Pat Hart

Had a visit from "Reviewer 2" with one of my court statistics papers. Reviewer 2 said my now accepted paper was unworthy of being in a law journal - it wasn't "scholarly". Reviewer 2 was right. It's not "scholarly". It's "scientific". There's a difference. I'm no scholar. Never made any claims otherwise, except perhaps I do have some expertise in pseudolaw. But that’s not “real law”, so who cares? (Yeah, I’ve had multiple publications rejected on that basis too! One of the obstacles to working in that subject area. Newbs to the topic - beware!) Rather, I self-identify as a microbiologist/biochemist who just happens to work in law due to a matrix of past events. I really don’t care much about the “scholarly” aspects of law, the philosophies and underlying principles, such as they are. “Ethics”, balancing this and that. I don’t pretend to comprehend much of that. I find those are just word games, and - to me - so much gibberish. Luckily for someone so unsophisticated and intellectually limited, there is something I can do that I enjoy very much. I like data. I like measuring things. That’s me, scientist. I like to learn how things work. Or don’t work. Since I am extremely limited in a “scholarly” sense, I count, calculate, and graph data, rather than sit around and imagine institutions like courts as sky-castles, evaluated on ethereal standards. I know to non-scientists it’s probably weird, but when I discovered there was a very strong linear relationship between court filings and docket entries, I was literally running around, showing off the graph. But that’s science, not “law”. Another reason I do that is I work inside a court, and, let me tell you friend, it’s no sky-castle. The institution is a relentless gnashing sausage factory of processes that we insiders watch, day after day, in a grey fog. Yeah, not at all as romantic as they make it sound in law school. But, as a part of the sausage factory, I’m intellectually interested in how these mechanisms operate, in a time and motion and engineering sense. So are the judges I work with. They, too, are not often “scholarly”, but in this sense technicians. Nobody seems to actually disagree that law and the legal mechanisms in Canada have big problems. All sorts of “crises”. One, in my opinion, is we know practically nothing about how courts and litigation work. Oh, yes, there’s lots of claims about “the trouble with law”, particularly from appellate courts and legal academics, but there’s almost never any data to back that up. And there is where my attention falls. Sure isn’t scholarly, but wouldn’t you like to know, for example, that Canadian appeal courts appear to have been receiving a steady decrease of input litigation over the past 25 years? To the point one provincial court of appeal is receiving 1/5th as many criminal appeals? Kind of a significant shift in the litigation landscape. Well, I do. But I’m just a scientist. And most certainly no scholar. I want data. And with data, I ask more questions, like “why?!” And, frankly, that kind of data-driven investigation makes my head hurt a lot less than trying to interpret Charter s 15 jurisprudence.

Successful #pseudolaw schemes usually have a hook. That’s some quote, bit of legislation, historical fact, that “wakes up” the reader to realize "Hey wait, I’ve been tricked! It’s here, in plain sight!" The best hooks are even true. And Canada has a doozy. The King of Hooks. So before going on to explain the disaster that is Canada’s King of Hooks, I’ll give you a couple examples of hooks that range from goofy to problematic. One branch of the US Sovereign Citizen phenomenon set up an alternative government which called itself “The Republic for the united States of America”, or “RuSA”. Ok, why the lower-case “u” in united? The RuSA said they’re the real US Federal government. The hook? If you look at the original “In Congress” US Declaration of Independence signed by those notables back on July 4, 1776, the title reads: “The unanimous Declaration of the thirteen united States of America.” So there you have it. You Americans live in the “united States of America”, not the “United States of America”. Because capitalization is very important, you know. Hence the RuSA. I think the RuSA is now pretty much kaput, though in the early 2010s there were regular teleconferences of Congress, bills were passed, treaties signed, and so on. There’s a neat retrospective academic article waiting for someone here. Next is a more serious example, and one that HRM Didulo and her cohorts would very plausibly find interesting. One of the UK’s most famous judges was Alfred Thompson Denning, more commonly “Lord Denning”, who served as the “Master of the Rolls” in the UK Court of Appeal for 20 years. Lord Denning said a lot of stuff and it’s fair to observe he was a highly influential judge and legal innovator. And he also said some things that can be a bit more problematic, like this: “We have repeatedly said in this court that a bill of exchange or a Promissory Note is to be treated as cash.” - Fielding & Platt Ltd v