The Ottawa Occupation, Freemen On The Land, and the "Canadian Common Corps of Peace Officers"

Over the last decade or two, a weird movement has popped up in Canada (and other countries) of people calling themselves 'freemen on the land', who think they can say a few magic words and have laws and government authority no longer apply to them. (Spoiler alert: They're wrong. This is a hoax that has landed more than a few people behind steel bars.)

It's an anti-government group that relies on what we've come to call an "Organized Pseudolegal Commercial Argument" (OPCA). It has a few cousins - like the detaxer movement that challenges the government's authority to collect taxes, or the primarily American "Sovereign Citizen" movement.

I'll give some background on what it is and why it's a scam, first, but ultimately I'll come to a very disturbing point about its principles being invoked to create a quasi-militia within the Ottawa occupation.

The Myth

The underpinning of freeman theory is a belief that all statutes are contractual in nature - that the government's authority to tell you what to do or what not to do extends from a consent to be governed, and that this consent can be revoked. (This belief appears to draw from some nonsensical interpretation of the effect and content of Admiralty Law.)

They use what's called a 'strawman' theory - that every person has a 'strawman' identity with a legal personality (like a corporation), which is subject to government regulation, and a natural 'flesh-and-blood' person, which isn't. So in the same way that the principal of a corporation can often walk away from the obligations of that corporation, they think that the flesh-and-blood person can walk away from the obligations of the strawman person.

Adherents spin off a lot of what sounds like (but isn't) legal jargon to try to explain why they think laws don't apply to them. At the end of the day, none of it holds any water.

In short, it's a stupidly-obvious manifestation of kindergarten logic: As flesh-and-blood people, they say, they have all sorts of rights and entitlements, in particular to own what's theirs, to all the rights and freedoms associated with living in Canada, and to benefit from commitments entered into by the 'strawman' person, but without any correlated obligations.

In Practice

Most of what you see in Canada from freemen are cases where they commit relatively minor offences - tax offences, traffic or parking offences, etc. - but their refusal to recognize police authority escalates into more serious charges. Thus, a charge for failing to signal turns into a charge for assaulting a police officer. That sort of thing. I've never seen a freeman defence attempted to a violent crime that wasn't an escalation from disputes over minor infractions or property rights. But the escalation is a real thing, and there have been scenarios where a mob of freemen has threatened and disrupted court proceedings.

One of the most alarming manifestations of the freeman philosophy, to date, has been that they believe they have an unrestricted right to own and possess firearms. (One adherent, in Nova Scotia, was being investigated on drug matters, and ended up with a 3 year penitentiary sentence for weapons offences and threatening officers.)

Then, responding to those charges (or civil proceedings), they show up to court and try to deny the court's jurisdiction over them. This usually involves bizarre and confusing displays, denying that they are the legal person named in the proceedings and asserting some other role for themselves, handing up their birth certificates, etc.

For criminal charges, this sometimes results in freemen spending significant and unnecessary time in pre-trial custody, because they're unwilling to commit to release conditions.

Let's be clear on this: Freeman defences do not work. There has never been a case where a person has gone to court, waved around their birth certificate and ranted about strawmen and admiralty law, convincing a judge that they didn't have jurisdiction over the person in front of them.

Never.

(There have been rare cases where a judge has found that, while there's no merit to the freeman defence, the Crown nonetheless failed to meet its burden, so an acquittal followed. Freemen take that as a vindication of their philosophy when it happens, but those wins are despite their inane defences, not because of them.)

In 2012, Justice Rooke authored the definitive judicial treatise on OPCA litigants, in Meads v. Meads: A freeman was trying to frustrate a divorce proceeding by raising the freeman arguments, and in a monstrous 188-page decision, Justice Rooke actually responded to them. Since then, OPCA arguments have been handwaved away with a Meads citation; it has been cited across Canada in no fewer than 285 decisions in the intervening decade.

In short, he described the OPCA promoters as modern-day 'legal alchemists', promising gold but using methods "principally intended to impress the gullible". The arguments are disseminated by 'gurus' who claim to have secret legal tricks, "hidden from the public, but binding on the state, courts, and individuals," which - for a fee - they can teach to customers to allow them to get out of legal obligations. These sales packages often come with 'legal' forms, notices, etc., that are supposed to magically make legal obligations go away.

