Freeman on the land: A growing concern in Canadian Courts
The Freeman on the Land movement is a small but growing concern for Canadian Courts. Certain individuals are attempting to argue that Canadian laws do not apply to them and attempt use a poor understanding of the law to try to undermine the legal system. This is time consuming for the Courts and creates a real problem for people who are victims of their tactics. In this article, Siskinds Associate Laura Geddes discusses the strategies that Freemen try to use and some of the repercussions for them and the justice system.
It’s a story with elements that are starting to become familiar and that gives truth to the cliché that sometimes life is stranger than fiction. Someone has a chance encounter which may seem a bit strange and suddenly finds himself in a situation with someone who claims that they are not a citizen of Canada and have no legal responsibilities. Most recently in the news, an Alberta woman learned that her tenant had placed a $26,000 lien on her rental property. Her tenant changed the locks and declared himself a diplomat and her property his embassy.
These stories seem to be growing in frequency and scope. Talk to any lawyer or police officer and they at least know someone who has had an encounter with a “Freeman on the Land.”
While Alberta courts have been facing these cases for some time, they are arising more frequently in Ontario. Recently, Siskinds had an encounter with an individual who sued a police officer after a traffic stop for removal of the officer, monetary damages of $30,000 ($1000 per minute of detention, plus damages for mental distress), and a declaratory judgment that he is not bound by any statute of Canada or Ontario.
Arising out of our experiences with this individual, this article has two purposes: to discuss some of the hallmarks of the Freeman ideology, and to serve as a warning to those who might attempt to use that ideology in court.
The Freeman Ideology
The term “Freeman on the Land” has come to work as a catchall for individuals who espouse a certain ideology or use certain kinds of litigation tactics. Some individuals will refer to themselves this way; others, as happened in our particular case, seem to view it as a derogatory term. In Meads v. Meads, a colossal decision which summarized and refuted various tactics used by freemen, Justice Rooke coined the term Organized Pseudo-Legal Commercial Argument Litigants (“OPCA Litigants”). This term arises from the realization that these individuals are often not working alone. Instead, they have been sold documents and ideas which the seller promises will free them from their legal troubles, allow them to avoid paying “illegal” tax, and provide them with access to a secret government bank account containing millions of dollars. They have “gurus” who promise to guide them through the legal system with a series of complicated rituals and documents, for a fee. When their attempt undoubtedly fails, the litigant is left wondering where they went wrong.
The individuals who buy into these tactics come from all walks of life. The movie star, Wesley Snipes, even attempted to use Freeman ideology to avoid paying taxes. In our case, the individual was a man in his late thirties who had a house, a job and a spouse.
Generally, these individuals are organized and their tactics are calculated and deliberate. Unlike many other unrepresented litigants whose failure to follow the rules of court or know the law is understandable, Freeman litigants are intentionally trying to undermine the justice system. The list of the tactics they use is long, and at times confusing, but a few of the most common tactics include:
- An attempt to create a dual or split persona by arguing that they are a physical person or human being who is free to do as they choose and is not bound by any laws. They also have a non-corporeal aspect referred to as a “Strawman”, “corporate fiction” or “legal person.” All of their debts and liabilities, they argue, attach to their legal person, while the physical person is in the clear. For example, in our case the individual argued that he was a “human being” driving his vehicle as opposed to a legal fiction. This attempt to create a split person is often reflected in the way the individual refers to themselves. The OPCA litigant will often use punctuation in their name, or spell their name in all capital letters to differentiate between personas.
- An argument that they are immune to statutory law and a reliance on outdated common law or international law. In our case, the plaintiff claimed that he was not governed by the Highway Traffic Act because he had not taken an oath of allegiance to the Queen or to Canada. This often also relates to an argument that the statutory law is subordinate to some outdated common law. Quotations from outdated cases may be provided, taken out of context, in an attempt to prove a point. It can also be argued from the premise that any interaction between the state and the individual must arise from a contract; if the individual has not consented to the contract then there is no relationship.
