Municipalities Unlawful Control of Private Property in Ontario

 

MUNICIPALITIES UNLAWFUL CONTROL OF PRIVATE PROPERTY IN ONTARIO

by Jeff Sherk
NOTICE: I am not a lawyer or a paralegal, and this is not legal advice. This document is for informational purposes only.

 

MUNICIPALITIES HAVE NO POWER OR AUTHORITY ON PRIVATE PROPERTY

The legal maxim expressio unius est exclusio alterius means that within a statute or regulation, when one or more things of a class are expressly mentioned, others of the same class are excluded. To say it another way, the inclusion of one thing means the exclusion of everything else.

Ontario Municipal Act Regulation 586/06 has specific exclusions of private property.
     Section 2(4) says “Nothing in this Regulation authorizes a municipality to enter and undertake a work as a local improvement on private property without the permission of the owner or other person having the authority to grant such permission.
     Section 36.1 says “In accordance with this Part, a municipality may raise the cost of undertaking works as local improvements on private property by imposing special charges on the lots of consenting property owners upon which all or part of the works are or will be located.

Notice that the Municipal Corporation needs permission/consent from the private property owner, without which they have no authority.

The Ontario Municipal Act itself has specific inclusions of public property owned by the Municipal Corporation and specific exclusions of services/things it does not own.
     Sections 10(2)4 & 11(2)4 says the Municipal Corporation may pass by-laws respecting “Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act.
     Sections 10(4) & 11(6) says the Municipal Corporation does not have “the power to pass a by-law respecting services or things provided by a person other than the municipality or a municipal service board of the municipality.
     Section 8(1) says that the Municipal Corporations scope of power is there so it can “govern its affairs.” The word “its” is a possessive pronoun, meaning you have the power to govern the affairs that belong to the Municipal Corporation only.

Notice that you only have authority over public assets that you own, you have no authority over services/things that you are not providing, and your scope of power is for governing your own affairs only.

Within the above Act and Regulation, we see that public property is specifically included and private property is specifically excluded from the Municipal Corporations control. Private property is NEVER included anywhere, and therefore the maxim of expressio unius est exclusio alterius applies. The Municipal Corporations power, authority and control is limited only to public property it owns, and not to private property.

This maxim can further be confirmed by another section of the Ontario Municipal Act.
     Section 9 says “(Powers of a natural person) A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act.
     Section 5(3) says “(Powers exercised by by-law) A municipal power, including a municipality’s capacity, rights, powers and privileges under section 9, shall be exercised by by-law unless the municipality is specifically authorized to do otherwise.

Section 9 states the Municipal Corporation has the capacity, rights, powers and privileges of a natural person. A natural person has no authority on private property they do not own, and therefore a Municipal Corporation cannot indirectly give itself authority that it never directly had in the first place. Municipal Corporation powers exercised under by-laws therefore have no power, no authority and no control over private property which the Municipal Corporation does not own.

The Municipal Corporation cannot give itself more power or authority than what was granted by statute from the Province. And the Province cannot grant power or authority to the Municipal Corporation over something that it does not have to give. Therefore the Municipal Corporation has no power, authority or control over private property it does not own.

CASELAW

Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON SC)
Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described …

The Great West Saddlery Company Limited and others v. The King [1921] UKPC 27, [1921] AC 91 (25 February 1921), Privy Council (on appeal from Canada)
At page 100 it says “What cannot be done directly cannot be done indirectly.

R. v. Greenbaum, [1993] 1 SCR 674, 1993 CanLII 166 (SCC)
Municipalities are entirely the creatures of provincial statutes and can therefore exercise only those powers which are explicitly conferred on them by provincial statute. A court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a municipality has been empowered to pass a certain by-law. The by-laws themselves are to be read to fit within the parameters of the empowering provincial statute where they are susceptible to more than one interpretation. Courts must be vigilant, however, in ensuring that municipalities do not impinge upon the civil or common law rights of citizens in passing ultra vires by-laws.

Noble v. Township of Brantford 1963, 2 OR 393-401, Ontario High Court of Justice
The first and most obvious limitation is found in the limitations imposed upon the power of the Province itself by the B.N.A. Act. The Province has not itself universal power of legislation, and its creature the municipality can have no higher power.

