Ontario Court of Justice

Date: 2024-03-07 Court File No.: 0711-999-22-71100125

In the Matter of an appeal under 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;

Between:

HIS MAJESTY THE KING Respondent

— AND —

KRISTEN NAGLE Appellant

Before: Justice G. Donald

Heard on: October 4th, 2023 Reasons for Judgment released on: March 7th, 2024

Counsel: Jack Huber, counsel for the respondent Rosy Rumpal, counsel for the appellant

On appeal from a conviction and sentence imposed by Justice of the Peace A. Chahbar on September 22nd, 2022.

DONALD J.:

Background

[1] On April 25, 2021, amid the global Covid-19 pandemic, Kristen Nagle (“the appellant”) was charged with having attended a religious observation involving ten or more persons, an offence under s. 10(1) of the Reopening Ontario Act (“the Act”).

[2] The appellant represented herself at a trial before Justice of the Peace Chahbar. The prosecution called one witness: a police officer. The appellant gave evidence. She was convicted and fined $10,000.00.

[3] With the assistance of counsel, the appellant appeals against both conviction and sentence. The appellant argues that the Justice of the Peace failed in his obligations to provide reasonable assistance to an unrepresented accused person. The appellant argues that this resulted in an unfair trial and a miscarriage of justice. She asks that I set aside the conviction and remit the matter for a new trial.

[4] In the alternative, the appellant argues that the fine imposed was harsh and excessive and that the Justice of the Peace erred in his consideration of s. 10.1(1) of the Act.

[5] The reasons that follow explain why I will dismiss her conviction appeal but allow her sentence appeal.

The Conviction Appeal

[6] The conviction appeal is premised on the notion that the trial justice did not provide reasonable assistance to the unrepresented appellant. Similarly, the appellant argues that the trial justice failed to raise a Charter issue resulting in a miscarriage of justice. In either instance the appellant argues that the result was an unfair trial.

[7] I will explain why the assistance the appellant received at her trial was reasonable and why there was no miscarriage of justice.

1. Did the trial justice discharge the heavy onus on him to ensure that the unrepresented appellant received a fair trial?

[8] In her material filed on this appeal the appellant concedes having made Organized Pseudo-legal Commercial type Arguments (“OPCA”) submissions at her trial [1]. The appellant claims that this was the result of her being ‘a victim of legal misinformation’ and therefore that the justice ‘had a duty to inform her of this mistake’ [2].

[9] The guidance required from a trial judge to help an unrepresented litigant depends on the circumstances of the case and the accused [3]. An examination of the appellant’s conduct at trial is necessary before being able to determine whether the justice’s duty to provide assistance was reasonably discharged. In addition, the appellant’s carefully worded concession, that she made OPCA-type arguments, merits further scrutiny.

[10] The trial record reveals that:

• When the appellant was asked for her name, she stated “The name I am commonly referred to is Kristen Nagle” [4];
• Twice the appellant referred to the learned Justice of the Peace as “the man acting as the judge” [5];
• Later, the appellant referred to the police officer as “someone acting as an officer” [6];
• After the charge was read, when asked for her plea, the appellant twice stated “I do not plea in courts of contract” [7] and then refused to enter a plea;
• Following her refusal to enter a plea, and in response to the justice’s inquiry about whether the appellant would participate in her trial, the appellant indicated that her participation would be “As a private woman in my capacity using all common knowledge reserved.” [8];
• As the appellant was to begin cross-examining the prosecution’s witness she stated, “I just have to find my sent in questions that could have been answered prior or under oath that I have.” [9] Then, before asking her first questions she said, “So starting as I am a self-governing woman, my own private capacity, so rather than that be a lawful reason to have the charges against me advisory at best but not forced or effect.” [10]
• After asking for the officer’s first name, the appellant’s first substantive question was “Can you prove that the corporation rules and obligations being used against me are not from a defacto of power or corporation?” [11]
• After a brief debate surrounding the appropriateness of the above question the appellant next asked “Can you prove I was ever notified of restrictions on my rights by any corporate mandate?” [12]
• Later, the appellant attempted to ask the witness “Do you not agree that a defacto corporation must have consent to invite any obligations on me?” [13]
• At one point, instead of asking a question the appellant stated “As a woman I’m under the ability to act in my private capacity as long as there’s no harm done against myself or anyone else” [14];
• The appellant then attempted to ask “Is [sic] any evidence that I caused harm or damage to any other man or woman in this matter?” [15]
• After the appellant first indicated that she had no further questions in cross-examination, in an obvious effort to deliver the appellant a fair trial, the justice took a recess to allow her an opportunity of considering whether she had further question. The appellant then exclaimed: “Yeah if he’s not able to answer if I have caused any harm to anyone in this matter as a woman acting in her private capacity.”
• Throughout the trial, the appellant referred to the charge she faced as a “claim made against me.”
• After a recess the appellant asked the witness “Can you prove I don’t have common law rights outside of the Charter outside of the Constitution that must not be violated?” [16]
• During an exchange about the relevance of the above question the appellant stated, “Well I was served claims against me by this man acting as Officer as someone claiming these charges against me there has to be an understanding of those claims, and I did send in a notice as well to remedy these mistakes.” [17]
• Nearing the end of her “cross-examination” the appellant asked the witness “Is there any proof I was not in my private capacity at the time of the implied offence?” [18]
• The appellant opted to give evidence at her trial and began her evidence by stating, “So for the record, my claims of rights. I claim I did nothing wrong. I claim I was safely and lawfully self-governing within my rights at the time of the implied offence in question. I claim I caused no harm to any man or woman nor damage to any property. I do not consent to being a defendant in a corporate administrative court of limited jurisdiction over inferior classes of persons and bound to corporate rules and obligations made for a person of inferior standing. I claim that would be a violation of my right standing as a woman with superior rights. This can be proven otherwise. I claim the wrongful mischaracterization of me by way of name or capacity to convert my superior rights into inferior corporate rules and obligations is fraud. I claim The Crown is accountable for all classes of persons. I am not a surety for any person in this matter, who claims I am.” [19]
• After an enquiry from the court about whether this was the document, the appellant had thought might have been filed and a positive response from the appellant she continued – “I claim a right of court of competent jurisdiction according to the common law claims while acting as a private woman in the capacity with all common law rights reserved.” [20]

