Caledonia appeal turns on a word
According to an email being sent around, Ontario's Liberal government under Dalton McGuinty cannot appeal Justice David Marshall's order to suspend the negotiations with the natives occupying disputed land in Caledonia. That's because, if I understand this correctly, Justice Marshall worded his ruling as advice as opposed to a point of law. And this might have implications for the future.
Here's the email, apparently sent to Caledonia Mayor Marie Trainer:
"About 90 minutes ago, Judge Marshall, the Attorney General and a group of lawyers had a conference call. It was decided, based on secret meetings yesterday, that the Liberal Government does not have the option to appeal. The reason is there is no cause. The ruling says: 'should not' and not: 'cannot'. Now McGuinty is going to have to find out how to get the egg off his face!"
Consider what I think are the relevant portions of Justice Marshall's ruling:
The negotiations are important to the native people and everyone else and I appreciate that reality, but land claim negotiations by their very nature tend to be protracted. It is trite that justice delayed is justice denied.
It is fundamental in our society that all members of the public -- including the various levels of government should respect the lawful orders of the court.
Certainly government officials should not act deliberately in a way that would ignore the court's orders and hence depreciate the court and the rule of law in our society. To act otherwise, will be seen as acting in defiance of the court's order.
For that important reason, the government agents involved in these negotiations should, in deference to the court order, withdraw from these negotiations until the court's orders are respected and the rule of law returned and the barricades removed.
This is a delicate matter but it seems to me that the submission of Mr. Elliot has considerable merit.
He said, and used this metaphor, that the government had with respect "put the cart before the horse." Return to the Rule of Law should precede the negotations of the land claims.
In summary then, for all these reasons I have given, there will be an order that the finding of contempt of court issued by this court will be referred to the Attorney General of Ontario of carriage. The injunction issued in favour of Henco Ltd, is hereby dissolved atthe request of Henco. However, that order to dissolve will not take effect till this court's order for criminal content has been disposed of. Negotiation should cease till the Rule of Law returns and arricades come down.
Each time the word "should" is used. The thinking described in the email is that the court is not challenging the right of the Crown to negotiate. That would be a ruling subject to appeal, since of course the Crown would maintain it must haev te power to negotiate. But Justice Marshall is saying that in his opinion, the negotiations lack legitimacy when they take place in an environment in the Rule of Law has been suspended. That government shouldn't sign any agreements under these conditions because such an agreement might be challenged.
It is friendly advice more than an order.
But I think this paragraph matters even more:
The court has no intention to abandon this matter. The court will remain patient but seized of the matter until it is resolved for the reasons I have given.
I think Justice Marshall is saying in effect that he understands that the court can't really prevent the negotiations from taking place if the government insists on going forward. The Ontario Provincial Police have seen fit to follow the lead of the politicians and not the courts.
So the advice of the court will stand, essentially ignored. Why bother then? Because at some point, a settlement will be reached. The natives and the government will think the issue is passed. And then someone will challenge it.
How will they challenge the settlement? By pointing to Justice David Marshall's ruling, a ruling the Justice Marshall will patiently keep up-to-date, the ruling that says the settlement should never have happened.
The government will have to explain why they ignored such a clear warning concerning the legitimacy of a settlement reached under such circumstances and in defiance of this and other rulings. Whether it is a good settlement or not won't even factor into the argument.
Who might challenge the ruling?
Maybe the citizens of Caledonia figuring that their rights were ignored. Maybe Henco figuring they weren't fairly compensated after all.
Maybe, and perhaps most likely, another native faction figuring that they settled for too little or gave back too much in order to get the settlement. That would be ironic if they were to use Justice Marshall's ruling to back up their challenge, since Justice Marshall's ruling only came to happen because those same natives refused to obey his earlier rulings.
See what happens when laws are ignored? Lewis Carroll would not have imagined such a bizarre situation.
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Comments
This is the part that I don't understand: Now McGuinty is going to have to find out how to get the egg off his face!"
Wouldn't he just be out celebrating tonight?
Posted by: Joanne TB at August 18, 2006 08:44 PM
Hmmmm. I am wondering what the law would do if a judge said to an accused person "You should not come within 30 feet of so and so or their house" or "Your parole officer should not find any indication of drug use by you" etc.
I am not up on legalese enough to know what the term should means when applied by a judge. I mean he is a judge. If he says you should (or should not) do something then you should (or should not) do it.
