R. v. Zombori, 2013 BCSC 2461

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Zombori, 2013 BCSC 2461 Date: 20130927 Docket: 32113-2 Registry: Williams Lake Regina v. Catherine Zombori and Joseph Steve Zombori Before: The Honourable Madam Justice Gropper Oral Reasons for Judgment Counsel for Crown: J. M. Whiting T. A. Ferreira Appearing on their own behalf: C. Zombori J. S. Zombori Place and Date of Trial/Hearing: Williams Lake, B.C. September 27, 2013 Place and Date of Judgment: Williams Lake, B.C.

September 27, 2013 [ 1 ] THE COURT: The accused in this case, who wish to be referred to as "Joe" and "Catherine" -- [ 2 ] JOE ZOMBORI: Who is not present. [ 3 ] CATHERINE ZOMBORI: How are we -- sorry -- [ 4 ] THE COURT: -- respond only to my referring to them by those names. Joe and Catherine are named in an indictment of four counts.

The first is that: Count 1 Catherine ZOMBORI and Joseph Steve ZOMBORI, on or about the 5th day of June, 2012, at or near the City of Williams Lake, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act .

Count 2 Catherine ZOMBORI and Joseph Steve ZOMBORI, on or about the 5th day of June, 2012, at or near the City of Williams Lake, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cannabis (marihuana), in an amount exceeding 3 kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act .

Count 3 Catherine ZOMBORI and Joseph Steve ZOMBORI, on or about the 5th day of June, 2012, at or near the City of Williams Lake, in the Province of British Columbia, did fraudulently, maliciously, or without colour of right, abstract, consume or use electricity or cause it to be wasted or diverted, the property of the B.C. Hydro and Power Authority, of a value not exceeding five thousand dollars ($5,000.00) and did thereby commit theft contrary to Section 326(1) (

a) of the Criminal Code . Count 4 Catherine ZOMBORI and Joseph Steve ZOMBORI -- [ 5 ] JOE ZOMBORI: Who are not present. [ 6 ] THE COURT: -- on or about the 5th day of June, 2012, at or near the City of Williams Lake, in the Province of British Columbia, did wilfully interfere with the lawful use of property, to wit: a power meter belonging to the B.C. Hydro and Power Authority, and did thereby commit an

offence contrary to Section 430(1) (

c) of the Criminal Code . . . [ 7 ] These are the charges against Joe and Catherine. [ 8 ] Joe and Catherine apply under the provisions of the Canadian Charter of Rights and Freedoms ,

Part I of the C onstitution Act , 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, for relief under s. 24(1) on the grounds that their rights have been infringed, particularly under ss. 7 , 10 , and 11(a) . They seek declarations that the charges are of no force or effect and ask that they be nullified. [ 9 ] The hearing today began at 9 a.m. Joe and Catherine began with a series of questions to me, including whether I was prepared to recognize them as human beings, whether I was a public servant, and the nature of my oath of office.

This hearing was scheduled to allow Joe and Catherine to make oral submissions in respect of the notice of application that they filed in this court on June 28, 2013. [ 10 ] Joe and Catherine refused to proceed without my answering the questions that they posed to me. I provided to them opportunities to address me concerning their application. They chose not to address the application. Accordingly, I heard from the Crown with a reply from Joe and Catherine. [ 11 ] I have the benefit of written submissions which were made by Joe and Catherine, which I have carefully considered.

I have had the opportunity to review the Crown's submissions, and I have heard from the Crown orally in respect of those submissions. My reasons will address the written submissions of Joe and Catherine and the oral and written submissions of the Crown. [ 12 ] Joe and Catherine assert that as human beings, they cannot be treated as legal persons without their consent, and they do not consent. Joe and Catherine further argue that as human beings, enactments such as the Criminal Code , R.S.C. 1985, c.

C-46 and the Controlled Drugs and Substances Act , S.C. 1996, c.19, enactments of the Parliament of Canada, do not apply to them. They assert that under the

Interpretation Act , R.S.C. 1985, c. I-21, the word person refers only to corporate entities, not human beings. [ 13 ] In Joe and Catherine's written notice, it is asserted that the court is not independent or impartial because judges are appointed from members of the provincial bar. Joe and Catherine also seek the return of items seized by the police upon Joe and Catherine's arrest, and monetary damages of $200,000. Analysis [ 14 ] Assertions similar to those of Joe and Catherine's have been made before judges of this court and other courts.

It is my obligation to follow the precedents which have been established by other judges in this court and others in their oral and written reasons unless they are clearly wrong or they fail to consider some aspect of an argument that is made to me. None of those features exist here. [ 15 ] I have the benefit of decisions of this court to which I will refer extensively, which I consider address the arguments which have been made and under which I consider myself bound. [ 16 ] Madam Justice Ker of this court considered similar arguments in a decision, R. v. Scott Douglas Petrie ( Petrie ), 2012 BCSC 2109 .

