The Freeman and Common Law

OPCA – Organised Pseudolegal Commercial Argument; the Canadian Perspective

 

We are grateful to this post from our Canadian contributor who goes by the alias of “Hilfskreuzer Möwe” and who can be found on http://www.quatloos.com/Q-Forum/

For a general summary of OPCA litigation and the Freeman on the Land phenomenon, see our post here.

 OPCA litigation – the Canadian Perspective

Most of us Freeman/Sovereign/OPCA commentators are cautious about out revealing our identities. The Canadian variety of these folks are not as much of a threat as their U.S. counterparts, but there still are very real risks.

Freeman philosophy as a ‘virus’ : the epidemiological model.

I tend to approach Freeman/OPCA ideas from a meme basis. These are a parasitic, highly pathogenic strain of ideas that rapidly transmit in susceptible peer groups. Emphasis there on “susceptible”. Our experience in Canada is that Freeman concepts are tightly concentrated in certain peer groups, where their ‘hosts’ reinforce one-another’s preconceptions and preoccupations. The preferred ‘hosts’ are those who usually are poorly educated but believe themselves highly sophisticated, typically with ‘alternative’, non-conformist, leftist, eco-nik, occupista views. This can both be ‘old hippies’ and their younger anti-authoritarian counterparts.

These persons are thoroughly indoctrinated that state and corporate actors are malevolent, or at least controlled. That facilitates the idea of hidden controlling parties that use false law as the basis for their authority.  Another problematic aspect of this ‘host’ group is that they have typically been taught to follow leaders who appear incredibly flakey to the average person.

The epidemiological model for these ideas actually works very well. Once OPCA ideas reach a susceptible but uninfected population they spread very rapidly, though social peer relationships. This is a period where gurus, old and new, surge their activities and obtain many subscribers. The combination of guru promotion and peer encouragement results in numerous attempts to apply these ideas.

The next stage is collapse. After a certain number of failures the peer groups abandon OPCA ideas, and move on to something else. The time to collapse is affected by whether there is a perception that the OPCA scheme is already complete, or if instead there is a need to adapt or grow ideas – a kind of “let’s do a trial and error” period. ‘Pre-fab’ schemes grow and collapse fast – an excellent example was an outfit called the One People’s Public Trust. It appeared in late 2012, attracted massive attention, but by summer 2013 had all but collapsed.

Another key ‘time to collapse’ factor is knowledge of in-court and other failures. OPCA litigants are notorious for lying and misrepresenting their degree of success. They also tend to interpret delay as success. Media, court judgment, and ‘skeptic’ reporting is very efficient at this stage.

That in part is what myself and a few collaborators are doing on Quatloos at present with Dean Clifford. It’s costing us some cash but we’re ordering court materials and putting them online to demonstrate that his claims and what is actually going on do not match. Nothing wrecks a guru like proof of failure – and that’s where online groups like Quatloos and (in the past) the James Randi Educational Foundation forums have proven very effective. JREF has declined as a useful agent, sad to say.

 

The Three Waves of OPCA belief

Post-collapse a small number of die-hard believers will usually persist and attempt to carry on their OPCA ideas. In Canada we have had three waves of OPCA belief – a racist anti-tax group that is not well characterized at present, the anti-tax “Detaxers”, and now the Freemen. The first two are extinct, except for the holdouts. There’s not much that can be done about them – they just keep coming on, no matter the degree of state, court, and social sanction. They are very few in number, so as a threat that can be contained.

The interesting thing about the holdouts is that they are the pool from which the next wave of gurus emerge – they are the ‘disease carriers’ – once they find another susceptible and hitherto unexposed potential host population for their memes. Epidemiology really is a very effective model for this phenomenon!

 

Review of Canadian Jurisprudence

I found this large review of Canadian OPCA jurisprudence which was prepared as part of a bar association education session:

http://www.cba.org/cba/clc/pdf/clc13_2-7_paper_supplementary.pdf

It’s written by a staff lawyer from the Edmonton Court of Queen’s Bench, the same court that generated Meads v. Meads. Looks like they keep pretty close track of these things!

