2023 QCCQ 3429, 2023 QCCQ 3429

Barreau de Montréal c. Bogue 2023 QCCQ 3429 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-61-515899-202 DATE: May 5, 2023 ______________________________________________________________________ BY THE HONOURABLE PIERRE DUPRAS, J.C.Q. BARREAU DE MONTRÉAL Prosecutrix v. GLENN BOGUE Defendant JUDGMENT [ 1 ] The defendant who requested to be referred to as Spirit Warrior is facing 5 counts found in five different statements of offence and regrouped in the file identified above.

The offences he is charged with all relate to the illegal practice of law either by preparing and drawing up documents on behalf of others (counts I, 2, 4, and 5) or by acting for others (count 3).

FACTUAL BACKGROUND [ 2 ] The trial began by the attorney for the Barreau de Montréal filing two sets of documents establishing that, at all relevant times, the defendant was not a member of the Barreau du Québec [1] and that he was a lawyer in Ontario whose licence to practise was suspended on April 12, 2017, and remained suspended at the date the affidavit of the Manager of Membership Services at the Client Service Center of the Law Society of Upper Canada was signed, that is September 2020. [2] [ 3 ] It is to be noted that the defendant’s email address is presented in this affidavit as being: Kit4equity@gmail.com [3] .

This information will be the object of numerous comments in the subsequent episodes of the administration of the evidence in this case. [ 4 ] The first witness offered by the prosecution was Marie-Ève Trudel, an attorney for the Public Prosecution Service of Canada. Her testimony, among other things, will help in setting the factual background in our matter. [ 5 ] So, she was acting, did she say, as a federal Crown in a criminal trial where Pierre Cardin and Jean-Marc Paquin were charged with different offences in relation to fraud and tax evasion.

It is in those circumstances that she met the defendant, first in Superior Court in Laval in April 2019 and then in the Court of Appeal. [ 6 ] In the early stages of the proceedings, Cardin and Paquin were represented by attorneys who eventually withdrew from the file. Then, in April 2019, a case management conference was to be held in Laval before Justice Saint-Gelais of the Superior Court of Québec. [ 7 ] In the days preceding the conference, an email [4] was transferred to Me Trudel from an investigator for the Canada Revenue Agency, one Éric Bardier.

The email had been sent to him by Cardin who is by then representing himself. The object of the email reads as follows: “By courtesy Mr. Bogue wanted you to receive these docs and info.” [ 8 ] The email informs that Cardin, while in the Laval courthouse on April 5, 2019, for the serving of a notice, saw the court clerk “assign[ed] another court case number for the Habeas Corpus” for the Wednesday morning.

Further, accompanying the mail is enclosed a copy of a notice and a factum. [ 9 ] The notice has for title: “Notice of application for petition for a writ of habeas corpus (Preator and Replevin) seeking relief pursuant to UNDRIP [5] ” and the accompanying document: “Applicants Habeas Factum.” [ 10 ] Among other things, it is declared in this application that the appellants are sovereign Métis and sovereign non-status Kinakwii; that ownership of the soil under the corporate state of Canada belongs to the non-status Kinakwii nation, in community with their confederation with the Asmin [6] and all indigenous people born on Turtle island; that the “corporate bonding” system of Canada is a violation of international human rights and that the consequent taxes on wages and the treatment of the applicants is tantamount to a crime against humanity.

[ 11 ] The conclusions require (1) that the petitioners be released forthwith from the jurisdiction of Canada (2) that the costs of this petition ($10 000) be payable to the Kinakwii legal department (3) that punitive damages be imposed in the amount of $390 000 for the violation of the international human rights of the petitioners and (4) that the matter be transferred to the Kinakwii Indigenous Tribunal. [ 12 ] It was the first time Me Trudel heard from Mr. Bogue. To her these documents made no sense. [ 13 ] On April 10, 2019, she went to the Superior Court for the management conference and Mr.

Bogue, Spirit Warrior , was there before Judge Saint-Gelais. He tried to speak on the matter to the Court. The presiding judge enquired as to who he was, apparently, she did not believe he was a lawyer.