The bluntly idiotic substance of Mr. Mead’s argument explains the unnecessarily complicated manner in which it was presented. OPCA arguments are never sold to their customers as simple ideas, but instead are byzantine schemes which more closely resemble the plot of a dark fantasy novel than anything else. Latin maxims and powerful sounding language are often used. Documents are often ornamented with many strange marking and seals. Litigants engage in peculiar, ritual‑like in court conduct. All these features appear necessary for gurus to market OPCA schemes to their often desperate, ill‑informed, mentally disturbed, or legally abusive customers. This is crucial to understand the non-substance of any OPCA concept or strategy. The story and process of a OPCA scheme is not intended to impress or convince the Courts, but rather to impress the guru’s customer.

Justice Rooke looked at it as alchemy; I see it more as snake oil. Either way, people who buy into it are only scamming themselves. No police officer, no prosecutor, no judge, no prison warden will refrain from using the state's authority against you simply because you utter some magic words about Admiralty Law. The money you spend learning those magic words...is money you've been conned out of.

The Canadian Common Corps of Peace Officers

Up until now, the Canadian Common Corps of Peace Officers (or "C3PO"...I'm not even kidding) has come up only in parenthetical remarks, in context of discussion about the freeman movement more generally.

In Meads, Justice Rooke described them as "a group of self-declared and appointed vigilante “peace officers”" affiliated with Canada's sole freeman guru.

A paper released by the Canadian Network for Research on Terrorism, Security, and Society discusses C3PO, and how its founding was intended to empower freemen to (in the words of its founder) "arrest existing [police officers] who attempt to impose statutory obligations on said Freemen": It's a pseudo-police force intended to forcefully resist the application of authority by the Canadian state.

Let's work through this: You have an ideology that doesn't respect any regulatory authority of the state, that believes in unrestricted access to firearms, that rejects the statutory and constitutional authority of domestic police and courts, and who are setting up their own para-police to defend them from the exercise of Canadian law.

In other words, C3PO was envisioned as a militia which would engage in armed rebellion against a state it regards as illegitimate.

Now, apparently, C3PO has infiltrated the Ottawa protests, with protesters posting videos of themselves supposedly getting sworn in as peace officers. They think it's legitimate, that this gives them real legal powers of police officers.

Let's be clear on a couple things: Firstly, you can't just declare yourself a peace officer, or be sworn in by some idiot who says he's a peace officer. The term 'peace officer' is actually a term with very specific statutory meanings, and legal processes for obtaining the designation.

So these guys are as much 'peace officers' as I am a god by virtue of declaring myself a member of the Regina's Regiment of Designated Deities (R2D2...and yes, I did make that one up).

Moreover, it's illegal to hold yourself out as a peace officer falsely, and you can be charged criminally for doing so. In other words, if one of these C3PO folks tries to exercise the authority of a peace officer, they can go to jail just for that, without considering whether or not their actions are otherwise criminal. Trying to make an arrest, without proper lawful authority, is likely to result in a series of further serious criminal charges.

Donald Netolitzky, counsel for the Alberta Court of Queen's Bench, has regularly written about OPCA litigants, and notes that the C3PO's founder, Menard, was himself charged with impersonating a police officer, and tried unsuccessfully to sue in court for a declaration that he was a peace officer.

(Side point: It lays bare the self-serving fiction of the freeman movement that freemen simultaneously reject the authority of peace officers in most contexts...until THEY (supposedly) become peace officers, at which point suddenly they acknowledge the legal significance of the term. The video I saw of a 'swearing-in' cited the Criminal Code of Canada, which is a statute that freeman 'logic', such as it is, would suggest they don't recognize as binding them in the first place.)

Are the Protesters Actually Freemen?

I doubt that most of the protesters have the slightest inkling of what C3PO is, where it comes from, or otherwise about Freeman philosophies.

But at the end of the day, there's a real synergy between Freeman and anti-restriction philosophies. The anti-restriction rhetoric turns largely on libertarian rhetoric with pseudolegal constitutional interpretations about restrictions being outside the proper authority of government. The rhetoric of the protest is very much about the government and courts having allegedly lost their legitimacy by acting outside its authority.

Most of these protesters may not end up giving you a spiel about Admiralty Law, but the overall message - the law is what I think it is, and should let me do what I want to do, and it doesn't matter what judges or elected leaders have to say about that - is very consistent with the Freeman ideology.

It's also very consistent, notionally, with what C3PO was created to do - establish an organized resistance to Canadian domestic law enforcement. And this should terrify onlookers.