- Although in our case, the plaintiff seemed content to submit to the jurisdiction of the court, OPCA litigants will often argue that the court has no jurisdiction over them. This often ties into an argument that they haven’t entered into a contract with the state.
- The OPCA litigant may attempt to use “magic” phrases that will supposedly relieve them from their obligations or the court’s authority. For example, they will point to the Latin phrase seen in on the Royal Coat of Arms found in every courtroom (A Mari usque ad Mare or “from sea to sea”), declare that the court is an “admiralty” court with no jurisdiction over them, as they are “of the land.”
- An attempt to create a unilateral contract between themselves and anybody they come across. Although this did not occur in our case, OPCA documents will often contain wording that tries to create a contract between the litigant and the recipient. The subject matter of these contracts can be payments of money or an attempt to declare the litigant free from legal obligation.
These arguments are, of course, incorrect. Meads provides a useful analysis of each argument. To briefly summarize, a common element in all of these claims is that the litigant is arguing that they are not subject to Canadian law or the court’s authority to enforce the law. Many of these arguments can be dispensed with on the basis of the court’s inherent jurisdiction. The court is an independent and distinct branch of government and the authority of Superior Courts does not flow from legislation. The Superior Court has inherent jurisdiction over its own process, which it can exercise to prevent abuses of the legal process, as well as over any subject matter that has not been specifically assigned to a different court. Every injury requires a forum to grant the appropriate remedy. Therefore, many of the OPCA arguments can never succeed because there is always a court that will have jurisdiction over them and their activities. Any argument that the litigant is immune from the court’s authority is therefore incorrect.
Further, the inherent jurisdiction of the court is adaptive, and will expand to cover novel developments in the law. Even if an OPCA litigant could successfully invent a new code or successfully argue that they were bound by some different form of the law, the inherent jurisdiction of the superior court would encompass this as well. Therefore, any argument that a litigant can choose not to be subject to any Canadian court may be struck without further analysis and a denial of court authority on that basis should be ignored.
As these types of encounters become more common and the case law develops we are seeing that the courts are prepared to take a strong approach. Meads notes a number of methods for dealing with these strategies including striking pleadings, punitive damages, and elevated costs awards. In Ontario, if an individual repeatedly brings this type of claim, vexatious litigant status would be appropriate.
In our case, we sought summary judgment dismissing the plaintiff’s claim. While the plaintiff in our case was comparatively mild-mannered in the court room, his arguments were not successful.
Many individuals unfamiliar with litigation do not understand that they could be responsible for more than their own costs when the case ends. They do not know that, if they lose, they could be ordered to pay all or a portion of the opposing side’s costs. The general rule is that the successful litigant should have their costs paid by the other side on a partial indemnity basis (which usually works out to about 65% of the total costs incurred). However, where a party’s actions where reprehensible, vexatious or an abuse of process, a court can award substantial indemnity costs (90% of the total costs incurred) or even full indemnity costs, meaning that the losing party will be responsible for all costs incurred by the successful party.
In our case, the plaintiff, in addition to his lawsuit, served us with a notice of constitutional question which also had to be dealt with. At the end of the day, we had incurred costs of $15,000. The court found that the plaintiff’s claims were patently devoid of merit and closely resembled those of OPCA litigants. The court held that such claims are to be discouraged as they interfere with the orderly and timely administration of justice, and divert resources that are more properly directed to meritorious claims. The Defendant was awarded costs on a full indemnity basis. Those who attempt to argue in court on a similar basis are likely to face a similar result.
Laura Geddes was called to the Bar in 2012 and joined the Siskinds LLP General Litigation Group after articling with the Superior Court of Justice in London as a Judicial Research Clerk. Laura practices in Siskinds’ General Litigation group and can be reached at firstname.lastname@example.org or by calling 519-660-7714.
Posted in Publications