated size of the class is 1.8 million people.

Under s. 4 of the Privacy Act, actions under the Act must be heard in the British Columbia Supreme Court. However, as part of the registration process, all potential users of Facebook must agree to its terms of use which include a forum selection and choice of law clause requiring that disputes be resolved in California according to California law.

The British Columbia Supreme Court ruled in favour of California but the Supreme Court of Canada reversed that decision and awarded jurisdiction to British Columbia. While the case involved privacy it had nothing whatever to do with "private persons" and the phrase "private persons" did not appear in any of the decisions. This is paragraph 14 which Millar seem to think is important to his appeal.

[14] The judge also held, alternatively, that Ms. Douez had shown strong cause to not enforce the forum selection clause. In a sense this was simply a different way of framing her conclusion that s. 4 overrides the forum selection clause. To deprive Ms. Douez of her right to bring a claim under s. 3(2) of the Privacy Act would be contrary to the legislative intent of the Privacy Act and to public policy more generally. Thus, the forum selection clause should not be enforced.

The relevance of that paragraph to anything that Millar is arguing eluded me and the court of appeal. The court told Millar that the trial judge was aware of the distinction between "corporate" and "person". Millar responded that he wasn't making that point. "I'm saying that this court recognizes private persons".

Court - From my perspective Facebook does not advance your point.

Another judge told him that he was wasting his time arguing this but that didn't stop him. On and on about the foundational importance of the different aspects of private persons in their various capacities. He basically told the judges they were idiots, saying in frustration that he couldn't understand how they couldn't understand this. He sounded like he was talking to a particularly obtuse grade three class.

Then a digression into common law. He wants to move his case to a common law jurisdiction. He really doesn't seem to realize that there is no "case" to move. He's already been tried and he lost. If he loses this appeal it's all over, if he wins he won't be retried, charges will be stayed. We're 45 minutes in and nothing but gibberish so far.

On to jurisdiction and residency. The Canadian Income Tax Act only imposes tax on residents of Canada. But, while Millar lives in British Columbia, a Canadian province, he claimed that he wasn't a Canadian resident when he was accused of evading income tax. "I was not resident in Canada because Canada is a jurisdictional entity not a geographic entity. It (the Income Tax Act) is not applicable to everyone, only residents of Canada and I was not a resident of Canada.

This is the lead-up to the most overwhelming of all of his obsessions, the one that seems to drive him closest to the brink of madness, capitalization. I'm not going to go into great detail on it here, I've written on the issue extensively in my reports of Millar's criminal trial hearings. I'll just do a basic explanation which will still, by necessity, be overlong. It all starts, in the most prosaic way possible, in subsection 2(1) of the Supreme Court of British Columbia Act;

2 (1) The Supreme Court of British Columbia is continued under the name and style of the "Supreme Court of British Columbia"

Millar interpreted that to mean that the Supreme Court of British Columbia ("SCBC") could only be addressed exactly as given in the subsection. This goes back to his argument about legislative intent. If the British Columbia provincial legislators chose to style the SCBC as "Supreme Court of British Columbia" then there was a deliberate legislative intent in doing so. So any document styled the name of the SCBC in any different way, no matter how slightly different, say, for example;

Supreme Court of British Columbia
The Supreme Court of British Columbia
The Supreme Court of British Columbia
SUPREME COURT OF BRITISH COLUMBIA
SUPREME COURT OF BRITISH COLUMBIA
THE SUPREME COURT OF BRITISH COLUMBIA
THE SUPREME COURT OF BRITISH COLUMBIA

Was not referring to the SCBC as established by The Supreme Court Act but was referring to an entirely different Supreme Court of British Columbia not enacted by statute, a secret, hidden Supreme Court. However these other courts used the same judges, court staff, courtroom facilities and resources as the statutory SCBC making it very difficult to identify precisely which court was hearing a case. This was why, at trial, Millar was constantly badgering the judge to answer his question "Which court am I in?" Without that answer, he claimed he was unable to defend himself because the different secret courts required different defenses.

And he had reason for his confusion! The documents in his trial contradicted each other incessantly. Some referred to "Canada", others to "CANADA" or "CANADA", one document even referred to some entity apparently known as "C·A·N·A·D·A". Millar found these inconsistencies everywhere he looked. Callow innocents like Burnaby49 attributed it all to either sloppy paperwork or styling indifference on the parts of the Crown and courts but Millar saw a deeper, darker purpose. The creation of these multiple courts and the other multiple entities known as British Columbia and Canada was the result of deliberate legislative choices made by the various levels of Canadian governments.

At trial Millar explained his theories as to why all these identical entities were created through styling but I can't say I really understood what he was getting at. Something about how laws could be interpreted differently in different courts and the legislation was designed to give the Crown a menu of different courts it could chose from so that the Crown could decide how severely perps like Millar were to be prosecuted. Apparently in some of the alternative Supreme Courts of British Columbia income tax evasion was just a trivial non-criminal offense but for Millar's trial the Crown chose a Supreme Court variant that considered income tax evasion and counseling fraud to be criminal offenses. It was all in the styling of the various documents the Crown submitted to the courts. A document with the styling "Supreme Court of British Columbia" established that the trial would take place in the legitimate SCBC while a document styled "THE SUPREME COURT OF BRITISH COLUMBIA" changed the venue to one of the other, secret, courts. Using C·A·N·A·D·A instead of Canada changed the legal nature of the country the court was being tried in.

The existence of this hidden world had been totally unknown to somnambulent dullards like Burnaby49 but Millar, through brilliant legal analysis, had broken the lock and exposed the secret court system and the multiple provinces and Canadas hidden from the rest of us. Using this information he was constantly arguing at trial that he wasn't a resident of Canada, that he wasn't even a resident of British Columbia and that the Criminal Code of Canada was invalid and not enforceable in British Columbia in any case because the federal government had no jurisdiction in British Columbia. He even argued that the Supreme Court of British Columbia, the real one, had no jurisdiction in British Columbia. Something to do with something called the County Act and some English grammar styling manual that he elevated to the stature of an actual defining statute. So, on the one hand he argued that there were multiple Supreme Courts of British Columbia but, on the other hand, that there were none at all.

No doubt Crown counsel, who had to delve even deeper into Millar's legal madness than I did, can point out errors in the above analysis. I've likely made mistakes because I wrote it from memory. But I'm not revisiting my trial postings, living through it once was enough. You get enough of an idea to arrive at your own conclusions as to the merits of Millar's various arguments excepting delay, an argument we'll not hear about for a while yet.

After that little diversion into sovereign legal craziness back to Millar's hearing. He pointed out a selection of screen shots, something to do with legislation that he planned to enter into evidence. He mentioned the Supreme court of British Columbia Act and noted subsection 2(1) (quoted above) and how the court's name was in upper and lower case inside quotation marks.

