MIKE PEARSON
The Sachem - July 28, 2006
The status of arrest warrants against native protesters remained unclear following the latest provincial court hearing on Monday.
Justice David Marshall continued his search for answers on the contempt of court charges against native protesters at Douglas Creek Estates. Warrants of committal were issued, effective Mar. 28 and executed on April 20, but the occupation of the Caledonia subdivision has continued.
Legal counsel for the Attorney General of Ontario and the Ontario Provincial Police suggested the enforcement of arrest warrants against remaining protesters would have a negative impact on negotiations to resolve the land dispute.
Hagersville lawyer Ed McCarthy countered those claims, suggesting that Marshall retains the power to ensure his orders are upheld. He said the contempt charges are continuous and should not be cast aside following the sale of Henco land to the province. Justice Marshall could issue a writ to compel the police to enforce the orders, he explained.
"We're not interested in punishing people," McCarthy said. "We just want this occupation to end."
Dennis Brown, representing the Attorney General of Ontario, noted that the grounds of the original injunction against protesters have changed following the provincial buyout of DCE on July 5. He said civil disobedience has been significantly reduced, but added the situation in Caledonia remains fragile. He argued that the OPP are continuing to do their job effectively, with 21 arrests made since April 20 and 53 charges made for breaches of contempt orders.
Brown's colleague, Malliha Wilson, argued that discretion must be exercised when acting on arrest warrants.
When asked by Justice Marshall if there should be a limit to that discretion, Wilson said "significant violence or deaths" would constitute an end to the limit.
Justice Marshall noted that if police had unlimited discretion to enforce court orders, society would revert to a police state. He noted that various court orders were publicly flouted. An injunction issued in March was burned and stamped into the ground by protesters.
"If court orders are disregarded the whole fabric of our democracy falls to pieces," Justice Marshall said. "We are faced with a blatant attack at the integrity of our courts."
Denise Dwyer, representing the OPP, said protesters are no longer hindering the activities of the applicant, Henco Industries, as stated in the Mar. 3 injunction. Dwyer said the OPP fulfilled their obligations by making arrests on April 20. Dwyer suggested that a new contempt charge should be brought forward to deal with subsequent breaches since April 20.
Dwyer said arrest warrants would be difficult to enforce, because thee has been no new order issued by the court since the April 20 raid. She noted that sympathy protesters have also visited the site since that date and suggested that they should not be subject to the same penalties.
"The OPP have been successful in maintaining peace and the rule of law," Dwyer said. "Police not laying charges is not a decision to ignore the rule of law."
She argued that police face situations where they cannot arrest and prosecute every person found committing an offense, in the interest of public safety.
Friend of the Court Larry Elliot said citizens of Caledonia are entitled to see the contempt issue addressed properly in court.
Justice Marshall reserved his ruling on the contempt orders. No date was set for a future hearing.