COURT FILE NO.: CR19-109
DATE: 2021/05/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
BRANDON BROWN A.k.a. Noble Elijah El Muhammad Brown Armstrong Bey
Accused
J. Levy, on behalf of the Crown Attorney
Self Represented
P. Boushy – amicus
HEARD: January 25, 26, 27, 28, 29, April 6, 7 and 8, 2021
A.J. Goodman J.:
REASONS FOR JUDGMENT
Introduction:
[1] The accused, Brandon Brown (“Brown”), a.k.a. or requested to be referred to as Nobel : Elijah El Muhammad Brown Megafin - Strong: Armstrong Bey (“Bey”) was originally charged with five offences:
THAT Brandon Brown, on or about the 26th day of June in the year 2017 in the City of Hamilton at said region did conspire with unknown persons to commit the indictable offence of kidnapping, to wit kidnap Massimo Cananzi with intent to cause him to be confined or imprisoned against his will; AND FURTHER THAT on the same date and location, did willfully obstruct PC Kirkpatrick a peace officer, engaged in the execution of his duty; AND FURTHER THAT on the same date and location did knowing that Massimo Cananzi is harassed or being reckless as to whether Massimo Cananzi is harassed, engage in conduct that caused Massimo Cananzi to reasonably, in all circumstances, fear for his safety; AND FURTHER THAT on the same date and location, did knowing that Leigh Forrest is harassed or being reckless as to whether Leigh Forrest is harassed, engage in conduct that caused Leigh Forrest to reasonably, in all circumstances, fear for her safety; AND FURTHER THAT on the same date and location did having appeared before a court, Justice or Judge, fail without lawful excuse to attend court as thereafter required by the court, Justice or Judge, all contrary to their relevant provisions of the Criminal Code of Canada.
[2] During the Crown’s case, for brief oral reasons on the record, I dismissed two counts as against the accused as they pertained to the two counts of criminal harassment. The Crown decided not to proceed with the fail to appear charge.
[3] The conspiracy to commit kidnapping charge and the obstruct police officer charge relates to an incident that was alleged to have occurred on June 26, 2017 in Hamilton.
[4] At the outset of trial, Bey, entered no plea Pursuant to s. 606(2). A plea of not guilty was registered. The Crown called several witnesses, members of the Halton Regional Police and Hamilton Police Communication Division, an employee from Alectra Utilities, as well as police officers from the Hamilton Police Service.
[5] The accused testified on his own behalf. Prior to the defence calling evidence, at the request of the parties, I ordered a s. 672.11 assessment. Subsequently, I received a report from Dr. Maaz Usami, a forensic psychiatrist at St. Joseph’s Health care in Hamilton attesting to the fact that the accused did not meet the requisite criteria and was not eligible for exemption from criminal responsibility on account of a mental disorder pursuant to s. 16 of the Criminal Code.
Background:
[6] On June 26, 2017, at approximately 9:00 a.m., the accused and his accomplices attended the Hamilton Police Central Station and spoke with officers. The accused presented documents to officers at the front desk and advised that he planned to arrest someone in the City of Hamilton under Common Law. He claimed to be agents acting on behalf of the Pope and other authority. Brown was advised that his documents were not legal and that he had no authority to arrest anyone and if they did, they would be arrested themselves.
[7] At 9:49 a.m., police were called to Alectra Utilities (previously Horizon Utilities) located at 55 John St. North, Hamilton. The caller indicated that several men were there advising that they were going to take the building and the estate and arrest the CEO, Max Cananzi (“Cananzi”).
[8] Police responded immediately and spoke with the five males who admitted that they were intending on arresting Cananzi and Alectra’s “estate”. When asked how they planned on doing it, police were shown some zip ties that could be fashioned into handcuffs.
[9] One male was asked to identify himself and provided a name of "Nobel A. Bey". He specifically advised that he was the Grand Marshal Nobel Elijah El Muhammad Brown Armstrong Bey of the Kingdom of Tunis Republic of North America Major. This was also reflected in documents that the accused had in his possession at the time and had also transmitted to Alectra, government authorities and various police agencies prior to the day in question. At the scene, the accused failed to provide any recognized legal government documents to prove his identity. Allegedly, he advised the police that they were there to arrest the CEO and then transport him to Mimico Jail.
