The obvious bias exhibited towards the jurisdictional issues from trial Judge Josephson is nothing new. Josephson has encountered this issue before, in Fletcher Challenge Canada Ltd. vs. Miller et al, as in the transcript which follows.
August 15 1991
FLETCHER CHALLENGE CANADA LIMITED
JASON MILLER, SYDNEY HASKELL, JOHN DOE, JANE DOE and persons unknown
B. W. RENDELL: I appear for the Crown in the criminal aspect of these proceedings my lord. With me is MR. TYZUK, he appears for Her Majesty with respect to the civil aspect of these matters.
MS. TYSHYNSKI: I appear on behalf of the defendants, should I set out all the names at this time?
THE COURT: Set out all the names?
MS. TYSHYNSKI: That I am appearing on behalf of or as agent.
THE COURT: That is not necessary. Did you say all the defendants?
MS. TYSHYNSKI: I'm sorry, except Mr. Shafer.
THE COURT: Except Mr. Shafer?
MS. TYSHYNSKI: Yes.
B. CLARK: I appear for Mr. Shafer. Mr. Shafer has a preliminary objection to make the resolution of which affects all the other matters and so I will suggest that I will suggest that I make a certain set of submissions and give you the time estimate and we can get an idea as to whether we can deal with it right away or have to set it to later this afternoon, or perhaps another time.
THE COURT: All right, you have a preliminary motion on behalf of your client that will affect the others, is that correct?
MR. CLARK: That is correct.
THE COURT: Is the crown aware of this application?
MR. TYZUK: I was advised by Mr. Clark this morning, of the application being brought in these criminal proceedings. That being the case, because it is a motion which affects the jurisdiction of the Court, it is the Attorney's position that proper notice should be given pursuant to the Constitutional Questions Act, to both the Attorney General of British Columbia and the Attorney General of Canada. I am familiar with what Mr. Clark's application is in its essence. We have dealt with it before, and the position that the Attorney would take right now is that the matter has been dealt with by Mr. Justice MacDonald in a decision in the Mount Currie case, that decision was recognised by Mr. Justice Braidwood in a subsequent case involving International Forest Products. Contempt convictions were entered in both of those, however I am aware of an application that Mr. Clark is going to be bringing in the civil side of this matter.
THE COURT: Let me hear from Mr. Clark right now because I am a little confused. Mr. Clark what is your intention with respect to the application?
MR. CLARK: If your lordship would refer to the Notice of Motion which was initially made returnable on the 8th August, I think we had best start there. The application was as follows: Take Notice that an application will be made by the defendant John Gregory Shafer to the presiding judge in chambers, 8th August, or so soon there- after as counsel amicus curiae or the applicant personally may be heard for an order rescinding the injunction of Mr. Justice Errico pronounced and entered July 18 1991. And further take notice that an application will be made for counsel or Bruce Clark to address the presiding judge as amicus curiae as well as, or as alternative to, on behalf of the applicant. And further take notice that an application will be made for short service of this Notice or for its hearing ex parte pursuant to Rule 45 sub 5. And further take notice that relied upon in support of this application will be the legal maxims fraud vitiates all and ex turpi causa non oritur actio Rule 14 sub 6 and 34 sub 2 and will be read the declaration of the applicant declared the 7th day of August 1991 and such further and other materials as the applicant's counsel or amicus curiae may advise. Earlier this morning my lord I did file with my friends, Mr. Tyzuk representing the Attorney General of British Columbia, and Mr. Ross Switzer who is counsel for the plaintiff in the civil action, Fletcher Challenge Limited, copies of a second declaration sworn by the same John Gregory Shafer, this one being dated yesterday, and I have now to pass up to the court the original and one copy of this.
THE CLERK: Should I file this my lord?
THE COURT: Let me see it.
