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'Pseudo-law' increasingly used to 'assert rights' to oppose pandemic rules, observers say

'They are completely and utterly legally meaningless and have no effect whatsoever,' lawyer says of 'common law' defence used by Barrie restaurant

A Barrie restaurant owner who told local bylaw and provincial liquor licence officials she was asserting her rights under common law to stay open despite provincewide stay-at-home orders while claiming to have no contract with government was likely reading from a script circulated by anti-authority groups using 'pseudo-law', says an Ottawa human rights lawyer.

The approach is considered to be one being employed by individuals and businesses increasingly upset by imposed emergency shutdown and other orders and is expected to surface more frequently as the pandemic persists, the lawyer says.

The Simmering Kettle in south-end Barrie remained open, defying emergency provincial orders to eliminate in-house dining.

On Thursday, however, owner Shalu Persaud indicated she had shifted to drive-thru and pick-up service, and had stopped serving customers inside the Bryne Drive restaurant. 

Earlier in the week, when approached by government officials, she is seen on a series of videos posted on Facebook saying: “I am operating under common law and I do not consent to contract with your corporation” while allowing customers inside.

She also referred to several websites which encourage protest action and offer support to help those unhappy with the current restrictions. 

One of those websites includes a professional video featuring other business owners in Barrie and central Ontario talking about their frustrations in the face of closure orders. The managing director is seen saying the organization helps people “understand their rights and how to exercise them.”

During a brief phone conversation on Wednesday, Persaud said she was pursuing her rights as a business owner and was sorting through the various enforcement orders she has received in recent days by health, city and liquor officials which later led to an inspection by Barrie fire officials.

But she wouldn’t expand on her approach.

“I’ve got all this paperwork they keep sending me,” she said.

Persaud refused to take a call on Thursday and referred to videos posted on Facebook in which she tells regulatory officials she’s following orders and now doing takeout only. She never explained why she finally decided to change her stance.

Richard Warman says the language used by the Barrie restaurant owner when dealing with officials includes standard lines used by so-called sovereign citizen proponents.  

Typically, he said, there are businesses or “gurus” who charge for the service or ask for donations to guide individuals to assert rights he says are never successfully held up in court. The likely outcome is largely bleak as enforcement officials assert the rules.

“They are completely and utterly legally meaningless and have no effect whatsoever,” he said. “So the end result is almost always the guru is enriched and the follower takes the fall.”

Warman points to a detailed 2012 Court of Queen’s Bench of Alberta decision that is considered the leading case in Canada and is employed around the world as guidance in the use of pseudo-law. 

In that decision, Associate Chief Justice J.D. Rooke coins the phrase Organized Pseudolegal Commercial Arguments or OPCA litigants to describe groups such as sovereign citizens, de-taxers and freemen (or Freemen on the Land), and others who defy the law.

“Over a decade of reported cases have proven that the individual concepts advanced by OPCA litigants are invalid,” wrote the Alberta judge. 

Some declare they are "immune by declaration" and have no obligation or responsibility because of a special status. Rooke wrote there’s often an arbitrary line between “statutes” and “common law," and they say they are subject to “common law," but not legislation. 

And he addresses some of the language head-on, dismissing each phrase in the lengthy decision.

“Persons who claim to only be subject to the 'common law' also do not appear to mean the current common law, but typically instead reference some historic, typically medieval form of English law, quite often the Magna Carta,” Rooke wrote.

The argument that "obligation requires agreement" leading to the belief that a person is immune if they simply say they have not consented to be subject to the law and the courts has been unsuccessful, he added.

“The state has the right to engage in unilateral action, subject to the Charter, and the allocation and delegation of government authority,” the decision continues.

Barbara Perry, a social science and humanities professor at Ontario Tech University and director at the Centre on Hate, Bias and Extremism, says a pre-existing anti-authority movement has gained steam during the pandemic. 

“We’re currently seeing a resurgence of this in the context of this (pandemic)” that dovetails with that traditional anti-status, anti-authority movement, she said. “It’s a uniting of the anti-authority movement with the anti-vaxxers, anti-maskers, resistance to what they see as a loss of their freedoms and their civil rights.”

Many have also posted videos, particularly involving police and bylaw interaction, and often the business owners or individuals use the same language. Often these people are dealing with difficult situations such as child-custody disputes, divorce and outstanding taxes, she added.

There have been times when Perry has seen arguments based on American law used in Canada, indicating the use of a script and information which she says has likely been purchased online.

“They’re people who are in dire straits and they’re desperate and they’re looking for a way out and here’s one answer,” she said. “People will sell them packages or scripts essentially, ways to construct arguments.”

Perry’s examination of extremism found that it’s a diffused movement that runs the spectrum from left to right and is apolitical. That includes those considered to be anti-status, the far-right and the cluster related to the pandemic including anti-mask and anti-lockdown perspectives.

Perry estimated there were about 300 active far-right groups in Canada in 2019. But the anti-status and anti-authority movement is a loose collection of individuals, not groups, who share the narrative with the far-right.

“We’ve also got now… a lot of what I call floaters  people who are not necessarily affiliated with a former group or an individual group, but sort of float in and out of the social media platforms cherry-picking little pieces of narrative that suit their needs,” she said.

“I suspect we’ll see more going in that direction as we see more and more violations,” said Perry. “It’s not going away.”

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About the Author: Marg. Bruineman, Local Journalism Initiative

Marg. Buineman is an award-winning journalist covering justice issues and human interest stories for BarrieToday.
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