Crown attempts to have Judge Removed

by Gary McHale - The Regional

November 18, 2009

The first few days of the Brown & Chatwell lawsuit trial were spent on a motion by the Crown to have the judge removed from the case.

Superior Court Justice Thomas Bielby had dealings with the Plaintiff's lawyer 14 years prior to this case.

Justice Bielby was appointed to the bench in 2008 and in 1995 a case against him was filed.

Lawyer Bielby, at the time, reported it to his insurance company who took over the case and hired John Evans to represent Mr. Bielby. John Evans is the current counsel representing Brown and Chatwell.

Justice Bielby stated he had only met Mr. Evans once to give evidence and the case was resolved 11 years ago before going to trial in Mr. Bielby's favour. Since then Mr. Bielby has had no dealings with Mr. Evans.

The Crown filed a motion to have Justice Bielby removed and presented a 40 minute oral presentation. During this 40 minute speech the Crown focused solely on the special unique and historical constitutional rights of Aboriginal people. Several times the Crown stated that the protesters and Six Nations are not named in the claim and as such are not represented in court, then the Crown proceeded to speak of the Aboriginal-Crown relationship.

The Crown argued it was important for the Six Nations Community to see the court as being impartial.

In response to the Crown's presentation the Plaintiff's lawyer, John Evans, pointed out that this case was not about Land Claims or an attempt to resolve Land Claims. It was about the OPP's failure to fulfill their duties to protect from unlawful conduct. The Crown is the owner of DCE, and allowed unlawful conduct to continue.

Mr. Evans then read out testimony from Commissioner Fantino who repeatedly testified that the various acts of native protesters were unlawful, not actions of a valid land claim, not part of peaceful protest and not part of any treaty right.

Mr. Evans then told the court that the Crown wanted a "different test" applied because of Aboriginal-Crown involvement and that somehow the Crown's case is 'more important than other people who come to the courts'. The court was told the Crown was undermining the principals of the court including the integrity of the court and that the Crown was creating two standards within the justice system.

Various legal arguments were presented to the Court regarding the standards needed to have a judge removed as ruled on by the Supreme Court of Canada. There is a high standard of evidence needed in order to show bias in a judge.

Justice Bielby came down with his ruling last Thursday and stated the Supreme Court has ruled that a justice's impartiality is assumed and is part of the tradition of the court. He stated that the Crown has asked him to be removed due to the "smallest hint" of bias because of an Aboriginal-Crown relationship.

'In my opinion the case before me is a nuisance case between two parties... the issue of impartiality is the cornerstone of our justice system and must be applied equally in all cases... the Charter of Rights and Freedoms guarantees everyone equality before the law. The fact that this action will focus in part on the Crown-Aboriginal relationship will in most degree be relevant whether or not my past relationship with Mr. Evans will raise a reasonable apprehension of bias."

The court accepted that the standard 2-5 year period, even in cases of a judge presiding over cases conducted by prior legal partners, more than proved that Justice Bielby's & Mr.Evan's dealing, which ended 11 years ago, demonstrated no reasonable apprehension of bias exists.

The Crown immediately announced their client had instructed them to appeal.

Mr. Evans told the court that the Attorney General should "listen to the court" before "appealing automatically". The Crown should communicate the court's ruling with their principals before deciding to appeal. The Court adjourned and gave the Crown several hours to speak with the various Ontario Ministries. In the end the Crown decided not to appeal at this time.

The Crown argued that "from time to time, Mr. Brown and Ms. Chatwell engaged in behaviour that provoked the protestors on the site and exacerbated an already difficult situation."