UK Presumption Of Death

The 2012 House of Commons Justice Committee Presumption of Death Report - leading to the Presumption of Death Act 2013 - states 

1. On 21 July 2011 we announced our inquiry into the law and processes relating to presumption of death. Concerns surrounding this issue were brought to the attention of some of our Members by their constituents, particularly about the cumbersome and Byzantine procedures which the relatives of missing people are required to negotiate. The UK Missing Persons Bureau, which collates data on those reported missing, told us that under 1% of the 200,000 people who are reported missing every year remain un-located after 12 months. In September 2011, the Bureau had around 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. The number of people seeking to resolve issues concerning missing relatives at any one time is, therefore, relatively small, but those who are in that situation are inevitably already in distressing circumstances. We therefore decided to examine both the relevant law and procedures to establish whether there were as effective and efficient as possible. 

2. Our terms of reference focused on four specific areas: •

• Does the current system work effectively? • Does the current system create difficulties for families, and if so, how can these be resolved? • What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? • Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? ... 

3. When a person dies the executors of the will, anyone named in the will or, in the absence of a will, next of kin are able to obtain a grant of probate (or letters of administration if the deceased died without making a will) on production of the death certificate. Death certificates state that two doctors are satisfied that the deceased died from an identified cause. When a person goes missing, however, even if the circumstances of the disappearance strongly suggest he or she has died, the impossibility of a death certificate being issued leaves their affairs unresolved. 

4. The law that relates to resolving the affairs of people who go missing is an extensive mixture of statutory and common law provisions; indeed, one witness described it as a “crazy paving of legislation, of statutory and non-statutory provisions.” The most well- known provision, that the court will assume a person to be dead when there has been no evidence of his or her continued existence for seven years, is a rebuttable common law presumption. The court will usually presume death if: there is no evidence that the missing person has been alive during the previous seven years; the people most likely to have heard from the missing person have not had any contact; and, during those seven years, inquiries have been made for the missing person, without success. If not satisfied on the facts of the case the court will reject the application. An application may be allowed before the person has been missing for seven years if the facts of the case allow, for example if inquiries were thorough and wide-ranging. A court order stating the missing person is presumed to have died will resolve the issue that is the point of the application, but not others. This may leave a need for multiple applications: for example an order sought to pay out life insurance could not then be used to put an end to a joint mortgage. The Ministry of Justice told us that no central records are kept of the numbers of applications for such orders, or for the number granted by the courts. 

5. An alternative to a presumption of death, and one that does not require the applicant to wait seven years, is an application under the Non-Contentious Probate Rules. Clifford Chance, a law firm who have undertaken pro bono work for Missing People, described the process as follows:

The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person "to the best of his information or belief" in cases where death is presumed rather than proven. Such leave can be taken at any point after the person's disappearance, i.e. there is no need for the elapse of seven years. It is important to note, however, that in granting leave the High Court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person's affairs.

6. Specific facts may mean that probate will be granted without such an order. An example was the Asian tsunami in 2004. People who could prove their family member was in the area at the time were allowed by the then Department of Constitutional Affairs to apply for probate on production of the evidence. 

7. The statutory provisions applying to applications to resolve the affairs of missing people are found in a number of acts going back to the nineteenth-century. Clifford Chance listed the statutory provisions as including: the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; the Non-Contentious Probate Rules (made by Statutory Instrument in 1987 under the authority of the Supreme Court Act 1981) and the Social Security Act 1998. 

8. Each statutory provision is designed for specific situations, an example being section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a spouse or civil partner can dissolve the marriage or civil partnership if the court is satisfied, on the balance of probabilities, that the missing person is dead. It is unclear, however, whether such an order can be used to try to resolve other issues. We heard from one solicitor who had found it could not, despite the clear intention of the judge who made the order. 

9. The Foreign and Commonwealth Office also has the power to issue a “consular death registration document” for people who die or who are presumed to have died abroad. The legal status of this document is unclear. The Ministry of Justice told us: This type of document does not constitute a UK death certificate and does not replace a locally issued death certificate. Consular death registration is not a legal requirement but it means: an entry will be made in the death register by the British Consulate in the country concerned; an applicant will be able to obtain a British style certificate; and a record of the death will be held by the General Register Office in the UK. ... 

10. The UK Missing Persons Bureau (UKMPB) told us that the problems facing families seeking to resolve a missing relative’s affairs could be summarised as follows: • the lack of knowledge and understanding and expertise evidenced by police and legal professionals; and • the need to follow different processes to dissolve a marriage and administer a missing person’s affairs. 

11. We received ample evidence of the first issue from many of our witnesses. Vicki Derrick, whose husband Vincent Derrick disappeared on a works night out in 2002, told us “I initially spoke to the police for advice and guidance who suggested I contacted a solicitor...I have spoken to quite a few solicitors and have yet to meet one who has dealt with anything like this.” Her evidence was echoed by Rachel Elias, whose brother Richard Edwards went missing in 1995, who told us her “family solicitor, from an established and experienced firm, stated that he had never before dealt with such a matter. Indeed he informed us that he would be required to ‘go away and look further into the matter’ before he could proceed and assist us.” 

