R. v. Cassista, 2013 ONCJ 305

Citation: R. v. Cassista , 2013 ONCJ 305 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- SHAWN CASSISTA REASONS FOR JUDGMENT Duncan J. 1 . The defendant/Appellant was charged by information under

Part III of the POA with driving without insurance, specifically: On or about the 17 th day of May 2010 at the City of Mississauga in the Central West Region did commit the offence of being the owner of a motor vehicle licence number ALMH 783, did unlawfully operate the said motor vehicle on a highway to wit: Cawthra Road at approximately 12:25 pm when it was not insured under a contract of automobile insurance contrary to section 2(1)(

a) of the Compulsory Automobile Insurance Act 2 . He was ultimately tried over 2 years later, on July 19 2012. He was convicted and sentenced to pay the minimum fine under the statute of $5000. He was given 12 months to pay. He has appealed conviction and sentence. The evidence: 3 . At trial a police officer testified as to the stopping of a vehicle for speeding on May 17 2010. He identified the defendant as the driver. No proof of insurance was produced and in fact no claim of having insurance was made by the driver/defendant.

The officer gave the defendant his card with phone and fax number and invited him to present proof of insurance. The defendant did not do so. On May 31the officer charged him with the offence and proceeded to have him summonsed. 4 . The defendant did not challenge the officer’s evidence in cross examination and did not testify. He made no submissions. In the over two years leading up to and including the trial, the defendant presented no proof or claim to having been insured at the relevant

time. He still has not done so, three years later. The Appeal: 5. As the defendant did not challenge the evidence or deny or dispute his guilt, one may well wonder what these protractedproceedings and this appeal are about. The Notice of Appeal lists no grounds but rather states that grounds will be provided whentranscripts become available.

The Appellant has since filed a factum and a written “Closing argument” and presented oral submissions.Stated broadly, the appeal is based on the contention that the defendant was denied the right to a fair trial because the trial Justicerefused to hear the various motions that he had filed. 6. Indeed the trial Justice did refuse to hear the motions. She reviewed the history of proceedings, commented that the defendantwas playing “fast and loose with the Court” and declared “motion shmotion” , ‘enough is enough” and that “this process has been abusedenough”.

She directed that the trial proceed and it did - over the defendant’s pouting. The issue now is whether the trial Justicecommitted an error of law in proceeding in this way or whether a miscarriage of justice was occasioned. 7. To determine the issue, the nature of the motions must be identified and appreciated. The motions in question were: 1. A Motion to stay proceedings on the grounds that the HTA and the CAIA apply only to corporations.[1] 2. A Motion to stay proceedings on the grounds that a law only applies to those who consent to it. 3.

A Motion to stay proceedings for breach of the right to trial within a reasonable time. The first two Motions – OPCA arguments 8. It is apparent that the defendant is an “Organized Pseudo-legal Commercial Argument” (OPCA) litigant of the type described,labeled, dissected, and exposed by Alberta Associate Chief Justice Rooke in Meads v. Meads 2012 ABQB 571 , 2012] A.J. No980. While the defendant has not identified himself by any of the many names embraced by OPCA litigants, such as “Freeman on theLand”, it is clear that his approach bears many of the OPCA hallmarks and characteristics.

For example, his writings show a fondnessfor Latin phrases and citation of legal dictionaries. He practices the bizarre “dual/split person” routine, identifying himself to the court as“Shawn-Alan of the family Cassista” and accompanies this self-identification with mumbo-jumbo about artificial persons and naturalpersons and being one or the other or both (Ref: Transcripts December 20 2010, May 27 2011: see Meads para 206; para 245; para 417) . 9.

More importantly[2], both of these motions brought by the defendant are grounded on easily recognizable, well-worn OPCAarguments – frequently raised and uniformly rejected by the Courts (see Meads para 71). They are based on a central OPCA theme thatthe litigant is not bound by the law or subject to the authority of the courts. The theme and many of its iterations have been identified inMeads and thoroughly rebuked as nonsense. 10.