At this point I'm going to post the next part of my notes verbatim because, on review, they make no sense to me but they are exactly what I heard, or thought I heard Millar say. So rather than now try to interpret his comments (always a fraught exercise with Millar) I'll just give it to you as I recorded it. When I'm really pressed to keep up I leave out articles and connectors like "the" "an" "are" "is" "was" and fill them in later. This time I'll leave that chore to you.

Legislative intent that Supreme Court must be in mixed case. Criminal rules, federal legislation, has Supreme Court in upper and lower case. So, in his analysis of style of cause criminal cases in upper case and civil cases in mixed case. Specific intent to identify which Canada we're in by case. Law and equity Act.

That's the kind of day I had. Millar didn't bother to explain why he'd mentioned the Law and Equity Act, it's an old favorite for reasons he's never clarified. Then he said that prescribed forms indicate to us which court we're in by the styling on the form.

Court - This was argued and lost in trial.

Millar started using his exasperated "basic law for dummies" voice again. "It was wrong and I'm telling you how. The process and intent was not followed." By this point he was almost shouting, very agitated. "The prosecution has made this a Law and Equity Act issue. I want a complete analysis. The legislative intent is either followed or ignored and the prosecution didn't follow it. Their intention was to deceive by moving the case to another jurisdiction to which I did not consent. The process was invalidated whether you (the court) like it or not! This is not my opinion of what the law says, it's what the law says. It's not that hard!"

At this point my own notes are again confusing me. I don't know if the next paragraph, which I'll again relate verbatim, was Millar's testimony, my paraphrasing of it, my opinion of it, or a mix of the three. We'd just past the first hour and I was getting behind and forced into writing very cryptic comments (apart from quotes) to be fleshed out later. I'd just finished the above paragraph of Millar's quotes which slowed me down so I just scrawled out the next paragraph in order to catch up but I have no memory of it. To quote;

Crown was apparently very cunning at trial because they realized that he'd seen through their capitalization tricks. So sometimes they did it right then snuck in all upper case in other documents. Pissed away time going through every example of various capitalization.

That last is obviously my comment. Back on track "This is not complicated, it's simple!"

Court - At trial the judge said the use of capital letters is of no significance.

Millar - I'm disagreeing with that!

Court - I'm pointing this out because you are spending a great deal of time on this issue. Stick to your strongest points. If you think this is your strongest point so be it but you are running out of time.

So Millar, carefully picking his strongest point, kept babbling on about not being a resident of Canada although he's lived here all his life. "I'm not sure if the judge found me to be a resident of Canada" . . .

Court - She did since she found you guilty under the statute.

Millar - "We intended our private contracts to exclude federal entities such as the Income Tax Act. The witnesses agreed on this. The federal government was not a party to our contracts. We did this in a province which is outside of the jurisdiction of the federal government so they couldn't interfere in our contracts."

I'll break in again to explain this new application of fantasy law since this argument took up huge amounts of time at his trial. Millar has an extreme view of what he considers his privacy rights. He and the other Paradigm followers thought that if they typed the words "private" and, for some reason, "without prejudice" at the top of documents and labeled their activities as being performed under "private contract" none of the various levels of government, nor any Canadian court could use the any of their documents in legal proceedings against them. This, if true, effectively precluded government action or criminal charges against them regardless of what they did because all of their tax evading activities were recorded in these "private" documents, particularly the mass of documents seized from Russell Porisky's computer which held all the records for the entire Paradigm scheme. As I wrote in my report of a March 21st, 2016 court hearing involving Debbie Anderson, Michael Millar and Keith Lawson in respect to Porisky's seized documents;

Then on to his (Millar's) private person routine. "All of the records should be excluded because they are private documents of private persons acting in their private status and are outside of the jurisdiction of the court." He said he wanted all of the documents covered by the application excluded because they are private rather than commercial and public. "This issue has been wilfully evaded and avoided by the CRA. It is clear that the documents seized are private because they say so on their face and are therefore outside of the jurisdiction of the court." What he is referring to is a notation that Porisky put on each individual document that it was a private document. That, apparently, is a magical talisman that bars them from being used by the Canada Revenue Agency, the Department of Justice, and the courts.

At this point he was going way to fast for me to keep up and it was the same stuff anyhow. On and on about the legal magic of putting the word "private" on documents. He was just ranting about the legal status of persons and his inability to find out from the Crown or the court who he is. The judge just sat there and let it wash over him for a while then he said that it was of no relevance.

http://www.quatloos.com/Q-Forum/viewtop ... 71#p234471

Actually a review of my write-up of that hearing is an excellent background for understanding all of Millar's ravings at this hearing. He brought up everything there that he's discussed here. As I wrote;

The Crown wanted a ruling that the records seized from Russell Porisky's house which related to the three defendants could be submitted in evidence at their trials as business records and have the documents excluded from the best evidence rules. As I understand it this would eliminate the necessity of proving them all. The three accused opposed allowing the evidence as business records. At least this was the purported reason for the defendant's objection. The session quickly turned into yet another venue for Millar and Lawson's demented obsessions with capitalization, private documents, private persons acting in their private capacity, and jurisprudence. One of the most manic sessions I've yet attended.

And, in respect to my comments regarding Millar's condescending attitude to the court regarding the judges' deficient understanding of basic law, I wrote, over three years ago in respect to the March 2016, hearing;

Before Millar started the judge said "I want to caution you, I can't make it clearer, I don't want any submissions on jurisdiction wasting the court's time. There is clearly no question that the court has jurisdiction to hear this application". . . . .

Millar replied "I have difficulty with that because it is straightforward to read the law and see that it hasn't been complied with. The application does not give the Crown standing to have jurisdiction to make it. A plain reading shows that it black and white that the Crown has no jurisdiction". Millar was like that all the way through the rest of the afternoon. Making the most preposterous statements with an absolute certainty that he fully understood the law and was instructing the judge.

So, back to Millar's time-consuming ravings at our hearing. He said that since foreign embassies are not considered to be legally part of Canada he wasn't a resident of Canada either. The logic of that point eluded me. "Nobody wants to make this decision because of the impact of this but a resident of British Columbia is not a resident of Canada. They deem you a resident by tricks and traps. A third party can't enter into a private contract without jurisdiction."

Court - Is this a question of where you are located or the activities? Are you claiming to be a resident of British Columbia and sometimes a resident of Canada or never a resident of Canada?

So Millar, exasperated, had to explain basic law to the court yet again. "This is not a complex idea. I did not hold federal office. The law is complex so I stick to principles. The principle is that I'm not a resident of Canada. I never was a resident of Canada, these were private contracts. How do you overcome that? You can't! I kept asking which capacity I was charged in and they wouldn't tell me. Am I a trustee, a natural person? I need to know to defend myself. I had to know who they were charging. They were doing things wrong for a reason!"

Then, mercifully, a judge called for the morning break and told Millar to pay attention to time. "I suggest that you take advantage of the break to focus on the importance of your submission"

Millar had been on a relentless roll since the moment he started but I was worn out and badly needed the break just to regroup and give my writing hand a rest. The break is also a good point to end this posting, the first of three.