[11] The appellant was asked six questions in cross-examination. The entirety of the cross-examination is captured in half of a page of transcript. During this laser precise cross-examination, the appellant admitted the offence for which she was on trial.

[12] In Meads v. Meads 2012 ABQB 571, [2012] A.J. No. 980, a case relied upon by the appellant, Justice Rooke painstakingly detailed a variety of specious arguments routinely deployed by OPCA litigants to disrupt court operations. Understandably, Justice Rooke characterizes the OPCA litigant as a special class of litigants requiring special attention to prevent and eradicate their growing abuse of the justice system [21].

[13] Without any evidentiary basis, the appellant submits that her use of OPCA-type arguments was a “mistake” and/or a “misunderstanding”. The above summary of the trial record demonstrates that the appellant employed a consistent and deliberate OPCA strategy at nearly every opportunity during her brief trial. There is nothing before me, including an affidavit from the appellant [22], that would allow me to conclude that she proceeded inadvertently during her trial. While her strategy may have been unwise and ineffective, I have no reason to conclude it was unintentional or inadvertent.

[14] As an unrepresented litigant the appellant enjoyed the right to choose her trial strategy including one that, with the benefit of hindsight and/or a more fulsome appreciation of the law, may otherwise appear ill-advised. The task of a trial judge/justice is to ensure that the appellant obtains a fair trial and not, as the appellant argued, to disabuse her of philosophies that may have led her to adopt an OPCA centric trial strategy [23].

[15] Viewed as a whole, the appellant’s conduct during her trial was that of a person travelling through the justice system with the intention to frustrate, squander and abuse the increasingly scarce resources of the justice system. Upon a complete review of the trial record, including the defiant position taken by the appellant during sentencing, I conclude that the appellant was a full OPCA litigant at her trial. The appellant’s intentional conduct separates her from the vast majority self-represented litigants who routinely arrive at trials confused about court process and procedure, often underprepared, but with the intention of participating, to the very best of their abilities, in their trial.

[16] The latter category requires a trial judge’s helpful assistance. The former category requires careful management. Regardless, the trial judge’s task is to ensure that the litigant receives a fair trial [24]. In my view, the approach adopted by the trial justice was eminently consistent with his obligation to provide guidance in accordance with the circumstances of the case and of the accused [25].

[17] The learned Justice of the Peace, by taking a minimalist engagement/management approach, ensured the appellant fair trial rights while simultaneously avoiding a protracted (if not derailed) proceeding. Moreover, and most importantly, nothing in the record suggests that additional interventions or assistance from the trial justice would have led to a different outcome. Indeed, one wonders whether the only difference a more interventionist justice would have inspired is a different set of complaints by the appellant.

[18] During oral submissions on this appeal the appellant suggested that the learned trial justice’s failure to intervene prevented her from being able to fully marshal a defence at trial. I reject this submission. The prosecution case at trial was very straightforward. A uniformed police officer testified that, while conducting surveillance apparently designed to investigate these sorts of Reopening Act breaches, he saw the appellant attend a religious service with more than 100 others. The officer’s in-person observations were supplemented by a YouTube video which was subsequently posted online. When the appellant was cross-examined, she confirmed the accuracy of the YouTube video, her presence at the front of the church, and the presence of other individuals ‘well in excess’ [26] of ten.