He identified himself and said he was a lawyer. [ 14 ] Judge Saint-Gelais ended up postponing the hearing of the motion and an appeal from that interlocutory decision to postpone was brought before the Court of Appeal [7] . [ 15 ] The notice of appeal dated May 3, 2019, alleges, among other things, that the justice failed (1) to read the habeas corpus application before the hearing (2) to order the Crown to commence consultation (3) to require the Crown to produce a factum in a timely fashion (4) to allow the defendant’s “ Legal Leader ” [8] to argue the case in violation of UNDRIP.

The conclusions state that the appellants ask that the justices’ order be set aside and that the relief regarding the appellants’ land claim, be granted. [ 16 ] Now, at the end of the document, in the part normally reserved for the signatures, in typed letters we can see: The Kinakwii Legal Team. Just below that typed signature there is an email address: KIT4equity@gmail.com [9] .

Furthermore, under this typed information, both the signatures of Cardin and Paquin can be seen together with other handwritten information relating to their addresses, email or other, and phone numbers. [ 17 ] Me Trudel mentioned that even though the trial of Cardin and Paquin was a bilingual procedure because of a request made by the Crown, until April 2019, all written exchanges were in French. [ 18 ] Next, regarding this notice of appeal in the Court of Appeal, the Crown replied by a motion for a

summary dismissal of the appeal. The clerk for the Court deferred the file to a bench of three judges. [ 19 ] In answer to that motion, a “Memorandum of response to the Crown motion of May 15, 2019,” was filed [10] . It is interesting to note that “whereas” number 7 states that the appellants are entitled to have counsel of their choice litigate the issue of the land claim and trespass which had not yet been heard by the Superior Court. [ 20 ] Then, towards the end of the document, where the “whereas” are not numbered anymore, there is this reference about Canada’s justice interfering with the right to indigenous counsel and/or lawyer per

section 35 of the Charter . Finally, at the end of the memorandum there is a line for a signature under which it is written “for the co-accused and appellants,” but there is no signature. Rather the typed inscriptions “the Kinakwii Legal Team” and the email address KIT4equity@gmail.com appear in a typed form. [ 21 ] The matter was brought before a three-member bench of the Court of Appeal on August 7, 2019. There, were present Me Trudel, together with appellants Cardin and Paquin and Mr.

Bogue. [ 22 ] The recording of the session was produced on the record in our file along with a working document [11] , entitled “informal notes on the recording…”, to assist the Court. [ 23 ] The highlights of this recording show Me Trudel asking for the rejection of this unappealable matter and Cardin and Paquin taking turns to explain their situation. At one point, Paquin says that Spirit Warrior [12] came to represent and support them, that he is their counsel.

Further, that they did not know they were Métis and that it changed the whole perspective on things, so they asked the clan mother and Spirit Warrior to help them set a strong case. [ 24 ] Shortly after 9 minutes and 30 seconds (9:30) of the recording Mr. Bogue is heard intervening in the debate. First referring to apparently live cases in Ontario, he argues that the Superior Court in Laval and the Court of Appeal in Montréal are on unceded land. Because of that, she, Judge Saint-Gelais, had no authority to set the case to another date or to remove lawyers from the courtroom.

He adds that even the Court of Appeal does not have jurisdiction for the same reason. [ 25 ] He then goes on mentioning the common law, the civil code and Egyptian law, repeating that the Court had no jurisdiction and that the Crown had a duty to consult.

This episode ended when Judge Mainville asked the defendant to sit down while he continued talking saying that he wanted this statement on the record: “You are on my land, Métis land and I have a right to be here on my land to challenge this Court.” [ 26 ] Near the end of the proceedings, there was a second discussion between the defendant and the Court where he said:” If I may just guide the court, the main documents in the rebuttal [13] have been served on the Crown prior to today… The citations that I brought all refer to the rebuttal exhibits, and some refer to the factum which was filed in the Superior Court which is the core of our argument” … [ 27 ] On August 9, 2019, the Court of Appeal dismissed the appeal also declaring that it was irregular for lack of jurisdiction [14] . [ 28 ] Following these events, Judge Lyne Décarie was appointed as the case managing judge in the matter pursuant to

section 551.1 of the Code . Her administration of the Cardin and Paquin files also led to interlocutory appeals.

