A tough-talking lawyer told a judge he has the inherent power to order provincial police to clear native protesters from the Douglas Creek Estates occupation site in Caledonia.
"I'm not interested in punishing people for contempt of court," Ed McCarthy told Justice David Marshall in Ontario Superior Court yesterday. "I'm interested in stopping the continuing occupation of Douglas Creek Estates."
In order to do this, he added, the judge could issue a writ compelling the police to enforce contempt of court orders that Marshall issued more than four months ago.
McCarthy said the writ could be written so it wouldn't interfere with the OPP's discretion about how and when they want to clear the site.
"This is not talking about punishment," he reiterated. "This is talking about a method of bringing this occupation to an end."
Although he didn't cite any precedents, he said he believed Marshall had the inherent authority to ensure his orders were enforced. He suggested the judge had to take matters into his own hands because the protesters weren't about to leave on their own and he felt the OPP and Crown weren't fulfilling their responsibility.
He spoke as a representative of the Haldimand Law Association and was one of a number of parties who addressed Marshall yesterday.
McCarthy's tough remarks were at odds with lawyers for the provincial and federal attorney general, the OPP, Haldimand County, a private railway line running through the occupation site and a legal adviser for the Six Nations Elected Band Council. Over the past two months, Marshall had invited the parties to make submissions about how the rule of law could be restored in Caledonia.
During yesterday's hearings, Marshall repeated that the flouting of the contempt orders and criminal acts allegedly committed during the occupation had undermined the rule of law in Caledonia.
He noted protesters were shown on television ripping up and burning a court injunction that had just been read to them by the sheriff.
"If ever there was a blatant contempt of court, this was it," he said.
"We are faced with a blatant attack on the integrity of the courts," he later added.
After almost six hours of legal talk, he adjourned the proceedings indefinitely without making a ruling.
"I assure you nothing will be done quickly. In due course, I'll issue reasons for judgment."
Apart from McCarthy, almost all the other lawyers urged the judge to exercise restraint and not disturb the relative calm that has returned to the occupation site in recent weeks.
Lawyers stressed the five-month occupation involves complex land claims issues and native grievances going back almost 200 hundred years. They also stated progress is being made at the negotiating table between native representatives and federal and provincial officials trying to settle the Douglas Creek impasse.
The lawyers suggested heavy-handed enforcement of the contempt orders could jeopardize the talks or exacerbate the "fragile" situation at the site.
Representatives of the Crown and OPP stressed they were doing their job and were as interested as anybody in the rule of law.
Dennis Brown, a lawyer for the Ontario Attorney General, said police had charged 28 people with 53 criminal charges since April 20 and were continuing to do their job. He stressed nobody showed any evidence the Crown or OPP were shirking their responsibility.
"We have to take it for granted all parties are acting in good faith," he told the judge.
Denise Dwyer, a lawyer for the OPP, said police had maintained the peace and in her opinion maintained the rule of law in Caledonia.
In certain circumstances, they had exercised their discretion and decided not to lay charges relating to activities at the protest. But exercising discretion for good reasons -- that may not always be obvious to the public -- is not the same as abandoning the rule of law, she stressed.