[19] At no point during her trial did the appellant demonstrate any apparent interest in marshalling a defence. Instead, including her decision to read ‘a statement’ that she had seemingly prepared before her trial, it appears as though the appellant had a different agenda in mind – that of an OPCA litigant.

[20] There is no merit to the appellant’s suggestion in oral submissions that the appellant was unable to marshal a defence.

[21] There is also no merit to the appellant submission that the trial justice had a legal duty to stop the appellant from making “OPCA-type submissions”. While the onus on the trial justice, when dealing with a self-represented accused, is a heavy one it does not rise to the level of ensuring that the case is presented as effectively as a competent lawyer. Indeed, trial fairness requires that a self-represented accused “be given a fair opportunity to present their case to the best of their ability”. While competent counsel may have discouraged the appellant from deploying OPCA tactics at her trial, in my view, it would have been improper for the trial justice to have attempted to do so.

[22] Nothing in the record suggest that the appellant received anything other than a full and fair hearing.

[23] I find that the Justice of the Peace diligently discharged his obligations to the appellant, despite her OPCA tactics. In the circumstances, his level of assistance was entirely reasonable. This ground of appeal fails.

2. Did the Justice of the Peace fail to raise a Charter issue on his own motion such that a miscarriage of justice occurred, or the appellant’s trial was rendered unfair?

[24] For reasons unclear, the appellant’s materials are silent on the nature of the Charter breach that the appellant claims that the Justice of the Peace failed to raise. Given that this duty is imposed on trial judges only in circumstances where the relevant Charter breach can be said to have been imminently articulable [27] this omission is curious.

[25] In its factum, the respondent queried whether the appellant believed that her rights protected in s. 2 (a-d) of the Charter had been infringed. During oral submissions, Ms. Rumpal agreed that this was the Charter issue the Justice of the Peace ought to have raised.

[26] I would dismiss this ground of appeal for two reasons.

[27] First, in oral submissions, the appellant conceded that the constitutionality of the public health oriented, pandemic necessary, liberty restrictions at the center of the appellant’s trial had since been confirmed as constitutionally sound by the Ontario Court of Appeal [28]. Therefore, even if there had been a duty for the trial justice to raise the issue, it is not possible that this resulted in a miscarriage of justice. This ground of appeal is dismissed for mootness.

[28] Second, the justice’s duty to raise Charter arguments arises only "where there is admissible uncontradicted evidence of a relevant Charter breach” and not “on the mere scent or intimation of a possible Charter infringement” [29]. To embark on his own motion into a review of the charging legislation is inconsistent with his duty and would tread into providing the type of assistance reserved for counsel. In my view, it is not possible for a trial judge to do what the appellant suggests that the justice should have done without putting at risk the appearance of impartiality that the justice also had a duty to maintain.

[29] The trial justice did not fail in his obligation to raise a Charter issue on the appellant’s behalf. This ground of appeal must also be dismissed.

[30] In the circumstances of the case before him, the justice discharged his obligation to assist the unrepresented appellant. I am fully satisfied that her trial was fair and that there was no miscarriage of justice.

The Sentence Appeal

[31] After providing reasons finding the appellant guilty of the offence, with the pressures that result from being in very busy trial court, the justice of the peace quickly moved into the sentencing phase of the proceedings. Citing the appellant’s prominence at the gathering, the prosecutor sought a fine in the amount of $10,000. Then, the appellant flatly refused to make any sentencing submission and continued to behave in accordance with the dogma associated with that of a full OPCA litigant.

[32] The justice’s limited reasons for sentence are insufficient to facilitate meaningful review [30] and the appellant’s sentence appeal must be granted on this basis. Put differently, due to their brevity, I am unable to determine whether the justice’s sentence was harsh and excessive.

[33] As part of the appeal process, following oral argument, I received written sentencing submissions, which included biographical information about the appellant. As a result, I am in a better position informationally than the justice was at trial. Thus, at the oral hearing counsel agreed that if I allowed the sentence appeal, that I ought to impose it on the amplified record.

[34] The appellant was 40 years old when the appeal was argued. She is married and has three children all under the age of ten. Prior to the pandemic, the appellant worked as a nurse at London Health Sciences Center for fourteen years. Nine of those years were spent by the appellant in the Neonatal Intensive Care Unit. She lost her employment in 2021 apparently for “voicing her opinion and beliefs with respect to the mandates and lockdowns”. Her husband is employed as a high-school teacher. At present the appellant’s household is solely supported by her husband’s income.

