The Court of Appeal just released its decision in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534, an important case dealing with contempt and First Nations protest.
As readers may recall a number of protesters were convicted of contempt in two separate matters for failure to obey court orders and were sentenced to relatively lengthy jail sentences. The Court of Appeal overturned the sentences but with “reasons to come”.
Specifically, in the first case six members of the Kitchenuhmaykoosib Inninuwug First Nation appealed from the sentences imposed on them by Justice George P. Smith of the Superior Court of Justice on March 17, 2008 for their admitted contempt of a court order made by him on October 25, 2007. In the second case, the Ardoch Algonquin First Nation and two of its members appealed from the sentences imposed on them by Associate Chief Justice Cunningham of the Superior Court of Justice on February 15, 2008 for their admitted contempt of two court orders. A panel of the Court of Appeal for
The decision makes it clear that incarceration for civil contempt is to be used as the very last resort. Moreover, in the context of First Nations rights disputes incarceration is to be avoided.
The most critical passages regarding First Nations follow:
[45] And how are these interests [aboriginal rights, land development and Crown proerty rights] to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada – consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests: see R. v. Sparrow, [1990] 1 S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550; and Mikisew Cree First Nation v. Canada (Minister of Heritage), [2005] 3 S.C.R. 388. The honour of the Crown requires that it act as a committed participant in the undoubtedly complex process of consultation and reconciliation: Haida Nation,
[46] Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.
...
[58] First, while the appellants did not contest the injunctions and admitted that they were in breach of the orders, the enforcement of the injunctions by imprisonment could not help but emphasize the estrangement of this community and aboriginal peoples generally from the justice system. The use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of aboriginal law and aboriginal rights. Second, imposing a lengthy term of imprisonment on a first offender fails to recognize the impact of years of dislocation. The fact that persons of the stature of Mr. Lovelace and Chief Sherman saw no meaningful avenues of redress within the justice system and felt driven to take these drastic measures demonstrates the impact of years of dislocation and the other problems discussed in Gladue at paras. 67-69. Finally, imprisonment, far from being a meaningful sanction for the community, had the effect of pitting the community against the justice system. That the court found it necessary to imprison the leaders of the AAFN simply serves to emphasize the gulf between the dominant culture’s sense of justice and this First Nation’s sense of justice.
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