Territorial acknowledgements have become a thing. The City of Vancouver’s website has the following statement at the foot of every page:

The City of Vancouver acknowledges that it is situated on the unceded traditional territories of the xʷməθkʷəy̓əm (Musqueam Indian Band), Sḵwx̱wú7mesh (Squamish Nation), and səlilwətaɬ (Tsleil-Waututh Nation)

The Author, being a scholar interested in the law, made a Freedom of Information request to the City of Vancouver concerning the statement, viz.

All records within the Legal Services department underpinning the claim that the area described in section 6 of Vancouver Charter sits on unceded territory of the “xwməθkwəy̓əm(Musqueam), Sḵwx̱wú7mesh (Squamish), and Selí̓lw̓itulh (Tsleil-Waututh) Nations. Date range: January 1, 2011 to December 31, 2015.

The City has requested a fee for the records, a fee that the author cannot pay. Part of the test for a fee waiver is if the applicant has the means to disseminate the information to the public. This test, which is not contained in the legislation, has a very interesting history, and apparently dates from the 1990s, originating in Ontario. The History is summarized here:

In Order No. 155-1997, my predecessor articulated a two-step process to be followed by the head of a public body in deciding whether to grant a fee waiver. As was acknowledged in Order No. 155-1997, that approach was, to some extent, borrowed from the analysis Order No. 332-1999, developed in Ontario Order P-474. That approach was further developed by the previous commissioner in Order No. 293-1999 and Order No. 298-1999. (Order No. 332-1999, OIPCBC, pp. 4-5)

1997 was the era of photocopiers: while it was possible for an individual to set up a website (and I had one at the time, thankfully long forgotten!) it was a different ballgame. Also, even finding these decisions at that time would have been far more difficult. Today, we can easily look them up. Let’s go back to 1997:

The factors described above are not intended to be exhaustive. I have relied to some extent on established criteria in Ontario, as set forth in the leading Ontario case on fee waivers: Information and Privacy Commissioner/Ontario, Order P-474, Ontario Hydro (Irwin Glasberg, Assistant Commissioner, June 10, 1993, pp. 1-3), taking into account the differences in the Ontario legislation. I understand that B.C. Information Management Services has been developing criteria for waiving fees in the public interest. I encourage it to continue this process. (Order No. 155-1997, OIPCBC, pp. 6-7)

With one quick stop at CanLII, we can go to the Ontario Order, and it is a question why BC used the Ontario framework, unless BC’s statute has changed substantially since 1997. The Ontario order says this:

In order to address this issue, it will be necessary to review the fee waiver provisions of the statute which are contained in section 57(4)(c) of the Act and the factual context in which the appeal arose. Section 57(4)(c) states, in part:

A head shall waive the payment of all or any part of an amount required to be paid under this Act where, in the head’s opinion, it is fair and equitable to do so after considering, whether dissemination of the record will benefit public health or safety; (Order P-474, ON IPC)

This, of course, refers to the Ontario act, which is different from the British Columbia act:

75 (5) If the head of a public body receives an applicant’s written request to excuse payment of all or part of the fees required under subsection (1) (b), the head of the public body may excuse payment, if, in the head of the public body’s opinion,

(a)the applicant cannot afford the payment or for any other reason it is fair to excuse payment, or

(b)the record relates to a matter of public interest, including the environment or public health or safety.” (FREEDOM OF INFORMATION ANDPROTECTION OF PRIVACY ACT [RSBC 1996] CHAPTER 165 ss. 75(5))

The Ontario act requires the head of a public body to consider “whether dissemination of the record will benefit public health or safety.” This justifies a somewhat tenuous inference that the applicant must be able to disseminate the record, but one could also read it to be a test as to whether, if the record were disseminated (regardless of the applicant’s ability), it would benefit public health or safety. I suppose one could say that “will” contemplates the future dissemination of the record, where “would,” if it had been used, could make the test more virtual, but this seems like a nice quibble. If, for example, someone were on their death-bed and made a request, could the head of a public body say “sorry, you are too sick, so you could never disseminate the record, so I will not waive the fee”? I also note that 75(5)(b) is not an exhaustive list, where the Ontario act appears to require the dissemination (actual or potential) to “benefit public health or safety.”

