Court Information
Information No.: 13-10000029, 13-10000028
Ontario Court of Justice
Her Majesty the Queen v. David Lavin
Proceedings on Bail
Before: Justice of the Peace P. Kowarsky
Appearances
- H. Poon – Counsel for the Crown
- D. Lavin – Unrepresented
Proceedings – January 3, 2013
Initial Court Appearance
THE COURT: The next gentleman. Please stand up, sir. Can I have your name, please?
DAVID LAVIN: My given name is David my family name is Lavin.
THE COURT: Thank you. All right. The Crown's position? Is duty counsel assisting him?
DUTY COUNSEL: No. I've spoken with him, Your Worship, and he would like to speak for himself.
THE COURT: All right. Mr. Poon?
MR. POON: Yes.
THE COURT: What is the Crown's position on release? May I have the Informations, please?
DAVID LAVIN: Sorry, I don't recognize you. I don't recognize the Crown. I don't recognize any of these people in this court.
THE COURT: All right.
Information and Charges
THE COURT: Thank you. I have one, two, three Informations. Now I see one is a replacement Information.
MR. POON: Yes. That should be a Provincial Offences Act replacement Information.
THE COURT: Right. And are you withdrawing the previous Information?
MR. POON: Yes please. The first P.O.A. Information – apparently there were some errors on it. I'll ask that that Information be marked withdrawn.
THE COURT: All right. I just want to make sure that I'm withdrawing the correct one.
COURTROOM CLERK: Yes. This is the correct one.
THE COURT: That is on lines 33-4, 5 and 6, is that correct? Mr. Clerk? The Information ending 028?
COURTROOM CLERK: Yes, that's correct.
THE COURT: All right. Those, that Information is withdrawn. And the replacement Information is on lines 52-3, 4 and 5.
COURTROOM CLERK: Correct.
THE COURT: Is that correct? The charges are obstructing peace officer, use permit and plate not authorized for vehicle, driving while under suspension, operate motor vehicle without insurance and drive motor vehicle no currently validated permit. Am I correct, Mr. Poon?
MR. POON: Yes.
THE COURT: What is the Crown's position on release, please?
MR. POON: We spoke to this matter yesterday.
THE COURT: Yes, I remember.
MR. POON: The Crown was offering a release in the event that Mr. Lavin is prepared to sign off on it with conditions. I think those conditions were read out in court. We can put them on the record again. I think it was his own recognizance in the amount of – was it $500 or $1,000?
THE COURT: $500.
MR. POON: $500. If Your Worship has it in front of you, I'd appreciate if you...
THE COURT: Yes, I do.
MR. POON: All right. Thank you. If you could read it out Your Worship, the conditions that we talked about yesterday?
THE COURT: Yes. All right, the conditions that the Crown was prepared to recommend his release on are that he is not to operate a motor vehicle. He is to report to the reporting centre at 2440 Lawrence Avenue East, Toronto, on the first Monday of each month commencing on January the 7th, 2013 and attend court on time as and when required and provide the police with his current address prior to release and not to move without notifying the officer-in-charge 24 hours prior to such move in writing. Now, as I indicated to you yesterday, the Crown is consenting to your release on those conditions.
Accused's Objections to Court Jurisdiction
DAVID LAVIN: Sorry, if – for, for and on the record, I don't recognize you, sir.
THE COURT: You don't have to recognize me, sir. I am appointed by Order of Council. I am the justice of the peace presiding in this bail court...
DAVID LAVIN: I don't recognize...
THE COURT: ...with full authority.
DAVID LAVIN: ...you, sir.
THE COURT: That doesn't matter whether you recognize me or not.
DAVID LAVIN: Sorry, I don't recognize you.
THE COURT: Sir, I am the justice of the peace. The name is Kowarsky.
DAVID LAVIN: Can I get a pencil to write this down?
THE COURT: I am the justice of the peace presiding in this court. If you are not prepared to acknowledge that you are bound by the laws of this country, we have a problem.
DAVID LAVIN: I've – I'm – I'm sorry. For the record, I don't recognize you. And I don't recognize the Crown either.