[Burnaby49]

Break over. Before Millar started his rant again the judge almost explicitly told him that delay was his only valid argument.

Millar - There's no way I'll be finished by noon.

He still doesn't seem to get it. At trial he'd yammer on for, quite literally, days just over his capitalization obsession. He seems to think, even after all today's warnings, that he can continue that leisurely attitude here. But he'll be cut off right at the end of his two hours regardless of whether he thinks he's finished or not. If he's not done to his satisfaction at the end of his allotted time tough, that's his problem, not the court's. The court's reply to the above comment made that clear;

Court - "You must meet the time allotted to you. Concentrate on what's important and use your time efficiently."

The judge might as well have been giving advice to the racoons in my backyard. Millar hadn't finished his endless ramblings about capitalization yet so it was back to capitalization and private rights. He cited some California case "not directly to point but principle based". Something to do with a principle regarding the rights of the state and private persons. He claimed it was somehow public policy for the state to invade the privacy rights of private persons. Then some other case regarding the separation between public and private rights. "The only harm here is depriving Her Majesty of money (the taxes he evaded). The Queen has no right to my money in common law."

Good luck with that Michael! The Court of Appeal doesn't give a crap about foreign jurisprudence, it doesn't give a crap about vague unstructured discussions on general legal principles, and it certainly doesn't give a crap about your bizzare interpretations of common law. The court's mandate is limited to reviewing two things;

1 - Whether the trial judge made any errors in law.
2 - Whether the trial went over the Jordan limit regarding delay.

Absolutely nothing Millar has done yet at this hearing has, in any way, touched on either of these issues.

Court - I'm looking at your final amended notice of appeal. Your fourth grounds for appeal, which you abandoned, was that the judge didn't help you or give assistance. Your reliance on this case addresses this abandoned issue.

Millar - I revived it.

Court - To address that issue we would need transcripts and we don't have them. You agreed not to rely on transcripts. The issue of the alleged failures of the trial judge is not before us but the issue of your being arrested is a live issue.

Millar went back to jurisdiction. Some case about the federal v. provincial capacity regarding jurisdiction and the capacity of the defendant must be identified. It is the duty of the Crown to obey the law. Then a bunch of case citations which I ignored that he claimed supported some argument or another. "If parliament had intended natural persons to be taxable they should have said so."

Then a litany of statutory Acts cited without explaining how they were relevant, the Law and Equity Act, the British North America Act, the Interpretation Act, Income Tax Act. Just a flurry of names without context. Back to the Facebook case which the court had already told him was irrelevant. He's evidently done a word search through a judicial database, probably CanLII;

https://www.canlii.org/en/

and hauled out whatever he can find with the words "private person" and "natural person" regardless of any relevance to his appeal. He said that he was using all of these cases for their principles rather than their specific application of law. He said that he had no actus reus or mens rea. He seemed to have lost any focus and was just jumping from topic to topic (apart from his obvious exclusion of any mention of delay). It was just like his trial. However the court stopped him when he started on about actus reus and mens rea.

Court - That's not a factor on appeal so I don't know what you propose by bringing this up on the fly. We went through a number of case management meetings and we were careful to set up this material exactly as you wanted it. It is now unfair to Crown to bring this up when it is not in the material.

This generated a barrage of nonsense.

Court - You've already made an argument about what constitutes an offense.

Millar - Yes. I couldn't commit an offense when I wasn't in Canada! Has Millar actually thought this concept through? He's claiming that federal law does not apply within the Canadian provinces because the federal government does not have jurisdiction. However most major crimes are in the federal Criminal Code. For example, murder;

231 (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

(lots of legalese between 2 & 7)

(7) All murder that is not first degree murder is second degree murder.

Criminal Code ( R.S.C. , 1985, c.
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

So if he was correct in his argument regarding jurisdiction murder wouldn't be a crime in British Columbia and I could murder whomever I wanted with impunity. Not that I've any inclination to do so. At present. Not that that I'd tell any of you.

Court - You did not testify so you did not enter into evidence your beliefs in your theories.

Millar - I didn't testify because Crown didn't make a case. There was no guilty act. I believe in controls. (Note - that last sentence doesn't make any sense but it's the best I can interpret from my rapidly failing printing.)

Court - Initially you had as a ground for appeal that the judge didn't have grounds to convict you but that was taken out. I'm troubled that you are trying to bring this back in now.

But Millar, apparently totally uninterested in whatever was troubling the judge, hauled out yet another case from his grab bag "I found this case last week so it's not in the factum. The case brings up mens rea. The Crown wants to put everything into tax evasion but I'm outside of the Act. I'm not subject to the Act! The judge failed to address my equitable notices. The judge refused to deal with them on the day that I was arrested."

As I've already noted I was at his hearing when he was arrested on the order of the trial judge and I wrote about it here;

http://www.quatloos.com/Q-Forum/viewtop ... 34#p227241

Notwithstanding Millar's protestations that he has no idea why the judge ordered his arrest her reasons were blindingly obvious to anyone who was in the courtroom. Millar had gotten extremely disruptive when the judge had told him she was not going to consider his "equitable notices" which he'd called Bills of Acceptance at the hearing. He started shouting and refused to stop when the judge ordered him to do so. She told him if he continued disrupting proceedings she'd ask "Mr. Sheriff" to take control. But he was in a rage and wouldn't, or couldn't, stop. He demanded something he called a "private trial" which the judge of course refused to grant him. This ensued;

Judge said that he needed to make an application to exclude the public and that they were rarely granted because of the importance of having an open court system. You can have a trial by judge if you want but you have no right to a private trial.

This set him off on an batshit crazy rant. "I explained the equitable issue in my notice! I've dismissed proceedings and I want equitable common law proceedings." Judge said "do not continue or interrupt" but he kept ranting. Sheriff edged closer. More rants. Judge said "Mr. Sheriff, take him into custody" and I heard sheriff call for backup. DON'T TOUCH ME! DON'T TOUCH ME! That had as much effect as his dismissing the case or demanding a common law trial and in seconds he was cuffed with his hands behind his back and the sheriff holding on to him.

I have no doubt that the appeals bench, having reviewed the material, felt that the judge's response to Millar's intemperate ravings was reasonable in order to maintain control over her own courtroom and her actions were entirely justified. I certainly did watching it all. So, not something that I'd emphasize in an appeal but it was Millar's rapidly dwindling allocation of time to do with as he wished. Who am I to question the tactical decisions of the man who uncovered the secret meaning of capitalization variations in court documents?

On to cross examination. "The transcripts show I tried to cross examine a witness but I wasn't allowed to." One big problem with this argument, well, maybe a couple. Firstly, as part of the opening statement that the court made to Millar before he made his arguments, was this comment;

"We cannot address cross-examination because you haven't mentioned it in the factum."

