R. v. Westover, 2013 ONCJ 472

COURT FILE No.: Grey County 3303775A DATE: 2013·08·26 Citation: R. v. Westover , 2013 ONCJ 472 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c.

P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN (as represented by the Municipal Prosecutor for the County of Grey) Respondent — AND — JOSEPH WESTOVER Appellant Before Justice Brophy Heard on 12 March 2013 Reasons for Judgment released on 26 August 2013 Theona Hamilton ............................................................................................ for the prosecution The defendant Joseph Westover on his own behalf On appeal from a conviction by Justice of the Peace Shortt on 29 June 2011.

Brophy J.: INTRODUCTION [ 1 ] This is an appeal brought by Joseph Westover from his conviction on 29 June 2011 for the provincial offences of driving a motor vehicle with no license, contrary to section 32 (1) of the Highway Traffic Act , R.S.O. 1990, c. H.8, as amended, and driving a motor vehicle with no validation sticker on the plate, contrary to section 7 (1) (c)(

i) of the Highway Traffic Act . [ 2 ] A four-day trial of these two offences began on 9 May 2011 and ended on 12 May 2011. The presiding Justice of the Peace gave judgment in the matter on 29 June 2011. APPEAL PROCEDURE [ 3 ] The appeal is pursuant to

Section 135 of the Provincial Offences Act . [ 4 ] It should be noted that this appeal was dismissed as abandoned in the fall of 2012 when Mr. Westover failed to attend on the date set for hearing. Subsequent to that, he made an application to restore the appeal pursuant to Section 137 (3). The prosecutor generously consented to the reopening. [ 5 ] An appeal under

section 135 of

Part I and II offences is conducted by means of a review. See Section 136(2). No guidance is given in the statute as to what test is to be applied in that review. [ 6 ] However, it would appear that ordinary appellate considerations would apply with reference to misapprehension of the law and misapplication of the law to the facts. See the R. v Zehr [2011] O.J. No. 4493 (Ont. C.J.) . [ 7 ] For guidance it is useful to consider appeals under

Section 120 (that is to say

Part III offences commenced by way of Information), where the statutory directions are more explicit. In Ontario (Ministry of Labour) v. EFCO Canada Co. , 2012 ONSC 149 , the following appears: 28 The Provincial Offences Act , R.S.O. 1990, c. 33, s. 120(1) states: On the hearing of an appeal, the court by order,

(

a) may allow the appeal where it is of the opinion that, the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or on any ground, there was a miscarriage of justice. 29 The Crown submitted that I am not to interfere with the decision of the trial judge unless the findings are the product of a palpableand overriding error. In this regard, the Crown relied on the authority, H.L. v.

Canada (Attorney General), 2005 SCC 25 ,[2005] 1 S.C.R. 401. 30 This authority goes on to say, however, that the test is met when the trial judge's findings can be characterized as unreasonable orunsupported by the evidence. (Para. 56), the wording codified in s. 120 above. 31 I note the Ontario Court of Appeal decision in Waxman v. Waxman, (ON CA), [2004] O.J. No. 1765 (C.A.),and at paragraph 296, I quote: The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error isone that is obvious, plain to see or clear.

At paragraph 297, the court states: An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. 32 R. v. Prince Metal Products Limited is a June 2011 endorsement of Justice Hoffman of the Ontario Court of Justice and involves anappeal under the OHSA. At paragraph 20 the learned judge states, The standard of review on questions of law is correctness. The standard of review on findings of fact is palpable and overriding error. POSITION OF THE APPELLANT [8] In this appeal Mr. Westover seeks an acquittal.

He also asks for various forms of declaratory relief that are not availablethrough this court. [9] The grounds for appeal are stated in an expansive manner, but at their core the argument is that the trial Justice of thePeace failed to recognize the constitutional rights of the appellant and did not address various issues that were raised with reference to theCanadian Bill of Rights, the Universal Declaration of Human Rights, covenants on civil and political rights from an internationalperspective, and argues that the trial Justice of the Peace failed to recognize his lack of jurisdiction and that the “man” is separate fromthe legal fiction or trademark name. [10] In his submissions the appellant amplified his argument by indicating that the rights that were not recognized werereligious rights and rights of free movement and association. [11] The submissions of the appellant are an amalgam of secular and religious statements that are confusing and difficult tofollow.

