BYKARENBEST
December 26, 2006
Haldimand Review
The Ontario Court of Appeal has ruled against and in favour of sections of an order issued this summer by Superior Court of Justice judge David Marshall.
In a decision released on Dec. 14, the appeal court found that Marshall erred in law in ordering the injunction to remain in place until contempt of court orders were disposed of by the Attorney General of Ontario. The three-judge panel also found that persons arrested for being on the land in defiance of the injunction requiring them to leave Caledonia’s Douglas Creek Estates were convicted upon arrest based on the Marshall order. Under the criminal justice system, a court determines guilt or innocence, they said.
The panel also found that Marshall had the discretion to refer the contempt proceedings to the Attorney General, to require this body and Ontario Provincial Police to provide a report on progress and to remain seized of the matter until the Attorney General reports back to him. These matters are limited to actions between April 21 and July 4.
In February, some Six Nations members began occupation of a 200 acre subdivision construction site on the south edge of Caledonia. They contend that the land was never surrendered to the British Crown in the 1840s and the Ontario and Canadian government contend it was. Federal Department of Justice employees are currently reviewing a Six Nations document supporting their position.
In August, the Ontario government appealed Marshall’s August 8 decision that left an injunction attained by Henco Industries in place until criminal contempt charges were disposed of. In a preamble to the decision, Marshall suggested that negotiations cease until protesters left.
Negotiations between the Canadian, Ontario and Six Nations Confederacy were suspended until the court of appeal said in an Aug. 25 decision that they could resume without fear of breaching a court order. The court of appeal also stayed continuation of the injunction pending a hearing.
In September, the court of appeal heard submissions from the Attorney General, OPP, friends of the court representing Six Nations and Caledonia and other involved parties.
In the December decision, court of appeal judge Dennis O’Connor found that Marshall erred in law, overstepped his role and interfered with Ontario’s property rights by keeping the injunction alive after July 5. On that day, the Ontario government, which purchased the property on July 4, and Henco Industries asked Marshall to dissolve the injunction, which prohibited protesters from interfering with Henco construction.
O’Connor ordered the injunction dissolved effective July 5. Conditions were placed on the rest of the Marshall decision. Contempts for breaches of the injunction before the April 20 OPP arrests of 21 were dealt with and none can be pursued after July 4, he said. Anyone found in criminal contempt between April 21 and July 4 can be charged but must have a fair opportunity to be heard in court.
In a chronology of events, the appeal court noted that Henco Industries were notified in February in writing by the Six Nations Confederacy Council that Six Nations persons would move onto the property. After occupation began on Feb. 28, the development firm acquired a temporary civil injunction which Marshal made permanent on March 9. A couple of weeks later he found respondents in civil and criminal contempt of a court order to leave the property. At the end of March, the Attorney General’s office asked for and received a motion to amend the order to clarify the charges.
OPP told the appeal court that 53 charges were laid for injunction breaches and other breaches of the peace were laid against 28 individuals.
In the appeal court decision, the judges defended a portion of Marshall’s Aug. 8 decision. Based on a Supreme Court of Canada precedent, “modern judges have assumed an active managerial role” of some cases and the request to report back to court “is consistent with the modern court’s active supervision of litigation”, said the decision in support of Marshall’s request for the Attorney General and the OPP to report back on progress on outstanding contempt issues.
If the Attorney General failed to proceed after Marshall asked for assistance, it would be incumbent on him offer an explanation in open court, said O’Connor.
At the same time, the appeal court said Marshall cannot interfere with police and Crown discretion on whether to initiate contempt proceedings. Many considerations are at play beyond the obligation to enforce the law, said O’Connor. This includes aboriginal and constitutional rights, the rights to lawful protest and enjoyment of property, public safety and “importantly” the government’s obligation to reconcile matters of aboriginal and non-aboriginal peoples through negotiation, said the appellant judge.
The judge panel also recognized the importance of the rule of law, a central argument in the Marshall hearings but also noted that the Supreme Court of Canada said the rule of law is “highly textured”.
At the same time, O’Connor said the appeal court had the benefit of time, distance and a measure of detachment in reviewing Marshall’s decisions. The local judge’s job was not an easy one in the face of a dispute that produced great hostility in the community and interfered with the daily lives of Caledonia residents, he said. Through proceedings, Marshall exhibited great patience, gave all parities a fair opportunity to make submissions on how to proceed and balanced everyone’s rights while seeking maintenance of respect for court orders, he said.
Mayor Marie Trainer pointed out that the appeal court said the Ontario government has the right to use land as it sees fit provided it complies with all municipal bylaws and laws concerning nuisance and public safety. She said construction of buildings on the property without county building official approval contravenes local bylaws. She also said the police still have not enforced the original injunction and that the occupation is illegal.
In a media advisory, Six Nations Haudenosaunne said they were pleased that court of appeal ruled in part in favour of the Ontario government. While respecting the Ontario court ruling, their people are governed by the Great Law of Peace and the Confederacy council, said the release.
Six Nations spokesperson Janie Jamieson said she welcomed the green light for continued negotiations and for her people to stay on the property. “The bottom line is this issue is not going away and there are so many other similar situations,” she said. “To us it (the appeal court decision) doesn’t make a difference because we are staying here until it is resolved. We have all the proof we need to substantiate our position (that this is Six Nations land),” she said.
The court of appeal decision has raised concerns, said Haldimand Norfolk Brant MPP Toby Barrett. The federal people involved in negotiations say there is no land claim on the site and the land was surrendered in 1840, he said. And at the same time, the Ontario government appeal of Marshall’s decision is successful and it is legal for occupiers to stay on Douglas Creek Estates, said Barrett.
“How can the court rule it is legal to be on the occupied site when the federal government says there is no land claim,” he asked standing on Argyle Street South after the Dec. 16 flag raising event.