[ 29 ] Thus, on October 31, 2019, a new notice of appeal [15] was filed by Cardin and Paquin in the Court of Appeal.

The heading, like other documents, is also referring to the conjunction with the Kinakwii Indigenous Tribunal, habeas corpus with praetor and replevin but also has new mentions referring to indigenous law and tradition and equity including the common law. [ 30 ] The grounds for the appeal are in reference, inter alia, to the Crown’s duty to consult, to land claims that are to be argued by the representative of the Chief’s choice and such other grounds as counsel may advise and the Court permit [16] . [ 31 ] The notice is signed by Cardin and Paquin who have also added their coordinates in handwriting.

Near their signatures, the typed inscription “The KIT Legal Team 829 Norwest Rd S 124 Kingston, ON K7P 2N2 (613) 561-6117” is found. Then, the KIT4equity@gmail.com email address appears again. [ 32 ] Finally, on these notices, another document was produced in support of the Crown’s theory regarding statement of offence number 5. It is again a notice of appeal to the Court of Appeal, and it is dated December 3, 2019 [17] . [ 33 ] The title or the description of the notice also shows resemblance with the other documents as it refers to the Kinakwii Indigenous Tribunal, praetor and replevin and indigenous law.

The difference, this time, is that it is an appeal from a decision of Judge Décarie on a Quo Warranto application. [ 34 ] The ground for the appeal is the following: “You are hereby demanded to answer the writ and produce evidence showing by what right or authority you hold such liberties and privileges.

The onus is on the respondent Justice, who must either disclaim or justify, swear on the King James bible 1611 version, under penalty of perjury in provision of his/her evidence to support his/her answer.” [ 35 ] The different paragraphs of the core of the document repeat some of the arguments already seen earlier.

Thus, that the appellants only recently came to discover their Métis cultural origin [18] , that the Crown must be ordered to consult [19] , that the land claims are to be argued by the representative of the Chief’s choice, etc. [ 36 ] The notice, this time, presents, at the end, the typed coordinates of Cardin and Paquin accompanied by their signatures.

There also is an addition that states: “From: The Kit Legal Team” followed by the Kingston address and the KIT4equity@gmail.com address [20] . [ 37 ] That testimony ended the presentation of the evidence for the Barreau. [ 38 ] The defence began with the testimony of Pierre Cardin. He joined the Kinakwii nation while he was before Judge Saint-Gelais in February 2019. He stated that KIT was the international [21] tribunal of the Kinakwii nation and that he was a member of that tribunal having sat on one case. He apparently also had some responsibilities doing research at the KIT library.

Further, he added that the address KIT4equity@gmail.com was the address of the tribunal and that there were other email addresses to communicate with the defendant. [ 39 ] He acknowledged that while he did not write them, he had reviewed the documents and signed P-4, P-10, and P-11. When asked about the role of the defendant in these matters, he stated that he was his nation’s representative for the land claim issue before Judge Saint-Gelais and before the Court of Appeal. He was not acting as a lawyer but as the nation’s representative [22] . [ 40 ] Regarding the mail sent to Mr.

Bardier [23] , he said it came from KIT, the tribunal, and he forwarded it. Then he stated that Mr. Bogue was never a member of KIT. Further, in looking at P-3, during his cross-examination, he acknowledged that some of the statements were copied from other documents created for other proceedings [24] . [ 41 ] In the Court of Appeal, he was seated in the back while Mr. Paquin and the defendant were in front. Mr. Bogue was in front because he wanted to speak to the Court. The witness remembers Mr. Paquin saying, “The one who is taking care of this

part is Spirit Warrior ” referring to the defendant and adding, “ Spirit Warrior is our counsel.” [ 42 ] The second witness called by the defence was Mr. Jean-Marc Paquin also known as Black Wolf . When he testified, he was just coming out of prison and was in a transition house after being sentenced to four years of detention in the fraud case mentioned earlier. [ 43 ] He was chief of finances until he was detained in December 2020. Afterwards, he had to suspend his activities due to his conditional liberation conditions.

