'The Organised Pseudolegal Commercial Argument Phenomenon in Canada' by Donald Netolitzky in (2016) 53(3)
Alberta Law Review 609-642
discusses
the history of the poorly understood Organized Pseudolegal Commercial Arguments (OPCA) phenomena. Drawing from various reported and unreported sources, the author begins his review in the 1950s with two distinct pseudolegal traditions that evolved separately in both the United States and Canada. Focusing on the prominent members of each era of the OPCA movement, the author explains in depth the concepts behind the movement and what it means for the legal system in Canada today. The article culminates with an analysis of the current OPCA groups and how Canadian courts should respond to future OPCA litigants, while also giving reasons as to why it is important for Canadians to take notice of this movement due to potential security risks.
Netolitzky comments
In 2012 and 2013 a series of events brought public attention to what was a hitherto unrecognized and unexpected phenomenon; there was in Canada a collection of persons who believed they were exempt from or immune to government, law enforcement, and court authority. Instead, these people, who the media generally identified as “Freemen-on-the- Land,” claimed they were outside Canada’s laws. Freemen spokesmen appeared on television and radio, saying they and their peers were the vanguard of a new Canada where the “true” common law would be enforced, and state interference controlled. They would do what they want, and impose their so-called rights on their neighbours.
This was not a peaceful development. A man in Calgary declared that his rental property was an embassy. The house was his alone. He billed his elderly landlady, and threatened that any interference would lead to action by “Territorial Marshals.” Meanwhile, near Grande Prairie, a group of squatters claimed they owned Crown land and would expel intruders and trappers by force. When RCMP officers attempted to search a rural property near Killam, Alberta for illegal firearms, they were forced to retreat after coming under fire from one occupant who wounded two officers, then killed himself. The other occupant, Sawyer Robison, fled the scene with a powerful sniper rifle and body armour. Robison, the target of the warrant, saw himself as outside government authority.
A parallel surprise occurred in the legal community. In 2012, Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench released a 736 paragraph judgment, Meads v. Meads, that collected information from 149 reported judgments where litigants had employed an array of strange legal-sounding but false concepts, which Associate Chief Justice Rooke grouped as Organized Pseudolegal Commercial Arguments (OPCAs). The broadly cited5 Meads decision explained that these ideas were sold on a commercial basis by promoters who promised immunity from taxation, criminal prosecution, government regulation, and free money. Discrete groups used OPCA concepts: the Detaxers, Sovereign Citizens, and the Freemen-on-the-Land. This broad category of vexatious litigation came as a revelation to many in the legal community and academia.
The unmasked OPCA phenomenon also caused a good deal of confusion. Who were these people? What did they want? Why did they express ideas that appear rife with conspiracy, and argued a strange mishmash of domestic and foreign law, legislation, and total fiction? Why did persons who used OPCA schemes not fall into any tidy pattern of political belief, social affiliation, wealth, or intent? Was the appearance of OPCA litigation part of the well- recognized broad entry of self-represented litigants into Canadian courts?
The truth, as it often is, proved complex. OPCA ideas and litigation were not, in fact, something new, but had a history in Canada and the US that traced back for decades. For example, this was old news for government tax lawyers and civil litigators involved in debt collection. OPCA activities were not so much unknown to the courts and legal profession, but instead were clustered, by geography, time, and intent. Fringe communities were incubators for OPCA schemes that periodically expanded into a broader population. Nor was this kind of activity all that uncommon. While Meads was intended to be a comprehensive review, in fact it only captured, at best, about one third of reported Canadian judgments that related to this subject.
OPCA ideas did not represent a legal threat to conventional authority. Canadian courts consistently rejected them. However, these schemes have a social cost: wasted court resources, unnecessary litigation expense, and sometimes devastating negative consequences to those who attempted to implement these schemes. Legal professionals and academics clearly struggled with this broader question of how to respond to the OPCA phenomenon. Context was missing, and instead replaced with guesswork and presumptions. One critical missing element is a historical foundation on which to organize this diverse category of vexatious Canadian litigation activities.
This article attempts, among other things, to construct what in biology is called a phylogeny: a family tree of related existing species and their ancestors. This tool helps explain the interrelationships of those organisms and the selective pressures that led to their appearance, divergence, and extinction. This OPCA phylogeny traces the development of groups, false but allegedly legal concepts, and key personalities. The last category is unusual. Ideas, rather than people, are usually the lynchpin of legal phenomena, but here a small number of critical persons were the direct cause of much of what is encountered today in Canadian courts. These are the OPCA gurus: the conmen who, for a price, assembled and disseminated OPCA concepts to customers who wanted to learn the secrets that would unlock special, supralegal status. To use another biological analogy, these are the Typhoid Marys of the OPCA phenomenon, who spread a disease of ideas as they travelled across Canada, often at great price to their customers, and sometimes, to themselves.
An “OPCA movement” is a group that uses common OPCA strategies and who hold or adopt a shared social perspective and typically conspiratorial alternative history. A person who employs OPCA concepts in court is an “OPCA litigant.” A person who adheres to OPCA concepts but who does not necessarily use those in legal disputes or proceedings is an “OPCA affiliate.” Certain sources estimate there are as many as 30,000 OPCA affiliates in Canada, however the exact source of this number is unclear. In the author’s opinion this overestimates the phenomenon, and a more realistic figure would be an order of magnitude less. This population has, however, generated a considerable volume of litigation, and over 700 reported judgments.
In Meads, Associate Chief Justice Rooke surveyed reported jurisprudence, litigation in the Alberta Court of Queen’s Bench, and other materials received by that Court to develop a context for aspects of the legal, pseudolegal, social, and business characteristics of the OPCA phenomenon. However, that review was necessarily incomplete due to the source material available, and as a consequence provides a useful, but in certain senses fragmentary, landscape of the OPCA phenomenon as a whole and in specific details. Not all known gurus and OPCA movements are identified, and Meads significantly understates the lengthy history of the OPCA phenomenon in Canada.
This article provides a more detailed historical review of the emergence of the OPCA phenomenon in Canada, the general evolution of OPCA movements and their dominant personalities, and the influence of different pseudolegal sources. This investigation relies on a wide range of resources, including reported and unreported jurisprudence, court files, public and social media, and materials created within the OPCA community. The author also draws from his personal experience in relation to this subject as Legal Counsel for the Alberta Court of Queen’s Bench. It is important to stress that the survey which follows is very likely incomplete, as in many instances early OPCA activities are not well documented either in reported case law or by other sources.