THE COURT: Well what would you like the court to do to make you recognize the court?
DAVID LAVIN: Well, can you tell me what jurisdiction this is? Is it – what jurisdiction is this? If we're on – for and on the record.
THE COURT: This is the Ontario Court of Justice, Metro North courts, courtroom number 306. It is a bail court in which I preside as a justice of the peace. Kowarsky is the name. The Crown is Mr. Poon, duly authorized to deal with these bail matters and you are one of a number of people on the docket which this court will deal with today. My authorization to function as a justice of the peace comes from an Order in Council by the Ontario Government. My jurisdiction other than common-law jurisdiction, arises from the Criminal Code. Anything else I can tell you, sir?
DAVID LAVIN: So, are you saying that you don't have jurisdiction in common-law?
THE COURT: Sir....
DAVID LAVIN: For and on the record....
THE COURT: Listen to me, sir. I'm not prepared to argue this case...
DAVID LAVIN: I'm not arguing, sir, I'm just asking questions.
THE COURT: I have told you what jurisdiction I have, sir.
DAVID LAVIN: Okay. So you're, you're saying for and – on and off – on and off the record...
THE COURT: Just sit down for a minute, sir.
DAVID LAVIN: ...you're not....
THE COURT: Sit down for a minute, please.
DAVID LAVIN: Sorry.
THE COURT: Sit down for...
DAVID LAVIN: For and on the record...
THE COURT: Sit down before I...
DAVID LAVIN: ...you're....
THE COURT: ...have you removed from the court. Sit down.
DAVID LAVIN: I do so under....
THE COURT: By order of the Court, sit down.
DAVID LAVIN: I do so under duress, threat, intimidation.
Court's Reasons for Detention
THE COURT: Sit down. All right. This is a gentleman who has now indicated to me that his name is David Lavin, appeared before me yesterday in this court. He had disrupted the proceedings in the court.
DAVID LAVIN: I'm sorry, Your Honour, for and on the record, I'm sorry.
THE COURT: If you continue to talk, I'll have you removed from the court, do you understand that? One more word from you until I ask you to respond and you will be removed from the court. Do you understand that?
DAVID LAVIN: I'm under – I do so under duress, threat and intimation.
THE COURT: Take him down, please.
MR. POON: Can we come back tomorrow, Your Worship?
THE COURT: No, no, no. I'm going to deal with it in his absence and then I'll call him up and I'll ask, perhaps, if possible, to have the record indicate what I've said so you can take a seat for a moment. All right.
David Lavin appeared before me yesterday, very disruptive. He did not want to utilize the assistance of duty counsel yesterday. He wanted to represent himself.
He is charged with numerous offences, number one: obstructing a police officer, and then four charges under the provincial offences legislation: use plate not authorized for a motor vehicle, driving while under suspension, operate motor vehicle without insurance and drive motor vehicle no currently validated permit. All those charges are under the Highway Traffic Act, except driving without insurance which is contrary to Section 2.1(a) of the Ontario Compulsory Automobile Insurance Act.
The onus is on the Crown to satisfy the Court on a balance of probabilities that the accused should be held in pre-trial custody. Mr. Poon indicated to me yesterday that he is not interested in showing cause or endeavouring to show cause and is prepared to consent to the release of the accused. He then indicated that by virtue of some of the comments that the accused had made, that the conditions of release should be subject to the accused's acknowledging that he's bound by the conditions agreeing to obey those conditions and signing the recognizance. And that was to be a $500 recognizance, no deposit.
I've already earlier indicated what the conditions were to have been. This occurred at approximately a quarter to one yesterday afternoon in this court. I asked the accused whether he would be prepared to acknowledge that he's bound by these conditions and is prepared to comply with them and sign the bail papers accordingly. He said he needed 10 or 15 minutes to think about it. I gave him until the court resumed after the lunch break until approximately 2:30 when his matter came before the court again. Once again, for the purposes of the record and to ensure that I was dealing with David Lavin, I asked him to provide the court with his first and last name. Again, he started talking in some form of gibberish that made no sense and has no legal standing in this court. For that reason, I had him removed from the court, and, in the interests of justice, I ordered the matter to return before me today in order for the bail, once again, to be considered.
