R. v. Martin, 2012 NSPC 73

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Martin, 2012 NSPC 73 Date: 20120810 Docket: 2276770-2276795 Registry: Pictou Between: Her Majesty the Queen v. Darren Martin Judge: The Honourable Judge Del W. Atwood Written decision: 10 August 2012, in Pictou, Nova Scotia Charge: 4x sub- s. 239(1) Income Tax Act (Canada) ; 22 x sub- s.237(1) Excise Tax Act (Canada) Counsel: Constantin Draghici-Vasilescu, for the Public Prosecution Service of Canada Darren Martin, on his own behalf Stephen Robertson, Nova Scotia Legal Aid, amicus curiae By the Court : [ 1 ] Mr.

Darren Martin stands charged of four violations of para. 239(1) of the Income Tax Act (Canada) , and twenty-two violations of para. 327(1) of the Excise Tax Act . Mr. Martin believes sincerely that he has been targeted unfairly by federal authorities in this prosecution and asserts vigorously that he is simply an honest businessman trying to support his family and improve his community. In defending himself, Mr. Martin has brought before the Court a number of applications seeking further disclosure from the Crown.

Most recently, he has filed with the Court a written motion to have the charges against him dismissed. [ 2 ] As with the applications for further disclosure, the motion to dismiss raises issues and arguments that are, by and large, not triable before this Court. Those issues that I find to be justiciable will be dealt with best during the trial, and are not properly the subject of a motion to dismiss. Accordingly, it will not be necessary for the Court to hear oral argument on the motion to dismiss. The motion is not granted.

In laying out my reasons, I will provide a synopsis of what has happened in this case so far.

Entry of not-guilty pleas on Mr. Martin ’ s behalf [ 3 ] As Mr. Martin declined to plead to the charges, the Court entered not-guilty pleas on his behalf. This is because the matters before the Court are

summary proceedings, as elected by the prosecutor, falling within the provisions of

Part XXVII of the Criminal Code in virtue of the definition of “ proceedings ” as set out in s. 785 of the Code .

Section 795 of that Part requires the Court to apply the provisions of

Part XX of the Code , including sub-s. 606(2); that specific sub-section makes it mandatory that the trial judge record a not-guilty plea when an accused refuses to enter a plea. Trial dates were set initially for 20, 21, 22 and 23 of March 2012; however, the Court adjourned the trial upon the appointment of an amicus curiae ; I will deal with that issue further on in my judgment. Trial dates are fixed presently for 23, 24, 25 and 26 October 2012. Applications for Disclosure [ 4 ] Mr. Martin is self-represented.

He has brought before the Court various motions to compel the Crown to provide him with additional disclosure. In these disclosure applications, Mr. Martin sought to procure evidence that would show that the legislation under which he stands charged is either ultra vires the Parliament of Canada, or otherwise invalid law as not having been properly promulgated or proclaimed. Mr. Martin questioned – and continues to question – the existence of Canada as a national entity capable of making laws, and questioned similarly the existence of the Province of Nova Scotia as a political subdivision of Canada.

He has questioned the standing of the Sovereign in Right of Canada to commence a proceeding against him. He has questioned the application of laws of Canada to his person and to his conduct. He has questioned the exemption of certain ecclesiastical entities from the application of various legislative provisions regarding taxation. He has questioned the standing of the attorney general of Canada and his agents to carry a prosecution against him. He has questioned the jurisdiction of this Court to try him, and has questioned the source of my authority to preside over his trial. Mr.

Martin ’ s applications for disclosure were dismissed as not raising triable issues. Appointment of amicus curiae [ 5 ] Except for one appearance, which occurred on 20 March 2012, Mr. Martin has continued to represent himself. The Court granted Mr. Martin a number of adjournments to allow him to retain counsel, and, on a couple of occasions, Mr. Martin appeared close to having retained a lawyer. Regrettably, nothing came of it, and Mr. Martin has made it clear that he wishes to proceed without legal counsel. That is a completely lawful choice which the Court must respect. [1] However, given my concern that Mr.

