R. V. Campbell

FOR EDUCATIONAL USE ONLY Page 1 2011 CarswellMan 389, 2011 MBQB 173

2011 CarswellMan 389, 2011 MBQB 173

R. v. Campbell

Her Majesty the Queen and Bradley Campbell, Accused

Manitoba Court of Queen's Bench

Martin J.

Judgment: July 21, 2011 Docket: Winnipeg Centre CR 11-01-30860

Counsel: Tim Chudy, Nathaniel Carnegie, for Crown

Accused, for himself

Subject: Criminal; Public

Aboriginal law.

Criminal law.

Martin J.:

Introduction

1 Mr. Campbell is charged with second degree murder and conspiracy to commit robbery. He refuses counsel. He believes he should not be detained in custody and he cannot be subject to a preliminary inquiry, or potentially a trial, as Canadian courts lack jurisdiction over him because the Criminal Code, R.S.C. 1985, c. C-46, does not apply to Indians.

Background

2 As will be explained more fully below, under normal circumstances I would have disposed of this issue summarily, but because of the way this matter has arisen and especially for the benefit of Mr. Campbell, and potentially other like-minded individuals, it is preferable to issue a written decision. I have no doubt Mr. Campbell is realistic enough to expect the result I will explain below and I sincerely hope, with this issue out of the way, Mr. Campbell will focus his attention to the very serious allegations against him.

3 I acknowledge comments Mr. Campbell made several times: he is not stupid although he may be stubborn; and he firmly believes his argument and will not be dissuaded from it. I also note my observation that Mr. Campbell appears competent, but I am concerned that his understanding and views of the legal issues and pro- cesses are wholly misdirected. He appears to be significantly influenced by those who are promoting and writing his material. Further, based on the precedents provided to me, it appears those advising Mr. Campbell have a disturbing reach, as in the last few years several cases in the Provincial Court of Manitoba alone have been chal- lenged using similar arguments and in some instances identical documents.

4 It is necessary to explain the appearances and materials relied on by Mr. Campbell in greater detail than might otherwise be required had this matter been advanced by counsel.

Judicial Process - Appearances

5 Mr. Campbell first appeared before me in February 2011 seeking judicial interim release regarding his charges that are alleged to have occurred in Winnipeg, Manitoba in 2010. Mr. Campbell strenuously asserted that he did not want any legal assistance, other than potentially that of an "orator". Before the hearing com- menced he discharged his lawyer, an experienced and well-regarded defence counsel. He believed that having a lawyer would compromise his ability to advance his position that as an Indian no Canadian court had jurisdiction over him and, as such, he was not subject to the Criminal Code. I urged him to reconsider discharging his lawyer and adjourned without the bail hearing starting.

6 On March 1, 2011, he reaffirmed that he did not want a lawyer to assist him. I again urged him to reconsider. I also provided some general information about the process to make an application to have his position decided. th 7 Mr. Campbell next appeared before me on April 26 . This was because the Crown had taken the initiative to file a motions brief, even though Mr. Campbell had not filed an application, regarding his claim that the court had no jurisdiction over him. Mr. Campbell said that he wanted the court to understand that he was not a citizen of Canada, as evidenced by certain papers he had or, alternately, the court could not prove he was a citizen. As Mr. Campbell had not been able to read the Crown's brief I adjourned the matter for him to do so. nd 8 On June 2 , Mr. Campbell appeared again and made certain representations. As he had still not filed a notice of application, I tried to explicitly clarify what he was seeking and, ultimately, whether he wished me to rule on his assertion that the Criminal Code did not apply to him. At his request the matter was adjourned without a date.

9 He appeared next on June 28, 2011. In response to my asking what he wanted to do, he replied that he wanted me "to do my job" and that he was fighting the Criminal Code. He asked if I understood what he had faxed me and was referring to in court. I told him I understood the individual words but, bluntly, that as a coher- ent thought(s) it was nonsensical. This comment aroused an animated response from a spectator in the gallery who said he was the author of the document and identified himself (according to the transcript) as "high king and inherent chief Scott for the pace" (phonetic). He reiterated the Criminal Code did not apply to "our people" because "Canada is a business and is not England". Once order was restored Mr. Campbell gave a lengthy address and I reserved this decision.