Attorney General for British Columbia and Minister of Lands v. Brooks-Bidlake and Whitall Ltd 63 SCR 466 1922
Judge Idington confirms “the right of an owner to deal with the lands belonging to him or it, as to such owner may seem fit

O’Donohue v. Canada, 2003 CanLII 41404 (ON SCCOURT FILE NO.: 01-CV-217147CM DATE: 20030626
[15] … It is well settled that the Charter cannot be used to amend or trump another part of our constitution …”

 

MUNICIPAL BY-LAWS ARE ULTRA-VIRES ON PRIVATE PROPERTY

Municipal by-laws are ultra-vires (of no force or effect) if they conflict with or frustrate the purpose of a provincial or federal Act/regulation or an instrument of legislative nature. From the Ontario Municipal Act we have the following:
     Section 14(1) says “(Conflict between by-law and statutes, etc.) A by-law is without effect to the extent of any conflict with, (a) a provincial or federal Act or a regulation made under such an Act; or (b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.
     Section 14(2) says “Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument.
     A municipal by-law cannot frustrate the purpose of a Federal/Provincial statute/law or an instrument of legislative nature, otherwise the by-law is ultra-vires (meaning it is of no force or effect).

CONFLICT WITH CROWN LAND PATENT GRANT
     A Crown Land Patent Grant was the Crown (Federal/Provincial/Municipal government) giving up their right, title and interest in a piece of land to an individual or corporation. It then became private property, no longer under the authority or control or power of the Crown. Most of these grants include the wording “heirs and assigns forever” meaning it can be passed down from generation to generation without the Crown ever being able to interfere with those private property rights again.
     Since “forever” has not come yet, any Municipal Corporation by-law allowing entry onto private property or trying to exercise power, authority or control over private property would frustrate the purpose of the Crown Land Patent Grant, making it ultra-vires.

CONFLICT WITH COMMON LAW TORT OF INVASION OF PRIVACY
          In Jones v. Tsige, 2012 ONCA 32, Judge Sharpe of the Ontario Court of Appeal confirms that the Common Law Tort of Invasion of Privacy (Intrusion Upon Seclusion Or Solitude) includes:
– one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, and
– physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff’s private affairs.
     Any Municipal Corporation by-law allowing entry onto private property or trying to exercise power, authority or control over private property would frustrate the purpose of this Common Law Tort, making it ultra-vires.

CONFLICT WITH CRIMINAL CODE OF CANADA
          Section 72 (Forcible Entry and Detainer) of the Criminal Code of Canada prevents anybody from entering property where it can lead to a beach of peace. Section 180 (Common Nuisance) of the Criminal Code of Canada prevents anybody from obstructing a person from exercising or enjoyment of their rights. Section 430 (Mischief) of the Criminal Code of Canada prevents anybody from obstructing a person from the lawful use, enjoyment or operation of their property.
     Any Municipal Corporation by-law allowing entry onto private property or trying to exercise power, authority or control over private property would frustrate the purpose of these Criminal Code sections, making it ultra-vires.

CONFLICT WITH ONTARIO TRESPASS TO PROPERTY ACT
          Section 3 of the Ontario Trespass to Property Act states that entry on to a premises can be prohibited by notice given orally, in writing or by clearly posted signs. And Section 2 states that any person who enters on the premises without the express permission of the occupier is committing the offence of Trespass.
     Any Municipal Corporation by-law allowing entry onto private property would frustrate the purpose of this Act, making it ultra-vires.

CASELAW

Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON SC)
Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described …

Mercer v. Attorney General of Ontario, 1883, 8 AC 767, Privy Council
… it was insisted, that a line was drawn at the date of the Union, and that the words were not sufficient to reserve any lands afterwards escheated which at the time of the Union were in private hands, and did not then belong to the Crown.

1960 CANADIAN BILL OF RIGHTS
Section 1(a) says “It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms … the right of the individual to life, liberty, security of the person and enjoyment of property.

Ontario Property and Civil Rights Act
Rule of decision 1. In all matters of controversy relative to property and civil rights, resort shall be had to the laws of England as they stood on the 15th day of October, 1792, as the rule for the decision of the same, and all matters relative to testimony and legal proof in the investigation of fact and the forms thereof in the courts of Ontario shall be regulated by the rules of evidence established in England, as they existed on that day …

Attorney General v. De Keyser’s Royal Hotel, Ltd., May 10, 1920
Again it appears to me to be almost inconceivable that the Crown should claim the right to do such things as prostrate fences, take possession of the great industrial works mentioned, or cause any buildings to be destroyed, without being bound at law to compensate the owners therefor.” … “This is a fundamental principle, going back at least to Magna Carta,” … “Since Magna Carta the estate of a subject in lands or buildings has been protected against the prerogative of the Crown.

Cook’s Road Maintenance Assoc. v. Crowhill Estates, 2001 CanLII 24149 (ON CA)
[45] … it is necessary to be mindful of the fact that Cook’s Road is situated on private land. It is privately owned by the appellant. To declare a private road to be a public road will extinguish the property rights of its owner. It is a very serious step, therefore, for a court to declare an individual’s private property to be public property. Property rights are to be respected.

