In Re Finocchiaro; Ex parte The Proper Officer [2023] NTSC 23 the Court, in dealing with refusal to seal two writs, states
[12] The second writ that Mr Finocchiaro seeks to have sealed was received by the registry on 8 February 2023. This document purports to bring an action against the Commonwealth of Australia for “punitive damages” for infringement of Mr Finocchiaro’s religious rights as a person of the Christian faith. In summary, his concern is that the practice of the Registrar of Births, Deaths and Marriages in using capital letters in the printing of his name on his birth certificate creates a graven image contrary to Biblical scripture, in particular the Second Commandment, and is offensive to his religious convictions.
[13] This proposed writ does not contain any facts or matters that could found a cause of action that could possibly succeed. The mere use of capital letters in a document could never found any claim at common law or under statute.
[14] The proposed writ refers to a supposed law of the Commonwealth described as the “Registration of Births, Deaths and Marriages 1963 Act of Parliament compelling every state and territory to enforce the registration of names at birth”. No such statute ever existed. From his submission it appears that Mr Finocchiaro was referring to the Registration of Births Deaths and Marriages Act 1963 (NI), a continuing law of Norfolk Island.
[12] Mr Finocchiaro’s interpretation of that law, which has only ever applied in Norfolk Island, is plainly incorrect and cannot support his claim.
[15] It follows that I agree with the Proper Officer that this proceeding would be an abuse of the process of the Court if commenced, and the originating process should not be sealed.
[16] Finally, I note that some of Mr Finocchiaro’ correspondence includes a “declaration of sovereignty” and that the proposed writs refer to an “Affidavit and Declaration of Sovereignty Status” and an “Affidavit of Truth Declaration” having been sent by him to various government and public officials. For completeness, I record that such “declarations of sovereignty”, however described, have no legal basis or effect and do not provide any foundation for the proposed proceedings.
In AVI v MHVB, 2020 ABQB 489 Graesser J states
[1] Pseudolaw is a collection of spurious legally incorrect ideas that superficially sound like law, and purport to be real law. In layman’s terms, pseudolaw is pure nonsense.
[2] Pseudolaw is typically employed by conspiratorial, fringe, criminal, and dissident minorities who claim pseudolaw replaces or displaces conventional law. These groups attempt to gain advantage, authority, and other benefits via this false law. In Meads v Meads, 2012 ABQB 571 [Meads], Associate Chief Justice Rooke reviewed many forms of and variations on pseudolaw that have been deployed in Canada. In his decision, he described populations and personalities that use these ideas, and explained how these “Organized Pseudolegal Commercial Argument” [“OPCA”] concepts are legally false and universally rejected by Canadian courts. Rooke ACJ concluded OPCA strategies are instead scams promoted to gullible, ill-informed, and often greedy individuals by unscrupulous “guru” personalities. Employing pseudolaw is always an abuse of court processes, and warrants immediate court response: Unrau v National Dental Examining Board, 2019 ABQB 283 at paras 180, 670-671 [Unrau #2].
[3] To date Canada has weathered two waves of pseudolaw. In the 2000 “Detaxers” held seminars and taught classes on how to supposedly avoid paying income tax, for example by claiming that ROBERT GRAESSER is a legal person and a taxpayer, while Robert-A.: Graesser is a physical human being and therefore exempt from tax: Meads at paras 87-98. The Detaxers faded away by the end of that decade as their schemes consistently failed, and their gurus were charged, convicted, and incarcerated: e.g. R v Porisky, 2016 BCSC 1757, aff’d 2019 BCCA 159; R v Watts, 2016 ONSC 4843, aff’d 2018 ONCA 148, leave to appeal to SCC refused, 38141 (27 October 2018); Donald J Netolitzky, “The History of the Organized Pseudolegal Argument Phenomenon in Canada” (2016) 53:3 Alta L Rev 609 at 624 [Netolitzky, “History”].
[4] Next came the Freemen-on-the-Land, a group founded by street comedian Robert Arthur Menard: Netolitzky, “History” at 624-27. Freemen claimed that Canadian law only applied to them if they consented to it, and, unsurprisingly, Freemen usually didn’t. Unpleasantly, many Freemen turned out to be criminals who decided to “opt out” of being subject to narcotics and firearms legislation, and even prohibitions against sexual assault of children: Unrau #2 at paras 194-198; R v Berg, 2019 ABQB 541. Freeman activity peaked in the early 2010s, and in the following years Freemen were encountered less and less in Canadian courts, at least in part again due to the fact that Freeman pseudolaw was no more successful than the schemes promoted by Detaxers: Netolitzky, “History” at 626-627.
