R. v. Swallow, 2014 NSPC 65

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Swallow , 2014 NSPC 65 Date: 2014-08-20 Docket: S-15031713 Registry: Pictou Between: Her Majesty the Queen v. William Albert Swallow DECISION ON AUTOMATIC CONVICTION Revised Decision: The text of the original decision has been corrected on August 26, 2014 and this decision replaces the previously released decision. Judge: The Honourable Judge Del W. Atwood Heard: 20 August 2014, in Pictou, Nova Scotia Charge:

Section 64 of the Motor Vehicle Act Counsel: William Gorman, for the Nova Scotia Public Prosecution Service William Albert Swallow not responding to the call of the court By the Court: [ 1 ] I have decided to issue a written decision in this matter as it is likely that the court will not have heard the last of it, and I wish to provide court administration staff some operational guidance with respect to any application that might be made to strike out the automatic conviction that was entered on this ticket. [ 2 ] William Albert Swallow stood charged in

summary offence ticket number 15031713 with an offence under

section 64 of the Motor Vehicle Act; the ticket alleges that on 18 June 2014, Mr. Swallow operated a motor vehicle without a valid driver’s licence.

Up until the time the case was called in court, the record was made up of the ticket, as well as a notice of intention to appear in court in the name of William Albert Swallow; the notice confirmed a number of facts which I shall recite: • “I am the person named on this ticket.” • “I wish to appear in court and plead not guilty to the offence and have a trial.” • ‘Send notification of court date to person named on this ticket.” [ 3 ] A notice of court date returnable 20 August 2014 at 9:30a.m. was issued by staff ; the notice records that it was issued by court administration and hand delivered to William Albert Swallow on 8 July 2014. [ 4 ] This procedure is in accordance with the provisions of

section 8 of the

Summary Proceedings Act, [1] and the

Summary Offence Ticket Regulations. [2] [ 5 ] The ticket was called by me during the 20 August SOT docket. At that point, a male individual in the gallery of the court arose in his place, and stated that he was before the court “by special appearance.” I made several attempt to have this gentleman confirm whether he was the William Albert Swallow named in the ticket; he declined to do so, and informed me ultimately that he was “Bill” and that was all I needed to know. Suffice it to say, things started out badly, and it was all downhill from there.

I directed that, due to the disruptive manner in which this person was conducting himself, he be removed from the court room. I then called for a five- minute recess to allow sheriff’s officials to attend to the necessary. As I left the bench, “Bill” informed me that he was dismissing the ticket.

[ 6 ] Once court reconvened, it resumed its business and dealt briefly with other matters. S-15031713 was then re-called. No one appeared in response to the ticket, and, on application of the prosecution, the court entered an automatic conviction under sub-s. 8(15) of the

Summary Proceedings Act. [ 7 ] It is not lost upon the court that the obstructive individual before me yesterday might have been William Albert Swallow. If so, I can do no better than to repeat the sage observations of Saunders J.A. in Doncaster v.

Chignecto-Central Regional School Board : 45 Litigants, self-represented or not, with legitimate interests at stake will be treated with respect and will quickly come to realize that judges, lawyers and court staff are prepared to bend over backwards to accommodate their needs, to explain procedures that may seem foreign, and to ensure that the merits of their disputes will be heard.

They and their cases will be seen as the raison d'être for access to justice. 46 Litigants, self-represented or not, with a different agenda designed to wreak havoc on the system by a succession of endless, mindless or mind-numbing paper or electronic filings, or meant to drive a spouse or opposite party to distraction or despair or financial ruin will quickly come to realize that the Court's patience, tolerance and largesse have worn thin.

They and their cases will be seen as an affront to justice and summarily shown the door. 47 More often than not, the individuals in this latter group whom I would dub "self-serving litigants" leave a trail of unpaid judgments and costs orders in their wake. Judges will not sit idly by as the finite resources of their courts are hijacked by people with computer skills or unlimited time on their hands; at the expense of worthy matters, waiting patiently in the queue for a hearing.

