‘Right’eous vs. The Crown. The Cost of it all

Shane Gonsalves. Crown Counsel. Ministry of Attorney General, Ontario. taken at courthouse

Court proceedings continued on Tuesday, November 15th, 2016 for four men from Batchewana First Nation, charged under the Ontario Provincial Crown Forest Sustainability Act dating back to an investigation that began in 2006. It would be 2008 when charges were formally laid by Ministry of Natural Resources, Ontario, against BFN Chief Dean Sayers, Gil Robertson, Phil Swanson and Clinton Robinson. Defense attorney Jennifer Tremblay-Hall, represents Sayers, Robertson and Swanson, while Michael Bennett represents Clinton Robinson.

In May, 2016, Crown Attorney Shane Gonsalves, sought “leave” of the charges against all four men. A ‘Leave Application was filed in Ontario Superior Court with Hon Justice Kwolek presiding. With plenty of twists and turns in the case leading up to the Spring 2016, the ‘leave application’ would prove to be a doozy.

The Defense teams, ready to present a defense that had taken years to get to, were taken into a hard left turn. At the end of the May 16th, 2016 court date, Gonsalves and an assistant crown attorney left Sault Ste. Marie on the first flight out, with the wind blowing in a chilly north-easterly direction.

That hard left would prove unchartered, and set the case on a trajectory that brought the attorneys, their clients, and Justice Kwolek back to Ontario Superior Court, last week in Sault Ste. Marie.

The ‘leave application’ plays heavily in decisions around the cost of it all. The leave application has essentially halted the defense attorneys from presenting a case on the charges.

On May 16th, an application was brought before the court by defense attorney(s) Michael Bennett and Jennifer Tremblay-Hall, challenging the ability of the Crown  to withdraw the charges. Gonsalves would ultimately retreat back down to southern Ontario to sort out what the next move should be. Justice Kwolek has yet to rule on the ‘leave application.’

20161115_135312And herein lies the rub. What motivated the ‘leave application’? Honorable Ontario Superior Court Justice Kwolek will be considering this, the ‘leave application’ itself, and any determination of costs awarded to the defense.

Shane Gonsalves (Ontario Ministry of Attorney General) is the second Crown attorney on the file, Brian Wilkie, having been the original prosecutor. Charging four first nation men under the Provincial Crown Forest Sustainability Act (FSA) has proven to be a monumental enterprise.

The legal threads, have included The Pennefather Treaty (1859), The Robinson-Huron Treaty (1850), rights inherent to first nation people; resources and land claims. There has been a substantial amount of time invested in the case. Several expert reports were undertaken by the defense. It’s been a long haul.

Defense Attorney Jennifer Tremblay Hall distilled the essence of the Pennefather Treaty for the court. With the simplicity of a show-and-tell story, Tremblay- Hall unpacked a bag of fresh apples to demonstrate the point. In a visual exercise that could be called, ‘How do you like them apples?’, The Pennefather Treaty ( via The Crown) took the apples (resources) back, from BFN, having been divided up formerly by the Robinson-Huron Treaty. Everyone had apples. But the Pennefather Treaty with Batchewana and Goulais Bay FN Bands, ‘amended’ the number of apples each party would have going forward. The BFN share was exceedingly light on apples. The Pennefather Treaty has long been a contention for BFN, which Chief Sayers has called, “a travesty that led to the Batchewana people being defrauded of reserve lands.”

To learn about Treaties, visit: http://batchewana.ca/about/treaties/



On Tuesday, November 15th, 2016, a full day of court would ensue.

Defense attorney Michael Bennett stated, “I find it difficult to separate the issue of cost and the ‘leave application’. My client’s position is that, we still don’t know what the reason for the leave application is. Punitive costs (against the Crown) are difficult to assess if we don’t know what the reason for the leave application is. They have justified it on the basis of ‘being in the public interest’.”

Bennett further stated, “Clinton Robinson’s legal costs are being borne by him. The financial risk falls on Clinton Robinson; He has no third party funding arrangements with BFN.”

“Clinton Robinson wants to make a living on the resources of his community’s territory.”

“You’re Honour, we’re not in Kansas anymore.” Bennett said. “We’re in an evolving area of law. I don’t know if there are any ongoing negotiations with the province and BFN. Back in May,(2016) when the Crown wanted to withdraw, I don’t know if the Crown reached out to BFN. I’m working on the assumption that there haven’t been any negotiations. We don’t have any assurance that if a leave is granted, that negotiations would be expedited.”

“At the end of the day if the court were to grant leave to withdraw, and grant Clinton Robinson all of my costs, Robinson will still be out any costs of the logs that were seized. My client still wants to make a living at something he was charged for doing nine years ago. He was under the impression he had a license (through BFN) to do what he was doing back in 2008. What is to prevent these same charges being levied again?”

“The Crown has known for some time what Clinton Robinson was seeking in damages. But there hasn’t been any peep from the Crown. The Crown  has not disclosed why it is seeking to withdraw the charges, and it makes it difficult to set out costs, when we really don’t have the reason that the Crown is seeking leave of charges.”

“This is a case about commercial logging rights of aboriginal people.” he said. “Clinton Robinson was charged under the Provincial Crown Forestry Sustainability Act, and he maintains that the legislation does not apply to him. When you’re exercising a right of the BFN community to commercially log, provincial legislation does not apply. That might be the reason that the charges are being withdrawn. Maybe that’s the secret reason they (Crown) don’t want to disclose; Provincial logging legislation doesn’t apply to BFN members.”

