my partner recently filed a case with the bc human rights tribunal against her former employer for not taking action when she was working with a scary, angry, violent, racist, sexist man. we'll call him "darth". according to the bc human rights coalition, she doesn't have a case because the man never said anything derogatory specifically to jane,even though darth had made various comments about asian women and jane is an asian woman. darth even referred to himself as a racist. of course he denied all of this when jane's boss asked darth about these claims and the boss told jane he therefore had to take her complaint -- ahem -- "with a grain of salt"! (aka did nothing about it.)
and the "human rights" people, with all of this evidence, say jane doesn't really have a case. they use that old liberal language of "a person who happens to be X": they described jane as "a woman who happens to be asian." i raised a stink about this at the orientation and told them that jane doesn't happen to be asian; her parents are asian and that made it pretty much a certainty that she would also be asian, by simple genetics, not mere happenstance. a person gets hit by bus by happening to be in the wrong place at the wrong time. a person does not become asian by a similarly chance process.
even though jane documented three incidents when darth asserted his racism, the human rights people dismissed these comments by saying "oh, well, maybe he was just angry and venting", and "well, he was commenting about asian drivers, not you"!
i'm dead serious.
i couldn't believe what i was hearing...according to their guidelines, in order for the tribunal to make a finding of discrimination, the behaviour has to be levelled specifically at the person making the complaint, meaning that if, for example, you worked with a neo-nazi who was outspoken about her or his hatred of jews, you would not have a case against this person if you were not a jew, even if you found your co-worker's behaviour viscerally offensive and intolerable.
the tribunal's guideline could also be understood to mean that even if this neo-nazi were expressing a hatred of jews in general, or of other jews and you yourself were jewish, you would not be able to establish a case since your co-worker did not make his statements specifically about you.
the guideline also ironically prevents those of us who want to address discrimination from access to legal remedies, based on race, gender, class, or other defining feature: in the example of the outspoken neo-nazi co-worker, if you were not a jew, you would have no legal capacity to engage the tribunal to protect you from your co-worker's racism on the basis that you are not a member of the targeted group.
by refusing to allow allies to file claims, the tribunal helps perpetuate the discrimination it seeks to eliminate. one of the problems inherent in discrimination is precisely that its targets are isolated and victimized. by vitiating the critical role of allies in the struggle for social equality, the tribunal's position further isolates targets of discrimination by placing the onus of action exclusively upon them.
needless to say, targets of discrimination are usually in the most disadvantageous position to defend themselves. imagine a new immigrant whose first language is not english, trying to assert herself in a new job she probably desperately needs, researching her rights in her spare time, looking into whether agencies like the tribunal exist, and then navigating its significant procedural hurdles successfully. fat chance. like jane, many people lose their jobs or homes in their struggle to address discrimination. this fear is palpable in targets of discrimination, making them the least likely people to file a tribunal claim, assuming, of course, that they even knew of its existence, itself an exceedingly unlikely prospect -- jane was born and raised in canada and only found out about the tribunal during her campaign to address her exposure to darth's sexism and racism.
for a legal representative, the tribunal people assigned jane the same man who denied that she was a target of racism and sexism during her orientation session. jane phoned them and said she didn't feel comfortable with him, but did not say why. a representative from the tribunal
told her summarily, without any sensitivity or curiosity, let alone respect for her discomfort, "he is perfectly capable of doing the job." finito. they never paused to ask her why she felt uncomfortable with this man. it nicely underlined the whole distorted mechanics of the place and their lack of recognition of even the most basic elements of discrimination such as privilege and domination.
with friends like that, who needs enemies?
Tuesday, September 14, 2010
Saturday, July 3, 2010
Guilty Unless Proven Innocent: Wrongful Convictions and the Presumption of Guilt
A system which operates upon the inverse principle to the one on public view, “innocent until proven guilty,” must regularly convict people either for crimes they did not commit, or for crimes they did commit but for which the evidence is lacking. Almost everyone would agree that a great wrong is done when an innocent person is found guilty. Fewer people would agree that a great wrong is also done when those who are actually guilty are found so on means other than by a fair and proper process, which necessarily includes the presumption of innocence.
Yet if a person's guilt is established in any way with the assistance of prejudicial assumptions on the part of the police or the courts rather than upon the strict basis of facts and the clearest of inferences (This is a sticky point, for what is clear? This is where bias affects the outcome of a trial), the obvious consequence is that wrongful findings of guilt are inevitable and the trial becomes to some extent a casino table; one with the odds stacked heavily in favour of citizens matching the profile of a “respectable citizen” and the odds stacked decidedly against those who fall furthest from this standard.
There is already a decent selection of irrefutably evidenced and compellingly argued books written on the role of “race”, gender, class and other factors which affect a person's chances in the casinos of law, so I will not make those arguments here. All to say that to find a person guilty in such a slipshod manner as relying upon presumptions of guilt where the facts do not suffice is a surefire recipe for wrongful convictions. Since my own experience with the courts strongly suggests the routine operation of a pro-guilt bias, I expect that wrongful convictions are far more frequent than we have ever been led to believe. Only those with a functional level of self-esteem, focus, and drive would be in a position to communicate their stories of wrongful conviction and have themselves heard, let alone believed.
In a 1992 federal review of wrongful convictions in Canada, Senior Analyst Philip Rosen noted that:
"A final issue of concern to applicants’ counsel is the lack of financial assistance to convicted people who may wish to submit a s. 690 [Criminal Code] application for mercy to the Minister of Justice. In several instances, provincial legal aid plans have refused to assist s. 690...applicants with their legal fees and disbursements. In some cases, counsel have done this work on a pro-bono basis and assumed thousands of dollars in disbursements, while in others, non-governmental organizations have financially supported the applications (http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm)."
If this is the hurdle people wrongfully accused face, it stands to reason that the wrongful convictions that find a public spotlight represent but a tip of a rather horrifying iceberg. Beyond these formidable personal constraints that bar the way to a successful “reversal” (can the damage caused by a wrongful conviction ever truly be reversed?), there must also be at play a certain reluctance on the part of the courts to shed a light on the systemic problems indicated by such travesties. As Mr. Rosen points out, “Wrongful convictions undermine the two prongs of the criminal justice system’s legitimacy. If someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free. As well, public confidence in the system declines when wrongful convictions are identified.”
As strong as the desire for the former may be, professional considerations for the public reputation of the entire administration of law may transform the will to free an innocent person into a rather lackluster affair. Without a rather fervent and widespread will to scrutinize and honestly evaluate the errors in the system and admit their systemic nature, however, wrongful convictions are doomed to perpetuity, bringing the legal system into further disrepute. As Mr. Rosen concedes,
"Because findings of wrongful conviction represent a basic undermining of the integrity of the criminal justice system, the procedures established for the review of such cases are extraordinary in nature and are rarely invoked successfully. For it to be otherwise would be to put in question the criminal justice system’s legitimacy and, by bringing attention to its fallibility, to weaken public confidence in it."
Not surprisingly, then, Mr. Rosen reveals a shockingly low incidence of estimated wrongful convictions:
"There are probably fewer truly wrongful convictions than claimed, but there may still be a surprising number. It has been claimed that in Great Britain, the wrongful conviction rate may be as high as .1% – or one out of every thousand people. Another estimate is that there may be 15 cases of wrongful convictions each year in Great Britain. Academic studies in the United States indicate that between one-half and 1% of persons convicted of serious offences did not commit the crime. It has also been suggested by the Criminal Justice Research Centre that as many as 6,000 persons a year are wrongfully convicted of felonies in the United States. There are no similar estimates of the number of wrongful convictions in Canada. An official with the Department of Justice recently estimated that the Department receives about 30 applications a year for the review of criminal convictions."
Given some of the hurdles Mr. Rosen and I have already highlighted, how can we calculate the frequency of wrongful convictions? Mr. Rosen's reference to the roughly 30 applications the Department of Justice received annually in the years leading up to 1992 can only tell us that, when one takes into account the small percentage of people who have the wherewithal to mount an effective wrongful conviction campaign (including finding a lawyer who believes strongly in the merits of the case); have been sentenced to a long enough sentence for the years- or decades-long pursuit of justice to be deemed an attractive option; and have sufficient evidence to argue a case where the burden of proof is on the defendant to establish his or her innocence, that this number must represent a miniscule fraction of the actual cases of people wrongfully convicted.
In cases where a person is serving ten or less years, even assuming we are speaking of a the relatively small number of people who have the emotional, social and financial wherewithal and the evidentiary requisites to mount a wrongful conviction case, a large number of these people may well serve their entire sentence before a wrongful conviction claim gets anywhere, if it gets off the ground at all.
Anyway, people who have the tools and finances to convincingly advocate for their own innocence are those most likely to avoid wrongful convictions in the first place. A wealthy white businessman has the means and “respectable citizen” appeal to be able to defend himself well against both a conviction if he is at trial and a wrongful conviction in the less-likely event of such an occurrence. Demographically, those most likely to be wrongly convicted are the same people who are least likely to be willing and able to stand up for themselves effectively. A drug-addicted Native woman would have considerable hurdles both in avoiding a presumption of guilt and to successfully fighting a wrongful conviction in the far likelier instance of that occurrence.
Surprisingly, while the Innocence Project, an American organization committed to using DNA testing to reverse wrongful convictions, acknowledges that “These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed ,” they do not even mention the social status reflected in the convictees' “race”, class, gender which leads to far more likely and wider ranging systemic presumptions of guilt. They list instead four raceless, classless, genderless factors contributing to wrongful convictions: eyewitness misidentification testimony, unvalidated or improper forensic science, false confessions and incriminating statements, and snitches (innocenceproject.org). Of course, without recognizing the convictee's social status as the primary driver of convictions based on the presumptions of guilt, we are deprived of a deeper and more accurate understanding of how and why wrongful convictions occur.
Rosen similarly provides a mechanical explanation for wrongful convictions which do not make any mention whatsoever of the role that poverty, colour, ethnicity, nationality, personal background, language, appearance, or gender have to do with these obviously “race”, class and gender-biased miscarriages of justice:
"The causes of wrongful convictions are easy to identify: irregularities and incompetence at the investigatory, pre-trial, trial and appellate stages of the criminal justice system. More particularly, Kaiser identifies the following contributory factors, among others: false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage. Each instance of determined wrongful conviction illustrates a different combination of failures in the criminal justice system that have prevented it from functioning effectively and fairly."
Not once in Mr. Rosen's report are the words “race”, “racism”, “sexism”, “class” or “classism” even found in the federal document.
Anecdotally, a friend told me about a conversation he had had with a Crown lawyer, whose position was that whoever he is prosecuting is probably guilty and, even if not, that person had probably done something in his life that he should have gone to jail for anyway. While this is anecdotal evidence based on one incident that has come to my attention, it confirms to me at least some extension of the presumption of guilt beyond the confines of our case. Further, one of the defence lawyers in our case candidly admitted that he was not used to dealing with innocent people since most of the people he deals with are guilty. Whether his finding of guilt was based entirely on the facts in all those cases or mixed with presumptions of guilt is not clear, though dealing with people deemed guilty by whatever means cannot but lead to an overall presumption of guilt over time.
Yet if a person's guilt is established in any way with the assistance of prejudicial assumptions on the part of the police or the courts rather than upon the strict basis of facts and the clearest of inferences (This is a sticky point, for what is clear? This is where bias affects the outcome of a trial), the obvious consequence is that wrongful findings of guilt are inevitable and the trial becomes to some extent a casino table; one with the odds stacked heavily in favour of citizens matching the profile of a “respectable citizen” and the odds stacked decidedly against those who fall furthest from this standard.
There is already a decent selection of irrefutably evidenced and compellingly argued books written on the role of “race”, gender, class and other factors which affect a person's chances in the casinos of law, so I will not make those arguments here. All to say that to find a person guilty in such a slipshod manner as relying upon presumptions of guilt where the facts do not suffice is a surefire recipe for wrongful convictions. Since my own experience with the courts strongly suggests the routine operation of a pro-guilt bias, I expect that wrongful convictions are far more frequent than we have ever been led to believe. Only those with a functional level of self-esteem, focus, and drive would be in a position to communicate their stories of wrongful conviction and have themselves heard, let alone believed.
