Court File and Parties

COURT FILE NO.: CrimJ(F) 1498/16 DATE: 2018 12 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN H. Akin, for the Respondent, Federal Crown Respondent

- and -

JAMES JAHKYN GRANT G. Singh, for the Applicant Applicant

HEARD: November 26, 2018

SECTION 11(b) RULING

D.E. HARRIS J.

[1] The applicant applies under Section 24(1) of the Charter to stay the importing cocaine charge against him for a violation of his right to be tried within a reasonable time protected by Section 11(b).

[2] The total delay from the date he was charged, January 25, 2015, to the prospective trial date of January 14, 2019 is just short of four years. This is over the presumptive Jordan ceiling of 30 months: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[3] The allegation against the applicant is that he arrived at Pearson Airport with 2.5 kilos of cocaine secreted in a false bottom of his luggage. This a very serious allegation which, if the applicant is convicted, would necessitate a lengthy penitentiary sentence.

[4] Trouble seems to follow the applicant around like a black cloud. The date after arrest, January 25, 2015, the applicant appeared for a show-cause hearing. The applicant identified himself as indigenous and asked the presiding Justice of the Peace to clarify the legal authority of which he was subject. This would become an ever-present theme throughout these proceedings. In his many appearances, the applicant often referred to himself as an indefinable spirit created by flesh and blood and as an aboriginal sovereign on his land.

[5] After being released on bail January 30, 2015, the applicant was to present himself on February 2, 2015 for fingerprinting. His affidavit states that when he attended, he got into an argument with the officers. He refused to enter the fingerprint room and stated that a judge should be the one to authorize the taking of the fingerprints. The applicant alleges he was abused by the officers. There are contrary affidavits from the police officers involved which state that he was totally uncooperative and unruly. He was charged with failure to comply with his recognizance and was released on bail.

[6] On November 9, 2015, the day scheduled for the first preliminary hearing, the applicant was arrested because of what occurred while trying to enter the courthouse. In his affidavit, the applicant says that he was attempting to enter with the flag of his nation. He requested a pat down search. According to him, he was assaulted.

[7] Again, the untested affidavit of the supervisor at the courthouse entrance tells a very different story. The flag was on an 8-foot metal flagpole. He was told he could not bring it into the courthouse as it could potentially be used as a weapon. Mr. Grant was extremely confrontational. He would not comply with directions. A commotion ensued. Mr. Grant’s lawyer got involved and talked to him for 10-15 minutes. Mr. Grant was still angry, however, and resisted physical efforts to have him leave the building. There was a struggle. He was charged with causing a disturbance, resist police officer and resist lawful arrest. The preliminary hearing was cancelled and counsel indicated that he would be getting off the record.

[8] On November 13, 2015 the applicant appeared before a Justice of the Peace, identified himself as a sovereign individual and asked to file documentation as to his identity. The request was denied.

[9] March 7, 2016 was the second preliminary hearing date. The applicant appeared self-represented before Justice B. Duncan. Unbeknownst to him, Justice Duncan was well familiar with the particular brand of juridical nihilism espoused by the applicant: see Cassista, infra.

[10] The applicant appeared to present documents of his identity and requested that they be reviewed. He then said,

JAMES GRANT: I presented my identification; I would like to know who you are. Up until this point you’ve hid your identify from me. I would like to know who…

THE COURT: I haven’t hidden anything.

JAMES GRANT: This case cannot…

THE COURT: Have a…

JAMES GRANT: …go forward…

THE COURT: …seat there, Mr. Grant.

JAMES GRANT: …until you present your identification.

THE COURT: Have a seat.

MR. MELNICK: The Crown calls Dennis Boyer (ph).

THE COURT: Or stand if you choose. I don’t care.

JAMES GRANT: For the record…

THE COURT: He’s already…

JAMES GRANT: …the court…

THE COURT: …has not presented any identification as to who I’m speaking with. Now, as a sovereign on…

THE COURT: Okay.

JAMES GRANT: …my land I have the right to know who I’m dealing with.

JAMES GRANT: Excuse me, sir, but this is the way that you speak to a sovereign on his land?

THE COURT: Yeah. This is the way…

JAMES GRANT: Can I…

THE COURT: …I speak to….

JAMES GRANT: …ask you why you speak to me with such disrespect…

THE COURT: It’s the way I speak to people in my court.

JAMES GRANT: …when you have yet to identify yourself?

THE COURT: Okay.

JAMES GRANT: And as it stands, judge, I am the highest ranking member in this court.

THE COURT: I see.

THE COURT: Oh, please. Just sit down. Come on. This – you know, you’re trying my patience…

ACCUSED: For the record…

THE COURT: …sir.

JAMES GRANT: …the Judge is denying my request for identification which I have the right to do, which I have the right to know who I’m dealing with and who requires of me the stipulations that you’ve placed on me.

THE COURT: Mr. Melnick, I’m of the view that there’s no right to a preliminary inquiry anymore. He has to request a preliminary inquiry. And if his - if he fails to appear or if his conduct is such that he’s, in effect, denying himself the right to a preliminary inquiry, I - seems to me that he gets ordered to stand trial. Do you have any comment about that?

