In R. v. Cooper 2023 BCPC 69 the Provincial Court of British Columbia deals with a range of OPCA arguments, pithily dismissed as bafflegab.
The Court states
[2] Mr. Cooper represented himself at trial. On the first day of the trial, he advised the Court that, while he was previously known as Kenneth Jeffrey Cooper, he preferred to be called “Tiberius Rex”, or just “Tiberius”. For the sake of clarity, I will refer to him throughout these reasons as the “Defendant”. ...
[5] On May 24, 2020, the Defendant was behind the wheel of a Mercedes Sprinter panel van, travelling eastbound on Highway 1. He was accompanied by Jennine Davis, who occupied the front passenger seat. The Defendant came to the attention of Cst. Halewood and other members of the Integrated Road Safety Unit who were conducting speed enforcement along the highway.
[6] Cst. Halewood testified that he measured the Defendant’s speed at 114 km/hr in a portion of the highway that was under construction. The posted speed limit in the construction zone was 60 km/hr. The Defendant was determined to be travelling 54 km/hr over the posted speed limit.
[7] The officers stopped the Sprinter van, and commenced an investigation. Nearly the entirety of the interaction between the Defendant and the investigators was recorded on a dashcam video recorder mounted in one of the police vehicles. Most of the interaction the police had with the Defendant inside the police vehicle was also audio recorded. As the Sprinter van was travelling at a speed in excess of 40 km/hr over the posted limit, the investigators determined that they must impound it, pursuant to ss. 148 and 251 of the Motor Vehicle Act.
[8] The Defendant was initially not forthcoming with his name, resulting in some delays and a modicum of acrimony between him and the investigators. Eventually the Defendant provided sufficient information for investigators to determine his identity.
[9] The Defendant raised three Charter issues at the outset. Firstly, that his s. 10(b) Charter rights were violated when, upon his arrest, he was not provided access to counsel without delay. Secondly, that his s. 8 rights to be free from unreasonable search and seizure were violated when the Sprinter van was searched without a warrant. Thirdly, his s. 10(c) rights pursuant to a claim of habeas corpus were violated when he was not transported directly from roadside to appear before a superior court justice to review the lawfulness of his detention. ...
[13] A further issue was raised during submissions related to the seizure of the Sprinter van’s keys from the Defendant. The Defendant submitted that he did not consent to the keys being taken from him. He said that he was forcefully directed to provide them to Cst. Miller during the vehicle stop. The Defendant submitted that this was an unlawful seizure, and ought to have been considered in the context of the voir dire as a further s. 8 Charter breach.
[14] There was some contention regarding how Cst. Miller obtained the keys. Cst. Miller testified that he asked the Defendant to provide the keys, and the Defendant did so. The Defendant testified that he was directed to turn over the keys to the van before he was placed under arrest. He said he complied because the officers “had the guns”.
[15] The Crown argued that the court had already determined that the vehicle search was lawful, given the police officer’s duty to secure and inventory the contents of any vehicle that is subject to impoundment. Mr. Campbell argued that the vehicle could not be impounded or inventoried without the keys. As the search of the van was deemed lawful, so should the seizure of the keys.
[16] I find the Crown’s argument to be compelling. The vehicle search and seizure was lawful. The officers had determined that the vehicle’s excessive speed would result in impoundment at the time they interacted with the Defendant, if not before. The keys were required to conduct the inventory search, which was lawful. It follows that Cst. Miller’s seizure of the keys from the Defendant was also lawful. ...
[18] The Crown tendered documentation showing that the Defendant was a prohibited driver on May 24, 2020. These documents were entered during the trial pursuant to s. 82 of the Motor Vehicle Act, and included:
1. A Notice of Driving Prohibition Certificate of Service, showing that the Defendant was served with a Notice of Driving Prohibition by Cst. Behm on April 8, 2015; and
2. A Certificate of Superintendent, confirming that the Defendant was prohibited from driving the entire day of May 24, 2020.
[19] Csts. Halewood and Shaw searched back of the Sprinter van prior to its impoundment. The officers seized from the van’s cargo compartment 16 cases containing 50 cartons of cigarettes each. The cases were placed in the rear of two police vehicles, and transported to the police detachment.