[10] The five males (four of whom were unidentified at trial) were asked to leave and were observed getting into two vehicles. One of the vehicles was found to be linked to an address at 2-121 East Ave. South, Hamilton. A male by the name of “Brandon Brown” was linked to the vehicle. Police attended the accused’s residence the next day and were met by the accused. Bey was confirmed to be the male that identified himself as “Nobel A Bey” and had attended Alectra Utilities with his accomplices. He was arrested, transported to central station and later gave a voluntary statement to police.
Positions of the Parties:
[11] The Crown says that all of the essential elements of the conspiracy and obstruct police charge are established. Mr. Levy submits that this court ought to reject the accused’s evidence as illogical, inconsistent and unbelievable.
[12] The accused submits that he had no intent to detain or arrest the CEO of Alectra Utilities, but merely to arrest or secure the assets or the estate of the company under authority provided to him from other sources. All of this was provided to the police and Alectra in advance of June 26.
[13] Mr. Boushy submits that, while the accused honestly believed he had the authority and may have been misguided, the evidence in its totality must leave the court in a state of reasonable doubt as to Bey’s intention for both the conspiracy count and the obstruct police officer charge.
Legal Principles:
[14] All of the evidence must be considered by the trier of fact. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to disprove the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. The defence was not required to substantiate their theory of the case. The burden of proving guilt of the accused lies upon the prosecution throughout the trial. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of the offence charged against him.
[15] Most, if not all of the evidence adduced by the Crown was direct evidence.
Reasonable Doubt:
[16] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities, yet less than proof to an absolute certainty."
[17] The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable or likely guilt.
[18] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.
[19] I am mindful that I must consider all of the evidence fully and fairly and not assess the defence evidence with any greater scrutiny than the witnesses presented by the Crown, or arbitrarily place less weight on the testimony of the defence witnesses.
Assessing Credibility:
[20] The framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. This seminal test is straightforward. First, if the trier of fact believes the evidence of the accused, then the accused must be acquitted. However, even if I do not believe the accused’s testimony, or the evidence adduced by the defence, I would be obliged to dismiss the charge if it leaves me in a position of reasonable doubt. Finally, even if I am not left in doubt by the evidence of the accused or defence, I am required to ask myself, having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the accused’s guilt.
[21] It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts, and similarly the trier can accord different weight to different segments of the evidence that is accepted.
Analysis:
[22] Overall, I accept all of the evidence that was presented by the Crown attorney as the witnesses and exhibits were not significantly challenged or disputed except for what might have been said by the accused to various officers. The issue in this case is of course whether or not the Crown has proven beyond a reasonable doubt that the accused conspired with one or more persons to kidnap the CEO of Alectra Utilities, Cananzi, and whether he had the actus reus and mens rea for obstructing a police officer.
[23] Before I get to that analysis, it is incumbent on me to refer to the three other counts in the indictment that were dismissed. Two of those counts relate to criminal harassment with the two complainants, Cananzi and Leigh Forest. Both individuals are senior managers with Alectra Utilities. Cananzi did not testify at trial. The Crown presented Ms. Forest as a witness.
[24] During the course of Ms. Forest’s examination in chief, certain information was provided to her and for submissions expressed on the record, Mr. Boushy and Bey argued for a mistrial or a stay of counts three and four.
[25] Without getting into the details as I do not wish to discomfit any party or counsel, I ruled that the information provided to Ms. Forest during her testimony in-chief during a break regarding a live and critical point in contention, breached the accused’s fair trial rights. For very brief oral reasons placed on the record, I determined that this series of events warranted a remedy. I denied the defence mistrial application as the matter did not meet the stringent test for such relief, but rather imposed a stay of proceedings regarding counts three and four, both criminal harassment charges on the basis of an abuse of process. Further, I did not consider any of the evidence provided by Ms. Forest.
[26] However, should it become necessary, I am prepared to provide supplemental reasons as to my rationale in entering a stay of proceedings for counts three and four of the indictment.
[27] As the Crown decided not to present evidence to establish the alleged failure of the accused to attend court as required, that charge was dismissed. This left two counts for consideration; the conspiracy to kidnap Cananzi and obstruct police officer, namely constable Kenneth Kirkpatrick (“Kirkpatrick”).
[28] There is no dispute that the accused and his colleagues attended the Hamilton Police Station, Central Station, on the date in question that being June 26, 2017 and spoke to the front desk officers. Bey presented documents that he had with him in that he intended to go to Alectra and effect an arrest of either the individual CEO or of the estate or of the assets.