The British Columbia act does not impose this sort of test: the word “disseminate” does not appear in the enactment, where it does in the Ontario act. Therefore, it could be that this test, developed in 1997 by reference to a 1993 case in Ontario, could have been the wrong test. It should be noted that the Ontario order is not binding, and, as it begins with a specific reference to verbiage that is simply not contained in the British Columbia act, it is questionable how persuasive the Ontario order is.

The British Columbia test, construed narrowly in its literal and grammatical sense, is whether or not the record “relates to a matter of public interest.” That is the test, so I would suggest that using a test based on an interpretation of a different Ontario statute, which may itself be a bad interpretation, is an error. Where in the Ontario order, there is a requirement for a “benefit,” the British Columbia statute contains a lower bar: the records must “relate” to a matter of public interest. To impose a “benefit” test goes beyond the text of the British Columbia act, which only requires that the record “relate” to a matter of public interest.

The British Columbia Interpretation Act provides that “8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” The object of section 75(5) is to provide two cases where fees may be waived. 75(5)(b) should be construed liberally, not restrictively and especially not restrictively on the basis of an Order from Ontario interpreting a statute that has different wording than the British Columbia Statute.

More to come…

Yelverton JKB: and Sir, we will do now in this case as the ‘savonists’ (canonists? ‘sorbonist’ theologians?) and civilians (civilliones) do when a new case arises (anient) for which they have no law beforehand, then they (canonists and civilians) resort to the law of nature which is the ground of all laws, and according to what is advised to them to be most beneficial to the common weal (policy, utility, commonwealth, common good), etc. they do, and so now we will do; if we will make a positive law on this point, we ought to see what is most necessary to the common weal and to make our law according to this, and I believe that no one would deny that the best (course) will be in this case to make such a positive law that no one will be charged to perform the arbitration without having had notice (of the arbitration), etc. because arbitration is used for the common weal, that is to say, to resolve (appeser) disputes (debates), and wrongs (tortes) among the people, and thus making ends (of disputes and wrongs), and if the arbitrator could charge the party without making notice, then the people will fear and doubt to put themselves in arbitration, etc. so the most beneficial way for the common weal is, that they will not be charged, unless they have notice, etc. (8 Hen. 4 fol. 12, emphasis added.)

The City of Vancouver’s staff have decided that the public are not welcome at City Hall meetings, even though Vancouver Charter provides that

165.1 (1)A meeting of the Council must be open to the public, except as provided in sections 165.2 to 165.8.

Two new cases about freedom, with one old chestnut:

“And the reason why the king’s court can, but the sheriff and the county court cannot, pass judgment on anyone’s freedom, as they can on his villeinage, though the proof of freedom is, as it were, incidental to the plea of villeinage, is the favour with which freedom is regarded, for freedom is something beyond price and ought not to be left to the decision of ignorant and injudicious men.” (Fleta, lib. 2 cap. 51. Fleta 72 Selden Society 174)

“Freedom is the natural faculty of doing what each person pleases to do according to his will, except what is prohibited to him of right or by force. Servitude, on the other hand may be said to be the contrary, as if any person contrary to freedom should be bound upon a covenant to do something, or not to do it.” (Henrici de Bracton de Lebigus et Consuetudinibus Angliae, Sir Travers Twiss, Q.C., D.C.L., trans. London: 1878, p. 369.)