MR. CLARK: My lord I am here to-day at Mr. Shafer's invitation to apply to address you as the Chambers Judge, as counsel or as amicus curiae on two preliminary points of law: The Court has no jurisdiction. Any fresh step towards exercising jurisdiction constitutes fraud and treason. As a friend of the Court my task now is to explain the law, in the ignorance of which you personally will certainly commit these high crimes, crimes that will implicate every Canadian citizen and besmirch the honour of the Crown. As a matter of existing Constitutional Law our country's honour is pledged to respect the native nations by preventing non-natives from trespassing upon their territory--
THE COURT: Are you giving me the substance of the application now or an overview of what you intend to pursue in this application?
MR. CLARK: Handwritten, just another page and a half my lord, I estimate perhaps three minutes.
THE COURT: Continue.
MR. CLARK: From trespassing upon their territory without first there being a Treaty formally recording the natives consent. Respect, consent. These are the twin-born pillars of the existing law. Together they uphold the founding legal principle of this country. The non-natives have to justify their use of the land before presuming to use it. In the case at bar the plaintiff, Fletcher Challenge Canada Limited has not attempted to justify its use of the territory, at least not by any allegations or evidentiary materials such as are capable at law of discharging the justification burden. Rather, the company has assumed first, that it is justified; and secondly, that the non-native Courts have jurisdiction to lend force majeure to its assumption. As a result, in ignorance of the law that precluded his jurisdiction, Mr. Justice Errico granted an injunction, an injunction that must now be rescinded in light of the law I will elicit, if the rule of law is to triumph over opportunism and arbitrary power, over fraud and over treason. The existing law is straight forward, simple, easily and readily substantiated. Its outline and indeed its full substantiation are defined by Mr. Shaver's two declarations, the one filed and the one received by your lordship to be filed. The reading of these should take approximately one hour. Thank you my lord.
MR. TYZUK: Now my lord these are the exact same circumstances which were brought up before Mr. Justice MacDonald in the case involving the Attorney General of British Columbia and the members of the Mount Currie Indian Band, the Lil'Wat Nation in the Mount Currie road-block case. Mr. Clark raised the preliminary objection of the juris- diction of the court. Mr. Justice MacDonald in a decision dated March 18 1991, a copy of which I will now give to you, my friend I think is aware of it, stated very clearly -- and if you turn to page 31 of the judgment -- this my lord was after full argument for those four days on this specific point:
"The persons arrested are not entitled to question on these contempt proceedings the authority of the Chief Justice of this Court to issue an injunction here. Of necessity any suggestion that I have no jurisdiction over them carries with it a collateral attack on the injunction itself. The issue of Indian sovereignty may not be raised or argued in these contempt proceedings. That issue is not an exception to the collateral attack doctrine in the case of a superior court of general jurisdiction such as this.
Whether or not this is a court of general jurisdiction in relation to "unceded Indian territory" remains to be determined in this action, although the outcome of that question appears hardly in doubt unless and until Delgamuukw is reversed on appeal".
That was also brought to the Court's attention. Those are the contempt proceedings. I am not saying that Mr. Clark canvassed this in the other proceedings. If he is attacking the injunction proper in the civil proceedings the collateral attack doctrine in my view has no application, but in these -- we are talking about the contempt proceedings, the judgment is right on point and I say this deals with Mr. Clark's preliminary objection. However, having said that, I was given notice that he would be making it this morning. I am confident that this, on all fours, deals with it. Mr. Justice Braidwood subsequently applied this decision in a case that was heard during the course of this case.
THE COURT: All right. Do you have any submissions to make on that Ms. Tyshynski?
MS. TYSHYNSKI: No my lord. I didn't have notice of this application and I have had no opportunity to inform myself so I would simply take no position.
THE COURT: Mr. Clark, you have heard the Crown's position, what do you say about that?
MR. CLARK: Quite wrong and quite misleading, and I suggest intentionally so, in further evidence of the fraud and treason that is being perpetrated by the Attorney Generalof British Columbia. A remarkable allegation and one which I look forward to fully substantiating. His first point --
THE COURT: Well before we get into the substance, this is a relatively fresh matter on the list. We have a lengthy civil list, apart from this matter, that counsel have been waiting for some time on. I am concerned about the time that is going to be required, obviously it is not going to be two or three minutes as was hoped in the initial expression. You obviously want to pursue this in some depth. I am in your hands now, what can we do about finding time to hear you? Are you suggesting that the other matters should be set aside for me to hear this?