The first motion - based on the argument that traffic laws only apply to corporations - is built on a twisted path of reasoning to theeffect that because the relevant statutes define “persons” as including corporations, the law therefore applies only to corporations. Thisargument was identified in Meads (para 315) and specifically rejected there and in other decisions cited. 11.

The second motion sought a stay of proceedings on the grounds that: “ the Crown’s claim of the Defendant’s obligation to enter into a private insurance contract is not in harmony with fundamentalprinciples of law and long upheld rights based on self-evident truths of necessity” While none too clear, it appears that this argument is based on the contention that the law cannot oblige the defendant to do something -in this case obtain and maintain auto insurance - unless he consents. Put another way, it is a contention that a person can unilaterally opt-out of a law.

In his brief [3] submission before me on appeal, the Appellant confirmed that that was indeed his position. Again Meadsidentifies and eviscerates the argument (Meads para 174; para 379-38, para 405-6).

What hearing did these Motions deserve? 12. It is beyond doubt that every litigant before the court has the right to be heard. But how much of a hearing is he entitled to? Clearly the Court is not obliged to sit passively and patiently until the litigant exhausts his breath, decides to stop and sits down. A Court is entitled to give arguments and motions short shrift. But how short is too short? The answer must depend on the circumstances, including the nature of the argument and the bona fides with which it is presented. 13. In my view, OPCA arguments are entitled to the shortest possible shrift.

They are patently without merit and, as shown in Meads , have never been successful in any Court. They are arguments that are not fact or case specific and therefore can have no more merit in one case than in another – that is, none. As neatly summarized by Justice O’Donnell in R v Duncan [2012]OJ No 6405 in dealing with OPCA arguments : Such arguments are a waste of the court's time and resources, a selfish and/or unthinking act of disrespect to other litigants and deserving of no further attention, energy or comment. 14.

Moreover OPCA strategies and arguments are not bona fides but rather are designed and presented with intention to disrupt. They are scams that abuse the legal process. ( Meads para 70 -71 ) They require a strong and swift judicial response. In Meads the Court suggested that OPCA material should not even be accepted for filing by the Court clerks and, if accepted, should be reviewed by a judge and “without further submission or representation by the litigants” be rejected ( Meads para 256 ) . 15.

Accordingly, it is my view that the only hearing that such arguments are entitled to is to have the Court read and appreciate the grounds upon which the motion is based. If the motion contains incomprehensible gibberish or discloses patently ridiculous or meritless arguments or raises known rejected OPCA themes, then the Court is entitled to dismiss the motion or refuse to hear it - without further inquiry, representation or submission. 16.

In this case the record is not clear that the trial Justice went even this minimal distance and informed herself as to the substance of both of the motions - though it is also not clear that she did not. She did refer to the “corporations” argument at one point (p10) and commented that the defendant was “playing” and that “enough was enough”. The other motion was not mentioned but that may be because it was incomprehensible or at least not easily described with a label.

The impression however is that, given the history to that point, the justice refused to hear any more motions at all, no matter what their character or content. Her similar treatment of the 11b motion supports this impression. 17. But even assuming that the trial Justice did not go far enough and failed to conduct what I consider to be the minimal review of the defendant’s material, it is my view that he suffered no miscarriage of justice as a result.

This is because, had the trial justice read the motions or even gone further and heard submissions, it is inevitable that the motions would have been rejected and dismissed. They had no merit. There is no point in awarding a new trial, particularly in these protracted proceedings, in order to have another justice conduct a brief scrutiny of the defendant’s motions before dismissing them. [4] The 11b Motion 18. The motion to stay for alleged breach of

section 11b is a different story. It was not one that the justice could decline to hear or could summarily dismiss. It was not an OPCA argument or otherwise one of manifest lack of merit. To the contrary, on the face of the record there had been an extraordinary delay that required examination. 19. The trial Justice reviewed the history of delay but with respect, in my view she failed to adequately examine the reasons that gave rise to the delay.