Lynch v St. John’s (City), 2016 NLCA 35 (CanLII)
[63] … Having the property rights flowing from a Crown grant, with virtually unrestricted rights to build and to appropriate and use groundwater, transformed to merely a right to keep the land ‘unused in its natural state,’ results in virtually all of the aggregated incidents of ownership being taken away. All of the reasonable uses of the property were taken away and a compulsory taking, a de facto or constructive expropriation, resulted.

Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 (1819)
If the legislature mean to claim such an authority, it must be reserved in the grant.

William Cooper v . The Honourable Alexander Stuart (Colonial Secretary), from the Supreme Court of New South Wales; delivered 3rd April 1889
[The Crown’s] prospective wants can only be provided for in two ways, either by reserving from settlement portions of land, which may prove to be useless for the purpose for which they are reserved, or by making grants of land in settlement, retaining the right to resume such parts as may be found necessary for the uses of an increased population.

 

PROVINCIAL STATUTES/REGULATIONS ARE ULTRA-VIRES ON PRIVATE PROPERTY

     Looking at the caselaw from the above section, you will notice that these all apply to Provincial Legislation as well. The Crown/Province has no right, title or interest in private property it does not own. Private property does not belong to the Crown/Province. Private property is protected from the prerogative of the Crown/Province. Private property rights are to be respected by the Crown/Province. Any power, authority or control the Crown/Province claims to have over private property must have been reserved in Crown Grant Land Patent.

     Also the doctrine of federal paramountcy applies to any provincial law that would frustrate the purpose of the federal law, meaning any conflict between Federal and Provincial Legislation renders the Provincial Legislation ultra-vires (of no force or effect).

CASELAW

Canadian Western Bank v. Alberta, [2007] 2 SCR 3
To sum up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law.

Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 SCR 297
Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extraprovincial rights then, even if it is cloaked in the proper constitutional form, it will be ultra vires. A colourable attempt to preserve the appearance of constitutionality in order to conceal an unconstitutional objective will not save the legislation.

Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700, DOCKET: C53734
[20] The action that ‘should have never occurred’ was an action brought by the Township. The appellant successfully defended himself against the most significant element of the claim advanced by the Township – namely, an order that he remove all objectionable items from his 100-acre property. The appellant also succeeded in having the clean-up costs struck from his property tax bill, in establishing that the Township had trespassed upon his property, and, as we have found, in establishing that the Township had converted chattels he owned.

R. v. Soules, 2011 ONCA 429 (CanLII) par[47]
“[47] Use immunity created by a provincial statute cannot extend to proceedings under the Criminal Code, because it would be ultra vires the province to restrict the admissibility of evidence in criminal matters: White, at para. 35. As Iacobucci J. explains further, in para. 72, the purpose of this type of provincial legislation is not to assist the police in the investigation of specific crimes; rather, ‘[t]he provinces are entitled to inquire into factual circumstances that may involve the commission of a criminal offence, but their jurisdiction does not extend so far as to trench upon the federal power under s. 91(27) of the Constitution Act, 1867 over the criminal law.’ ”

 

WHAT IS CONSIDERED “IN” THE MUNICIPALITY

     The various levels of government are simply corporations, so anything which is “IN” the government must belong to the government as property of that specific corporation. As stated in Mercer case below, privately owned property is not “IN” the province, is not “IN” the federal government, and is not “IN” the municipalities as part of these entities’ administrative property.
     Judge Gwynne in Mercer v. Attorney General for Ontario, (1881) 5 S.C.R. 538 at page 706 says “the term ‘public lands’ in the province, which is but an equivalent expression to ‘lands belonging to the provinces at the Union’ ” and at page 707 says “the ‘lands’ therefore which are referred to in sec. 109 of the British North America Act can only be construed to mean those ungranted or public lands belonging to the Crown“.

For example purposes below, I will use the fictional names of ABC Township, the Corporation of the Township of ABC, and the City of XYZ. This example also applies to Provincial Corporations and Federal Corporations as well as Municipal Corporations.

     There seems to be a lack of understanding and a lack of distinction between the geographic area we call ABC Township and the Municipal Corporation itself we call the Corporation of the Township of ABC. The staff and council do not get paid from a geographic area. They get paid from a corporation. A geographic area cannot own land or assets. A geographic area cannot own a corporation. A geographic area cannot control or define a corporation. A geographic area cannot pass corporate by-laws. A corporation can own land and other assets, and the land and assets that the corporation owns are considered to be “IN” the corporation. A corporation can own land and physical assets but cannot be defined by a geographic limit or any other kind of physical limit since it is a fictitious entity.

     When council passes a by-law, it is a corporate by-law and can only affect the corporation and what is “IN” the corporation. The top of every by-law even says “CORPORATION OF THE TOWNSHIP OF ABC” proving that they are specific to the corporation and do not apply to a geographic area that is not owned by that corporation.