McKenzie friends

We too are having issues with those. The rules of whether or not a person can represent another in court vary jurisdiction to jurisdiction and court to court. In some instances the rule is strict – a lawyer or nobody. But others are more flexible.

On the Freeman-type front that is less of an issue since now that the courts know what to look for, when a suspect agent appears the judges intervene and exclude that person.

That’s been going on for over a decade – our judges are pretty aggressive on that point, but so far the process is rather informal. Again, the proliferation of written judgments seems to help since the stereotypical ‘bad agent’ is often a former vexatious litigant. Point to the judgment that declared that person vexatious, and you have grounds to remove the problematic McKenzie friend.

 

Academic Commentary

As I previously mentioned our most useful Freeman commentary is in the reported jurisprudence. There are a very few other useful resources – to date academic commentary has not been very helpful, but there are a few exceptions. In my opinion this couple of papers by a Canadian sociologist offer some useful overview and background.

 

The Canadian experience of Freeman and Family law

In the Canadian experience many of the worst cases are family law matters, usually scenarios that involve custody or access. It’s sad because in many instances I suspect the parent who is pushing these actions could have at least some access or role in the child’s life, but the use of Freeman tactics almost guarantees that will not be the result.

Putting together the pieces, it usually looks like the parent(s) who adopt Freeman strategies have some kind of issues – drugs, homelessness, violence, criminal activities. My suspicion has long been that these people have limited success when they try to use lawyers or the ‘legal’ procedures to gain access/custody of their children. Their desperation leads them to use Freeman schemes which just make things worse. That then cycles up.

There aren’t a lot of reported cases of this kind in Canada but our little Canadian observer group has tracked a few via media sources and the parent’s own websites.

 

The Categories of OPCA in Canadian Family Law

It is an evolving phenomenon. It seems the most common ways in which Freeman/OPCA type ideas appear are:

  • as an excuse to evade payment of child and spousal support,
  • as a mechanism to challenge child custody, and
  • as a response to child seizure by state authorities.

These are ways that Freeman concepts are used ‘offensively’.

The first one is kind of basic – a parent claims they have some magic method to exclude themselves from the usual support enforcement procedures. The most comic variation is where the delinquent parent/spouse claims to make their payments from a huge secret bank account operated by state actors. This is a U.S. concept called “Acceptance for Value” (“A4V” for short) or “Redemption”. There’s a nice commentary on that in the Meads decision as Dennis Larry Meads (oops – sorry, :::Dennis-Larry :: of the Meads Family::: ) tried to use that mechanism to pay off his spousal and child support obligations.

In theory, a Freeman should not say “I opt out of my obligations that flow from marriage”, because Freemen say they honour contracts between people – and marriage is usually seen as a contract or contract-like. Well, that’s not to say Freemen don’t still try to work around that.

Here is quite a recent example of that: 

Curle v. Curle, 2014 ONSC 1077. 

At para. 8 it explains how the father in this case claims his marriage never existed because the state’s authority over him was fraudulent.

This case is also a good example of the second category – where Freeman/OPCA ideas are used to claim a superior interest by one parent in children. Here the father claims he has “full title (legal and equitable)” to his children, which trumps the interest of the mother.



Another example of that is found here:

 A.N.B. v. Hancock, 2013 ABQB 97. If you look at paras. 60-64 the father invokes old U.S. slavery-period legal principles to claim his children as property!

The third category is probably the most alarming. Canada has seen a significant number of parents who lose custody of their children to the state and then adopt Freeman/OPCA tactics in court. In a way it’s understandable, as these are desperate, desperate people, who understandably may grasp at any straw. But it’s not helping them. 

This is a growth area and a very troublesome one. Freeman theory says you can opt out of state authority or somehow have rights that trump everyone else. The logical endpoint of that is that if the state takes your child and does not comply with your demands then it is the state that is acting unlawfully – not you. The remedy? Litigation or force. In the A.N.B. v. Hancock matter that is exactly what happened. A second decision discusses A.N.B. trying to get bail after he began threatening family services lawyers and personnel:

 R. v. A.N.B., 2012 ABQB 556

I’m pretty certain I have read A.N.B. ultimately pled guilty and received an eight month sentence – the decision is not reported.