Martin ’ s insistence on raising issues not litigible before the Court might impair his right to a fair trial, I appointed Mr. Stephen Robertson, a senior staff lawyer with the Nova Scotia Legal Aid Commission, as amicus curiae , not to represent Mr. Martin, but to assist the Court in ensuring that evidentiary, admissibility, Charter , general and specific defence issues, as well as other arguments that would promote the fair trial of Mr. Martin ’ s charges might be raised in Court at appropriate times.

This appointment is in exercise of the Court ’ s undoubted jurisdiction – even as a statutory court – to control its own process. [2] As amicus , Mr. Robertson may bring applications before the Court as he deems necessary, so as to assist the Court in ensuring that Mr. Martin ’ s trial-fairness rights are upheld. He is entitled to full disclosure of all possibly relevant evidence pertaining to Mr. Martin ’ s charges in the possession of the Crown, and may request further disclosure as he deems fit. He may apply to the Court for further directions. He may meet and speak with witnesses.

He may meet and speak with Mr. Martin, although Mr. Martin is most assuredly free to refuse to meet with Mr. Robertson. He may arrange to have witnesses subpoenaed. He will be permitted to call witnesses and to cross-examine Crown witnesses at trial. He may bring to the attention of the Court admissibility issues, Charter issues, or other legal issues as he determines appropriate in carrying out his role as counsel to the Court. Patrick, also known as Ellis, appearing as agent [ 6 ] On 20 March 2012, the day the Court confirmed the appointment of Mr. Robertson as amicus , Mr.

Martin chose to be represented by an agent who was not a lawyer. This agent, who identified himself as “ Patrick ” , known alternatively as “ Ellis ” , stated clearly that he recognized the King James Bible as the only source of law, and embarked on a lengthy inquiry of the Court as to the source of its authority, raising the significance of portraiture of the Sovereign over the bench. As this agent kept getting bogged down in questions and issues that were not properly before the Court, I concluded and ordered that he not be permitted to act as agent. [3]

Recusal [ 7 ] Given the number and nature of pre-trial motions brought by Mr. Martin which required me to review extensive written submissions filed with the Court in support of those motions, I raised with Mr. Martin and the prosecutor on 20 March 2012 the question of recusation. Both parties expressed the firm position that I not recuse myself. Accordingly, on 13 June 2012 I advised Mr. Martin and Mr. Draghici-Vasilescu that I had decided to continue hearing the trial of this matter on the assigned dates.

The present motion to dismiss [ 8 ] I will observe first of all that the counts before the court appear to be in proper form, and there would appear to be no basis for the court to quash them under the provisions of sub-s. 601(1) of the Code . That is not the relief that is being sought by Mr. Martin in any event. [ 9 ] I have deferred rendering a decision on Mr. Martin ’ s 13 June 2012 motion to dismiss to allow me to review the very recent decision of Moir J. in R. v. McCormick . [4] Although that case involved charges under the Criminal Code vastly different to the charges against Mr. Martin, and although Mr.

McCormick was allied with the so-called Freeman-on-the-land movement, an organization Mr. Martin disavows completely, the judgment of Moir J. is highly instructive, in that it presents a thoughtful, measured and appropriate response to those accused persons who claim a general and wholesale exemption from the laws of Canada and Nova Scotia. The simple fact is that, short of diplomatic or sovereign immunity recognized in conventional or customary international law, such exemptions do not exist. The fact is that Canada is a country of laws.

Those laws have many sources – there are received laws, treaty-based laws, customary laws, laws passed by Parliament, orders-in-council, letters patent; there is the common law, of course, as well as statutory instruments and regulations, provincial laws, municipal laws and ordinances, territorial laws, to mention a few – and people who live in this country are bound by them as the law directs.

The law declares that people who live in Canada enjoy a number of fundamental freedoms – of thought, conscience, assembly, expression and so forth – as well as democratic rights, all of which members of the public can employ to try to get laws that they don ’ t like changed or repealed. But the fundamental principal here is that rule of law does not guarantee freedom from law. This is at the core of the judgment of Moir J.; as well established as this principle might be, it is useful to have it restated every now and again as a helpful reminder. [ 10 ] In his motion to dismiss, Mr.