MR. MELNICK: I agree with that Your Honour.

JAMES GRANT: …that these…

THE COURT: All right.

JAMES GRANT: …two are dealing with my matters without even identifying themselves.

THE COURT: All right. He’s ordered….

JAMES GRANT: Now, please, judge…

THE COURT: He’s ordered to stand trail…

[11] Justice Duncan, understandably exasperated with the applicant’s behaviour, was fully justified in cancelling the preliminary inquiry and committing the applicant to trial.

[12] March 18, 2016 was the applicant’s first appearance in the Superior Court. Justice Durno attempted many times to establish the applicant’s identity and asked the applicant if he was planning to hire a lawyer. On two occasions, the applicant left the courtroom during discussions with Justice Durno and had to be paged back to court.

[13] Here is a brief excerpt representative of the applicant’s conduct:

THE COURT: All right. Do you mind taking the child outside, please?

JAMES JAHKYN GRANT: No, that’s my child and I – is under my supervision. My child is not leaving my presence at the moment.

THE COURT: This Court’s under my supervision.

JAMES JAHKYN GRANT: Well, can you please identify yourself and is this your court? Are you the owner of this court? I’d like to know. What authority do you have here? Are you, are you the one running things here? These are simple questions that I’d like answered so that I know what I’m dealing with and…

THE COURT: Sir…

JAMES JAHKYN GRANT: …I don’t think that’s unreasonable.

THE COURT: In terms of…

JAMES JAHKYN GRANT: I really don’t think this is unreasonable what I’m asking for.

THE COURT: In terms of who’s in charge of the court, yes, I am.

JAMES JAHKYN GRANT: Well, can you please identify yourself?

THE COURT: I have told you, I am a judge of the Superior Court.

JAMES JAHKYN GRANT: And I’ve told you I’m a sovereign of my land, which takes rank over your, your title because you have not provided who you’re even with. Who is your governments? As of the moment, I have the superior rank in this courtroom until you identify yourself.

THE COURT: I don’t agree with that. All right.

[14] It is perhaps not surprising that soon after this defiant appearance, on April 15, 2016, the applicant failed to appear and a bench warrant was issued for his arrest. At the hearing before me, his counsel attributed his failure to appear in part to the pre-trial conference form he was served with on or about April 1, 2016. In it, the Crown had written,

The accused considers himself a “Freeman on the Land.” A “sovereign citizen” with anti-authority, and anti-government beliefs. On March 18, 2016 the accused informed the court he did not consider himself bound by any laws. His demeanour in court was loud, disruptive and hostile so much so that court security was called in during the proceedings.

[15] Nothing was inaccurate in this description. The applicant’s attitude has been that because he was not treated fairly, it was to be expected that he did not respect the process and became intractable.

[16] Between February 2, 2017 and April 25, 2017, the applicant was attempting to retain a lawyer. The applicant had a lawyer at the outset, Mr. Mwangi, who had asked to be removed from the record after the flagpole incident almost one year into the proceedings. In the February to April, 2017 time period, on four occasions, the applicant announced he was hiring a new lawyer. On March 23, 2017, Mr. Phil Klumak, a very experienced criminal lawyer, appeared and stated that he had tried to get instructions from the applicant but had failed. He did not feel he was the right lawyer for the applicant; he was not retained and would not go on the record. Although counsel for the applicant at this hearing argued that Mr. Klumak acted improperly, there is no basis whatever for this comment.

[17] As a postscript to the applicant’s difficulty with lawyers within this time period, he did finally retain a lawyer in late March 2017. By January 2018, she too was off the record. Finally, in early April, 2018, the applicant confirmed that he had retained Mr. Singh.

[18] This is a summary of the highlights of the applicant’s failure to respect the court process. On this motion, the applicant’s conduct can be viewed with the benefit of hindsight and from a retrospective vantage point, viewing all his actions together.

[19] I have been asked to determine what actually occurred during some of the incidents during the movement of this case through the system such as in the flagpole incident for example. In cases in which the conduct in question is not captured on the record, a motions judge is in no position to hold mini-trials to resolve factual disputes concerning the applicant’s many conflicts with those in the administration of criminal justice. Furthermore, such an approach would be contrary to the letter and spirit of Jordan. The Supreme Court has concluded that the hearing of 11(b) motions should be streamlined just as the substantive criteria have been from the previous Askov/Morin structure.

[20] With respect to a number of the incidents, the applicant and his counsel blame others. I am very skeptical. On the contrary, from the many conflicts which have occurred with the full gamut of personnel in the administration of justice, including judges, court officers, police officers, and lawyers, a portrait of the applicant emerges. The applicant is not merely egocentric. He does not see himself so much as the centre of the universe as a separate and complete universe on to himself. He refuses to acknowledge the authority of the state over him. The applicant is a judicial nihilist. This is a particularly convenient stance for a man charged with a serious criminal offence.

[21] For the purpose of clarity, although it should be unnecessary to say, there was not a scintilla of sense let alone legal merit to any of the applicant’s positions with respect to the authority of judicial officers over him. The applicant is subject to the same authority and jurisdiction of the court as any other accused person. To take one of the more egregious examples, failing to appear because he feels hard done by in the system cannot be tolerated.