[29] I pause to mention that much of the evidence was confusing and baffling because Bey, although articulate and intelligent, really did not make a lot of sense with respect to the documents and the authority he believed he had. Nonetheless, he was told by the officer at the station that what he was going to do would be illegal. Bey and his colleagues left the police station. I note as well that just prior to attendance at the police station, Bey had reached out to various police organizations, government officials indicating his intentions and requesting assistance to effect the arrest of the estate or of the Alectra CEO or both. In fact, earlier, he had called the Halton Police Communications section with his intentions and had spoken to the communications supervisor.
[30] During the course of the trial, I was provided with this evidence including the various CCTV recordings and binder of documents provided by the accused to Alectra. In any event, despite being told by police that what he was doing was illegal, Bey and his colleagues went to Alectra in Hamilton, just a short distance away from the police station, and were met by Ms. Forest. Bey and his associates later went outside and waited outside the building where several police officers eventually attended the scene.
[31] At no time was Bey or his colleagues violent or aggressive to the police or others, as the officers were seen on the CCTV dealing with him at the site. I heard from all of the officers, including Kirkpatrick who had spoken directly with Bey. As mentioned, Brown provided his name as “Noble A. Bey” and some identification, albeit not standard or official government identification, and did not acknowledge his name was “Brandon Brown”.
[32] I should say at this point that I agree with Mr. Boushy’s submissions. It is clear to me that Brown referred to himself “Noble Bey”, (abbreviated) Grand Marshall of the Kingdom of the Republic of Tunis. This was not only identified to the police officers at the scene but in documents that were shown to officers at the Hamilton Police Station and in materials that were sent previously to Alectra Utilities. It is also not lost on me that on the next day, that being June 27, 2017, police officers also determined, without much effort, that Bey lived at 121 East Avenue South in Hamilton and readily found him at his residence and effected an arrest. It is true that the accused did not provide the name of Brandon Brown as depicted on his passport and other identification filed as exhibits by the Crown. He maintained that his name was and is “:Noble Bey”. Also at the scene, according to Officer Hoyle, Brown presented two separate pieces of identification albeit in the name of “Noble A. Bey”. Several officers testified that they did not see any documents when they spoke with Bey.
[33] In addressing the obstruct police officer, it is clearly established that the actus reus has been met by the Crown, however, I am not convinced about the mens rea, in that Brown believed he is Noble A. Bey and has lived at the address in question, with a DOB provided that was accurate. It is true that he did neither produced a valid government document, nor did he engage in the legal change of name regime in Ontario.
[34] I accept Kirkpatrick’s testimony that he had a conversation with Mr. Bey/Brown in that he testified that Brown identified himself with some kind of diplomatic photo I.D. which did not seem to be legitimate as Noble Elijah El-Muhamad Brown Megafin-Strong Bey, the Grand Marshall of the Tunis Republic with a date of birth 1981-03-05. He provided his name verbally as well. As Mr. Boushy points out, Brown honestly believed his name was Bey and did not hide that fact. He provided his date of birth on the day in question and even leading up to the incident through various contacts and documents. It appears that the officers readily identified and located the accused on the following day. Even if Brown was required to identify himself to police, and while he did not provide his birth name or name on Canadian/Ontario government documents, he provided photo identification honestly believing that his name was Bey and never hid that fact.
[35] There remains a healthy, ongoing debate as to whether there is an objective or subjective fault element to the s. 129 offence: (albeit somewhat dated), Professor Wilson’s treatise entitled Obstructing a Peace Officer: Finding Fault in the Supreme Court of Canada, (2000) 27 Man. L.J. 273-296 provides some analysis on the question.
[36] In my view, s. 129(a) of the Code is a specific intent offence as the language of the section imports an element of “willfully” In any event, even without deciding the requisite fault element question, I find that the Crown has not established that the accused willfully or knowingly obstructed the police, in particular, Kirkpatrick, in the circumstances of this case.
[37] However, turning to the conspiracy count, Kirkpatrick testified that Brown told him he was there to effect an arrest on the CEO of Alectra. Cananzi was the subject of the arrest. He has asked what he meant by the arrest and the officer received various answers, including that they were going to use zip ties in lieu of handcuffs. Another male who was nearby with Bey had zip ties in his possession. Kirkpatrick advised Bey that would be illegal and could not happen. Bey informed the officers that he had authority from, inter alia, the Pope to effect the arrest or to act in accordance with the documents he provides, claiming dominion over the estate. Bey disagreement with Kirkpatrick that he did not have the authority to arrest someone became somewhat of a circular argument. Nonetheless, the accused and his accomplices later left the scene.
