My Defence for Camping on My Own Property – by Bob Marcellus, January 15, 2015.

Your Worship:

In relation to the charges brought against me regarding my use of my property I plead not guilty.

I contend that I have the right to the enjoyment of my property and the right not to be deprived thereof. I contend that my lawful rights to use my property have been violated by the Municipality of Edwardesburgh /Cardinal.  I further contend that the Municipality has no authority to pass by-Laws that restrict my lawful use of my property.

The property in question has been in my family for over 60 years. The lot has been vacant except for a boathouse which was erected there in 1970. We have used the lot to camp on periodically over the past 25 years with no complaints up until about 5 years ago.

The lot has is 1.4 acres of land that is approximately 600 feet long by 95 feet wide. It stretches from County Road 2 to the North, to the St. Lawrence River to the South. It abuts a campground (Grenville Park) on the West side. The location of the boathouse and our usual camping area are shown here.





2235 County Road 2  -Edwardsburgh - Cardinal

The area where we normally camp is 400-500 feet from the permanent dwellings to the east and less than 100 feet to the nearest campers in Grenville Part to the west. In 2013 we went camping on July 26th and there was an anonymous complaint by August 6th. We were then invited by the by-law enforcement officer to vacate the property. We complied soon thereafter. This has been going on for five years. When we were invited to vacate in 2014, I told the By-Law Officer that the land was private property and that I would decide when I vacated the property.

The following photos were taken from the top of the boathouse and show a panorama of the area.

























My Trailer and Tent
























Note Trailers in the Park
























Note distance to adjacent residence
























View to the East
























View to the South Taken from Ground Level


A bit of Canadian History

Property and Civil Rights Act of Ontario

The property and civil rights act is one paragraph. It declares the following:
Property and Civil Rights Act, R.S.O. 1990, CHAPTER P.29
Consolidation Period: From December 31, 1990 to the e-Laws currency date.
No amendments. Rule of decision

1.In all matters of controversy relative to property and civil rights, resort shall be had to the laws of England as they stood on the 15th day of October, 1792, as the rule for the decision of the same, and all matters relative to testimony and legal proof in the investigation of fact and the forms thereof in the courts of Ontario shall be regulated by the rules of evidence established in England, as they existed on that day, except so far as such laws and rules have been since repealed, altered, varied, modified or affected by any Act of the Imperial Parliament, still having the force of law in Ontario, or by any  Act of the late Province of Upper Canada, or of the Province of Canada, or of the Province of Ontario, still having the force of law in Ontario. R.S.O. 1990, c. P.29, s. 1.

In regards to the laws of England in 1792, the Imperial Act known as “An Act to repeal certain Parts of an Act, passed in the fourteenth Year of his Majesty's Reign, intituled, An Act for making more effectual Provision for the Government of the Province of Quebec, in North America; and to make further Provision for the Government of the said Province, 31 Geo. III, c. 31 (U.K.)” created the two provinces of Upper and Lower Canada and during the creation of these two different provinces a new constitution was enacted bringing the same laws of England to these provinces in regards to property and civil rights. And under 31 Geo. III, c. 82, Section IX of this act specifically states:  IX. Provided always, That nothing in this act contained shall extend, or be construed to extend, to any lands that have been granted by his Majesty, or shall hereafter be granted by his Majesty, his heirs and successors, to be holden in free and common soccage.” [1]

A definition of “free and common socage” is: “Freehold tenure is without any incidents or obligations for the benefit of the Crown. All lands granted by the Crown in fee simple are granted in free and common socage - freehold tenure. A fee simple may be transferred without licence or fine and the new owner holds from the Crown in the same manner as the previous tenant held from the Crown.” [1]

By bringing the laws of England to the 2 provinces through the Constitution of 1792, and as it is specifically stated that it is to be the laws of England that pertain to property and civil rights, it would seem that the intent of the “Property and Civil Rights Act” of Ontario was to ensure that all private property is protected from governments interfering with the lawful use of same. It would also seem that a by-law forbidding me the lawful use of my property is in conflict with a superior act.
Note here that this Act is still in force. (Consolidation Period: From December 31, 1990 to the e-Laws currency date.)

Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769. The work is divided into four volumes, on the rights of persons, the rights of things, of private wrongs and of public wrongs. The following summarizes English law relative to private property rights:
"EMINENT DOMAIN. - So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.  If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men to do this without consent of the owner of the land. Besides the public good is in nothing more essentially interested, than in the protection of every individual's private rights."  Blackstone Commentaries, 2:138-9.

It would seem then that a By-Law forbidding my use of my property is in conflict with a superior Act.

British North American Act 1867
“An Imperial Statute in 1867 gave Canada a written and defined Constitution. Under this Constitution numerous bodies were endowed with large Legislative powers. All the laws were to be executed by the Courts, but executed so as not to conflict with the Imperial laws, which must, first of all be executed. Our Courts, therefore, while bound to execute all laws in force, must be the judges as to what laws are in force. A Canadian law which is repugnant to any Imperial enactment must be declared void by the Courts - a higher than Canadian power has said that it is no law at all. Again the Dominion Parliament may usurp Provincial Rights, or a Province may assume to deal with Dominion matters; the Courts still sitting under the Constitution, the Imperial enactment must refuse to obey their behests. The Courts in Canada are still the Queen’s Courts and bound to execute such laws as is in force, but equally bound to declare that the Acts of any of our Legislatures, when transcending their limits, are unconstitutional and void. The Courts, so long as they are permitted to exist, are not the creatures of the Legislature; they are of course subordinate to constitutional legislation, but they are coordinate and in effect superior to that which is not constitutional. This being, it is apprehended, the position of our Judiciary in Canada, the laws to be considered necessarily refer to three sources the Imperial, the Dominion and the Provincial. The first must be obeyed at all events; the other two must be equally obeyed, provided they are constitutional; and if not, they must be declared void.”

A Manual of Government in Canada; or, the Principles and Institutions of our Federal and Provincial  institutions, D. A. O’Sullivan, Esq., M.A., of Osgoode Hall, Barrister at law, 1879, p. 195-196  [1]

Property Ownership
I am the sole registered Owner of the Property and here is my most recent Tax bill (Exhibit #1 attached) showing that I pay taxes on the land. Here also is a copy of my Deed to the property showing that I received the land from my mother in 1988 (Exhibit # 2) attached.
I went to the land registry office and traced the previous owners back to the original settler. Here is the list of previous owners. I did that to investigate if any of them had assigned there property rights to any government authority.  I was able to trace the transfers back to 1840, the second and third transfers could not be found.
Re: West 1/2 of Lot 22 Concession 1 Edwardsburgh

#InstrumentYearGrantor Grantee

Crown Patent1797The CrownCapt. Hugh Monro
Brock
H-60B. & S.1835Hugh MonroSamuel Spencer
F-104B. & S.1835Samual spencer, et uxJoseph humpheries
I-103B. & S.1840Joseph humpheries, et uxHenry Blumeesteel
J-388B. & S.1843Henry Blumeesteel, et uxRalph Webster Burton
J-475B. & S.1843Ralph Webster BurtonThomas Robinson
B-576B. & S.1859Thomas RobinsonSolomon Wallace
Q-4830Grant1893Solomon WallaceWm. Solomon Wallace
26-14386Exors. Deed1943Ex. for Wm. Solomon WallaceEdith McLatchie
27-15945Grant1952Edith McLatchieRobert Donald Marcellus
And Doris I. Marcellus
68719Grant1982Doris I. MarcellusAnn Van Luit ( My sister)
85680Grant1986Ann Van LuitDoris I. Marcellus
96010Grant1988Doris I. MarcellusRobert W. W. Marcellus

Here are copies of all of the documents for all of the transfers that were found Exhibit # 3. From my review of all of these documents it appears that, throughout the years, there was no assignment of the rights given to the original settler. In my father’s and my sister’s deeds (highlighted by the green stickies in Exhibit # 3) it states that:
“SUBJECT NEVERTHELESS to the reservations, limitations, provisoes, and conditions expressed in the original grant thereof from the Crown.”

It is therefore important to know what is contained in that original “Crown Patent”. It seems that that proclamation is still in force in law.

Crown Patent
A land patent is a document transferring full ownership of a particular piece of property from the Crown to a private individual or corporation (subject to certain reservations normally included by the Crown in such documents). http://freepages.genealogy.rootsweb.ancestry.com/~wjmartin/land1.htm

A Crown Patent is an instrument of the Crown, and basically is the contract between the Crown and the grantee.