12. R Nelson, whose brother disappeared in 2000, found “most solicitors have essentially no experience in this field.” 

13. Stephanie Hynard, whose husband went missing in March 2011, told us that one of the police authorities with which she dealt was “unable to provide me with any information about the correct procedure to follow in dealing with legal issues or whom to turn to for advice”. The police are usually the first place families go following the disappearance of a relative. However, the UKMPB told us that referrals to sources of advice “are seldom made because police officers are unaware of or unknowledgeable about existing provisions”. They also told us that although a lack of specific training in this area could be a factor, “the complexity of the diverse processes and legislation regarding presumption of death compounds this problem”. Martin Houghton-Brown, of the charity Missing People, which provides information and support for the families of missing people, told us the reason why families found it difficult to access information was the complexity of the relevant law: “Because the process is, in effect, a crazy paving of legislation, of statutory and non-statutory provisions, it is very unclear how families should proceed.” In addition, and as illustrated by the evidence of Mrs Derrick and Ms Elias, long-term missing people cases are relatively rare. The UKMPB told us that research suggests, of the 200,000 people who are reported missing every year, 99% are found within a year. Of the 2000 who remain missing many, particularly young people, are likely to have few or none of the financial and legal issues that are usually the reason families are compelled to take legal action. Inevitably, therefore, the police, lawyers, people working in the financial sector and others with whom families come into contact are unlikely to have either experience or training in advising the families of people who are missing long-term. The Association of British Insurers told us that the current system could work with regard to insurance policies when the insurance company was involved at an early stage. Otherwise, the evidence we received was unanimous in agreeing that the combination of the complexity of the law, and the rarity of cases, made obtaining reliable information difficult.

14. In addition, Patricia Barrett, of Clifford Chance, told us “lawyers advising the families of missing persons are likely to have to spend a disproportionate amount of time researching the common law and statute law provisions”,a situation which is likely to have a substantial impact on the cost of proceedings. 

15. Not only is this emotionally draining and costly for the family, it can also lead to a messy legal position in which the missing person is declared dead for one purpose but remains legally living for another. Vicki Derrick told us that, despite the fact her husband had gone missing eight years previously, and their marriage had been dissolved on those grounds, she was still unable to take his name off their joint mortgage: “There is absolutely nothing I can do with my mortgage. My husband’s name is on that mortgage, and he is not around to sign it over to myself.” Mrs Derrick told us that without the financial, as well as emotional, support of her family she “would probably have had my house repossessed, because I would not have been able to keep up the mortgage repayments” following the loss of her husband’s income, but without the life insurance dividend she would have received if Mr Derrick had been known to have died. Dr Nelson had to have face-to face interviews with the Probate Registry and threaten to involve his MP to convince it to accept his personal submission for probate for his brother’s estate, despite the evidence his brother had been missing for over 10 years.

Ceilings

'The Silicon Ceiling: How Artificial Intelligence Constructs an Invisible Barrier to Opportunity' by Elana Zeide in (2022) 91(403) University of Missouri-Kansas City Law Review, comments 

Algorithmic assessments increasingly shape individuals’ success in education and employment. Schools, recruiters, and companies now rely on automated platforms and analytics services to sort through an overwhelming number of options. Similar technologies help students and workers find opportunities to pursue. The “opportunity brokers” who provide these tools not only vet applicants, but also personalize advertisements, curate user-facing recommendations, and identify potential candidates to recruit or promote. 

Because algorithms rely on data reflecting historical bias and inequality, artificial intelligence can retrench existing patterns of inequity. Automated systems compound this disadvantage as a few dominant companies draw on the same data and apply similar criteria. Further, the scale and pressures of the platform economy encourage both organizations and opportunity seekers to prioritize options with the highest probability of success. This leads to less diverse outcomes across industries and over time, constructing an imperceptible, but systemic, barrier to opportunity that I call the Silicon Ceiling. 

Like the glass ceiling, the Silicon Ceiling undermines traditional regulatory regimes focused on discrete decisions and ex post remediation/fair scores and procedural guarantees. Algorithmic intermediation occurs out of view as targeted advertising, personalized recommendations, and passive recruiting shape the candidate pool well before formal decision making. As a result, the automated opportunity system precludes, rather than denies, access to opportunity. Most people will not know the details of the decisions, the entities making them, or that they have even been evaluated. It is not just that the “black box” of algorithmic opacity obscures inflection points; the barrier itself is invisible. These paradigmatic shifts call for new conceptualizations of harm and structural reforms to shatter the Silicon Ceiling.

Appearance

''Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86' by  Kate Redburn in (2023 Law and History Review 1-45 comments 

 Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans. 

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

Redburn states 

In the early afternoon of March 24, 1964, John Miller was approaching his home on the Upper West Side of Manhattan. He had just crossed the intersection of West End Avenue and Ninety-First Street when a police officer stopped him and asked his name. When he replied “Joan Miller,” he was taken into custody. iller, later described by The New York Times as a “tall, burly man of 58,” was a father with a military record. He was also a transvestite, or cross-dresser, which meant that he enjoyed dressing as a woman.  His crime was violation of Section 887(7) of New York State's vagrancy law, by then over a century old, which made it illegal to appear in public with one's “face painted, discolored or concealed, or being otherwise disguised, in a manner calculated to prevent. . . being identified.” While the law did not explicitly reference clothing, police often used it to punish cross-dressing, and courts usually accepted that interpretation. Most of the time, people arrested under such laws did not mount expensive legal defenses, and those who did rarely appealed past the trial court level. 

John Miller was different. Yes, like many gender outlaws before him, he could not afford to mount a legal defense.  In fact, his arrest cost him his job. But Miller had advantages that his predecessors did not: he could turn to a community of other transvestites through new networks of identification and support. Miller was on the guiding council of Full Personality Expression (FPE), one of the earliest social and political organizations for transvestites, whose reach eventually encompassed much of the United States and parts of Western Europe. The organization pledged $300 to his cause. Miller also broadcast requests for financial support in Transvestia and Turnabout, two early transvestite publications, and received at least seventy contributions from the United States, Canada, and England. The geographic range of this support reflected both the broad scope of the emerging transvestite network, and the community's shared desire to challenge cross-dressing regulation. As one donor from Texas put it in a quick note with his contribution, “We need to get rid of these damn laws.” 