[5] However, the wheel of time grinds on, and so it is not surprising that this new decade has brought with it an emerging and different pseudolaw community, or “movement”: Meads at paras 168-198. Over the past several months judges and officials in Alberta Courts have been receiving peculiar nearly identical “fill-in-the-blank” boilerplate documents with titles like “Notice of Lawful Objection & Declaratation of Standing in Law” [sic] (see Appendix “A”) and “Notice of Conditional Acceptance” (see Appendix “D”). These documents are emblazoned with a strange crest titled “Practical Lawful Dissent” (see Appendix “E”). The authors of these items declare that they have sworn an oath of allegiance to Lord Craigmyle of Invernesshire, and say that on that basis they are outside Canadian law. This extraordinary claim is allegedly the result of Article 61 of the 1215 Magna Carta and the actions a group of rebel barons whose resistance to Crown treason, strangely enough, began in 2001, almost eight centuries after the death of King John in 1216. ...
[8] This decision has two objectives:
1. to reject Robinson’s attempt to engage the Court as an interloper in other individuals’ affairs, and to evaluate whether additional steps are potentially warranted in response to Robinson’s developing misconduct; and
2. to examine and refute the pseudolaw concepts that Robinson is employing, and apparently teaching to others.
... The rule of law does not countenance proceedings that are frivolous, vexatious, and an abuse of process, and OPCA litigation falls in all three categories. ...
[11] “Jacquie Phoenix” has been sending documents to Alberta Courts on her own behalf as well. In these documents she self-identifies as “Jacquie Phoenix, Sovereign Woman Living on the Land, Legal Beneficiary / Soul Administrator To the Trust of the Legal Fiction Known as Jacqueline Robinson”.
[12] This confusing and nonsensical language indicates that Phoenix/Robinson subscribes to a pseudolaw concept called “Strawman Theory”. It is very cult-like and is best equated with works of science fiction. Strawman theory has been described as an exorcism ritual pretending to be law: Donald J Netolitzky, “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” (2018) 55:4 Alta L Rev 1045 at 1069-1078.
[13] This theory is described in Meads at paras 417-446; Pomerleau v Canada (Revenue Agency), 2017 ABQB 123 at paras 67-88; and Potvin (Re) at paras 83-92; 110-120. Strawman Theory purports that people have two halves: 1) a physical “flesh and blood” element that is outside the authority of governments, police, and courts, and 2) the “Strawman”, an immaterial legal aspect that is subject to “conventional” authority. There are many Strawman Theory variations. In most the two halves of the duality are identified by letter case and punctuation, where mixed case names are human beings, and all capitals names are the Strawman.
[14] In Phoenix/Robinson’s case she is calling her physical half a “Sovereign Woman Living on the Land”, and that “Sovereign Woman” is called “Jacquie Phoenix”. The Strawman half is “Jacqueline Robinson”, a “Legal Fiction” “Trust”. “Phoenix” appears to be claiming she is the beneficiary and administrator of this “Trust”. These variations on the overall Strawman Theory concept have no legal relevance or merit. As Master Schulz observed in Pomerleau v Canada (Revenue Agency) at para 83, different versions of Strawman Theory are “nothing but the Strawman tarted up in a new dress.”
[15] All this is a whole lot of nothing. Canadian Courts have for twenty years rejected Strawman Theory. It was a keystone of many Detaxer theories and failed: Meads. Robert Arthur Menard promised his Freemen followers they did not have to follow the law - only their “legal fiction” Strawman did. That also did not work. Instead Freemen and other OPCA litigants went to jail (e.g. R v Berg; R v Zombori, 2013 BCSC 2461, aff’d 2016 BCCA 9), lost their homes (e.g. Potvin (Re), 2018 ABQB 652; Knutson (Re), 2018 ABQB 858; Scotia Mortgage Corporation v Landry, 2018 ABQB 951), and had access to their children restricted or terminated (e.g. CP (Re), 2019 ABQB 388; ANB v Hancock, 2013 ABQB 97).
[16] The Strawman duality is so notoriously false that simply asserting Strawman Theory creates a presumption that the person who advances this concept does so in bad faith and for an abusive and ulterior purpose: Fiander v Mills, 2015 NLCA 31 at paras 37-40. The Supreme Court of Canada has repeatedly rejected leave applications based on Strawman Theory concepts: Donald J Netolitzky & Richard Warman, “Enjoy the Silence: Pseudolaw at the Supreme Court of Canada” (2020) 57:3 Alta L Rev 715.