Secondly, even if he'd included this argument in his factum he couldn't argue it here because it would have been necessary for the appeal judges to review the trial transcript to confirm what the trial judge actually said on this issue and, as I've already related in this posting, there were no transcripts available and Millar had agreed to drop all arguments that relied on them.

Then, finally, with about ten minutes of his time remaining, one twelfth of his total allotted time, he mentioned delay, the only argument that can keep him out of jail. However he seemed very unenthusiastic about discussing it compared to the genuine passion he showed when pursuing his capitalization and natural persons arguments. "Not much to say, not much in my factum. I'm principles based, not facts. My understanding in delay applications is that time runs to sentencing as part of the trial.

As I understand it this is actually still a point of uncertainty. The only thing that the Supreme Court of Canada wrote about sentencing in the Jordan decision was;

The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial.[2]

Note that footnote reference. This is the footnote;

[2] This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

S. 11(b) refers to this, in the Canadian Charter of Rights and Freedoms;

any person charged with an offence has the right to be tried within a reasonable time.

So the Supreme Court, while forcing trial courts to meet an arbitrary limit for "the end of the trial", didn't bother to precisely define how that limit was determined or how to factor in the various issues involved in sentencing delays.

The court asked Millar something about a November hearing. Is there a transcript? The Crown, while not providing a transcript, gave a sequence of events relating to Millar's sentencing hearing which was finally concluded on February 28th, 2017. He'd been convicted on October 11, 2016 and a sentencing hearing was scheduled for November 17, 2016. However at the beginning of the November 17th hearing he'd complained he hadn't had enough time to review the Crown's submission because they broke their word to him and didn't give him a copy of their submission in sufficient time before the hearing for him to respond to it. He claimed, without any evidence to support his accusation, that the Crown had promised to provide him with their response three weeks before the hearing but he'd only got it a few days before. The court granted him an adjournment until December but said;

[6] So the first question for me is whether it is appropriate to grant an adjournment, and in doing that I have to consider the prejudice. I recognize that Mr. Millar is acting on his own behalf, and the Crown is seeking a serious sentence, with, as I have said, three and a half years of imprisonment. In those circumstances, I am prepared to grant an adjournment of the hearing of the sentencing.

[7] The next question is whether I should attribute any delay arising from that, and there will be delay arising from that, to Mr. Millar, or not at all, or to the Crown. The Crown's position is that I should attribute it to Mr. Millar. I do not have my reasons for judgment on the delay application here, or the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27 (CanLII) here, but when the defence requests an adjournment to prepare something, it is ordinarily something that would be attributed to the defence.

[8] Whether or not the Crown thought it would provide Mr. Millar with submissions as early as a week after October 11, there is no right for a defendant to have three weeks' written notice of the Crown's submissions. In fact, it is quite common for the Crown not to provide written submissions at all. It is also common for sentencing to commence immediately after a conviction.

[9] So in these circumstances, the delay will be attributable to Mr. Millar.

R. v Millar
2016 BCSC 2713
http://canlii.ca/t/htrlp

The sentencing hearing resumed on December 13, 2016 but couldn't be completed on that date;

[9] The oral sentencing submissions commenced on December 13, 2016. The Crown completed oral submissions on sentence at about 2:25 p.m. Mr. Millar commenced his oral submissions but he did not complete them that day.

[10] Another full day was scheduled for the completion of sentencing submissions and the sentencing hearing was adjourned to Friday, January 27, 2017.

But on January 27th, 2017 Millar, using his usual ambush tactics, derailed the hearing with this;

[11] Shortly after court began on January 27, 2017, Mr. Millar stated that he wished to apply for an order for recusal on the basis of a reasonable apprehension of bias. He later explained that he sought a mistrial, rather than a substitution of another judge to complete sentencing.

[12] The Crown did not object to Mr. Millar bringing the application without notice, and the hearing of that application proceeded for most of the day.

[13] Mr. Millar made his submissions on the mistrial application until about 2:45 p.m. The Crown’s submissions lasted about ten minutes. I reserved my decision to February 8, 2017, on the basis that if Mr. Millar’s mistrial application was dismissed, we would continue with the sentencing submissions.

And his sentencing submissions hearing was finally concluded on February 9th, 2017 but the actual sentencing was delayed after yet another request by Millar;

[14] Mr. Millar’s mistrial application was dismissed on February 8, 2017. At around 11:30 a.m. that day, following the morning recess, Mr. Millar continued his submissions on sentencing, concluding at about 3:15 p.m. The sentencing hearing was adjourned to the next day, and it completed at about 11:30 a.m. on February 9, 2017. Mr. Millar asked that the sentence be imposed on a Monday or Tuesday, because he planned to appeal and to seek release from any custodial sentence pending appeal, and he thought being sentenced on one of those days would minimize his time in custody. I agreed to sentence him on one of the requested days, and adjourned the sentencing to today, which is Tuesday, February 28, 2017.

So now, at this hearing, Millar was trying to get the appeals bench to agree that the month delay between the November 17, 2016 hearing and the December 13, 2016 should be attributed to the Crown notwithstanding the adjournment was made at his request and the trial judge specifically allocated the delay to him in her adjournment decision.

Millar - The only issue of the November hearing was a month delay to December because I only got the Crown's response three days before the hearing. Millar also said, without providing any context - "The Judge also said that the Crown delayed but this was acceptable because of the complexity of the case. This was not a complex case. This is an improper use of complexity as an excuse when there had already been prior cases on the issue."

And that, such as it was, was it for Millar's delay arguments.

Next Millar mentioned a case, I think he said "Bromley" which showed that a fundamental of criminal law is certainty, Clear unambiguous proof is needed. "I don't find the Income Tax Act to have ambiguity removed". I didn't know what Millar meant by that then and still don't.

Millar - "I never understood my fraud charges"

Court - I'm not following (take a number and get in line judge) are you talking about counseling (counseling fraud)?

In response Millar babbled something about the definition of the Attorney General. I was totally lost.

Court - Was this raised at trial?

Millar - No, I just thought of it.

Court - Then we can't hear it.

Then on about the documents seized from Russell Porisky. I don't know what point he was making on this, something about everything being done openly with no intention to deceive.

Court - This should have been brought up at trial. Where does the letter fit into your appeal arguments? (I have no idea what letter was being referred to).

Millar - "Mens rea. It can be considered by you because it's part of the record. No secret account, no secret communications."

Court brought up delay again. The reasons for judgment at the October 11, 2016 sentencing submission hearing. Are you saying that a month of this (delay) was caused by you?

Millar - No!

Court - The trial judge considered you responsible for the month delay.

Millar - Yes but she was wrong!