Analysis: OPCA Litigants
The seminal case on matters of this kind is a recent decision by the Alberta Court of Queen's Bench. It's a decision called Meads v. Meads, 2012 ABQB 571, released on the 18th of September 2012 by Associate Chief Justice of the Alberta Court of Queen's Bench, J.D. Rooke. It is approximately 187 pages in which the judge, after dealing with a similar litigant, did extensive research into the law in relation to litigants of this nature.
In fact, just as an aside, the front page of today's National Post refers to litigants of this nature who, generally speaking, amongst other things, do not acknowledge the jurisdiction of the courts and do not regard themselves as being bound by the laws of this country and the decision in Meads v. Meads was in fact referred to in that article this morning.
Since the judge did some extensive research into this matter, I'm going to quote certain segments of that judgement which I find will be influential and be of assistance to me in dealing with this difficult matter.
Paragraph 1 of that decision, I quote:
"This court has developed a new awareness and understanding of a category of vexatious litigant."
His Honour then describes numerous such identifiable groups in a general category which he calls:
"Organized, pseudo-legal commercial argument litigants."
In short OPCA litigants.
From Mr. David Lavin's behaviour in court yesterday and today, I am of the view that he is in fact a member of one or other of this group within the collective characterization of the OPCA as indicated in the decision of Rooke, J. in Meads v. Meads.
From the accused's behaviour in this court, it appears that in the words of Justice Rooke:
"These persons employ a collection of techniques and arguments...to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations and individuals."
At paragraph 3:
"One of the purposes of these reasons is through this litigant to uncover, expose, collate and publish the tactics employed by the OPCA community as part of a process to eradicate the growing abuse that these litigants direct towards the justice and the legal system we otherwise enjoy in Alberta and across Canada."
And at paragraph 198:
"Moreover, members of the OPCA community have proven violent."
And he adds that:
"Always an important fact."
Paragraph 65:
"No Canadian court has accepted an OPCA concept or approach as valid. They directly attack the inherent jurisdiction of Canadian courts."
Paragraph 66:
"There is no place in Canadian courts for anyone who advances OPCA concepts."
Paragraph 71:
"Because of the nonsense they argue, OPCA litigants are invariably unsuccessful and their positions dismissed."
Paragraph 72:
"These are little more than scams that abuse legal process."
Paragraph 245:
"Another common motif is that an OPCA litigant will engage in various peculiar comments that relate to names and identification, for example, an OPCA litigant may refuse to identify themselves by name, instead stating they are an agent or representative of an entity identified by the litigant's name."
Paragraph 252:
"Similarly, litigants who refuse to identify themselves but claim to represent an entity related to the litigant who will often maintain this role in the face of strong court warning."
Paragraph 315:
"Obligation to adhere to motor vehicle licensing, registration, and insurance seems to have spurned considerable OPCA litigant activity. One apparently common argument is that the OPCA litigant is not subject to those requirements because that legislation only applies to either commercial vehicles or vehicles operated by corporations."
Justice Rooke cites Waterloo Regional Municipality v. Bydeley, 2010 ONCJ 740, affirmed 2011 ONCJ 842, affirmed by the Ontario Court of Appeal, 2011 O.J. No. 6282, and also Regina v. Kaasgaard, 2011 Manitoba Queen's Bench 256.
Court's Jurisdiction and Authority
So in light of the situation with which I am faced, with respect to the bail hearing of this gentleman who appears to be David Lavin, how is this court required to address the issue of bail with respect to this person who was brought into court by the police officers to address the issue of bail? He refuses to acknowledge that this court has jurisdiction. He's citing certain common-law requests. He doesn't acknowledge the Crown. He doesn't acknowledge the justice. How is this court required to deal with this matter is the question before me?
I refer in this connection to Section 146 of the Courts of Justice Act:
"Jurisdiction conferred on a court, a judge or a justice of the peace shall in the absence of expressed provision or procedures for its exercise in any Act, Regulation or Rule, be exercised in any manner consistent with the due administration of justice."