...
V. Pseudolaw Concepts
[37] The documents that Robinson, MHVB, and other aligned individuals have sent to this Court are obviously OPCA materials and attempt to implement a pseudolaw scheme to defeat state and court authority. This particular variation on pseudolaw appears to be new, at least in Canada. This decision is therefore a useful opportunity to investigate, document, and dismiss these Magna Carta Article 61 claims as legally false, spurious, and factually absurd.
A. The Magna Carta Lawful Rebellion Scheme
[38] First, I will indicate my understanding of what the documents that have been received by the Court from Robinson, MHVB, and others are intended to do, and how they purport to achieve that result. As far as I am aware no court in Canada or the Commonwealth has to date responded to this new OPCA scheme so I will name it “Magna Carta Lawful Rebellion” or “MCLR”.
1. MCLR Language and Terminology
[39] Many of the terms and much of the language used in MCLR materials is vague, inconsistent, or apparently simply invented out of thin air. I will provide several examples.
[40] Robinson’s July 27, 2020 document says “... [t]he Court of Queens Bench is an Unlawful Assembly ...” [sic]. Correspondence from “EZuk P.P. Jacquie Phoenix” says either a court officer or the Court is “operating as a Foreign Corporation”. MHVB’s “Notice of Lawful Objection & Declaratation of Standing in Law” says all courts are “Private Corporation Businesses ... run by criminally established private corporation enterprise”. So, what is it? Are courts an “Assembly”, “Foreign Corporation” or “Private Corporation”? Does Robinson know what the words “Assembly” and “Corporation” mean?
[41] Robinson’s documents invoke “the Constitution and the People of the Commonwealth Realm”. What are these? Is Robinson identifying the Canada’s Constitution: The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11? How about the constitutional documents of other Commonwealth nation states? Or is she referring to something else, a universal constitution of all Commonwealth tradition nations? MCLR documents (e.g. Appendix “A”) also refer to a “English and Commonwealth constitution”. If the latter alternative is what is intended then I have never heard of any such thing. None of the materials received to date from MCLR adherents indicate where the “Constitution” they claim to enforce might be located and read.
[42] Another example is Robinson’s materials frequently mention that something called the “Constitutional Royal Protocol” has been “invoked”. While that phrase sounds impressive, “Constitutional Royal Protocol” does not appear anywhere in the UK BAILII (www.bailii.org) database that contains hundreds of thousands of reported cases from across the UK and archives all UK legislation. This phrase is also never mentioned in the Australian and New Zealand AustLII (www.austlii.edu.au) and Canadian CanLII (www.canlii.org) court decision and legislation databases. A search of “Google Books” for “Constitutional Royal Protocol” located nothing that related to the UK, the Commonwealth, or Canada. It looks like this phrase was simply made up by the MCLR’s progenitors.
[43] As a further example I also checked caselaw databases to validate whether any UK, Australian, New Zealand, Republic of Ireland, or Canadian court had referenced or applied the “Maxim in law: “Any act done by me against my will is not my act”” (see Appendix “D”). Courts in all those jurisdictions had apparently never heard of this “Maxim”. That is nothing new, as OPCA litigants make up imaginary “Maxims of Law” all the time: e.g. Rothweiler v Payette, 2018 ABQB 399 at paras 42-50.
[44] Since the language and terminology used in MCLR documents has at best a tenuous relationship to recognized legal or constitutional concepts I am not going to try to structure my understanding of what these materials claim to do in a “conventional” way, but instead use MCLR adherents’ own frame of reference. I caution the reader that this approach does not necessarily make MCLR claims any more coherent.
2. The MCLR Process
[45] The first step in the MCLR process appears to be that the MCLR adherent swears allegiance to a UK nobleperson pursuant to Article 61 of the Magna Carta of 1215. MHVB’s “Oath of Allegiance” is reproduced in Appendix “H”. Curiously, Article 61 was repealed within a short time from the signing of the original Magna Carta and was not re-introduced in any of the replacement Magna Cartas.