“Bereford JCP: Law is more predisposed to save and maintain one in his free estate than to condemn him or put him into servitude (version IV); since you (plaintiff) say that he (defendant) is your villein and he says that he is free the law works in his favour, etc. for it is quite clear that he remains free until you can prove the contrary by his blood” (0 Hen. 3 Norfolk 1 (fol. 122 SS 24-33))

By this, we see that freedom is proved by blood, that is, by inheritance, because the blood is inherited. As an Anglican who shall remain nameless once informed me, she “had no slave blood.” Villein, serf, slave, servi in Latin, these are all one: they mean subject to covenants, instead of living under the natural law, which is the law that makes us free.

We rarely hear about love in the law, do we? Here is a report of a case where the term is used to describe the King’s affection for his subjects. It comes from the case of Warren versus Smith vel Magdalen College Case, Paschae XIII Jacobi in Banco Regis:

le Roy est pater patriae & sponsus regni, & est marrie al ceo ove ring sc. per son coronation, & son amor est puis que paternal ou conjugall. (1 Roll. 165-6)

The King is father of the country and spouse of the Kingdom, and is married by the ring at his Coronation, and his love is more than paternal or conjugal.

Further,

… the King, who hath been said, is persona mixta, Medicus Regni, Pater Patriae & Sponsus Regni, who per annulum is wedded to the Realm at his Coronation… (11 Co. Rep. 70)

Here we also see Coke add “Medicus Regni,” or Physician of the Kingdom, indicating that all jurisdiction over medicine and health-care flows from the King, who, if he were sufficient in his own proper person, would discharge the office, but, as he is not, similar to how he makes Judges, he makes Physicians, who enjoy a share of his Royal prerogative concerning medicine.

The body requires amino acids and choline to build cells. Choline is a nitrogen-containing compound, like protein, but it does not have the same structure. Proteins have a carboxyl group, but choline has none, it is a quarternary ammonium salt. It is involved in cell membranes (structural), myelin (structural) and also as a precursor to the neurotransmitter acetylcholine. 90% of the population does not get the AI, which is 7mg/kg, and that figure is simply to avoid overt liver dysfunction in depletion/repletion studies; it has nothing to say about optimal health or wellness, mentally or physically.

There is another confound: betaine. Betaine is a metabolic byproduct of choline in the body, but it is also found in diet. It is named for beets, (bee-taine) because it was first found in them. Betaine can spare choline.

There is yet another confound: different people are better/worse methylators, etc. and so will require more choline (or betaine, it can serve this role).

So, on to protein. The AI of 0.8g/kg is probably too low. My Nationsl Strength and Conditioning Association book has a chapter on nutrition, and it says 1.2g/kg – 2.2g/kg are useful for building muscle, so let’s put it at 1.5g/kg. This should require us to scale up the choline requirement as well.

7mg/0.8g = 8.75mg/g
8.75mg/g * 1.5g/kg = 13.13mg/kg

So, if you were, say, 80kg

80kg * 1.5g/kg = 120g protein
80 * 13.13mg/kg = 1050mg choline

Now, the choline requirement might not scale linearly with the protein requirement, so this might be overkill, but if you had something like the following:

4 eggs = ~500mg choline
400g beef = ~400mg choline

That is about 900mg choline, and ~120g protein, give or take, depending on the cut of beef. It is about 1300 calories

Ius naturale est quod natura, id est ipse deus, docuit omnia animalia
Natural law is that which nature, that is, God himself, taught all living things. (Bracton, v. 2 p. 26, emphasis added)

Here, we see that in our law, nature and God are convertible terms. The actual content of the law of nature, or the law of God, is a secondary question. Thus, we may look at Freedom and Servitude and give a better, more direct translation:

“Freedom is the natural faculty of doing what each person pleases to do according to his will, except what is prohibited to him of right or by force. Servitude, on the other hand may be said to be the contrary, as if any person contrary to freedom should be bound upon a covenant to do something, or not to do it.” (Henrici de Bracton de Lebigus et Consuetudinibus Angliae, Sir Travers Twiss, Q.C., D.C.L., trans. London: 1878, p. 369.)