     These corporate by-laws have no authority over geographic areas that are not owned by the corporation. My private property may be within the geographic area we call ABC Township, but my private property is not “IN” the Corporation of the Township of ABC because it is not owned by the Corporation of the Township of ABC and therefore its corporate by-laws do not apply to my private property.

          EXAMPLE: The Corporation of the Township of ABC owns some vehicles. These vehicles are not owned by the geographic area we call ABC Township. When one of those vehicles is used by staff, and driven to a different geographic area (say the City of XYZ), the vehicle is no longer in the geographic area we call the ABC Township, but it is still owned by the Corporation of the Township of ABC and is therefore still “IN” the Corporation and is still subject to the by-laws of the Corporation of the Township of ABC. The geographic location of the vehicle is irrelevant, for as long as it is owned by the Corporation of the Township of ABC, it is always “IN” the Corporation. The corporate limits of the Corporations authority are irrelevant of geographic location, as they still have authority over anything that is “IN” the Corporation regardless of its geographic location.

 

LIABILITY OF COUNCIL AND EMPLOYEES

I would like to remind you that the Municipal Corporations council, officers, employees and its agents can be held liable for any torts that they commit.
     Section 448 of Municipal Act says “(Liability for torts) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of a tort committed by a member of council or an officer, employee or agent of the municipality or a person acting under the instructions of the officer, employee or agent.

And here is an excerpt from the Ministry of Municipal Affairs 2014 Municipal Councillor’s Guide on legal considerations on exercising power.

   THE 2014 MUNICIPAL COUNCILLOR’S GUIDE
   published by MINISTRY OF MUNICIPAL AFFAIRS AND HOUSING
   LEGAL CONSIDERATIONS ON EXERCISING POWER
   Because municipalities are provincial creations, generally they only do what they have been authorized to do by the provincial government. A number of general consequences follow from this:
– a provincial government would give a municipality only those powers that it may exercise itself within the Constitution’s division of federal and provincial powers;
– generally, a municipal bylaw may not override a conflicting provincial statute. A bylaw that was valid when passed may become invalid if an overriding provincial statute is later put in place; and
if a municipality takes action for which it does not have statutory authority, or that exceeds the limits of its authority, the courts could quash the action as being ‘ultra vires’, that is, beyond the powers of the municipality.

 

CONCLUSION

A Municipal Corporation has no power, authority or control over my private property due to the legal maxim expressio unius est exclusio alterius meaning the Ontario Municipal Act specifically grants power, authority and control only to property owned by a Municipal Corporation, and does not grant any power, authority or control over private property.

Any Municipal Corporation by-law or Provincial Legislation attempting to directly or indirectly grant power, authority or control over my private property is ultra-vires as it frustrates the purpose of my Crown Land Patent Grant, the Criminal Code of Canada, and the Common Law.

Any Municipal Corporation by-law attempting to directly or indirectly grant access to my private property is ultra-vires as it frustrates the purpose of the Ontario Trespass to Property Act.

My private property, regardless of its geographic location, is not owned by a Municipal Corporation or by a Provincial Corporation and is therefore not “IN” a Municipal Corporation and is not “IN” a Provincial Corporation and is therefore not subject to any by-laws created by a Municipal Corporation and is also not subject to any Provincial Legislation.

 

How to Win in Court (because loosing is easy)

HOW TO WIN IN COURT

Let’s talk about loosing first… Losing in court is easy. But most self-represented individuals find this out the hard way. We have a pre-conceived idea that the court system is somehow about truth and justice and is concerned with doing the right thing. Once we get to court though, we find out that our un-justice system really does work best for those with the cash to hire the best lawyers.

My first time going to court was a huge education in how the system works. The charge was “Driving While Using Hand Held Communication Device” or “talking on my cell phone”. Having never been to court before, I spent hundreds of hours studying and learning all I could about trials and coming up with a plan to beat the ticket. In my studies I discovered that I should not testify (as I would only end up incriminating myself), but should instead concentrate on cross-examining the officer and bringing reasonable doubt to his testimony.

With my plan in place, I attended my first trial and when it was time for me to cross-examine the officer, I actually succeeded in showing the officers observation skills where completely wrong on a few points. My closing arguments were very persuasive as well, so imagine my surprise when the Justice of the Peace came back with her decision of “guilty!” While giving her reasons though, the light bulb went on as to what I had missed. The officer testified that he saw me with a phone in my hand, and I had not brought any evidence to contradict that fact. I had shown the officer had poor observation skills in identifying the vehicle model, the vehicle color and the number of occupants in the vehicle but I had not shown that these poor observation skills extended to his testimony about an actual element of the charge. Vehicle model, vehicle color and number of occupants are all irrelevant to the charge. The charge was “driving while talking on cell phone” and the officer testified that I was “driving while talking on cell phone” and I did not bring any reasonable doubt or contradiction to that element of his testimony.