Faux litigants will be exposed, soon earning the tag "vexatious litigant" or "paper terrorist" whose offerings deserve a sharp rebuff and rebuke. [3] [ 8 ] I hope this explains satisfactorily my decision. [ 9 ] However, I believe that this case, as difficult as it might have been, underscores an important issue which confronts all courts, and that is one of knowing the parties. [ 10 ] The Federation of Law Societies adopted a know-your-client model rule for lawyers in 2008. [4] The model rule was adopted by the Nova Scotia Barristers’ Society in para. 4.5 of the regulations made pursuant to the Legal Profession Act.

The main purpose behind client-identification regulation is the prevention of money laundering and related malfeasance being perpetrated inadvertently in the course of providing legal services.

There are risks in other professions and trades, as well, that make the implementation of client- customer-or-patient-identification protocols highly advisable: in medicine, there is double-doctoring and ensuring the right patient will get the right treatment; in the financial-services sector, there is the risk of identity-theft fraud, mortgage fraud, and the like; in the construction-supply trade, cases have arisen involving massive thefts of inventories by con artists personating reputable contractors and trades people. The perils are multidisciplinary and multifaceted. [ 11 ] What do we do about it in court?

The court will often know well counsel appearing before it, and will have the assurance of counsels’ compliance with client-identification obligations. In criminal courts, it is often the case that the accused are persons who access court services regularly, and so the court can be assured of identification based on past dealings. [ 12 ] But what of self-litigants who are not known to the court, or, as in this case, persons who refuse to identify themselves. [ 13 ] Forensic identity fraud can happen. In R. v.

Dubois , [5] I dealt with a person who had been stopped by police several years before and charged with impaired operation of a motor vehicle. Mr. Dubois gave the arresting officer the name of a deceased relative, and police issued him process in that name; still using the alias, he then attorned to the jurisdiction of the court—or didn’t, really, if one considers that, given the way he fiddled with the process, he was never actually in jeopardy the first time around—pleaded guilty and got fined and prohibited; consequently, the sentence orders got done up in the dead-sibling’s name.

This fraud on the court would have gone undetected, but for the fact that, down the road a couple of years, Mr. Dubois was involved in a serious motor-vehicle mishap in which people were injured. One of the first responders was the RCMP officer who had laid the original charge, and he remembered Mr. Dubois from before; when he was handed Mr. Dubois’ driver’s licence at the accident scene, he picked up on the name discrepancy, and the jig was well and truly up. I wound up sentencing Mr. Dubois for the original para. 253(1)(

b) as well as the later impaired causing, and a count of personation. [ 14 ] I can recall also one SOT automatic conviction being brought before me at the instance of the prosecution in order to have it struck out; the circumstances described to me were that the ticketed motorist had identified himself to police fraudulently by giving the name of a friend. An automatic conviction went through with the alias.

The prosecution was alerted to the deception when the friend received the automatic-conviction letter in the mail and called to complain. [ 15 ] The court does not collect biometric or identity-document information on parties to allow it to identify persons appearing before it. In criminal court, accused persons are typically issued process—often at the scenes of alleged offences—and calling out a person’s name as shown on process is regarded as a valid means of identification. [6] [ 16 ] Should we be doing more? Quite likely. [ 17 ] There is something I can now.

I do not consider myself functus , as the court retains a jurisdiction to entertain an application to strike out an automatic conviction in this case, as provided for in sub-s. 8(18) of the

Summary Proceedings Act. Having jurisdiction to control the process of the court, and in order to prevent frivolous and vexatious litigation, I order as follows: • Any application brought to strike out the automatic conviction in SOT # 1503173 shall be submitted by the applicant in writing and in accordance with all applicable provisions of the

Summary Proceedings Act and governing regulations, including any

requirement for the payment of a fee; • The applicant must be the person named in the ticket, and the applicant must sign and date the application with his signature; • The application shall not be more than four A4 or letter-format pages in length, single sided; • The applicant must submit to the court with his application a photocopy of a government-issued photographic identification document or card bearing his full name, birth date and signature; in the alternative, the applicant must submit two government-issued identification documents or cards bearing the applicants full name; the name in the documents must match the name in the application and in the ticket; • Staff are not to accept any material that does not conform to the foregoing; • Acceptable application materials shall be presented to me in chambers; I will review it and either deal with it in chambers, or have staff set an appearance date with notice to the parties. [ 18 ] Ordered accordingly.

JPC