[20] Cst. Miller testified that he recognized the cigarettes as being Rolled Gold, a brand with which he was familiar from his former policing duties in Northern Manitoba. He said he understood the cigarettes were made on First Nation reserves in either Ontario or the United States, and that they were illegal to possess in British Columbia because they lacked taxation stamps. ...
[26] Cst. Grieff confirmed that each master case contained 10,000 individual cigarettes. Therefore, the total amount of tobacco seized from the Sprinter van was 160,000 cigarettes.
[27] Cst. Grieff testified that none of the tobacco products could be legally sold in British Columbia, even on reserve, because they lacked the required Excise Duty stamps. However, the officer said enforcement action was generally undertaken only when an individual is found with more than five cartons, as was the case here. ...
[31] Cst. Remming said the cigarettes were produced on a “native reserve”, likely one of several possible reserves in eastern Canada or the United States. He confirmed that many reserves manufacture cigarettes, and that they are legal when manufactured on reserve. He further testified that the cigarettes can be sold to Indigenous people who possess a Status Card. He explained that some First Nation reserves are able to apply for an exemption that allows them to sell the cigarettes on reserve lands exempt of provincial sales tax or any tax that would ordinarily attach to the sale of tobacco.
[32] Cst. Remming testified that one can purchase these cigarettes in British Columbia, and that some stores selling them are located close to main routes, such as highways. However, they can only be sold lawfully on reserve lands, and to Indigenous individuals who possess a valid Indian Act Status card.
[33] There was some discrepancy between the evidence of Csts. Grieff and Remming as to whether the seized cigarettes could be sold legally on reserves in British Columbia. Cst. Grieff said it was not lawful to sell or possess this tobacco in British Columbia, as it lacked the requisite Excise Duty stamp. Cst. Remming, however, testified in cross examination that the cigarettes could be sold lawfully on reserve land to First Nations residents who possessed a valid Indian Act status card, if the reserve had an Exempt Sale Retailer Dealer, or ESRD permit. Cst. Rumming did not clearly state that the tobacco was legal to possess on reserve in British Columbia, as he was not an expert in the legality of its possession on reserve lands. However, he did confirm that it was illegal to possess off reserve lands. ...
[38] The Defendant elected to call evidence. He testified in his own defence, and called two other witnesses.
[39] Ms. Henson is the Defendant’s mother. She testified that she gave him his birth name, Kenneth Jeffrey Cooper, but that he now goes by the name Tiberius. Ms. Henson was asked question about whether his legal name was registered with all capital letters; Ms. Henson said it was not.
...
[42] In his testimony, the Defendant admitted virtually all of the essential elements of each of the charges he faced. He acknowledged that he was operating the Sprinter van that was stopped and searched by the police officers. He claimed ownership of the boxes of cigarettes contained in the back of the van. The Defendant’s defence was not based upon a misapprehension of the facts, or strong disagreement with the Crown’s evidence. Rather, it pertained to his interpretation of the law, which involved a perceived authority to operate a motor vehicle while prohibited, and possess items deemed by the government to be unlawful.
[43] The Defendant described the “journey” he had been on since 2005 or 2006, which began with the bank initiating foreclosure proceedings upon his house. He said he began researching the law, and learned as part of his study that a person does not have to possess a driver’s license in order to operate a motor vehicle. The Defendant focused on the particular definition found in s. 95 of the Motor Vehicle Act. He said that the term “driving” had a specific meaning that did not pertain to him. He said he was not driving, but “travelling”, and therefore the strictures of the Motor Vehicle Act, which describe driving, did not apply to him. He argued that his right to move freely across the country was protected by s. 7 of the Charter. Based on his newfound understanding of the law, the Defendant said he began operating motor vehicles again, and continued to “travel” on roadways and highways.
[44] On May 24, 2020, the Defendant acknowledged he was operating the Sprinter van, and conceded that he was travelling over the 60 km/hr limit. He said he was only keeping up with other traffic, but for reasons unknown to him, he was stopped by the investigators while the other vehicles continued onward.