In a 1992 federal review of wrongful convictions in Canada, Senior Analyst Philip Rosen noted that:
"A final issue of concern to applicants’ counsel is the lack of financial assistance to convicted people who may wish to submit a s. 690 [Criminal Code] application for mercy to the Minister of Justice. In several instances, provincial legal aid plans have refused to assist s. 690...applicants with their legal fees and disbursements. In some cases, counsel have done this work on a pro-bono basis and assumed thousands of dollars in disbursements, while in others, non-governmental organizations have financially supported the applications (http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm)."
If this is the hurdle people wrongfully accused face, it stands to reason that the wrongful convictions that find a public spotlight represent but a tip of a rather horrifying iceberg. Beyond these formidable personal constraints that bar the way to a successful “reversal” (can the damage caused by a wrongful conviction ever truly be reversed?), there must also be at play a certain reluctance on the part of the courts to shed a light on the systemic problems indicated by such travesties. As Mr. Rosen points out, “Wrongful convictions undermine the two prongs of the criminal justice system’s legitimacy. If someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free. As well, public confidence in the system declines when wrongful convictions are identified.”
As strong as the desire for the former may be, professional considerations for the public reputation of the entire administration of law may transform the will to free an innocent person into a rather lackluster affair. Without a rather fervent and widespread will to scrutinize and honestly evaluate the errors in the system and admit their systemic nature, however, wrongful convictions are doomed to perpetuity, bringing the legal system into further disrepute. As Mr. Rosen concedes,
"Because findings of wrongful conviction represent a basic undermining of the integrity of the criminal justice system, the procedures established for the review of such cases are extraordinary in nature and are rarely invoked successfully. For it to be otherwise would be to put in question the criminal justice system’s legitimacy and, by bringing attention to its fallibility, to weaken public confidence in it."
Not surprisingly, then, Mr. Rosen reveals a shockingly low incidence of estimated wrongful convictions:
"There are probably fewer truly wrongful convictions than claimed, but there may still be a surprising number. It has been claimed that in Great Britain, the wrongful conviction rate may be as high as .1% – or one out of every thousand people. Another estimate is that there may be 15 cases of wrongful convictions each year in Great Britain. Academic studies in the United States indicate that between one-half and 1% of persons convicted of serious offences did not commit the crime. It has also been suggested by the Criminal Justice Research Centre that as many as 6,000 persons a year are wrongfully convicted of felonies in the United States. There are no similar estimates of the number of wrongful convictions in Canada. An official with the Department of Justice recently estimated that the Department receives about 30 applications a year for the review of criminal convictions."
Given some of the hurdles Mr. Rosen and I have already highlighted, how can we calculate the frequency of wrongful convictions? Mr. Rosen's reference to the roughly 30 applications the Department of Justice received annually in the years leading up to 1992 can only tell us that, when one takes into account the small percentage of people who have the wherewithal to mount an effective wrongful conviction campaign (including finding a lawyer who believes strongly in the merits of the case); have been sentenced to a long enough sentence for the years- or decades-long pursuit of justice to be deemed an attractive option; and have sufficient evidence to argue a case where the burden of proof is on the defendant to establish his or her innocence, that this number must represent a miniscule fraction of the actual cases of people wrongfully convicted.
In cases where a person is serving ten or less years, even assuming we are speaking of a the relatively small number of people who have the emotional, social and financial wherewithal and the evidentiary requisites to mount a wrongful conviction case, a large number of these people may well serve their entire sentence before a wrongful conviction claim gets anywhere, if it gets off the ground at all.
Anyway, people who have the tools and finances to convincingly advocate for their own innocence are those most likely to avoid wrongful convictions in the first place. A wealthy white businessman has the means and “respectable citizen” appeal to be able to defend himself well against both a conviction if he is at trial and a wrongful conviction in the less-likely event of such an occurrence. Demographically, those most likely to be wrongly convicted are the same people who are least likely to be willing and able to stand up for themselves effectively. A drug-addicted Native woman would have considerable hurdles both in avoiding a presumption of guilt and to successfully fighting a wrongful conviction in the far likelier instance of that occurrence.
Surprisingly, while the Innocence Project, an American organization committed to using DNA testing to reverse wrongful convictions, acknowledges that “These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed ,” they do not even mention the social status reflected in the convictees' “race”, class, gender which leads to far more likely and wider ranging systemic presumptions of guilt. They list instead four raceless, classless, genderless factors contributing to wrongful convictions: eyewitness misidentification testimony, unvalidated or improper forensic science, false confessions and incriminating statements, and snitches (innocenceproject.org). Of course, without recognizing the convictee's social status as the primary driver of convictions based on the presumptions of guilt, we are deprived of a deeper and more accurate understanding of how and why wrongful convictions occur.
Rosen similarly provides a mechanical explanation for wrongful convictions which do not make any mention whatsoever of the role that poverty, colour, ethnicity, nationality, personal background, language, appearance, or gender have to do with these obviously “race”, class and gender-biased miscarriages of justice:
"The causes of wrongful convictions are easy to identify: irregularities and incompetence at the investigatory, pre-trial, trial and appellate stages of the criminal justice system. More particularly, Kaiser identifies the following contributory factors, among others: false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage. Each instance of determined wrongful conviction illustrates a different combination of failures in the criminal justice system that have prevented it from functioning effectively and fairly."
Not once in Mr. Rosen's report are the words “race”, “racism”, “sexism”, “class” or “classism” even found in the federal document.
Anecdotally, a friend told me about a conversation he had had with a Crown lawyer, whose position was that whoever he is prosecuting is probably guilty and, even if not, that person had probably done something in his life that he should have gone to jail for anyway. While this is anecdotal evidence based on one incident that has come to my attention, it confirms to me at least some extension of the presumption of guilt beyond the confines of our case. Further, one of the defence lawyers in our case candidly admitted that he was not used to dealing with innocent people since most of the people he deals with are guilty. Whether his finding of guilt was based entirely on the facts in all those cases or mixed with presumptions of guilt is not clear, though dealing with people deemed guilty by whatever means cannot but lead to an overall presumption of guilt over time.
Thursday, February 4, 2010
letter to the canadian senate
The Senate of Canada
Ottawa, ON
K1A 0A4
January 26th, 2010
Dear Senators,
I wanted to air my feelings about Bill C-6. It has been a popular and contentious issue for what I feel to be quite compelling reasons. I understand that clauses included in the bill have serious potential negative ramifications for Canadian citizens, specifically in the realm of the exercise and protection of our civil liberties.
I understand that one of the powers granted by Bill C-6 is that law enforcement officers will have the right to enter citizens' private property, take whatever they wish, and keep it indefinitely. This can be done without the current requirement of application to the courts or a justice of the peace for a warrant. In other words, agents will not be required to demonstrate reasonable grounds.
In my view, legislation of this nature has no place within a country which in any way refers to itself as a democratic nation. It deeply concerns me that it has even been humoured as anything close to a legitimate document. We have an ample criminal code and warrant application process which has hitherto worked abundantly well. I personally see no need for this new legislation which abridges our constitutional rights.
To me, Bill C-6 takes its place beside Canada's Patriot Act: Bill C-36, -42 and other apparently so-called anti-terror legislation which has a notorious track record for being used against people who are, whether by religion, or colour, or nationality, or ethnicity, or politically considered undesirable by the government (ours or our neighbours to the south).
I appeal to each of you to exercise your better judgement as Canadians, as citizens of this planet, as wise and compassionate beings, to no longer entertain this latest model of in a network of increasingly autocratic legislation. I urge you to do all that is in your power to dismiss Bill C-6. I fear that if you fail to do so our peaceful fellow citizens will be forced to experience its consequences. For a chilling example of how authorities and law enforcement are already acting as if Bill C-6 is on the books, please see: http://www.youtube.com/watch?v=SBCHlTxUqNM
Thank you for you time and attention; I look forward to your replies.
Sincerely,
Che Nolan
Ottawa, ON
K1A 0A4
January 26th, 2010
Dear Senators,
I wanted to air my feelings about Bill C-6. It has been a popular and contentious issue for what I feel to be quite compelling reasons. I understand that clauses included in the bill have serious potential negative ramifications for Canadian citizens, specifically in the realm of the exercise and protection of our civil liberties.
I understand that one of the powers granted by Bill C-6 is that law enforcement officers will have the right to enter citizens' private property, take whatever they wish, and keep it indefinitely. This can be done without the current requirement of application to the courts or a justice of the peace for a warrant. In other words, agents will not be required to demonstrate reasonable grounds.
In my view, legislation of this nature has no place within a country which in any way refers to itself as a democratic nation. It deeply concerns me that it has even been humoured as anything close to a legitimate document. We have an ample criminal code and warrant application process which has hitherto worked abundantly well. I personally see no need for this new legislation which abridges our constitutional rights.
To me, Bill C-6 takes its place beside Canada's Patriot Act: Bill C-36, -42 and other apparently so-called anti-terror legislation which has a notorious track record for being used against people who are, whether by religion, or colour, or nationality, or ethnicity, or politically considered undesirable by the government (ours or our neighbours to the south).
I appeal to each of you to exercise your better judgement as Canadians, as citizens of this planet, as wise and compassionate beings, to no longer entertain this latest model of in a network of increasingly autocratic legislation. I urge you to do all that is in your power to dismiss Bill C-6. I fear that if you fail to do so our peaceful fellow citizens will be forced to experience its consequences. For a chilling example of how authorities and law enforcement are already acting as if Bill C-6 is on the books, please see: http://www.youtube.com/watch?v=SBCHlTxUqNM
Thank you for you time and attention; I look forward to your replies.
Sincerely,
Che Nolan
Saturday, August 1, 2009
response to critical mass media dialogue
i feel that a considerable amount of the hostility and violence toward critical mass stems from the considerable amount of hostility and violence we have inside of us, having been conditioned to believe in the icon of the machine in all its permutations: efficiency, power, supremacy, perfection, war and violence.
as part of the power of this icon, we see cars as having a supreme and unassailable right to dominate what is ultimately public space. we forget that that space has been shaped almost exclusively by corporations without regard to what is in our best interests as a society. since public space has for so long been controlled by a few private interests, our very thoughts become shaped by their interests and we lose the ability to even envision a society that works for the majority. in this case, we see a traffic jam and, so long as it is comprised of cars, it's okay. but substitute cars for bikes (a far less consumptive mode of travel that benefits fewer private interests), and suddenly there's a problem.
where does this "thinking" come from? if we can really take a moment to ponder that question deeply, we may see that we have been conditioned to think in this way by those in whose interest it is that we do. it is no coincidence that more than half of all the major daily newspapers in canada are owned by one corporation; that five people own almost all the media we consume. the effects of being born and raised in programming (it's called that for a reason) are so staggering we can barely comprehend them.
when we can finally separate how we feel from how we have been trained to feel about critical mass, and community use of space, only then can we truly begin to make choices that benefit ourselves and others.
may all beings be peaceful.
as part of the power of this icon, we see cars as having a supreme and unassailable right to dominate what is ultimately public space. we forget that that space has been shaped almost exclusively by corporations without regard to what is in our best interests as a society. since public space has for so long been controlled by a few private interests, our very thoughts become shaped by their interests and we lose the ability to even envision a society that works for the majority. in this case, we see a traffic jam and, so long as it is comprised of cars, it's okay. but substitute cars for bikes (a far less consumptive mode of travel that benefits fewer private interests), and suddenly there's a problem.
where does this "thinking" come from? if we can really take a moment to ponder that question deeply, we may see that we have been conditioned to think in this way by those in whose interest it is that we do. it is no coincidence that more than half of all the major daily newspapers in canada are owned by one corporation; that five people own almost all the media we consume. the effects of being born and raised in programming (it's called that for a reason) are so staggering we can barely comprehend them.
when we can finally separate how we feel from how we have been trained to feel about critical mass, and community use of space, only then can we truly begin to make choices that benefit ourselves and others.
may all beings be peaceful.
