Some years ago, Ontario’s Justice Fergus O’Donnell penned a decision that is remarkable for how he dealt with the defendant in a criminal case. The defendant, Matthew Duncan, made the kind of argument one sometimes encounters in the U.S., too — folks who believe that they are a kind of law unto themselves. They sometimes call themselves “sovereign citizens” or (in the U.S.) “constitutionalists,” though most ordinary folks would call them “nitwits.” Their typical claim is that, because they’ve never signed a “contract” with the government, they aren’t bound by any laws (at least — any they don’t approve of).
Of course, these same folks have no problem taking the benefits of an organized society, such as driving on paved roads, having street-lighting, a stable currency, or municipal water systems. And — if they get into a dispute with another “sovereign citizen” — they’ll happily use the tax-funded court system to resolve the dispute.
Justice O’Donnell’s opinion opens with this odd statement: “‘You should get out of town,’ the man said.” It turns out was recounting a fellow judge’s request to swap courtrooms for a while, which some judges find recreational. In Justice O’Donnell’s case, though, it meant getting to deal with Matthew Duncan. Or, as he described it, “a slight detour through territory that might have confused Lewis Carroll.”
Duncan’s case itself was, as O’Donnell himself put it, “unremarkable.” A minor traffic offense in the wee hours of the morning led to an encounter between Duncan and the police in the parking lot of his apartment building. The police asked Duncan to produce his driver’s license; he refused’ the police tried to arrest him; and a struggle ensued. Duncan was Tased, handcuffed, and arrested for assaulting a police officer.
What elevated the case out of the ordinary was both Duncan’s bizarre defense about being a “freeman on the land” and O’Donnell’s response to it. He explained that Duncan was “a rather pleasant young man,” but that his mind, unfortunately, “was filled with what my late father would have called ‘notions.’” This led Duncan to present O’Donnell with what Duncan called an “affidavit of truth,” which O’Donnell explained was “a rather substantial volume that appeared . . . to be the result of somebody doing a Google search for terms like ‘jurisdiction’ . . . then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read.”
O’Donnell also compared the “affidavit of truth” with a famous hypothesis: “It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.” (O’Donnell thought it necessary to add a footnote, “For readers under the age of thirty or so, the ‘typewriter’ was a mechanical device used for creating documents that pre-dated the computer and lacked some of the computer’s more annoying characteristics, in particular the computer’s facilitation of “cutting and pasting.”)
(Actually, I tried that “monkeys and Shakespeare” experiment myself, but all I came up with were The Collected Works of Edward de Vere.)
Anyway, Justice O’Donnell also remarked about the “affidavit of truth” that, “This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money.”
O’Donnell added, “As I have said, Mr. Duncan struck me as a perfectly pleasant young man, but on this issue he seemed a bit obtuse. I suppose that if perfectly pleasant young men weren’t led astray from time to time by drugs, alcohol, broken hearts or rubbish on the internet, then the dockets of provincial court wouldn’t be quite as plump as they usually are.”
Despite his obvious annoyance at Mr. Duncan’s obtuseness (as well as what he described as Duncan’s “disinclination . . . to stand when addressing the court”), Justice O’Donnell eventually ruled in his favor, finding that the failure to identify himself was not itself an arrestable offense. Because the police had no lawful basis to arrest Duncan, his resistance to being arrested was itself lawful, and therefore, he could not be convicted of that offense.
But since then, Justice O’Donnell likely has thought long and hard about swapping courtrooms with a colleague.
Frank Zotter, Jr. is a Ukiah attorney.
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