This may be translated

Freedom is the natural faculty of doing what each person pleases to do according to his will, except what is prohibited to him by that which God taught all living things or by force. Servitude, on the other hand may be said to be the contrary, as if any person contrary to freedom should be bound upon a covenant to do something, or not to do it.

As covered in How Do Courts Gain Jurisdiction?, there are several ways in which Courts gain jurisdiction. There are several misconceptions (or tricks) that are used to gain jurisdiction. This article will be in the form of a Screenplay, with comments. For convenience, I have denominated the individual presuming to act as Judge with the word “Judge” but, of course, that is the very element to be determined, for without a Judge delegate, there can be no exercise of jurisdiction, except by consent, which, as we have seen, may be arrived at in several ways.

Dramatis Personae
Constable Jones, a Constable from the City Police Department
Judge Eve, A Putative Judge
Mister Smith, a man who fell asleep in a handicapped space

Eve: Constable Jones, call your next matter.
Jones: Calling Mister Smith, who fell asleep in a handicapped parking space without the proper permit contrary to section 123 of the Handicapped Region Act.
Smith: I am here in my own proper person to plead in abatement to the jurisdiction.

Eve: Mr. Smith, you are here for a traffic citation, not to play games. Would you like to step outside and discuss the matter with Constable Jones?

At this point, Eve is, knowingly or unknowingly, attempting to gain Smith’s voluntary submission, as an imparlance may only be had by leave of the Court.

Smith: No, if I do that I would be voluntarily submitting to the Court, because an imparlance may only be granted by leave of the Court.
Eve: I am afraid that you have read some things on the internet that are not good law, Mr. Smith, you should have an attorney because this is a very serious traffic citation.
Smith: No, if I do that it would also be a voluntary submission to the Court, as one may only appoint an Attorney by leave of the Court.
Eve: I see. Well, jurisdiction is a matter for trial, so I am going to enter a plea—
Smith: I demand to see sight and hearing of the commission by which you claim jurisdiction over me!

Eve was attempting one of the most vicious and stupid tricks that Judges and Lawyers use: she was attempting to confound personal jurisdiction, the capacity to have jurisdiction over Smith, with territorial jurisdiction. A short digression will make this clear. Jurisdiction may be divided into three sorts:

1. Personal
2. Subject Matter
3. Territorial

Personal jurisdiction is the capacity to declare the law over a person: is that person subject to the individual claiming to the Judge? Subject matter jurisdiction is jurisdiction over a particular class of offenses. In this example case, subject matter jurisdiction is the capacity for the Judge, having personal jurisdiction, to adjudicate a ticket contrary to section 123 of the Handicapped Region Act. Territorial jurisdiction is a trial matter, because Jones would have to prove that Smith contravened section 123 of the Act at such a time (after it was passed) in such a place (where the Act was in force). For example, if it were an Act of Athens, and the events took place in Sparta, there would be no territorial jurisdiction before a Judge of Athens. Similarly, if the Act came into force at time t, and the events took place at time t-1, there would be no territorial jurisdiction, as territorial jurisdiction refers to “quando” and “ubi”, “when” and “where” the events took place.

Now we are left with the very real possibility that Eve is mentally incompetent and has no idea what Smith is saying: she is accustomed to dealing with individuals who have been conditioned to voluntarily submit to her authority. She may not have a commission in her pocket, and she may not understand that she has to read it. Further, her Commission might say very little of substance: it might simply say that she is made a Judge of some such Court, without specifying that she has jurisdiction over any particular persons, nor cognizance of any offenses.

Eve: I think you are a freeman on the land, and I am going to enter—
Smith: I am not a freeman on the land, I am a loyal subject of Her Majesty the Queen, and I am merely protecting her prerogative of jurisdiction from intrusion. You have no jurisdiction, and, therefore, I am leaving without day, and if you say another word or attempt to act in the judicial office, that is perjury, for you are like Lucifer, who attempted to make himself God’s equal, not being content with his subordinate estate.