Thursday, August 14, 2008
From One Canadian to Another: an open letter to Prime Minister Harper regarding Omar Khadr
Stephen Harper
Office of the Prime Minister
80 Wellington St
Ottawa, ON
K1A 0A2
Dear Mr. Harper,
I am most concerned about your government's treatment of Omar Khadr. I recently read a book, authored by a German survivor of Guantanamo, Murat Kurnaz. In his book, Five Years of My Life: An Innocent Man in Guantanamo, he outlines in sickening clarity the extent of the atrocities occurring there. But of course you do not need to make the trip to the library or the bookstore to know this. I understand your government already knows that Omar is the regular recipient of numerous forms of torture. The fact that your government has not secured his release is an atrocity in itself.
Omar is the only remaining Guantanamo prisoner from a U.S. allied country. The fact that our federal government has not secured his release adds to a shameful legacy; a legacy of purposely exposing Canadians of Arab descent to torture, crimes against humanity and violations of international law -- a legacy Canadians will have to bear before the world. We have already been angered and shamed by the revelations that Canada knowingly turned over Maher Arar to Syria, without granting him due process of law, fully aware that he would likely be tortured. In Omar and Maher's case a pattern presents itself: the Canadian government lied to the Canadians and the world about our knowledge of their tortures. As lawyer Dennis Edney notes, "Time and time again, the Canadian government is on the record as saying they have been assured by U.S. authorities that Omar Khadr was being treated well, knowing this was a lie."(1) That Canada was aware of Omar's torture as early as February 2003, and definitively so in March, 2004, but refused to disclose this information until forced to do so by a Supreme Court decision last June(2), and lied about it in the intervening years is, in my opinion, grounds for criminal charges to be laid against those responsible for perpetuating this ruse.
Omar was just 15-years-old when he was captured in Afghanistan in July 2002. He was therefore legally protected as a child under international law. Nevertheless, Omar has been held and tortured without regard for his youth or the law as it relates to his age. As Andy Worthington notes, "the Canadian government is guilty of double standards in its refusal to act on behalf of Omar Khadr..." whereas "his US military lawyer, Lt. Cmdr. William Kuebler, contrasted the Canadian government's "leadership in international efforts to recognize child soldiers as victims in need of special protection and rehabilitation" with its "virtual silence" in the case of his client"(3).
Of course, since your government has only been in power since January, 2006, the responsibility for these crimes is only partly on your party's shoulders and you would only have come upon this background information once in your position as PM. Yet, in my view, this makes matters worse for your party since you failed to alert the public to federal wrongdoings and failed to take action against those responsible once you became aware of those wrongdoings. Instead, your party is now complicit in perpetuating the torture, the incarceration and the lies.
I believe that some of the people responsible for these torture chambers will be held accountable to the public. I also ardently believe that in but a few years, prisons such as Guantanamo and Abu Ghraib will be universally considered abominations against humanity and against the rule of law. This is already occurring. Even General Colin Powell, certainly no bleeding heart, has said "If it were up to me I would close Guantanamo not tomorrow but this afternoon....Essentially, we have shaken the belief the world had in America's justice system by keeping a place like Guantanamo open and creating things like the military commission."(4)
The Canadian and U.S. Supreme Courts have both ruled that Khadr's treatment is illegal in accordance with international law. I invite you and your government to change its ways and to work on the side of justice and humanity by doing what is in your power to save a young fellow Canadian from torture and to delegitimize the madness that is occurring in places like Guantanamo Bay. Please bring Omar Khadr home immediately.
Thank you for your attention; I very much look forward to your response.
Sincerely,
C.M. Nolan
1 The Toronto Star, July 9th, 2008 (http://www.thestar.com/News/Canada/article/457600)
2 Ibid.
3 The Huffington Post, August 1st, 2008 (http://209.85.141.104/search?q=cache:JP7pGq6MJCIJ:www.huffingtonpost.com/andy-worthington/omar-khadr-canadas-guanta_b_82306.html+government+canada+omar+khadr+torture&hl=en&ct=clnk&cd=1&gl=ca&client=firefox-a)
4 BBC News, June 11th, 2007 (http://news.bbc.co.uk/2/hi/americas/6739745.stm)
Office of the Prime Minister
80 Wellington St
Ottawa, ON
K1A 0A2
Dear Mr. Harper,
I am most concerned about your government's treatment of Omar Khadr. I recently read a book, authored by a German survivor of Guantanamo, Murat Kurnaz. In his book, Five Years of My Life: An Innocent Man in Guantanamo, he outlines in sickening clarity the extent of the atrocities occurring there. But of course you do not need to make the trip to the library or the bookstore to know this. I understand your government already knows that Omar is the regular recipient of numerous forms of torture. The fact that your government has not secured his release is an atrocity in itself.
Omar is the only remaining Guantanamo prisoner from a U.S. allied country. The fact that our federal government has not secured his release adds to a shameful legacy; a legacy of purposely exposing Canadians of Arab descent to torture, crimes against humanity and violations of international law -- a legacy Canadians will have to bear before the world. We have already been angered and shamed by the revelations that Canada knowingly turned over Maher Arar to Syria, without granting him due process of law, fully aware that he would likely be tortured. In Omar and Maher's case a pattern presents itself: the Canadian government lied to the Canadians and the world about our knowledge of their tortures. As lawyer Dennis Edney notes, "Time and time again, the Canadian government is on the record as saying they have been assured by U.S. authorities that Omar Khadr was being treated well, knowing this was a lie."(1) That Canada was aware of Omar's torture as early as February 2003, and definitively so in March, 2004, but refused to disclose this information until forced to do so by a Supreme Court decision last June(2), and lied about it in the intervening years is, in my opinion, grounds for criminal charges to be laid against those responsible for perpetuating this ruse.
Omar was just 15-years-old when he was captured in Afghanistan in July 2002. He was therefore legally protected as a child under international law. Nevertheless, Omar has been held and tortured without regard for his youth or the law as it relates to his age. As Andy Worthington notes, "the Canadian government is guilty of double standards in its refusal to act on behalf of Omar Khadr..." whereas "his US military lawyer, Lt. Cmdr. William Kuebler, contrasted the Canadian government's "leadership in international efforts to recognize child soldiers as victims in need of special protection and rehabilitation" with its "virtual silence" in the case of his client"(3).
Of course, since your government has only been in power since January, 2006, the responsibility for these crimes is only partly on your party's shoulders and you would only have come upon this background information once in your position as PM. Yet, in my view, this makes matters worse for your party since you failed to alert the public to federal wrongdoings and failed to take action against those responsible once you became aware of those wrongdoings. Instead, your party is now complicit in perpetuating the torture, the incarceration and the lies.
I believe that some of the people responsible for these torture chambers will be held accountable to the public. I also ardently believe that in but a few years, prisons such as Guantanamo and Abu Ghraib will be universally considered abominations against humanity and against the rule of law. This is already occurring. Even General Colin Powell, certainly no bleeding heart, has said "If it were up to me I would close Guantanamo not tomorrow but this afternoon....Essentially, we have shaken the belief the world had in America's justice system by keeping a place like Guantanamo open and creating things like the military commission."(4)
The Canadian and U.S. Supreme Courts have both ruled that Khadr's treatment is illegal in accordance with international law. I invite you and your government to change its ways and to work on the side of justice and humanity by doing what is in your power to save a young fellow Canadian from torture and to delegitimize the madness that is occurring in places like Guantanamo Bay. Please bring Omar Khadr home immediately.
Thank you for your attention; I very much look forward to your response.
Sincerely,
C.M. Nolan
1 The Toronto Star, July 9th, 2008 (http://www.thestar.com/News/Canada/article/457600)
2 Ibid.
3 The Huffington Post, August 1st, 2008 (http://209.85.141.104/search?q=cache:JP7pGq6MJCIJ:www.huffingtonpost.com/andy-worthington/omar-khadr-canadas-guanta_b_82306.html+government+canada+omar+khadr+torture&hl=en&ct=clnk&cd=1&gl=ca&client=firefox-a)
4 BBC News, June 11th, 2007 (http://news.bbc.co.uk/2/hi/americas/6739745.stm)
Wednesday, July 2, 2008
Life, Death and Security
A lot of people enjoy being dead. But they are not dead, really. They're just backing away from life. Reach out. Take a chance. Get hurt even. But play as well as you can. Go team, go! Give me an L. Give me an I. Give me a V. Give me an E. L-I-V-E. LIVE! ...Otherwise, you got nothin' to talk about in the locker room. --Maude (from the movie Harold and Maude)
Instances of life are everywhere precious and precarious; most of all when they exist in isolation. Twenty people are more likely to survive than one or two. By closing our doors to the prospect of any form of death in the name of security, we actually deprive ourselves of the prospect of any form of life; the former is inextricably bound to the latter.
In the end, by living in a world of "security" (fear), we live in a shrinking world of rapidly enclosing enemies. When we live in a world of ever-increasing enemies, we cease living altogether and ensconce ourselves in the death we thought we'd locked out, not unlike the cartoon character who thinks he's locking the prisoner in jail only to realize (too late) that he has locked himself in instead.
Instances of life are everywhere precious and precarious; most of all when they exist in isolation. Twenty people are more likely to survive than one or two. By closing our doors to the prospect of any form of death in the name of security, we actually deprive ourselves of the prospect of any form of life; the former is inextricably bound to the latter.
In the end, by living in a world of "security" (fear), we live in a shrinking world of rapidly enclosing enemies. When we live in a world of ever-increasing enemies, we cease living altogether and ensconce ourselves in the death we thought we'd locked out, not unlike the cartoon character who thinks he's locking the prisoner in jail only to realize (too late) that he has locked himself in instead.
Saturday, March 29, 2008
Indigenous Sovereignty and the Courts
What follows is a report I came across on the Internet regarding Dr. Bruce Clark's uncompromising insistence that the courts observe the rule of law when dealing with First Nations sovereignty claims. I included the entire report and added my own work at the bottom. These comments made during judge Friesen's Oral Reasons for Judgement are a serious wake-up call to those who believe the courts actually abide by the rule of law they insist they defend. They also serve as a jumping-off point for self-education about the current status of First Nations sovereignty rights in the eyes of the courts.
"The prisoners were the first of 18 persons who had voluntarily left an armed encampment (commonly referred to as "the Gustafsen Lake standoff") on Sept. 12 1995 after months of occupation of a portion of a private ranch. They were in police custody to face charges of trespass and detainer under Sections 430(4) and 73 of the Criminal Code: the others remained in the encampment. Attempted murder charges were anticipated against those who had exchanged gunfire with the police. Aboriginal land claims were involved. Tension in the small community was high. National news media covered the events. The courtroom was crowded. It was evident that extraordinary security measures had been taken".
"On September 15, 1995, like the fictional Don Quixote, Clark unexpectedly appeared in the 100 Mile House Provincial Court with no legal status or client to seek `justice'. I dismissed him but he would not leave... He had to be arrested and removed for contempt in the face of the court, so that competent, prepared counsel could be heard without interference - In the emotionally charged, crowded courtroom, there was no other option. Order had to be restored so that bail hearings could begin..."
"He admitted he was in contempt, if the Court had jurisdiction to conduct the bail hearing...It had not entered my mind that I was `just a man engaged in a criminal adventure' while I conducted the bail hearings and when I cited Clark for contempt. It did not occur to me to decline jurisdiction."
"Section 730 of the Criminal Code, read together with Sections 9 and 484, provides for a maximum prison term of 5 years..."
"When Clark appeared from custody in Williams Lake on September 18, 1995 on the contempt citation he identified the court list (Ex. 1) and the 33 page brief he had flung (Ex.2)...Exhibit 2 was titled Motion In The Nature Of Habeas Corpus With Quo Warranto In Aid. It was an application for a perogative writ which can be filed only in Supreme Court - an extraordinary remedy which cannot replace a bail hearing in the first instance in Provincial Court. In Clark's opinion, by using the words `In The Nature Of' the Provincial court could hear his motion."
"Clark declined to be represented by counsel. He said all British Columbia lawyers were in a conflict of interest when aboriginal land claims were involved. He declined my invitation to seek assistance from elsewhere, electing to represent himself. He argued the Provincial Court had no jurisdiction to conduct the bail hearings, nor to cite him for contempt.."