Well it's quite clear to me that I've never come across any law that guides me with respect to how to deal with a situation with which I'm confronted at this moment in this court. I will infer for the purposes of any ruling that I make, that this person is indeed David Lavin. The police arrested him, and an Information charging him with the offences before the Court is before the Court. The police officers have brought this person into court based on the documentation before me.
The onus is on the Crown to show cause why David Lavin should be held in pre-trial custody. The Crown has indicated that he does not wish to endeavour to show cause and is prepared to consent to the release of David Lavin on his own recognizance subject to certain conditions. One such condition is, and I'm in full agreement with the Crown in this regard, that this accused should not be released from custody unless and until he acknowledges his name, informs the Court that he understands all the conditions of his judicial interim release order, agrees to comply with all such conditions and signs the recognizance signifying the aforegoing.
In the interests of justice, I will make the following order which will not take effect until the accused has fully complied with the conditions for release which I have just detailed.
Bail Order
So subject to those conditions, I am prepared to release him on a Recognizance of $500. His own bail. No deposit. He is not to operate a motor vehicle. He is to report to the reporting centre at 2440 Lawrence Avenue East, Toronto, on the first Monday of each month commencing January 7, 2013 between the hours of 9:00 a.m. and 9:00 p.m. to the officer-in-charge and advise the officer-in-charge within 24 hours of any change of his address. He is to attend court on time as and when required. He is to provide the police with his current address as a condition precedent to his release and not move from that address without notifying the officer-in-charge 24 hours prior to such move of the new address, and that must be in writing.
He is to keep the peace and be of good behaviour. Attend court on time, as and when required.
I direct that after my signature of the Judicial Interim Release Order, it be sent for the immediate typing of the Recognizance which should then be brought to me in this court. I will then have the police officers bring the person identified on the information as David Lavin before me. I will ask him once whether he acknowledges and is prepared to comply with the order and sign the recognizance. Should he so comply, he will be released accordingly. Should he refuse to comply as I require, the judicial interim release order will not take effect and I will order that he be held in pre-trial custody until he has been dealt with according to law.
The detention order would be made on the secondary ground having regard to the apparent strength of the Crown's case in that he was arrested and charged at the scene of the traffic stop. And further, having regard to the potential for violence on the part of such litigants, I am of the view that having regard to all the circumstances there is a substantial likelihood that he would commit a violent offence if released or that he would interfere with the administration of justice as he has tried to do in these proceedings.
There will be two releases from a practical perspective, the one is with respect to the criminal offence of obstructing peace officer; the second one will be with respect to the provincial offences legislation. There will be a total of $500, no deposit.
Resumption of Proceedings
REPORTER'S NOTE: Other matters spoken to at this time. Duly recorded but not transcribed.
U P O N R E S U M I N G:
THE COURT: You appeared before me earlier today. You appeared before me yesterday. I understand that your name is David Lavin, is that correct, sir?
DAVID LAVIN: My given name is David and my family name is Lavin. Yes.
THE COURT: Thank you. You appeared before me yesterday and today for a bail hearing. The Crown has indicated the Crown will not endeavour to show cause why you should not be released on bail. The Crown is prepared for the Court to release you on bail, on a $500 recognizance, no deposit. I am prepared to make such an order on the condition that you acknowledge the jurisdiction of this court to make the order for your judicial interim release.
Second, that you acknowledge that you understand the conditions of your release and agree to obey them which I will go through with you in a moment. That you are agreeable to providing the police with your current residential address as a precondition to your release and that you sign the bail papers accordingly. Are you prepared to do that?
DAVID LAVIN: Just – I have a few questions. Am I entitled to a Bible?
THE COURT: Are you entitled to a Bible? To do what...
DAVID LAVIN: Yes.
THE COURT: ...sir?
DAVID LAVIN: To have in my possession while I am in court.
THE COURT: Oh, certainly.
DAVID LAVIN: Okay.
COURTROOM CLERK: The Holy Bible, sir.
DAVID LAVIN: King James version?