[38] I also heard and accept the evidence from all police officers including those who attended Bey’s residence the next day to effect an arrest. I admitted into evidence Bey’s voluntary statement to Detective Mendes. (“Mendes”)
[39] Brown testified on his own behalf and attempted to address all of the voluminous documents that were entered by the Crown including Exhibit 5 which was “Brandon Brown, Alectra Utilities Corporation” documents with numerous and various tabs, including documents indicating Kingdom of Tunis Republic, 121 East Avenue South, Hamilton, Ontario. These also include inter alia, dated documents from Treaties of Tripoli, Claim of Rights, Violation of Warning and Denial of Rights Under Colour of Law, Violation Warning 18 USC, Letter to Max Cananzi under Tab February 3, Natural Resources Canada, United Name Common Law Grand Jury documents, civil orders, Exhibit 11, Obligations of USA its parents, partners, etc. the restitutions to the indigenous, the people, American nationals of Amoroc through the Kingdom of Tunis Republic in trust to the trust, Tunisian Republic Trust Financial Association, Unified Maine Common Law Grand Jury and various other documents that have been provided in evidence including Exhibits 12 and 13.
[40] The accused maintains and claims authority from sources not legally recognized in Canada. He claims to be legitimately acting under that authority. He claims that he is not subject to the laws of Canada and unwillingly attorns to the jurisdiction of this court.
[41] Without much debate, this is indeed a somewhat bizarre case. As mentioned, by letter dated April 1, 2021, the presiding psychiatrist at the Forensic Psychiatry Department at McMaster opined that Brown was not eligible for exemption from criminal responsibility on account of the mental disorder pursuant to s. 16(1) of the Criminal Code.
[42] For the most part, Brown’s evidence was confusing. He provided and acknowledged various documents suggesting that he had the authority to arrest the estate and seize all of the property and assets of Alectra Utilities pursuant to various agreements as the representative of the Kingdom of Tunis Republic with authority documents linked some legal authority in the United States.
[43] Again, it bears repeating that the accused is an intelligent, articulate, and respectful individual. However, he is entirely misguided. Much of his evidence in cross-examination is rejected as fiction. He was internally and externally inconsistent in his testimony and was effectively cross-examined by the Crown as to much of his incredible assertions of authority and status flowing from numerous documents that purport to give him these rights.
[44] Indeed, Bey’s evidence was all over the map as to his intent to arrest Cananzi meaning he testified that he only intended just to seize or arrest the estate of Cananzi/Alectra and not the individual, per se. His evidence was inconsistent with respect to the use of the zip ties and the rationale for him having those zip ties and handing them out to his accomplices or at least having his colleagues in possession of them. He was also internally inconsistent with his intention or thoughts in the face of documents provided and during the course of his evidence, provided differing rationale during his testimony. He was externally inconsistent regarding his statements made to various officers, with what he had told other people prior to arriving and at the scene on the day in question.
[45] In his evidence and statement interview to Mendes, the accused stated inter alia, that he is the Trustee Executive Administrator of the Estate of the Kingdom of the Tunis Republic, Tunis Republic Trust Financial Association were a flesh and blood Association all holders in due course removed from Canada signatures rescinded. “We are flesh and blood allodial title holders in North America so we own North America. We are the flesh and the blood that actually has all the rights of operation within the international within the United States of America Incorporated which is governed by Alaska, governed by IMF, governed by United Nations, governed by the Queen, governed by the Pope. We are the governing trustees that I would guess we would be to trust the American Nationals and U.S. Inc and all of their estates”. He also indicated to the officer that he is the king of the Kingdom. “What the Pope says goes and I have to follow his orders.” Bey also discussed the civil order dated July 4, 2014 from the Pope. He claimed that the authority comes from the Pope and he has documents that provides him with these authorities and that he notified the Bank of Canada, U.S.A., the Queen, the Pope, the Pope’s private attorney and others.
[46] Mendes asked Brown if he’s effecting notice to the CEO of Alectra, (known as Horizon at that time), and Brown acknowledged that is the case per his documentation. He also indicated that he’s owed 999 Googolplex or 18 Million US Dollars. He claimed that the civil order by flesh and blood and that he owns everything owned by Horizon including inter alia the CEO’s shoes, pants, everything. He is a holder of the estate. Both companies and his own estate. He acknowledged to Mendes that everyone had zip ties with them. Transcript:
BRANDON BROWN: I don’t know about everyone but at the least two of us were equipped.