"His ignominious behaviour on September 15th and his statements on September 18th gave me pause to be concerned about his mental health. The factors I considered apart from his demeanor included:...His attempt to apply for a perogative writ in Provincial Court at a bail hearing...His belief that all lawyers in BC were in a conflict of interest...His letter in Exhibit 2, written on August 8,1995 that he and his clients were prepared `to forfeit their lives'...The belief, by a lawyer who had earned a doctorate in constitutional law, that the Courts had no authority...His words and actions were inconsistent with conduct expected of officers of the Courts...
"I ordered a psychiatric assessment after discussing the provisions of Section 762.11 of the Criminal Code with Clark. On September 25, Clark was returned a week sooner than expected with the report, appeared before another judge and was released on his undertaking to appear before me on October 18, 1995. I read the opinion that he was not mentally ill. With some misgivings I accepted the report and concluded he was accountable for his conduct. In keeping with his notion that the Courts had no authority over him, Clark did not abide by his undertaking to appear in Court on October 18,1995. Instead he sent a letter to the court clerk requesting that his contempt and assault charges `proceed in absentia'. I rejected his written proposal and ordered his arrest, anywhere in Canada, at the earliest opportunity."
"On November 9, 1995, Clark sent a three page letter to me from the Netherlands, with a copy to the press, writing in part:
`I am constrained...now to seek legal remedies abroad. To this end I will remain a `fugitive for justice' outside of Canada, until there is a prospect that the traditional indigenous people for whom I act will be dealt `according to law' inside Canada'.
"While abroad in the US, Clark petitioned in the Supreme Court of BC to have, inter alia, my warrant for his arrest vacated and to have the contempt hearing transferred to the Supreme Court of British Columbia. His petition (#A96135) was dismissed on May 29, 1996. Clark's appeal (#CA022055) to the BC Court of Appeal was dismissed on July 24, 1996."
"Clark next appeared before me in custody on February 20,1997...He was again given the opportunity to consult and appear with legal counsel. He again declined. He apologized for calling this a "kangaroo court". He continued to object to jurisdiction, which by now can be referred to as the `Bruce Clark thesis' after many many unsuccessful arguments at all levels of Canadian Courts....Clark gave evidence and called a witness concerning his difficulty in entering the courtroom. Police had initially barred him from entering."
"...Clark's attack was not just against me or the provincial court, but rather against the entire institution of the Canadian judiciary. After hearing submissions, I concluded I ought to conduct the hearing..."
"Lord Denning M.R. in Morris v. Crown Office [1970] 1 A11 E.R. 1079 @ 1081 put it this way:
`....the course of justice must not be deflected or interfered with. Those who strike at it, strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power - a power instantly to imprison a person without a trial - but it is a necessary power. So necessary that until recently the judges exercised it without any appeal.'
"Clark's jurisdictional arguments, even if they were relevant in this case, cannot excuse his conduct. However, because he now includes me along with all judges of refusing to listen to him, and to have rejected his arguments out of hand, I will refer to them briefly...He has earned a doctorate in constitutional law. He has published one or more books and many articles. He is acclaimed by some academics..."
"Clark refers to an Order in Council by Queen Anne dated 9 July 1704 to establish an independent tribunal to deal with land claim disputes between settlers and indigenous people in North America. Queen Anne agreed with the Mohegan Indians that the white man's Connecticut court could not be unbiased...Our constitution is like a living tree - some new buds, some young branches, some old, supported by a healthy trunk with roots dating back to 1066. Occasionally the tree is pruned. However, the 1704 O.I.C. never got beyond the bud stage. It could have been nurtured and have become one of the healthy branches. The bud was allowed to die. Today, there is evidence of the bud, but it has no significance in the life of the tree."
"Clark also relies on the Royal Proclamation of 1763 which recognized certain property rights of indigenous people. Persons who ignore those rights are guilty of `misprision of treason and fraud.' All judges in Canada are guilty of this crime when they refuse to address the `law', meaning his thesis."
"If that isn't enough, judges who ignore the law (i.e. his thesis) are guilty of `complicity of genocide', in violation of article 3(e) of the 1948 Genocide Convention - passed in the aftermath of the Auschwitz atrocities. He presumes that it is deliberate government policy, supported by a conspiracy with Canadian judges and lawyers, to exterminate indigenous people. There is no doubt that newcomers and settlers have often treated natives unfairly. But the idea that there presently exists a conspiracy throughout our Canadian democratic institutions to exterminate natives, is a product of a disillusioned mind."
"Clark deliberately ignores rulings that specifically deal with and reject his argument (Clark says all judges who reject his argument reject the law)....He attempts to have judges charged and arrested with crimes in the nature of treason and complicity in the genocide of the aboriginal people...
"Clark made his argument, unsuccessfully, in several provinces in Canada. The case of R v. Williams [1995] 2 C.N.L.R. 229 is a noteworthy case in BC. Clark made his argument in the Provincial Court, Supreme Court and the Court of Appeal. The Court of Appeal agreed with the following reasons given in one of the lower court decisions:
"After that [the establishment of the separate colony of British Columbia in 1858] aboriginal customs, to the extent they could be described as laws before the creation of the colony, became customs which depended upon the willingness of the community to live and abide by them, but they ceased to have any force, as laws, within the colony....Then at the time of union with Canada in 1871, all legislative jurisdiction was divided between Canada and the province, and there was no room for aboriginal jurisdiction or sovereignty which would be recognized by the law or the courts. Section 35(1) of the Constitution Act, 1982, cannot revive or retrench any self-government jurisdiction of the plaintiffs since it is confined to aboriginal rights which existed in 1982. As I have made clear, no aboriginal rights of government existed after 1871."
"The Supreme Court of Canada, on July 6, 1995, refused leave to appeal the Williams (supra) judgement. That is now a binding decision throughout Canada. Despite these rulings Clark continues to clothe Queen Anne's defunct tribunal with exclusive jurisdiction. The O.I.C. of 1704 may be of some interest to historians, but it has absolutely no legal or constitutional significance in Canada today...In practical terms, Clark can no longer argue his thesis in lower courts until the Supreme Court of Canada reverses itself, or the Constitution is amended."
"Clark deliberately challenged the authority of this Court in a most contemptuous, discourteous and angry manner...In this way he attempted to intimidate the court to accept his legal argument - an argument which has been rejected on some 40 consecutive attempts. Despite time spent in custody and having had the last 16 months to think about this matter while at large, Clark shows little remorse. He portrays himself as a prisoner-of-war as a `Solzhenitsyn' condemned to a psychiatric ward for speaking the truth. He continues to refuse to accept rulings of our courts."
"Surprisingly, and regrettably, the Law Society of Upper Canada seemed to condone much of Clark's hectoring as "zealous" advocacy - necessary because judges did not give him a proper audience, or consider his argument. That is a false premise."
"As already mentioned, the Supreme Court of Canada refused to hear the Williams (supra) appeal. Clark then had another setback on September 12, 1995 in the Supreme Court of Canada. He refused to accept these rulings. After September 15, 1995, Clark continued his campaign to argue his rejected thesis in the courts.In R v. Ignace et al (Prov. Ct. BC 100 Mile #5786 Oct. 6/95) in another matter (Clark again made his complete submission in his application to appear as counsel in the Gustafsen Lake case) Barnett J., ended his reasons by saying:
`...First, Mr. Clark, contrary to his statements, is not a friend of any court in British Columbia, or the Supreme Court of Canada. His writings and remarks are beyond being merely scandalous and outrageous. The Chief Justice of Canada was absolutely correct when he told Mr. Clark on September 12, [1995] that:
`I must say, Mr. Clark, that in my 26 years as a judge I have never heard anything so preposterous...To call the judges of the Supreme Court of Canada and the 975 High Court judges of Canada accomplices to genocide is something preposterous. I do not accept that and think you are a disgrace to the bar....'
`Second....the various documents filed by Mr. Clark in this court, the Supreme Court of British Columbia, and the Court of Appeal are, in large part, an utter farrago of nonsense. Mr. Clark is not possessed of any legal skills which might possibly assist Mr. Ignace or Mr. Pitawanakwat today or later. Mr.Ignace and Mr. Pitawanakwat I cannot permit Mr. Clark to appear as your advocate, and I shall therefore hear no more from him.'
"After evading the warrant for his arrest for 16 months, he continues his attack on the courts in a most contemptuous way. The apology for having spoken a few ill-chosen words does not purge his profound, intractable continuing contempt. He clearly intends to continue his campaign to scandalize the courts as soon as he is released."
"An aggravating circumstance is that he is or was a senior lawyer. He is an officer of the courts where he is authorized to practice law. He must respect our Constitution and the institutions of democracy, not attempt to destroy them...he is very adept at attracting national and international media attention. He is able to get his messages out, which by and large is a discredit to the legal profession."
"The penalty must serve to deter him...a large financial penalty is not appropriate, even if he were able to pay one..a suspended sentence with conditions is futile because he does not accept the authority of the courts. ...a maximum of 5 years imprisonment may be imposed. That is reserved for a repeat offender who has not been deterred by previous shorter prison sentences. A moderate prison term is the only proper sentence."
"Unfortunately, he may now become a martyr in the eyes of his followers... In my view, his intransigent contempt for all Canadian courts, ... jeopardizes the legitimate aspirations and interests of the aboriginal cause. This is especially so while some of the people he claimed to represent on September 15, 1995 are still before the courts....taking into account the brief time he has spent in custody, in September, 1995 and February, 1997, I impose a prison sentence of three months."
Nick Friesen
Provincial Court of BC
>>>
The following information is taken from an "Affidavit in Support of Release Pending Appeal" by Margaret Clark. The release was denied. The appeal is set down for March 11, 1997.
"For the past twenty years I have been working closely and, except for brief teaching contracts while Bruce returned to earn his M.A. in constitutional history and his Ph. D. in jurisprudence, on a full time basis with my husband as his legal assistant, specifically in relation to the jurisdiction issue with which the appeal herein is concerned...and as such have personal knowledge of the facts and matters deposed to...
"I do have personal knowledge that a hearing took place on February 20, 1997 before his Honour Judge Nick Friesen, and one of the issues on appeal will be whether a trial actually took place. On February 20, 1997, the matter began and was conducted as a show cause hearing as to whether the Judge citing the Appellant for contempt would accept an apology. When the said Judge determined that he would not accept an apology, he declined to grant an adjournment for the purpose of referring the matter to trial to another judge. Instead, and without arraigning the Appellant and without asking him whether he pleaded guilty or not guilty, the show cause hearing judge registered a conviction. For this reason, in completing this affidavit I have a measure of difficulty stating when `the trial' took place, although a `hearing' as described did occur on February 20, 1997 and a conviction was then registered also on February 20, 1997.
"Over the past twenty years the appellant has specialized in the law relating to native sovereignty and during that time we have resided together in a succession of Indian reserves as well as non-native communities and travelled to different jurisdictions in Canada, the United States and Europe with a view to having the law relative to native sovereignty addressed.
"I have personal knowledge that rather than appear on October 18, 1995 to set a trial date in reference to the present contempt charge, the Appellant wrote the court and asked that the matter proceed in absentia with argument being restricted to the question of jurisdictional law: is the assumption of jurisdiction over natives and their agents upon arguably unpurchased territory prima facie ultra vires, misprision of treason and fraud, and complicity in genocide. On October 18, 1995, His Honour Judge Friesen declined to proceed in absentia and instead issued a warrant. As appears from the correspondence filed as exhibit 6 at the hearing before Judge Friesen on February 21, 1997, a correspondence occurred pursuant to which the Appellant confirmed his steadfast intention to appear for trial at the convenience of the court and the crown. On February 18, 1997, as he had advised, the Appellant returned to British Columbia for the purpose of arranging for the said trial, and was arrested as he left the airplane.
"I am advised and verily do believe that for the following reasons there is a likelihood of success on appeal and, in any event of success on appeal,it is in the public interest that the Appellant be out on bail pending the appeal.
The `Native Sovereignty' legal position is that since the native courts were here first, they have original jurisdiction whereas, in contrast, since the newcomers' courts were here second, they have derivative jurisdiction. The mode of derivation is thought to be territorial purchase. By Order in Council (Great Britain) of 9 March, 1704, prima facie it is settled international and constitutional law that the issue of purchase, upon which jurisdiction turns, cannot legally be resolved unilaterally by either the natives' courts or the newcomers' courts. Rather, jurisdiction over such native versus newcomer disputes vests in an independent and impartial third-party court system established pursuant to the said order in council for this specific constitutional purpose. There is no evidence known to the appellant to indicate that the 1704 instrument has ever been repealed.
