CBC Radio Vancouver has just reported that Native rights lawyer and legal scholar Dr. Bruce Clark's appeal of his 3 month prison term has failed. The three-Judge panel upheld the conviction and sentence. Outrage is building at what appears to be a concerted and coordinated campaign to suppress the impregnable legal arguments of Indigenous sovereignty upon unceded territories. A full and comprehensive public inquiry is being sought, to examine the numerous irregularities attending the Gustafsen Lake trial - and a smear and misinformation campaign against Clark and his traditionalist clients.
On March 11, 1997, Manuel Azevedo appeared on behalf of Native rights lawyer Dr. Bruce Clark in the BC Court of Appeal. Dr. Clark was appealing both his conviction for contempt of court and the three month prison sentence. The Court heard the appeal for contempt and the appeal of the jail sentence; however, they refused to hear an additional appeal based on errors in law with regard to the jurisdiction argument, specifically relating to the Williams case (Regina v. Williams which derived from Delgamuukw, the Gitksan Wet'suwet'en land claims case), although Friesen had dealt with the argument at some length in his reasons for judgment (Excerpts at: http://kafka.uvic.ca/~vipirg/SISIS/clark/contempt.html).
Dr. Clark's conviction and sentence were the outcome of a summary hearing held at the Provincial Court in 100 Mile House on Feb. 20, 1997. After the summary hearing, Judge Friesen convicted Clark of contempt of court arising from Sept. 18, 1995, incidents which had occurred in the same court house before the same judge. On Feb. 21st, Clark was also found guilty of resisting arrest. He was sentenced the same day: three months for contempt of court, and one day for resisting arrest.
In his submission, Manuel Azevedo appealed Dr. Clark's conviction on two grounds:
a) Conviction ought to be set aside because procedural irregularities of the trial of Feb. 20, 1997, were in gross violation of Clark's constitutional rights under Section 7 of the Charter of Rights and Freedoms.During the summary trial of Feb. 20, 1997, Clark reminded Judge Friesen that according to Martin's Rules, he had the right to be tried by an independent, impartial tribunal, and where the contempt alleged consists of contemptuous behaviour or other disorderly conduct, the charge should be tried by another judge. (From the court transcripts of Feb. 20/21, 1997)i) Judge Friesen, in his reasons for judgment, did not make reference to any of the particulars listed in the original charges against Dr. Clark. These included: 1) contemptible behaviour consisting of an accusation of impropriety against the court; 2) rudely interrupting proceedings; 3) throwing material from the counsel table; 4) striking the court clerk. The defence was seriously hampered because they could not speak to the inconsistencies and irregularities in the charges, as Judge Friesen didn't include them in his summation. For instance, Clark was alleged to have thrown at sheaf of papers which struck the court clerk. In fact, Dr. Clark was being manhandled by court sheriffs and with some difficulty, threw the bound papers onto the clerk's desk. They slid across the desk and came to rest at or against the clerk's elbow.b) Judge Friesen should have disqualified himself and sent the matter to a higher court. There was a reasonable apprehension of bias, because there was personal animosity between the appellant and the judge specifically, not just the court.
ii) Judge Friesen initially led the appellant and the court to believe the proceedings were preliminary and were for the purpose of determining whether the case should proceed to trial. Dr. Clark was not informed that Friesenwould be conducting a summary hearing. Below is an excerpt from the Feb. 21, 1997, court transcript at 100 Mile House:Dr. Clark: "Well my submissions are that I wasn't arraigned yesterday and that you should reflect on this, that there can't be a conviction without an arraignment, an opportunity to adduce evidence. Perhaps you should hear that submission."Judge Friesen conducted a summary hearing, an extraordinary procedure which is rarely evoked in Canadian courts. In so doing, Friesen became:
Friesen: "No, I don't think I would hear that."- the prosecutor, asking questions normally reserved for the crown counsel if the trial had proceeded normally;
- the witness, as he gave testimony to the events which had transpired on Sept. 15, 1995;
- a party to the action, as he was involved in the proceedings. He was the offended party and his involvement destroyed all semblance of his impartiality - the judge when he found Dr. Clark guilty of contempt.
Natural justice requires that the usual steps in a proceeing such as the one at 100 Mile House Provincial Court on Feb. 20, 1997 consists of putting a witness on notice of show cause, followed by an adjournment in order for the appellant to prepare a defence.
Bill Lightbown, Gustafsen Lake spokesperson, offered the following eyewitness account of the events at the Provincial Court at 100 Mile House on Sept. 15, 1995, the day Dr. Clark was arrested:
Lavina White and I were told that the judiciary weren't going to allow Dr. Clark into the courtroom. We escorted him to the door, where there were two burly officers stationed. Dr. Clark demanded to be allowed into the courtroom so that he could represent his clients. One of the officers responded that they weren't going to allow him in. Clark responded that he was legal counsel and demanded to be let in, at which point the two officers bounced him off the wall, twice. The door to the courtroom opened and Dr. Clark slipped through. From this point on, we watched the proceedings from the windows in the doors to the courtroom.Dr. Clark was criminalized on Sept. 15, 1995, and again on Feb. 20, 1997. Today, Justice Gibbs, in the Appeal Court of BC stated that he found little if anything to criticize in Judge Friesen's judgement of Feb. 21, 1997. Gibbs also stated: "This man must be deterred and restrained... as those of like mind must also be deterred and restrained."