HOW TO WIN IN COURT

Although I lost my first trial in court, I still came out a winner with the experience and education that I gained. The key points that you need to understand in order to win are:
– What are the “elements of the charge” that the prosecution must prove, and
– How to bring doubt to those elements by cross-examining the witness, and
– Whether or not you should testify to bring additional doubt to those elements. Most of the time you should NOT testify as you will just end up incriminating yourself.

There is no quick and easy way to win in court. You need to spend a lot of hours understanding the process and laws and researching case law.

I will now go through three different cases that I won and explain what happened.

CASE 1 – IMPROPER MUFFLER Section 75(1) of Ontario Highway Traffic Act

Let me tell you how I won. I showed up for court and checked in and although the prosecutor usually calls everybody up to meet with them before the trial starts, they never called me up which I thought was a little strange. Anyways the Justice of the Peace comes in and they called a few names for people that were pleading guilty and then about the fifth or sixth name in, they called me. I was kind of surprised since they usually put you off to the end if you are going to trial. I went up, said my name and the prosecutor said they were not prepared to go forward and were withdrawing the charge! Yahoo, I win! One of the elements that the prosecution must prove for this charge is that the noise was “excessive or unusual” and another element is that the “muffler is improper”. My personal opinion is that the officers notes did not support the charge, meaning the officer never made any mention that the noise was “excessive or unusual” and never made any mention of the “muffler being improper”. I believe the prosecutor recognized this and dropped the charge. I suppose it could also be that the officer did not show up, but I do not remember what the officer looked like and there was a row of a dozen officers sitting there so he may or may not have shown up.

Here is a link to a PDF with the defense that I had been prepared to use if I had gone to trial:
Click here to download PDF file of Case 1

CASE 2 – SPEEDING Section 128 of Ontario Highway Traffic Act

My wife was charged with 133 in a 100 and I represented her at the original trial. This was only my second time going to court so I had a paralegal assist me in preparing to represent my wife, so I was pretty well prepared and thought I did a great job, but I still lost! Because I did not want to lose the appeal, I hired the paralegal to do it for us. Our paralegal had prepared the defense in writing ahead of time and sent it to the prosecutor about week before the appeal so he would have time to review it. Basically we showed up and the prosecutor asked to meet with our paralegal. His comment was that he did not necessarily agree with everything that our paralegal said in the document, but did agree with some of the issues and felt that the appeal would probably be successful even if he tried to fight it, so he would just concede. The Court starts, case is called, prosecutor tells Judge he is not going to argue against the appeal, Judge says “appeal allowed, not guilty”. Thank you very much! An important point is that I had done a good job during cross-examination setting us up for an easy win on appeal. One of the tricks I learned is to use a shot gun effect and try to hit as many different issues as you can because even if you lose at trial, you still have a chance of winning on the appeal.

An important point to take away from this case, is that you need to be preparing for an appeal, even at your initial trial. At an appeal, you can not enter any new evidence. An appeal is simply a review of what was said at the initial trial. So this means that you MUST present all your evidence and all your defense at the original trial in order to have it considered at the appeal.

CASE 3 – SPEEDING Section 128 of Ontario Highway Traffic Act

My wife was charged with 76 in a 50 charge and the officer knocked it down to 60 in a 50 and I represented her at the trial. I checked the original ticket but no fatal errors. I asked for a trial with the officer present and requested disclosure. Got the full radar manual and officers notes. His notes were pretty much bullet proof. He had included a tracking history, comments that the radar had been tested (and passed) both before and after enforcement, and all the other elements they needed to be proved were in his notes. I went to court and the officer was there and sat thru 2 hours of people mostly pleading guilty and setting trial dates. Then at 11am prosecution asked for short recess. There was only three of us left in the courtroom at this time. He spoke with the other two and sent one person off to go over notes with an officer, then called me over and said “Well your charge is only a 10 over and this other guy has a failing to stop which is more serious. If he wants to proceed to trial then we won’t have time for your trial because you filed a couple motions that we would have to deal with even before we start the trial. So if he wants a trial that will work in your favor and I will drop the charge. Any problems with that?” Of course I said “No, that sounds good to me.” When the other guy came back in from talking to officer, he told prosecutor he wanted to go to trial, so prosecutor told the officer (for my wife’s charge) that he could leave and told me he would withdraw charge when Justice of the Peace came back in. I will take a win anyway I can! One thing to note with this case is that I filed a couple of Notice of Motion ahead of time. By filing these motions, I essentially made this case the most complex one of the day for the prosecutor, so he moved it to the bottom of the pile. This ended up working in my favour as they ran out of time.

Here is a link to a PDF with the defense that I was prepared to use if I had gone to trial:
Click here to download PDF file of Case 3

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Representing Yourself In Court – The Good, The Bad and The Ugly

Representing Yourself In Court

So you are thinking “I want to represent myself in court” … well good for you!
But most likely you are going to lose. Why do I say that? Because you don’t know the RULES.