In addition the appellant filed a 212 page Appellant’s Factum that was dense and almost impenetrable. Notwithstanding theeffort that must have gone into the preparation of that document, it is sadly of very little persuasive value.

I also had the benefit ofreading a transcript of the submissions made by the appellant at the conclusion of the trial before the Justice of the Peace, and thosesubmissions were equally unclear. [1] DECISION OF THE JUSTICE OF THE PEACE Facts [12] The trial Justice of the Peace found that the facts in the case were not complicated and were essentially acknowledged. [13] On 2 August 2010 the appellant was stopped by a police Constable on a routine traffic matter. The appellant wasoperating a motor vehicle that belonged to his parents.

The motor vehicle did not have a proper validation tag on the license plate and theappellant did not have a driver’s license. The Justice of the Peace also found that the appellant said to the police officer that he hadallowed his license to expire for religious reasons and that it was not his concern that the motor vehicle did not have the proper validationsticker because it was not his vehicle. [14] At trial, these essential facts were not challenged either by the appellant’s own evidence or in his cross-examination of thepolice officer. [15] There is a caveat with respect to the facts that should be noted.

During the argument on this appeal, the appellant said thathe did not concede that he was driving the motor vehicle, relying upon an

interpretation of the meaning of the word “driving” as it relatesto commercial activities. This is a classic difference that is not a difference. It is clear that he was the operator of the motor vehicle, andthe question simply is whether or not he failed to follow the rules set out in the Highway Traffic Act, governing the operation of motorvehicles on public highways. Reasons of the Justice of the Peace [16] In his reasons, the trial Justice of the Peace identified as a principle threshold issue the question of whether or not theappellant had a sincere religious belief that would exempt him from the requirement to have a driver’s licence and a proper validation

tag. The Justice of the Peace found that the appellant had not established that he had a sincere religious belief. [17] The Justice of the Peace cited Bothwell v. Ontario (Minister of Transportation) [2005] O. J.

No. 189 with respect to theidea that sincerity of religious belief was a necessary and critical ingredient in advancing an application seeking an exemption fromcompliance with the Highway Traffic Act as a result of religious beliefs under the any Canadian Charter Rights and Freedoms, CanadaAct 1982 (U.K.) c. 11, as amended. [18] The reasons of the Justice of the Peace then seem to say that that the Bothwell decision set out a three-part test todetermine the sincerity of religious beliefs.

Specifically, it was necessary that the individual be a member of a religious organization, thatany request to be exempted from submitting to a photographic or a digital image on the driver’s license be supported and substantiated bythe individuals religious leadership, and thirdly, the applicant needs to provide actual scriptural passages to substantiate the religiousobjection. [19] The Justice of the Peace found that on the evidence that the appellant did not have a sincere religious belief. [20] The Justice of the Peace then dealt with the other claims related to freedom of movement and association in a passingmanner, but made no separate comment with respect to same. [21] Essentially the finding of no sincere religious belief settled the matter in his mind and the appellant was found guilty.

ANALYSIS Errors in Law [22] There are two problems with the decision of the Justice of the Peace. [23] The first is that the Bothwell decision does not reference a three part test of religious sincerity and there is no othercitation saying where the three part test comes from. It is clear however that this test is not how religious sincerity is determined. This isan error in law. [24] The second problem is that there is no substantive analysis or comment on the other claims made under the Charter. Thisclearly is an error in law in light of the many decisions related to meaningful reasons being required. See R. v.