MR. CLARK: Absolutely. What I am suggesting is that there may be some inconvenience to a number of people, but what I am suggesting is that treason and fraud outweigh any possible other consideration. Now as far as the time, I must put on the record now, since it will only take thirty seconds to do, that Mr. Tyzuk is quite wrong when he says this matter was resolved and that this is on all fours with the Mount Currie situation. There is a fundamental difference in that here the injunction was obtained ex parte. In the Mount Currie situation a great deal was made of the fact the native people were present and the injunction was not made ex parte and virtually everything that transpired from that point on flowed from that critically different fact.
THE COURT: Well I want to review the declarations that you have just filed, and I do not agree that all the other matters should be set aside for me to hear this matter now. This caught everyone by surprise.
MR. CLARK: My lord I would tend to agree with that. I should suggest that when doing those other matters, that the injunction granted by Mr. Justice Errico, for as long as it will take, by stayed from this moment.
THE COURT: No it will not.
MR. CLARK: My lord I would like the opportunity to read to you at least one page of the declaration which I believe demonstrates the fact that your refusal is, or is tantamount to, treason and makes you an accomplice to the fraud.
THE COURT: You want to read a page?
MR. CLARK: Yes.
THE COURT: Go ahead.
MR. CLARK: Native Sovereignty -- this by the way my lord is Exhibit A to the second declaration which consists in a letter send by Fax August 12 1991 from me to the Honourable Chief Justice of Canada, headed: "Re: Treason by the Head of State".
"Dear Mr. Chief Justice, Of necessity, and although you are not normally considered a court of original jurisdiction, an information accompanies this transmission. It alleges treason by Prime Minister Brian Mulroney, and asks him to appear before you to make answer to this charge. The historic question to which I believe only the common law can now provide the answer, and then only through your personal intervention is -- where else can one turn, if not to the "country's highest judicial officer, when the courts of originating jurisdiction that would otherwise hear the charge are parties to crime alleged? The law will provide a just answer to the substantive issue but only if an impartial venue for the law's exposition can be identified."
Appended to that is the Information and Summons with particulars of the crime, and what I am saying now is that in so far as the Fletcher Challenge Limited injunction is ex parte, faced with prima facie evidence that it was obtained without jurisdiction, this Court's major response should be to suspend the operation of that injunction immediately.
THE COURT: All right. I don't know what is going to happen with the balance of the list as yet. I am going to stand this matter down until we deal with the other matters and perhaps shortly we will have a better idea of what time is available to consider the motion to-day. I think it will be helpful if we can deal with your motion to-day rather than put it off to another. Right now I don't know if that is possible.
MR. CLARK: Thank you my lord.
THE COURT: All right, before I get into the Lewis matter I'd like to recall the Fletcher Challenge matter. Mr. Clark, on this matter, I have your submission. What I want to ask you is this: would it be satisfactory if I reviewed the material filed, including the declarations, and give you a decision after lunch?
MR. CLARK: Yes my lord.
MR. SWITZER: Counsel for Fletcher Challenge my lord, I just note Mr. Tyzuk and Mr. Rendell were not in Court.
THE COURT: Are they available?
MR. SWITZER: Yes I will call them.
THE COURT: Gentlemen I have just indicated -- and I apologise for proceeding, I didn't realise you were not present-- I have just indicated to Mr. Clark and asked if it was satisfactory to him if I reviewed his submission and his material over the lunch-hour and give a decision on his notice of motion after lunch to-day at two o'clock Is that satisfactory to you as well?
MR. RENDELL: My lord as far as a decision on his notice of motion, is that whether he may file it with short notice or no notice, or will it be a decision on the merits? Because if it is going to be on anything other than his ability to make that argument to-day, we have further submissions after we have had an opportunity to review the materials. Obviously we didn't have that opportunity this morning and we will certainly have more to say on the matter this afternoon, with your lordship's leave.