He was also a member of KIT and sat on two cases. [ 44 ] At one point their attorneys, in the criminal matter, who had never done a jury trial before, asked for a special consideration for their services and ended up withdrawing from the file when it was refused. That is when they, Cardin and Paquin, asked for the defendant’s help. Mr. Bogue came over to help and to support them. Mr.

Paquin said that he had never thought that he was a Mic-Mac Métis and that revealed a whole new reality for him. [ 45 ] He added that the defendant’s intervention was centred on the land claim [25] and how to ascertain their rights in such a situation.

Thus, in the Superior Court, he had come from Ontario to explain the process. [ 46 ] Both in the Superior Court and the Court of Appeal, he explained the claim as a representative of the Chief of the nation, it is in this capacity that he presented the explanations addressing the courts. [ 47 ] Then, after these general remarks, the witness was led through the documents filed in evidence by the attorney for the Barreau

de Montréal. [ 48 ] Regarding P-4, he said that he prepared it and copied procedures of KIT [26] for the introduction. As for P-6, he said that he worked on it, prepared most of it, but was helped by KIT and to his knowledge, the defendant did not work on it. [ 49 ] Looking now at P-10, again, he got help from ASKIT to prepare the document but as far as he knows, Mr. Bogue was not involved with the legal team.

About P-11, most of the document he did prepare himself but this time he had help from a retired American judge. [ 50 ] Everything that was produced, did he add, was verified by Pierre Cardin, they were in there together, they worked as a team. [ 51 ] Additionally, he acknowledged that the land claim’s objective was to stop the prosecution against them . Further, when cross- examined on the meaning of praetor, replevin, and the law of Ma’at, his answers were superficial, to say the least.

Finally, the statements he made at the end of his testimony revealed that Kinakwii is almost nonexistent anymore since the end of 2020. [ 52 ] The defendant then took the stand. [ 53 ] Mr. Bogue or Spirit Warrior is, we have seen that earlier, an attorney suspended from the Law Society of Upper Canada since April 2017. Before that, he lived in the USA for 40 years and recovered his licence to practise in February 2015. That same year, he discovered that he was a Métis and offered to give counselling as he was a lawyer.

He was then formed in indigenous law by the Grand Chief of Asmin, Murkwa Wabiska and clan mother, Ikway Michine. He will end up being the Kinakwii Chief justice and the Attorney General of the Asmin nation. [ 54 ] Before being suspended he did act on behalf of others in matters touching on aboriginal laws and traditions raising arguments that have some similarity with the ones presented before the Court of Appeal, the Superior Court, and the undersigned [27] . However, he was adamant in saying that after his suspension, he was very careful in conforming himself to the law and gave no legal counselling.

In that perspective he added that the Law Society had appointed an enforcement officer in the person of a certain John Rae who oversaw the enforcement of his suspension.

After being suspended, he worked as a sort of liaison for the internal problems of Kinakwii. [ 55 ] Yet, document P-15 shows that, during that period, he did act, at least in the case of Grand Chief Buffalo Eagle, as an agent for the applicant, asserting different arguments before the Ontario Superior Court of Justice [28] . [ 56 ] He added that the Grand Chief asked him to represent the Kinakwii nation, among other things, in its dealings with the Canadian state in a nation-to-nation logic.

The objective was to get peace between the Métis and Canada, to get a treaty that would recognize the nation. [ 57 ] On August 7, 2019, he was present in the Court of Appeal at the request of the clan mother since Cardin and Paquin had asked for help. He went to scout around because of similar hearings in Cornwall and Newmarket. He was there to make the land claim on her behalf. He sat in the courtroom near Jean-Marc Paquin.

He did address the Court saying that he was on his land and telling Justice Mainville that he was not a lawyer. [ 58 ] The defendant then drew this court’s attention on the case of Georgina v. Blanchard [29] of the Ontario Court of appeal. There, he was allowed by the Court to appear as the spokesperson for the moving party, in that case Grand Chief White Buffalo Eagle again.