In respect of Joe and Catherine's assertions that they are human beings, I will refer to paragraphs 54 to 60 of Madam Justice Ker's decision. Madam Justice Ker addressed Mr. Petrie's assertion that he was a natural person, not a submission like that made by Joe and Catherine that they are human beings. I will address, after I quote from Madam Justice Ker's decision, the position that Joe and Catherine take in respect of their being human beings. [ 17 ] The Crown has provided a copy of the Petrie decision.

It is at Tab 2 of that brief, which has been provided to Joe and Catherine, and I will refer first to paragraph 54. At paragraph 54, Madam Justice Ker refers to another decision of this court, R. v. Porisky & Gould , 2012 BCSC 67 (referred to as " Porisky "): [54] . . . In that case, the two accused were jointly charged with evading paying income tax under s. 239(1)(

d) of the [ Income Tax Act ] and other offences [related to] their business enterprise . . . [ 18 ] Moving ahead to paragraph 55: [55] Mr. Porisky was also charged separately under s. 464 (

a) of the Criminal Code . . . with counselling others to commit fraud by evading the payment of income tax. Mr. Porisky was found guilty of evasion of paying his taxes, evasion of remitting GST, and counselling others to commit fraud. [56] Part of Mr. Porisky's argument was essentially that he was a natural person and that taxpayers are artificial persons. The distinction as to capacity of the person was rejected by Mr. Justice Myers [who wrote the Porisky decision], who noted that the law has long recognized the distinction between a natural person and an artificial person, such as a corporation.

Moreover, the law has recognized a corporation sole, which applies to an office such as that of a bishop. Myers J. found that Mr. Porisky was twisting the legal distinction between a natural person and an artificial person into something not recognized in law (see Porisky , at paras. 46-55). [57] After setting out Mr.

Porisky's theory of the distinction between natural persons and artificial persons, Myers J. went on to state at para. 58 that his theory "not only does not bear any legal logic but it also fails to accord with common sense." Describing it as a "failed attempt at word magic”, Myers J. concluded the defence “has no validity" (see Porisky , at para. 58). [ 19 ] Madam Justice Ker continues at paragraph 58 of the Petrie decision: [58] The same can be said for the applicant's attempt to place any legal significance on the determination of the capacity in which the name Scott Douglas Petrie is being used in the Indictment.

As Mr. Justice Myers noted in Porisky , the courts have rejected the natural person argument in several tax evasion cases.

[59] While the applicant has not used the words "natural person" in argument before me, he has raised the capacity argument suggesting there is a distinction between a living person, a government agent person and the like, even though they may possess the same name. [60] The capacity argument suggesting there is a distinction between a "person" and a "natural person" (or a "living person" or a "sovereign man") has been addressed a number of times in the jurisprudence.

The decisions are decidedly against the point the applicant seeks to advance. [ 20 ] In respect of Joe and Catherine's assertions that they are human beings and that Petrie refers to natural persons, the point that was made by Madam Justice Ker is there that there no distinction between a “natural person” and a “person.” Similarly, there is no distinction between a “human being” and a “person.” I agree with the Crown that this is a matter of nomenclature and has no effect at law.

I therefore reject the assertion in respect of human beings made by Joe and Catherine. [ 21 ] I now refer to the argument that Joe and Catherine make in regard to the applicability of enactments such as the Criminal Code and the Controlled Drugs and Substances Act . For reference, I will refer to their position, which is that they do not consent to the application of those enactments and they are not incorporated persons. This argument is made under s. 32 of the Constitution Act , 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App.

II, No. 5. [ 22 ] This was also addressed in Petrie , and I will refer extensively to Madam Justice Ker's decision in that regard. [ 23 ] Madam Justice Ker refers to Mr. Petrie suggesting a reading of s. 32 of the Charter which she summarizes at paragraph 73 as: (

a) that the Constitution, and by extension the laws of Canada, only applies to government agents, and therefore not to private citizens; (

b) that as [Mr. Petrie] is a private citizen and the name Scott Douglas Petrie in the Indictment is a government agent, the charges have nothing to do with the applicant and ought to be dismissed. [ 24 ] Madam Justice Ker addresses this argument beginning at paragraph 75: [75]

Section 32 of the Charter and the jurisprudence interpreting this

section makes it clear that the Charter applies to all actions undertaken by state authorities and government agents when they interact with private citizens, meaning that private citizens who have an interaction with a government actor benefit from the rights afforded to them by the Charter during that interaction and have recourse to the courts if they believe that the government actor, and by extension the government, has breached one or more of their Charter rights.

To give a concrete example: state conduct, i.e. government action, such as police investigating and arresting a private citizen must conform with Charter values and respect the Charter rights of the private citizen. Thus an individual private citizen, when investigated by the police, has the right to be secure from an unreasonable search and seizure by virtue of s. 8 of the Charter and has the right to retain counsel upon arrest or detention by virtue of s. 10(

b) of the Charter . [ 25 ] Madam Justice Ker's continues at paras. 79 and 80: [79] With respect, the applicant appears to be endeavouring to turn the jurisprudence pertaining to s. 32 of the Charter on its head. If he is arguing that because he is a private citizen the Constitution, and by extension the laws of this country, only apply to government actions and agents, he is mistaken. He, too, is subject to the laws of Canada, including the CDSA .