THE COURT: So all you want me to deal with is the initial issue of --
MR. RENDELL: My lord, my submissions, if I might, are on three points. The initial one is whether or not Mr. Clark has status to appear before this court, and I derive some of my comments from Mr. Clark's materials themselves. The second issue is, are we before this court on criminal proceedings or are we before this court on civil proceedings? The matters as they appear to me, with respect, seem to be somewhat confused. We were originally to be here this morning to fix a date. Other counsel are present and I believe they are being inconvenienced. Additionally we are here on a first appearance with respect to a new accused, Mr. Scott. We were going to be making certain applications to the court concerning a speedy trial date for him. That's what I understood we were here for this morning.
THE COURT: Well can we deal with the Scott matter quite independently of this issue? Can we fix a date with respect to that, and can we also have a date with respect to the main action, Fletcher Challenge -- can that not be dealt with as well?
R. RENDELL: We can certainly fix a date for the alleged contempter Mr. Scott, I have no problem with that my lord. I can do that now, or first thing this afternoon.
THE COURT: With respect to the Fletcher Challenge matter--
MR. SWITZER: I appear on that my lord.
MR. CLARK: I have to address that issue as well, the matter of the fixing of a date, yes. The position with the fixing of a date is to exercise a jurisdiction which is unconstitutional and this court can do absolutely nothing until the jurisdiction issue has been addressed. Secondly, my friend has misled the court by suggesting that to-day is an application for short leave. There is no application for short leave, that matter has expired. The notice of motion and supporting declaration was filed August 8 and served on August 8. There has been a week's full notice. There is no short leave issue present. It was adjourned on August 8 to this date for the resolution of the application. Now I was not here in court, I am giving this hearsay, however, Mr. Shafer was here in court and I ask that he have the opportunity to address the court on precisely what took place last week.
THE COURT: All right, the reason originally for seeking short service was that it was initially returnable on the 8th August is that what you are saying?
MR. CLARK: That's correct.
R. SWITZER: My lord, may I address you on that?
THE COURT: Yes.
R. SWITZER: I take the same position to-day as I did before Mr. Justice Finch last week, and that is that if this argument is being raised by way of defence in contempt proceedings, and obviously it is, my friend has made that motion this morning, that that is appropriate to be dealt with here in Victoria because the contempt is being run out of Victoria. To the extent my friend wishes in the main action, the civil action, to apply to set aside the injunction, it remains my position that that should be done in the Vancouver Registry. It is a Vancouver Registry file and as far as I am aware my lord there has been no Registrar's Order transferring the file, and I doubt if the main file is even here today. Thirdly my lord, it's clear -- I mean the material filed this morning is seeking -- is material that deals with an alleged treason of the Prime Minister of this country -- that the Attorney General of Canada may have a passing interest in these proceedings, so clearly, in my submission my lord, the matter has to be served -- the issue that my friend seeks to raise has to be dealt with under the Constitutional Determination Act. So my position remains as it was last week.
THE COURT: Clarify this for me if you will. There is a civil and a criminal matter?
MR. SWITZER: That's correct.
THE COURT: There is a matter of fixing a date; that fixed date is with respect to what?
MR. SWITZER: The criminal contempts.
THE COURT: The notice of motion before me seeks, as relief, an order rescinding the injunction of Mr. Justice Errico pronounced and entered July 18 1991.
MR. SWITZER: Yes. It was unclear before Mr. Justice Finch whether it was being raised -- because all we were dealing with last week was the Contempt proceedings. This motion was served upon me in the court room at two minutes to ten, and it was my position then that I didn t know if Mr. Clark was applying just in the contempt proceedings, which are the only proceedings that are being run out of Victoria, or whether he wanted to bring on the motion at large in the main action. And it was and is my position that if he wishes to do the latter he should do it appropriately after serving the Attorneys-General, providing the appropriate notice in Vancouver which is the Registry where that action remains. If I could address you on time, my lord. This idea that this kind of application which will deal with native sovereignty -- and I may say in the case my lord that as far as I am aware it does not involve any natives as defendants. The idea that this could be dealt with in one hour in the absence of the Attorneys- General is absolutely preposterous. I can tell you that I have had experience with this argument in the Court of Appeal on a Stay application in the International Forest case against Mr. Pascal. Four days were set aside for the argument. The lead application in that case was three days. So to suggest that we could deal with issues of this magnitude in the space of an hour, is simply absurd.
