Part of Caledonia ruling struck down

The Ontario Court of Appeal has struck down part of a ruling made by the motions judge in the Caledonia dispute, stressing the importance of negotiations rather than "the force of the law."

Protestors associated with the Six Nations have been occupying the disputed land on the former Douglas Creek Estates development in Haldimand County since February.

In July, the Ontario government purchased the disputed land from the developers, Henco Industries, allowing the protestors to remain on the land and for all parties involved to progress with negotiations. The province also joined the developer in asking that an earlier injunction issued to Henco in March, requiring protestors to leave the property, be dissolved.

However, in the August 8 judgment, Justice T.D. Marshall decided not to end the injunction unconditionally, expressing the view that "the rule of law was not functioning in Caledonia and that his orders were not being enforced," according to the Court of Appeal judgment.

Marshall ordered that the injunction granted in favour of Henco would bind the Crown and that it would not be dissolved "until the criminal contempt has been disposed of."

The Ministry of the Attorney General later lodged the appeal against two specific rulings in Marshall's judgment.

Writing for the majority, Justice John Laskin of the Ontario Court of Appeal overturned the motion judge's order, noting that Marshall considered the injunction necessary to "uphold the integrity of the court's orders."

"He apparently thought that if the injunction were dissolved, the outstanding breaches of it could not be addressed in contempt proceedings. I do not agree. The dissolution of the injunction would not have prevented past breaches of it from being addressed in contempt proceedings," Laskin wrote.

"The Ontario government made a political decision to buy Douglas Creek Estates from Henco and to allow the protestors to remain on the property. The motions judge ought not to have interfered with that decision. Even if he disagreed with the government's decision because he wanted the protestors removed, he overstepped his role by keeping the injunction alive against the wishes of both the current and previous owners of the property.

Paragraph 2 of the motions judge's order rests on a misapplication of the law. And it unjustifiably interfered with the Ontario government's property rights. It ought to be set aside."

According to Dennis Brown, counsel for the Attorney General of Ontario, it had always been their position that since the exchange of ownership, the injunction was at an end, and this is what the court seemingly has confirmed.

Justice Laskin added that "keeping the injunction alive meant that the protestors who remained on Douglas Creek Estates after July 5 risked being found in contempt even though they were on the property with the new owner's consent."

The Court of Appeal also noted that the convictions brought against individuals for criminal contempt in this case are "fundamentally flawed." The motions judge issued a warrant of arrest in March for those found to be in criminal contempt of court for disobeying the injunction, which was later carried out by the police against 21 individuals.

"Under the terms of the motions judge's order, by virtue of the arrest, all 21 persons were guilty of criminal contempt and sentenced to probation without ever participating in a proceeding against them or being given an opportunity to explain why the contempt finding was not merited.

"In his desire to end the occupation of Douglas Creek Estates, the motions judge denied those he found guilty of criminal contempt a fair process. He was not justified in doing so," noted the judgment.

James O'Reilly, who acted as amicus curiae for the perspectives of Aboriginal Peoples at the appeal said "The rule of law is supposed to be before someone is convicted of a criminal offense, and this was civil and criminal contempt that they were charged with, they had to have their day in court, and they didn't have it."

The Court of Appeal did uphold part of Marshall's judgment, which ordered that the attorney general take carriage of the "matter of contempt," that a case management meeting would be scheduled so that the Crown could apprise the public of its progress, and that he would remain seized of the matter until it was resolved.

However, the court imposed certain conditions on this, including the fact that the attorney general and the police will decide whether to bring any further contempt proceedings and that no one may be found in criminal contempt for breach of the injunction unless new proceedings are brought and the person is given a fair chance to be heard.

David Byers of Stikeman Elliott LLP, who acted as amicus curiae for the residents of Caledonia and Haldimand County in the appeal, told Law Times that "I felt that the most important thing from the residents' perspective was to require the attorney general to explain to the court and the public if they were going to make the decision not to prosecute any further contempt, that they should publicly explain to the people of the community why, and the court upheld that portion of Marshall's order," he said.

The Court of Appeal also noted that in stressing that the parties involved should stop their negotiations until the blockades were lifted and the occupation had ended, "the motions judge's comments were unfortunate and at odds with the Supreme Court of Canada's jurisprudence."

"The Supreme Court of Canada has repeatedly said that negotiation, not litigation, is the best way for our country to reconcile the claims of our Aboriginal communities with the rights of the Crown," noted Laskin in the appeal judgment.

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