R v Smith, 2023 ABCJ 267

In the Alberta Court of Justice Citation: R v Smith, 2023 ABCJ 267 Date: 20231204 Docket: A77774325R Registry: Calgary In the Matter of R v Smith Between: His Majesty the King - and - Jason Peel Smith Decision of the Honourable Justice P.B. Barley [ 1 ] The accused is charged under s 9(2)(

a) of the City of Calgary Business License Bylaw 32M98 with not allowing a City bylaw officer to conduct an inspection at his business on February 26, 2021. [ 2 ] The matter was held before me because the accused had filed a Notice of Constitutional Challenge prior to trial. [ 3 ] The trial was held before me on October 20 and 23, with a voir dire on the Charter issues blended in. The bylaw inspector Officer G. Powell was the only witness for the City and the accused was the only witness in his defence. He played a video of the incident which he had recorded.

Facts [ 4 ] The accused owns a tattoo parlour called New Dimension Tattoos, located in the City of Calgary. He had a City of Calgary Business License and had operated without conflict with the authorities. He testified that he had dealt with Alberta Health Services inspectors on multiple previous occasions without incident. [ 5 ] However, on February 26, 2021, Officer Powell attended with inspectors from Alberta Health Services and Occupational Health and Safety, and two City Police Officers.

The inspectors entered the waiting area and met the accused and his wife, Sarah Kent, who seemed to be acting as receptionist. The accused agreed in his evidence that she was acting as his agent throughout their encounter. [ 6 ] The bylaw officer explained that AHS had received a complaint that persons had been unmasked in the premises, contrary to

the Covid Protocol which was then in place. Kent responded that the Officer needed to read two notices that were posted outside, and that they needed to show proof, or were trespassing. She said that they were under Common Law. Ms. Kent then got a man called “Marco” on the speaker phone. The accused admitted in testimony that Marco was speaking with his consent and on his behalf. Marco told the Officer that the Covid Protocol had been nullified by s 52(1) of the Charter, that this had been confirmed by the Supreme Court of Canada and that they were committing

an act of treason. He also added that the bylaw violated the Charter because the premises were private property. It was claimed that they were under Common Law. [ 7 ] The Officers and Marco then spoke over each other making it impossible to hear what each was saying. However, one of the other officers eventually asked “Can I look?” [ 8 ] Ms. Kent replied “Did you bring proof?” [ 9 ] The officer left without inspecting the premises.

Argument [ 10 ] The accused argues that the attempted search of his premises violated his s 7 and s 15(1) Charter rights and was a trespass on private property. [ 11 ] He argues that both the Covid Protocol set up by Alberta Health Services and the City masking bylaw were invalid because of the provision of s 52(1) of the Chater which provides The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [ 12 ] The accused also argues that the intention to search violates international protocols to which Canda is a signator. [ 13 ] The accused argues that at no time did he deny the Officers the opportunity to conduct an inspection. [ 14 ] He further argues that the rules governing Covid Protocol from Alberta Health Services and the city bylaw were struck down by the Alberta Court of Kings Bench in Ingram v Alberta (Chief Medical Officer of Health) 2023 ABKB 453 and that this negates the necessity of allowing an inspection to check compliance of these rules. [ 15 ] He further argues that his premises were not a public property and that the Officers were therefore trespassing.

He states that documents should have been shown to him to justify their presence at his business premises. [ 16 ] The accused then claims that the charge should be dismissed, to be reimbursed $140 for legal fees, $3500 for missed wages, and to be awarded $400,000 for trespass, $50,000 for emotional and psychological distress, $100,000 for violation of s 15(1) of the Constitution Act, and $200,000 for violation of s 7 of the Constitution Act. Notices [ 17 ] The accused relied heavily upon two notices that he had posted at the entrance of his business.

The first, headed “NO TRESPASSING” demanded that anyone acting for a service corporation provides proof that an “obligation exists with service corporation to jurisdiction over my property”. The notice provides a trespass fine of $100,000 for the first trespass, and an increase of $200,000 for each additional trespass. The second notice is to all members of the Crown and all public servants. It advises that the occupants waive their right to be recognised as legal persons before the law and claim their right to be recognised as human beings. It advises that they choose not to associate or belong to any society.

Any action limiting human right was to be dealt with immediately pursuant to s 24(1) of the Constitution Act of Canada 1982 and was to be considered treason against Her Majesty. [ 18 ] The accused’s arguments have elements of the philosophy of Organized Pseudolegal Commercial Argument, as explained by Chief Justice Rooke in Meads v Meads 2012 ABQB 571 . [ 19 ] One of the most prominent is his demand that he be paid $400,000 for trespass based on a No Trespass Notice that he had posted at the entrance of his business, which his wife had insisted the Officers read after entry. [ 20 ] Justice Rooke had referred to attempts to create legal obligation for others that interact with the claimant of the right (para 43).

He states “this is of course nonsense” (para 441). [ 21 ] In para 243 he points out that OPCA adherents often demand that the Crown provides proof that it has the authority to proceed against the litigant. In the present case, the accused’s wife asked “Did you bring proof?” She then states “He must have proof or are trespassing”. This was also on the shorter notice. [ 22 ] Ironically, one notice denies the right of anyone, or any society to impose obligation on them, and the other purports to impose obligations on others.