Here is an example…

Let’s say two people sit down to play chess at a tournament. One person is very experienced and has played chess all their life and studied all the different strategies you can use to win chess (let’s call this person CP for Mr. Crown Prosecutor). The other person has only heard of chess and seen it on TV a couple times, but has never actually played it and does not know any of the rules at all (let’s call this person SR for Mr. Self Represented). There is also a third party present watching the game to make sure everybody follows the rules (let’s call this person the Judge).

They sit down to play a game of chess and CP goes first and makes a move. SR then tries to make a move but since SR does not know the rules, the move is not valid. CP complains to the Judge who tells SR that they can’t do that. So SR tries a few other moves which are all also invalid. This is a tournament so it is not CP’s job or the Judge’s job to tell SR how to play chess.
How does it end? Well CP only needs to make a few very calculated moves and checkmate… SR has lost the tournament. Is it possible that SR could ever win against CP? Of course it is possible, but it would be pure luck (this would be a good day for SR to also buy a lottery ticket). Without knowing the rules of the game, you can most likely never win.

So hopefully this little example gives you an idea what you are up against if you decide to represent yourself. If you don’t know how to play the game called “court”, then it will be over before you even start. I have been to Ontario Provincial Offences court on several different occasions, and 99% of those representing themselves have lost. Why? Because they clearly don’t know the rules.

If you think you can just try to explain to the Judge (or Justice of the Peace) what happened, then you are trying to play chess without knowing any of the rules. An explanation may help you get a reduced fine or a reduced sentence, but you will still be found GUILTY of the offence. And if it is a driving related offence it may affect your insurance rates (in Ontario, even a 0 demerit point charge can still cause an increase). Let’s use Speeding as an example case. In Ontario, speeding is an absolute liability offence and you are either guilty of speeding or not. There is no acceptable reason (other than defense of necessity because your life was in danger) for why you were speeding. The reason does not matter. If you start to say “Yes I was speeding but…” you just testified against yourself and made the prosecutions job even easier… you put yourself in checkmate.

In order for the Crown Prosecutor to win their case against you, they must PROVE certain elements of the charge “beyond a reasonable doubt”. For a speeding charge they must prove 5 elements: (i) that you were driving, and (ii) that you were driving a motor vehicle, and (iii) that you were driving on a highway, and (iv) that you were going XYZ km/h in a (v) a WXY km/h zone. How do they prove these 5 things? When they bring the police officer to the stand to testify, he goes thru his notes and the prosecutor asks him questions and he will testify that: (i) you were driving and he verified your identity from your drivers license, and that (ii) you were driving a motor vehicle as defined by the Ontario Highway Traffic Act, and that (iii) you were driving on a highway/road as defined by the Ontario Highway Traffic Act, and that (iv) you were going XYZ km/h (based on radar or laser or paced you) and (v) the posted speed limit was only WXY km/h.

In order for you to win the case, you need show that the Crown Prosecution did NOT prove these certain elements, or that there is reasonable doubt to the certainty of these elements. And the only way to do this is by CROSS EXAMINATION of the witness. So the key to winning the game of “court” is learning how to cross examine the witness. So more importantly, you do NOT want to give your side of the story (see next point below). Winning has NOTHING to do with your side of the story. Winning has everything to do with showing that the other side did not meet their burden of proof and did not prove all the elements of their case.

In most cases, you should NEVER give your side of the story. You have the right to NOT testify against yourself. If you take the witness stand, then you must truthfully answer any questions you are asked. But you have the right to NOT take the witness stand and therefore not have to answer any questions. Don’t fall for the prosecutions trick where they will say something like “But you were speeding right?” If you are not on the stand then do not answer any questions like this and just say “sorry I don’t have to answer that”. Never ever ever admit to what you did in court unless you are under oath! And (mostly) never take the witness stand in the first place.

In order to figure out the elements that they must prove, you need to carefully pick apart the section of the act that you are being charged with, and read it word by word. Let me give you some examples of the elements that must be proven by the crown prosecutor for certain types of Ontario Highway Traffic Act charges.

They will almost always have to prove these 3 things first:
– you were driving (officer will usually testify that he checked your drivers license and was satisfied it was you)
– you were driving a motor vehicle as defined by the Ontario Highway Traffic Act (officer will usually testify that vehicle meets this definition. In cross examination, ask the officer if he knows the exact definition)
– you were driving on a highway as defined by the Ontario Highway Traffic Act (officer will usually testify that the road you were on meets this definition. In cross examination, ask the officer if he knows the exact definition)

Additional elements for speeding charge that need to be proven:
– the posted speed limit where you were driving (check for local bylaws to make sure posted limit is legal)
– the speed you were actually going (officer will testify about what he saw and what radar said and how he tested radar, etc. Did officer test it properly? Has officer been re-certified to operate radar?)