Further she misapprehended the history of the proceedings in reading the endorsements on the information as indicating “seven dates specifically for trial” when in fact there had been “only” four trial dates. 20. Further, there were some mis-statements of the case history by the prosecutor, mainly the statement that the defendant did not pick up his disclosure for a year or longer. This was corrected seconds later by the prosecutor himself (P8 L 7).

The Appellant’s written argument on appeal dwells to the point of obsession with what he calls the prosecutor’s “lies”, a magnificent example of the pot calling the kettle black. For example the defendant’s written factum on appeal in paragraph 2 states: “The date that the initial summons was issued was May 17 2010 and the only request for delay by the Appellant was on a third trial date of January 4 th 2012”.

The transcript record now before me and summarized below betrays this as plainly inaccurate, to describe it charitably. 21. Contrary to the Appellant’s contention, with the assistance of the transcripts, there is no significant conflict about any facts that are relevant to the 11b analysis. The chronology is as follows: • May 17 2010 – date of the offence • June 3 2010 – information under

Part III of POA sworn charging the offence of no insurance. Summons issued returnable June 23 • June 23 2010 – first appearance in court – trial date set for January 12 2011 • December 20 2011 – the defendant brought a motion to adjourn the trial date on the ground that he needed more time to prepare his defence. A new date was set for July 20 2011. Note he had not even requested disclosure by this point. • February 9 2011 – the defendant made his first request for disclosure. By fax • April 19 2011 – the defendant made his second request for disclosure.

By fax • May 27 2011 – the defendant brought a motion for disclosure saying his earlier requests had not received a response. The Crown was unable to provide any information about that since its disclosure clerk was not available. There was some discussion as to whether the defendant was asking to adjourn the trial as well. The defendant expressed concern that he may not have enough time to prepare once he received the disclosure.

A new trial date was then set for January 4 2012. • May 30 2011 – defendant was notified that disclosure was ready for pick up (see transcript July 19 2012 P 8) • August 26 2011 – defendant brought another motion for “additional disclosure” – It was an unusual request asking that the Crown “clarify the meaning of the word “person” as used in the Compulsory Automobile Insurance Act. This was apparently in furtherance of the argument, later advanced, that the Act only applied to corporations. There is no transcript of the Court proceeding on August 26.

It is not known whether such “disclosure” was ordered by the court. Whether it was or not, the Crown ultimately answered the defendant’s question in writing by letter dated November 23 2011. • December 21 2011 – the defendant filed a “Notice of Application for Stay of Proceedings” on the grounds of breach of his right to trial within a reasonable time, 11(b).

He also filed a “sworn statement” detailing his version of the case history to that point, emphasizing the delays in obtaining initial disclosure and the additional disclosure. • January 4 2012 – No transcript is provided but the defendant later told the court that he “postponed” that date so he could obtain transcripts for the 11b motion. (see transcript July 19 2012 – P 1-2). A new trial date was set for July 19 2012 • May 28 2012 – the defendant brought a motion to stay proceedings on the grounds that “the HTA and CAIA apply to corporations only”.

The motion was dismissed. (no transcript provided) • June 21 2012 - the defendant filed a motion returnable on July 9 seeking a stay of proceedings on the grounds “ that the Crown’s claim of the Defendant’s obligation to enter into a private insurance contract is not in harmony with fundamental principles of law and long upheld rights based on self-evident truths of necessity” • July 9 2012 – the above mentioned motion was adjourned to be heard on the trial date.