DETECTIVE MENDES: The zip tie?
BRANDON BROWN: Right.
DETECTIVE MENDES: The CEO guy? I forget his name.
BRANDON BROWN: To make, to make, you know, in the event that it had to happen.
DETECTIVE MENDES: If he gets physical. Yeah.
BRANDON BROWN: Absolutely.
DETECTIVE MENDES: So you were going to restrain him?
BRANDON BROWN: Just in safety purposes, you know.
DETECTIVE MENDES: So, the intent was to go there have him turn everything over, turn over the building, come with you, you zip tie him, put him in one of your cars?
BRANDON BROWN: We didn’t intend to zip tie him.
DETECTIVE MENDES: Okay. That was just if it got out of hand.
BRANDON BROWN: But if it was a safety problem yes.
DETECTIVE MENDES: Okay. Okay. And then drive him to Mimico?
BRANDON BROWN: We intended to serve the instruments, have the RCMP arrest him, and transfer him to Mimico. That was our intention.
[47] In cross-examination, Bey testified that the zip ties were for his security in case something occurred. He was asked how zip ties would be used to defend himself. His response was entirely evasive and non-responsive. He kept repeating that the zip ties were not to arrest Cananzi, rather there was the suggestion about the zip ties to affect the seizure of the assets or estate.
[48] I reject Bey’s assertions that in that he repeatedly claimed that he was only intending to effect the arrest of the estate. He was cross-examined as to his statement to Mendes wherein he told Mendes he was told to take Cananzi to Mimico. He was effectively cross-examined as to his inconsistent versions vis-à-vis arresting the estate or arresting the individual.
[49] I agree with Mr. Levy that the evidence regarding transferring of things and engaging the police to transfer property is incredible at best.
[50] I accept that the accused told Officers Hoyle, Kirkpatrick, and Mendes that he intended to effect the arrest or otherwise remove Cananzi from Alectra and then taken to Mimico or other location. This was not, as the accused indicated, an estate issue. Nor was it for the seizure of assets. Nor did the accused have jurisdiction or any authority to act the way he did. I reject the accused explanations in that regard in their entirety as nonsense.
[51] I also reject his evidence where he attempted to explain that the police were contacted by him to assist in transporting the entire property or estate of Alectra Corporation to his domain. Not only is this illogical and unbelievable but is based on his ill-advised understanding of his non-existent and fictitious authority. I prefer and accept the officers’ version as to what the accused expressed to them at various times.
[52] There is some suggestion that the precipitating event may be that the accused was not content with the services or bills rendered by this utility company to the residence he was situated at that time. Nonetheless, the accused engaged other individuals to come with him to assist in the detention or arrest and transport Cananzi to Mimico for war crimes or other violations alleged by the accused according to the documents he furnished.
[53] Conspiracy is an indictable offence that requires agreement, intent to agree, completion, and intend the common design to be in effect. See Canada A.G. v. Lalonde, 2016 ONCA 923, R. v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462. While the actual kidnapping itself did not occur for a variety of factors, that is not a requirement for the conspiracy charge. This was more than an attempt to conspire, which is no offence in law. The plan was hatched and put into effect. At all times, Brown admitted that he was the person in charge. The accused lead the group and directed other unidentified accomplices to assist him. Bey and the group of men actively participated with the intentional acts, led by the accused to affect the sequestration of Cananzi. albeit frustrated by the fact that their target was out of the country on the day in question and the intervention of Alectra personnel.
Conclusion:
[54] With respect to the obstruct police charge, I find that the mens rea element has not been established and I am left with a reasonable doubt. An acquittal shall be registered with respect to count number two.
[55] I find that Bey planned, contacted, directed and conspired with the other unnamed individuals to assist him in his ultimate plan and effort to effect the arrest and transport of Cananzi. There was no legal authority for the accused to act as he did despite his persistent assertions to the contrary. The evidence clearly establishes the actus reus and mens rea for the offence.
[56] I am satisfied beyond a reasonable doubt that Brown/Bey is guilty of conspiring with unknown persons to commit the indictable offence of kidnapping, of Massimo Cananzi with intent to cause him to be confined or imprisoned against his will, and a conviction shall be registered accordingly.
A.J. Goodman J.
Date: May 19, 2021
COURT FILE NO.: CR 19-109
DATE: 2021/05/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
BRANDON BROWN
Accused
REASONS FOR JUDGMENT
A. J. GOODMAN, J.
Date: May 19, 2021