COURT REPORTER: The one that we have in court today is the New International Version, sir. It's the one that's available.
DAVID LAVIN: I'll use it anyways.
COURT REPORTER: Very good, sir.
THE COURT: All right, sir, the question is are you prepared to do what I indicated that you are required to do before I'm prepared to make an order for your release?
DAVID LAVIN: Okay. I just have a couple of questions. Am I entitled to a fair hearing?
THE COURT: Yes, but there's no contested hearing because the Court is in a position where the Crown has a responsibility to show cause why you should be held in pre-trial custody and not released on bail.
The Crown has indicated that the Crown is not interested in showing cause why you should be held in pre-trial custody. The Crown has indicated to me that the Crown is prepared for the Court to release you without any hearing and I am prepared to do that subject to the conditions that I've indicated.
DAVID LAVIN: Is this not a hearing?
THE COURT: Yes, but it's not a hearing where anybody has to prove anything. All I have to be satisfied with is that you acknowledge what I've told you and that you sign the documents.
DAVID LAVIN: Okay. So if for, for and on the record, you're, you're stating that this is not a hearing?
THE COURT: Sir, you're here for a bail hearing, but there's not going to be an actual "hearing" because the Crown doesn't want you to be kept in pre-trial custody. That's all that has to be done.
DAVID LAVIN: Okay.
THE COURT: Yes. Go on.
DAVID LAVIN: And they, they can simply just release me on my own, own volition, own, own volition and it's not – have me under conditions?
THE COURT: That is always possible but the Crown is not prepared to consent to that and neither am I prepared to make such an order. You are charged with the criminal offence of obstruction, obstructing a peace officer. You are also charged with serious violations of provincial legislation, the Highway Traffic Act, as well as the Compulsory Automobile Insurance Act. Use plate not authorized for vehicle, drive motor vehicle no currently validated permit; driving while your driver's license is under suspension, operating a motor vehicle without insurance. So, based on all of those charges, the Crown is not prepared to consent to your release without conditions, and I'm not prepared to grant it.
DAVID LAVIN: Okay. So without being criminally charged or not being convicted of a guilty charge, isn't it hypothetical for, for, for them to think that I'm – I've...
THE COURT: Sir.
DAVID LAVIN: ...done something...
THE COURT: Sir.
DAVID LAVIN: ...wrong?
THE COURT: Sir, listen to me. All right. It's in your own interest.
DAVID LAVIN: I'm just asking questions. It is in your – it's not a question I'm prepared to answer.
DAVID LAVIN: Okay.
THE COURT: I think...
DAVID LAVIN: Can...
THE COURT: ...that I've answered....
DAVID LAVIN: ...the answer?
THE COURT: I have....
DAVID LAVIN: Can the Crown answer please?
THE COURT: Nobody is going to answer. I'm the one who controls this court and nobody is going to answer that. So, again, are you prepared to do what I told you to do in order to get released on bail?
DAVID LAVIN: I'm sorry, I'm not clear on some of the things that you've said. Can I have a law dictionary, please? Am I entitled to a law dictionary?
THE COURT: No.
DAVID LAVIN: So I'm not entitled to understand the law? Because you....
THE COURT: Sir. Sir.
DAVID LAVIN: A legal dictionary....
THE COURT: Sir, if you continue to interrupt me, I'll make an order for your detention, do you understand that?
DAVID LAVIN: I'm sorry, Your Honour.
THE COURT: So then – don't say anything and just listen.
DAVID LAVIN: Sorry, Your Honour.
THE COURT: The order that I'm prepared to make is that you pledge $500, your own bail, without deposit. The conditions are that you are not to operate a motor vehicle. That you will report to the reporting centre at 2440 Lawrence Avenue East, Toronto, on the first Monday of each month, commencing on the 7th of January, 2013, between the hours of 9:00 a.m. and 9:00 p.m. to the officer-in-charge and advise the said officer-in-charge within 24 hours of any change of address. You are to keep the peace and be of good behaviour. Attend court on time as and when required. Provide the police with your current residential address and not move without notifying the officer-in-charge 24 hours prior to such move in writing.