THE COURT: Mr. Clark, your notice of motion is filed in the civil proceeding I see, out of the Vancouver Registry, is that correct?
MR. CLARK: The-notice of motion is filed here last week, and received here.
THE COURT: But it is in relation to the Vancouver proceedings is it not and has a reference to the Vancouver Registry in the top right-hand corner as opposed to the contempt proceedings which are here in Victoria.
MR. CLARK: Oh, this is really an amazing scam.
THE COURT: No, I am asking you --
MR. CLARK: Yes, well this is what I am going to tell you. Last week this came up on August 8. I instructed Mr. -- or suggested rather, to Mr. Shafer, that before anything else was done he object to the jurisdiction of the court, because if the court making it initially -- making the injunction initially -- had no jurisdiction then necessarily the whole contempt proceedings would be affected. Therefore, rather than put the cart before the horse, this motion was delivered in its appropriate place so that the system of justice could respond to first things first. Now the little scam that's going down is that we can go on with the contempt proceedings as if the civil action were somehow not related to it, and then what can happen is these people can plead to the contempt situation and by pleading attorn to the jurisdiction of the court and thereby waive the juris- dictional defence, and I call that one more instance of the scam and fraud that's being perpetrated here, and I can tell you that the system should start getting fed up with this nonsense. Now --
THE COURT: Mr. Clark, with respect to fixing a date on the contempt proceedings --
MR. CLARK: That was to have been to-day.
THE COURT: yes, now I am informed by the Registrar that September 29 is available to hear the matter. Is that date satisfactory for the hearing of the contempt matter?
MR. CLARK: No date is satisfactory for the hearing of the contempt matter and if this court presumes to exercise its jurisdiction to the extent of setting a date it's committing treason, that's my point. Now we have an alternative here. We can address the law on one hour which answers this, or we can do it Mr. Switzer's way and waste four days beating around the bush. I gave one hour because the law is simple, the law is straight forward and the law will waste no time. What will waste time is the obfuscation and fraud in trying to evade the law, so let's get at it.
THE COURT: Mr. Clark I intend to exercise that jurisdiction I intend to fix a date for that hearing and your client can make a conditional appearance so that he cannot be suggested to have attorned to the jurisdiction. I ask you out of courtesy, if September 29th is satisfactory as a time to adjourn it to.
MR. RENDELL: My lord, I believe that will be the week of September 30th.
THE COURT: September 30th?
MS. TYSHYNSKI: First of all my lord, I think I need to set the record straight as to exactly who I am appearing for or on whose behalf because I am appearing as agent. So for the record I am appearing as agent for my own clients Lynette Tooley, Margaret Kay, Edwin Wright, Rebecca Games and Frank Lam. I am appearing as agent for Mr. Timothy Leadem and agent for the persons of whom he is counsel of record; they are, Melanie McFarland, Cez Sherwood, Barbara Clarke, Michael Psyliakis, Jean Francois Cyr, Sarah Turner and Warren Rudd. I am appearing as agent for Mira Goldberg an accused, James Dunnigan an accused. I am appearing as agent for Mr. Meyers and as agent for his client Mr. Rodney Mysak. I also see this as a separate -- I am appearing on behalf of Mr. Noel Scott who is here on a first appearance and is present in court today.
THE COURT: All right.
MS. TYSHYNSKI: As to the dates, there are some problems, I have agreed with Crown on behalf of myself and Mr. Leadem to the dates of September 30, October 1 October 3 and October 4 for all those mentioned, except Margaret Kay who has previously advised me, and I have advised the Crown, is unable to attend at that time and so I would ask for an adjournment. I have not been able to get instructions from Ms. Kay as to what an appropriate date would be, and I would ask for an adjournment until September 4 in order to set a trial date. In addition, Mr. Meyers has asked me to simply apply for an adjournment on behalf of Mr. Mysak, and I ask that that be put over also to September 4.