Laws banning cross-dressing were ubiquitous in urban America by the middle of the twentieth century. Most were more explicit than New York's Section 887(7), like the law in Columbus, Ohio, which criminalized any person who “shall appear upon any public street or other public place . . . in a dress not belonging to his or her sex.” Starting in the late 1960s, however, criminal defendants began to successfully undermine cross-dressing bans in a range of cities, from New York and Los Angeles to Toledo and Champaign-Urbana. Hoping to challenge their arrests, these defendants argued that anti-cross-dressing laws were facially unconstitutional, or unconstitutional as applied to them. As their successes mounted, gender outlaws began to bring civil lawsuits against cities to enjoin them from enforcing their anti-cross-dressing ordinances, marking a shift from the defensive posture of the criminal defendant to the offensive posture of the civil litigant. By 1980, criminal defendants had successfully challenged cross-dressing arrests in at least sixteen cities, introducing many courts to transvestite and transsexual people in the process. 

To the extent that historians have addressed the decriminalization of cross-dressing, they have understood it as an adjunct to a broader attack on vague municipal laws. This article restores the anti-cross-dressing cases to their place within the LGBT constitutional narrative. In that story, the campaign to decriminalize sodomy looms large. Substantive due process rights to sexual privacy and equal protection for sexual and gender minorities became the primary constitutional vehicles for vindication of LGBT rights and full sexual citizenship, culminating in the Supreme Court's endorsement of same-sex marriage in 2015. By reconstructing the disjointed efforts to repeal anti-cross-dressing laws across the country, this paper points to the multiplicity of legal paths for constitutionalizing gender non-conformity in the early days of LGBT constitutional litigation. 

The challenges also bring into focus a distinct legal movement of gender outlaws. Although they were not centrally coordinated, gender outlaws across the country developed their own legal strategy to decriminalize cross-dressing, and in some cases, constitutionalize protections for gender non-conformity. They did so in an era before legal nonprofits organized a cohesive gay and lesbian legal agenda, before that group added transgender legal issues to the mix, and indeed before the identity category “transgender” was in wide circulation. 

Historians of LGBT law in this period tend to emphasize how gay and lesbian “homophile” activists of the 1950s and 1960s promoted the idea that homosexuality was an identity rather than stigmatized conduct or medical pathology. In their efforts to organize against police harassment, they drew inspiration from the Black civil rights movement to portray homosexuals as an oppressed minority group. Despite changes in medical taxonomy and self-identification, police and courts did not easily differentiate between sexual orientation and gender identity. 

For homophile activists, that was part of the problem. To make the analogy sympathetic, they distanced their politicized homosexual identity from its former bedfellows—gender inversion, racial impurity, sex work, poverty, and crime. Their legal strategy reflected that analysis from the beginning as they mobilized gay identity to articulate a gay legal subject with protected rights to assemble, have sex, organize on campuses, work, and form families as gay people.  Those campaigns laid the groundwork for the constitutional arguments most associated with the contemporary LGBT movement: sexual privacy and the civil rights of “discrete and insular minorities” under the Equal Protection Clause of the Fourteenth Amendment. 

Unlike many gay rights legal claims of the same period, challenges to cross-dressing bans often succeeded without analogizing gender non-conformity to identity-based minority groups. The split in legal claims mirrored social transformation on the ground. Gender outlaws entered courts amid a major shift in how medical authorities and social groups understood the relationship between sexuality and gender, an epistemic change that Joanne Meyerowitz has called the “taxonomic revolution.”  In these formative years of movement and identity consolidation, gender outlaws strategically deployed and obscured their identities, exploiting confusion about gender-bending and playing off of courts’ ignorance. 

In some cases, challengers attempted to introduce the legal system to transvestites, transsexuals, and drag queens without closing the door on other gender outlaws. These efforts met with mixed success: courts began to recognize constitutional rights, but litigation also limited which gender outlaws would benefit. Some challengers sought to expand personal freedoms to include gender expression through clothing, but others yoked trans civil rights to medical authority, defining the trans legal subject as a person seeking medical treatment for pathologized transsexualism. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. It also emphasizes the role of legal institutions, alongside social life and medical discourse, in shaping the analytical categories of gender. Over time, one strand of gender outlaw experience consolidated and became legible to courts as a rights-bearing subject, which I call the trans legal subject. 

Three tactics typify the overall strategy. First, gender outlaws challenged cross-dressing bans for vagueness, inviting courts to invalidate the laws without asking judges to adjudicate, or even understand, their gender identities at all. In a second set of challenges, lawyers argued that cross-dressing was a form of expression protected by the First and Fourteenth Amendments. Under this theory, cross-dressing conduct could be protected regardless of the defendant's gender identity. In a final set of cases brought under the Eighth Amendment, lawyers did make claims based on a consolidated sense of identity, telling courts that cross-dressing was a treatment for medically diagnosed transsexuality. 

Many historians have noted the salience of gender non-conformity in anti-homosexual policing in the decades following World War II. But such policing was not limited to gays and lesbians, precisely because homosexuality was not thought apart from other stigmatized behavior. Police targeted a broad range of activities, which Emily Hobson has called “street life,” including Black and Brown youth culture, “homosocial contact among working-class men, homosexuality and gender transgression, sex work, and interracial contact of various kinds.”  Homophile activists believed that social inclusion and legal recognition required a more respectable image.  Many histories build from this foundation by following the homosexual once he was shorn of his seedier associations, leaving the subject of gender non-conforming policing both widely remarked upon and relatively under-studied. 

This article asks what happened to the gender outlaws who did not, could not, or would not see themselves in the new homosexual political identity. The answer reveals early constitutional arguments that gender non-conformity deserved protection on its own terms. It also invites a reconsideration of the contemporary LGBT legal movement. Legal histories often describe a gay and lesbian civil rights movement emerging from the ashes of gay liberation in the early 1970s, and only adding the “T” to LGBT in the 1990s. Returning to the history of the late 1960s and 1970s, however, suggests an alternative periodization in which campaigns for trans and gay civil rights sprouted from the same root, and grew in parallel. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group. 

