Reconciliation is difficult after a remark that hurts

 

Reconciliation is difficult after a remark that hurts

 

CHRISTIE BLATCHFORD

cblatchford@globeandmail.com

2008 CTVglobemedia Publishing Inc. All Rights Reserved.

 

The Ontario Crown prosecutor who urged a judge to impose “a financial penalty that hurts” on the so-called KI-6 native protesters has been seconded as senior counsel to the fledgling Residential Schools Truth and Reconciliation Commission.

 

Established as part of Canada's residential schools settlement and headed by Mr. Justice Harry LaForme of the Ontario Court of Appeal, the commission is just starting up and is slated to begin work formally on June 1.

 

Although news of the appointment of Owen Young, until recently the Ontario government's lead counsel in the Kitchenuhmaykoosib Inninuwug First Nation contempt-of-court case, isn't yet widely known, that lone remark already is causing ripples of concern among native groups and may make him a controversial choice despite otherwise impeccable credentials.

 

Deputy Grand Chief Alvin Fiddler of the Nishnawbe Aski Nation, a political organization that represents almost 50 first nation communities in Northern Ontario, told The Globe and Mail this week that “we've been thinking” about raising the issue of Mr. Young's appointment with Judge LaForme.

 

Talking about punishing the community until it hurts one month, now he's [Mr. Young] supposed to find truth and reconciliation?” Chief Fiddler asked. “We have problems with that.”

 

Earlier this month, Ontario New Democratic Party Leader Howard Hampton asked Premier Dalton McGuinty in Question Period how he could be talking publicly about his government pursuing “strong and positive relationships with first nations” while the government's lawyer, whom he didn't name, was in court seeking what Mr. Hampton called “crushing financial penalties” on a native band.

 

And two days ago at the Ontario Court of Appeal hearing that freed the KI-6 and another jailed native protester, Mr. Justice James MacPherson also raised Mr. Young's remark with his former colleague Malliha Wilson, who had been talking constantly about how the Ontario government wanted “reconciliation” with native groups.

 

Help me here,” Judge MacPherson said.

 

How do I reconcile ‘reconciliation' with what I see in the transcript – ‘pay until it hurts'?”

 

In fact, the KI-6 – five former elected officials and one former employee of the band council – never were fined.

 

Instead, on March 17, weeks after hearing lengthy submissions from lawyers on what the appropriate sentence should be, Mr. Justice Patrick Smith of the Superior Court sentenced them to six months in jail, a penalty considered harsh in the “protest” context and because the defendants were all first-time offenders.

 

The six had asked for jail terms instead of fines because the band, its reserve located about 600 kilometres north of Thunder Bay, had already incurred $650,000 in legal costs in the battle to prevent a mining company from beginning to drill on their traditional lands, and had even used some of its housing money to pay its legal bills.

 

They simply can't afford it,” their lawyer, Christopher Reid, told Judge Smith last January in Thunder Bay.

 

They are unable to pay any fines.”

 

Mr. Reid had asked for the “lowest period of incarceration,” but Judge Smith said later in his ruling that, given the band's “lack of financial resources to pay a fine” and the protesters' stated intent that “they will continue to defy the orders of this court,” only “a significant term of incarceration” was appropriate.

 

The six and another man – Bob Lovelace from the Ardoch Algonquin First Nation in Eastern Ontario who was serving a similar sentence imposed last February – were all freed by the appeal court, which reduced the sentences of all seven to time already served and put on temporary hold fines of $25,000, $15,000 and $10,000 another judge had imposed respectively on Mr. Lovelace, Ardoch Chief Paula Sherman and the first nation community.

 

In the public imagination, it appears that Mr. Young's request that Judge Smith impose a steep fine on the KI-6 has been conflated with the heavy fines levied against Mr. Lovelace, Ms. Sherman and the Ardoch community.

 

In fact, Mr. Young's unsuccessful entreaty to Judge Smith preceded by almost a month the Ardoch sentencing, and his pitch for punitive fines was accompanied by a lengthy explanation.

 

But the combination of Mr. Young seeking a substantial fine on the one hand and Ms. Wilson on the other this week backing away from the province playing any role but mediator between native groups and the mining companies has convinced some that Ontario isn't taking seriously its obligation to act with “honour” in dealing with native groups.

 

Mr. Young's starting point in court last January was that, as he said, “Jail's not the appropriate remedy, in my submission, because all that does is, it first creates a situation in which people who are acting in self-help, outside the process, get to say, ‘See, the process doesn't work.' It allows them to portray themselves – it doesn't make them martyrs, Your Honour, but it allows them to portray themselves as martyrs.”

 

Describing Canada's first nations as “our third founding people,” he said that change in the “evolving relationship” between Canada and natives is accommodated within the existing constitutional structure. Thus, he told the judge, the rule of law must “persuade people in Canada to seek that change in a way that's not destructive.”

 

So the sentencing objective, he said, should not “crush the aspiration for change, but bring it inside the structure.”

 

In a telephone interview yesterday, Mr. Young defended the remark that stirred the controversy, saying that by “hurt,” he didn't “mean cripple, I meant an irritant,” and that the fines he proposed should be “big enough that you would have to pay it down over time, that it wasn't a licence to go do what you were doing.

 

It would have hurt a helluva lot less than jail.”

 

On aboriginal issues, he said, “I've always worked the same side of the fence … my agenda all along is a rights agenda. In these cases [the KI-6 and the Bob Lovelace case], what was being advanced is kind of equivocal as a rights agenda. It was more jurisdictional.”

 

At the Ontario Crown law office, Mr. Young was a senior member of what the department calls its aboriginal law team. As a defence lawyer, he represented a variety of first nations across the country in constitutional cases, and also defended the Mohawk Warriors who were charged in connection with the 1990 Oka crisis.