[46] In any event, this step purportedly changes the MCLR adherent’s “standing in law” via “lawful excuse” so that the MCLR adherent is no longer subject to legislation, courts, police, or government actors who are guilty of “High Treason” for failing to abide by “Constitutional law” and “Common Law”. I note that when OPCA litigants use the term “Common Law” they do not mean accumulated judge-made legal principles that result from court decisions, but instead some kind of obsolete historical past state of law or natural law: Meads at paras 336-340.
[47] To date all MCLR “Oath of Allegiance” documents have been directed to Lord Craigmyle of Invernesshire. I suspect Lord Craigmyle was chosen by the instigators of this plan because he was one of the peers in the House of Lords who signed a petition to Queen Elizabeth in 2001 in opposition to the UK’s ratification of the European Union’s [“EU”] Treaty of Nice. That Treaty increased the powers of the EU Parliament over the member nations.
[48] Twenty-eight peers signed a petition to the Queen asking her to withhold royal assent from any legislation attempting to ratify the Treaty. They invoked Article 61 of the Magna Carta. These peers alleged that the effect of the Treaty of Nice was to surrender the British People’s powers to the EU. Ratifying the Treaty was characterized as an act of treason. These peers declared themselves to be in “lawful rebellion”, acting under the Magna Carta. They alleged that the effect of the Treaty of Nice was to surrender the British People’s powers to the EU. That was characterized as an act of treason. These Lords declared themselves to be in “lawful rebellion”. Nothing came of their revolt and the Treaty of Nice was ratified by the UK.
....
[51] Lord Craigmyle of Invernesshire has no connection to the Magna Carta. He is the great- grandson of the first Lord Craigmyle of Invernesshire, who was a politician and judge. The peerage dates to May, 1929. Lord Craigmyle is not descended from any of the rebel barons from 1215.
[52] According to a refreshingly candid interview with Lord Craigmyle on YouTube (https://youtu.be/RevKbM1L981), he didn’t know exactly what he was doing when he signed the petition, but thought it might be helpful in the opposition to the Treaty. Since then he has received thousands of letters from people claiming to have sworn an oath to him. He does not know what to do with them. There were at the time, he says, too many to read.
...
[55] I am reluctant to use YouTube, Google and Wikipedia information as legitimate sources of information. They can be sources of illegitimate information. Internet searches are rife with references to Article 61 and promoting disinformation about it and what may have been its first purported use in 2001. Simply type in “magna carta article 61” and follow the numerous links. It would appear from my research that use of Internet tools is the only way of finding information on cult-like groups such as OPCA adherents. Some of my search results are reported later in this decision. Absent any other information from more conventional sources, I must consider what I have been able to glean.
[56] The current Lord Craigmyle enjoys no prominence on the Internet and there is nothing indicating that he is seeking followers, or that there is any particular reason to follow him. There is also no indication that he is living a rebellious life free from adherence to any of the laws of the United Kingdom.
[57] Regardless of any mystery surrounding Lord Craigmyle and his connection with the aftermath of the failed 2001 petition to Her Majesty, a MCLR adherent who has sworn allegiance to Lord Craigmyle then declares their rebellion status by sending a series of documents to court justices, and perhaps other government and state officials. MHVB has so far sent three such documents to Associate Chief Justice Nielsen of this Court:
1. “Notice of Lawful Objection & Declaratation of Standing in Law” dated July 5, 2020 (Appendix “A”);
2. “Notice of Default and Opportunity to Cure” dated July 20, 2020 (Appendix “B”); and
3. “Notice of Default” dated August 5, 2020 (Appendix “C”).
[58] Summarizing these documents, the “Notice of Lawful Objection” declares that MHVB is no longer subject to conventional legal authorities because they are traitors and quislings who have subverted the true “Common law”. MHVB instead has sworn allegiance to UK barons who in 2001 invoked the 1215 Magna Carta. ....
[61] Canadian courts have seen OPCA documents of this general type many, many times over the past 20 years. These are a “Three/Five Letters” scheme, which I will discuss in more detail below. Based on previous experience the Court will now receive one or two more documents that “seal the deal” further and/or (purportedly) impose more obligations and/or penalties on Associate Chief Justice Nielsen. ...
3. The New Rebellion of 2001
[63] History reports that in 1215 English landowners, “barons”, rebelled against King John, who was then the monarch of that realm. After negotiations between the two sides on June 10, 1215, King John assented to terms and conditions on his conduct that are known as the Magna Carta of 1215. While that did not end the political scheming in medieval England, and the occasional subsequent civil war, as far as I knew the historic meeting at Runnymede had settled the baron’s complaints vs that monarch.