Sheppard (2002), 2002SCC 26 , 162 C.C.C. (3d) 298 (S.C.C.), and its companion case, R. v. Braich (2002), 2002 SCC 27 , 162 C.C.C. (3d)324 (S.C.C.). [25] It is recognized however that at the time of this decision the case of Meads v Meads, 2012 ABQB 571, had not beenreleased, nor had Justice Morneau’s appeal decision in the R. v. Rosemary Westover, unreported (court file number 999 10 214 00, leaveto appeal refused), been given. Those two decisions answer the questions raised in this case but they were not available to the Justice ofthe Peace.

Bothwell [26] The Bothwell case involved a George Bothwell, also known as George Hugh, bringing an application before theDivisional Court to obtain a driver’s license without a photo identification associated therewith. The argument was based upon hisreligious beliefs exempting him from that requirement. The issue before the court was whether or not his rights under

section 2(

a) of theCharter had been violated with respect to those beliefs and whether or not this was a justifiable limit on the applicant’s freedom ofreligion under

section 1 of the Charter.[2] [27] The Bothwell decision ultimately turned upon the question of whether or not Mr. Bothwell had met the burden on him ofestablishing the sincerity of his religious belief. The Divisional Court determined that he had not and as a result dismissed hisapplication. [28] Although this was a civil case, the dicta in that decision is very apropos to the issues in this case. The court said asfollows: 48 Charter claims must be considered in context.

The applicant's claim that his freedom of religion has been violated must be analyzedin the context of the regulation of the use of the public highways. The jurisprudence has firmly recognized that driving itself is aprivilege and not a right: Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to othermembers of the public who use the roads. R. v. Hundal, (SCC), [1993] 1 S.C.R. 867, 79 C.C.C. (3d) 97 at 105 (S.C.C.). In Galaske v.

O'Donnell, (SCC), [1994] 1 S.C.R. 670, it was noted that the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence. Attached to every right are concomitant duties, obligationsand responsibilities. This is true of the licenced right to drive. One of the prime responsibilities of a driver is to see that reasonable care isexercised in the operation of the motor vehicle and specifically, that it is driven in a manner which does not endanger members of thepublic. R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193 at 210 (S.C.C.).

It is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways. Proper laws and regulationsare necessary to regulate the privilege of driving a motor vehicle on public thoroughfares.

R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, 56 C.C.C. (3d) 22 at 39 (S.C.C.). 49 The violation of religious freedom that the applicant alleges does not result from any state law or act that compels him to observe aparticular religious belief or practice, or from any restriction on his ability to manifest his particular religious beliefs. Rather, the allegedburden is an indirect result of the mandatory photo requirement that is attached to the privilege of driving. 50 Finally, the nature of the freedoms as guaranteed in s. 2 of the Charter does not usually impose a positive obligation on thegovernment.

In Delisle v. Canada (Deputy Attorney General), the Supreme Court of Canada held: It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positiveobligation of protection or assistance. ... As I said before, except in exceptional circumstances, freedom of expression imposes only anobligation that Parliament not interfere (see in this regard Native Women's Assn. of Canada v. Canada, (SCC), [1994] 3S.C.R. 627, supra), and the exclusion of RCMP members therefore cannot violate it. Delisle v.

Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989 at paras. 26, 38. Hotel Dieu of Kingston v. Ontario (Health Services Restructuring Commission) (1999), (ON CA), 175 D.L.R. (4th)185 at 190-192 (Ont. C.A.). 51 It is in this overall context that the applicant's constitutional claim should be assessed. 52 The Supreme Court of Canada recently confirmed, in Syndicat Northcrest v. Amselem, that the

section 2(

a) guarantee of freedom ofreligion protects sincere individual religious belief and is not limited only to objectively valid belief. Syndicat Northcrest v. Amselem,[2004] 2 S.C.R. 551, [2004] S.C.J. No. 46, 2004 SCC 47 at para. 56. 53 While a court cannot inquire into the validity of an individual's religious belief, it can inquire into the sincerity of it. As LaForest J.stated in R. v. Jones, "a court is not precluded from examining into the sincerity of a religious belief when a person claims an exemptionfrom the operation of a valid law on that basis. Indeed it has a duty to do so." R. v.