 

Canadian approach – Freeman beliefs in and of themselves equal bad parenting

There is a new development on the family law/Freeman front – courts are starting to use Freeman affiliation against those who advance it. There are a couple trial level Canadian judgments where courts have determined that holding Freeman-type anti-government and anti-authoritarian belief is a basis to restrict child access and custody. Basically it comes to this; if you tell your child they are not subject to state and court authority then you are a bad parent. 

S.H. v G.J., 2013 BCPC 242:

This is a new trend, so we’ll see how far our courts take things.

 

Robert Menard

But the most bizarre example of OPCA strategies in the Canadian experience of family law turns out to be founder and principle guru of the Freeman-on-the-Land community itself – Robert-Arthur: Menard. 

Menard, back in the early 2000’s, was the one who collected a number of pre-existing OPCA ideas and combined those to create the characteristic Freeman-on-the-Land concept set: that everything is a contract, you are only controlled by the government through a ‘strawman’ legal entity attached to you, and that you can unilaterally ‘contract out’ of that strawman bond.

But that wasn’t his first obsession. It was his daughter. Menard claims to have a daughter he fathered with a underage street child he met in a bar. The newborn daughter, Elizabeth Anne Elaine, was then ‘abducted’ by child welfare services. Menard’s initial obsession was an idea that a parent signing a birth certificate turns a child into the government’s property. Here, the mother of his child did that, and that’s why Menard believes he could not keep his child.

Rather than provide more detail, I’d suggest those interested read Menard’s book on the subject “Your Child Or Her Life! DECEPTION AND EVIL IN THE Ministry of Children, Family and Community Development”, by Robert Arthur: – www.angelfire.com/planet/thinkfree/childorlife.pdf



It’s pretty extraordinary.

Menard entered into a relationship with a much younger individual, probably a very troubled person. A child resulted. The mother appears to have voluntarily given up the child for adoption. So, Menard faces a challenge:

1. the nature of his relationship with the mother;

2. his inability to parent, his absence of any useful work or life skills, probable drug use and addictions, and lack of finances;

3. the fact the mother of his child wants him no-where near the kid, and probably herself; and

4. his genuine emotion and bond to his child and his wish to be a parent.

He has failed himself, his child, and the child’s mother. If he were honest to himself the consequences would be, at a minimum, grim. So he reverses the blame, and puts the fault outside himself. If only he had been given a chance. He’d have shown them all what he could do. It wasn’t his fault. He was denied that chance by sinister government authorities who enslave the Canadian population – and the vile mechanism by which they derived the authority to seize his child. Her mother had signed a birth certificate.

 In Canada we have seen this particular drama revisited in various forms, with other troubled parents. These are, perhaps, the most difficult OPCA litigants to control and assist. I think it is because they know, on some level, their error.

There’s a weird symmetry that these desperate, traumatized parents will be the last Freemen – the ones who just won’t give up – and in that way they are precisely the same as the first.

 

The Freeman and Common Law

I have been told if I declare myself a ‘Freeman’ that I don’t have to do what the court says and the court has no authority over me?

You need to be very careful about this. Over a number of years the ‘Freeman on the land’ movement has gathered numbers in countries that rely on ‘common law’.

Freeman on the land are also known as FMOTL, FOTL, “Footle” or simply freeman.

In essence, they say that they do not choose to be governed by the laws of their countries and that the courts therefore cannot make orders which impact on them without their consent.

There are a number of people you can find on line who will offer to sell you information about how to ‘resist’ the courts by using their arguments about common law or ‘natural law’.

A commonly advised strategy is to claim that all interactions between the state, courts, and individuals are contracts and that any attempt by the court to encourage an individual to engage with court proceedings is the court trying to form a contract,  which the individual can  reject and thus go on to  refuse even simple requests to sit, stand or acknowledge their identity within court proceedings.

Many ‘Freeman’ will not use the name on their birth certificate and refer to themselves, for example, as ‘John of the family Smith’ thus emphasising that they reject any attempt by the State to control them without their consent.