The cases described in this article form a fractured archive of roughly thirty legal challenges from 1963 to 1986. They are national in scope, arising primarily in the West, Midwest, and Northeast, with some appearances in Texas and Florida. About two-thirds appear in published case reporters that include important details such as the names and affiliations of the attorneys and, in some cases, their written submissions. Other cases come from print media, mostly within gay, lesbian, transvestite, transsexual, and drag publications. The level of detail varies significantly, making it difficult to generalize about the attorneys who brought these cases or the arguments they raised. Regional branches of the American Civil Liberties Union (ACLU) made several important contributions, as did the national office after 1973, and one significant case was brought by a legal clinic at Northwestern University School of Law. 

Despite these limitations, this article tells a new story. Gender outlaws and their lawyers drew on the popularity of unisex clothing, movements for free expression, and emerging medical discourses on gender identity to argue that cross-dressing could be a benign fashion choice, a protected expression, or a necessary medical treatment for transsexuality. Their successes helped topple cross-dressing regulation in cities and towns across the country, but not without ambivalent results for gender outlaws on the whole. In order to make gender non-conformity legible to the legal system, lawyers translated the diverse array of gender outlaw experiences into a distinctly trans legal subject, defined by medicalized trans identity. Out of disjointed legal defense of gender outlaws emerged a transgender legal movement.

Identifiers

'Digital identity as platform-mediated surveillance' by Silvia Masiero in (2023) 10(1) Big Data and Society comments 

Digital identity systems are usually viewed as datafiers of existing populations. Yet a platform view finds limited space in the digital identity discourse, with the result that the platform features of digital identity systems are not seen in relation to their surveillance outcomes. In this commentary I illuminate how the core platform properties of digital identity systems afford the undue surveillance of vulnerable groups, leading users into the binary condition of either registering and being profiled, or giving up essential benefits from providers of development programmes. By doing so I contest the “dark side” narrative often applied to digital identity, arguing that, rather than just a side, it is the very inner matter of digital identity platforms that enables surveillance outcomes. 

Masiero argues

The term digital identity indicates the conversion of human identities into digital data. In digital identity schemes functions of identification, authentication and authorisation are performed digitally (Nyst et al., 2016): these functions indicate, respectively, the registration of individuals into identity databases, individuals’ ability to assert their own identity, and, as a result of that, their authorisation to access products or services. Built as an enabler of authorisation to access key services, digital identity has become part of efforts towards Sustainable Development Goal 16:9, to “provide legal identity for all including free birth registrations” (United Nations, 2015). Digital identity schemes are indeed meant to match subjects with their entitlements, preventing fraud and at the same time ensuring that correct provisions are supplied in development programmes (Gelb and Clark, 2013; Gelb and Metz, 2018). 

Countering this narrative, studies across disciplines have seen digital identity associated to erroneous exclusions of genuinely entitled users (Drèze et al., 2017; Muralidharan et al., 2020), as well as undue redirections of economic development policy (Masiero and Arvidsson, 2021). Coexistence of data-based social assistance with techniques of policing and profiling, resulting into what Iazzolino (2021) refers to as “infrastructures of compassionate repression”, has added to the same narrative. The result is that a digital-identity-for-development (D4D) orthodoxy, while diffused in policymaking, is systematically questioned on empirical grounds (Beduschi, 2019; Weitzberg et al., 2021). 

In portraying the digital identity orthodoxy and its problematisations, a view of digital identity systems as datafiers dominates the literature (Masiero and Shakthi, 2020). A datafier perspective views digital identity as a tool for the conversion of human beings into data: through that conversion subjects are matched to entitlements, preventing erroneous inclusion and exclusion (Gelb and Clark, 2013). But the same perspective illuminates how injustice is produced through digital identity, from the persistence of exclusion errors to undue profiling and enablement of policies that affect anti-poverty programme and aid recipients negatively (Martin and Taylor, 2021; Taylor, 2017; Weitzberg et al., 2021). 

Instrumental to understand data-induced injustice, a datafier perspective still leaves a gap: alone, it does not fully illustrate the core process through which digital identity operates. Illuminating such a process is a view of digital identity schemes as platforms where a core, a central ID database, serves as the basis for the construction of complements by third parties (Masiero and Arvidsson, 2021). A platform view suggests that platform features inform the outcomes of digital identity, from undue exclusions to distortion of social protection monitoring and redirection of policy away from people's needs (Masiero and Arvidsson, 2021). 

In this commentary I suggest that a platform view is essential to understand the workings of digital identity and, crucially, its surveillance outcomes. In surveillance studies literature, data-based profiling is teleologically linked to tracing and, in turn, to different modes of repression of the surveilled (Akbari and Gabdulhakov, 2019; Murakami Wood and Monahan, 2019). I argue that a platform perspective is key to understanding the roots of such outcomes, which stem from the core-complements architecture of digital identity systems. If it is so, the popular idea of a “dark side” of digital identity loses its meaning: rather than a “side”, it is the very architecture of digitally identity platforms to enable their surveillance outcomes. 

Three views of digital identity 

Masiero and Shakthi (2020) put forward a taxonomy of views of digital identity. In such a taxonomy, a datafier view is juxtaposed to alternative visions centred on platforms and routes to surveillance. 