[64] I was surprised to learn that had been a revolt of the “barons” in 2001. Some MCLR documents attach as exhibits items that relate to these new rebels, their complaints, and what they did about that.
[65] First is a document titled “The Barons petition 2001” [sic], which purportedly was “presented under clause 61 of Magna Carta 1215” to Queen Elizabeth II on February 7, 2001. This document complains that the UK’s “national independence” and “ancient rights, freedoms and customs” have been lost and eroded since the UK joined the EU. The document focuses on the 2000 Treaty of Nice, warning that this treaty would cause further “losses of national independence”, would “introduce an alien system of criminal justice”, abolish habeas corpus and jury trials, allow foreign militaries (“men at arms”) into the UK, subvert the UK military’s chain of command, and impose an alien “Charter of Fundamental Rights”. The authors of this “petition” therefore say the Queen ought to withhold Royal Assent to any legislation that ratifies the Treaty of Nice. This document is signed by 28 Peers, including Lord Craigmyle. For convenience I will call these individuals the “new rebel barons”.
[66] So, in short, “The Barons petition 2001” has a fairly narrow focus. The 28 new rebel barons seek that Queen Elizabeth II block implementation of the Treaty of Nice. I note the 28 new rebel barons have nothing to say about Canada. They have nothing to say about the Commonwealth. This is a political demand, of a kind, by a group of hereditary nobles in the UK, concerning UK governance.
[67] MCLR documents also include a second document, dated March 23, 2001, purportedly a letter invited by the Queen and addressed to Sir Robin Janvrin, the “Queens Private Secretary” [sic]. This document repeats that the new rebel barons complain that the Treaty of Nice conflicts with the “Constitution of the UK”, the Magna Carta, the Bill of Rights, and the Queen’s Coronation Oath. The new rebel barons expand on the various rights they indicate are being affected or eliminated by enacting the terms of the Treaty of Nice.
[68] The new rebel barons declare that government ministers who are implementing the Treaty of Nice are already oath-breakers. The writers state the Coronation Oath is a signed contract, and that if the Queen does not block implementation of the Treaty of Nice, then she has breached that contract, and, with that, the UK descends into chaos:
The Coronation Oath is a moral obligation, a religious obligation, a sworn obligation, a contractual obligation, a statutory obligation, a common law obligation, a customary obligation, an obligation on all who swear allegiance, it is the duty of government, and it is sworn for the nation, the commonwealth and all dominions.
The Coronation Oath is the peak of a pyramid, and all subordinate oaths are bound by its limitations. The armed services swear allegiance to the sovereign, not to the government of the day. This helps clarify the principle that allegiance is necessary, and not optional - an essential part of the checks and balances of our constitution. Without these oaths, and their lawful enforcement, we have little to protect us from government by tyranny.
[Emphasis in original.]
...
[70] And that is it, at least as far as the MCLR materials that document how in 2001 the new rebel barons invoked Article 61 of the 1215 Magna Carta and, purportedly, struck the spark to start a new rebellion so that MCLR adherents may swear allegiance and then ignore treasonous and seditious UK (and Canadian) authorities. But the March 23, 2001 letter to the Queen does not actually say that. The new rebel barons instead declare they are Queen Elizabeth II’s “most loyal and obedient subjects”. The most they seek is to form an advisory committee. Where’s the revolt? The call to arms and resistance?
[71] Did the new rebel barons in 2001 truly send the UK into constitutional disorder? I think I may take judicial notice that no bands of sworn oathsmen and women headed by the new rebel barons (let alone by Lord Craigmyle as their leader) have been seizing castles and other royal property across the UK over the past nearly 20 years. I am no UK constitutional scholar, but reading the plain text of the materials found in Robinson’s MCLR documents leads me to conclude that the purported baronial rebellion of 2001 was nothing more than political drama, theatre, and showmanship. I have seen nothing in my own research to the contrary.
B. Magna Carta Article 61
[72] Beyond the remarkable alternative history that I have just recounted and a baronial revolt and revolution that apparently no one in the UK has noticed, there are many historical, legal, and logical errors and misconceptions in Robinson’s scheme to escape court, state, and police authority via the Magna Carta. I do not intend to deal with these in great detail but should comment on these fallacies lest they be repeated in other proceedings by other MCLR adherents.