We've never had a real problem with groups like C3PO before because they never had numbers. Sure, you get an idiot freeman pulled over for failing to signal a turn, and he ends up fighting back against the officer, but when it's one idiot, the police are well-equipped to handle that. But with a mob of them...

It's not hard to see what happens next: Anti-maskers trying to go into places with mask requirements, and insisting that proprietors and staff imposing mask requirements is a violation of their rights, and then 'arresting' (read: attacking, kidnapping) those staff for doing so. Protesters are already harassing anyone wearing masks; if they suddenly think they have some kind of arrest power or right to enforce their view of the 'law', it's certainly easy to imagine those encounters turning violent, too. And, finally, it'll make police intervention just that much harder.

It's Time For Action

For two weeks, much of Ottawa has been occupied and blockaded by these protesters. Violent crimes are relatively rare, still, but not unheard of - I have heard at least one very reliable account of a teenage retail employee getting threatened with a knife, where the police declined to respond because the person fled when police were first called. Harassment and intimidation of residents is widespread, and on top of that there's a wide range of petty property offences, traffic infractions, and bylaw infractions. Yesterday, OPS reported that there's a concerted effort to flood 911 to prevent legitimate emergency calls from getting through.

Protest, of course, is legal. But much of what's happening in connection with this protest is not.

Ottawa police have approached this with a very light touch - presumably concerned that a heavy-handed response will escalate to riots, looting, and real violence. How many of those protesters likely have firearms?

And I get the concern, of course. But by surrendering the city to its occupiers, we embolden them and inspire others. The Coutts blockade, for instance, which appears to have bullied the UCP into pulling COVID restrictions earlier than planned. New blockades in Windsor and elsewhere.

(There's a real irony in the fact that a protest for 'freedom' finds itself largely unhindered by any laws or regulations. So oppressed, these people.)

And now, with occupiers creating their own para-police force to enforce their own laws on residents, I think we all need to be very alarmed by this development. It's clear that waiting for the occupiers to get bored and go home isn't going to work; it's going to continue to get worse, and the longer we wait, the harder it gets to take action.

Response to something like this is predominantly a Provincial responsibility. Law enforcement gets delegated to the municipality, but for large-scale policing issues, there has to be Provincial input. In particular, Federal resources (including the military) are best deployed in consultation with the Province. Yet Ontario has declined to participate in trilateral talks to develop a strategy to address the protests.

Side Comment on the Merits of the Protest

There's a long and complicated conversation to be had about the merits of various vaccine mandates and NPIs in the course of the pandemic, bearing in mind the various legitimate policy objectives of (a) protecting the vulnerable, (b) maintaining safe and healthy environments for employees and customers of businesses, and (c) protecting healthcare capacity. I've often taken issue with the specific cocktail of restrictions that various governments have put out, but at the end of the day I don't question the prerogative, constitutional authority, or practical necessity of governments doing so to some extent or another. Yet the point of this entry is not to make the case for maintaining vaccine or mask mandates.

But for those (many) who think "I don't agree with the blockades, but I'm okay with lifting restrictions anyways, so let's just do it", I have a few observations.

1. The pandemic is not yet over, and a position of abandoning all public health measures is an absurd and extreme one that that has led us into disasters before.
   
   
2. The protesters aren't speaking with one voice. You can't plausibly say that there's one coherent set of demands that, if satisfied, will cause them to disperse. The main unifying trend seems to be a hatred of Trudeau, and many of them won't be satisfied until our (recently-elected) government is dissolved. (Heck, if it really WERE just about restrictions, it would be pretty ridiculous for people from across the country to gather in the Federal capital to protest measures that are predominantly Provincial. Most of the people there are completely unaffected by any Federal mandates.)
   
   
3. Capitulation sets a really bad precedent, both in the context of this protest and future ones. If we meet their demands (see number 2), why shouldn't we assume there will be more? If they realize that maintaining the occupation is a good way to get governments to do whatever they say, why should they leave? In terms of future protests...I mean, I think we all know that other types of blockades draw heavier responses. (Whether the difference is because these folks are predominantly white, or because the police are more sympathetic to their cause, or because the specific commercial interests they've attacked have less lobbying power, or because they're simply more dangerous than other groups...is a discussion for another time and place.) But THESE folks, at least, will know how to get their way when they get mad at future policies.
   

In other words, 'giving them what they want' is neither a prudent nor effective solution to the present emergency.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.