You can read more about the movement here. 

We would be very interested to learn of any family case where ‘Freeman’ arguments have been deployed and have met with success because at present we are not aware of any such case – in fact the reverse appears to be true; ‘Freeman’ arguments appear to be positively detrimental to people’s chances of success in the family (or any other) court.

 

What is common law?

‘Common law’ is the law made by the courts over many hundreds of years. As the courts made decisions, their rulings  in particular cases became useful indications of how to decide other arguments that followed and over time ‘common law’ developed as a collection of legal rules and principles that the courts would apply to all cases.

The doctrine of ‘precedent’ tries to ensure that the common law is applied in the same way by the different courts; the courts must follow the previous decisions of other courts unless it can be argued that the present situation can be ‘distinguished’ from other similar cases. Any decision of a more important court, such as the Court of Appeal, is binding upon any other lower court, so even if the lower court doesn’t agree with what the Court of Appeal said, they have to follow it.

What is statute law?

But as our society grew and got more complicated it required more central organisation and the role of the State as lawmaker increased in importance. Statute law is the law made by Acts of Parliament, such as the Children Act 1989. If a principle of common law conflicts with a clear statutory provision, the statute wins. However, common law is still relevant if there are any areas which haven’t been subject to statutory law, or if the statute is unclear or difficult to interpret.

 

The Myth of the Magna Carta

This plays an important role in Freeman philosophy and has been elevated to a status far beyond what it actually represents. Ironically, this myth has taken firm hold in the minds of ‘common people’  – who were excluded from the benefits of the Charter ‘by design for over 100 years’ – see Lord Mostyn below.

For further explanation about the Magna Carta, see this blog post or this one. In essence, It was a list of demands to King John in 1215 from various noblemen, to which he reluctantly agreed. Article XXIX is often cited in support of arguments that the courts or Parliament cannot force people to do things they have not consented to do:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Mr Justice Mostyn offers a masterly and detailed examination of ‘Magna Carta and Access to Justice in Family Proceedings’ in a lecture in June 2015; demonstrating how the ‘myth’ developed of the Magna Carta as the ‘foundation document of the English constitution’ when instead, it was little more than a ‘technical catalogue of feudal regulations’, for example,  that all fish- weirs were to be removed from the Thames and elsewhere. No-one was to be forced to build bridges across rivers.  He cites Lord Sumption’s comments at para 29 and 30:

So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not… Yet Magna Carta matters, if not for the reasons commonly put forward. Some documents are less important for what they say than for what people wrongly think that they say. Some legislation has a symbolic significance quite distinct from any principle which it actually enacts. Thus it is with Magna Carta. It has become part of the rhetoric of a libertarian tradition based on the rule of law that represents a precocious and distinctively English contribution to western political theory. The point is that we have to stop thinking about it just as a medieval document. It is really a chapter in the constitutional history of seventeenth century England and eighteenth century America.

 

What are the ‘Freeman’ saying about the law?

But the typical freeman is not overly concerned by facts or history. The Magna Carta has become the lodestone of their philosophy that, as ‘freemen’ they do not have to obey ‘fictitious laws’  One Freeman describes it in this way (see Fmotl.com)

What is a Freeman-on-the-land? Well, it isn’t someone who remains outside the law. No-one is outside the law, so this is not a proposition for anarchy. But – it all depends on what is meant by ‘law’. And that’s the catch. What you have grown up to assume is ‘the law’ is not, in point of fact, the law. That’s The Grand Deception. Hitler was right: “If the lie is big enough, the People will fall for it”.Once you know the deception, and what the law actually is, you’ll realise how the wool has been firmly and deliberately pulled over your eyes, your parent’s eyes, and those of everyone you know.

