Law Times

LAW TIMES • JULY 13, 2015 Page 7 www.lawtimesnews.com COMMENT Freemen in Ontario's land registry offices a significant concern ntario's courts are all too fa- miliar with those individu- als who espouse the general theory that they're free from all recognized forms of government. These anarchist groups go by various names, including freemen on the land, sovereign citizens, and the Moorish na- tion. Although their ideologies vary somewhat, they're uniform in their rejection of modern government and their assertion that, for whatever rea- son, they're immune from the laws that are applicable to other citizens. There's a great deal of literature out there regarding the antics of the free- men. They interact with the courts fre- quently both because they're constantly running afoul of the law at every level, both criminal and civil, and they're also active and aggressive self-represented litigants (the irony being, of course, that they doctrinally reject the jurisdiction of our courts and yet they use them constantly to advance their political ends) who often target law enforcement, the justice system, and the government in their lawsuits. In the seminal Alberta Court of Queen's Bench case of Meads v. Meads, Associate Chief Justice John Rooke coined the phrase "organised pseudole- gal commercial arguments" to describe the freemen ideology. Both the phrase and the reasons in the case have become ubiquitous when discussing the free- men ideology in the context of litiga- tion. While the freemen have been a scourge in the courts for some time now, their presence in local land re gistry offices is still a rela- tive novelty, at least here in Ontario (although there are anecdotal reports that they're far more annoying and persistent in western Canadian offices). That said, the frequency of their visits, even here in Ontario, is increasing. One can easily speculate on why that's the case. First, land registry offices have his- torically been a natural and intuitive place to register certificates of perceived importance. Second, and perhaps more tellingly, one of the tenets of most of their argu- ments is a complete release from all debts and liabilities they may otherwise have incurred to date. So it may be that some freemen believe that registering evidence of their ideological affiliation will somehow discharge their existing mortgage debts and hence the perceived need to register at the land registry of- fices. Whatever the motive, the freemen tend to show up in Ontario land regis- try offices for registration on paper even though 99 per cent of the registrations now occur digitally and remotely via Teraview. However, there's a standing order to the effect that no land registry office in Ontario will consider any such documents. If the freemen think they have registrable documents, then in- stead of attending at a land registry of- fice, they must submit them to Toronto for preauthorization. Freemen documents typically include declarations of freeman sta- tus, certificates of allodial title, releases from liability in rem, and often bills and invoices against one or more level of government. Their documentation is bizarre by modern conveyancing standards and almost never disclose any registrable in- terests in land. And even if such documents did create some potential estates, rights, interests or equities in land, they're almost never in anything approaching a registrable form. Again, there's a significant irony at play: Even though the freemen don't recognize any modern governmental institutions (with the land registration system being no exception), they never- theless love to register their documents that purport to affirm their immunity to their authority. Of course, the readers of this column in Law Times hardly need the direc- tor of titles to tell them that these free- men documents aren't registrable. One look at them will make it obvious even to an articling student that they're not registrable under the Land Titles Act. What's particularly odd, however, is the freeman submit many of these docu- ments over the counter fully notarized — and by lawyers. It's not at all clear to me what notarial attestation could pos- sibly mean in the context of these sorts of documents other than to give them some artificial air of legitimacy. The Society of Notaries Public of British Columbia seemed to have shared this sense of incredulity when it fined and reprimanded one of its own for witness- ing some really scandalous freemen documents in her capacity as a notary public. According to the society, the no- tary's attestation in that context consti- tuted conduct "beyond the lawful prac- tice of a Notary Public" and the notary herself admitted to misconduct for that notarization. I'm not aware of any similar case law in Ontario but am not beyond actually making some if these freemen docu- ments continue to show up in the land registry offices fully notarized by law- yers. In my view, there's a professional obligation to understand what you're notarizing, the purpose for which you're doing so, and the implications notarial attestation will have. Advanc- ing the freemen agenda by notarizing these sorts of documents may be $100 in your pocket today in the eyes of your bookkeeper but it may also be unprofes- sional conduct in the future in the eyes of a regulator. Is it really worth it to find out? Luckily, there have been no incidents of violence associated with the freemen in the local land registry offices to date in the same way as some freemen have made headlines in the United States. Perhaps this