On February 20, native rights lawyer Dr. Bruce Clark was convicted in the Provincial Court of British Columbia at 100 Mile House. He was charged, tried, convicted, and sentenced by His Honour Judge Nick Friesen.
Excerpts from Judge Friesen's Reasons For Judgement, followed by excerpts from an affidavit of Margaret Clark, legal assistant, and wife of Dr. Clark, in support of a bail application (which was denied) may be helpful in understanding how the NDP settler-state deals with the issue of indigenous sovereignty, and those who raise it.
February 21, 1997
"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  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  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,  that:"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."`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.'
"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."
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