Jones, (SCC), [1986] 2 S.C.R. 284 at295 (per La Forest J.). Syndicat Northcrest v.

Amselem, supra at para. 51. 54 In assessing the sincerity of an individual's religious belief, the court's role is to ensure that the asserted religious belief "is in goodfaith, neither fictitious nor capricious, and that it is not an artifice." The Supreme Court of Canada has cautioned against a rigorousscrutiny of sincerity of religious belief, providing some guidance with respect to assessing sincerity of belief in Syndicat Northcrest v.Amselem: Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of theclaimant's testimony ... as well as analysis of whether the alleged belief is consistent with his or her other current religious practices.

Syndicat Northcrest v. Amselem, supra at paras. 52, 53. [29] In my view, the Justice of the Peace was in error, both with respect to finding support for the three pronged test employedby him in the Bothwell decision and in using that test as the basis for finding a lack of a sincere belief in a religious idea. The Syndicatcase clearly cautions against too rigorous an analysis of the sincerity of belief question.

The court’s inquiry into sincerity is simply toensure that the asserted religious belief is in good faith and is not fictitious, capricious, or an artifice. [30] In this case, it is evident that the appellant had religious views that he said governed his life. There was none of thehypocrisy that appeared in the Bothwell decision that moved the Divisional Court to find that there was not a sincere belief.

It isappreciated that the trial Justice of the Peace had the opportunity to observe the appellant testify and in that sense was better able toassess his personal credibility, but the application of the three-part test was incorrect. Those requirements are rigid and do not reflect theapproach taken in Syndicat. [31] In addition the lack of reference to the other broad claims related to freedom of association and movement are not dealtwith by the Justice of the Peace and needed some comment, however brief. Remedy [32]

Section 138 grants to the court broad powers to affirm, reverse or vary the decision appealed from, including directing anew trial. It is specifically stated that the appellate decision should be made in light of what is necessary to satisfy the ends of justice. [33] Further, as stated in R. v. J.J.R.D., supra: [35] Certainly, a trial judge owes it to an accused to explain his or her reasons for convicting that accused. Where the accused hastestified, this will include an explanation for rejecting the accused’s denial.

However, where the sufficiency of the reasons is challengedon appeal, the outcome of the appeal must turn on whether there can be a meaningful appellate review of the trial proceedings: see R. v.G.(L.) (2006), 2006 SCC 17 , 207 C.C.C. (3d) 353 at para. 14 (S.C.C.). This is evident from the observation in Sheppard,supra, at para. 55: Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appealcourt’s explanation in its own reasons is sufficient.

There is no need in such a case for a new trial. [34] This court is able to reconsider the matter on the basis of the record that exists. There is no need for a new trial. Thereality is that the Justice of the Peace came to the right conclusion for the wrong reason. Answer

[35] The basic premise of the appellant’s argument has already been answered in a number of cases and it is not necessary forthis court to engage in a long exposition of same. It is sufficient to reference the cases that have dealt with the issue. [36] I begin by referring to Meads v Meads. This was a decision of the Alberta Court of Queen’s Bench that was acomprehensive set of reasons dealing with what the trial judge called Organized Pseudolegal Commercial Argument litigants.

Thatdecision dealt with many of the issues that are present in this case and although it is not binding on this court it has persuasive value. [37] Paragraphs 276 to 285 of Meads respond to the arguments made by the appellant in this case: 276 Religion is a common basis for a claim that a court cannot act. While the precise manner in which religion or religious principlesare invoked may vary, all these schemes appear to flow from a common rationale; there is some form of religious authority or law thattrumps that of the court and Canada. 277 Some OPCA litigants claim immunity on the basis of religion, or like Mr.

Meads, say they are only subject to something like"God's Law", or biblical principles. Often these religious beliefs conveniently excuse an OPCA litigant from some onerous obligation,such as paying taxes, or obtaining a driver's licence, motor vehicle registration, and automobile insurance. Members of the Edmontonarea Church of the Ecumenical Redemption International, the group headed by "minister" Belanger, claim that their possession and useof marijuana is authorized by the King James Bible and therefore the state and courts have no authority to restrict those activities.Similarly, Mr.