The operation of the law is described in this way:

The law can give rise to a FICTION, but a fiction cannot give rise to a law. Consequently a legal fiction called THE GOVERNMENT has no power to make LAW. It is, in point of fact, BOUND BY LAW (like everyone else, and including all other legal fictions). PARLIAMENT is another legal fiction entity. Statutes created by Parliament are not, therefore, the LAW. They are ‘legislated rules for a society’ and ONLY APPLICABLE TO MEMBERS OF THAT SOCIETY. Join a different society, and you would be bound by a different set of rules. (If this were not the case it would be impossible to become, for example, a Freemason and be bound by the rules of Freemasonry). Statutes are nothing more than the Company Policy of THE UNITED KINGDOM CORPORATION, or THE UNITED STATES OF AMERICA CORPORATION, etc. (See ‘society’, below)

Only a sovereign flesh and blood human being, with a living soul, has a Mind. Only something with a Mind is capable of devising a CLAIM. Legal fictions are soulless, and do not possess a distinct Mind. They cannot, therefore, in LAW, make a CLAIM.

Consequent to the foregoing, and since the Judiciary in a court de facto derives all its power from colour-of-law/Statutes, then no court de facto has any power over you as a sovereign human being, IN FACT (although, of course, they don’t bother to tell you!). A court de jure is the only kind of court to which you are subject under Common Law, and there are none of those left (unless you insist that the court operates de jure, by demanding a Trial by Jury. But they will attempt to resist that with every fibre in their ‘corporate’, soulless, ‘bodies’).

What is the problem with using Freeman arguments in a family court?

The family court can and will enforce its orders against you

The family court does not accept that Parliament is a ‘legal fiction’  or that the Magna Carta operates to remove their jurisdiction. Thus, the family court can do nothing other than follow the relevant statute law and case law which dictates what it must do when making decisions about children.

The family court has very significant powers – such as removing your children from your care – in order to meet its statutory obligations. Thus the family court has both the will and the means to enforce its orders, with the assistance of the police if necessary.

 

You risk not being able to make arguments in court that will benefit your family

The family court can make orders even if you attend court and say you will not engage because you are a Freeman on the land. You will risk losing the opportunity to be heard about what you think is best for your children.

Therefore, you need to give very careful consideration to whether or not attempting to mount a Freeman on the land argument is actually going to help your family. It is particularly important to be very wary of anyone who wants you to pay them money  for any documents or advice on how to conduct a family case.

If you are a parent in care proceedings then you will be entitled to non means, non merits tested public funding to instruct the lawyer of your choice.

See our post from a family law barrister about her role.

If you do want to represent yourself in court, you may be interested in our post about litigants in person – what if I don’t have a lawyer?

 

Views from Judges, bloggers and psychiatrists

You may be interested in this blog post by Adam Wagner of the Human Rights blog, where he considers the Freeman movement and comments:

This movement is not just silly, it is also dangerous, and seemingly gaining popularity through numerous internet sites. I can provide two recent examples where it definitely did not help, and probably did harm to, people in the justice system.

The first is the case of Elizabeth Watson and Victoria Haigh, the former of which was sentenced to 9 months in prison (later suspended) for publishing details online about sex abuse allegations made by Ms Haigh against her child’s father. Haigh’s case was taken up by John Hemming MP, and was one of the “super-injunctions” he revealed using Parliamentary privilege. She was ultimately found by the most senior family judge to be a fabricator who had coached her daughter to lie about being abused by her ex-partner.

Both Haigh and Watson considered themselves Freemen of the Land, who attempted to step outside of the system. It seems likely that at least in Watson’s case, her belief that she had “stepped outside of the system” led to her brazenly to flout contempt laws for as long as she did.

My second example arose when I did jury service last month (a generally positive experience – see my comment on it here). One of the trials involved a defendant who was accused of stealing sports cars. When we entered the court, the judge told us that the defendant had released his legal team and was denying the court’s jurisdiction. He refused to cross-examine witnesses – rather, he used the opportunity to ask the judge whether his jurisdiction arose from maritime law – and his closing statement involved the reading of a latin phrase and stating that he was the “official representative of the legal fiction known as…”

We found the Defendant guilty on 7 of 8 counts, and I will not say anything about our reasoning. I do suspect that the car stealing Defendant’s bizarre and misguided defence influenced the judge’s sentencing, and I also imagine that if he had retained his representation he may have pleaded guilty in any event. Either way, he probably went to prison for longer as a result of his attempt to trying to “step outside of the system“.