Material Relied Upon by Mr. Campbell

10 For certainty, I note that during various appearances Mr. Campbell provided the following materials:

• "Notice of Exclusive Jurisdiction" — a document claiming, in part, that the court has no jurisdiction over Indians, which "is an exclusive right of the tribal government and can only be dealt with at international level".

• "Territory of the Anishinabe Tribe" - a document asserting, in part, that the court does not have jurisdiction over Signatory Indians. It states:

Tribal Citizens give their allegiances only to the Law of our Territory (Clanmother) and are to be left undisturbed while fulfilling their responsibilities, as our Law takes precedence.

• A document addressed to the Provincial Court of Manitoba, asserting that Canada or Manitoba "... cannot pass legislation that could or would give legal trail [sic] for a Tribal Member to become a citizen of Canada..." It sets out various reasons that I will refer to regarding another document.

• A document purporting to be a transcript or excerpt of some remarks of the "Hon. J. J. Curran, Q.C., Soli- citor General For Canada" on January 12, 1897.

• A notice to the Governor General of Canada, dated June 21, 2010, asserting, among other things, that Canada "... cannot pass legislation that could or would give legal trail [sic] for a Tribal Indian ruled by American-Indian Clan Mothers (Casus Omissus) is to become a Citizen of Canada..." because:

• "It would be a violation of the Treaty stipulation that all Civilized nations are bound by since February 1491";

• "It would violate the Te Deum filed with International court of the Hague, February 18, 1493";

• "It would violate Manifest Destiny, renewed in 1990";

• "It would violate basic international laws"; and

• Canada must prove that "Tribal Beings" are citizens of Canada.

It continued that:

For You to continue assuming Jurisdiction over Our Tribal Citizens would be a direct violation of the commands Your office received from the Queen dated 6th April, 2004, and would constitute the Crime of High Treason, still punishable by Death, and legal arrangements are already in place to make the necessary arrests to have this Crime adjudicated upon.

• Eight pages of handwritten notes explaining his argument;

• A document from the "Anishinabe-Tribal-Family", which purports to be a form of birth certificate for Mr. Campbell (to be known as Capay-Shicoot-Mayenghan);

• A document faxed to me on June 22, 2011 by Mr. Campbell asserting to be a notice from "The Occupant of the Executor-Office for: BRADLEY-CAMPBELL, Estate". The document states many things including, for example,:

... the standing of this Executor-Office, and that the supposed decedent of BRADLEY-CAMPBELL, Estate, is in fact alive, having survived the presumption of death, and is not lost at sea nor incompetent, and is operating in his capacity without the waiver of any rights or defences as the living-heir and the beneficiary of the Estate for the Life, duly-appointed as the occupant of this Executor-Office.

It continued that: the government's claim against Mr. Campbell is adjourned; a hearing is scheduled for June 28, 2011; that no proceedings are authorized by "... this Executor-Office and all Estate property ... is directed to be immediately disbursed to the Executor-Office"; the presiding judge is a fiduciary trustee; and he is directed to "... align the trusts, dismiss all charges and release the Undersigned (Mr. Campbell) immediately...".

Issue

11 The issue before me is whether Mr. Campbell, being charged with second degree murder and conspiracy to commit robbery contrary to the Criminal Code, is immune from prosecution by Canada because as an Indian he is not subject to the jurisdiction of Canada and its criminal law and procedures.