[45] The Defendant agreed that he had been served with the driving prohibition. He asserted that he was prohibited from driving for the province, not in the province. He appeared to draw an important distinction between the words for and in. As I understood it, the Defendant believed that the prohibition would only apply to him if he was a government employee, working and driving for the province of British Columbia.
[46] Regardless, it did not matter whether he was in violation of the Motor Vehicle Act, because he was not driving while prohibited. He explained that the act of “driving” made the car a vehicle, and therefore subject to the Motor Vehicle Act. He related the act of “driving” to a commercial activity contingent upon an employment relationship. That is to say, those who were driving were doing so as part of their duties as employees. The Defendant alleged that the definition of “driving” found in Black’s Law Dictionary made a clear link between the act of “driving” and the existence of a commercial relationship of one kind or another.
[47] The Defendant further argued that the only reason the van was searched was that the officers were “bored” while waiting for the tow truck to arrive. This was refuted by the officers who conducted the search, and I have already deemed the search to have been lawful.
[48] As for the cigarettes, the Defendant submitted that he was a “non-status Native”, and therefore the cigarettes were legal for him to possess. He said he purchased the cigarettes, and indeed the Sprinter van, so he could earn money with “side projects”.
[49] The Defendant argued that he had every right to purchase and transport the cigarettes, and could have as many as he wanted at one time as a “non-status Native”. He acknowledged that they were unstamped, and described himself as an unlicensed cigarette dealer.
[50] The Defendant made a further argument that pertained to the capitalization of his name in the information. As testified to by his mother, he said that his former name only had the first letter of each name capitalized. Additionally, six or seven years ago he changed his name to Tiberius. I gather the Defendant’s point was that, as his former legal name was not all capitalized, he should not be liable for the charges when his last name was all capitals in the Information.
[51] In his closing submissions, the Defendant explained his point of view in more detail. He said that all of Canada and British Columbia is a corporation. The laws and regulations drafted by the management of these corporations only applied to its employees, or those who worked for the government. He was not a government employee, but a private citizen. Therefore, none of the laws pertained to him: not the Motor Vehicle Act, and not the Tobacco Tax Act or the Excise Act.
[52] The Defendant also argued that he had an “off the books” understanding with a police officer in Abbotsford. He said that officers knew about him, and at least one of them agreed that if he “appeared legal”, the police would leave him alone. He provided no evidence to support this arrangement. Nonetheless, he submitted that, if one officer in Abbotsford allowed him to operate a scooter without complying strictly with the laws pertaining to motor vehicles, then officers throughout British Columbia ought to be bound to the terms of this arrangement, regardless of what motor vehicle he might be found to be operating.
[53] As for the legality of possessing unstamped cigarettes, the Defendant again asserted that federal and provincial laws bound government employees, not private citizens such as himself. He confirmed that, as a “non-Status Native”, he did not possess an Indian Act status card. When asked to confirm the nature of his Indigeneity (for example, if he was Metis or Inuit), the Defendant declined to answer, arguing that such a question was racist.
[54] The Defendant further argued that all of Canada was “native land”. He said this was a fact that provided a further defence to the tobacco charges. If it was legal to possess the tobacco on reserve land, the fact that much of Canada was unceded Native territory of one kind or another had the effect of rendering his conduct lawful. He argued that the cigarettes were produced on “native land”, but had to be transported to other places. If transportation of any kind was legal, then it must be legal for him to transport them as well.
[55] The Defendant submitted that he participated in a kind of shadow economy that operated alongside the government controlled economy, but outside of the strictures of provincial or federal regulation. Unstamped cigarettes were an example of a product that could be purchased within this shadow economy. In exchange for generally lower prices, consumers assumed some amount of risk. For example, there was no guarantee that the cigarette packages purchased in the shadow economy would have a uniform number of cigarettes in them, or that the content would be pure tobacco.
[56] As a further example, the Defendant suggested that he could legally purchase a pie from his neighbour. However, by agreeing to do so, he was assuming some level of risk, as there were no regulations to ensure the ingredients were uniform or safe. He would have no recourse if he became ill, as he would, had he purchased the pie from a government sanctioned vendor, such as a commercial store. He accepted that risk, and it was his right to do so because he was not a government employee.