The following diagram illustrates that a Crown Patent is an instrument of the Sovereign. (From a presentation by Australian Senator Len Harris at the Ontario Landowners Association International Conference 4October 2014)
Figure 1 -Property Rights and Crown Patents

Interfering with a Crown Patent would therefore be offensive to the Crown. It could be construed as attempting to induce breach of contract.

For my land a Crown Patent was issued under the great seal of Upper Canada to Captain Hugh Monro (his heirs and assigns forever) in 1797 by King George the Third of Great-Brittan, France and Ireland. (Certified Copy provided as Exhibit # 4).
General conditions of issuance were as follows:
He had to build a house within one year,
He had to make a sizable donation to the Protestant Church in Quebec, etc.
If the land was found at a later date to be on an Indian Reserve then the Patent was void.
The Crown retained the right to any white pine, gold, silver, tin, etc. that was found on the property.
There were no restrictions on the use of the land.

I contend that as Captain Hugh Monro`s assignee I am entitled to lawfully use the land as he was without further restriction and in “free and common soccage”.                                                                                                 
I have been charged with camping on my own property. Property that I pay taxes on.  The municipal By-Law, which incidentally has been issued by a corporation, forbids using a tent or a recreational vehicle as a seasonal residence. I could dispute this By-Law in other ways, but, at this time, I contend that the Corporation of the Municipality of Edwardsburgh – Cardinal has no more right to restrict my use of my land than does Sears. The Municipality’s By-Law violates my lawful rights to the enjoyment of my property.

The Municipality of Edwardsburgh – Cardinal`s By-Law states that they get there authority from the province.

Under the British North American Act (1867) the province received its authority from the Crown, over public and Crown lands and as the Crown had alienated its authority over my private property, no authority over my land was transferred to the province. Once my Crown Patent was issued in 1797, signed, sealed under the great seal of Upper Canada, registered, and open to everyone, the property was no longer controlled by the Crown.  Therefore I contend that the province, being beneath the Crown, also does not have authority to forbid me from camping on my own property. [1]
Clause 139 of the Constitution Act (BNA Act updated in 1999) states: Any Proclamation under the Great Seal of the Province of Canada issued before the Union     …    whether relating to that Province, or to Upper Canada, or to Lower Canada, and the several Matters and Things therein proclaimed, shall be and continue of like Force and Effect as if the Union had not been made.
I refer to both the Property and Civil Rights Act and the Crown Patent as proclamations that are still in effect.

I contend that the Crown Patent, being a contract between me and the Crownwhich supersedes subsequent proclamations gives me the right to camp on my own property.

A Bit of Case Law
1) In MacDonald v. Halifax (Regional Municipality), 1997 CanLII 1100 (NS SC)
Justice J. Michael MacDonald provides a fairly succinct review of:
“Individual Property Rights
An individual's right to quiet enjoyment of his or her land without state interference has been a basic and extremely important tenet of English common law. Legislation that attempts to restrict that enjoyment has been narrowly interpreted. I refer to Coté on the Interpretation of Legislation in Canada (2d), at page 391:
A law encroaching on rights and freedoms of the individual that are recognized at common law should be be construed restrictively. Where there is real difficulty in interpretation, such a law should be applied by the Court so as to favour the exercise of these rights and freedoms.

This principle has two facets. First, it dictates that statutes be interpreted strictly, in that the courts should ensure that statutory conditions be applied meticulously before allowing the infringement of individual rights and freedoms. Second, where there is genuine doubt as to the meaning or scope of a statute, the principle directs the Court to resolve the ambiguity in favour of individual rights and freedoms.

And continuing on page 393 Coté deals with property rights specifically. He states:
First and foremost among individual rights and freedoms, at least according to the case law, are property rights, particularly those dealing with immoveable property.
As well I quote from Dreidger on The Construction of Statutes (3rd) at page 370:
General principle:   It is presumed that the legislature does not intend to abolish, limit or otherwise interfere with the rights of subjects. Legislation that curtails rights is strictly construed. This presumption was explained by Estey J. in Morguard Properties Ltd v. City of Winnipeg:
...the court requires that, in order to adversely affect a citizen's right, whether a taxpayer or otherwise, the Legislature must do so expressly...The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions when the rights of the citizen are involved.