Or something to that effect—basically, the idea is not that you are claiming you are not subject to ANY jurisdiction, it is that you are only subject to Her Majesty the Queen and her delegates.

What is jurisdiction? It, like “fee simple” and “freedom” and “servitude” (Freedom and Servitude), is a term with no colloquial meaning of significance. It comes from two words, jus and dicere. Jus means law, or right(or soup, as in au jus) and dicere means “to speak.” Jurisdiction, therefore, is the power of speaking law. This is contracted with jus dare, the power to give law. Here is a biblical example of jurisdiction:

And the LORD said unto Moses, Come up to me into the mount, and be there: and I will give thee tables of stone, and a law, and commandments which I have written; that thou mayest teach them.(Exodus 24:12)

So, the Lord will give tablets of stone to Moses, containing a law and commandments that the Lord has written. This is jus dare. Moses will them teach this law and the commandments, which is jus dicere. And there is nothing especially theological about this, it is simply a way to differentiate between the law giver and the law teacher or speaker. The teacher does not create the law, he teaches it. We can also use this story to see that giving of laws is something that is done by Gods, so, if one does not believe in God or Gods, the whole idea of law may be suspect.

Now we know what jurisdiction is, it is the power to declare (or teach) the law. How is it that a Judge (in the Commonwealth, under Her Majesty the Queen) acquires jurisdiction over a person?

The first, and most proper, is by delegation from the Sovereign. To address this point, we need to understand what a Sovereign is.

The law of god, of nature and of nations created kings: which law is not alterable by any creature (Jenk. 79)

Thus, we see that the law of god, of nature and of nations is all one, and it created Kings. Jenkins uses the singular because it is all one, and this law is not alterable by any creature. This shows that the Sovereign is a natural growth, which Aristotle defines in this way:

Of things that exist, some exist by nature, some from other causes.
‘By nature’ the animals and their parts exist, and the plants and the simple bodies (earth, fire, air, water)-for we say that these and the like exist ‘by nature’.

All the things mentioned present a feature in which they differ from things which are not constituted by nature. Each of them has within itself a principle of motion and of stationariness (in respect of place, or of growth and decrease, or by way of alteration). On the other hand, a bed and a coat and anything else of that sort, qua receiving these designations i.e. in so far as they are products of art-have no innate impulse to change. But in so far as they happen to be composed of stone or of earth or of a mixture of the two, they do have such an impulse, and just to that extent which seems to indicate that nature is a source or cause of being moved and of being at rest in that to which it belongs primarily, in virtue of itself and not in virtue of a concomitant attribute. (Aristotle, Physics, Book II.i)

Thus, the law of nature created Kings, and this is because Kings exist by nature. The King may get up and say “let us have breakfast,” where a bed, or a chair, or a coat cannot. So the King is a natural body, and the King naturally has jurisdiction. Bracton covers this in two sections,
For what purpose a king is created; of ordinary jurisdiction and Why there are justices and of delegated jurisdiction.

We have spoken in the next [preceding] of ordinary jurisdiction which belongs to the king. Now we must discuss delegated jurisdiction, where one having no authority of his own has authority committed to him by another, [But] since he cannot unaided determine all causes [and] jurisdictions, that his labour may be lessened, the burden being divided among many, he must select from his realm wise and God-fearing men in whom there is the truth of eloquence, who shun avarice which breeds covetousness, and make of them justices, sheriffs, and other ministers and officials, to whom there may be referred doubtful questions and complaints of wrongdoing; men who will not stray either to the left or the right from the straight path of justice for material prosperity or fear of adversity, but who will judge the people of God equitably, so that one may say of them, with the psalmist, that from their countenance came forth the judgment of equity. (Bracton, v. 2 p. 306)

Thus, ordinary jurisdiction belongs to the King, and everyone else who has jurisdiction has it by delegation. This is the greatest and most proper way to obtain jurisdiction. However, there are other ways by which one might submit to the jurisdiction of “justices, sheriffs, and other ministers and officials.”

