R. v. Dornn, 2012 MBCA 85

Citation: R. v. Dornn, 2012 MBCA 85 Date: 20120921 Docket: AR 12-30-07805 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) P. M. Dornn ) on his own behalf (Respondent) Respondent ) ) R. N. Malaviya ) for the Respondent - and - ) ) Chambers motion heard: ) August 16, 2012 PHILLIP MARK DORNN ) ) Decision pronounced: (Accused) (Appellant) Applicant ) September 21, 2012 MICHEL A. MONNIN J.A. 1 The applicant seeks leave to appeal from a decision of a

summary conviction appeal court judge. 2 The applicant was convicted of five offences under The Highway Traffic Act , C.C.S.M., c. H60 (the Act ) – driving without a licence (x2); driving without insurance (x2); and failing to stop at a stop sign. 3 The provisions of the Act under which the applicant was charged are ss. 85 , 173(1) and 226(2) respectively, which read as follows: Compliance with traffic control devices 85 Except when otherwise directed by a peace officer, every person shall obey the instructions or directions on, or conveyed by means of, an applicable traffic control device. Driver’s licence required 173(1) No person shall drive a motor vehicle on a highway unless (

a) he or she holds a valid driver’s licence of a class that authorizes him or her to operate the class of motor vehicle he or she is operating; or (

b) he or she holds a valid out-of-province driving permit that authorizes him or her to operate the class of motor vehicle he or she is operating, and he or she is authorized by

section 31 of The Drivers and Vehicles Act to drive the motor vehicle in Manitoba. Driving without certificate of insurance 226(2) If this Act requires a person to hold a driver’s licence while driving a vehicle on a highway, no person shall drive the vehicle on a highway unless a certificate of insurance

(

a) has been issued to the person in respect of the driver’s licence under The Manitoba Public Insurance Corporation Act and theregulations under that Act; and (

b) is valid. 4 Before the Provincial Court judge who heard the initial trial, the applicant took the position that he was not a personas referred to under the provisions of the Act. Those submissions were not accepted and the applicant was found guilty. 5 The applicant appealed those convictions on the same basis that he had argued before the Provincial Court judge, aswell as attempting to raise the applicability of the Canadian Charter of Rights and Freedoms (the Charter). His arguments weresummarized by the

summary conviction appeal court judge as follows: .... It’s clear, within the Canadian Charter, and with the case law that follows, the Charter does not regulate the interrelationship ofprivate individuals engaged in private activity with each other. It only is triggered when the government becomes involved and somehowaffects the individual rights. Likewise, Mr. Dornn argues that the Highway Traffic Act is an enactment of the Provincial Government,and as such, being restricted by the Charter, does not regulate private individuals engaged in private activity. The Charter precludes thegovernment from doing so.

His argument is that the Crown presented no evidence that on the days in question when Mr. Dornn wascharged, that he was engaged in any activity other than private activity on his own behalf as a private individual. He further argues, and I acknowledge that this is merely a secondary argument from him and not his primary argument, that thedefinition of a person does not appear in the Highway Traffic Act, but rather appears in the

Interpretation Act. He argues that the wordperson, as defined under the

Interpretation Act, does not encompass a private individual. Therefore he states that on the day in question,as a private individual engaged in private activity, that he was not subject to prosecution under the Highway Traffic Act and should nothave been convicted for these offences as the government lacked jurisdiction, as well as the Provincial Court being a court of statute,therefore restricted to statutory jurisdiction, lacked its jurisdiction to entertain the offences as well. 6 Those submissions were rejected and the initial convictions were upheld. 7 The applicant sets out in his application the grounds on which he seeks leave as follows: . . . . . (

d) I believe my rights under sections 1, 2(a)(b), 6(2)(a)(b), 7, 8, 12, and 15 of the Charter to have been violated and under