Jennifer Tremblay-Hall, defense attorney for the other three men stated to Judge Kwolek, “It would appear to me that throughout these discussions, the Crown would like you to see costs through the lens of Civil litigation. Costs awarded in Criminal proceedings serve a very different purpose, from those awarded in Civil proceedings.” adding,

“I would suggest that disciplining the Crown for misconduct during these proceedings should be  part of the cost awarded to our defendants.”

“The Crown has conceded, from May 2014 onward, that reasonable costs should be paid, so I take it to mean that they (Crown) are conceding misconduct.”

“It is the defenses position that misconduct has occurred.” she said.

“The costs awarded against the Crown in criminal proceedings are fundamentally different than costs awarded against the Crown in civil proceedings, therefore different considerations must apply.”

Tremblay-Hall further said “The question then lies, Your Honour, ‘Are the costs that the defense is advocating should be paid, are they based on exceptional circumstances that Mr. Gonsalves (Crown attorney) is going to say, or are they based on misconduct. I would suggest that those costs need to send a message to the Ministry in Toronto, that this proceeding, needs to be disciplined. It is flagrant and inappropriate. Costs need to awarded by an objective standard.”

“The costs that were provided to you for legal fees on behalf of my clients can only be regarded as reasonable.”

The Crown is taking issue with paying costs incurred in the completion of several reports, on behalf of the defense. “The expert reports were unnecessary expenses if the Crown had exercised diligence in its prosecution. If they (Crown) were so certain they were going to rely on the Pennefather treaty, why didn’t they just set a trial date. Why wait for so many years for the defense to produce Morrison’s expert report? And now they want to say to the court that they shouldn’t be responsible for those costs; that they were unnecessarily incurred.”

The ‘Morrison Report’, is one of three expert reports named in court, as well as geographic maps, and elder interviews, undertaken over a period of time, since original charges were filed in 2008.

“These experts were well known to the Crown early on. There were dozens of pre-trials. There was no secret that these experts were going to be retained, and what purpose these experts would be offering. At no time was there ever an objection, until the reports were disclosed. If the Crown’s position early on was that there was no need for any of these reports, why did they sit in the weeds so long. It’s not the defense that is supposed to move the prosecution forward. It’s the prosecutions’ prosecution. It’s their diligence that is at stake here.”

Tremblay-Hall further stated, “When those reports were provided, the Crown’s first response was to ask for more underlying documents, and notes, in relation to the compilation of the reports. If it was so irrelevant, why would the Crown need underlying documents for that. I say to you, Your Honour, that is smoke and mirrors.”

Crown Attorney, Gonsalves stated, “Cost awards, in criminal and quasi-criminal context are awarded only in exceptional, remarkable and  rare circumstances.”

He went on to say. “There are sound policy reasons for limiting the circumstances when costs should be awarded against the Crown in a prosecution context.”

Citing various case law, Gonsalves stated: “If the Crown acts in the public interest when conducting criminal prosecution, it is said that its discretion should not be influenced or fettered by the threat of cost awards.”

“That spectre is an unwholesome one, for the justice system. Policy considerations (in cases cited by Crown re: prosecutorial misconduct) result in an elevated fault threshold. The liability threshold should be set near the high end of blameworthiness.” he said.

“The threshold for awarding cost against the Crown for misconduct is whether there has been a marked and unacceptable departure from the reasonable standard expected from the prosecution.”

“With respect to the reason for withdrawal, I submit that based on the extensive submissions, there is no basis, no evidence, no submissions to give any air of reality, to the notion that the crown withdrew for reasons other than for public interest reasons.”

Gonsalves stated, “This is a case where Batchewana set the stage for charges. It is clear that the charges were their preferred forum for resolving their issues. It is clear that it still remains their preferred forum. That is why they are opposing the leave application.”

“Delaying the withdrawal of these charges did not serve, could not serve to apply any pressure to the BFN to engage in a land claim or alternative forum.  It is what they desire; it is what they welcome, and what they are still striving for; to have the matter proceed within the context of the prosecution.”

Insofar as the amount of time taken by the Crown to move the case forward, The Crown is arguing that on the ‘Charged screening’ function, the clock started ticking in 2014. The Crown contends that any cost awards should only be given consideration within a two year time frame. “In 2014, with the Crown having concluded, that this case was in part about aboriginal title, it sought by consensus to find resolution of this issue out of the prosecution forum.”

A judicial decision from Hon Justice Kwolek is expected in the coming months.

dean-sayersBFN Chief Dean Sayers, in a post-court interview with saultonline stated,  “After nine years, I’m really disappointed in the Crown. There was some recognition in the courtroom today that they didn’t conduct themselves in an honourable way, through this process, and they are going to cover some costs. But this isn’t addressing the underlying jurisdictional issues.”

“We are concerned that there has been an abuse of the system on the part of the Crown. The Judge will make a decision on January 30th, 2017, whether to allow a leave to withdraw (charges)on the part of the Crown, and any cost awards. There needs to be punitive damages, The Crown needs to be disciplined for their treatment of indigenous people in this matter. We are a resilient people; We will find justice and we will find our rightful place once again with our relationship in protecting our ancestors, our relations, the forests, and the water. We will fulfill our obligations by whatever means necessary.”