Justice Bruce Josephson has disallowed a major pillar of the defence in the Ts'peten (Gustafsen Lake) trial.
Native rights lawyer Dr. Bruce Clark appeared from March 6 to April 4, 1997. Although Judge Josephson stonewalled Clark's jurisdiction argument, and denied Clark's application to appear as counsel, whether pro bono, amicus curiae or pro hac vice, Clark was allowed to give an exegesis of the argument and his history with it in court on the basis of a colour of right defence. Josephson explained Clark's testimony to the jury as follows:
"As I stated, the opinion of any witness, including Mr. Clark, on the law is not admissible whether with regard to the constitution or jurisdiction or any other matter. Nor admissible is the witness's outline of historical events and statutes which led to that opinion. However, the witness's evidence is admissible with regard to his involvement in the incident in question. As well, the defence of colour of right is still alive."Judge Josephson further defined the concept of colour of right for them:
- March 6, 1997 transcript, p. 16, lines 3-12.
"On the charge of mischief, a defence known as colour of right may arise. Simply put in the context of this case, it is the honest, even though mistaken belief, as to the lawful ownership of or right to occupy the land in question. That belief to be a defence must be honestly held. To assist you in determining whether or not it was honestly held, an accused may offer evidence as to why that belief was formed in his or her mind, including what was told to him or her by way of legal advice. That legal advisor, as well, may testify as well to what was offered. That is all on the issue whether or not the belief was honestly held even though it may be wrong in law."The jury specifically asked for a written copy of these remarks, and Josephson declared his intention to give them a written copy of his instructions to them (p. 18, line 47-p. 19, line 6).
- March 6, 1997 transcript p. 18, lines 12-27.
However, Josephson did not include an explanation of colour of right in the written "Judge's Instructions to the Jury". He omitted any mention of the concept from his summary of the defence position. Moreover he declared on Monday, May 12, that based on the evidence, no colour of right defence was available in this trial, and the jury need not consider it.
Why the reversal?
In the Stoney Point (Ipperwash) trial, the Crown withdrew 23 charges of forcible retainer against the protestors saying that, "the accused have raised the colour of right on the basis that there is a Chippewa burial ground within Ipperwash Provincial Park and that therefore they were justified in being in the Park during the time set out in the charges." The Crown was acting on the indications of the Provincial Divisions judges that "this defence will succeed in all instances when it is raised." - The Phoenix (CASNP publication) , Spring 1997, p. 28.
Based on the apparent contradiction of the Judge's statements, self- represented defendant Shelagh Franklin has demanded that the jury be recalled, and that the status of the colour of right defence be clarified. Franklin's own defence rests solely on the argument that Canadian courts have no jurisdiction on unceded Native land.
Supporters are still waiting for the Judge's response to her letter, as well as for the jury's verdict for the trial.
Free The Wolverine Campaign spokespeople:
Bill Lightbown - Phone: (604) 251-4949
Splitting the Sky - Phone/Fax: (604) 543-9661
May 17, 1997
FOR IMMEDIATE RELEASE
VANCOUVER, Salish Territory -- Defendants in the Ts'peten (Gustafsen Lake) trial have recently learned that Judge Bruce Josephson eliminated a major portion of their defence in a series of rulings toward the end of April, in the 11th hour of the trial. They were not informed of this at the time by their lawyers, and only discovered it when the judge stated in his charge to the jury that the "colour of right" defence did not apply in this trial.
When questioned, the defence lawyers revealed that the judge at his own discretion had also eliminated the argument of self-defence for the two defendants charged with attempted murder, Wolverine (William Jones Ignace) and his son Joseph (JoJo), and that the only defence still available to all defendants is reasonable doubt and presumption of innocence, the barest bones of a defence.
The colour of right argument in this trial is based on existing constitutional law. One defence lawyer said casually that of course colour of right should still apply, "but what are you going to do?"
Elder Bill Lightbown remarked, "Obviously we've been sold down the river by all of the lawyers."
Self-representing defendant Shelagh Franklin submitted a formal request that the judge reconvene the jury to clarify his ruling and reasons for disallowing colour of right. The judge refused to readdress the issue, saying he would give his reasons "later". The written reasons for the original ruling are also unavailable.
The judge in effect has told the jury that they need not consider the months of testimony detailing the outrageously excessive force by the RCMP, their "smear and disinformation campaign" against the defendants, the long history of Canadian genocide against indigenous peoples and its perpetuation through the courts. The colour of right argument was resorted to in this trial when the judge refused to address the constitutional and international law that says Canada has no jurisdiction on land that it never acquired by treaty.
Franklin said that this latest turn of events suggests "We're not allowed to be right about the law, but we're not allowed to be wrong about it either."
The jury is still deliberating.
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For More Information:
Ts'peten Defence Committee spokespersons:
Bill Lightbown, phone: (604) 251-4949
Splitting The Sky, phone/fax: (604) 543-9661