[57] In sum, the Defendant’s position was that he had a right to operate outside the limits of government laws or regulations. He chose to opt out of mainstream laws, and thus they did not apply to him. Laws and regulations were in place to regulate the conduct of government employees, not private citizens such as himself.
[58] As a final argument, the Defendant stated he had not consented to the prosecution, and once again claimed habeas corpus. He equated the compulsion to participate in the trial to being held against his will. He was advised that the prosecution would continue with or without his participation. The Defendant thereafter continued to participate.
[59] The Defendant’s position resembles what has come to be known as Organized Pseudo-Legal Commercial Arguments, or “OPCA”. He says that as a living man and a natural born human, he possesses certain inalienable rights that transcend the rules and regulations thrust upon him by the corporate entities of British Columbia and/or Canada. As I understood him, the Defendant’s position was that he was entitled to behave in any way he deemed appropriate, so long as he did not physically hurt anyone. This included possessing items that he wanted to, whether or not laws, Acts or Regulations deemed it legal to do so.
[60] The Defendant has been polite and respectful throughout this prosecution. Nonetheless, his position is, at its core, untenable. It is baseless and without merit. I am encouraged to summarily dismiss such arguments as nonsensical bafflegab, and not waste the taxpayer’s money or the court’s time on submissions that have a zero chance of success (see Meads v. Meads, 2012 ABQB 571; and R. v Hardy, 2022 BCPC 189 at para. 1, among many other decisions). I feel, nonetheless, compelled to make a few comments.
[61] Firstly, with respect to the Driving While Prohibited charge. I find it astounding that the Defendant would think it was a useful exercise to argue that he was “travelling”, and therefore not “driving”.
[62] He relied on an alleged definition of “driving” found in Black’s Law Dictionary to support his position that, by changing the name of the activity, he would avoid liability for it. The Defendant supplied no definition from Black’s Law Dictionary. Nor did he explain how such a definition, if it existed, would impact the Motor Vehicle Act.
[63] The British Columbia Court of Appeal, however, did grapple with the definition of “driving” as it pertains to the Motor Vehicle Act, in R. v. Steeden, 1995 CanLII 344 (BC CA). The facts in Steeden are dissimilar to those in this case. The issue in Steeden was whether failing to apply a parking brake before disembarking from a motor vehicle which had been parked with the engine off constituted an act of driving.
[64] Nonetheless, at para. 9, the Court of Appeal referenced Black’s Law Dictionary (5th Ed.) in defining driving as follows:
To urge forward under guidance, compel to go in a particular direction, urge onward and direct the course of.
[65] The Court also referenced the Shorter Oxford English Dictionary (3rd Ed.) definition of the verb “drive”:
To urge onward and direct the course of (a vehicle or the animal which draws it, a railway train, etc.);...to cause to move along.
[66] The Court discussed these definitions in the context of the Motor Vehicle Act at para. 13, concluding as follows:
It is my view, that when it is intended to describe conduct in relation to a motor vehicle, the ordinary meaning which attaches to the verb “drive” in the English language is one that combines the elements of movement and control; movement of the vehicle and control of that movement by the person said to be driving.
[67] I accept this is a valid definition of driving for purposes of the Motor Vehicle Act, and I consider myself bound to follow it in the circumstances of this case.
[68] Pursuant to s. 2 of the Motor Vehicle Act, a “motor vehicle” means a vehicle, not run on rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment, a motor assisted cycle or a regulated motorized personal mobility device. Clearly, the Sprinter van was a “motor vehicle” as defined in the Motor Vehicle Act.
[69] Giving effect to the Defendant’s argument would be the worst example of elevating form over substance. It would render virtually any law meaningless, merely by referring to the prohibited conduct by another name. One could not be convicted of shoplifting when they were simply repurposing unsold goods for personal use. Assault would no longer be criminal, when the Defendant was guilty only of intentional force application absent consent. Murder would be allowed as purposeful non-consensual early life termination.
[70] I give little consideration to the Defendant’s argument that laws and regulations are only meant to direct the conduct of government employees. That argument falls under the rubric of nonsensical submissions that deserve summary dismissal. Like it or not, one cannot simply “opt out” of the laws and regulations with which one does not agree.