Then, without warning, the court called a halt to proceedings stopping Millar in mid-stride. They'd given him his two hours of allotted time and they weren't conceding him a second more. We had a short break while the court retired to decide how to continue. The court returned after five minutes and told the Crown "We wish to advise you that mens rea is not properly before us. There is no issue before us regarding prosecution discretion. We would like to hear from you regarding delay. There is one other matter. Mr. Millar is on bail and we'll likely reserve judgment It would help to have you discuss this over lunch so we can address it in the afternoon." After requesting the Crown to assist Millar in his bail issues the court adjourned the hearing for lunch.

A few points. Since the court had told the Crown it only needed to speak on delay it meant that all of Millar's other arguments, capitalization, natural and private persons, jurisdiction, mens rea, actus reus, legal errors and bias by the trial judge, his whole bag of tricks, fifteen of the sixteen arguments in his factum, had already been considered and rejected by the appeals bench. All that was left was delay. As the court had constantly hinted throughout the hearing delay was the only issue worth arguing.

Also, at the beginning of the hearing the court had said;

Court continued by saying that there was an application to include fresh evidence. We will review it and we may and we may consider it. We will accept submissions as to whether or not it is admissible. The test is whether it existed at trial and why wasn't it led. You claim that it didn't exist at trial. We will now hear your submissions.

While the court did not mention this application in it's instructions to the Crown this was also a topic considered after lunch. This is a good spot to end the second posting and start a new one covering the post-lunch proceedings. I'll end with a few comments;

The second half of Millar's submissions was much less work for me than the first. I have nine pages of notes from the start of proceedings until the morning break but only six pages from break until the end of Millar's allotted time. There were numerous reasons for this. First, the halves weren't quite equal in time. The second portion, after the break, was a bit shorter than the first. But the main reason was that in the first half Millar focused on capitalization, jurisdiction, and natural persons and private persons. These are Millar's old and cherished friends. He's been yammering incessantly on these topics for years and when he gets into Full Speed Ahead mode on them he can switch to autopilot with no need to reflect on what he's saying. He knows the scripts by heart and just blasts away. But he digressed to other topics in the second half and this scattered his concentration, He actually had to stop and think from time to time which slowed him down significantly. He tossed mens rea and actus reus into the mix without any apparent arguments prepared in respect to them. He had that pointless digression about the attorney general that seemingly just popped into his head right while he was talking and he rambled through irrelevant cases he'd just found in the last week or two. Additionally the new arguments, thrown at the court without warning, triggered more court participation in the second half, breaking the flow and constantly putting him off balance. All to the benefit of my writing hand.

Millar was much as he was at his trial. Supremely self-confidant regarding his idiotic legal theories but frustrated by the inability of the dolts on the bench to understand his brilliant legal analysis notwithstanding his exhortation that "This is not complicated, it's simple!" His stream of consciousness tirades about capitalization, jurisdiction, and natural/private persons could have been extracted verbatim from his trial testimony and entered on the record here, saving him the trouble of reciting it all yet again and saving us the trouble of having to listen to it. However that would have deprived him of the opportunity to treat us to yet another spell-binding performance. He advanced exactly the same arguments in respect to these issues that he'd argued at his trial even though they'd failed abysmally, both at his trial and the trials of all the other Poriskyites. Even though he's lost all of these arguments yet again at this hearing (although he may not yet have realized it) this won't result in him feeling even the slightest twinge of a doubt regarding the correctness of his legal theories. I see a Supreme Court of Canada leave to appeal application coming up.

[Burnaby49]

Lunch over, for me it was an Angus burger at Harvey's and a trip to the main branch of the Vancouver Public Library. The hearing resumed with the Crown at bat. They've said virtually nothing so far apart from agreeing that they had no problems with Millar wasting his court time chasing after irrelevant red herrings. But now the Crown's rebuttal was front and centre.

Before I start my report on the Crown's arguments I'll make a pre-emptive apology about my review. I had no problem whatever in fully reporting on Millar's arguments because I'd attended his trial and nothing changed from the trial to this hearing. So when he went on about capitalization or the natural man I knew exactly what he was referring to regardless of how disjointed his presentation was. He made nothing that could be construed to be an actual legal argument. What he presented were just inane fantasy law theories totally unconnected to any real laws relevant to his criminal convictions. Millar knows nothing about real law. I wrote, in my prior posting;

"He's evidently done a word search through a judicial database, probably CanLII;

https://www.canlii.org/en/

and hauled out whatever he can find with the words "private person" and "natural person" regardless of any relevance to his appeal.

This is apparently the basis of his legal knowledge. He claims he's a natural person so he strip-mined statutory acts and jurisprudence for any usage of those two words and just dumped whatever he found into his defense without explanation of relevance and regardless of context. For example he's frequently mentioned the Law and Equity Act, a British Columbia statute, as support for his defense, both at trial and in this appeal. I've gone through it superficially but have no idea what it's even basically about. Give it a shot yourselves;

http://www.bclaws.ca/civix/document/id/ ... 1#section1

Chapter headings like;

Power of court in foreclosure actions to make order without regular hearing
Covenants to insure against fire
Damage by collision at sea
Railway company not to be restrained on application made without notice

Don't point to an obvious defense against income tax evasion charges. As far as I can determine Millar has only included this Act in his materials because a word search found one of his magical phrases in it somewhere. He's never explained why the Law and Equity Act is relevant to his defense or what section of it supports his arguments, he's just thrown it in the mix. He might as well have cited random passages from The Joy of Cooking for all of the legal relevance the Act seems to have. His case citations are the same, just random unrelated cases I assume he's found through word searches. But, while he can locate statutes and reasons for judgments based on word searches, he's unable to connect them to his case through legal analysis. This is why he's tried to base his arguments on "principles" rather than statutes. He avoided making any substantial arguments on delay, his only hope on appeal, because it would have meant doing real legal research and reading and understanding the caselaw. As he said himself regarding delay "Not much to say, not much in my factum. I'm principles based, not facts." As a result I didn't have to bother digging up and reviewing most of his case citations because they were clearly irrelevant, just an odd assortment of unrelated judgments he'd dredged up. So posting his two hour contribution to the proceedings was tedious and time-consuming but not difficult.

But the Crown is actually making me do some work by basing their arguments on real law with relevant case citations. They unfortunately moved along briskly rather than beating individual points to death so my notes are probably incomplete. Keep in mind one more point which caused uninformed members of the audience like Burnaby49 difficulties. When the court and the Crown were going back and forth on questions, answers, and arguments they were sometimes discussing documents entered into evidence, such as prior court decisions, which they were all familiar with but which were not specifically identified. So, while I managed to find some of them later, such as Christhurajah and Rajaratnam, I had no idea what they were talking about at the time. As a result my analysis of Crown's arguments may well be incomplete or in error. But you take what you get and there's nobody else reporting on this. So on with the Crown's submission;

Crown - We'll deal with delay first and the fresh evidence second. We'll start with the Jordan aspect. I have two cases to hand up, first one yesterday. I read yesterday's decision and didn't notice anything of significance.