1. The 1215 Magna Carta was repealed in 1216
[73] King John died in 1216 and the rebel barons and King John’s son, Henry III (through his regents) came to a new arrangement: the Magna Carta of 1216. That document eliminated Article 61, such that the Article 61 lawful rebellion process essentially died with King John. Subsequent iterations of the Magna Carta did not include Article 61 or anything like it. Thus, MCLR adherents are relying on a clause that had meaning and legal effect for less than a year, more than 800 years ago.
2. Robinson is a Rogue Servant
[74] Article 61 of the 1215 Magna Carta said nothing about the rights of ordinary individuals, but instead authorized a counsel of 25 rebel barons to seize all of King John’s “castles, lands, possession, or anything else” if King John did not adhere to the terms of the Magna Carta of 1215. What about rights given to non-barons? Article 61 permits “[a]ny man who so desires may take an oath to obey the commands of the twenty-five barons ...” [emphasis added]. That would appear to be obedience to the commands of the elected council, not a single baron.
[75] Robinson appears to have sworn herself to be a loyal servant to Lord Craigmyle of Invernesshire. So what? There is no suggestion anywhere that Lord Craigmyle has been elected or appointed to speak for any Article 61 council. There is also nothing to suggest that Lord Craigmyle has “commanded” Robinson to do anything at all, or to do anything in return for her allegiance, let alone that she write to this Court, claiming to represent MHVB, advancing claims that MHVB owns Z as chattel property, and threaten, let alone impose, “the Gallows”. Robinson therefore appears to be rogue servant and Lord Craigmyle should perhaps be concerned about what is being done by her, purportedly under his authority.
3. Magna Carta Article 61 Explicitly Exempts Children
[76] Article 61 of the Magna Carta does not authorize the seizure of an ordinary person’s child. Article 61 is about the King’s “castles, lands, possessions”. In fact, not only does Article 61 not apply to children, it explicitly states it does not apply to the king as a person “... and those of the queen and our children ...”. So, even if Robinson were to travel back in time to 1215, swear her allegiance to baron so-and-so, Robinson would not only have no right to assert a property claim on a child of an ordinary person of that day and time, Robinson also would be explicitly prohibited in relying on Article 61 to interfere with King John’s children.
4. The “Modern” UK Magna Carta
[77] Next, Ms. Robinson’s position runs afoul of the fact there have been a succession of Magna Cartas. The one that still is (somewhat) in effect in the UK is the Magna Carta (1297), 1297 C 9 25 Edw 1. This document is considered legislation of the English Parliament. It has 40 clauses. None authorize barons and their sworn minions to seize castles and the like. Worse for the MCLR adherents, all but three Articles of the 1297 Magna Carta have been repealed. Of the remaining Articles, Article 1 recognizes the immunity of the Church of England. Article 9 grants the City of London its “ancient liberties”. Article 29 recognizes the rights of “free-men” shall not be infringed, except by legal processes.
[78] None of these remaining provisions authorizes Robinson’s demands that, as the representative of MHVB, child Z must be produced as chattel property. In fact, by ignoring Canadian courts and their processes Robinson has instead breached Article 29 and is acting as a vigilante, outside “the laws of the land”. I will, however, not extend this finding of unlawfulness to Lord Craigmyle. There is no evidence he ever asked Robinson to do anything. Lord Craigmyle is simply the unlucky recipient of Ms. Robinson’s “magic” paperwork.
5. The Magna Carta is Not a Supraconstitutional Authority
[79] It appears that Robinson assumes that the 1215 Magna Carta has supraconstitutional status. The 1215 Magna Carta is purportedly the highest law that cannot be challenged, revoked, superseded, etc. There are several problems with that claim.
[80] First there is the problematic legal foundation on which the MCLR advances this claim. Certain MCLR documents (e.g. Appendix “D”) include this passage - “Magna Carta is as binding upon the Crown today as it was the day it was sealed at Runnymede.” - purportedly quoted from Halsbury’s Laws of England. If that were an actual statement of the law extracted from that august legal resource then this declaration would be a significant factor worthy of consideration. However, that sentence is nowhere to be found in Halsbury’s Laws of England (2018). In fact, the only times “Runnymede” is ever mentioned in Halsbury’s is that several case citations involve the “Runnymede Borough Council”, and that certain land in Runnymede vested with the US pursuant to the John F Kennedy Memorial Act, 1964 C 85.
[81] I then checked the BAILII database that contains hundreds of thousands of reported cases from across the UK to see if any reproduced this important principle from Halsbury’s. I found exactly nothing. The same happened when I searched the AustLII and CanLII databases.