[71] Society provides many benefits to its citizens, including the construction and maintenance of roadways to allow for free travel. In exchange for so doing, citizens are bound by the rules that dictate how these collectively owned assets are to be utilized. Driving is a privilege, not a pre-ordained human right. That is the cost of society, of technology, and of community. As it has been said at least since the 1930’s, “there ain’t no such thing as a free lunch.” If one is unprepared to abide by the laws and regulations that govern the privilege of driving, one can simply choose not to drive.
[72] I further dismiss the following of the Defendant’s arguments on the basis that they are meritless and deserving of summary dismissal because they have no chance of success:
1. That he is not Kenneth Cooper, but rather Tiberius or Tiberius Rex, and by changing his name, he has disassociated himself from the person charged with these offences. I am satisfied that the Defendant is the one who is alleged to have committed the offences.
2. That, because the Defendant’s former name appears in all capitals in the information, and the name given to him by his mother was not so capitalized, somehow this has bearing on the ability of the prosecution to pursue the matter against him. It does not.
[73] It is clear that the Defendant was driving the Sprinter van on May 24, 2020. He said in his evidence that he was, even though he called it “travelling”. It is equally clear, and admitted by him, that he was prohibited from driving the entire day of May 24, 2020. ...
[84] Finally, the “due diligence” defence described in s. 233 is inapplicable, as the Defendant exercised no due diligence to prevent the commission of the offence. He simply considered himself not to be bound by laws, acts or regulations pertaining to the possession of unstamped cigarettes. ...
[95] Additionally, the Defendant characterized himself as a “non-Status Native”, and argued that this entitled him to possess unstamped tobacco in any amount he wished. He further argued that all of Canada is “native land”; as such, possession of these products anywhere in Canada is lawful.
[96] These defences fall under the rubric of specious arguments that ought to be summarily dismissed. It is clear that the Defendant was stopped on Highway 1, in an area that was not part of any designated First Nation reserve. I reject his argument that all of Canada is “native land”, and therefore he ought to be exempt from these charges. If I was to accept this argument, it would render the entire taxation scheme for tobacco products in British Columbia unenforceable. There would be no need for taxation stamps, as there would be no possession off reserve lands. Clearly, that was not the intention of the Legislature in enacting the Tobacco Tax Act or Regulation. It is a philosophical argument put forth for the purpose of shirking liability for these regulatory offences. It is not a defence to the possession charges faced by the Defendant.
[97] Similarly, the Defendant baldly asserted that he was a “non-Status Native” without:
1. Any explanation as to what that meant; or
2. How his claim of being a “non-Status Native” would impact his ability to possess the tobacco products.
[98] Section 98(2) of the Offence Act, [R.S.B.C. 1996] C. 338 stipulates:
(2)The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
[99] I found no wording in the Tobacco Tax Act or Regulation that referred to exemptions that exist for “non-Status Natives”. Nor was I pointed to any enactment that would indicate such an exemption existed. Given prima facie evidence of unlawful possession, and pursuant to the operation of s. 98(2) of the Offence Act, without any basis to conclude that an exemption exists, I summarily dismiss the Defendant’s claims on the basis that they are devoid of merit.
[100] The Defendant made a further claim that common law, or Caesar’s law as he called it, operated to overrule any rules enacted by government. Therefore, none of the Acts or Regulations he is alleged to have violated have any force or effect. I dismiss this argument as being simply untrue.
[101] The Defendant suggested that this prosecution was fundamentally unfair because in some circumstances, some exemptions exist for some people, and not others. He used as an example the fact that individuals devoted to the Sikh religion do not have to wear helmets. Presumably he was referring to Sikh individuals riding bicycles or motorcycles.
[102] The idea that because some because people are validly exempted from the law, therefore all people should be exempted from the law, is intellectually unsound, patently false and deserving of summary dismissal.
[103] The Defendant’s claim that his right to travel freely through the country was violated is also dismissed. His travel is subject to the rules and regulations that govern that form of travel, including the Motor Vehicle Act.
[104] Finally, the Defendant’s argument that since he did not consent to this prosecution, somehow it was unlawful, is summarily rejected. Such a claim is deserving of no further comment. It is not a valid use of taxpayer-funded resources to refute manifestly unsound, baseless conjecture.