These are the conditions on which the Court is prepared to make an order for your judicial interim release, for releasing you on bail, subject to the conditions that I've indicated, that you acknowledge the jurisdiction of the Court to make the order, that you acknowledge and that you understand the conditions of your release and agree to obey them and that as a precondition of your release, you provide your residential address to the police and that you sign the bail papers indicating all of that. Are you prepared to do that?
DAVID LAVIN: Well....
THE COURT: Yes or no?
DAVID LAVIN: Well I would do so under, under duress...
THE COURT: Sir, are...
DAVID LAVIN: ...threat and intimidation.
THE COURT: ...you prepared – now there's no duress, are you prepared....
DAVID LAVIN: I am under duress, Your Honour.
THE COURT: Are you prepared to do what I told you to do? Not under duress, this is a court of law and I have the jurisdiction to make the order. You heard more than once now what I require you to do. It's not a question of under duress; you are obliged by law to do what I've told you if you want to be released on bail. So are you prepared to do that, yes or no?
DAVID LAVIN: If, if I give my signature, right, if I, if I put my signature down on a piece of paper, am I entering into a binding contract?
THE COURT: Absolutely.
DAVID LAVIN: Okay. So under duress and threat and intimation, I'm being coerced into signing a contract, am I not, sir?
THE COURT: There will be no order for judicial interim release. I will order that this gentleman be held in pre-trial custody until such time as he has been dealt with according to law. I am satisfied...
DAVID LAVIN: Your Honour, I'm just trying to...
THE COURT: ...I am satisfied...
DAVID LAVIN: ...help you out, Your Honour.
THE COURT: ...that there is a very strong Crown's case and that he was arrested at the scene of the traffic stop. I am satisfied that he is one of the people who may be a free man of the land, or some person of that nature.
DAVID LAVIN: So would you say that I'm...
THE COURT: And that he...
DAVID LAVIN: ...ruled under common-law?
THE COURT: ...is not prepared to acknowledge the jurisdiction of the court.
DAVID LAVIN: Because for the – for and on...
THE COURT: He is not prepared to...
DAVID LAVIN: ...on the record, Your Honour, I am standing before you under duress, threat and intimation. Don't touch me, sir.
THE COURT: Take him....
DAVID LAVIN: You have no consent to touch me.
THE COURT: Take him out of the court, please.
COURT OFFICER: I don't need your consent. I have an order of the Court.
THE COURT: There will be a detention order. I'm satisfied that...
COURT OFFICER: Give me your hand.
THE COURT: ...there's a substantial likelihood...
DAVID LAVIN: Sir...
COURT OFFICER: Give me your hand.
THE COURT: ...if I were to release him...
DAVID LAVIN: ...under – the record...
COURT OFFICER: Right now.
THE COURT: ...he would commit further offences or he would interfere with the...
DAVID LAVIN: For and on the record...
THE COURT: ...administration of justice...
DAVID LAVIN: ...I will proceed under duress, threat, intimidation.
THE COURT: ...which he has absolutely done up to now. Thank you.
COURT OFFICER: I'll bring your paper.
DAVID LAVIN: For and on the record...
COURT OFFICER: Go.
DAVID LAVIN: ...I'm under duress, that and intimation.
Certification
THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from the record made by THE recordings M. VEZINA to the best of my skill and ability.
Donella McLauchlan Certified Court Reporter
THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED
Addendum – Post Script
After I made the Detention Order in this matter, Duty Counsel requested that I adjourn the matter to the Plea Court on the following day. I acceded to that request, and adjourned the matter to January 4, 2013 in Courtroom #303, which is the Plea Court.
On January 4, 2013 David Lavin appeared in the Plea Court, and entered a guilty plea to Obstruction of Justice. The plea was accepted, and the disposition was a Conditional Discharge with a Probation Order for 6 months, including 30 hours of community service.
He also pleaded and was found guilty of driving while his licence was under suspension and operating a motor vehicle without insurance. In respect of these convictions he was fined $1,000.00 and $5,000.00 respectively.
P. Kowarsky J.P.
January 4, 2013