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Defending the indefensible

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They call themselves "freemen" or "sovereign citizens" or "detaxers." Regardless of how they label themselves, their common denominator is the claim they're not subject to government laws, regulations or policies.

And more and more they're in my law office.

Some strike me as mildly delusional, some pitiable in the incoherence of their beliefs. But a few are zealots.

These are the worst ones. They launch claims no reasonable person would ever commence, let alone expect to win. Their documents raise no legally recognizable argument or principle. Worse, they're convinced the nonsense they spout is a legal Rosetta stone -- and all will become clear to the judge if they just get to repeat their jabberwocky over and over.

I've never been asked to represent any of them. And if asked, I wouldn't act for such litigants. I can't advocate drivel.

But what I've routinely done for them in the past is notarize documents so affidavits can be filed or copies of documents authenticated.

I give no legal advice. I simply facilitate their documents being accepted by the court, thereby giving them entree to the justice system. It's the kind of execution or authentication of documents law firms do day in and day out for all clients.

I never used to think twice about providing this kind of service. After all, they, too, like any other citizens, should have access to the justice system. It's a fundamental right. If I had paused to think about it, I'd have told myself it'd be wrong to obstruct their use of the courts by refusing to help them present their documentary evidence.

But I'm no longer so sure of myself and my role.

Perhaps I shouldn't be notarizing their fanciful documents and taking their sworn statements full of bizarre nomenclature. I've begun to feel like an enabler of pernicious litigation that's contrary to the public interest and abusive of the court process.

Once in a courtroom, the zealots like to use it as a forum to publicly declaim their beliefs. But when they lose, and they inevitably lose their misbegotten litigation, they reject the court's jurisdiction over them -- sometimes even as they're being hauled away to jail by sheriff's officers for failure to pay income tax, child support, fines or court-ordered costs.

The other common denominator of many of these anti-government crusaders is their rejection of their names and identities.

This can be a threshold problem for a lawyer. I'm compelled by Law Society of Manitoba rules, not to mention sound practice, to obtain the full proper name and address of the person I'm dealing with, even where I'm simply notarizing documents. Some members of these anti-government movements are initially reluctant to give me the name that's on their driver's licence or passport because it's not "true appellation" (whatever that means).

Some even show up in my office with alternate names, renunciations of existing names, or certification documents for assuming alternate names. The new names are always long and high-sounding and often incorporate aristocratic titles or figures from Greek mythology.

Denial of the name lodged in government records is, in their credo, synonymous with being a "natural person" who's not subject to the law of the land.

The case of Lorette chiropractor Rosalie Chobotar is typical. Last year, Chobotar was sentenced to six months in jail and fined $162,513 for evading more than $800,000 of taxes between 2002 and 2007. At her trial, which saw her walk out of court before the hearing's conclusion, the cornerstone of her defence was denial of her identity as a taxpayer.

She said her name "does not reflect me. My name is not me." And ergo, not being who Canada Revenue Agency said she was, she wasn't liable for the unpaid tax and penalties. The judge, not surprisingly, disagreed.

I'm not for a minute advocating lawyers implement broad policies to curb these groups. This isn't the lawyer's job or duty.

The court, not the legal profession, is the proper gatekeeper of a publicly funded justice system. And the courts have tools in their enabling statutes and governing rules to deal with frivolous and vexatious claims and curtail those who'd waste court time and resources.

But maybe the next time I'm faced with spurious documents created by one of these groups, I'll exercise my discretion and give them a pass.

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition March 30, 2013 A15

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