If the word implies some laxness in his power then I think Joanne may be right. McGuinty "should" be celebrating tonight.
Posted by: TrustOnlyMulder at August 18, 2006 09:38 PM
No, McGuinty won't be happy. It's exactly like Steve says, any settlement will lack legitimacy. An appeal would have said the Judge Marshall was wrong and the public is left with the impression that McGuinty was right. No there won't be any judgement to undermine what Judge Marshall wrote. He further stated he is not going to let this go.
By the way, this leaves an appeal open to the people of Ontario. They will use my money to buy off the occupiers. We're all taxpayers.
Posted by: PlaidShirt at August 18, 2006 09:48 PM
duh, what are you trying to say? negotiations shouldn't pursue a resolution to the land claims? or just kick the fucking indians off the lot and let us make some money?
Posted by: Ottawa Core at August 19, 2006 01:22 AM
I love it.
The good justice says the goverment should not negotiate while the illegal occupation exists.
The government says they must negotiate and directs an appeal.
While preparing the grounds for appeal, a junior clerk notices the actual language of the order and forward this to the senior government lawyer for an opinion. The "bomb" is dropped on the AG.
Any negotiations from now on would be "in bad faith". A settlement would be impossible.
Straight out of Labour Law 101.
Posted by: john at August 19, 2006 08:29 AM
It seems that the court was "reminding" the Crown that its first duty and responsibility is to the rule of law and the keeping of the Queen's peace. Sustainment of the rule of law is the constitutional bargain struck by which the people give their consent to be governed by the crown. Marshall clearly pointed out to McSquinty that his first aligence was to the people of Caledonia who were living under threat in a lawless state. The crown's "duty" to "Negotiations" are superficial by comparision and negotiations with lawless renegades who disrupted the rule of law and the peace of the community is NOT a first duty of the crown.
Marshall simply reminded the government of it's prime constitutional directive and its priorities.
All this legal slight of hand by McSquinty only serves to validate the fact that he has put more political energy and administrative effort into avoiding his constitutional duty than he has to fulfill the oath of his office....he will be judged in the court of public opinion accordingly.
Posted by: wlyonmackenzie at August 19, 2006 10:05 AM
...ahhh Caledonia.
Wonder how long this cancer will fester. Like I mentioned in earlier posts, Clockwork Orange. Group of rebellious teenagers in a police state.
Poor ol' OPP will be tarnished for a long time, and no thanks to their leader, who shows her loyalty by jumping ship to "an offer she couldn't refuse".
So much for sworn loyality.
Posted by: tomax7 at August 19, 2006 10:48 AM
I have it on good authority that Mr McGinty is wearing out the soles of his shoes at his abode in Ottawa. My source tells me he spends endless hours pacing the floor. I agree with poster above (removing egg from his face).
Could it be that the phone call to "Steve" was to help him out of this mess?
Posted by: DiddyWahDiddy at August 19, 2006 03:35 PM
n summary then, for all these reasons I have given, there will be an order that the finding of contempt of court issued by this court will be referred to the Attorney General of Ontario of carriage. The injunction issued in favour of Henco Ltd, is hereby dissolved atthe request of Henco. However, that order to dissolve will not take effect till this court's order for criminal content has been disposed of. Negotiation should cease till the Rule of Law returns and arricades come down.
The justice continues to play hardball - this paragraph suggests that his order will require the AG to resolve the "criminal content" of the occupation before he will set aside his injunction. For the AG to not do so, and continue with negotiations, may place the AG in contempt.
Posted by: Skip at August 19, 2006 05:23 PM
One way or another, all it will take are judges who disagree with Marshall to stop any court battle against the negotiations from succeeding, whether it be now or in the future. No doubt McGuinty was counting on a Liberal-friendly higher court judge to rule in his favour now. It'll probably happen with court challenges at some point in the future, too.
Posted by: The Cyber Menace at August 19, 2006 06:12 PM
We know the email is true the liberals would have wasted no time last Friday letting is know. Second this will let our future government leader know you need to follow the law or look like Dalton McGuinty a complete idiot. Judge Mashall did his homework but Dalton McGuinty well getting egg off his face. Need to get rid of McGuinty next year; we need a man not some wimp.
Posted by: jim smith at August 21, 2006 07:40 AM
 
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