Sep 3, 2020

A.V.I. v. M.H.V.B., 2020 ABQB 489 - A Dissection of Pseudolaw

AVI v MHVB, 2020 ABQB 489 (CanLII)

Pseudolaw is a fascinating, yet fairly recent, development in the legal landscape. Identifying it can be difficult, however. It is not simply wrong-law, as we encounter every day when judges make it so by rejecting a party's claim as to the state of the law and explaining right-law, or as courts of appeals are tasked to correct when the judges themselves mistake wrong-law for right-law. It is, rather, beyond-wrong-law.

As such, a definition becomes quite useful to better understand and identify pseudolaw when it rears its head. In its opening paragraph, this decision gives perhaps the most concise yet evocative definition of pseudolaw we have encountered:
"[1] Pseudolaw is a collection of spurious legally incorrect ideas that superficially sound like law, and purport to be real law. In layman’s terms, pseudolaw is pure nonsense."

And what follows is an equally entertaining, informative and sad read.

Indeed, one of the issues that we take against courts dealing with pseudolaw is that they often simply reject it out of hand. As some have noted, it can be met with silence [see Donald Netolitzky, "Enjoy the Silence: Pseudolaw at the Supreme Court of Canada", (2020) 57:3 Alberta Law Review 715]. While this is often the correct approach, in terms of judicial resources, it seems to be doing little against the feeling of injustice and helplessness that leads people to turn to pseudolaw in the first place. In fact, it can even reinforce that feeling.

Here, Justice Robert A. Graesser went above and beyond, engaging nonsensical claims methodically, as if they had some legal logic, to expose their flaws not just from an external, positive law perspective, but indeed from the inside. See, for example, his treatment of one aspect of the "Magna Carta Lawful Rebellion" pseudolegal argument:
"[74] Article 61 of the 1215 Magna Carta said nothing about the rights of ordinary individuals, but instead authorized a counsel of 25 rebel barons to seize all of King John’s “castles, lands, possession, or anything else” if King John did not adhere to the terms of the Magna Carta of 1215. What about rights given to non-barons? Article 61 permits “[a]ny man who so desires may take an oath to obey the commands of the twenty-five barons ...” [emphasis added]. That would appear to be obedience to the commands of the elected council, not a single baron.
[75] Robinson appears to have sworn herself to be a loyal servant to Lord Craigmyle of Invernesshire. So what? There is no suggestion anywhere that Lord Craigmyle has been elected or appointed to speak for any Article 61 council. There is also nothing to suggest that Lord Craigmyle has “commanded” Robinson to do anything at all, or to do anything in return for her allegiance, let alone that she write to this Court, claiming to represent MHVB, advancing claims that MHVB owns Z as chattel property, and threaten, let alone impose, “the Gallows”. Robinson therefore appears to be rogue servant and Lord Craigmyle should perhaps be concerned about what is being done by her, purportedly under his authority."

Not all judges can spend as long dealing with pseudolaw. But once in a while, a systematic approach to it by a court can be beneficial. We can only hope that this judgement can be a wake-up call for M.H.V.B., in addition to a most useful tool in the judicial arsenal when confronted with other "pure nonsense".