Meads, in his submissions, stated he does not recognize marriage outside a biblical context, and divorce can only flowfrom infidelity. He says a court-ordered divorce based on other criteria cannot bind him. 278 Belief, religious activity, and association is a protected right under Charter, s. 2(a). However, Canadian courts recognize that as arestricted right that is subordinate "... to such reasonable limits prescribed by law as can be demonstrably justified in a free anddemocratic society.": Charter, s. 1.

The Supreme Court of Canada has been explicit that religious beliefs do not trump the right ofgovernment to organize and regulate Canadian society, as was recently reviewed in Alberta v. Hutterian Brethren of Wilson Colony, 2009SCC 37, [2009] 2 S.C.R. 567. 279 OPCA litigants do not usually frame their religious arguments in a Charter context, but that would be the appropriate approach forthem to pursue the rights they say flow from their beliefs, rather than a bald declaration of religion-based immunity.

That is not tosuggest that such Charter-based arguments will succeed, but they will at least be appropriately framed. 280 OPCA litigants have also seized on the

preamble to The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982,c .11, which reads: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law ... [Emphasis added.] 281 This passage has been the subject of occasional judicial commentary, most simply because various litigants have argued that thepreamble makes any of Canada's laws subject to the "supremacy of God". This proposition is expertly dismantled and dismissed byJustice Muldoon in O'Sullivan v. Canada (No. 2) (1991), (FC), 45 F.T.R. 284, 84 D.L.R. (4th) 124 (F.C.T.D.), wherehe concludes: The

preamble to the Charter provides an important element in defining Canada, but recognition of the supremacy of God, emplaced inthe supreme law of Canada, goes no further than this: it prevents the Canadian state from becoming officially atheistic. It does not makeCanada a theocracy because of the enormous variety of beliefs of how God (apparently the very same deity for Jews, Christians andMuslims) wants people to behave generally and to worship in particular. The

preamble's recognition of the supremacy of God, then, doesnot prevent Canada from being a secular state. [Emphasis added.] See also Mercedes-Benz Financial v. Kovacevic, [2009] O.J. No. 783 at para. 42, (Ont. Sup. Ct. J.); Pappas v.Canada, 2006 TCC 692 at paras. 1, 9-10, [2006] G.S.T.C. 161; R. v. Demers, 2003 BCCA 28 at paras. 15-16, 177 B.C.A.C. 16, leaverefused [2003] S.C.C.A. No. 103. 282 Other OPCA litigants claim that legislation, common law, and court principles and procedures are subject to "God's Law", orother divinely ordained rules or principles, have been uniformly rejected: Bloom v.

Canada, 2011 ONSC 1308 at paras. 6-7; Sandri v.Canada (Attorney General), at paras. 5, 13, 179 A.C.W.S. (3d) 811 (Ont. Sup. Ct. J.); Pappas v. Canada, 2006 TCC692 at paras 1, 9-12, [2006] G.S.T.C. 161; R. v. Lindsay, 2011 BCCA 99 at para. 31, 302 B.C.A.C. 76, leave refused [2011] S.C.C.A.No. 265; Gravlin et al. v. Canadian Imperial Bank of Commerce et al, 2005 BCSC 839 at para. 50, 140 A.C.W.S. (3d) 447. 283 In Dempsey v. Envision Credit Union, 2005 BCSC 1730 at para. 6, 145 A.C.W.S. (3d) 1040, this declaration took the form of acolourfully named "Constructive Notice of Child of God Status".

At para. 30 Justice Garson concluded that was not a basis to removeher from a trial, as the litigant "... has not "accepted" my jurisdiction to hear this matter." The same approach was unsuccessful atdefeating the Law Society of British Columbia's authority to regulate legal practice: Law Society of British Columbia v.

