Judge should have declared ties to CN Rail in native protest cases, lawyer argues
High-profile lawyer complains to legal disciplinary body that judge should have declared potential conflict of interest before hearing case involving CN Rail and Aboriginal protestors
The complaint against Justice D.M. Brown of the Superior Court of Justice, Ontario, comes after he sharply criticized police for not taking swift action to remove First Nations demonstrators from rail lines during the Idle No More First Nations protests in the winter of 2012-13.
During the cross-Canada First Nations demonstrations, Brown granted three injunction orders in favour of CN Rail, in which he called for protesters to be removed from blocking rail lines.
In the complaint filed with the Canadian Judicial Council this week, Toronto lawyer Peter Rosenthal writes that Brown should have disclosed that he represented the railway as counsel in tax litigation prior to his appointment as a judge.
Brown did not respond to a request for an interview sent to the media relations branch of the Superior Court of Justice about Rosenthal’s complaint.
Brown also previously acted as a witness for CN Rail in American regulatory proceedings, Rosenthal states in his complaint.
“His failure to disclose this potential conflict of interest would lead a reasonable, fair-minded and informed person to be concerned that the proceedings might be biased,” Rosenthal writes in his complaint.
In his complaint, Rosenthal notes that Brown was highly frustrated and made “scathing” comments after Sarnia police and the Ontario Provincial Police chose to exercise discretion and not move to remove protesters.
The judge blasted police for not moving in on protesters, saying after he granted the Dec. 27 injunction that: “With all due respect to the Sarnia Police, local police agencies cannot ignore judicial orders under the guise of contemplating how best to use their tactical discretion . . . A court order is not one amongst several chips to be played in an ongoing contest between the police and transgressors of legal rights.”
Brown granted the first two injunctions after members of the Chippewa of Sarnia First Nation blocked a CN rail spur line in December 2012.
He granted the third injunction after a different group of native protesters blocked the main CN railway line near Kingston as part of the Idle No More protests.
Native protesters were supporting Chief Theresa Spence of the Attawapiskat band in northern Ontario, who declared she would continue a hunger strike until Prime Minister Stephen Harper met with her.
They were also protesting federal legislation that they felt would undermine native rights.
Rosenthal acted for Ron Plain, a spokesperson for the Sarnia-area protesters.
Plain was eventually fined $16,584.87 by Justice Bruce Thomas of Ontario Superior Court for the 13-day blockade.
That amount was eventually lowered to $5,000, with an agreement that Plain would not appeal the finding of contempt.
In his complaint, Rosenthal writes that police were following recommendations from the Ipperwash Inquiry, which was called after the OPP fatally shot unarmed protester Anthony (Dudley) George at Ipperwash Provincial Park near Sarnia in September 1995.
“The police had, in fact, chosen to follow the recommendations from the Ipperwash Inquiry that emphasized de-escalation and negotiation, as well as the decisions of the Ontario Court of Appeal that indicate that ‘reconciliation of aboriginal and non-aboriginal interests through negotiations, (. . . ) respect for Crown and police discretion, (. . . and) respect for the separation of the executive, legislative and judicial branches of government’ ought to be considered when deciding how to best uphold the rule of law in the context of aboriginal protests,” Rosenthal writes.
Rosenthal suggested to the council that Brown apologize to Plain and to native people in general and be told that it would be inappropriate for him to hear any future cases in which CN Rail seeks any orders against native people.
The Canadian Judicial Council is made up of 39 judges, and chaired by Supreme Court of Canada Chief Justice Beverley McLachlin.
Posted on March 27, 2014, in Uncategorized and tagged CN Rail, conflict of interest, Idle No More, Justice D.M. Brown, native blockades, native protests, Sarnia train blockade. Bookmark the permalink. 1 Comment.