Don't assail judge who intervened, Caledonia's lawyer urges court

JAMES RUSK

Printed Globe & Mail
Sept. 29, 2006

The judge who intervened in the prolonged standoff with native protesters in Caledonia should not be slammed for allegedly acting improperly, a lawyer representing the town's residents told an Ontario Appeal Court yesterday.

David Byers told the court that Mr. Justice T. David Marshall of the Ontario Superior Court was "keeping an eye on the community interest" when he ordered the Attorney-General to go to his court to tell him what the province did to enforce his orders aimed at ending the protest.

Mr. Byers, appointed by the court to represent Caledonia, said that in the community, "there is a sense of unfairness that no one is doing anything for them, or explaining what they are doing to them."

He and a lawyer representing Haldimand County were the only counsel who asked the court not to overturn a portion of Judge Marshall's Aug. 8 ruling requiring the Attorney-General to report to the court.

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"The public has the right to know," and an open-court hearing where the province explained itself would be the best way for the people of Caledonia to learn what has happened, Mr. Byers said.

On the first day of the hearing, lawyers representing aboriginals, the province and the Ontario Provincial Police argued that the judge was off base when he ordered parties back to his court as if he were their supervisor.

But Mr. Byers said that while the judge may not interfere with the discretionary powers of the police and the Attorney-General to investigate cases and lay charges, both he and the public have the right to find out what has happened with the judge's orders.

In March, Judge Marshall issued a permanent injunction barring protesters from the Douglas Creek Estates development site, which they occupied at the end of February.

When the occupation continued into mid-March, he ruled that those remaining on the property were in contempt of court.

Although the police cleared the site in April and arrested a number of protesters, the site was reoccupied and the judge held a series of unusual summer hearings to find out why authorities had not ended the occupation.

He ruled that the province should report to him and he refused to lift the injunction, even though the province bought the land in July.

But lawyer Mark Sandler, who represents the OPP, said that if there is public misapprehension about whether the site is being illegally occupied in the face of a court order, that is a result of Judge Marshall's misconception of what he could do.

He said that the criminal contempt order, which he argued Judge Marshall has tried improperly to keep going, has no more legal life after the OPP arrested protesters in April.

The appeal court, which reserved judgment, can clear up the public's misunderstanding by ruling the contempt order no longer has legal authority, he said.

In a related development yesterday, Conservative Leader John Tory charged in the legislature that the occupation has cost taxpayers $55-million, including $30-million for policing, $20-million to buy the land and $330,000 to pay negotiator Jane Stewart's salary.

Premier Dalton McGuinty did not respond to the figure.

He argued that the province wants to reach an agreement with the Six Nations that will settle the dispute.

Aboriginal Affairs Minister David Ramsay said he had no idea what the dispute is costing. "It's going to cost what it's going to cost," he said.