Positions

Mr. Campbell's Position

12 I shall do my best to explain Mr. Campbell's position, albeit in a summary or abbreviated fashion only.

13 Mr. Campbell explains, orally and through the eight-page argument referred to earlier, that as a member of the Anishinabe Tribe, "an exact people", he is only under the authority of the Clanmothers and cannot be charged with any crime by any court. The foundation for this position goes back as far as July 2, 408 A.D. when, he says, the "Iranius tribes" came to America for help defeating their enslavers, the Roman Empire. The treaty of "Iesis" followed which England was to honor — no one shall "detain, harass or molest a signatory indian [sic]". It flows, somehow, that Canada is a corporation and can only deal with corporate artificial people as (i) the "Im- perial parliament" could not create a federal union in Canada by virtue of the British North America Act, and (ii) the people of Canada have not accepted a constitution, hence Canada does not have a constitution and has not since 1931. Perhaps as a partial explanation for why he has discharged counsel, he, and those who write his argument for him, say:

For the record: "Rights" are violated with impunity by the privately owned Anglican Church legal system franchise known as the bar association via the Vatican and the British Crown!! Since 1933 everything oc- curing in the courtroom is not lawful, the judges and attorneys are signing orders and judgements. There is no law or legitimate government federal or state since 1861 the major law firms are running the courts "de facto"! ... [(sic) re: whole paragraph]

14 While much more could be noted, what I have summarized gives a reasonable flavour of his position.

Crown's Position

15 Not surprisingly, the Crown contends the criminal law of Canada applies to all persons who are alleged to have committed a crime within the territorial jurisdiction of Canada.

Analysis

16 As noted, Mr. Campbell has not filed a notice of application specifying the relief he seeks or the grounds. Further, the materials referred to above do not meet any meaningful measure of authenticity or reliabil- ity. They are simply miscellaneous documents written by someone without any official capacity and no apparent authority. They are not evidence. They carry no weight or value. Finally, no brief was filed. The absence of these important procedural elements should normally cause a court to refuse to deal with the substantive issue or summarily dismiss it. Judicial resources should not be expended for the form of argument and material filed in this case. So, it is not without hesitation that I am nevertheless giving consideration to the essence of Mr. Camp- bell's position, articulated as the "issue" in these reasons. I do so because Mr. Campbell is an unrepresented person accused of offences carrying a potential consequence of life in prison and is apparently unwilling to address the practical realities of those allegations without first dealing with this issue. Further, importantly, the Crown agrees. Thus, I will deal with it but succinctly.

17 As I explained to Mr. Campbell in court, the Crown provided various precedents in which Canadian courts have held that the Criminal Code applies to Indians. In effect, the issue has already been decided.

18 Two such examples from superior courts are:

• R. v. Jones (2000), 265 A.R. 96. In this case the native applicant took the position he was exempt from Ca- nadian and Alberta income tax law because he was a member of a sovereign nation recognized by the Royal Proclamation of 1793 or because of ancestral treaty rights. Johnson J. dismissed the arguments noting at paragraphs 25 - 27:

25. In Regina v. Williams, [1992] 1 S.C.R. 877 the Court held that the Aboriginal people are subject to the jurisdiction of the Court with respect to criminal offences and offences under Provincial law.

26. It is a clearly entrenched principle of sovereign integrity which dictates that a state has exclusive sovereignty over all persons, citizens or aliens, and all property, real and personal; within its own territory: Regina v. Finta, [1994] 1 S.C.R. 701 at 806.

27. In Rex v. Beboning (1908), 13 C.C.C. 405 at 413 (Ont. C.A.) Meredith, J.A. provides succinctly that:

The suggestion that the Criminal Code does not apply to Indians is also so manifestly absurd as to require no refutation ...

• , 2004 MBQB 247, 222 Man.R. (2d) 1. Two Indians faced Criminal Code charges. They asserted they were immune from prosecution because their Indian status renders non-aboriginal laws inoperative against them. Menzies J. reviewed a number of precedents, including comments from the Supreme Court of Canada, and concluded at paragraph 14:

In my opinion the assertion by the Accused that they are immune from criminal prosecution due to their aboriginal status is inconsistent with the sovereignty of the federal and provincial governments. Their status is one found within and as a part of the broader community over which Canada is sovereign. The Accused are, for some intents and purposes "Indians" within the meaning assigned by the Constitution. However, for the purposes of the criminal law they remain ordinary members of Canadian society. To grant the Accused immunity from criminal prosecution would be inconsistent with the sovereignty of the Dominion of Canada.

