Re: Justice Marshall and The Court of Appeal
Printed in the Regional News - Feb. 1, 2007
Just before Christmas, the Court of Appeal released its Decision on the Appeal by the Ontario Attorney General and the OPP of the 2 Orders that Justice Marshall handed down on
Despite the rather lengthy reasons Justice Marshall delivered on August 8, he made only 2 formal Orders. The first order consisted of 3 elements:
---The referral of the Contempt proceedings (punishment for Breach of the Injunction) to the Attorney General;
---The requirement that the Attorney general report on his progress, or lack thereof, in prosecuting the contempt proceedings to the Court and the public in a Case Management Meeting with the Court; and
---The provision that Justice Marshall would remain seized (in control) of the Contempt proceedings until same were resolved.
Secondly, Justice Marshall ordered that the Injunction granted in favour of Henco would bind the Crown (as the new owner of the land) and would not be dissolved until the Contempt proceedings had been disposed of.
The Court of Appeal upheld the first Order, subject to certain conditions, but reversed the second Order and dissolved the Injunction effective
As the Cort of appeal pointed out, the 2 broader questions that surround the
To better understand the matter, it might be helpful to provide some background. To begin with, an Injunction is a Court Order restraining, or requiring, certain persons to refrain from certain acts, or requiring certain persons to perform certain acts. In this case, Protesters were restrained or required to refrain from interfering with Henco's operations and use of the roads in and around Douglas Creek Estates and were required to remove cars and barricades that were preventing access to DCE. The original Order, or Injunction, in this regard was granted on
On April 20, more than 3 weeks after the amended Order, the OPP went to DCE and arrested 21 persons, who, by virtue of their arrest, were automatically convinced of Contempt and sentenced. Ironically, despite the Attorney General's Counsel having adopted and recommended this procedure to Justice Marshall, nevertheless the Attorney General's Counsel were highly critical of the procedure before the Court of Appeal. The Court of Appeal, of course, disapproved of this Contempt procedure because the Protesters had not been given an opportunity to have their day in Court before being found guilty of Contempt and sentenced. This was due to the nature of Justice Marshall's Order which, in effect, found these persons guilty of contempt of Court simply by being present on the site without any opportunity for giving an explanation of their presence to the Court.
However, it should be noted that none of these people who were convicted of Contempt of Court as a result of this procedure, ever appealed their conviction or sentence.
The conflict immediately intensified after these arrests. Observing that the Superior Court has the ultimate responsibility to ensure that peace in the community is maintained under the Rule of Law, Justice Marshall then, on his own Motion, on
Dealing first with Justice Marshall's second Order where he refused to dissolve Henco's Injunction until the matter of Contempt had been resolved, the Court of Appeal reversed that Decision and dissolved the Injunction effective July 5, the date the property was acquired by the Government. Maintaining the Injunction was problematic in view of the fact that the Ontario Government had, in effect, pulled the rug out from under the Injunction by purchasing the property. The Injunction wording did not outlaw people from being present on the site, but outlawed people from interfering with Henco's operations. Since Henco no longer had any operations on the property after it had been purchased by the Government on July 5, there was therefore no sound basis to maintain the Injunction. The Court of Appeal speculated that Justice Marshall may have thought it was necessary to maintain the injunction in order to continue Contempt proceedings against persons who had previously violated the Injunction. However, for reasons spelled out by the Court of Appeal, that was not necessary and therefore the Injunction was dissolved.
However, despite pleas by the Attorney General and the OPP to also strike down the first part of Justice Marshall's Order, the Court of Appeal refused and maintained the first part of the Order dealing with the matters of Contempt, (violations of the Court Injunction), that had occurred up to April 20 had been dealt with by virtue of Justice Marshall's Order of March 17, as amended, that there could be no further Contempt after July 5 as the Injunction had been dissolved, but that the period between April 20 and July 5 was a period during which prosecutions for Contempt could still be initiated against anyone found in breach of the Injunction during that period. In other words, Contempt proceedings could still be initiated against any persons blockading the site and interfering with Henco's operations during that period.
In upholding Justice Marshall's Order in this regard, the Court of Appeal, commented that an important principle was at stake, namely the right of a Judge to supervise and invoke Contempt proceedings for Breaches of a Court Order and to maintain respect for the Court and its process. The Court of Appeal pointed out that Justice Marshall believed there were ongoing breaches of the Injunction which, in his view, neither the Crown nor the Police had adequately enforced and said he was justifiably concerned about the apparent unpunished defiance of the Court's Order and therefore justified in referring the matter of Contempt to the Attorney General.
The Court of Appeal went on:
".... this dispute has caused much community and public concern. The protest at DCE has unsettled the local residents. An atmosphere of tension, even hostility has permeated
In other words, the Motion's Judge, in his discretion, determined that the Court, the residents of
---No person could be found in criminal Contempt for Breach of the Injunction, unless new proceedings are brought and the person is given a fair opportunity to be heard;
---Any further contempt proceedings for breaches of the injunction must be limited to breaches during the period between April 21 and
---The Attorney General and the police, in exercising their discretion, shall decide whether to bring further contempt proceedings.
