R v Duncan

R. v. Duncan

2013 ONCJ 160
Ontario Court of Justice — Justice Fergus O'Donnell | March 26, 2013

Background

At 2:48 a.m. on December 1, 2011, Matthew Duncan made a right turn onto Slessor Boulevard in Grimsby without signaling. Constables Eles and Pilkington followed him into his apartment building parking lot and demanded identification. When Duncan refused and instead produced a red binder containing "freeman on the land" materials about jurisdiction and fee schedules, the officers arrested him for failing to identify under the Highway Traffic Act. A struggle ensued, Duncan was tasered, and he was charged with assaulting a police officer to resist arrest.

Duncan represented himself at trial and spent considerable time arguing the court had no jurisdiction over him — complete with an "affidavit of truth" that the judge described as internet-derived gibberish that made James Joyce's Ulysses look like easy reading. However, Duncan also claimed he had no obligation to identify himself to police, which turned out to be the key to his defence.

Issues

1. Did the police have lawful authority to demand identification from Duncan?
2. If the arrest was unlawful, could Duncan be convicted of assault to resist arrest?

The Fatal Flaw in the Traffic Stop

The Crown's case collapsed on a careful reading of section 142(1) of the Highway Traffic Act. The officers testified they stopped Duncan for failing to signal his right turn, but section 142(1) doesn't make it an offence to simply turn without signaling. The Act only requires a signal "if the operation of any other vehicle may be affected by the movement." At 2:48 a.m., with no evidence of any other vehicles nearby or being affected by Duncan's turn, no offence had occurred.

Justice O'Donnell found this wasn't a technical defect but a fundamental misunderstanding of the law. Without a lawful traffic stop, there was no authority to demand identification. Without lawful authority to demand identification, the arrest for "failure to identify" was unlawful. And without a lawful arrest, resistance to that arrest cannot be criminal — even if Duncan did assault the officers as they claimed.

Key Takeaway

Police must have lawful authority for every step of an interaction, and an unlawful arrest cannot support a charge of assault to resist arrest.

While Duncan's "freeman" arguments were nonsense, his instinct that police lacked authority proved correct. The case demonstrates that even common traffic enforcement requires careful attention to what the law actually requires, not just what officers think it requires.