The learned trial judge nevertheless held that the effect of the 1704 instrument had been nullified in virtue of the doctrine of obsolescence by desuetude. The Supreme Court of Canada has ruled on two occasions (per Mr. Justice Strong in St. Catherines in 1887 as confirmed in the Privy Council in 1888, and in Calder per Mr. Justice Hall in 1973) that the doctrine of obsolescence by desuetude has no application to constitutionally recognized aboriginal rights sheltering under Imperial orders in council.
On September 12, 1995, in the matter of Delgamuukw v A.G. B.C., the Supreme Court of Canada refused to address the native sovereignty jurisdictional issue. The appellant herein had attempted on behalf of one of the several Delgamuukw appellants to raise the same jurisdictional objection as that for the raising of which the appellant herein was sentenced by the court below to three months imprisonment.
On September 12, 1995 the Supreme Court of Canada held that, since the court jurisdiction issue had not been addressed by the courts below in the Delgamuukw case, it preferred not to address that issue itself in the absence of lower court commentary directed specifically to that issue. Even so, on February 21, 1997, the provincial court judge in the present appeal held that the court jurisdiction had been resolved by the Williams case in the BC Court of Appeal.
In fact, the Williams case simply applied the Delgamuukw case as if it had addressed and resolved the court jurisdiction issue. The Williams case did not itself address the constitutive 1704 Order in Council. On September 12, 1995, when hearing from the appellant in the Delgamuukw case, the Supreme Court of Canada suggested that the appellant return to British Columbia and raise the court jurisdiction issue at the trial level.
Accordingly, on September 15, 1995 the appellant attempted to do so before Judge Friesen. The appellant was was deeply afraid that if Judge Friesen were to stonewall the issue, a massacre of the native people inside the besieged encampment at Gustafsen Lake literally was going to occur. In fact, it recently has become public knowledge in the context of the Gustafsen Lake trial in the Supreme Court of British Columbia in Surrey, BC that the police had resolved to enter the camp in full force on the very night of the day that the defenders did surrender. The appellants fears were well grounded.
Unfortunately, as it transpired, the police had spoken ex camera to Judge Friesen about the Appellant attempting to raise the issue of law. It recently has become public knowledge in the context of the Gustafsen Lake trial in the Supreme Court of BC in Surrey BC, that the police were at the time engaged in a `smear and misinformation campaign' to undermine the jurisdiction issue by discrediting the appellant, that issue's messenger. The appellant was well aware of the police lies and how thoroughly the public, the media, and possibly locally officials were being taken in by them. Even though Judge Friesen now (on February 20,1997) states that he told the police ex camera to let the appellant into the courtroom, where he would deal with the appellant personally, the police in fact assaulted the appellant in attempting to prevent the appellant from entering the courtroom on September 15, 1995.
After the Appellant gained entry and while he was attempting to address the court, the police were pushing him from behind into the council table. The appellant became agitated by the continuing police assaults and attempted to file his native clients' motion objecting to jurisdiction by saying `Filed' and flinging it onto the desk surface of the court clerk, across which it skidded into contact with the clerk's elbow.
(The widely broadcast media reports that the appellant `threw a sheaf of papers at the judge' is complete and groundless `smear and misinformation' as was confirmed by the trial judge in court on February 20, 1997.) At the same time, the appellant referred to the proceedings to which he was being subjected as a `kangaroo court', and asked the judge to order the police to cease assaulting the appellant at the council table. There was a commotion. The trial judge did not hear all of what the appellant said at this juncture. Nor did the appellant hear the the presiding judge say `Contempt of Court'. The next thing was the inundation of the appellant by several police at once which he briefly resisted. The appellant subsequently offered to apologize to the court, and eventually pleaded guilty to resisting arrest, for which he was sentenced to one day in jail. The judge refused to accept the apology unless the appellant were to accept the court's jurisdiction over Natives.
The appellant wrote and stated that he could accept the court's jurisdiction over himself, as a non-Native, but that he was not at liberty to waive his Native clients' right to object to jurisdiction. One aspect of the jurisdiction issue is that the premature assumption of jurisdiction over natives and their agents prima facie constitutes misprision of treason and fraud within the meaning of the Royal Proclamation of 1763 and, arguably, complicity in genocide by the imposition of serious mental harm within the meaning of articles 2(b) and 3(e) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.
The trial judge sent the appellant, in custody, to a psychiatric hospital for the criminally insane for a mental examination as a delusional paranoid for raising and persisting in his clients' point of law. The psychiatrist rejected the judge's diagnosis, and reported back that the appellant was logical and in sound mental health. On February 21, 1997, the judge rejected the psychiatrist's report as being in error and persisted in describing the appellant as delusional.
In response to the attempt by several of the judiciary to have the appellant disbarred for raising and persisting in his clients' point of law, the Law Society of Upper Canada held that (a) the genocide was a fact,and (b) that the judges should address the law rather than preempt it from consideration. The trial judge rejected the Law Society's conclusion, and opined that the appellant should have been disbarred for persisting in his native clients' point of law.
As an alternative to incarceration in a mental hospital or disbarment, the trial judge, instead of accepting the appellant's apology, held that the appellant should receive three months in jail for not relinquishing the natives' right to raise the jurisdiction issue. Judge Friesen held specifically, expressly, and explicitly that his intent was to prevent the appellant from persisting with the issue any longer. But the appellant is obliged to persist.
On January 17, 1997, the Supreme Court of Canada granted the Mi'gmaq nation the right to intervene in the `Reference re the legality of Quebec Secession'. That native nation is represented by the appellant. The issue in the Supreme Court of Canada is absolutely identical to the issue relative to which the trial judge assigned his reason for giving the appellant a three month sentence for raising. The Supreme Court of Canada has determined that the appellant should present and defend the native sovereignty legal position going to court jurisdiction, including, specifically, the collateral allegations of misprisions of treason and fraud and complicity in genocide.
The trial judge has now put the appellant in jail specifically to prevent that issue from being persisted in just when the time pressure is upon the appellant to prepare and file his native clients' brief in the Supreme Court of Canada. At the same time, now, the appellant is scheduled to present the same issue in the BC Court of Appeal (Pascal), in the Quebec Superior Court, in the New Brunswick Provincial Court, in the Ontario Court (General Division), in the Ontario court of Appeal, and in the Maine District Court. Furthermore, he is presently applying on behalf of his native clients to the Supreme Court of the United States in the matter of New Jersey vs. New York in the jurisdictional dispute over Ellis Island.
I believe that the public interest and the interest of the native clients is the same: to allow the appellant the freedom adequately to inform all of these courts as to the existing international and constitutional law relative to the natives' interest.
"I am advised and verily do believe that the only Canadian case ever to have addressed the court jurisdiction issue in light of the constitutive constitutional legislation directly speaking to that issue is this contempt case in the Provincial Court of British Columbia. The appellant does not object to Judge Friesen having dealt with the 1704 legislation. This represents the breakthrough for which the appellant's native clients' have been searching for twenty-five years. Finally, the issue clearly has been joined. Now it remains to complete the resolution, in the public interest and in the native interest, neither of which is assisted by the appellant's present incarceration.
"I am advised and verily do believe that in the midst of all these events, there is a risk that the crucial point will be overlooked: Judge Friesen pretended to rebut the appellant's legal argument, without ever allowing the appellant to make the argument.
"That is, the Judge not only declined to adjourn the matter for the purpose of allowing the appellant to plead and adduce the defense evidence, but, also, he did not grant the appellant an opportunity to argue the legal position. He did not, for example, permit the appellant to show him the legislative instrument that establishes the continuity of the 1704 order in council from its inception through to its confirmation in the Privy Council in 1773, and thence to its reconfirmation in North American constitutional law subsequent to the American Constitution, 1789 and the Canadian Constitution Act, 1982.
"Instead of allowing the appellant to make that demonstration, Judge Friesen simply assumed an absence of continuity between 1704 and the present time. The penultimate legal point is that even if there were a doctrine of obsolescence by desuetude (which there is not), the 1704 order in council in any event repeatedly has been confirmed. Legislatively, there has been no `290 year' period of desuetude as assumed by Judge Friesen in consequence of his denial of the appellant's right fully to argue the law before the court.
"All there has been is a period, from the latter quarter of the 19th century to the present time, during which Canada, including British Columbia, fell into the habit unconstitutionally of employing federal and provincial law criminally to crush legitimate aboriginal rights. This crime by Canada is not evidence of any change in the law. It is the proof of the breach of the law. This crime is not and could not possibly be self-legitimizing, as Judge Friesen has assumed for if it were, the rule of law would be a chimera."
February 24, 1997
Margaret Clark
(from: http://209.85.173.104/search?q=cache:OnnesXVAfFMJ:sisis.nativeweb.org/clark/contempt.html+%22bruce+clark%22+removed+from+bar&hl=en&ct=clnk&cd=1&gl=ca&client=firefox-a)
Judge Friesen's Oral Reasons for Judgement are interesting for a number of reasons. One, the judge did not properly cite the Constitution Act. He says: "Section 35(1) of the Constitution Act, 1982, cannot revive or retrench any self-government jurisdiction of the plaintiffs since it is confined to aboriginal rights which existed in 1982. As I have made clear, no aboriginal rights of government existed after 1871." However, Section 35(1) of the Constitution Act actually reads in precisely and clearly opposite terms: "35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." I'm not sure how he perverted the Constitution Act so far as to completely invert it, but, clearly he did. Again, in opposition to the judges comments, particularly when he refuses to acknowledge the Royal Proclomation, the Constitution Act further bolsters Clark's argument when it states in section 25:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
Two, Friesen's comments address the issue at the innermost heart of native sovereigntism: the jurisdiction of the courts, or lack thereof, over First Nations and grants all observers the rare opportunity to hear the court's justifications for this claimed jurisdiction. It lays bare the jurisprudence which defends the de facto law of the colonizers by reason of physical domination; the principle that makes right. I see no other way to read the lines Friesen cited from R. v. Williams [1995]:
"After that [the establishment of the separate colony of British Columbia in 1858] aboriginal customs, to the extent they could be described as laws before the creation of the colony, became customs which depended upon the willingness of the community to live and abide by them, but they ceased to have any force, as laws, within the colony....Then at the time of union with Canada in 1871, all legislative jurisdiction was divided between Canada and the province, and there was no room for aboriginal jurisdiction or sovereignty which would be recognized by the law or the courts. Section 35(1) of the Constitution Act, 1982, cannot revive or retrench any self-government jurisdiction of the plaintiffs since it is confined to aboriginal rights which existed in 1982. As I have made clear, no aboriginal rights of government existed after 1871."
While Friesen may hold this opinion, it is unsupported by history, numerous legal documents including the Proclamation Act and the Constitution Act, and a number of court cases. What Friesen refers to condescendingly as "Clark's thesis" is actually a legal assertion with considerable corroboration through these sources. The fact that Clark's argument was rejected by the courts "on some 40 consecutive attempts" does little to discredit the argument, since the accused rarely admit guilt, especially when the stakes are high. Acknowledging Clark's argument would open the door to a more honest recognition of First Nations' sovereignty, including land claims, which would not only nullify the authority of the courts over the vast majority the country, but seriously jeopardize capitalism in Canada, which can only survive via barbaric exploitation of people and theft of communal resources for the benefit of an extreme few at the expense of the overwhelming majority.
The mere fact that one culture invaded, massacred, dominated and controlled another does not automatically render the recipients of these atrocities devoid of rights. To suggest otherwise indicates the most vulgar, base and uncivilized approach possible to life, culture and our fellow humans. I often liken this philosophy of the bully's rule to a scenario we can easily imagine occurring: you're walking down the street, just enjoying the day when, all of a sudden, someone overtakes you and tries to steal your money. You try and fight, but the attacker is too strong; you quickly succumb to a severe beating and a robbery. You manage to contact the police. The police inform you that there is nothing they can do; you see, if the person was strong enough to defeat you, then they have a legal right to do what they want to you and your possessions. In short, they own you.