Inside we could see two Aboriginal people, crown counsel, and a number of sheriffs and police officers. There were also two members of the press, who were handpicked to be present. That was all the people that were in there. When the Appeal Court judge said that the courtroom was crowded, he lied.
The whole incident took about two minutes. Two burly officers (one was Doug Hartl) were standing right at Dr. Clark's back, restricting his movements and shoving him. Then we saw him toss the sheaf of papers onto the clerk's desk. At that point three RCMP officers wrestled Clark to the ground and dragged him out of the courtroom. I believe the whole incident was pre-arranged to criminalize Dr. Clark.
Dr. Clark now joins a number of members of the bar who have been "deterred and restrained" including:
- Renata Auger, a Cree lawyer represented by Jack Cram's office, who has disappeared after revealing that the lawyers for the natives in Delgaamukw had "thrown the case";Some of the materials from the Lil'Wat Appellants' Reply to Attorney General's Argument in the William's Case CC930029-30-31-32 in the Supreme Court of BC indicate some of what BC Courts have to hide:
- Jack Cram himself, who was forcibly retired, pleading "mental exhaustion" when given a choice between recanting or imprisonment;
- Janice Switlo, who had been involved in the Gustafsen Lake defence in the past; and
- Lynne Crompton, who was a lawyer for the Lil'Wat Peoples movement but no longer practices law.
"..The courts below from which this appeal is taken wilfully blinded themselves to what was really going on in favour of relying upon the decision of McEachern Chief Justice of BC in Delgamuukw to pre-empt the juridical jurisdiction issue as raised before them, which was the same issue as that just fraudulently pre-empted by McEachern CJBC in the civil appeal.
"At this juncture, it is worthy to recall that McEachern CJBC was a senior partner in Russel and DuMoulin which firm argued the Attorney-General's side in Delgamuukw, and which firm was itself associated with Borden DuMoulin Howard Gervais, which firm argued the natives' side in Bear Island [Supreme Court of Canada decision against native rights]. In fact, Mr. Goldie, since promoted to sit on the bench with McEachern CJBC, was the lawyer at Russel and DuMoulin with charge of the conduct of the Attorney General's case against the natives in Delgamuukw. He was also in charge of the Attorney-General's case as an intervenor against the natives in Bear Island in the Supreme Court of Canada. His partner in the national firm Borden DuMoulin Howard Gervais, Ross Murray, QC, of Borden and Elliot, argued the natives' side in the Bear Island appeal. From that appeal, Mr. Murrray purposefully, and without the knowledge and consent of his native principals, excluded the juridical jurisdiction issue.
"Mr. Plant [Geoffrey Plant, formerly head of Russel and DuMoulin's Native Law Practice Group, now a sitting member of the BC legislature and a member of the Select Standing Committee on Aboriginal Affairs] of Russel and DuMoulin, who has carriage of the Attorney General's case in the present appeals, was Mr. Goldie's protege and junior in Delgaamukw and Bear Island.
"Borden DuMoulin Howard Gervais has a vested interest in the natural resource extraction industry in British Columbia, Ontario, Alberta, and Quebec, which industry is threatened by the present appellants' juridical jurisdiction issue.
"The industry is, at present, able as a matter of course to obtain from non-native courts interlocutory injunctions precluding the natives' interference with resource extraction beyond the treaty frontier.
"The existing judicial-industrial complex will be disturbed if and when the law is addressed establishing that non-native judiciary's usurpation... the lie is calculated to secure for the Government and non-native citizenry of British Columbia a present jurisdiction over and a present beneficial interest in the major part of the land mass between the Rocky Mountains and the Pacific Ocean..."
Please send a copy of your letters to S.I.S.I.S. This lets the Defenders know people are acting on their behalf.
Chief Justice of BC
501 - 700 West Georgia St.
Box: 10287, Pacific Center
Vancouver, V7Y 1E8
J Nicholas Friesen
c/o The Registry Office
350 Barlow Ave.
Quesnel, BC V2J 2C1 Canada
Sample letters and links to politicians' email are on the Settlers In Support of Indigenous Sovereignty (S.I.S.I.S.) site, at:
http://kafka.uvic.ca/~vipirg/SISIS/gustlake/letter.html Please send a copy of your letter to S.I.S.I.S.
Splitting the Sky - Phone/Fax: (604) 543-9661Ts'peten Legal Defence Team:
Bill Lightbown - Phone: (604) 251-4949
Manuel Azevedo, phone: (604) 687-0231, fax: (604) 687-0241Settlers In Support of Indigenous Sovereignty
Margaret Clark, c/o phone: (604) 687-0231, fax: (604) 687-0241