Datafier view 

A long-established view sees digital identity in its role as a datafier, meant as a converter of individuals into data. In this perspective, as argued in Srinivasan and Johri (2013), technology creates “machine-readable men”, so that datafied individuals can be matched with their entitlements. This enables two core operations in social protection schemes: the recognition of entitled beneficiaries and, subsequently, the assignation of entitlements to them (Masiero and Das, 2019). Yet, it is the same view to back the study of digital identity injustice: exclusion of entitled users, diversion of entitlements from social protection programmes, and intrusions into humanitarian action are all predicated on a datafier vision (e.g., Chaudhuri, 2021; Madon and Schoemaker, 2021; Martin and Taylor, 2021). 

Platform view 

Integrating the datafier view, Masiero and Arvidsson (2021) illuminate a vision centred on the platform architecture of digital identity systems. In such an architecture, a core consists of the database where the demographic and biometric data of enrolees are stored. Upon the core, boundary resources such as Application Programme Interfaces (APIs) and Software Development Kits (SDKs) allow the construction of complements, which consist e.g., in public service agencies enabling access through digital authentication. In the platform view the functions of identification, authentication and authorisation theorised in Nyst et al. (2016) become evident: it is, however, the technical vision of platform components that overshadows its effects. Paradigmatically of this view, Madon et al. (2022) note that “the platform architecture provides scope for government to orchestrate the functioning of a range of local government and third-party players towards service delivery.” 

Surveillance view 

Beyond datafier and platform perspectives, a surveillance view is centred on the profiling and policing outcomes of digital identity. Instances are centred on linkings of access to digital identity data to police violence, capture and deportation (Akbari and Gabdulhakov, 2019; Murakami Wood and Monahan, 2019). A surveillance view confronts the D4D orthodoxy with the harm caused by profiling: Newell et al.'s study of the US-Mexico border (2016: 178) notes, for example, how research suggests “a causal link between the U.S. government's border control policies and rapidly increasing numbers of migrant deaths.” Differently from a platform view, whose focus is on platform architecture, a surveillance view centres on the surveillant outcomes that digital identity produces. 

All three perspectives are important in conceptualising digital identity, with the platform view holding more explicative power than it is commonly recognised. ...

Pretendians

In Woodley v. Cipolla, 2022 ONSC 7096 McDermott J considers OPCA arguments and a 'pretension' claim.

The judgment states

...   [5] However, this is not the only reason the litigation is challenging. John Cipolla is displeased by the direction of these proceedings and has brought collateral attacks on this application on at least three occasions. Firstly, on February 8, 2021, he brought six civil lawsuits against various defendants, including the Applicant, the Applicant’s partner, the Applicant’s lawyer, executives and counsel for Legal Aid Ontario as well as several members of the Applicant’s family. He claimed damages of $2,250,000 in each of these lawsuits (other than the lawsuit against the Applicant, against whom he claimed $3,250,000) for trespass against his property. The property in issue was stated to be his daughter, Vela. 

[6] John Cipolla decided as well to have recourse to an “alternative court”, namely the “Common Law Court, Great Britain and International.” In a “Lawful Notice” dated February 17, 2021 and filed by John Cipolla, he states that “the Common Law Court, Great Britain and International was created on the 11th June 2017, to address the failings in the statutory judicial system and to provide a lawful remedy for living men and living women, this would address all harm, loss and injury suffered.” The notice states that “the ONTARIO SUPERIOR COURT of JUSTICE had no authority over a living man or woman. This stance confirms that they are failing to comply with the Declarations of Arbroath 1320 and the Common Law Court 2018, they are therefore guilty of binding the people into slavery”. He accuses the Ontario Superior Court of Justice of “abuse of position, Theft of Property, Criminal Coercion, Uttering, the Failure to accept the positions of a living man or woman, Refusal to Comply with common law, Tyranny and Treason.” He demands that “the use of my property (VELA SUMMER CIPOLLA) must cease immediately.” 

[7] By endorsement dated March 8, 2021, Boswell J. of this court dismissed the six lawsuits under rule 2.1.01 of the Rules of Civil Procedure as being frivolous and vexatious. He called the lawsuits “nonsensical”. He also issued a second endorsement on March 24, 2021 addressing the “lawful notice”, calling it “rubbish” and warned Mr. Cipolla to “clean up his act” failing which he would be found to be a vexatious litigant. 

[8] As this trial date approached, John Cipolla decided to have recourse to another “alternative court”, being the ASKIT Judicial Tribunal of the Anishinabek Solutrean Metis Indigenous Nation (ASMIN). On May 22, 2022, that “Tribunal” purported to issue a “perspicacity” granting John Cipolla decision making concerning Vela. It is confusing as to where Vela was to live as it says that care would be shared equally but also stated that Vela’s primary residence would be with the Respondent Father in New York State. 

[9] Since that “decision” was issued, John Cipolla has only participated marginally in these proceedings. He says that the decision of the ASMIN tribunal usurps the jurisdiction of the Ontario Superior Court of Justice. He refused to participate in the Trial Scheduling Conference before Justice Douglas on October 19, 2022, and Justice Douglas stated that the respondent “does not recognize the jurisdiction of the court and did not meaningfully participate” that day. He reiterated his position on jurisdiction before Justice Wildman at the Trial Management Conference on November 30, 2022 and asked her “to note in this endorsement that ‘this matter has been dealt with in full by the ASMIN tribunal and is now closed.’” 

[10] Before and after the “decision” of the ASMIN tribunal, John Cipolla engaged in litigation conduct that would be grounds for disciplinary action had a solicitor committed these offences. His conduct can only be described as outrageous and disrespectful. In his March 24, 2021 affidavit, he referred to Mr. Herron, solicitor for the Applicant as “Jeremy unscrupulous Herron.” On October 31, 2022 after the Trial Scheduling Conference, he communicated by email directly to Justice Douglas, stating as follows: The attached UCC1, UCC1 amendments, PPSA Registration and International Apostille filings prove that I hold both legal and Equitable title to my estate and Legal Title to the VELA SUMMER CIPOLLA estate in my capacity as Secured Party Creditor (SPC), Holder-in-Due-Course (HDC), and Real Party In Interest (RPII). The Crown does, however, hold legal title to opposition, THE JESSICA WOODLEY ESTATE, since she (Jessica Woodley) is presumed to be a "minor" in the nature of Title 31 Code of Federal Regulations 363.6 or the equivalent, applicable Canadian law as a British subject held in trust. 

