The ‘Leave Application’. ‘Right’eous vs The Crown continues


What started out as the first day for four Batchewana First Nation men to begin the defence of a case 8 years in the waiting, turned into more waiting on Monday, May 16th,2016.

BFN Chief Dean Sayers, Gil Robertson and Phil Swanson, who are represented by Defence lawyer Jennifer Tremblay-Hall, and Gilles Robinson, who is represented by Defence lawyer Michael Bennett have been patiently waiting to be heard at the Superior Court of Justice in Sault Ste. Marie, Ontario.

20160516_105509Dating back to 2006, logging rights of the four Batchewana First Nation men were challenged by an Ontario government process bogged down in question marks. The charges were filed under The Provincial Forest Sustainability Act (FSA), Ministry of Natural Resources two years later, when, in 2008, formal charges were levied again Chief Dean Sayers, Gil Robertson, Philip Swanson and Gilles Robinson.

Representing the Crown in Provincial court in September, 2015, when the trial began, was Ministry of the Attorney General Crown Counsel, Brian Wilkie.

In Court on May 16th, was Ministry of the Attorney General Crown Attorney Shane Gonsalves, who sought a ‘leave application’ on the charges.  Stating to Superior Court Justice, Honourable Justice Kwolek, during morning court proceedings, Gonsalves said, “The Crown has made a final decision that it will not be proceeding with the trial, on the merits. The Crown has made it clear that there will be no trial.”

Defence Attorney Jennifer Tremblay-Hall spoke with saultonline between sessions at the courthouse, regarding the legal maneuver the Crown introduced;  The ‘Leave Application’.

She said, “The crown wants to withdraw the charges because it does not want to proceed with the trial, a trial we started in September (2015). This was to be the start of our defence, and the Crown would like to withdraw. They (Ontario Crown) do not want us to have the opportunity to put our defence before the judge and have the judge make a decision on the charges.” said Tremblay-Hall.

20160516_102236“Because the trial has started, they have to get leave of the court. In other words, They have to say to the Court. ‘Allow us to withdraw.’  It’s a legislated part of the Provincial Offences Act.  The Judge has to grant the Crown leave”

Defense lawyer Michael Bennett, on behalf of his client, Gilles Robinson, brought an application before the court, challenging the ability of the Crown  to withdraw the charges. Jennifer Tremblay-Hall, on behalf of her three clients has joined Mr. Bennett’s application to challenge the leave .

Crown Attorney Gonsalves stated in Court “That the issues being raised by Batchewana (First Nation) are better heard in a different court, with respect to Land Claims negotiation and civil litigation.”

Mr Bennett said, “The basis on which the Crown is seeking the leave to withdraw, the reason as I understand it, is that, it is in the public’s best interest; That the crown wants to play nice now with respect to First Nations  interests. There has been a long history of how the Crown hasn’t played nice.”

20160516_094338Defense counsel Bennett went on to say. “The leave application should be adjourned for a considerable length of time to determine if there has been a flagrant impropriety on the part of the Crown or not. My client alleges that there has, in fact, been a flagrant impropriety on the part of the Crown. The honour of the Crown is an issue in this case, and has been for a very long time. It’s fine for the Crown to say  ‘Now, we are going to do things differently.’  It’s always been open to the Crown to play nice, but that hasn’t happened . My client has no confidence that the sad history will not be repeated over the summer. Let’s wait and see how serious the Crown is.”

The issue of the ‘leave application’ will be heard later this fall, as will a second application for costs, which are substantial.

20160516_102314Justice Kwolek addressed the whole court, “This is an area of concern to the community and I acknowledged the strong attendance from Batchewana First Nation community members in the courtroom. I thank you for your attendance here today.”

BFN Chief Dean Sayers told saultonline after court proceedings concluded, “Essentially 8 years of legal wrangling has been put over again. While we remain optimistic, we will have to look at our options now. If we find that we are being prohibited from being in the forest, we will have to look at shutting the forest down. If we can’t be in there, nobody will be in the forest. We’ve waited in good faith for this to be resolved. We’ve been pushed out of the forest, and their guys (Crown approved tenders for logging) have continued to be in there the whole time.”

20160516_102302(0)A press release is posted below from The government of Batchewana First Nation.

May 16, 2016

‘Sault Ste. Marie ON-  Batchewana First Nation (BFN) Leadership gathered at the Courthouse steps with local supporters engaged in ceremony seeking resolution to the disappointing status of their logging trial.

Today was to be the culmination of the trial where Batchewana First Nation members faced a prosecution for logging on their own lands from charges, which arose in 2008. However, BFN’s day in court was cut short by the Crown lawyers attempt to withdraw the charges.

Both Ontario and Canada were put on notice by BFN after community members were charged as to the claim. BFN has been preparing for this day for the last 8 years to finally establish in court that the First Nation had over 400 square miles of treaty lands taken unlawfully.

The First Nation has been awaiting the completion of the process in good faith.  Years of hard work on behalf of BFN has provided a wealth of evidence to support their claim.

Today, rather than face a fair and just outcome, the crown chose the dishonourable act of maintaining the status quo.  The trial will continue in the fall of 2016 at which time the Crown will make their formal plea for withdrawal.

It has been 8 long arduous years; not once has Ontario or Canada offered in a concrete format, or in good faith, to set up a structured negotiation to reach a resolution.

Chief Dean Sayers commented, “ We see this continuation as being sentenced to further poverty. BFN is pursuing our options and will garner input and direction from our People. Options include filing a statement of claim; continue issuing permits to log in our forest, and shutting the forest down if we can’t be there exercising our inherent jurisdiction. We will not endorse Ontario’s continued legislated theft of our logs and other natural resources. If our people are going to be kept from logging, so will everyone else”.

You may recall the recent decision of the Supreme Court of Canada in Daniels where Justice Abella spoke of the importance and integrity that is the “honour of the crown” in dealings with aboriginal people.  Despite what the Supreme Court says – today is a perfect example of the “dishonour of the crown”. Throughout the last 8 years the Province of Ontario Ministry of Natural Resource Prosecutors and those crowns in the Ontario Attorney General’s office in Toronto have frustrated the First Nation’s efforts to have their day in court.

This dishonour on the crown affects not only BFN, it affects the general public at large, tax payers in Ontario who unbeknownst to them have funded millions through their taxes for no less than 3 crown lawyers and sometimes up to 5 who worked to frustrate this process over the last 8 years.  This dishonour contributes to continuing conflicts BFN makes every good faith attempt to obtain a remedy for what happened so many years ago.

BFN Leadership are united in the sentiment that this setback will not stop them until this wrong is justifiably fixed.  In the days to come BFN will reflect on the ways in which they can force Ontario and Canada to remedy the wrongs of the past.’