Martin claims exemption from the law as he was not working under a government policy or program or performing a function of government. He asserts that, because of this, the government has no jurisdiction over him. This is clearly not correct, and arises from a misunderstanding of the effect of s. 32 of the Charter . [ 11 ] Mr. Martin asserts that he is an inhabitant of land which is not part of Canada, as “ Canada ” is defined in the

Interpretation Act . [5] The

Interpretation Act is not a basic, constitutional or foundational law, and, in any event, it is not the sole source of law. This Court has a territorial jurisdiction that is fixed by law. One of the things the Crown will have to prove when this case comes on for trial is that the subject matter of the alleged offences arose within that territorial jurisdiction. [ 12 ] Mr. Martin questions the issue of identification. One of the elements of the offences before the Court is proof of identification. If the Crown is unable to prove that essential element, then Mr. Martin will be entitled to an acquittal.

However, as with territoriality, that, too, is a matter to be dealt with at trial. [ 13 ] Mr. Martin questions the authority of the attorney general of Canada or his agents to carry this prosecution. That issue was put to rest in R. v. Hauser [6] which defined the authority of the attorney general of Canada to carry prosecutions of charges under federal statutes other than the Criminal Code .

If there were any residual doubt about that authority under the two governing statutes in this case, it is covered off by the provisions of sub- s. 239(2) of the Income Tax Act (Canada) and sub- s. 327(2) of the Excise Tax Act (Canada), which provide that, right from the very start of the charging process, it is the decision of the attorney general of Canada to determine mode of process. This evinces clear parliamentary intent that charges under these acts are to be prosecuted by the federal Crown.

[14] Finally, Mr. Martin has asserted that the investigation carried out by the Canada Revenue Agency amounts to an unjust andunwarranted attack. Mr. Martin referred in his pleadings to searches that were carried out at his home and place of business. State conduct is subject toCharter scrutiny; searches carried out by the state require prior judicial authorization and must be based on lawful authority; the lawengaged in a search must be reasonable, and the search, itself, must be carried out in a reasonable fashion.

Other state actions may attractCharter relief, as when a prosecution is advanced for an ulterior motive; for example, if criminal or quasi-criminal proceedings were tobe commenced solely for the purpose of collecting a civil debt or for enforcing some other civil remedy or claim, then the proceedings would be abusive of the court's process and may give rise to a judicial stay.[7] However, this Court, as a statutory court, may act as a court of competent jurisdiction for the purposes of granting of sub-ss. 24(1) or

(2) Charter relief only as a trial court;[8] accordingly,Charter issues may be raised by Mr. Martin prior to or during his trial, but the Court will need to hear the evidence called at trial–eitherin the trial proper or in admissibility voir dires–in order to decide what, if any, Charter relief ought to be granted in the appropriatecircumstance. Conclusion [15] As in all of Mr. Martin’s previous applications, the pleadings submitted to the Court on this motion were extensive, meticulouslyprepared and assembled.

It is rare for the Court to see this level of presentation, which I am sure represents hours of diligent work byMr. Martin. Unfortunately, that does not change the fact that there exists no legal basis for the relief Mr. Martin has sought. [16] Accordingly, Mr. Martin’s motion to dismiss is not granted, and the case will proceed to trial as scheduled. J.P.C. [1]See R. v. Mian, [1998] N.S.J. No. 398 passim (C.A.); R. v. Wolkins 2005 NSCA 2 at para. 69. [2]See especially R. v. Cunningham, 2010 SCC 10 , [2010] 1 S.C.R. 331 at para. 19; and see R. v. Jones 2011 NSPC 50; see alsoI.

Carter, "A Complicated Friendship: The Evolving Role of Amicus Curiae" (2008), 54 C.R. (6th) 89. [3]Wolkins, note 2, supra, at para. 82. [4]2012 NSSC 288. [5]R.S.C. 1985, c. I-21. [6] (SCC), [1979] 1 S.C.R. 984. [7]R. v. Waugh, [1985] N.S.J. No. 315 at para. 33 (C.A.). [8]R. v. Mills, (SCC), [1986] 1 S.C.R. 863.