[11] John Cipolla suggests to Justice Douglas that he could file a security interest in Vela under the Personal Property Security Act and states that Since VELA SUMMER CIPOLLA (in commerce) is my property, I require an order, from you, that JESSICA WOODLEY (Jessica Woodley), and her Crown Trustee, be ordered to pay child support, for Vela Summer Cipolla (Vela), to John Cipolla in the amount of $10,000. monthly for the next 15 years (Vela's 22nd birthday/last year of college). 

[12] John Cipolla threatened court staff who were just doing their job. When the trial coordinator sent him the Zoom link for the trial, he accused her of harassment, stating that: This is the 3rd time that I’ve advised you, SCJ, Family Branch and Family Registrar team (and J Wildman today) that this matter was adjudicated in the ASMIN Tribunal last May and a final order issued- see my 11/22/2022 email with attachments A-G. In addition, I stated that if if I received anymore correspondence with respect to this matter from SCJ, Family Branch Registrars, TC, Judges or opposing counsel that it would be deemed by me to be a threat, harassment and intimidation and that I would file criminal charges. Do I need to seek a restraining order? Cease and desist immediately. 

[13] But most of his vitriol has been reserved to the judges who were involved in this matter. In 2021, John Cipolla accused Healey J. of this court of corruption and incompetence. He recorded a case conference before Graham J. on February 19, 2021 contrary to s. 136 of Courts of Justice Act. John Cipolla had a Trial Management Conference with Justice Wildman on November 30, 2022 and again breached s. 136 of the Courts of Justice Act and prepared a transcript of the hearing. He emailed Justice Wildman, accusing her of conspiracy, intimidating a court participant, and terrorism. He purported to send an invoice for $25,000 per day to Justices Douglas and McCarthy for “carrying out Endorsements” that they had issued in this matter and accused Justice McCarthy of fraud. 

[14] When John Cipolla found out that I would be doing the trial, he began to email me directly as well. He emailed me an affidavit that stated that the ASMIN Tribunal had exclusive jurisdiction n because of his aboriginal status. He said in his email that, as a result, “This concludes the matter in your court.” 

[15] The night before the trial, John Cipolla decided that he would have other members of ASMIN email me, other judges of the Superior Court in Barrie who have presided over this matter as well as the Chief Justice of the Superior Court of Justice, the Senior Family Judge and the Regional Senior Justice. Members of the Ontario judiciary suffered through 10 to 15 unsolicited emails throughout the night. The emails attached the decision of the ASMIN tribunal and typically stated as follows: The long standing abuses to indigenous are continuing despite UNDRIP One People's Federation. Attached pls find ASMIN Tribunal Notice including final order and Envoy appointment from G.C. Mukwa to colonial Superior Court Justice J. McDermot Notifying him that he needs to heed Indigenous Tribunals, laws, customs and traditions. 

[16] John Cipolla denied having anything to do with this when he spoke to the matter at the commencement of the trial on December 7, 2022, but this was untrue: his email of December 6, 2022 to other members of ASMIN was mistakenly included with one of the emails to the court and stated, “Aloha. Can all of you pls send an email blast like the one below to all the same emails, attach the ASMIN tribunal letter and bc me before 9:15 am this morning? If it’s after 9:30 am send it any way regardless.” The email contained the script noted above. It was clear that he was responsible for numerous emails being sent to various judges of this court demanding that the court decline jurisdiction in this case. 

[17] John Cipolla appeared at this trial but only to argue that this court had no jurisdiction over him or his daughter due to their aboriginal heritage. That issue was argued and I determined that the trial would proceed and the court had jurisdiction. John Cipolla then asked me if he was being compelled attend the trial and I told him he was not. He then said that he would not participate in the trial and left the zoom meeting before the trial was completed. The trial was based on the Applicant Mother’s evidence by affidavit sworn December 2, 2022. John Cipolla did not file an affidavit, call any evidence, cross- examine the Applicant, as he was entitled to do, or file any material other than the affidavit disputing jurisdiction, and by the time the Applicant Mother had completed her case, he had left the trial. 

Jurisdiction 

[18] John Cipolla says that this court does not have jurisdiction for several reasons: a. He says that he is indigenous and that the decision of the ASMIN tribunal has usurped jurisdiction from the Ontario Superior Court of Justice. b. He also, in his submissions, stated that his discharge of a bond has also removed jurisdiction from the Superior Court of Justice. 

[19] This application for a parenting order was brought by the Applicant under the provisions of the Children’s Law Reform Act. Under s. 22(1)(a) of the CLRA, jurisdiction in a proceeding is dictated by the residence of the child: if the child is “habitually resident” in Ontario at the commencement of proceedings, the Ontario court, in this case the Family Division of the Superior Court of Justice, has jurisdiction to address parenting issues. There is no doubt that this was the case with respect to Vela, who was then (as of the date the Application was issued) living with her mother in Port McNicoll, Ontario. Mr. Cipolla was also living in Port McNicoll on that date and confirmed as much when he filed his Answer and Claim by Respondent on September 11, 2020. There is no question that this court had jurisdiction to address this matter under the provisions of the CLRA when Ms. Woodley commenced these proceedings. 

