After saying she was "very disappointed" with evidence presented by city lawyers to justify issuing arrest warrants for eight Six Nations protesters, an Ontario Superior Court judge on Friday put the matter over until next week.
"I read the affidavits very carefully and I'm not very pleased," Justice Jane Milanetti said. "I'm not impressed."
The city was in court attempting to have the protesters found in contempt for breaching an injunction prohibiting
Six Nations protests at city development sites, granted June 2. by Ontario Superior Court Justice G. E. Taylor.
Court documents filed by the city say the eight protesters breached the injunction during incidents that took place from July 7 to 14 in the city's northwest business park, when protesters shut down work on two construction projects, a new Hampton Inn hotel and a warehouse and office being built by Kingspan Insulation.
The city's notice of motion asks the court to jail or fine those found to have violated the injunction and award the city punitive damages.
None of the eight named in the city's legal action -- Butch Thomas, Clyde Powless, Steve (Boots) Powless, Kevin (Whodat) Isaacs, Dick Hill, Dwayne Maracle, John Garlow and Runs Through the Fire -- attended court on Friday.
City lawyer Neal Smitheman said he planned to ask Milanetti to issue arrest warrants for the protesters in an effort
to have them appear before the court.
"It's called a warrant for arrest, but it's really a warrant for attendance," he said.
If the warrants had been granted, the protesters could be released if they promised to appear in court at a future date.
Smitheman said serving court documents to the eight protesters has proven difficult and that the city has done all it can to ensure the eight named were notified of Friday's hearing. At least two of the protesters have been served documents, court heard.
Smitheman presented affidavits as proof that the city has made every attempt to serve the protesters.
Milanetti said the documents left her unimpressed, noting that there had been "a very truncated timeline" for serving the protesters with notification of Friday's hearing and more time should be taken.
"I want to ensure, at minimum, due process is achieved," Milanetti said. "It's not been a long time since they've been (served).
"I think we need to make a bit more of an effort."
Smitheman told Milanetti that city police have said it's not safe to serve court documents to those living on Six Nations.
"The Brantford police have said it's simply dangerous to go onto the reserve."
He said process servers -- those who deliver court documents -- would be put in a dangerous position serving protesters on Six Nations.
"In fact, they were told they shouldn't go there without bulletproof vests," Smitheman said. "We cannot get on the reserve, we cannot effect service."
Six Nations police were asked Monday to serve some of the protesters with court papers, which Smitheman said has not yet happened.
"As far as we're aware, service has not even been initiated by the Six Nations police," he said.
Smitheman also said the city's legal action and those named in it have become public knowledge, pointing to a Six Nations newspaper story naming those asked to appear.
Milanetti told Smitheman he was asking a lot of the court in requesting arrest warrants for the protesters.
"Do you have any law telling me what I should do with this (request)?" Milanetti said. "You're asking me to do a lot with very little umph behind it."
Milanetti raised her voice after Smitheman made a comment in court about problems with "chasing people all over the countryside" to serve them court documents. Visibly annoyed, the judge said she didn't like Smitheman's tone.
"This is a court of justice and all I'm interested in is that everyone have justice," Milanetti said.
Smitheman eventually withdrew his request that arrest warrants be issued and asked that the matter be put over for one week. The city's motion will be back before the court next Friday.
"Hopefully, next Friday, there will be more participation," Smitheman said.
Outside the courthouse, Haudenosaunee Development Institute lawyer Lou Strezos -- seeking intervener status in the court action -- declined comment on the city's move to seek arrest warrants, but did say he thought it "heavy handed."
"I want to see what additional materials the city files next week," Strezos said.
Smitheman said that next Friday could see a schedule set up for dealing with the city's court action.
He also told Milanetti he likely would be back making the same request for arrest warrants.
- - -
JUSTICE JANE MILANETTI
"You're asking me to do a lot with
very little umph behind it."
TO LAWYER
NEAL SMITHEMAN
ACTING FOR THE CITY