Of course, such a scenario is totally absurd to us, because we have come to expect protection and assistance from society from the whims of force. We understand that people cannot just take things without facing consequences simply because they are able to do so. If they could, there would be nothing we could truly call civilization whatsoever and we would be living in chaos, vulnerable to the strongest and cruelest forces. Yet, this is the scenario Friesen adopts on a much larger and much more barbaric scale when he affirms that "no aboriginal rights of government existed after 1871" due simply to the treacherous and genocidal tyranny of Europeans over First Peoples. The courts do not allow the principle of might makes right so long as it does not interfere with their own might. To accept Dr. Clark's argument would do just that. If another nation invaded Canada by force, I suspect there would be much hoopla about the immorality of the use of force to unseat the government. No one could be expected to recognize the new regime simply because they were able to accomplish their ends by brute force, yet this is precisely what the judiciary asks of First Peoples.
Interestingly, the Supreme Court of Canada refused to argue the merits of the case, making the decision of a lower court de facto "a binding decision throughout Canada". And with good reason. The fact that the courts have been complicit in the carrying out of genocide against First Peoples is undeniable.
One of the factors that states led judge (justice?) Nick Friesen to inquire into Dr. Clark's sanity is "The belief, by a lawyer who had earned a doctorate in constitutional law, that the Courts had no authority". Clearly the judge interpreted this fact in less charitable terms than he could have. He could just as easily concluded that, given Dr. Clark's level of education and expertise in constitutional law, his belief carries substantial weight. Yet such a conclusion would undermine the very bench upon which he sits, just as it would to acknowledge the basic truth in Dr. Clark's assertion that "all British Columbia lawyers were in a conflict of interest when aboriginal land claims were involved." It is easier to call a lucid person insane when their truths come home to roost. While Friesen says that "[h]is words and actions were inconsistent with conduct expected of officers of the Courts," for this very reason, his actions may well be quite consistent with conduct expected of honest and decent citizens to speak the truth, even when it is unpopular and may cost them personally.
Margaret Clark's statements in her affidavit demonstrate the means the courts will use to avoid the issue of their jurisdiction over native people in specific, and the issue of citizens dissenting with the authority of the courts in general:
"In response to the attempt by several of the judiciary to have the appellant disbarred for raising and persisting in his clients' point of law, the Law Society of Upper Canada held that (a) the genocide was a fact, and (b) that the judges should address the law rather than preempt it from consideration. The trial judge rejected the Law Society's conclusion, and opined that the appellant should have been disbarred for persisting in his native clients' point of law.
As an alternative to incarceration in a mental hospital or disbarment, the trial judge, instead of accepting the appellant's apology, held that the appellant should receive three months in jail for not relinquishing the natives' right to raise the jurisdiction issue. Judge Friesen held specifically, expressly, and explicitly that his intent was to prevent the appellant from persisting with the issue any longer. But the appellant is obliged to persist."
In other words, the courts resort to the rule of force rather than the rule of law when they find the former more expedient to their ends.
So rarely do people in authority hear such simple and honest truths that Friesen notes: "in my 26 years as a judge I have never heard anything so preposterous...To call the judges of the Supreme Court of Canada and the 975 High Court judges of Canada accomplices to genocide is something preposterous." Such people are so alienated from other perspectives on their actions that to hear them sounds so outlandish that they may even apparently doubt the sanity of the messenger, and, even when found of sound and solid mind by a professional in the field, persist in opining as to the messenger's delusional nature.
The method of the judge to not only charge, but "try"--if you could call it that, and sentence Dr. Clark is consistent with my experiences during the Elaho mass trial and the experiences of others during the Clayoquot mass trials, amongst others, where the very judge who made the order subsequently tried us and sentenced us. The fact that the courts do not bar judges from being judge, jury and executioner speaks volumes to their actual interest in the blindness of justice. Just like CAFTA, NAFTA, GATTS, the IMF, the World Bank and other such institutions and regulators of the apparently "free" market, the courts have their own methods of regulating justice beyond their jingoistic rhetoric of the rule of law. Just as regulated markets are the opposite of free, regulated courts ar the opposite of justice.
That these judges so uniformly avoid discussing and acknowledging the rights of First Peoples demonstrates the breadth of institutionalized racism in the courts. Denying native people their rights to self determination, which requires self government and the recognition of their land rights, is at least as disgraceful as the earlier stance by courts to deny rights to women, blacks, Japanese, Chinese, Italians, Germans and many other groups who have been subjugated with the full participation of the courts.
As Margaret Clark so eloquently puts it in the last paragraph of her affidavit, the legal history fails to support Friesen's delusional thoughts regarding First Nations sovereignty.
"All there has been is a period, from the latter quarter of the 19th century to the present time, during which Canada, including British Columbia, fell into the habit unconstitutionally of employing federal and provincial law criminally to crush legitimate aboriginal rights. This crime by Canada is not evidence of any change in the law. It is the proof of the breach of the law. This crime is not and could not possibly be self-legitimizing, as Judge Friesen has assumed for if it were, the rule of law would be a chimera."
_____________________
"The prisoners were the first of 18 persons who had voluntarily left an armed encampment (commonly referred to as "the Gustafsen Lake standoff") on Sept. 12 1995 after months of occupation of a portion of a private ranch. They were in police custody to face charges of trespass and detainer under Sections 430(4) and 73 of the Criminal Code: the others remained in the encampment. Attempted murder charges were anticipated against those who had exchanged gunfire with the police. Aboriginal land claims were involved. Tension in the small community was high. National news media covered the events. The courtroom was crowded. It was evident that extraordinary security measures had been taken".
"On September 15, 1995, like the fictional Don Quixote, Clark unexpectedly appeared in the 100 Mile House Provincial Court with no legal status or client to seek `justice'. I dismissed him but he would not leave... He had to be arrested and removed for contempt in the face of the court, so that competent, prepared counsel could be heard without interference - In the emotionally charged, crowded courtroom, there was no other option. Order had to be restored so that bail hearings could begin..."
"He admitted he was in contempt, if the Court had jurisdiction to conduct the bail hearing...It had not entered my mind that I was `just a man engaged in a criminal adventure' while I conducted the bail hearings and when I cited Clark for contempt. It did not occur to me to decline jurisdiction."
"Section 730 of the Criminal Code, read together with Sections 9 and 484, provides for a maximum prison term of 5 years..."
"When Clark appeared from custody in Williams Lake on September 18, 1995 on the contempt citation he identified the court list (Ex. 1) and the 33 page brief he had flung (Ex.2)...Exhibit 2 was titled Motion In The Nature Of Habeas Corpus With Quo Warranto In Aid. It was an application for a perogative writ which can be filed only in Supreme Court - an extraordinary remedy which cannot replace a bail hearing in the first instance in Provincial Court. In Clark's opinion, by using the words `In The Nature Of' the Provincial court could hear his motion."
"Clark declined to be represented by counsel. He said all British Columbia lawyers were in a conflict of interest when aboriginal land claims were involved. He declined my invitation to seek assistance from elsewhere, electing to represent himself. He argued the Provincial Court had no jurisdiction to conduct the bail hearings, nor to cite him for contempt.."
"His ignominious behaviour on September 15th and his statements on September 18th gave me pause to be concerned about his mental health. The factors I considered apart from his demeanor included:...His attempt to apply for a perogative writ in Provincial Court at a bail hearing...His belief that all lawyers in BC were in a conflict of interest...His letter in Exhibit 2, written on August 8,1995 that he and his clients were prepared `to forfeit their lives'...The belief, by a lawyer who had earned a doctorate in constitutional law, that the Courts had no authority...His words and actions were inconsistent with conduct expected of officers of the Courts...
"I ordered a psychiatric assessment after discussing the provisions of Section 762.11 of the Criminal Code with Clark. On September 25, Clark was returned a week sooner than expected with the report, appeared before another judge and was released on his undertaking to appear before me on October 18, 1995. I read the opinion that he was not mentally ill. With some misgivings I accepted the report and concluded he was accountable for his conduct. In keeping with his notion that the Courts had no authority over him, Clark did not abide by his undertaking to appear in Court on October 18,1995. Instead he sent a letter to the court clerk requesting that his contempt and assault charges `proceed in absentia'. I rejected his written proposal and ordered his arrest, anywhere in Canada, at the earliest opportunity."
"On November 9, 1995, Clark sent a three page letter to me from the Netherlands, with a copy to the press, writing in part:
`I am constrained...now to seek legal remedies abroad. To this end I will remain a `fugitive for justice' outside of Canada, until there is a prospect that the traditional indigenous people for whom I act will be dealt `according to law' inside Canada'.
"While abroad in the US, Clark petitioned in the Supreme Court of BC to have, inter alia, my warrant for his arrest vacated and to have the contempt hearing transferred to the Supreme Court of British Columbia. His petition (#A96135) was dismissed on May 29, 1996. Clark's appeal (#CA022055) to the BC Court of Appeal was dismissed on July 24, 1996."
"Clark next appeared before me in custody on February 20,1997...He was again given the opportunity to consult and appear with legal counsel. He again declined. He apologized for calling this a "kangaroo court". He continued to object to jurisdiction, which by now can be referred to as the `Bruce Clark thesis' after many many unsuccessful arguments at all levels of Canadian Courts....Clark gave evidence and called a witness concerning his difficulty in entering the courtroom. Police had initially barred him from entering."
"...Clark's attack was not just against me or the provincial court, but rather against the entire institution of the Canadian judiciary. After hearing submissions, I concluded I ought to conduct the hearing..."
"Lord Denning M.R. in Morris v. Crown Office [1970] 1 A11 E.R. 1079 @ 1081 put it this way:
`....the course of justice must not be deflected or interfered with. Those who strike at it, strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power - a power instantly to imprison a person without a trial - but it is a necessary power. So necessary that until recently the judges exercised it without any appeal.'
"Clark's jurisdictional arguments, even if they were relevant in this case, cannot excuse his conduct. However, because he now includes me along with all judges of refusing to listen to him, and to have rejected his arguments out of hand, I will refer to them briefly...He has earned a doctorate in constitutional law. He has published one or more books and many articles. He is acclaimed by some academics..."
"Clark refers to an Order in Council by Queen Anne dated 9 July 1704 to establish an independent tribunal to deal with land claim disputes between settlers and indigenous people in North America. Queen Anne agreed with the Mohegan Indians that the white man's Connecticut court could not be unbiased...Our constitution is like a living tree - some new buds, some young branches, some old, supported by a healthy trunk with roots dating back to 1066. Occasionally the tree is pruned. However, the 1704 O.I.C. never got beyond the bud stage. It could have been nurtured and have become one of the healthy branches. The bud was allowed to die. Today, there is evidence of the bud, but it has no significance in the life of the tree."
"Clark also relies on the Royal Proclamation of 1763 which recognized certain property rights of indigenous people. Persons who ignore those rights are guilty of `misprision of treason and fraud.' All judges in Canada are guilty of this crime when they refuse to address the `law', meaning his thesis."
"If that isn't enough, judges who ignore the law (i.e. his thesis) are guilty of `complicity of genocide', in violation of article 3(e) of the 1948 Genocide Convention - passed in the aftermath of the Auschwitz atrocities. He presumes that it is deliberate government policy, supported by a conspiracy with Canadian judges and lawyers, to exterminate indigenous people. There is no doubt that newcomers and settlers have often treated natives unfairly. But the idea that there presently exists a conspiracy throughout our Canadian democratic institutions to exterminate natives, is a product of a disillusioned mind."
"Clark deliberately ignores rulings that specifically deal with and reject his argument (Clark says all judges who reject his argument reject the law)....He attempts to have judges charged and arrested with crimes in the nature of treason and complicity in the genocide of the aboriginal people...
"Clark made his argument, unsuccessfully, in several provinces in Canada. The case of R v. Williams [1995] 2 C.N.L.R. 229 is a noteworthy case in BC. Clark made his argument in the Provincial Court, Supreme Court and the Court of Appeal. The Court of Appeal agreed with the following reasons given in one of the lower court decisions:
"After that [the establishment of the separate colony of British Columbia in 1858] aboriginal customs, to the extent they could be described as laws before the creation of the colony, became customs which depended upon the willingness of the community to live and abide by them, but they ceased to have any force, as laws, within the colony....Then at the time of union with Canada in 1871, all legislative jurisdiction was divided between Canada and the province, and there was no room for aboriginal jurisdiction or sovereignty which would be recognized by the law or the courts. Section 35(1) of the Constitution Act, 1982, cannot revive or retrench any self-government jurisdiction of the plaintiffs since it is confined to aboriginal rights which existed in 1982. As I have made clear, no aboriginal rights of government existed after 1871."