[20] John Cipolla not only requested in his Answer that the application be dismissed; he also requested a parenting order to be made by this court. In doing so, he attorned to the jurisdiction of this court. However, he suffered a number of setbacks in this proceeding, including dismissal of two motions for shared care and then “100% access”, the granting of two orders returning the child to the Applicant Mother after he overheld the child, the dismissal of his lawsuits against the Applicant, her parents and Legal Aid and finally an order quashing his witness summonses to legal aid officials. Because of this, John Cipolla decided that it would be best for him to proceed to obtain a default “order” made by the ASMIN Tribunal. He believed that this forum would be more favourable to him and he was right. 

[21] It is important to note that John Cipolla did not properly take steps to have this court decline jurisdiction which he should have done prior to proceeding in another forum. The proper course of action would be to move that this court decline jurisdiction under s. 25 of the CLRA and then bring new proceedings. It was not good practice for John Cipolla to bring default proceedings elsewhere in the face of a properly constituted court and then present the order as a fait accompli. 

[22] The decision of the ASMIN Tribunal proceeded by way of default hearing. In that decision John Cipolla was given legal “decision-making” over Vela with equal shared care. The decision was confusing and conflicting: although the “perspicacity” says that care would be shared, it also says that the primary residence of Vela was with John Cipolla in New York State. It further provided that Ms. Woodley would pay $300 per month in child support as well as more than $36,000 in costs. The document states that, “This Decision amends and supersedes any previous or subsequent orders, endorsements or agreements of any family court in which these parties are litigating on Turtle Island, unless a Treaty among ASMIN - Canada - USA directs otherwise.” 

[23] John Cipolla’s argument was summed up in his affidavit sworn on November 22, 2022, referred to in argument and emailed to me (but not properly filed with the court) which stated as follows:

The ASMIN Tribunal is the only venue with jurisdiction since Vela and i are Indigenous and this action occurred on our unceded land- see attached Daniels v. Canada 2016 [17] where the sec recognized the Metis of eastern Canada, Art Ill of UNDRIP(2021) & OAS(1990) recognized the right of self determination, Tsilhoq'in (2014) [69] sec held that Terra Nullius never applied in Canada, in Desaultel (2021) [72] the sec held the Crown had a duty to consult when they have notice of a aboriginal right or title and Canada's Truth & Reconcilliation Report part 5 that protects Indigenous posterity. In 2021 i was appointed Envoy of ASMIN. 

[24] There has been controversy in the news recently concerning individuals who have falsely claimed First Nations ancestry to gain an academic or occupational advantage. Similarly, an individual or a group of individuals do not become First Nations based only on their say so or membership in an illegitimate organization. ASMIN appears to be such a group and there was no evidence of recognition of ASMIN as being a First Nations in Canada or the United States. Indeed, the group remains unrecognized by any aboriginal or governmental authority as a first nation in this province and it appears that anyone, regardless of indigenous status, can join ASMIN by payment of a fee of $225: see Mukwa v. Farm Credit of Canada, 2021 ONSC 1632 as aff’d by 2022 ONCA 320.   

[25] This is not the first time that a member of ASMIN has utilized the arguments noted above concerning aboriginal right or title. For example, arguments concerning unceded land and the Tsilhoq'in case were relied upon by Mr. Mukwa in an attempt to stop foreclosure proceedings in the Farm Credit case noted above. Both this court and the Ontario Court of Appeal made short shrift of those claims, and quickly dismissed them. Indeed, the Plaintiff in that case, Grand Chief Wabiska Mukwa, appears to be the decision maker in the “perspicacity” of the ASMIN Tribunal noted above.   

[26] Mr. Herron, in his submissions, stated that John Cipolla had engaged in tactics known as OPCA [Organized Pseudolegal Commercial Argument]. Those tactics were described by Rooke C.J.A. in Meads v. Meads, 2012 ABQB 571 as comparable to “medieval alchemy”; a vain attempt to turn base metals into gold but held out as legitimate. Rooke C.J.A. described the arguments made by OPCA litigants as mostly nonsensical and a purposeful abuse of the court system in order to achieve a result without addressing the merits of the litigation. This is because, as discovered by John Cipolla, OPCA litigants almost invariably have no reasonable expectation of litigation success based on the merits. Rooke C.J.A., in a detailed decision, notes a number of OPCA tactics, including:

• unique nomenclature and name motifs; 

• a concept that “everything is a contract”; 

• a denial that the court has jurisdiction over an OPCA litigant; 

• use of “obsolete, foreign, or typically otherwise irrelevant legislation”; and 

• egregious litigation conduct. 

[27] In argument, John Cipolla took great exception to the statement by Mr. Herron that he engaged in OPCA tactics. However, I believe that his strong reaction to this suggestion shows that he is well aware that he meets the standard criterion of an OPCA litigant. In fact, the individual who gave John Cipolla his “default” hearing, “Grand Chief” Wabiska Mukwa, was denounced in several cases as having used OPCA tactics: See Mukwa v. Farm Credit Canada, supra, Sarac v. Wilstar Management Inc., 2021 ONSC 7776 and National Bank of Canada v. Guibord, 2021 ONSC 6549. Mr. Mukwa was unsuccessful in all of those cases, mostly involving mortgage remedies or landlord and tenant issues. 

[28] John Cipolla used similar tactics in this litigation as were described by Justice Rooke in Meads, which was, as with the present case, a matrimonial cause where the Respondent sought to avoid disclosure obligations. Cipolla goes by the name of “i; a man; have no legal name only a christian name. John Cipolla: a man. SPC/HDC/RPII/Trustee/Bailee.” He has used unique documentation, including identification by thumbprint. He relies upon a selective reference to Supreme Court of Canada decisions, including a statement that there is a “right to consult” under Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 even though that was a land claims case, not one involving parenting of a child. He filed an article concerning the applicability of United States jurisprudence in Canada and questioned the promulgation of the British North America Act. He engaged in odious litigation conduct noted above. 