Additional elements for Improper Muffler charge that need to be proven:
– the muffler was improper (did officer actually bend down and look under your car?)
– the noise coming from the car was excessive or unusual (did the officers notes say these exact words, or did his notes just say it was loud?)
– the excessive or unusual noise that was coming from the car was caused by the improper muffler (do officers notes state where the noise was coming from, or did he just assume?)

As you can see they must prove certain elements, and you must cast reasonable doubt on all these elements during cross examination without actually taking the stand and testifying yourself. Here are some excellent resources on learning about cross-examination. The first two links are excellent at helping you understand how to go about cross examination, but they are U.S.A. related, so some of the example questions may not be suitable for your situation:
http://www.nolo.com/legal-encyclopedia/free-books/beat-ticket-book/chapter11-2.html

http://www.howardnations.com/cross-examination

http://www.roadwarriors.ca/traffic_ticket_trial

http://fightyourtickets.ca/tickets/the-trial

http://ticketcombat.com/step5/crossexam.php

Cross examine the witness with as many questions as you can possibly think of, but NEVER ask a question that you do not already know the answer too. Good cross-examination questions give you a much better ability to win an appeal if you lose the trial.

A typical trial in court looks something like this:
– They ask you how you plead (guilty or not guilty).
– The prosecutor calls their first witness (usually the officer) for examination-in-chief and asks all the questions related to proving each of the elements of the charge.
– You then get to cross-examine the witness to try and bring reasonable doubt to what they said (this is NOT the time to give your side of the story). This is the only chance you have to enter evidence so make it count.
– The prosecutor then gets to ask the witness questions again, but only related to anything you specifically brought up in cross-examination.
– You get to cross-examine again with regards to anything the prosecutor brought up.
– You will then be asked if you want to call any witnesses. If you are not going to testify then you can just say “No witnesses”.
– Prosecutor makes closing statements and submissions as to why you should be found guilty.
– You make closing statements and submissions as to why you should be found not guilty and point out all the reasonable doubt in their witnesses testimony.
– The Judge or Justice of the Peace will make a decision.
– If you lose the trial, then file for an appeal!

In Ontario, you have nothing to lose by going to trial. I recommend that you ALWAYS plead Not Guilty within 15 days and request a TRIAL with the Officer present. Once you get a trial date, ALWAYS request disclosure (officers notes, witness statements, speed measuring device manual, etc). Once you get disclosure, always carefully check the officers notes to see if all the elements that need to be proven are included in his notes. In Ontario, you can represent friends and family in court as long as you do not charge them a fee.

The only way to get good at winning the game of “court” is to practice by actually going to court and fighting tickets. You will probably lose at first, but the experience is invaluable. You can also go to court and watch others. You can learn a lot about what NOT to do when you watch others represent themselves and lose.

Remember that the two key points you need in order to represent yourself and win are:
– to (almost) never take the witness stand, and
– to learn good cross-examination techniques.

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What to do when pulled over by the police

What to do when pulled over by Police in Ontario or anywhere in Canada

WHAT TO DO WHEN PULLED OVER BY POLICE IN ONTARIO OR ANYWHERE IN CANADA

This is not legal advice and is for informational purposes only.
Click here to download PDF version.

DRIVING A VEHICLE IN CANADA:
When you are detained by police (pulled over at the side of the road, DUI/RIDE checkpoint, etc), section 10(a) of the Canadian Charter of Rights and Freedoms requires them to tell you why. So whenever you are stopped, and they come to your vehicle window, immediately ask them:

  • Why did you stop me?
  • Am I being detained?

DO NOT ANSWER ANY QUESTIONS:
Be nice and be polite (they have guns), but remember you do not have to answer any questions. Always answer “I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU” or “I DO NOT WISH TO MAKE A STATEMENT, THANK YOU” to everything they ask you. This is your fundamental right to be free from self-incrimination and therefore not provide police with evidence that may be used against you. Everything you say can and will be used against you in a court of law. Also remember that you should never lie to police. It much better to say “no comment” than to lie.

EXCEPTIONS:
In Ontario, there are some exceptions when you MUST give them information:

  • When you are doing something that requires a license (like hunting or driving) then you MUST produce that license when asked for it. When driving you must also produce your registration and insurance as well, if asked. But you still do NOT have to answer any other questions and do NOT have to give them any other information.
  • When being charged with an offence then you MUST identify yourself by giving them your Name, Address and Date of Birth. But you still do NOT have to answer any other questions and do NOT have to give them any other information.
  • If you are involved in an accident you may be required to report it and/or give a statement about it.