19 As well, in Hogg, Constitutional Law of Canada, looseleaf, (Toronto: Carswell) at Chapter 28, the author writes extensively about aboriginal people and their rights. While noting that developing aboriginal law and interpretation of Canada's Constitution provide a mechanism, if specific criteria are established, for an Indian tribe or band to attempt to demonstrate that they are exempt from a law, it is also clear that there is no general exemption to the criminal law of Canada.

20 Specifically, there is nothing in law to suggest that Indians, just as anyone else in Canada whether a citizen, resident, visitor or immigrant, etc., are not generally subject to Canada's criminal law if they are alleged to have committed a crime in Canada.

21 By way of another example and binding precedent, the Supreme Court of Canada in R. v. Pamajewon, [1996] 2 S.C.R. 821, confirmed that the Criminal Code applies to Indians. In that case the Court rejected a claim by two First Nations that they could conduct high stakes gambling on their reserves, pursuant a law enacted by the band council but contrary to the Criminal Code. The case is an important one for many reasons, but relative to Mr. Campbell's assertions here, the Indian accuseds were convicted of violating gaming provisions of the Criminal Code. In other words, Canada had jurisdiction to prosecute them.

22 I pause to emphasize that whether an Indian tribe or band (often as represented by one or more individuals) is exempt from a federal or provincial law is a matter that must be considered on evidence properly before the court, tested against the criteria established by the Supreme Court of Canada in a number of seminal cases including Pamajewon, supra, and other decisions referred to therein or issued since. I say this to emphasize that there is nothing in Mr. Campbell's materials that even remotely resembles what may be needed to support chal- lenging a law.

23 Without in any way wishing to be offensive to Mr. Campbell, but recognizing the need for a plain and blunt assessment in order to emphasize the point to him: the arguments raised that the criminal law of Canada, specifically charges of murder and conspiracy to commit robbery, does not apply to Indians have no merit. Who- ever is advising Mr. Campbell otherwise does not know what he is talking about and is simply wrong. All the materials provided here, by the "The Occupant of the Executor-Office for: BRADLEY-CAMPBELL, Estate" or otherwise are, at best, a gross distortion and misunderstanding of snippets of legal and other writings, or at worst, an incoherent rambling mass of words and phrases that taken together make no sense.

24 Despite what someone has told Mr. Campbell, Canada has a valid Constitution and there are no treaties or international law that prevent Canada from prosecuting anyone, specifically Indians, accused of committing serious crimes in Canada.

Conclusion

25 As noted at the outset, it will come as no surprise to Mr. Campbell that his assertion and arguments are dismissed. He is under the jurisdiction of Canada and the Crown is mandated to prosecute Mr. Campbell in ac- cordance with the criminal law and procedure of Canada.

Final Remarks

26 Finally, I have no doubt that those people who have influenced or guided Mr. Campbell to take this futile position and raise these arguments in response to being charged with murder and conspiracy are a menace. Such people often use the bad circumstances of another person for their own purposes, ignoring the harm it can cause

to that person's real interests. Here the harm shows itself by Mr. Campbell: discharging his lawyer because somehow it would otherwise compromise his jurisdiction argument; focusing on this matter rather than the murder and conspiracy allegations; and adjourning his bail application without a hearing on the merits.

27 Embracing aboriginal culture, heritage and tradition is important and often therapeutic or healing, but that is very different from believing the smoke and mirrors spouted by the likes of the "high king and inherent chief Scott...".

28 I again urge Mr. Campbell to focus on his upcoming preliminary inquiry and to reconsider having a lawyer represent him. Having received this decision, there is no valid reason not to seek a lawyer's help with the murder charge.

END OF DOCUMENT