The presumption of interferring with rights applies to both common law and statutory rights.
Driedger continues:
Property rights.       Historically, the presumption against limiting the rights of subjects has been applied most rigorously to protect private property rights., The judicial concern for property has several aspects, the most important being privacy and personal security. In a number of judgments the Supreme Court of Canada has emphasized the sacrosanct character of these values. In Colet v. R., for example, Ritcey J. wrote:

It is true that the appellant's place of residence was nothing more than a shack or shelter which no doubt was considered inappropriate by the City of Prince Rupert, but what is involved here is the long- standing right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it. The common law principle has been firmly engrafted in our law since Semayne's Case...where it was said..: "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose...".
He concluded:

As I have indicated, I am of opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and the case of any ambiguity would be subject to strict constuction in favour of the common law rights of the owner.”

Justice J. Michael MacDonald in his deliberation goes on to state:
“The issues raised in this Appeal involve primarily a private landowner's use of property for purely domestic purposes. For this reason deference must be given to their basic right to quiet enjoyment.”

2) John Voortman & Associates Limited v. Haudenosaunee Confederacy Chiefs Council, 2009 CanLII 14797 (ON SC)

The Honourable Mr. Justice J. R. Henderson , of the Ontario Superior Court of Justice states:
“[36]                          Also, in support of the modification of the traditional test I refer to an excerpt from Injunctions and Specific Performance, Loose Leaf Edition, at paragraph 4.610 wherein the author of the book, Justice Robert Sharpe wrote:
“Under our system of law, property rights are sacrosanct.  For that reason, the rules that generally apply to injunctions do not always apply in cases such as this.  The balance of convenience and other matters may have to take second place to the sancrosanctity [sic] of property rights in matters of trespass.”
[37]                          Justice Sharpe also wrote at paragraph 4.10 of his book:
“Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.”
[78]                           I also find that the actions of the HMF amount to both criminal and civil misconduct.  Their actions have interfered with the property rights of Voortman and can be characterized as nuisance, trespass, extortion, intimidation, and inducing breach of contract.”

3) The Corporation of the Municipality of Meaford v. Grist, 2011 ONSC 5195 (CanLII)
In the Summary Judgement Ruling the ONTARIO SUPERIOR COURT OF JUSTICE states:
“185]                      Further, the plaintiff municipality is not acting for the purpose of enforcing any legislation but rather it is seeking to take away land rights held by the defendants and their predecessors over many years.  In my view, the doctrines of laches and acquiescence should be applied.  The public interest is not served by allowing the municipality to favour the non-proprietary interests of some ratepayers or citizens over the private property interests of the defendants.”

Summary
The Court and the municipality have sworn an oath of allegiance to the Crown, my Crown Patent and my Deed are instruments of the Crown. Interfering with my rights to the lawful use of my property is offensive to the Crown. I ask the Court to restore honour to the Crown by dismissing this case.

[1] - Acknowledgment
The basic argument presented here come from the book titled “Property Rights 101 an Introduction” by E.F. Marshall, June, 2014, Published by All Rights Research Ltd.  Excerpts and phrases in this defence have been taken from this reference. This reference is available in hard copy here. (It can also be downloaded here: http://store.ontariolandowners.ca/

Closure
The Supreme Court of Canada, in the case of Harrison v. Carswell, (1976, 2 SCR 200, 1975 CanLII 160 (SCC)), states that:
Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law.

In accordance with the due process of law, I ask that the charges against me be dismissed.




"The Latest"

June 26th, 2015.
Your Honour,
In regards to this matter, I state that there is no dispute of the facts of this case. I therefore ask for a Summary Judgment based on the documents to be provided.

I was charged with using my property in a manner that is in contravention to the Municipalities’ Planning by-law, which states that the only permitted use is as a residential property.

It is my contention that the Municipalities’ by-law is ultra vires of the Township of Edwardsburgh/Cardinal.

My arguments are based on the Constitution and Common Law, and I presume that the case will be heard in the appropriate venue.

Yours Truly,
Robert Marcellus.



Question

If the highest law in the land says a property owner has property rights as dictated by a crown instrument known as the land patent grant, then how and when did lower courts get to say otherwise?









The Bob Marcellus Story