The first condition was to get around the criticism of the first Contempt Order and Warrant of Committal of March 17, as amended which, in effect, meant that persons arrested on the site were automatically guilty of Contempt and liable to the sentence imposed without having been given their day in Court. In other words, what the Court of Appeal is really saying is that in order to prosecute anyone for Contempt, they could be formally Charged with Criminal Contempt, just as anyone would be Charged with any other Criminal Offence and given their day in Court, where they could either plead guilty or have a Trial to determine their guilt or innocence and be dealt with accordingly thereafter.
The second condition was imposed in order to make it clear that all Contempt up to the arrests of April 21 had been dealt with as everyone on the site at the time of the OPP raid was arrested and automatically convicted by virtue of their arrest. Further, it was to make it clear that no-one could be prosecuted for Contempt after July 4 as the Injunction was dissolved on July 5 and , in any event, since the property had been sold on July 5, no one could possibly Breach the Injunction after that date as Henco's operations were no longer being interfered with.
The third condition was imposed as the Court disapproved of comments Justice Marshall made in his Reasons, which the Court of Appeal thought interfered with the OPP's operational discretion and the Attorney General's prosecutorial discretion. The basic principle here is that the Police, and not the Courts, decide who is to be charged and that the Attorney General, acting through the Crown Attorney, and not the Courts, or the Police, decides who is to be prosecuted. That is a basic principle of our Criminal Justice System which we have inherited from the British dealing with the separation of powers between the Executive and Judicial branches of Government.
Justice Marshall made reference to these wide powers of discretion in the following words: "It is clear that the Police and the Crown have wide powers of discretion in when and how to act. The Police and the Crown each have important roles in maintaining the peace. But that discretion should not be used to advance a particular policy. That is not a proper exercise of their discretion. They must not use their discretion to oust the rightful jurisdiction of the Court or to defeat the Court's Orders. The Crown and the Police take the position, as I have said, that this is entirely a land claims matter. That may or may not be the case - but it would be wrong to formulate a policy based on that assumption and wrongly use their discretion to further that policy"
In other words, Justice Marshall was suggesting that the Court Orders were not being enforced as a matter of Government Policy relating to Land Claims matters. The Court of Appeal said that these comments were not justified, and that this was an attempt at interference with the way the Police and the Crown exercise their discretion. That is what the Court of Appeal said. This may be a hard proposition for many people in this area to accept. Justice Marshall also said, during the course of his Judgment, that negotiations should cease until the Protesters left the site. Nevertheless, he did not make that part of his formal Order. No doubt sensing that he did not have the jurisdiction to do so, he simply made a recommendation in that regard. This, of course, was not binding on the parties, although the wisdom of his recommendation in this regard may well be compelling to many is the community.
As is usually the case when a body such as the Court of Appeal comments negatively upon the proceedings of a lower Court, it is only the negative part of those proceedings which receive publicity. I therefore thought is appropriate to write this letter in order emphasize the positive aspects of Justice Marshall's decision. In the first place, the whole process of the status Hearings which Justice Marshall invoked on his own Motion to call the various parties back and give an accounting to the community of why the earlier Court Orders were not being enforced was implicitly upheld by the Court of Appeal. As we know, four such status Hearings occurred, namely on June 1, 16, July 5 and 24. Next consider that what was originally a civil matter between Henco and those persons interfering with its operations on its property, which resulted in the original injunction, became a criminal matter when the protest escalated and there was widespread defiance in a most public manner of the Orders of the Court on a continuing basis. Criminal Contempt is therefore any private or public misconduct which interfere with the Court's process, or seriously threatens the proper administration of justice. Hence, the rationale for the Contempt proceedings and the Status proceedings to determine why there continued to be ongoing breaches of the Injunction (i.e.: contempt of the Injunction). For the reasons outlined above, the Court of Appeal upheld Justice Marshall's referral of the Contempt proceedings to the Attorney General and his jurisdiction to supervise these proceedings.
According to the Court of Appeal decision, as of the date of the hearing of the Appeal (
There probably is hardly a soul in
In the end, the Court of Appeal did not uphold Justice Marshall's decision to maintain the Injunction. However, maintaining the Injunction was not necessary in order to continue with the Contempt proceedings. I would submit that the portion of Justice Marshall's Decision revolving around the whole issue of the Contempt proceedings was the most important part of his Decision and that Decision was upheld. It is now up to the Crown and the Police to implement that Decision and if they fail to do so to explain in open Court why they have no done so.
In fairness to Justice Marshall, it should be pointed out that the Court of Appeal made a point of mentioning that although it had been critical of him, it nevertheless said that "appellant review invariably takes place with the benefit of time, distance and a measure of detachment not always available to a Trial Judge". Indeed, the Court of Appeal went on to say: "For many months the Motion's Judge (Marshall) presided over a dispute that often seemed incapable of any resolution, produced great hostility in the community, interfered with the daily lives of many residents in Caledonia. His task was not an easy one. A review of the record of the many Court appearances shows without qualification that the Motions Judge exhibited great patience throughout, gave all parties and their counsel a fair opportunity to make submissions on how best to proceed, and sought to balance everyone's rights while maintaining respect for the Orders of the Court".
I would therefore suggest that credit is due to Justice Marshall for trying to restore the Rule of Law in
--Sincerely yours,
C. Edward McCarthy.