[22] It is unnecessary to consider whether the applicant’s conduct is at least partially a response to the seriousness of the charge he is facing and the potential consequences. Whatever the reason, the applicant’s conduct throughout has been obstructionist. As will be evident from the discussion of delay below, the applicant is responsible for a good deal of it. On many occasions, his obstreperous attitude has led to his incarceration as well.

[23] Although the legitimacy of the judiciary depends on the respect and support of the public, there have always been isolated individuals who, for their own purposes, stand in outright defiance of the court. However, the repute of the judiciary and its independence is not seriously challenged by the paltry rantings of persons thoroughly mired in their own self-interest.

[24] Those vexatious and frivolous litigants like the applicant have been exposed in several judicial comments, including in this jurisdiction: see R. v. Cassista, 2013 ONCJ 305, [2013] O.J. No. 2560, 107 W.C.B. (2d) 105 per Justice Duncan, R. v. Duncan, (2012), 2013 ONCJ 160, 2012 CarswellOnt 17266, Meads v. Meads, 2012 ABQB 571, [2012] A.J. No. 980.

[25] I would dismiss the applicant’s application of a stay of proceedings. What follows is an analysis of the main delay periods relied upon by the Crown as defence delay or waiver.

April 15, 2016 to January 31, 2017 (9.5 months)

[26] After leaving the court twice in the midst of the March 23, 2016 appearance before Justice Durno and being warned that an arrest warrant would be issued, the applicant was required to reattend on April 15, 2016. On April 1, 2016 he was served with a pre-trial conference form but was reluctant to accept service. He failed to attend on April 15, 2016 and a bench warrant was issued for his arrest. He was not arrested until the New Year and appeared before the court January 31, 2017.

[27] Defence counsel argues that, 1. The police were negligent in not arresting him earlier; and 2. The applicant was justified not attending because he was insulted by the statement in the pre-trial form he was served with. That issue has been discussed and rejected above.

[28] These arguments are totally devoid of merit and I dismiss them out of hand. It was the applicant’s obligation to attend court and, having missed it, it was his obligation to bring his failure to appear to the attention of the authorities. There is not one iota of evidence that the police were negligent. The burden falling on the applicant, this argument fails. This time period is the responsibility of the defence: Jordan at para. 63.

February 2, 2017 to April 25, 2017 (2 months and three weeks)

[29] In this period, the applicant was attempting to get a lawyer. Delay of this kind is defence delay: Jordan, at para. 64.

May 25, 2017 to July 28, 2017 (2 months)

[30] A judicial pre-trial was held on May 25, 2017 and the Crown and the court were prepared to set a trial date but counsel for the accused was not. She requested two weeks. At that date, June 9, 2017, it was said that new counsel was coming on for the applicant. That did not pan out. Finally, the matter went over to July 28, 2017 to set a trial date.

[31] This is defence delay.

July 28, 2017 to May 28, 2018 (10 months)

[32] July 28, 2107 was a date to set a trial date. The presiding judge said that the trial date should be earlier than May considering delay issues. He insured that the unrepresented applicant knew that he had the right to be tried within a reasonable time. He then asked the applicant whether he wanted a trial date before May 28, 2018. The applicant, saying that he had other matters in his life to address, said that he wanted May 28, 2018. He wanted to be properly prepared. The applicant said that he might get counsel for the trial.

[33] The Crown argues waiver. I disagree. Because the earlier available date was not specified, it cannot be said that there was an effective waiver or that the delay was requested by the defence. The time waived or foregone is impossible to quantify. For that reason, this part of the delay cannot be simply subtracted from the total.

May 28, 2018 to January 14, 2019 (7.5 months)

[34] On April 23, 2018, the Applicant sought an adjournment of the May 28, 2018 trial date and expressly waived the delay until the next trial date which was set as January 14, 2019: Jordan at para. 61.

CONCLUSION

[35] The total delay from charge to trial is approximately 4 years. Under Jordan, at least 22 months of delay must be deducted on the basis that it was defence generated or waived. That leaves at most a net delay of about 26 months, under the 30 month Jordan ceiling.

[36] The defence did not argue for a stay on the basis that this was a case that should be stayed despite being under the presumptive ceiling. The standard for cases under the ceiling requires the defence to demonstrate that despite best efforts by the defence to move the case along, the delay markedly exceeded the time the case should have taken.

[37] Applying this standard, the defence did not do their utmost to move the case along. This is evident from the applicant’s obstreperous, obstructionist conduct throughout the entire length of these proceedings. Also, with respect to the July 28, 2017 set date, the applicant specifically decided to forego an earlier trial. Nor did the time taken greatly exceed that which it ought to have. In conclusion, if the defence had made an argument that this “below the ceiling” case should be stayed, this would have failed: see Jordan, paras. 82-91.

[38] There was no violation of Section 11(b) of the Charter. The application to stay the proceedings is dismissed.

D.E. HARRIS J.

Released: December 11, 2018