Section 24 ofthe Charter (1) ... Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances; (

e) The Highway Traffic Act is inconsistent with the Charter by reason of

Section 52. The Crown failed to prove that the term personwhich is not defined in the Highway Traffic Act actually includes God’s creation of man whose God given rights cannot be eroded. Theerror in law is the presumption that I am a legal person. Human persons, persons, corporate persons all have unique responsibilities andduties under the rule of law. Man has duties and responsibilities before God that are so defined in the Bible. 8 The test to be met when seeking leave to appeal from a

summary conviction appeal decision is set out in R. v.Langlois (D.J.), 2008 MBCA 72, 228 Man.R. (2d) 256 (at paras. 4-5): For

summary conviction appeals, the threshold is considerably higher. Pursuant to s. 839 of the Code, the decision of the appeal judgemay be appealed, with leave, to the Court of Appeal on any ground that involves a question of law alone. In addition, if a question of lawdoes arise, leave should only be granted if the matter raises an arguable case of substance which is of sufficient importance to merit theattention of the full court. See, for example, R. v. Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 407 W.A.C.69; 2007 MBCA 104; R. v. Giftwares Wholesale Co., (MB CA), [1980] 3 W.W.R. 573 (Man.

C.A.); and R. v.O’Connor (M.A.) et al. (1996), (MB CA), 110 Man.R. (2d) 153; 118 W.A.C. 153 (C.A.). The reason for this higher threshold is that the

summary conviction sentence has already been reviewed by a judge of the Court ofQueen’s Bench. That court is “the primary appellate court for

summary conviction matters”. See R. v. Suberu (M.) (2007), 2007ONCA 60 , 220 O.A.C. 322; 85 O.R. (3d) 127; 2007 ONCA 60, at para. 67.

9 In argument before me, the applicant’s main point was that he was not a person as contemplated by the provisions of the Act as, according to him, a person as defined by The

Interpretation Act , C.C.S.M., c. I80, does not encompass a human being, but a corporation. 10 In answer to the applicant’s argument, the Crown argues that the applicant has not raised an arguable case of substance and that the argument he wishes to raise has already been dealt with by other courts. In support of this submission, the Crown relies on R. v. Klundert , 2008 ONCA 767 , 93 O.R. (3d) 81 , and R. v.

Porisky , 2012 BCSC 67 (QL) . 11 Both cases relied on by the Crown were prosecutions brought under the provisions of the Income Tax Act , but, as in this case, the accused were attempting to argue that they were not included in the definition of a person. In dismissing that argument, Myers J. in Porisky wrote (at paras. 62-63 ): The courts have rejected the natural person argument in several tax evasion cases. In R. v.

Klundert (No. 2) , 2008 ONCA 767 ; leave to appeal to the Supreme Court of Canada refused … MacFarland J.A., stated: [11] ... he [the accused] explained his failure to pay taxes as arising from his belief that he was not obligated to pay taxes. Klundert took the position that he was not obligated to pay income tax because he believed the Act does not apply to him. Klundert testified that he is neither a “person” nor a “taxpayer” as defined in the Act. ... [15] In essence, Klundert’s evidence was that as a natural person he had no obligation to pay taxes because he didn’t owe any.

The respondent did not consider himself to meet the definition of “person” as that term is defined in the Act . According to the respondent, he had the option to act as a natural person - to whom the Act does not, in his view, apply, or to submit to the Act as a taxpayer. Because the respondent considered himself to be earning income in his individual capacity for himself as a natural person and not as a taxpayer, he did not believe he was under any obligation to pay income tax. ... [19] Unfortunately for the respondent, the Act does not distinguish between persons and natural persons.

The definition of “person” in the Act includes human beings of which specie the respondent belongs. The courts have rejected similar “natural person” arguments and rendered convictions in three other cases where the accused have taken courses from Mr. Porisky: R. v. Sydel , 2006 BCPC 346 ; R. v. Turnnir , 2006 BCPC 460 ; and R. v. Amell , 2010 SKPC 107 . 12 Finally, the applicant has failed to convince me that the

summary conviction appeal court judge erred in rejecting his Charter argument or that it has any merit. 13 Although the applicant has satisfied the requirement that he wishes to advance questions of law, the first is not a novel one as the issue he wishes to raise has already been decided, and the other, as I have stated, is devoid of merit. Furthermore, he has not convinced me that he has an arguable case of substance which is of sufficient importance to merit the attention of this court. 14 The application for leave is accordingly dismissed. J.A.