[82] Undaunted, I turned to “Google Books” to see if perhaps this mysterious passage had been culled from an older edition of Halsbury’s Laws of England. At last I found a match - not in Halsbury’s - but instead in a book: Ashley Mote, Vigilance: A Defence of British Liberty (Petersfield: Tanner, 2001) at 261. Mote provided no citation or source for the “Magna Carta is as binding” passage. Is Mote a legal scholar? No, Mote instead is a former Member of the European Parliament who was convicted and jailed for nearly half a million pounds in false and fraudulent expense claims: “Former MEP Ashley Mote jailed over expenses fraud”, BBC (13 July 2015).
[83] Given these results I see little explanation other than the “sealed at Runnymede” quote is a complete fabrication. That is not anything new. OPCA litigants fabricate supposed legal principles and findings all the time: e.g. Gauthier v Starr, 2016 ABQB 213 at paras 41-42, aff’d 2018 ABCA 14; ANB v Hancock at para 93; Fearn v Canada Customs, 2014 ABQB 114 at paras 46-60. At this point I stopped attempting to validate the legal sources and authorities identified in MCLR materials. Whoever concocted these documents appears to take a “make it up as you go” approach to law.
[84] What is worse for Robinson’s argument is that Commonwealth jurisdiction courts have consistently repudiated the claim that the Magna Carta is anything special. In The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative), [2012] EWCA Civ 160, the Master of the Rolls specifically rejected the argument that the Magna Carta has extraordinary status:
[The appellant] challenged the judgment on the ground that it did not apply to him, as a 'Magna Carta heir'. But that is a concept unknown to the law. ... [The appellant] also invokes 'constitutional and superior law issues' which, he alleges, prevail over statutory, common law, and human rights law. Again that is simply wrong – at least in a court of law.
[85] The Master of the Rolls continued to confirm that in the UK only Articles 1, 9, and 29 of the 1297 Magna Carta have any legal relevance.
[86] Outside the UK the Magna Carta is in most instances legally irrelevant, other than as part of legal history. For example, the High Court of Australia in Essenberg v The Queen, B55/1999 [2000] HCATrans 385 (High Court of Australia) ruled:
Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom.
[87] Similarly, in Canada notorious Detaxer OPCA guru David Kevin Lindsay argued in R v Lindsay, 2008 BCCA 30 at para 18, leave to appeal to SCC refused, 31204 (18 September 2008), “... the Magna Carta is the foundation of the rule of law itself and that it protects the rights, freedoms, and liberties of all citizens. In [Lindsay’s] submission, the Magna Carta was received in Canada as part of our constitutions ...”.
[88] Smith JA responded by surveying the numerous Canadian court and academic authorities that conclude that in Canada the Magna Carta is not a constitutional document but, at most, legislation: R v Lindsay, paras 19-22.
[89] Other Canadian OPCA litigants have advanced variations on this claim that the Magna Carta has extraordinary status. Detaxer guru Eldon Warman declared he is “... a commoner with all applicable common law rights and freedoms, including those rights and freedoms enshrined in the constitutional document, Magna Charta 1215 ...”. The British Columbia Court of Appeal responded that Warman’s claim was:
... a complete denial of the constitutional history of this country as it applies to the rights and obligations of its people before the law. ... The submissions of the appellant must be and are rejected as being without any legal, historical or constitutional foundation whatsoever.
(R v Warman, 2001 BCCA 510 at paras 13-14.)
[90] Similarly, in Harper v Atchison, 2011 SKQB 38 a Freeman-on-the-Land referenced “... the Magna Carta to insulate himself from those portions of Canadian law that he does not like or finds inconvenient. ...”. Justice Foley reviewed the many cases that had already investigated and rejected that the Magna Carta has supraconstitutional status and struck out the Freeman’s lawsuit.
[91] So that is a further problem with Robinson’s claims. She relies on historic English legislation that was very long ago replaced in that country, and which outside of England has been consistently identified as having no modern legal relevance. She is far from the first OPCA litigant to point to the Magna Carta and make demands. Just like the Detaxers and Freemen who came before her and made the same arguments, Robinson’s Magna Carta pseudolegal demands have absolutely no legal merit. In Canada the 1215 Magna Carta is a historical landmark but with no current legal effect.
6. One Oath to Bind Them All
[
92] Another problem with the MCLR scheme is that it relies on the UK Royal Coronation Oath operating as a kind of contract. The new rebel barons in their March 23, 2001 letter appear to take the position that if the Queen breaks her Coronation Oath, then that cascades to invalidate oaths all over the UK, and, perhaps, even the Commonwealth too. Once the Queen is a traitor, everyone is a traitor.