The shorter one insists that any public servant prove the existence of a contract between society and the accused, and the last sentence seems to unilaterally impose obligation on others without the existence of a contract. [ 23 ] Justice Rooke addressed this type of document by stating, after reviewing Meads claim to penalties from other persons acting in a certain way What is the value of this document? Nothing. It is just another foisted unilateral agreement. Courts have uniformly refused to enforce

‘agreements’ of this kind. [24] In R v Gauthier 2017 ABQB 555the court agreed ‘the fee

schedule concept is another long debunked OPCA scheme’ Onecannot unilaterally impose a system of fines and sanctions on others. [25] Accordingly, I reject the accused’s claim to large amounts of money based upon these notices.

It is also not within myjurisdiction to award damages on a bylaw matter. [26] The accused also claims to be able to ‘choose not to associate or belong to any society.’ This reasoning was rejected by thecourt in Meads v Meads as explained in R v Gauthier 2017 ABQB 555 [59] Gauthier stated “I ... revoke my consent to be governed by the Crown, legal system participants, agents or any other individual orcorporation.”, and “estoppel in pais” bars “bringing of charges under any statute or Act against Adam C. Gauthier, Independent SovernIndividual. [emphasis in original].

He confirms in his July 19, 2017 email that, as far as he is concerned, the government has no rightsover him on the basis of the “Claim of Right”. [60] Documents like this, foised unilateral agreements, have no legal effect: Meads v. Meads, at paras 405-10, 458-72. Silence fromgovernment actors does not created agreement per “estoppel in pais”. You cannot ‘opt out’ of the operation of legislation: R. v. Gerlitz,2014 ABQB 247, 589 A.R. 43 (Alta. Q.B.); R. v. Petrie, 2012 BCSC 2110 (B.C. S.C.) at paras 51, 55, (2012), 107 W.C.B. (2d) 29(B.C.S.C.); Szoo v.

Royal Canadian Mounted Police, 2011. [27] Accordingly, I find that the accused is bound by the same laws as the rest of us.

In case he feels aggrieved by having toremain in society, I would point out that belonging to society has certain benefits, like fire protection and a functioning monetary system.The authority governs property owned by private citizens. [28] The accused also claims that the bylaw under which he is charged is nullified by s 52(1) of the Constitution Act because itviolates “his fundamental rights and freedoms by limiting his right to self determination and limiting his ability and liberty to provide forhimself in a way he deems necessary and without discrimination against him”. [29] He quotes from Zingre v The Queen et al (SCC), [1981] 2 S.C.R. 392 that “a state may not invoke theprovision of its internal law as justification for its failure to perform its international obligations”.

He does not explain how allowing aninspection of his business would violate international law. [30] There is a reference to s 7 and s 15(1) of the Charter being violated. The Counsel for the City acknowledges that the accusedin his original notice of Charter Challenge, the accused referenced sections 1, 2, 7, 8, 9, 10, 12, and 15(1) of the Charter. However, theprosecution argues that the accused abandoned the argument based on all sections other than 15(1) when appearing before aCommissioner on March 21, 2023, when the procedure to hear the Charter challenge was discussed.

At that time the accused stated So that is really where the core of this comes in Your Honour. I was being discriminated against, because I did have an exemption for notbeing able to wear a mask. When it was brought to the attention of AHS prior, we had no issues. We had even – again, we really wouldlike this to be heard in an inherent jurisdiction, because again, I feel as though we are getting a little stuck in a loop here. The situation is is [sic] I’m not sure, was it Grant Powell (phonetic) who came in, he gave us a ticket saying we were not willing to allowan inspection.

Yet, again, on the day of the ticket, we – sorry, I just lost my train of thought – yeah, that’s correct, they never mentionedthe word “inspection.” They kept saying that they were coming in to investigate a complaint. We had told them – and we even got manymany emails showing that we’ve had inspections. There was even one that was booked, and we passed days later – with the exception,again, of the fact that the Constitution again, 15(1), is the fact that this all stems from a discrimination for me and my medical conditionof not being able to wear masks.

So that for me is really – of all the other points, that to me, 15.1, is really where I feel as though my human rights have been violated. [31] Counsel for the City argues that this is an abandonment of notice that the accused intends to rely upon any

section other than15.1. I do not interpret it as being that specific, especially with an unrepresented accused.

Accordingly, he may rely upon both s 7 and s15.1 in his final argument. [32] S 7 provides “everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof exceptin accordance with the principles of fundamental justice. [33] In the present case, the accused’s life, liberty, and security of the person were not at risk in any way. [34] S 15(1) provides Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [35] The accused argues that he was being discriminated against because he was being forced to wear a mask, despite having amedical exemption.

However, the inspection was of his business premises, not of him personally. There was never a suggestion by anyof the Officers that he was going to be charged with not wearing a mask. As such, s 15(1) is not engaged. [36] Since there is no violation of the Charter, all evidence called is admissible in the trial proper. [37] The accused also argues that the decision in Ingram v Alberta supra means that the basis for the search, an alleged violationof Covid protocol, was invalid and that no search was justified. This ignores the clear distinction between investigation and enforcement.

If the search had been allowed and an infraction of masking rules was alleged, it may very well have been qualified. However, on the date in question, the law was still in place and the inspection was valid. [ 38 ] The accused argued that he did not prevent the inspection. However, the consistent insistence by Sarah Kent, acting on his behalf, that the Officers read the notice, and demanding of proof that there was a contact, makes it obvious that entry was not permitted without such proof, which was not about to be provided, lead to the obvious conclusion that entry for the inspection was disputed.

As such, the refusal is made out and the offence is proven. [ 39 ] As such I find him guilty of the charges under the bylaw. I dismiss all his claims for damages. Dated at the City of Calgary, Alberta this 4 th day of December 2023. P.B. Barley A Justice of the Alberta Court of Justice Appearances: Edward Ring for the City of Calgary Jason Peel Smith for the Accused