Najjar, [1969] 2 All ER 150 at 152 (UK CA) So HRM Didulo and many other pseudolaw gurus over the years have said you can pay for a debt by handing someone a “promissory note”, which is literally nothing more than a promise to pay somehow, in the future, and that the result is: “Lo! The debt be gone!” After all, respected legal authority Lord Denning said, “a promissory note is cash”. Get lost, bank. A closer look at the relevant case and quote shows that what Lord Denning was saying was more nuanced, but I’ll leave it to Associate Chief Justice Rooke to rebut this one (from Re Boisjoli, 2015 ABQB 629): Much like other OPCA schemes, this ‘promissory note is cash’ concept is a scam that dissolves when scrutinized. A promissory note is a promise to pay. Does it make any sense that a person can eliminate a debt with another IOU for (effectively) the same debt? Wouldn’t this then inevitably lead to a conga line of promissory notes, each purporting to satisfy the debt of the note one step up the queue? Nevertheless, the Lord Denning quote is a good hook, and when confronted with that kind of authority, a judge or lawyer needs to dig a bit to figure out how to counter this claim. Now, to the King of Hooks. The images below are the Canadian Charter of Rights and Freedoms, the primary authority on rights in Canada, and what is rapidly becoming sacralized in Canadian society. Judges ands politician pontificate about the Charter. The Charter is celebrated by academics. And within this document is a pseudolaw hook. And it’s an awfully effective one. Look at the first line, the preamble, before all the statements of rights: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Oh FFS. What a disaster. Canada’s Constitution includes a statement that can and has been argued makes Canadian core principles subordinate to “the supremacy of God”, a.k.a. “God’s Law”. You’re an ordinary layperson in Canada, and you’re unhappy with the legal apparatus and/or government. Let’s say, hypothetically, that a debt is owed. A pseudolaw promotor or adherent hears your grievance and says: You don’t have to pay back debts with interest. That’s usury, and prohibited by the Bible. Didn’t you know that God’s Law is supreme here in Canada? Oh yeah, it's true - they try to hide that from you, but here ... let’s look at a picture of the Canadian Charter of Rights and Freedoms. Look at the first line. *insert much shouting and swearing* Yeah, they lied to you. And it’s there. In plain sight. Always has been. Now let me tell you about what other things they’re doing contrary to God’s Law... It’s very well established in Canada that when defining legislation that preambles are a valid interpretative tool. It’s also well established that when the Canadian Parliament or legislatures put something into legislation, that text must mean something. All text in legislation must have meaning. So ... what do you do with the “supremacy of God” preamble? It’s gotta mean something! Legal academics have suggested this language is an oblique reference to natural law, or perhaps human dignity. [Full disclosure, when I wrote about this, I was a touch more hostile and called the Charter preamble “a particularly obnoxious example” of “bad legislative drafting”.] Canadian court judgments have said the phrase has little, if any, interpretative value (Mouvement laïque québécois v Saguenay (City), 2015 SCC 16), and it has been rejected as a basis for pseudolaw, e.g., Gauvreau v Lebouthillier, 2021 ABQB 172 at paras 17-24. So ... not a problem, right? Wrong. The Supreme Court of Canada has repeatedly pointed to that other part of the Charter preamble - “the rule of law” bit - and said that’s super important. For example, in Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236, Justice Cory pointed to the preamble to indicate that the rule of law is a “cornerstone of our democratic form of government”. Better yet, in Re Manitoba Language Rights, [1985] 1 SCR 721 the Supreme Court concludes the “rule of law” “becomes a postulate of our own constitutional order by way of the preamble”. So, we have the Supreme Court of Canada saying one part of the Charter preamble is a fundamental organizing principle of Canadian law, government, and society, while the other part should be shoved under a rug and stamped upon. So here’s the King of Hooks in its full glory. God’s law is Supreme. And the Supreme Court of Canada points to the Charter preamble’s other half as a “cornerstone” and “postulate” of the Constitution of Canada. Can’t have it both ways, right? You read down the preamble into nothing, or it’s a “cornerstone” and “postulate”. Frankly, I’m astonished this card doesn’t get played more often. As pseudolaw claims goes, this is very challenging to rebut. And just imagine how the Charter preamble and Supreme Court jurisprudence looks to a legally inexperienced - and angry and/or distressed - layperson. So there you have it! Between the drafters of the Charter and the Supreme Court of Canada’s interpretation of that document, we have a very fine conceptual and intellectual mess.