Dempsey, 2005BCSC 1277 at paras. 8, 16, 179, 194, 142 A.C.W.S. (3d) 346, affirmed 2006 BCCA 161, 149 A.C.W.S. (3d) 735, see also Szoo v.Canada (Royal Canadian Mounted Police), 2011 BCSC 696 at paras. 21, 45. 284 Similarly, there is there is no "God given right" to travel on public roads that trumps legislation: Sydorenko v. Manitoba, 2012MBQB 42, see also R. v. Kaasgaard, 2011 MBQB 256, para. 7 and Winningham v. Canada.

Justice Herauf concluded a debtors's claimto be "washed of debt by the blood of our Lord Jesus Christ who has redeemed us of all debt ... is pure unadulterated rubbish!": Dirks v.Canada (Minister of National Revenue - M.N.R.); Dirks, Re, 2007 SKQB 124 at para. 7, 31 C.B.R. (5th) 192. 285 Mr. Meads advanced an ill-formed argument that "God's law" or the "Maximus of Law" is the law that he chooses to apply in thisproceeding. There is, of course, no basis for that demand, and in any case that would not defeat or restrict the authority of this Court.

Thesame would be true of any argument that this Court's authority is subject to any other religious perspective or prescription. [38] In this jurisdiction there has been case law that has dealt with the arguments made by the appellant in this case. Justice of

the Peace Gay in the R. v. Rosemary Westover, 20 August 2010, unreported (Information numbers 09-402 and 10-214), found that onvery similar facts to this case Rosemary Westover (the mother of Joseph Westover, the appellant in these proceedings) did have a sincerereligious belief inhibiting her from making use of drivers licenses and matters of that nature. After taking into account the test in R. v.Oakes, (SCC), [1986] 1 S.C.R. 103, he found that the regulations imposed by the Highway Traffic Act, for personsoperating motor vehicles on the highway were justifiable under

section 1 of the Charter and that they applied to Rosemary Westover. [39] That decision was appealed to the Ontario Court of Justice and Justice Morneau upheld Justice of the Peace Gay on 17July 2012. In paragraph 21 of her reasons she states: There is no religious right, private right, human rights, fundamental right or in alien noble, right to drive a motor vehicle in Ontario on ahighway. It is a privilege. Associated with that privilege there are obligations on the owners of such motor vehicles and or the drivers ofthe same. [40] Rosemary Westover sought leave to appeal to the Ontario Court of Appeal.

On 30 January 2013 Justice McPherson of theCourt of Appeal denied leave to appeal. See R. v. Rosemary Westover, unreported (court file number M41881). In his endorsement hesays the following: Both judges [Justice of the Peace Gay and justice Morneau] dealt comprehensively with the applicant’s legal arguments. I am impressedwith their analyses. In particular, I can see no error in the reasoning or conclusions reached by the

summary conviction appeal judge,… . He then quotes with approval paragraph 21 cited above. CONCLUSION [41] For the reasons set out in Bothwell, Meads v. Meads and R. v. Rosemary Westover (at all levels), it is abundantly clearthat regulation of the highways in Ontario is a necessary function of government and any infringement of rights and freedoms, includingfreedom of religion, association or movement, that might occur with respect to same are justifiable in a free and democratic society undersection 1 of the Charter of Rights and Freedoms.

As a result, even if the appellant had a sincere religious belief that he should not abideby the rules and regulations related to motor vehicles and highways he is not exempt from same. [42] As said by Justice Morneau at paragraph 32 of her Rosemary Westover decision: “She is free to choose to not to drive amotor vehicle.” [43] The appeal is therefore dismissed. [44] If the parties wish to speak to costs they may contact the court office within 30 days to arrange a hearing.

Released: 23 August 2013 Signed: “Justice Brophy” [1] Notwithstanding the lack of focus in the factum and argument the appellant is entitled to be heard and have his argument considered.If the argument is not valid it is ordinarily sufficient to simply say why that is the case and leave it at that. See The “Human Excellence” of Judging, Slaw, April 22nd 2013, Legal Ethics; [2] In the case at bar the defence called the very same George Bothwell (George Hugh) as a witness, ostensibly to testify as an expert.His evidence was found to be of no probative value.