Published on Wednesday, Nov. 11, 2009 12:00AM EST Last updated on Wednesday, Nov. 11, 2009 4:30PM EST
The Ontario government, which basically stands accused in a lawsuit of two-tier law enforcement in the native occupation at Caledonia, Ont., is now openly seeking two-tier justice for aboriginals.
Lawyer Dennis Brown yesterday told Mr. Justice Thomas Bielby of Ontario Superior Court that he should disqualify himself from sitting on the case because of a dated and fleeting connection to one of the lawyers representing the Caledonia couple now suing the government and the OPP for failing to protect them from sometimes violent native protesters.
The disputed connection is a 14-year-old solicitor-client relationship between Judge Bielby and John Evans, one of the lawyers representing the couple.
Mr. Evans's law firm was hired in 1995 - not by the judge, who was then a lawyer, but by the company which insures lawyers - to represent him in a case that has been described in court as involving "a mortgage and a credit union" and about which the judge elaborated yesterday was an allegation "of professional negligence."
The two men met but once over the three-year duration of the case - Mr. Evans doesn't remember the meeting - and the matter was resolved in Judge Bielby's favour before trial.
But Mr. Brown said the connection between the two raises "a reasonable apprehension of bias" and means the judge should step aside because, "It is important in this case that the aboriginal community sees this process as being impartial, absolutely impartial."
When Judge Bielby asked if that wasn't true of any case, and "why, if those principles apply, is this case different," Mr. Brown referred to "features" that wouldn't be present in ordinary cases, and mentioned land-claims negotiations in which Ontario is involved.
At another point, Mr. Brown told the judge that the "maintenance of public confidence in the absolute impartiality of the judiciary" was particularly important "in light of the history with aboriginal peoples."
Yet Mr. Brown acknowledged that if the case was an ordinary dispute between private non-native landowners, the government might not have raised the allegation that it has here.
In such a routine case, Judge Bielby asked, "would the [same] concern be there?'
"It might," Mr. Brown said, "but I couldn't raise the aboriginal-Crown relationship" as his primary reason why the judge should withdraw.
Mr. Brown appeared to be verging close to threatening Judge Bielby, telling him there wasn't enough information about the case where Mr. Evans represented him so long ago and saying, "It is incumbent on the court to disclose, not every detail, but something more than is before us now."
When the judge asked what details he meant, Mr. Brown coolly replied, "I don't know. I haven't seen the file."
"You mean unless I'm prepared to release the whole file ...?" Judge Bielby asked, seemingly taken aback, before adding, "which I'm not going to do."
"That's a determination you have to make," Mr. Brown said.
"I'm not saying you should release the whole file."
But he returned to the same point later, telling the judge that the "information available" about the old file could lead to "a member of a community, a significant community, a culture" wondering if the judge lacks impartiality.
What was crystal clear from Mr. Brown's remarks and the government's factum is that Ontario is utterly preoccupied with how the lawsuit is seen by native groups, particularly the Six Nations - the reserve associated with the protesters who almost four years ago occupied the former housing estate that is part of a then little known land claim - and if not immune, at least insensitive, to how the case is perceived by non-natives.
Indeed, Mr. Brown yesterday indicated that the OPP will defend the allegations its officers didn't police Caledonia properly by taking "the position it was a land claims matter," deserving of special kid-glove treatment, and not a law-and-order problem.
As the lawyers yesterday argued the finer points of law, Dave Brown and Dana Chatwell, the couple at the centre of the lawsuit, sat shell-shocked in court.
Mr. Brown was near tears and visibly upset, particularly when Michael Bordin, the junior lawyer on his case, was arguing that the case was not about native rights but about the alleged lawlessness of the protesters' conduct and the government's failure to help his family.
Mr. Bordin was reading excerpts from evidence given by OPP Commissioner Julian Fantino in a pre-trial procedure called examination for discovery.
The OPP boss was asked numerous times if conduct such as threatening death, swerving a vehicle and trying to hit someone, threatening to burn down a house, shining spotlights into the house at all hours - these are all allegations made in the lawsuit against native protesters - was either peaceful protest or "lawful assertion of a land claim," and each time replied that it was not.
"Our position is that those are essentially acknowledgments on the part of the OPP commissioner that this [conduct] was not part of peaceful protest or assertion of land claim," Mr. Bordin said.
He said the government's motion ignores the long-standing "tradition of integrity and impartiality" in the Canadian judiciary and said "it cannot be so" that a different test should be applied in cases that touch on aboriginal matters or that "the Crown's interest is better or deserves different treatment" than any other.
Mr. Brown's and Ms. Chatwell's $5-million lawsuit alleges that when protesters forcibly seized what was then called the Douglas Creek Estate, he and his wife and their teenage son were left by Queen's Park and the OPP to endure what amounts to a reign of terror.
Several months after the occupation, the government paid the Douglas Creek developer about $12-million; Ontario then became, and is now, the owner of the property.
The couple's lives have been left in ruins by the protracted occupation, which continues in diminished form. Mr. Brown has lost his job and been diagnosed with post-traumatic-stress disorder, Ms. Chatwell lost the hair salon she ran out of the house, and they are destitute.
Judge Bielby will give his decision tomorrow.