This defines the “plea in abatement to the jurisdiction” and specifies some conditions upon its use:

The Defendant must plead in propria Persona, for he cannot plead by Attorney without Leave of the Court first had, which Leave acknowledges their Jurisdiction; for the Attorney is an Officer of the Court; and if they put in a Plea by an Officer of the Court, that Plea must be supposed to be put in by Leave of the Court.

The Defendant must make but half Defence; for if he makes the full Defence quando & ubi Curia consideravit &c. he submits to the Jurisdiction of the Court.

Two more pieces of Latin. In propria Persona means in one’s own person. What you do in propria person, you do for yourself. So, you must plead yourself to use a plea in abatement, though, possibly someone who is not an Officer of the Court might assist you, for that specific purpose. If you appoint an attorney, that is supposed to be by Leave of the Court. Similarly, the Judge might ask “do you want to go talk with the Prosecutor outside?” This is called an imparlance and it is a voluntary submission to the Court.

The phrase quando & ubi Curia consideravit is a but more complicated. Literally, it means “when and where the Court considers.” Thus, if you plead not guilty (or defend against an injury, or claim against your land, etc.), that is making a full defense, because the Court will consider that a full plea. For a full description of the term “Defense,” see 1 Co. Inst. 128b.

So, how does one make this plea in abatement to the jurisdiction? There are a number of ways, but the most proper is to require sight and hearing of the commission by which the justice claims jurisdiction over you. For one specific form of words, we turn to The Mirror of Justices:

I covered this previously in Exception to Jurisdiction, but it is worth restating here:

A defendant can aid himself by other dilatory exceptions against the power of the judge in this manner:–‘Sir, I demand sight and hearing of the commission by which you claim jurisdiction over me.’ And if the judge refuses or cannot show the commission, no one need acknowledge him as a judge delegate. (7 Selden Society 93)

A second instance comes from the ancient authority Fleta:

Rightful judgments ought to endure and stand firm and be inviolably observed until adequate satisfaction is obtained and so first of all it must be seen whether the justice who has to make judgement is competent. If he is a delegate and has no warrant from the king, what is done before him will be of no consequence as if it were done before one who is not his proper judge, although such as are summoned ought to come. Yet they should not be obeyed, not only when they have no warrant but also even if they show a warrant which has not proceeded from the king. (99 Selden Society 177 (not available for free, as far as I know.))

A third instance comes from Bracton’s De Legibus et Consuetudinibus Angliae:

It is clear that first of all, in order that judgments be valid, it is necessary to see whether the justice has a warrant from the king so that he may judge, for if he has no warrant what will be done before him will have no validity, done, so to speak, before one not his proper judge. The original writ ought first to be read and then the writ constituting him a justice; if he has no such writ at all, or if he has but it is not at hand, he need not be obeyed, unless the original writ makes mention of his judicial authority.(Bracton, v. 4 p. 278)

The form of words is not as important as the spirit, though the form should be stated clearly enough. A Justice must have a “warrant” or “commission” (basically, some document) establishing that they enjoy a delegation of authority from the King. It must name them specifically, and it must state what they are allowed to do. This is a very common sense idea: you need a license to drive a car (albeit by statute) and you need a license to “drive the court” (by the law of nature which created Kings). This applies to all administrative tribunals and every person who claims jurisdiction of any sort over a person.

We have now got several ways in which jurisdiction is acquired over ourself:

1. By Commission from the Sovereign
2. By appointing an Attorney
3. By accepting an Imparlance
4. By making full defense

In the next article, we will cover some of the tricks and misconceptions that persist in the legal profession and, I am sad to say, the Judiciary.