Crown entered these two very recent decisions into evidence;

R. v. Christhurajah
2019 BCCA 210
http://canlii.ca/t/j1150

R. v. Rajaratnam
2019 BCCA 209
http://canlii.ca/t/j114z

They both relate to human smuggling and trafficking, specifically this event;

The appellant was convicted of human smuggling under s. 117 of the Immigration and Refugee Protection Act. In the summer of 2010, the MV Sun Sea sailed across the Pacific Ocean and arrived in Canadian territorial waters. It carried 492 Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status upon arrival. The Crown’s theory at trial was that the appellant was part of a human smuggling operation linked to organized crime.

The trafficking arguments were of no interest to our hearing, what was of interest is this part of the Christhurajah decision;

At the end of the appellant’s first trial, the judge declared a mistrial. The appellant was convicted at a retrial 60.5 months after he was charged. The trial judge instructed the jury that it was a defence to a charge under s. 117 for an accused to have been engaged in mutual aid with other asylum seekers. She instructed the jury that the appellant’s sole motivation must have been to aid the other asylum seekers and that the defence required “reciprocity of assistance”. She refused to charge the jury on a humanitarian aid defence. On appeal, the appellant argues that the charge must be stayed due to unreasonable delay in bringing him to trial.

Arriving at this conclusion;

The delay was predominantly caused by a mutual decision to await the outcome of a case that reached the Supreme Court of Canada. Pursuant to the analysis mandated by R. v. Jordan, 2016 SCC 27, this constituted defence delay and an exceptional circumstance and a stay cannot issue.

These comments come from the case summary. The actual analysis regarding the application of Jordan was very extensive. Anyone wishing to read it can find the analysis in paragraphs 39 to 134. I'm assuming that the Rajaratnam decision is the one that Crown said was of no significance because delay was not an issue at that trial.

After submitting those cases Crown said that "What's important here is chronology. Breaking down the delay into sections that can be assigned to the three parties, inherent court delay, Crown, defense. "The Crown delay was reasonable and the trial judge arrived at the correct result." The trial took 32 months, slightly more than the Jordan 30 month limit for two reasons;

1 - Complexity, which Millar disagrees with.
2 - Transitional exceptional circumstances. All but three months of the exceptional delay took place before Jordan released.

The periods of delay are reviewable on the standard of correctness. The overall delay was 56 months from the Information being sworn (charges laid) in February 2012 to October 11th, 2016 when the verdict was released. There are some difficulties with the trial judge's decision regarding the 14 month period between the Information and finding Millar and getting him into court. The judge started the clock when Millar appeared in court but it should have been started when the charges laid by swearing the Information. The judge was wrong in law.

Court - In Jordan there was no between the charges being laid and the arrest?

Crown - True. The judge seemed to think that the 14 month period where Millar could not be located shouldn't count. Jordan seems to imply that it is included. It is the Crown's position that it shouldn't count as delay because it was not the Crown's responsibility. They tried hard to locate but it took 14 months to find him.

Note - A bit of background needed here. The Crown hadn't proceeded against Millar without his knowledge. As I understand the story he had been given a opportunities to discuss the issue of his being a Paradigm Educator with the CRA and Crown before charges were files. However as soon as charges were laid he suddenly disappeared and he wasn't located for 14 months at which point he was promptly arrested and brought into court and his trial started. He denied any knowledge of the charges having been laid and denied deliberately evading authorities, he was just out and about doing whatever it was that he did and, for some of that 14 month period, he was out of the country. However the CRA wasn't passively waiting for him to somehow show up during this period and an RCMP officer tried, very diligently, to find him including surveillance, contacting family and acquaintances, and two house searches. It's all laid out in paragraphs 29 to 67 of Millar's delay decision.

R. v. Millar
2016 BCSC 1887
http://canlii.ca/t/gv4pw

Back to Crown. "At the end of the day the judge got to the right place, there's no question of that." (In other words, correct conclusion but wrong path getting to it.)

Crown said there was a 10 month defense delay. When that was deducted from the 56 month total trial timeline that left 46 months which was in excess of the Jordan ceiling. This is where the 14 month delay came in. The Crown expended considerable effort to locate Millar and compel him to attend court. 46 months - 14 months = 32 month. (the delay period being argued is just 2 months over the 30 month Jordan limit if the appeals court agrees not to count the 14 months against the Crown).

The Crown had argued at Millar's delay hearing that Millar had deliberately avoided service but the judge did not accept that argument. Crown quoted from the delay judgment where the judge said that she would have allowed 5.5 months of the 14 months. (Note - The judge said, in the delay decision, that had she concluded that the 14 months were relevant to a Jordan review she would have allowed the Crown the benefit of 5.5 of the 14 months leaving 8.5 months allocated to the Jordan total. However she erroneously started the clock on the Jordan period after Millar was arrested and taken to court in June 2013.)

Crown continued its argument why the 14 months should not count against it, relating the efforts the Crown expended to find him. Two search warrants, one police officer dedicated himself to finding Millar. This was outside of Crown's control. Crown did everything it could. This leaves two months over the Jordan limit which has to be justified. That's where complexity comes in. There is sufficient complexity to take more than 30 months. Complexity is not a numerical circumstance, it is a quantitative exercise. Crown cited paragraphs 210 to 212 of the decision.

[210] A substantial number of documents were seized in the Fullerton Home search and the Porisky Search and were entered into evidence at trial. In order to establish the charge of failing to pay GST in 2005 through 2008, the Crown was required to establish that Mr. Millar owed GST. To do so, the Crown was required to establish that Mr. Millar earned income in an amount and over a period such that GST was payable.

[211] The Crown relied on its analysis of documents seized from Mr. Millar’s home and bank records obtained from a bank. The Crown made the assumption that cheques from anyone shown on seized records as being one of Mr. Millar’s students were payments to Mr. Millar for his services. The Crown made assumptions that certain costs were relevant to Mr. Millar’s provision of services and course materials.

[212] That analysis appears to have required significant time. While there was no evidence giving an estimate of the time required for the analysis, compilation of this evidence was complex, and that is a factor I must consider in making the overall assessment of whether the delay was unreasonable.

Crown - There is more evidence to support this. The complexity of dealing with an unrepresented litigant who participated on pseudolegal arguments and who was not willing to willingly participate in the process, his repeated arguments over the same issues. If you undermine the litigation process you add to the complexity. This is a quantitative global assessment, I can't point to specific events. The record shows Crown acting proactively during litigation, ready to go on days scheduled, looking for ways to move things forward on an economic basis. Not a Jordan atmosphere of complacency. Mr. Millar's adherence to pseudolegal views made everything take longer. He ignored Crown's letters.

Court - Are your facts mentioned in the factum?

Crown - Most are, some aren't.

Crown gave an example, a letter Millar sent to the prosecutor stating that he was not dead or across the sea. He said in letter that all mail sent to him with a postal code would not be opened and were being held for criminal charges.

Court - He had no obligation to cooperate but he was not going to assist Crown. This is obvious. We have the point.