He continued underlining that we have two courts of appeal that are saying two different things. [ 59 ] Then, the defendant’s testimony took us to the many hypotheses as to why his email address at the Law Society was, unbeknownst to him, changed to the KIT4equity@gmail.com. He is unwavering, it was never his email address with the Law Society and relying on D-15.1, he submits that someone did that, update his business email, on January 22, 2019, without his knowledge and consent.

He files a large number of documents in support of his proposition. [ 60 ] In essence, the defendant’s testimony is a general negation of him participating in the preparation of any of the documents filed in support of the charges and a denial that he practised law by acting for Cardin and Paquin in the Court of Appeal. THE LAW [ 61 ] The Act respecting the Barreau du Québec [30] provides that certain acts, when performed for others, are the exclusive prerogative of the practicing advocate or solicitor. Thus, at division XIII of the Law, it is declared that: PRACTICE OF THE PROFESSION OF ADVOCATE 128

(1) The following acts, performed for others, shall be the exclusive prerogative of the practicing advocate or solicitor: (

a) to give legal advice and consultation on legal matters; (

b) to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts; […]

(2) The following acts, performed for others, shall be the exclusive prerogative of the practicing advocate and not of the solicitor:

(

a) To plead or to act before any tribunal, except before: […] [62] As far as the documents are concerned, the defendant is charged in relation to subparagraph 128

(1) b) of the Act that, in theBarreau’s perspective, prohibited the preparing and drawing up of the notices and memorandum[31] for Cardin and Paquin. In relation tohis presence in the Court of Appeal and his intervention, subparagraph 128

(2) a) of the Act and its prohibition to act for others, isreferred to by the prosecution in support of its theory. Both these subparagraphs need to be read in conjunction with sections 132 and 133of the Act that provide, essentially, that whoever practices the profession of advocate without being entered in the Roll is guilty of anoffence and that any person, not being a member of the Bar, practices the profession illegally who acts as an advocate.

ANALYSIS [63] Looking first at the evidence tendered by the prosecution regarding the statements of offence relating to the preparation ofdocuments[32], it is trite to say that it is circumstantial in its nature. Because of that, the rule reformulated by the Supreme court ofCanada in the decision of Villaroman[33] will apply: [18] Over time, this requirement was relaxed: see, e.g., R. v. Mitchell, (SCC), [1964] S.C.R. 471; R. v. Cooper, (SCC), [1978] 1 S.C.R. 860.

It is now settled that no particular form of instruction to the jury is required where the evidenceon one or more elements of the offence is entirely or primarily circumstantial. As Charron J. writing for a majority of the Court put itin R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33: We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one ofidentification: R. v. Cooper, (SCC), [1978] 1 S.C.R. 860.

The essential component of an instruction on circumstantialevidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inferencethat can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may beachieved in different ways: R. v. Fleet (1997), (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v.Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), (ON CA), 142 C.C.C. (3d)380 (Ont.

C.A.), at para. 29. [Emphasis added.] [64] In order to avoid confusion, the Supreme court suggested the word reasonable be used instead of rational to qualify the soughtconclusion but acknowledged that both terms were equivalent[34]. [65] This being so, in examining the evidence, this Court will also have in mind the analytical frame developed by the Supremecourt in the landmark case of R. v.

W. (D.)[35] regarding credibility issues and the application of reasonable doubt. [66] To begin with the testimonies of Cardin and Paquin, who stated that they either prepared or reviewed the documents filed, theCourt does not give much credit to their evidence. [67] As an example, Cardin could not even name correctly the tribunal which he was supposed to be a member of.

He mentionedtwice that KIT was the Kinakwii International Tribunal rather than the Kinakwii Indigenous Tribunal. [68] As far as Paquin is concerned the answers he gave when cross-examined on the meaning of different concepts named in theprocedures that he had presumably prepared, showed his lack of knowledge and understanding of what he was supposedly responsiblefor drafting[36]. [69] To this one must add, that when they unexpectedly discovered they were Métis they used this land claim argument, in theCourt’s opinion, only to try to get the criminal procedures against them stopped.