He cannot pick and choose what laws apply to him, nor can he engage in what Myers J. characterized in Porisky at para. 67 as "legal numerology" by picking and choosing extracts from statutes and cases and weaving them together in an attempt to create logical links where none exist. [80]

Section 32 of the Charter mandates that the Charter applies to government actions such as the RCMP's investigation and arrest of the applicant in this case, which means that the applicant's Charter rights are to be observed and protected in the carrying out of such actions. [ 26 ] At paragraphs 81 to 83 Madam Justice Ker says: [81] If the applicant is trying to assert the Court has no jurisdiction over him to try the offences because, by virtue of s. 32 of the Charter , the Constitution and the laws under which he is charged only applies to government agents, and he is not a government agent, he has fundamentally misconceived what s. 32 of the Charter means and what the jurisprudence has interpreted its purpose to be. [82] If the applicant is trying to advance the argument that the laws under which he is charged do not apply to him because he is not a government agent, again he is mistaken. [83] If the applicant is suggesting the Court has no jurisdiction over him to try the offences because he is a private citizen and thus outside of the Court’s jurisdiction, then, as Mr.

Justice Hollinrake noted in R. v.

Warman , 2001 BCCA 510 at para. 13 . . . his argument would be "a complete denial of the constitutional history of this country as it applies to the rights and obligations of its people before the law." Arguments of this kind must be and are "rejected as being without any legal, historical or constitutional foundation whatsoever": Warman , at para. 14 . [ 27 ] Madam Justice Ker concludes (at para. 84): There is no legal merit in the point the applicant advances under s. 32 of the Charter . [ 28 ] I reiterate that the reference to a private citizen or a human being does not change the result of the cases to which I have referred.

I must reach the same conclusion as Madam Justice Ker in respect to the argument that Joe and Catherine make in respect of s. 32 of the Charter .

[29] I move to Joe and Catherine's next argument, and that is the impartiality of the court. That assertion was addressed by theSupreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39. That case is also included inthe Crown's brief of authorities, which has been provided to Joe and Catherine, at Tab 11. I refer to paragraphs 11, 12 and 13 of thatdecision, first of all to describe the argument that was made before the Supreme Court of Canada by Mr.

Bertrand on behalf of Mugeseraand then refer to the court's reasoning and conclusion in regard to those arguments. [30] At paragraph 11, the court summarizes Mr. Bertrand's arguments and his personal affidavit: [He] alleged influential members of the Jewish community manipulated the Canadian political system and the country’s highest court forthe sole purpose of having Mugesera deported, and it would be impossible for the respondents to receive a fair hearing as aconsequence.

The only solution, the respondents submitted, would be for the Court to acknowledge its inability to act impartiallybecause of its contamination, and to grant a permanent stay of proceedings. [31] At paragraphs 12 and 13, under the heading “principles governing a review of abuse of process and the application of judicialimpartiality,” the court states: 12 The legal framework for stays of proceedings and the principles defining the tests for judicial independence and the impartialityrequirement are well known. On the one hand, the stay of proceedings is a drastic remedy for an abuse of process.

In the case at bar, therelief sought by the respondents would mean that the substantive arguments filed by the Minister in this appeal in support of the validityof Mr. Mugesera’s deportation order would never be reviewed in a definitive manner by the Court. Nor would the public’s interest inhaving this review take place be protected. However, this decision must be made in a legal context in which this Court has in pastdecisions ruled that the stay of proceedings is a remedy that must be limited to the most serious cases, such as in situations involvingabuse by the prosecution (R. v.

Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297 [and other cases]. 13 On the other hand, we recently considered the principles that define the nature of a judge’s duty of impartiality and how this dutyis applied in the review of an application to vacate a judgment of this Court (see Wewaykum Indian Band v. Canada, [2003] 2 S.C.R.259, 2003 SCC 45). The duty of impartiality requires that judges approach all cases with an open mind (see para. 58). There is apresumption of impartiality.

The burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality, whomust establish actual bias or a reasonable apprehension of bias. In the case at bar, the situation must be considered in the context of therole and operating procedures of a collegial court consisting of nine judges serving as Canada’s court of final resort [and that refers to theSupreme Court of Canada]. [32] The same presumption applies to Joe and Catherine’s assertion in respect of impartiality in this case.

Joe and Catherine have notproven a real or apprehended breach of impartiality and their argument in that regard is also rejected. [33] There are two other features of Joe and Catherine’s argument in their notice of application, and that is that they seek the returnof items seized by the police upon their arrest and monetary damages of $200,000. I reject both of those claims as well as there is nolegal basis upon which to grant those applications. There were items seized which are now in the custody of the police and are to beused for the purposes of the hearing of the charges in this matter.

In respect to a claim of $200,000 monetary damages from the Crown,there is nothing remarkable or oppressive which has been demonstrated in this application. These claims are without merit and aretherefore dismissed. [34] In

summary, I am not persuaded on the balance of probabilities that Joe and Catherine’s rights under the Charter have beenbreached, and therefore their application is dismissed. This matter is therefore remanded to the next fix date to establish a trial date for ajudge and jury. “Gropper J.”