Crown - This is a pattern throughout. There were no dilatory acts on the part of the Crown. Crown put its best foot forward at all times.

The judges started conferring asked the Crown about paragraphs 207 to 213 of the trial judge's reasons for judgment on Millar's delay application.

[207] I must then consider whether the Crown has rebutted the presumption of unreasonableness on the basis of exceptional circumstances.

[208] The Crown did not establish any discrete event which constituted an exceptional circumstance.

[209] The Crown argued that the case was particularly complex.

[210] A substantial number of documents were seized in the Fullerton Home search and the Porisky Search and were entered into evidence at trial. In order to establish the charge of failing to pay GST in 2005 through 2008, the Crown was required to establish that Mr. Millar owed GST. To do so, the Crown was required to establish that Mr. Millar earned income in an amount and over a period such that GST was payable.

[211] The Crown relied on its analysis of documents seized from Mr. Millar’s home and bank records obtained from a bank. The Crown made the assumption that cheques from anyone shown on seized records as being one of Mr. Millar’s students were payments to Mr. Millar for his services. The Crown made assumptions that certain costs were relevant to Mr. Millar’s provision of services and course materials.

[212] That analysis appears to have required significant time. While there was no evidence giving an estimate of the time required for the analysis, compilation of this evidence was complex, and that is a factor I must consider in making the overall assessment of whether the delay was unreasonable.

[213] The case was not so complex that it should have required 46 months. However, it was sufficiently complex to require more than 30 months, and I will take that into account in assessing the overall reasonableness of the delay.

Court - Is there any evidence that Millar's obstructive behavior caused delay? No. Then we've done with that and we should discuss the trial judge's transitional exceptional circumstances ("TEC") reasons in the delay decision.

Unlike Millar, when the Crown is told by the court to move on, they move on. But not without a parting shot. The Crown said fine but wanted to close with a comment about the complexity of working with Anderson, Lawson, and Millar on the voir dire. Then the Crown referenced paragraph 217 of the delay decision;

[217] After considering all these factors, including the complexity of the case and the transitional exceptional circumstances here, I conclude that the delay in resolution of these charges was not an unreasonable delay. That is so whether I am correct in determining that the applicable period started with the date Mr. Millar was arrested and served with the information, or if I am wrong in that, and the applicable period started with the date that the information was sworn.

Court - Is the judge's conclusion on complexity is that it affects TEC?

Crown - That's it. Crown quoted something about how TEC only comes into effect if complexity doesn't get case under the Jordan limit. "We go to transitional exceptional circumstances when all else fails."

Court - I'm doubting that complexity has no continuing life if considering TEC. (note - this comment is in Crown's favour)

Crown gave examples of how Millar didn't seem too interested in moving things forward.

Court - Even so doesn't the Crown have an obligation to move the case forward efficiently, to press forward even with obstruction?

Crown - Yes, and Crown did. It made every effort to move forward as expeditiously as possible. We had a fourteen month delay to get this to a preliminary hearing but this was not the Crown's delay it was inherent delay.

At this point the court called the afternoon break.

After break the court started by discussing the prejudice to Millar by having to adhere to bail conditions. Crown agreed but said that they were modest. Under Morin, the predecessor to Jordan, this would not have counted against the Crown.

This ended the Crown's arguments on delay. So on to Millar's fresh evidence issue. Before we start here are the British Columbia Court of Appeal rules on introducing fresh/new evidence at an appeal hearing.

3.5 Introducing new evidence

In general, you cannot introduce new or additional evidence at your appeal. You must rely on the evidence that you submitted in the previous proceedings. However, you may introduce new evidence with leave (permission) from the division hearing the appeal (usually three judges). Rule 31 provides details about how to bring an application to court to decide this issue. The application is normally heard by the division at the start of your appeal hearing.

At the beginning of the hearing, you should tell the court that you want to make a request to submit new evidence. The court will hear your reasons why this evidence should be considered on appeal. If the respondent objects to your request, he or she will have an opportunity to explain why the evidence should not be introduced.

These are the general principles the division will consider on your application to admit new evidence:

1. The evidence will generally not be admitted if you could have introduced it at trial;
2. The evidence must be relevant in the sense that it relates to a decisive or potentially decisive issue in the case;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. If believed, the evidence could reasonably, when taken with the other evidence introduced, be expected to have affected the result.

https://www.courtofappealbc.ca/appellan ... w-evidence

The Crown disputed Millar's claim that this was fresh evidence but instead claimed that it was a new issue. New issues are not allowed on appeal on the basis that any relevant issue should have been brought up at trial. So what was this all about? The “fresh evidence” was transcripts of proceedings that occurred in the four month period between the trial judge’s two decisions in October 2016 regarding Millar's delay application and his conviction and his February 2017 sentencing date. Millar’s notice of appeal claimed that the Jordan time period included five months from a September 2016 decision until his sentencing was completed in February 2017. So he wanted these five months added to the time to be reconsidered in his delay application.

I don't know what September 2016 Decision Millar is referring to. He has no published decisions in that month.

Anyhow the Crown argued in its factum that;

 In support of his ground of appeal relating to delay, Mr. Millar seeks to adduce fresh evidence in the form of transcripts and rulings that occurred post-conviction and after the trial judge had ruled that there was no breach of his Charter s.11(b) right. The application should be dismissed.

 Subsection 683(1) of the Criminal Code authorizes this Court to receive fresh evidence where it is in the interests of justice to do so. Pursuant to the test in Palmer v. The Queen, [1980] 1 S.C.R.759, the evidence must be relevant in that it bears upon a decisive issue in the trial.

 The evidence in issue is not relevant to the Jordan issues that were argued at trial. Post-conviction delay is assessed under the Morin framework, as applied in R. v. MacDougall, [1998] 3 S.C.R. 45, and “tempered by Jordan’s emphasis on the importance of facilitating a more efficient justice system”: R. v. S.C.W., 2018 BCCA 346 at para.35 (quoting R. v. Dadmand, 2017 BCSC 1644, at para.55).

As I noted earlier in these postings Jordan is very unclear on how the period between conviction and sentencing should be handled in determining the total delay.

This is a critical issue for Millar. If the four months (I'm assuming Millar is in error in his claim of five months) between his conviction hearing and his sentencing hearing are added to the overall time between the charges being laid and the end of the trial I calculate that the overall time, for the Jordan analysis purposes, exceeds the 30 month Jordan limit by six months even if the court allocates the 14 months between charges being laid and Millar's arrest to Millar.

The Crown started discussing the conviction to sentencing issue.

Crown - The pre-trial delay was 14 months 19 days in our case. (Sentencing) was put over from October (2016) to November, 1 month 6 days. Crown was ready to proceed. Millar asked to adjourn on the basis that the Crown had provided it's sentencing submission one week in advance of the hearing. Millar said, which Crown denied, that they had promised him the sentencing arguments a week after conviction. The next hearing was in December, 26 days later. On that day Millar filed a petition of procedural arguments without telling the Crown. The Crown made submissions but Millar's delays meant that the sentencing submissions couldn't be finished on that day. The next hearing was 1 month 23 days later. On that day Millar, without telling the Crown, made an application to have the judge recluse herself. That took the entire day. The sentencing submissions were done on February 9th and on February 28th reasons for sentencing were given. This took 4 months 19 days in total.