• July 19 2012 – the trial date. The trial justice reviewed the record of proceedings as disclosed by the endorsements on theinformation and heard a

summary of the case history from the Crown. The Court concluded that the defendant was playing “fast andloose” with the Court and abusing the process. She declared that “enough was enough”. She declined to entertain any more motions anddirected that the trial proceed. The defendant complained that he was being “ambushed”. A short recess was called. When court resumedthe trial proceeded as described above. 22. In

summary, the defendant had 4 trial dates over the two year period. Each date was within the constitutionally tolerable time framefor POA traffic matters: R v Andrade et al 2011 ONCJ 470 , [2011] OJ 4245 ( Libman J). Each of the three adjournmentswas at the request of the defendant. However he seeks to shift responsibility for delay to the Crown by claiming that he was put in aposition of having to seek an adjournment because of delayed disclosure. The Late Disclosure Contention: 23.

First it must be appreciated that while a defendant is considered to have a right to disclosure in these matters and that disclosure isprovided as a matter of course in the Provincial Offences Court, realistically, in this case, disclosure was not required at all. Thedefendant had personal knowledge of all of the relevant facts and evidence related to the stop. To the extent that they mattered and mayhave escaped the defendant’s memory, the particulars were set out in the charge itself (see para 1 above). It was his onus to prove thathe was insured.

What could he possibly learn through disclosure that he didn’t already know? The suggestion that it was necessary forfull answer and defence is transparently disingenuous. 24. The first adjournment and ensuing delay (Jan 2011- July 2011) was sought by the defendant without reference to disclosure andbefore any request for same had been made. 25. When disclosure was finally requested by the defendant for the first time in February 2011 there was an unexplained and inordinatedelay until May when it was provided.

But the question is not whether the Crown is responsible for disclosure being delayed butwhether it is responsible for the trial being delayed. This is turn requires consideration of the importance of the disclosure and the timingof its eventual arrival in relation to the trial date: R v NNM (ON CA), [2006] OJ 1802 (CA) at para 37. As perabove, this is not a case where disclosure was required at all in order for the defendant to go to trial.

Further, when the motion fordisclosure was brought, the trial was still two months away and albeit an adjournment was suggested by the court, the defendant readilyagreed to delay his trial again. The delay in providing disclosure did not necessitate the adjournment and trial delay. Rather it was thedefendant’s decision and choice that resulted in the delay. 26. As for the second disclosure request re the meaning of “person”, this was not disclosure at all. The Crown was not obliged toanswer the defendant’s questions regarding legal

definitions. In any event, no trial delay was occasioned as a result of this unusualexchange since it all happened within the time between the second and third trial date. 27. The third adjournment of the trial date was again at the defendant’s request in order to prepare an 11(

b) application. Again, that washis decision and his choice. The defendant is responsible for delays caused by applications that he chooses to bring: R v NNM supra atpara 65. This is particularly so when the application at that point (and any point) had no merit whatsoever. 28. In

summary, the Crown was not responsible for any of the three trial adjournments. They all resulted from requests or, in the oneinstance, a choice made by the defendant. Apart from that, there was absolutely no prejudice to the defendant. To the contrary hereceived the benefit of a two year postponement of the inevitable fine. 29. The 11(

b) claim has no merit. Any error in the handling of the issue by the trial justice was of no consequence. 30. The appeal from conviction is dismissed. Sentence appeal: 31. The defendant was fined the minimum amount of $5000. While there is authority under the POA to reduce even a minimum fine,

this is not a case in which to do so. In fact, I would suggest that the inference is clear that the defendant does not accept that he is bound by law to insure his vehicle. It is very likely that he will continue to hold this attitude and continue to own and operate his vehicle without insurance. The need for specific deterrence is therefore augmented. 32. The Crown has not appealed sentence and I will not increase the sentence on my own initiative.

I would suggest however that in the future trial courts should give serious consideration to elevated fines, licence suspensions, and vehicle impoundment in cases such as this. 33. The appeal from sentence is also dismissed. May 28, 2013 B Duncan J A Bruno for the Crown S Cassista for himself