Moreover, they were convicted of fraud and that alsogoes to their credibility. In a nutshell, the Court does not believe much of what was said by either of these two. [70] But that’s not the end of it. The defendant took the stand essentially to deny any participation in the preparation or drawing upof these documents. [71] On that topic, the attorney for the prosecution showed, by comparing numerous paragraphs of a good number of documents, thesimilarity between what the defendant had written or said in the past and what was to be found in the evidence filed in this Court[37].

Inmany instances, it is difficult not to recognize the imprint of the defendant. [72] But the truth of the matter is that the Court cannot exclude that, as the defence pointed out, the documents have been preparedby others utilizing the defendants previously written procedures as inspiration or model. That conclusion drawn from the evidence is alsoreasonable and cannot be discarded. [73] The KIT4equity@gmail.com address found in many places, is only one element to be considered in the entire panorama of thecircumstantial evidence in this case.

The explanations given by the defendant on this matter showed weaknesses but, in the end, thereremains a reasonable doubt concerning the proof of the actus reus on these counts.

Consequently, the defendant is acquitted of counts 1,2, 4 and 5 that he was facing. [74] Turning our attention to the third count or statement of offence now, the situation is altogether different. [75] This Court finds the intervention of the defendant in the Court of Appeal as it is summarized at paragraphs 21 to 26 above, to beconstitutive of the offence found in count or statement 3 of the file. [76] His arguments attacking the authority and jurisdiction of Judge Saint-Gelais to manage the matter, the way she did, by settingthe case to another date and by removing lawyers from the courtroom, can only be construed as acts to put forward the position of Cardinand Paquin.

Let’s remember that, according to Paquin, the land claim’s objective was to stop the prosecution against them. [77] The other comments or observations made by the defendant regarding, for instance the duty of the Crown to consult, the lack of

jurisdiction of the Court of Appeal and even his offer of guidance to the Court, especially in reference to the rebuttal [38] , are also acts for others that are the exclusive prerogative of the practising advocate.

They were also meant to be in furtherance of the position of Cardin and Paquin, its is the only reasonable conclusion to be drawn from the facts. [ 78 ] The P-7 recording is an objective piece of evidence that cannot be contradicted, and it establishes, beyond a reasonable doubt, that the defendant did perform the actus reus of the offence that is the object of this third statement of offence. [ 79 ] With this in mind, the Court also finds that the lack of due diligence shown by the defendant, in these circumstances, cannot allow him to avoid his liability on this offence.

Furthermore, the Court points out that a due diligence defence is not available if the defendant relies solely on a mistake of law to explain the commission of the offence [39] . In that logic, the fact that he was, ex post facto, authorised to appear as spokesperson for Grand Chief White Buffalo Eagle in the Ontario Court of Appeal has no bearing on the outcome of this case. [ 80 ] Before concluding, the Court will add that it did take notice of the January 2023 additional written arguments from both parties. However, the defendant, together with his pleadings, submitted an 82 pages book of exhibits.

While the filing of some of these exhibits had already been rejected by the Court, others were never produced or presented at trial. In the absence of a motion to reopen the case in accordance with

section 211 of the Code of Penal Procedure , the Court will not consider any of the new evidence submitted. [ 81 ] For all these reasons, the defendant is declared guilty of the offence of illegally practicing law by acting on behalf of Pierre Cardin and Jean-Marc Paquin before the Court of Appeal on August 7, 2019, contrary to sections 128 (2) a), 132 and 133

b) of the Act respecting the Barreau du Québec and to

section 188 of the Professional Code . FOR THESE REASONS THE COURT : ACQUITS THE DEFENDANT on counts 1, 2, 4, and 5 in file 500-61-515899-202; DECLARES THE DEFENDANT GUILTY on count 3 in file 500-01-515899-202; ORDERS THE PARTIES TO BE PRESENT in the Montréal courthouse on the 17th of May 2023, in room 6.01 at 2 PM for a pro forma sentencing hearing. __________________________________ PIERRE DUPRAS, J.C.Q. Nicolaos Strapatsas For the Barreau de Montréal Glenn Bogue also known as Spirit Warrior Acting for himself. Dates of hearing: December 13 th and 14 th 2021, February 28, 2022, August 26, 2022, October 13, 2022; Written arguments January 12 th and 24 th 2023.