[35] Prior to the pandemic, the appellant was engaged in a variety of prosocial activities in her local community. Although she continues to be involved with her local church, the appellant asserts that she has been shunned by the broader community as a result of the notoriety she has gained as a result of her public advocacy concerning the public health measures of the Covid-19 pandemic.

[36] The appellant takes the position that a $1,000.00 fine would provide sufficient denunciation and deterrence in this case. The respondent suggests that a $5,000.00 is necessary in the circumstances.

[37] The trial record includes a photo [31] of the appellant with her arms raised with four other individuals facing out towards a crowd of approximately 60 people [32]. The appellant is unmasked and can be seen smiling. It appears from the photo that she is being celebrated. It is plainly obvious from this photo that she was more than a simple participant at the gathering. This is an aggravating feature.

[38] After she was found guilty the appellant plainly and disrespectfully told the justice that she would not pay the fine and would instead rather be jailed [33]. This display of disrespect for the rule of law is entirely consistent with her flagrant disregard for a public health ordinance that, to be effective, required everyone’s cooperation. Moreover, the appellant’s conduct post-conviction signaled the need for a sentence that adequately addressed the need for specific deterrence. Nothing in the record before me suggests that the appellant is remorseful for the having committed the offence in question.

[39] I have been provided with three unreported cases [34] where fines in the amount of $750 to $1000 were imposed for the same offence. Each of these cases involved a guilty plea and joint submission. Each of the cases was devoid of any aggravating features. Given the highly individualized nature of sentencing proceedings, none of these cases are particularly helpful.

[40] While it would be improper to sentence the appellant for her chosen litigation strategy, I cannot help but observe that there is a degree of consistency between the offence that brought her to court and being an OPCA litigant. As I have mentioned already, the appellant’s post-conviction comments are properly considered in the assessment of the need for specific deterrence.

[41] Having regard to the sentencing principles in the context of this case, I am satisfied that a fine of $3,750.00 (plus costs and surcharges) is necessary to adequately address the enhanced need for specific deterrence in the context of this case [35].

[42] The sentence appeal is allowed and the sentence varied on that basis. [36]

Released: March 7th, 2024 Signed: Justice G. Donald

Footnotes

[1] Paragraph 14 of the Appellant’s Factum [2] Ibid at para 15 [3] R. v. Richards 2017 ONCA 424, 2017 OJ 2680 [4] Trial transcript – page 1 lines 9-10 [5] Ibid at page 1 [6] Ibid at page 25 line 25 [7] Ibid at page 2 [8] Ibid at page 3 [9] The trial record suggests that the Appellant had not filed anything with the Court. [10] Supra note 4 at pages 20-21 [11] Ibid at page 21 lines 28-30 [12] Ibid at page 23 lines 9-10 [13] Ibid at page 22 lines 25-27 [14] Ibid at page 24 lines 5-7 [15] Ibid lines 12-13 [16] Ibid at page 26 lines 30-32 [17] Ibid at page 27 lines 13-17 [18] Ibid at page 28 lines 5-6 [19] Ibid at page 31 lines 6-20 [20] Ibid at page 32 lines 1-6 [21] Ibid at para 3 [22] Filed in support of an Application to file the Appeal prior to payment of the fine [23] I cannot help but wonder about the futility (and expenditure of already strained court/judicial resources) of such an effort. [24] Richards at para 110 [25] Supra 1 at para 110 [26] Transcript page 32 lines 29-31 [27] Richards 2017 ONCA 424, 2017 OJ No. 2680 [28] Ontario (Attorney General) v. Trinity Bible Chapel 2023 ONCA 134, 166 OR (3d) 81 - Leave for appeal dismissed by the SCC at 2023 SCCA No. 168. The trial decision was referred to by the prosecutor in oral submission at the appellant trial. [29] Richards supra at para 113 [30] R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 [31] Exhibit 2 [32] Supra note 4 at page 9 lines 14-18 [33] As part of these proceedings, I denied the appellant’s application to have her appeal heard without the fine being paid. The appellant has now paid the fine in full. [34] R. v. Wiebe, R. v. Banman, R. v. Guenther [35] I am mindful that the offence occurred in 2021, the trial in 2022, and the appeal disposed of in 2023/24. Over this period, the threat posed by the Covid-19 pandemic has evolved significantly. There is little question that, from a sentencing perspective, this evolution, inures to the great benefit of the appellant. In addition, had there been evidence at trial that persons at the gathering knew her to be a (former) nurse with close to a decade and a half of experience I would have treated this as a significant aggravating feature and further elevated the fine. [36] This will result in the appellant being returned monies in accordance with the usual timelines.