[29] However, John Cipolla focused his arguments on jurisdictional issues. In Meads, Rooke C.J.A. said [at para. 267]: A very common OPCA scheme category is that the OPCA litigant is in some manner outside the jurisdiction of the court or state, or is somehow rendered immune from legal obligations. This category has three general forms:

1. the jurisdiction of the court is restricted to certain specific domains, and the OPCA litigant falls outside those categories; 

2. the jurisdiction of the court is eliminated due to some defect; and 

3. the OPCA litigant is in some manner immunized from the court's actions. 

[30] John Cipolla cloaks his argument in the guise of indigenous rights. He says that he, along with Vela, is indigenous and that the only valid authority is the ASMIN tribunal. He issued a trespass notice concerning these proceedings. He argues a number of Supreme Court of Canada precedents saying that the Canadian or Ontario Courts have no jurisdiction because of the “right to consult” contained in the Tsilhqot’in Nation decision. 

[31] As noted, these arguments have been previously used by the “Chief Justice” of the ASMIN tribunal, Wabiska Mukwa, in his own litigation. In Sarac, Myers J. determined that the ASMIN tribunal was “not a domestic tribunal exercising a jurisdiction on behalf of a First Nation that has been recognized by the Court of Appeal for Ontario.” The order of the ASMIN tribunal in this case was certainly not recognized by the Saint Regis Mohawk Tribal Court and the John Cipolla has not demonstrated any valid reason why this court should recognize the order. 

[32] Finally, in Guibord, Mew J. found Tsilhqot’in inapplicable to the commercial dispute before the court in that case [at para. 13]: No duty to consult arises in this case because, as will be further discussed below, the pleaded dispute between the parties does not raise justiciable issues of aboriginal title, nor is the Crown a party. 

[33] That is the case here. This is a matrimonial cause involving the parenting of a child. To suggest that the Respondent Father has a proprietary interest in his daughter (by, for example, filing a PPSA security interest) is, in the words of Boswell J., offensive. The case at bar involves the best interests of a child, not the disposition of property or a land claim. There is no “right to consult” in the present case. 

 McDermot engaged with the pretendian issue in stating

[34] In Sarac, Myers J. spoke of the suggestion that ASMIN is defending Aboriginal rights: This country recognizes that real injustices have been inflicted upon its Indigenous communities including the Metis People. Litigants who try to avoid their financial responsibilities by wrapping themselves in the garb of Indigenous Peoples' real victimhood and suffering to tie up the courts with illegitimate and abusive claims deserve not another moment of court time or attention. 

[35] I cannot agree more. There is no question that Indigenous people in Canada, especially children, have suffered greatly and deserve redress and respect. To make arguments in an in personam case based on an Indigenous land claim supported by a made-up tribunal promulgated by an illegitimate organization posing as a First Nation does nothing more than a disservice to the efforts of Canada’s First Nations. It dilutes and cheapens legitimate claims by Indigenous peoples in Canada and deserves no consideration by this court, which must focus only on the best interests of the child who is the subject matter of this case. It is to be noted that John Cipolla could have addressed Vela’s Indigenous ancestry in the context of Vela’s best interests under s. 24(3)(f) of the CLRA. However, as far as I can see, he has never raised that issue in this court or in these proceedings. 

[36] Moreover, John Cipolla cannot complain about this court having jurisdiction when he had filed an Answer and Claim by Respondent requesting a parenting order. That Answer was never withdrawn. By filing the Answer in this proceeding, John Cipolla attorned to the jurisdiction of this court and confirmed that the Ontario Superior Court of Justice had the unquestioned authority to make parenting decisions concerning Vela. 

[37] There is also no evidence that Ms. Woodley agreed that the ASMIN tribunal had jurisdiction in this matter, especially insofar as the proceedings were noted as having been default proceedings. Moreover, even were that tribunal legitimate and even had Ms. Woodley attorned to that court, the jurisdiction of the Ontario courts is not necessarily dictated by attornment to any jurisdiction but rather the habitual residence of the child and the factors under s. 22 of the CLRA: see Murray v. Ceruti, 2014 ONCA 649 where the court stated [at para. 40]: However, assuming without deciding that the respondent did attorn, it is important to have regard to the role of attornment in a jurisdictional analysis under the CLRA. Attornment is not referenced in the CLRA. At most, it is a factor to be considered in the analysis mandated by s. 22(1)(b), and in the analysis of whether to decline jurisdiction under s. 25. On the facts of this case, it is not dispositive of either issue. 

[38] Finally, John Cipolla filed a document entitled “Discharge Document No. 3” which purports to be a discharge of a bond. There are a number of different documents contained in this filing, including a purported lien against the pleadings in this case, a “UCC Financing Statement” supposedly issued in Colorado, a “Hold Harmless and Indemnity Agreement” in favour of the “John Edward Cipolla Trust”, a “Common Law Copyright Notice” in favour of the said trust advising that this court was in breach of copyright law, a “Notice Concerning Fiduciary Relationship” and an “Affidavit of Truth” attaching discharged bonds. All of these documents appear to have been issued in the United States and many appear to be irrelevant to these proceedings. Many are confirmed by “digital fingerprint” and are largely incomprehensible and irrelevant. 

[39] During argument, John Cipolla asked me to confirm that this document deprived the Ontario Superior Court of Justice of jurisdiction. When I asked him how that could possibly be the case, John Cipolla told me to go and do my research. He was unwilling to explain to me how the document had anything to do with the case or the jurisdiction of the court, probably because the document was complete nonsense and incomprehensible. However, I suspect that these documents are related to the concept often relied upon by OPCA litigants that “everything is a contract” noted by Rooke C.J.A. in Meads, supra. The court’s review of the document confirms that it has nothing to do with this case or the best interests of Vela.