[93] This claim that the Coronation Oath has a keystone function is not a new OPCA concepts. Others have made the same claim, and argued that once the Queen has turned traitor, all social order and organization disappears. For example, Albertan Brenden Randall Rothweiler claimed Queen Elizabeth II breached her contractual oath by:
• “Allowing the forming of political parties and demon-crazy (democracy) to divide, weaken, conquer and ruin the people (Deuteronomy 5:32, 17:20; Matthew 12:25).”;
• her “... encouraging and promoting sodomy ...”, and knighting “high-profile sodomites” including Elton John, Ian McKellen and John Gielgud, “... instead of having them Lawfully executed as a deterrent to others.”;
• “... collecting of graven-images and expensive jewellery (her famous art and Faberge collections, etc.)”; and
• allowing and condoning Witchcraft, which includes according a title to author J. K. Rowling “who promotes witches”, and also the development and employment of vaccines and other pharmaceuticals: “witches’ brews/potions”.
(Rothweiler v Payette, 2018 ABQB 399 at para 62.)
[94] I agree with Associate Chief Justice Rooke that Canada does not dissolve into “a post-Elizabethan chaos” because of alleged failures of the Queen in relation to her Coronation Oath.
[95] Beyond that, Canadian courts have repeatedly concluded the Coronation Oath and its status has no relevance to Canadian authority and law: e.g. Rothweiler v Payette, 2018 ABQB 399; R v Lindsay, 2011 BCCA 99; Potvin (Re); CP (Re), 2019 ABQB 310....
D. Three/Five Letters Processes
[110] The OPCA documents that have been received by this Court from Robinson, MHVB, and other MCLR adherents are a very familiar pseudolegal scheme, the “Three/Five Letters” process, that supposedly creates binding outcomes by sending someone a series of documents. At each step a document makes demands or states threats, sets a deadline, and purports that failure to meet those demands or silence means agreement. These documents, “foisted unilateral agreements”, are a common theme in OPCA litigation world-wide: Meads at paras 447-528. However, foisted unilateral agreements are not legally binding because silence does not mean agreement, nor can one unilaterally impose contract obligations on another: Meads at paras 458-472.
[111] The Three/Five Letters scheme follows a kind of script. Rooke ACJ in Rothweiler v Payette, 2018 ABQB 288 at para 13 laid out the overall progress of the scheme.
1. The first letter in the sequence demands a response by a deadline, and usually identifies the purported consequences of an inadequate response or no answer.
2. If no response or an inadequate response is received then the OPCA litigant sends to the target one or more notices that a response is overdue.
3. If no response is still received then the OPCA litigant sends the target one or more documents that indicates the issue (allegedly) in question is decided, and a binding agreement or admission has resulted.
See also Bank of Montreal v Rogozinsky, 2014 ABQB 771 at para 69.
[112] The Three/Five Letters were introduced into Canada by Freeman-on-the-Land guru Robert Arthur Menard who called this a “Notary Public Protest Method” that creates an “Administrative Judgment”: Donald J Netolitzky, “Humdrum Becomes a Headache: Lawyers Notarizing Organized Pseudolegal Commercial Argument Document” (2019) 49:3 Advocates’ Quarterly 279. The Three/Five Letters subsequently spread elsewhere, including to the UK where the Three/Five Letters were used by the dubiously named “Get Out Of Debt Free” OPCA website to purportedly eliminate debts: Bank of Montreal v Rogozinsky.
[113] Rothweiler v Payette, 2018 ABQB 288 at para 16 lists numerous Canadian cases where OPCA litigants have deployed the Three/Five Letters. It never worked. Associate Chief Justice Rooke concluded at para 21 that this scheme is so notoriously false, and has been rejected so often by Canadian courts, that when someone employs the Three/Five Letters that:
... as a principle of law, when a court or government actor encounters a person who claims that they have obtained a binding result as a consequence of a Three/Five Letters process, then the court or government actor may presume that deployment of the Three/Five Letters argument is proof that the person using these concepts is engaged in a vexatious, abusive argument, and does so for an improper and ulterior purpose. That reverses the onus of proof, so that it is up to the OPCA litigant who has advanced the Three/Five Letters to prove their action, complaint, or defence is not vexatious and an abuse of court processes.