"The Supreme Court of Canada, on July 6, 1995, refused leave to appeal the Williams (supra) judgement. That is now a binding decision throughout Canada. Despite these rulings Clark continues to clothe Queen Anne's defunct tribunal with exclusive jurisdiction. The O.I.C. of 1704 may be of some interest to historians, but it has absolutely no legal or constitutional significance in Canada today...In practical terms, Clark can no longer argue his thesis in lower courts until the Supreme Court of Canada reverses itself, or the Constitution is amended."
"Clark deliberately challenged the authority of this Court in a most contemptuous, discourteous and angry manner...In this way he attempted to intimidate the court to accept his legal argument - an argument which has been rejected on some 40 consecutive attempts. Despite time spent in custody and having had the last 16 months to think about this matter while at large, Clark shows little remorse. He portrays himself as a prisoner-of-war as a `Solzhenitsyn' condemned to a psychiatric ward for speaking the truth. He continues to refuse to accept rulings of our courts."
"Surprisingly, and regrettably, the Law Society of Upper Canada seemed to condone much of Clark's hectoring as "zealous" advocacy - necessary because judges did not give him a proper audience, or consider his argument. That is a false premise."
"As already mentioned, the Supreme Court of Canada refused to hear the Williams (supra) appeal. Clark then had another setback on September 12, 1995 in the Supreme Court of Canada. He refused to accept these rulings. After September 15, 1995, Clark continued his campaign to argue his rejected thesis in the courts.In R v. Ignace et al (Prov. Ct. BC 100 Mile #5786 Oct. 6/95) in another matter (Clark again made his complete submission in his application to appear as counsel in the Gustafsen Lake case) Barnett J., ended his reasons by saying:
`...First, Mr. Clark, contrary to his statements, is not a friend of any court in British Columbia, or the Supreme Court of Canada. His writings and remarks are beyond being merely scandalous and outrageous. The Chief Justice of Canada was absolutely correct when he told Mr. Clark on September 12, [1995] that:
`I must say, Mr. Clark, that in my 26 years as a judge I have never heard anything so preposterous...To call the judges of the Supreme Court of Canada and the 975 High Court judges of Canada accomplices to genocide is something preposterous. I do not accept that and think you are a disgrace to the bar....'
`Second....the various documents filed by Mr. Clark in this court, the Supreme Court of British Columbia, and the Court of Appeal are, in large part, an utter farrago of nonsense. Mr. Clark is not possessed of any legal skills which might possibly assist Mr. Ignace or Mr. Pitawanakwat today or later. Mr.Ignace and Mr. Pitawanakwat I cannot permit Mr. Clark to appear as your advocate, and I shall therefore hear no more from him.'
"After evading the warrant for his arrest for 16 months, he continues his attack on the courts in a most contemptuous way. The apology for having spoken a few ill-chosen words does not purge his profound, intractable continuing contempt. He clearly intends to continue his campaign to scandalize the courts as soon as he is released."
"An aggravating circumstance is that he is or was a senior lawyer. He is an officer of the courts where he is authorized to practice law. He must respect our Constitution and the institutions of democracy, not attempt to destroy them...he is very adept at attracting national and international media attention. He is able to get his messages out, which by and large is a discredit to the legal profession."
"The penalty must serve to deter him...a large financial penalty is not appropriate, even if he were able to pay one..a suspended sentence with conditions is futile because he does not accept the authority of the courts. ...a maximum of 5 years imprisonment may be imposed. That is reserved for a repeat offender who has not been deterred by previous shorter prison sentences. A moderate prison term is the only proper sentence."
"Unfortunately, he may now become a martyr in the eyes of his followers... In my view, his intransigent contempt for all Canadian courts, ... jeopardizes the legitimate aspirations and interests of the aboriginal cause. This is especially so while some of the people he claimed to represent on September 15, 1995 are still before the courts....taking into account the brief time he has spent in custody, in September, 1995 and February, 1997, I impose a prison sentence of three months."
Nick Friesen
Provincial Court of BC
>>>
The following information is taken from an "Affidavit in Support of Release Pending Appeal" by Margaret Clark. The release was denied. The appeal is set down for March 11, 1997.
"For the past twenty years I have been working closely and, except for brief teaching contracts while Bruce returned to earn his M.A. in constitutional history and his Ph. D. in jurisprudence, on a full time basis with my husband as his legal assistant, specifically in relation to the jurisdiction issue with which the appeal herein is concerned...and as such have personal knowledge of the facts and matters deposed to...
"I do have personal knowledge that a hearing took place on February 20, 1997 before his Honour Judge Nick Friesen, and one of the issues on appeal will be whether a trial actually took place. On February 20, 1997, the matter began and was conducted as a show cause hearing as to whether the Judge citing the Appellant for contempt would accept an apology. When the said Judge determined that he would not accept an apology, he declined to grant an adjournment for the purpose of referring the matter to trial to another judge. Instead, and without arraigning the Appellant and without asking him whether he pleaded guilty or not guilty, the show cause hearing judge registered a conviction. For this reason, in completing this affidavit I have a measure of difficulty stating when `the trial' took place, although a `hearing' as described did occur on February 20, 1997 and a conviction was then registered also on February 20, 1997.
"Over the past twenty years the appellant has specialized in the law relating to native sovereignty and during that time we have resided together in a succession of Indian reserves as well as non-native communities and travelled to different jurisdictions in Canada, the United States and Europe with a view to having the law relative to native sovereignty addressed.
"I have personal knowledge that rather than appear on October 18, 1995 to set a trial date in reference to the present contempt charge, the Appellant wrote the court and asked that the matter proceed in absentia with argument being restricted to the question of jurisdictional law: is the assumption of jurisdiction over natives and their agents upon arguably unpurchased territory prima facie ultra vires, misprision of treason and fraud, and complicity in genocide. On October 18, 1995, His Honour Judge Friesen declined to proceed in absentia and instead issued a warrant. As appears from the correspondence filed as exhibit 6 at the hearing before Judge Friesen on February 21, 1997, a correspondence occurred pursuant to which the Appellant confirmed his steadfast intention to appear for trial at the convenience of the court and the crown. On February 18, 1997, as he had advised, the Appellant returned to British Columbia for the purpose of arranging for the said trial, and was arrested as he left the airplane.
"I am advised and verily do believe that for the following reasons there is a likelihood of success on appeal and, in any event of success on appeal,it is in the public interest that the Appellant be out on bail pending the appeal.
The `Native Sovereignty' legal position is that since the native courts were here first, they have original jurisdiction whereas, in contrast, since the newcomers' courts were here second, they have derivative jurisdiction. The mode of derivation is thought to be territorial purchase. By Order in Council (Great Britain) of 9 March, 1704, prima facie it is settled international and constitutional law that the issue of purchase, upon which jurisdiction turns, cannot legally be resolved unilaterally by either the natives' courts or the newcomers' courts. Rather, jurisdiction over such native versus newcomer disputes vests in an independent and impartial third-party court system established pursuant to the said order in council for this specific constitutional purpose. There is no evidence known to the appellant to indicate that the 1704 instrument has ever been repealed.
The learned trial judge nevertheless held that the effect of the 1704 instrument had been nullified in virtue of the doctrine of obsolescence by desuetude. The Supreme Court of Canada has ruled on two occasions (per Mr. Justice Strong in St. Catherines in 1887 as confirmed in the Privy Council in 1888, and in Calder per Mr. Justice Hall in 1973) that the doctrine of obsolescence by desuetude has no application to constitutionally recognized aboriginal rights sheltering under Imperial orders in council.
On September 12, 1995, in the matter of Delgamuukw v A.G. B.C., the Supreme Court of Canada refused to address the native sovereignty jurisdictional issue. The appellant herein had attempted on behalf of one of the several Delgamuukw appellants to raise the same jurisdictional objection as that for the raising of which the appellant herein was sentenced by the court below to three months imprisonment.
On September 12, 1995 the Supreme Court of Canada held that, since the court jurisdiction issue had not been addressed by the courts below in the Delgamuukw case, it preferred not to address that issue itself in the absence of lower court commentary directed specifically to that issue. Even so, on February 21, 1997, the provincial court judge in the present appeal held that the court jurisdiction had been resolved by the Williams case in the BC Court of Appeal.
In fact, the Williams case simply applied the Delgamuukw case as if it had addressed and resolved the court jurisdiction issue. The Williams case did not itself address the constitutive 1704 Order in Council. On September 12, 1995, when hearing from the appellant in the Delgamuukw case, the Supreme Court of Canada suggested that the appellant return to British Columbia and raise the court jurisdiction issue at the trial level.
Accordingly, on September 15, 1995 the appellant attempted to do so before Judge Friesen. The appellant was was deeply afraid that if Judge Friesen were to stonewall the issue, a massacre of the native people inside the besieged encampment at Gustafsen Lake literally was going to occur. In fact, it recently has become public knowledge in the context of the Gustafsen Lake trial in the Supreme Court of British Columbia in Surrey, BC that the police had resolved to enter the camp in full force on the very night of the day that the defenders did surrender. The appellants fears were well grounded.
Unfortunately, as it transpired, the police had spoken ex camera to Judge Friesen about the Appellant attempting to raise the issue of law. It recently has become public knowledge in the context of the Gustafsen Lake trial in the Supreme Court of BC in Surrey BC, that the police were at the time engaged in a `smear and misinformation campaign' to undermine the jurisdiction issue by discrediting the appellant, that issue's messenger. The appellant was well aware of the police lies and how thoroughly the public, the media, and possibly locally officials were being taken in by them. Even though Judge Friesen now (on February 20,1997) states that he told the police ex camera to let the appellant into the courtroom, where he would deal with the appellant personally, the police in fact assaulted the appellant in attempting to prevent the appellant from entering the courtroom on September 15, 1995.
After the Appellant gained entry and while he was attempting to address the court, the police were pushing him from behind into the council table. The appellant became agitated by the continuing police assaults and attempted to file his native clients' motion objecting to jurisdiction by saying `Filed' and flinging it onto the desk surface of the court clerk, across which it skidded into contact with the clerk's elbow.
(The widely broadcast media reports that the appellant `threw a sheaf of papers at the judge' is complete and groundless `smear and misinformation' as was confirmed by the trial judge in court on February 20, 1997.) At the same time, the appellant referred to the proceedings to which he was being subjected as a `kangaroo court', and asked the judge to order the police to cease assaulting the appellant at the council table. There was a commotion. The trial judge did not hear all of what the appellant said at this juncture. Nor did the appellant hear the the presiding judge say `Contempt of Court'. The next thing was the inundation of the appellant by several police at once which he briefly resisted. The appellant subsequently offered to apologize to the court, and eventually pleaded guilty to resisting arrest, for which he was sentenced to one day in jail. The judge refused to accept the apology unless the appellant were to accept the court's jurisdiction over Natives.
The appellant wrote and stated that he could accept the court's jurisdiction over himself, as a non-Native, but that he was not at liberty to waive his Native clients' right to object to jurisdiction. One aspect of the jurisdiction issue is that the premature assumption of jurisdiction over natives and their agents prima facie constitutes misprision of treason and fraud within the meaning of the Royal Proclamation of 1763 and, arguably, complicity in genocide by the imposition of serious mental harm within the meaning of articles 2(b) and 3(e) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.
The trial judge sent the appellant, in custody, to a psychiatric hospital for the criminally insane for a mental examination as a delusional paranoid for raising and persisting in his clients' point of law. The psychiatrist rejected the judge's diagnosis, and reported back that the appellant was logical and in sound mental health. On February 21, 1997, the judge rejected the psychiatrist's report as being in error and persisted in describing the appellant as delusional.