 

See this comment from a Canadian Judge, which we discuss in more detail below:

OPCA (Organised Pseduolegal Commercial Argument) strategies as brought before this Court have proven disruptive, inflict unnecessary expenses on other parties, and are ultimately harmful to the persons who appear in court and attempt to invoke these vexatious strategies. Because of the nonsense they argue, OPCA litigants are invariably unsuccessful and their positions dismissed, typically without written reasons.

Thus there is a serious risk that If you concentrate on making your arguments about why the court should recognise you as a ‘Freeman’ then any relevant arguments you do have about how the law should be applied in your child’s case, will not get heard.

There is a further risk that if you display the stereotypical behaviour of a ‘Freeman’, such as reliance on pseuduolegal language this may even raise doubts about your mental health and your ability to understand and participate in proceedings.

There is an interesting article from The International Journal of Forensic Mental Health in 2013 which considered the presentation of the Sovereign Citizens Movement in Canada, which follows the ‘Freeman’ philosophy. The authors conclude that the majority of ‘Sovereign Citizens’ present with many features that mimic psychotic features of mental illness.

The Sovereign Citizen movement supports a number of unusual beliefs that may be mistaken for psychotic symptomatology. These individuals present with many features which may appear psychotic in nature, including bizarre and paranoid beliefs as well as unusual speech and behavior. Despite this compelling psychotic mimicry, it is the authors’ opinion that the majority are not truly psychotic. Timely recognition and accurate assessment of Sovereign Citizen patients is crucial in order to minimize harm in the form of unnecessary treatment and hospitalization, as well as delays in court proceedings incurred by questions such as whether they are Unfit to Stand Trial. This paper provides a descriptive profile of distinguishing features which may be observed when assessing a Sovereign Citizen patient, with an emphasis on clinical presentation, diagnostic challenges, and management-related issues.

The Canadian response – Organised Pseduolegal Commerical Arguments

We discuss the Canadian response in more detail here.

There is a very interesting decision from a Canadian judge here, where he discusses at length the problems caused by such ‘Organised Pseudolegal Commercial Argument’ (OPCA) . He is particularly troubled by the impact of various ‘gurus’ in this field, who charge money for their services.

The judge also set down standards for any future dealings with OPCA litigants:

[256] Given the intrinsically vexatious nature of OPCA methodologies, which I review in detail below, it is appropriate that a court adopt special procedures for documents that show OPCA indicia, which may include:

1. that court clerks reject the materials that do not conform with required standards; 2012 ABQB 571 (CanLII) 60

2. that the court clerks accept and mark these materials as ‘received’ rather than ‘filed’; and

3.that materials that disclose OPCA characteristics may be reviewed by a judge without further submission or representation by the litigants, and that the judge may:

  • declare that the litigation, application, or defence is frivolous, irrelevant or improper (Rule 3.68(2)(c)), or an abuse of process (Rule 3.68(2)(d)), also Canam Enterprises Inc v. Coles, (2000), 51 O.R. (3d) 481 (Ont. C.A.) at paras 55-56, affirmed 2002 SCC 63, [2002] 3 S.C.R. 307;
  • order that the documents are irrelevant to the substance of the litigation, but are only retained on file as evidence that is potentially relevant to costs against the OPCA litigant, vexatious status of the litigation and litigant, and/or whether the litigant has engaged in criminal or contemptuous misconduct.
  • reject the documents and order that if the litigant wishes to continue its action, application, or defence, the litigant then file replacement documentation that conforms to court formalities and does not involve irrelevant OPCA arguments;
  • order that the litigant appear a before the court in a ‘show cause’ hearing to prove the litigant has an action or defence that is recognized in law; that hearing need not involve participation of the other party or parties; and
  • assign fines, as authorized by Rule 10.49(1).

The Judge also warned that OPCA litigants are known to engage in disruptive and inappropriate in-court conduct and thus it may be necessary to increase in-court security.

 

If the Freeman on the land movement continues to gain momentum in the UK, it may be that our courts have to consider similar responses.