A judge asked about the application for recusal and the application on the bills of acceptance. Were the materials on file? Yes. And that was it for the Crown.

The court told Millar that he could reply. He was warned only to respond to new issues raised by the Crown. "Don't go back to square one" and don't cover issues Crown didn't address.

Millar said that the Crown had said that the level of documentation in the case increased the complexity but they were used in other trials. It was not complex and they were their documents.

Time for another comment because, at least from what I know of the case, neither point just raised by Millar was correct. I assume that when Millar said that "they were their documents" he was arguing that all of the documents submitted by the Crown at his trail were produced by the Crown. However many, perhaps most, of the documents at trial were Russell Porisky's and Millar's documents. These were the documents seized by the Crown from Porisky's computer. Crown submitted them as evidence of how the Paradigm tax evasion scheme worked and of Millar's participation in it. The Crown did submit original documents but these mainly related to calculations showing Millar's income from being a Paradigm "educator" and a determination of how much tax he failed to declare. The financial information the Crown used to make these calculations came from the seized documents.

I'm assuming that his statement that these documents "were used in other trials" is an argument that the Crown used the same set of documents at all of the Paradigm tax evasion trials so there was no extra work or complexity in using them at his trial. This is also incorrect. While some of the seized documents may have been relevant to all of the various individuals charged with income tax evasion as a result of participating in the Paradigm scheme most were probably unique to the individual participants. The documents seized from Porisky were his records of the revenues and expenses of the individual educators. Porisky needed to keep accurate track of the educators' revenues because he was received a share of their incomes and he sold them the materials. such as videos and Paradigm publications. that they in turn sold to their students. The Crown had to sort these documents into individual sets applicable to the individual educators and each trial had a unique set of documents relating to that specific defendant. Additionally the documents prepared by the Crown for each trial, calculating the educator's Paradigm income and expenses and the taxes evaded, were unique to that trial because the facts relating to each individual educator's financial dealings with Paradigm and with their students were different.

Back to Michael. He said that there were lots of comments on my unwillingness. Trying to throw spokes in the wheel are just part of the process. While my concepts are unique (Not sure if "unique" is correct, I can't read the word in my notes) they are not pseudo-legal, they are statutory in nature. It is grossly misleading to say that they are pseudo-legal. They had trouble communicating (with me). I moved and couldn't get mail where I went.

The Brown hearing was set up at the behest of the Crown. (It was to get) judicial approval to get the Porisky evidence in evidence in all three cases (Debbie Anderson, Keith Lawson, and Millar). That was at their peril and their problem.

This is the Brown hearing which I've referenced previously in my postings;

http://www.quatloos.com/Q-Forum/viewtop ... 71#p234471

"They argued that I wasn't participating. Who wants to participate? Characterization not fair. I don't deny that the Crown was very helpful but it doesn't change the fact that delay occurred in excess of what the Supreme Court allowed. All of this delay is over my head. Don't understand it, over my head. I'll leave it to you guys to figure out." I didn't have a week to get Crown's submissions, it was four days at most. I was promised much earlier.

He didn't believe that his new evidence was a new issue but "Even if it is a new issue justice requires that the court use its discretion to consider it. In the interests of justice the court should also consider mens rea and actus reus arguments."

He noted that after he was arrested at the end of the 14 months of searching for him the Crown wanted him incarcerated until the trial but he got bail because neither that judge, nor the trial judge, believed that he was evading service. He was out of the country part of the time. He was shocked to find out how hard the RCMP was trying to find him.

Court - You said that the post-conviction material supporting your two adjournment requests are in the appeals docket. Are they there? Millar said that he didn't understand. Crown confirmed that the information was not included.

Millar gave an explanation of some of his filings that resulted in adjournment requests but I found him too confusing to follow. He said that the petition related to getting his status confirmed was denied. He brought up his arrest at trial but he didn't make any point in respect to it, just mentioned it.

Court - We have a chronology. We're looking for documents to support your arguments.

A note on this comment by the court. Both Millar and Keith Lawson were great at making oral statements, both legal and claimed fact, but they rarely, if ever backed them up with any actual evidence. They just made bald statements which they apparently assumed would be accepted by the court at face value. For example Lawson said at his conviction appeal hearing that he hadn't evade income tax because you don't owe tax until the Canada Revenue Agency assesses you and he was never assessed. That statement was completely wrong in law but it wouldn't have been accepted by the bench even if it was correct because he didn't provide the court with any evidence, such as a copy of whatever sections of Income Tax Act he thought supported his claim, to provide an evidentiary basis for what he was saying. It was the same with Millar's claim that the Crown promised him a copy of their sentencing submission within a week after his conviction hearing. Unlikely on the face of it because the Crown denied making any such promise and they would have had no reason to make a promise like that. So he needed to enter some evidence to support his claim before the court could accept it over the Crown's denial. But he hadn't provided anything. Neither he nor Lawson seemed to understand the importance of entering evidence to verify their oral statements.

Anyhow submissions ended with the court's comment on chronology and judgment was reserved. Then a final discussion relating to Millar's bail. It expired today and had to be renewed until the reasons for judgment are released but the court registry closed at 4:00 (it was now 4:05). Crown had no objections to continuing bail on the current terms except to extend date of surrender. So it was extended until 9AM on the day of the release of the judgment of the conviction appeal. It will be an oral decision in open court and he has to surrender that day. Crown said that he had to go to the registry "forthwith" to get the extension so court adjourned.

If his conviction stands that probably won't be the end of his bail. I've related this with Keith Lawson. Keith's conviction appeal was denied but he said that he was going to appeal his sentencing and his bail was extended until the end of his sentencing appeal. This will be when the judgment is released which should be any time now.

My best guess on Millar's chance of winning on delay? No idea but it is, as the court hinted all through the hearing, a significant issue. There doesn't as yet seem to be a reliable "once size fits all" Jordan analysis and, to add uncertainty, each trial is different with unique fact sets. It has been my experience that judges can be all over the map in their Jordan reviews because a lot of the analysis can be very subjective, a judgment call on which side is more to blame for specific delay issues. As a general guideline I'd say that when a court is in doubt the judge, or in this case the bench, tends to give the benefit of the doubt to the appellant. We'll have to wait to see how much of a benefit of the doubt the Court of Appeal is willing to give Michael Millar.

[wserra]

the two hour speaking limit that the British Columbia Court of Appeal

Two hours? Two hours? The last time I argued in the Second Circuit, I (and everyone else) got seven minutes.

[notorial dissent]

You know Canadians, generous and overly hospitable to a fault.