In response to the attempt by several of the judiciary to have the appellant disbarred for raising and persisting in his clients' point of law, the Law Society of Upper Canada held that (a) the genocide was a fact,and (b) that the judges should address the law rather than preempt it from consideration. The trial judge rejected the Law Society's conclusion, and opined that the appellant should have been disbarred for persisting in his native clients' point of law.
As an alternative to incarceration in a mental hospital or disbarment, the trial judge, instead of accepting the appellant's apology, held that the appellant should receive three months in jail for not relinquishing the natives' right to raise the jurisdiction issue. Judge Friesen held specifically, expressly, and explicitly that his intent was to prevent the appellant from persisting with the issue any longer. But the appellant is obliged to persist.
On January 17, 1997, the Supreme Court of Canada granted the Mi'gmaq nation the right to intervene in the `Reference re the legality of Quebec Secession'. That native nation is represented by the appellant. The issue in the Supreme Court of Canada is absolutely identical to the issue relative to which the trial judge assigned his reason for giving the appellant a three month sentence for raising. The Supreme Court of Canada has determined that the appellant should present and defend the native sovereignty legal position going to court jurisdiction, including, specifically, the collateral allegations of misprisions of treason and fraud and complicity in genocide.
The trial judge has now put the appellant in jail specifically to prevent that issue from being persisted in just when the time pressure is upon the appellant to prepare and file his native clients' brief in the Supreme Court of Canada. At the same time, now, the appellant is scheduled to present the same issue in the BC Court of Appeal (Pascal), in the Quebec Superior Court, in the New Brunswick Provincial Court, in the Ontario Court (General Division), in the Ontario court of Appeal, and in the Maine District Court. Furthermore, he is presently applying on behalf of his native clients to the Supreme Court of the United States in the matter of New Jersey vs. New York in the jurisdictional dispute over Ellis Island.
I believe that the public interest and the interest of the native clients is the same: to allow the appellant the freedom adequately to inform all of these courts as to the existing international and constitutional law relative to the natives' interest.
"I am advised and verily do believe that the only Canadian case ever to have addressed the court jurisdiction issue in light of the constitutive constitutional legislation directly speaking to that issue is this contempt case in the Provincial Court of British Columbia. The appellant does not object to Judge Friesen having dealt with the 1704 legislation. This represents the breakthrough for which the appellant's native clients' have been searching for twenty-five years. Finally, the issue clearly has been joined. Now it remains to complete the resolution, in the public interest and in the native interest, neither of which is assisted by the appellant's present incarceration.
"I am advised and verily do believe that in the midst of all these events, there is a risk that the crucial point will be overlooked: Judge Friesen pretended to rebut the appellant's legal argument, without ever allowing the appellant to make the argument.
"That is, the Judge not only declined to adjourn the matter for the purpose of allowing the appellant to plead and adduce the defense evidence, but, also, he did not grant the appellant an opportunity to argue the legal position. He did not, for example, permit the appellant to show him the legislative instrument that establishes the continuity of the 1704 order in council from its inception through to its confirmation in the Privy Council in 1773, and thence to its reconfirmation in North American constitutional law subsequent to the American Constitution, 1789 and the Canadian Constitution Act, 1982.
"Instead of allowing the appellant to make that demonstration, Judge Friesen simply assumed an absence of continuity between 1704 and the present time. The penultimate legal point is that even if there were a doctrine of obsolescence by desuetude (which there is not), the 1704 order in council in any event repeatedly has been confirmed. Legislatively, there has been no `290 year' period of desuetude as assumed by Judge Friesen in consequence of his denial of the appellant's right fully to argue the law before the court.
"All there has been is a period, from the latter quarter of the 19th century to the present time, during which Canada, including British Columbia, fell into the habit unconstitutionally of employing federal and provincial law criminally to crush legitimate aboriginal rights. This crime by Canada is not evidence of any change in the law. It is the proof of the breach of the law. This crime is not and could not possibly be self-legitimizing, as Judge Friesen has assumed for if it were, the rule of law would be a chimera."
February 24, 1997
Margaret Clark
(from: http://209.85.173.104/search?q=cache:OnnesXVAfFMJ:sisis.nativeweb.org/clark/contempt.html+%22bruce+clark%22+removed+from+bar&hl=en&ct=clnk&cd=1&gl=ca&client=firefox-a)
Judge Friesen's Oral Reasons for Judgement are interesting for a number of reasons. One, the judge did not properly cite the Constitution Act. He says: "Section 35(1) of the Constitution Act, 1982, cannot revive or retrench any self-government jurisdiction of the plaintiffs since it is confined to aboriginal rights which existed in 1982. As I have made clear, no aboriginal rights of government existed after 1871." However, Section 35(1) of the Constitution Act actually reads in precisely and clearly opposite terms: "35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." I'm not sure how he perverted the Constitution Act so far as to completely invert it, but, clearly he did. Again, in opposition to the judges comments, particularly when he refuses to acknowledge the Royal Proclomation, the Constitution Act further bolsters Clark's argument when it states in section 25:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
Two, Friesen's comments address the issue at the innermost heart of native sovereigntism: the jurisdiction of the courts, or lack thereof, over First Nations and grants all observers the rare opportunity to hear the court's justifications for this claimed jurisdiction. It lays bare the jurisprudence which defends the de facto law of the colonizers by reason of physical domination; the principle that makes right. I see no other way to read the lines Friesen cited from R. v. Williams [1995]:
"After that [the establishment of the separate colony of British Columbia in 1858] aboriginal customs, to the extent they could be described as laws before the creation of the colony, became customs which depended upon the willingness of the community to live and abide by them, but they ceased to have any force, as laws, within the colony....Then at the time of union with Canada in 1871, all legislative jurisdiction was divided between Canada and the province, and there was no room for aboriginal jurisdiction or sovereignty which would be recognized by the law or the courts. Section 35(1) of the Constitution Act, 1982, cannot revive or retrench any self-government jurisdiction of the plaintiffs since it is confined to aboriginal rights which existed in 1982. As I have made clear, no aboriginal rights of government existed after 1871."
While Friesen may hold this opinion, it is unsupported by history, numerous legal documents including the Proclamation Act and the Constitution Act, and a number of court cases. What Friesen refers to condescendingly as "Clark's thesis" is actually a legal assertion with considerable corroboration through these sources. The fact that Clark's argument was rejected by the courts "on some 40 consecutive attempts" does little to discredit the argument, since the accused rarely admit guilt, especially when the stakes are high. Acknowledging Clark's argument would open the door to a more honest recognition of First Nations' sovereignty, including land claims, which would not only nullify the authority of the courts over the vast majority the country, but seriously jeopardize capitalism in Canada, which can only survive via barbaric exploitation of people and theft of communal resources for the benefit of an extreme few at the expense of the overwhelming majority.
The mere fact that one culture invaded, massacred, dominated and controlled another does not automatically render the recipients of these atrocities devoid of rights. To suggest otherwise indicates the most vulgar, base and uncivilized approach possible to life, culture and our fellow humans. I often liken this philosophy of the bully's rule to a scenario we can easily imagine occurring: you're walking down the street, just enjoying the day when, all of a sudden, someone overtakes you and tries to steal your money. You try and fight, but the attacker is too strong; you quickly succumb to a severe beating and a robbery. You manage to contact the police. The police inform you that there is nothing they can do; you see, if the person was strong enough to defeat you, then they have a legal right to do what they want to you and your possessions. In short, they own you.
Of course, such a scenario is totally absurd to us, because we have come to expect protection and assistance from society from the whims of force. We understand that people cannot just take things without facing consequences simply because they are able to do so. If they could, there would be nothing we could truly call civilization whatsoever and we would be living in chaos, vulnerable to the strongest and cruelest forces. Yet, this is the scenario Friesen adopts on a much larger and much more barbaric scale when he affirms that "no aboriginal rights of government existed after 1871" due simply to the treacherous and genocidal tyranny of Europeans over First Peoples. The courts do not allow the principle of might makes right so long as it does not interfere with their own might. To accept Dr. Clark's argument would do just that. If another nation invaded Canada by force, I suspect there would be much hoopla about the immorality of the use of force to unseat the government. No one could be expected to recognize the new regime simply because they were able to accomplish their ends by brute force, yet this is precisely what the judiciary asks of First Peoples.
Interestingly, the Supreme Court of Canada refused to argue the merits of the case, making the decision of a lower court de facto "a binding decision throughout Canada". And with good reason. The fact that the courts have been complicit in the carrying out of genocide against First Peoples is undeniable.
One of the factors that states led judge (justice?) Nick Friesen to inquire into Dr. Clark's sanity is "The belief, by a lawyer who had earned a doctorate in constitutional law, that the Courts had no authority". Clearly the judge interpreted this fact in less charitable terms than he could have. He could just as easily concluded that, given Dr. Clark's level of education and expertise in constitutional law, his belief carries substantial weight. Yet such a conclusion would undermine the very bench upon which he sits, just as it would to acknowledge the basic truth in Dr. Clark's assertion that "all British Columbia lawyers were in a conflict of interest when aboriginal land claims were involved." It is easier to call a lucid person insane when their truths come home to roost. While Friesen says that "[h]is words and actions were inconsistent with conduct expected of officers of the Courts," for this very reason, his actions may well be quite consistent with conduct expected of honest and decent citizens to speak the truth, even when it is unpopular and may cost them personally.
Margaret Clark's statements in her affidavit demonstrate the means the courts will use to avoid the issue of their jurisdiction over native people in specific, and the issue of citizens dissenting with the authority of the courts in general:
"In response to the attempt by several of the judiciary to have the appellant disbarred for raising and persisting in his clients' point of law, the Law Society of Upper Canada held that (a) the genocide was a fact, and (b) that the judges should address the law rather than preempt it from consideration. The trial judge rejected the Law Society's conclusion, and opined that the appellant should have been disbarred for persisting in his native clients' point of law.
As an alternative to incarceration in a mental hospital or disbarment, the trial judge, instead of accepting the appellant's apology, held that the appellant should receive three months in jail for not relinquishing the natives' right to raise the jurisdiction issue. Judge Friesen held specifically, expressly, and explicitly that his intent was to prevent the appellant from persisting with the issue any longer. But the appellant is obliged to persist."
In other words, the courts resort to the rule of force rather than the rule of law when they find the former more expedient to their ends.
So rarely do people in authority hear such simple and honest truths that Friesen notes: "in my 26 years as a judge I have never heard anything so preposterous...To call the judges of the Supreme Court of Canada and the 975 High Court judges of Canada accomplices to genocide is something preposterous." Such people are so alienated from other perspectives on their actions that to hear them sounds so outlandish that they may even apparently doubt the sanity of the messenger, and, even when found of sound and solid mind by a professional in the field, persist in opining as to the messenger's delusional nature.
The method of the judge to not only charge, but "try"--if you could call it that, and sentence Dr. Clark is consistent with my experiences during the Elaho mass trial and the experiences of others during the Clayoquot mass trials, amongst others, where the very judge who made the order subsequently tried us and sentenced us. The fact that the courts do not bar judges from being judge, jury and executioner speaks volumes to their actual interest in the blindness of justice. Just like CAFTA, NAFTA, GATTS, the IMF, the World Bank and other such institutions and regulators of the apparently "free" market, the courts have their own methods of regulating justice beyond their jingoistic rhetoric of the rule of law. Just as regulated markets are the opposite of free, regulated courts ar the opposite of justice.
That these judges so uniformly avoid discussing and acknowledging the rights of First Peoples demonstrates the breadth of institutionalized racism in the courts. Denying native people their rights to self determination, which requires self government and the recognition of their land rights, is at least as disgraceful as the earlier stance by courts to deny rights to women, blacks, Japanese, Chinese, Italians, Germans and many other groups who have been subjugated with the full participation of the courts.
As Margaret Clark so eloquently puts it in the last paragraph of her affidavit, the legal history fails to support Friesen's delusional thoughts regarding First Nations sovereignty.
"All there has been is a period, from the latter quarter of the 19th century to the present time, during which Canada, including British Columbia, fell into the habit unconstitutionally of employing federal and provincial law criminally to crush legitimate aboriginal rights. This crime by Canada is not evidence of any change in the law. It is the proof of the breach of the law. This crime is not and could not possibly be self-legitimizing, as Judge Friesen has assumed for if it were, the rule of law would be a chimera."
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