Though perhaps surprising, sometimes people with formal legal training in Canadian law adopt and apply #pseudolaw. Case in point? Abrie (Abraham) Kilian, LLB University of South Africa, LLM Osgoode Hall. Yesterday I reported on Bluerobin Inc v Kilian, 2023 ONSC 3391, a dispute about forfeiture of a property purchase deposit. In that proceeding Kilian employed pseudolaw strategies taught by Carl (Karl) Lentz, a US Sovereign Citizen guru. At the hearing Kilian went full Lentz, claiming to be the actual judge in charge of the proceeding, “the presiding magistrate of the abrie kilian court at the court of owen sound”, threatened Justice Rahman with fines for making orders in this matter: “he would charge $100 for each such order and $1 per minute.” Justice Rahman observed “the hearing itself did not go smoothly”, but, on a more positive note, “Abrie was respectful in his dealings with the court and opposing counsel”. Subsequently, veteran Quatloosian @ericvan74374932 pointed me to Kilian's biography page on Kilian’s martial arts business website (kilianacademy.ca/about-8) and the statements there that Kilian was legally trained. I was initially skeptical because I fairly regularly encounter pseudolaw users, and particularly gurus, who claim to have actual formal legal credentials. Sometimes those are to dubious entities like the Erwin Rommel School of Law (web.archive.org/web/20220206…). Other times they just are vague about what institution granted that PhD in Law. But Osgoode Hall Law School is a genuine and highly prestigious Canadian legal teaching establishment. So, I started digging. And, ultimately, I’ve concluded Kilian is actually what he says he is, as far as legal training goes. On the Kilian Academy website, Kilian posted a blog entry that he will participate in the International Criminal Court Moot as a part of a team of Osgoode Hall law students, coached by Osgoode Hall Professor Heidi Matthews. Heidi Matthews is indeed an Assistant Professor of that institution (@Heidi__Matthews). A kind of program booklet for the 2022 ICC Moot does list “Abraham Kilian” as part of the Osgoode Hall team, along with Prof. Matthews: ibanet.org/document?id=2022-… A subsequent June 2022 blog post on the Kilian Academy website depicts Kilian convocating from York University, in standard regalia. Kilian’s online biography implies he was a practicing and accredited lawyer in South Africa. I’ll accept all that. Given this information, it appears Kilian is indeed legally trained, and, in fact, has a graduate level education in Canadian law from a leading Canadian law school. So what happened? In June 2022, Kilian gets his LLM degree. Eight months later, in February 2023, Kilian is going full Lentz in the Ontario Superior Court of Justice, as a self-represented litigant. Before going further, I’ve seen this before. It’s not common, but every so often I encounter someone with formal legal training who has adopted pseudolaw. A couple years back I wrote an article published in the UBC Law Review that examines examples of this, which is here, if you’re interested (researchgate.net/publication…). That reviews four of what I call “rogue lawyers”. I’ll probably be discussing one particularly egregious example, Glenn Patrick Bogue, a.k.a. “Spirit Warrior”, in the future. I’ve since located more. A probably more common scenario is a lawyer gets disbarred and then adopts pseudolaw. Anyways, back to Kilian. So what happened? Frankly, I don’t know exactly, but I can point at some likely relevant contributing factors. Each track back to the COVID-19 pandemic. Looking at Kilian’s social media, I discovered that one of his spouses, Rochagné Kilian, a medical physician, was issuing vaccination exception certificates on questionable grounds: “These did not explain a medical basis for exemption and cited legal authorities including the Nuremberg Code.” Kilian v College of Physicians and Surgeons of Ontario, 2023 ONSC 2689 at para 3. Sounds potentially like pseudolaw to me. This was part of a broader anti-COVID-19 mitigation process criticism by Rochagné Kilian. That led to disciplinary proceedings by the College of Physicians and Surgeons of Ontario, and litigation before Ontario courts. The Kilians’ social media indicates that Rochagné Kilian isn’t working, probably she has had her licence suspended. So there has been a financial squeeze on in the Kilian household, and multiple litigation streams ongoing. That means there is a real stressor here, and potentially financial problems for the Kilians. Won’t be the first time I’ve seen stress lead people to adopt pseudolaw, even when they really ought to know better. Second, it appears Kilian has personally become radicalized during the COVID-19 pandemic, and he has associated himself with various “Freedom movement” phenomena. In particular, his social media includes video recordings that appear to be Kilian participating in the Ottawa Freedom Convoy occupation in February 2022. So there is a broader context. Nevertheless, I personally find it startling that, with his background, Kilian would have adopted Lentzian tactics. To me, those are so absurd. And another point that is difficult to understand is why Kilian would ignore the wealth of legal commentary in Canada on pseudolaw. Kilian should have known deploying pseudolaw in a Canadian court just simply was not going to work. There was a point in time when lawyers arguably might not know pseudolaw ideas are blatantly wrong and categorically rejected - there were certainly “grey zone” operators - particularly in the Detaxer period in the early 2000s. But that time has passed. It has been a decade since Canada had a clear overview and rebuttal of pseudolaw (Meads v Meads, 2012 ABQB 571), and if Kilian typed “Karl Lentz” into the CanLII search engine, he’d locate specific rebuttals to the very tactics Kilian employed in the Ontario Superior Court of Justice. If there is an explanation, it’s that pseudolaw is truly seductive. The illusionary authority and control pseudolaw promises is tempting, even to people who truly should know better. In my previous post I said I thought reading the transcript of Bluerobin v Kilian would be interesting. With this additional context, even more so.