is just a Canadian thing, but whatever the reason, as director of titles, I fully intend to maintain this track record. LT Jeffrey Lem is editor-in-chief of Real Property Reports and director of titles for the province of Ontario. The opinions expressed in this article are personal to him and not attributable or referable to the Ontario government. Historic case shows impact of political climate on court decisions e recently marked the 70th anniversary of the end of the Second World War in Europe. On the original Victory in Europe Day on May 7, 1945, celebrations took place around the world, although in Halifax they took a nasty turn when the local authorities decided to lock up the booze in case servicemen should indulge to excess. That was the final straw after years of petty frustrations and poor living con- ditions in the city. The men broke into breweries and liquor stores, liberating the alcohol denied to them. In the riots that followed, three deaths and millions of dollars of property damage ensued. Victory in Europe Day also enters our legal history in a less spectacular but nonetheless significant way. Just a week earlier on May 1, 1945, Justice Keiller Mackay heard arguments in a case On- tario lawyers will know well: Re Drum- mond Wren. In a test case, the Canadian Jewish Congress challenged a discrimina- tory restrictive covenant on the grounds of public policy. Wren was the secretary general of the Workers' Education Association, a group that provided university-style evening classes to labouring men and women. The association worked closely with the con- gress in its antidiscrimination campaigns. The official story was that the asso- ciation had purchased a lot in order to build a home on it and raff le it off as a fundrai sing project. It then supposedly discovered the land was sub- ject to a covenant prohibiting it from being "sold to Jews or persons of objectionable na- tionality." More likely, the association had sought out and purchased just such a lot in order to have standing to challenge the cov- enant. John Cartwright, later chief justice of Canada, and Irving Himel, founder of the predecessor of the Canadian Civil Liberties Association, represented the workers' group. The con- gress obtained intervener status, and Bora Laskin, Jacob Finkelman, and Charles Dubin drafted the arguments for both parties. The congress pushed the public policy argument as it knew it would have the greatest legal impact and educational val- ue. In a decision released on Halloween, Mackay agreed with them. A case argued and decided amid the euphoria of the war's end contained a ringing endorsement of the principles for which the war itself was fought. In a legal analysis without precedent at the time, Mackay used the 1941 Atlantic charter, the brand-new United Nations charter, and even statements by wartime leaders on the necessity of ending anti-Semitism in order to inform the doctrine of public policy. Time magazine would soon notice the decision with the U.S. courts citing it as well. But Drummond Wren had an Achilles heel. Procedur- ally, the case was an uncon- tested application under the Vendor and Purchasers Act. There were no counterargu- ments presented to the court with no appeal undertaken. Thus, the strength of Mack- ay's analysis wasn't subject to testing in a robust adversarial setting. More generally, how- ever, the rosy glow of Vic- tory in Europe Day didn't last long. The next time the same legal issue arose in the unforgiving light of the Cold War, Mackay's arguments would appear less convincing. After Igor Gouzenko's revelations of a Soviet spy ring in Canada became pub- lic knowledge in 1946, the Cold War de- scended in earnest. In an atmosphere of insecurity, societies often see civil liber- ties as dispensable, something we know all too well. Even the two Supreme Court judges charged with investigating the matter violated the rights of suspects in egregious ways. The historical context was thus entire- ly different when the next restrictive cove- nant case came before the Ontario courts. In Noble v. Alley, a case in which a Jewish purchaser challenged a discriminatory restrictive covenant on a cottage property he wished to buy, the vendor resisted and hired counsel to argue for its validity. In his June 1948 decision, the judge disagreed f latly with Mackay on public policy. Freedom of contract was the dominant legal value while international law and statements by Allied leaders weren't valid sources of law. A five-judge Court of Ap- peal went even further, suggesting that freedom of association was an absolute and making any other interpretation of the covenant sound totalitarian. The Supreme Court of Canada even- tually struck down the covenant but on the basis that it didn't "touch and concern the land" rather than pub- lic policy. A 1950 Ontario statute out- lawed such restrictive covenants for good and caused the congress to shift from a litigation strategy to legislative lobbying. While the identities and attitudes of the different judges help to explain their opposing interpretations of the public policy doctrine, it's also the case that the atmosphere prevailing at the time of a giv- en decision can strongly inf luence them, even if unconsciously. The quick rise and rapid fall of Drummond Wren, then, is a compelling example of the explanatory power of historical analysis in accounting for legal change. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. That's History Philip Girard The Dirt Je rey Lem Je rey Lem W O

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