NEVER VOLUNTEER ANY INFORMATION:
Any information you are compelled to give them (like the exceptions above), is not admissible in court as long as you can prove that you did not volunteer it. Therefore it is imperative that you never volunteer any information. Always wait for them to ask for it. This includes your name, address, date of birth, drivers license, registration, insurance and/or any statements they ask you to make. The worst possible thing you can do is start giving them information they did not ask for. When they ask you for something, ask them back:

  • Am I required to give that to you?
  • Can I be charged if I do not provide that to you?

WHAT TO SAY BEFORE YOU GIVE THEM ANY INFORMATION OR STATEMENTS:
Before you give any information to them, make sure you say:

  • I am only giving this information to you because I am required to do it, and it is NOT voluntary.

If you can prove in court that you only gave them information that you were compelled to give them, and that you did not volunteer any of it, then this becomes inadmissible evidence and they can not use any of it to convict you.

OTHER THINGS TO SAY BEFORE GIVING THEM LICENSE, INSURANCE AND REGISTRATION:

  • Drivers License is for proof of competency only, and is not for identification purposes.
  • Registration is for proof vehicle is registered only, and is not for identification purposes.
  • Insurance is for proof vehicle is insured only, and is not for identification purposes.

SEARCH YOUR VEHICLE:

  • You do not have to let them search your vehicle or your trunk. They need a warrant to do this.

PASSENGERS IN VEHICLE

  • Passengers in your vehicle do not have to identify themselves UNLESS they are being charged with an offence (see Exception (2) above).
  • Passengers in your vehicle do not need to answer any questions either. Best answer is again “I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU” or “I DO NOT WISH TO MAKE A STATEMENT, THANK YOU” to everything.

COMMON QUESTIONS AND ANSWERS YOU SHOULD GIVE

Questions:
– Have you been drinking?
– Have you had anything to drink?
– Do you know why I stopped you?
– Why were you driving so fast?
– In a hurry?
– Where are you going?
– How are you today?
– Why is your car so loud?
– Are you trying to hide something?
– Do you have a gun/drugs/alcohol in the vehicle?
– What’s in your trunk?
– Is that yours [pointing to something in the vehicle]?

Answer these with:
I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU.
I DO NOT WISH TO MAKE A STATEMENT, THANK YOU.

Questions:
– Can I see what’s in your trunk?
– Open your trunk please!
– Can I see what’s in your glove box?
– Open your glove box please!
– I need to search your vehicle!

Answer these with:
DO YOU HAVE A WARRANT? IF NOT, THEN NO!

IMPORTANT REFERENCES ABOUT KNOWING YOUR RIGHTS
http://www.criminaltriallawyers.ca/?q=know-your-rights
http://www.hosseinilaw.com/talking-to-the-police/
http://www.trafficticketparalegal.com/statements-snatching-defeat-jaws-victory/
http://canadian-lawyers.ca/Understand-Your-Legal-Issue/Personal-Injury/Motor-Vehicle-Accidents/Reporting-A-Motor-Vehicle-Accident.html
http://robichaudlaw.ca/right-to-silence-oickle-mccrimmon-sinclair

Summary

Pulled over by police or stopped at DUI/RIDE checkpoint:

  • Why did you stop me?
  • Am I being detained?

Best answers to give (never lie):

  • I choose not to answer any questions, thank you.
  • I do not wish to make a statement, thank you.

Never volunteer any information and Never answer any questions and Never lie:

  • Am I required to give that to you?
  • Am I required to answer that question?
  • Can I be charged if I do not provide that to you?

What to say before you give them any information or statements:

  • I am only giving this information to you because I am required to do it, and it is NOT voluntary.

Other things to say before giving them license, insurance and registration:

  • Drivers License is for proof of competency only, and is not for identification purposes.
  • Registration is for proof vehicle is registered only, and is not for identification purposes.
  • Insurance is for proof vehicle is insured only, and is not for identification purposes.

Click here to download PDF version.
This is not legal advice and is for informational purposes only.

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How to win in court (because loosing is easy)
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Shame on the Law Society of Upper Canada LSUC

Here is a recent letter I sent to the Law Society of Upper Canada (LSUC) expressing my discontent at their decision to not allow graduates from Trinity Western University because it is a Christian University:

To: the Benchers, the CEO and the Senior Management of LSUC.

Freedom of Religion

The LSUC’s decision to not accept students who have attended Trinity Western University is itself blatant religious discrimination and is a disgrace.

This leads to only one conclusion… the LSUC will eventually also have to refuse to license graduates of already accredited law schools that call themselves “Christians” because just calling themselves a Christian could lead to them discriminating against others.

The first line of the Canadian Charter of Rights and Freedoms specifically recognizes the “Supremacy of God”. I will remind you that the God it is talking about is the Christian God referred to in the Bible and not any other God from any other religion.

Shame on all of you for allowing this to happen.