THE COURT: All right.
MS. TYSHYNSKI: Finally, in terms of Mr. Scott, this is his first appearance. I was retained just before entering the court this morning and I would ask that this matter be put over on his behalf until September 4 so that I can get instructions.
THE COURT: All right. Gentlemen with respect to that suggestion?
MR. RENDELL: My lord with respect to Mr. Scott, I would request with respect that the matter be put over to fix a date at the latest next week. The very real difficulty we have are these alleged interferences if you will with the Company and the alleged contempts of the court are not decreasing. The matter was serious prior to last Thursday when the 16 contempters acted -- are alleged to have acted. The matter became all the more serious last Thursday when your brother Mr. Justice Finch determined that these matters ought to proceed in the nature of criminal proceedings, because in his view at least some of them would lead to convictions for criminal contempt. My respectful submission that made it all the more serious, it became even more serious Monday or Tuesday, whenever Mr. Scott was arrested, by the nature of his conduct. If I may inform the court, the scenario was the crown alleges is one of the right-of-ways into the cutting area borders on quite a deep gulf -- gulch if you will, apparently some two hundred plus feet deep. An abandoned van was pushed into place, it was filled with rocks to act as one end of a balance, a large log was pushed under it and --
THE COURT: If I may interrupt, the end result you are asking that the Scott matter go to an earlier date to fix a date?
MR. RENDELL: I would like you to fix a date no later than next week my lord. Our intention is to try to have Mr. Scott and anybody else that comes before the court, tried if possible before the 16 are tried, to deal with these matters as quickly as possible, which in my respectful submission is appropriate.
MS. TYSHYNSKI: My lord, I am on holiday for the next two weeks, as one point in and of itself, however the Crown argues the seriousness of Mr. Scott's behavior and what I would argue is in agreement, that it is serious and it deserves in fact what we were discussing very much so last week, and that is the rule of law, and basically the right to retain a counsel of his choice and to have the time necessary to instruct that counsel and to proceed and enjoy all the legal procedures available to him. I submit that it is not asking too much at all to have this put over to September 4 at which point I will be in a position to represent him and to set a trial date.
THE COURT: All right. With respect to the notice of motion, it is found in the civil proceedings which are proceeding in Vancouver. In Victoria there is before me for the purpose of fixing a date criminal proceedings alleging contempt. There is an effort to address the application filed in the Vancouver civil proceedings as it does bear some relation to the outcome of the criminal contempt proceedings which are now before me. However, the notice of motion is filed in the civil proceedings out of Vancouver and are not properly before me. Were it properly before me I would not be inclined to accede to the application because in my view it is without merit. However, in my view, I will not deal with it in proceedings now before me. With respect to a date, I will adjourn the contempt proceedings, including those against Mr. Scott, which are now before me, to September 4 at 10.00 a.m. to fix a date.
MR. CLARK: My lord, having pre-judged the issue as being without merit, without reading those declarations over the lunch-hour, is there a need for us to return?
THE COURT: This afternoon? No there is not.
MR. CLARK: And secondly, may I ask your lordship to exercise his inherent discretion with respect to at least due process, that this matter be set down for tomorrow in Vancouver so that we don't go through this mickey-mouse facade of re-serving everybody who knows damn well what's going on.
THE COURT: I decline that as well Mr. Clark.
MR. CLARK: Naturally my lord.
MR. SHAFER: You can run but you can't hide.
MR. RENDELL: My lord, with respect to fixing September 4, is that only for Ms. Kay, Mr. Mysak and Mr. Scott, and will we retain the dates of September 30, October 1, 3 and 4 for the other matters?
THE COURT: Those will be retained, yes.
MR. RENDELL: So can we consider that those dates have been fixed for trial and we need not speak to that again on September 4?
MS. TYSHYNSKI: That's acceptable.
THE COURT: Yes, very well.
I hereby certify the foregoing to be a true
and accurate report of the said proceedings
Signed: Brenda Pearson
Official Court Reporter