Law Times

PAGE 12 FOCUS march 15, 2010 • Law Times Caledonia litigation: is the rule of law just a noble slogan? I BY SUSAN HUGHES For Law Times n Britain, a legal storm is brewing over a gypsy en- campment and police fail- ure to enforce the law there. Christopher Sims was angry after police told him they had found his stolen Mercedes van but refused to retrieve it because it was "too dangerous" to enter the gypsy site. A police spokes- person denied authorities had no-go zones, but some observ- ers argue police are trying to maintain the peace and keep a lid on infl ammatory situations rather than apply the rule of law. Th e simmering native dispute in Caledonia, Ont., has pro- voked similar controversies here. To resolve it, the provincial gov- ernment bought out the Douglas Creek Estates at the centre of the protests for $12 million. In the meantime, a Caledonia family aff ected by the dispute brought a $7-million lawsuit against the government that settled on Dec. 31. Th e terms of the settlement are confi dential. Dave Brown, Dana Chatwell, and their son Dax alleged the province had failed to protect them from protesters who left them in a state of siege for "496 days in hell." By now, everyone is familiar with their testimony. Th ey allegedly weren't allowed to come or go from their home without showing a passport. At the same time, they faced threats to their personal safety and to burn down their home. When they called police for protec- tion, they refused to investigate, the family claimed. Th e cases raise an important question: at a time when state power is a increasing noble in most western countries, is the rule of law becoming anything more than slogan? 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Th ere is a perception, certainly by people in the area there, that there is a two-tiered enforcement of the law. It seems to me that whether or not at the end of the day someone makes a determination that there is or there isn't, or whether the OPP are justifi ed in how they've done it, the fact that there is a perception, which many people would argue is justifi ed, is a big enough problem. "You simply cannot have people believing en masse that one group in society is not be- ing treated the same as another group with respect to the en- forcement of the law." Bordin adds: "When you For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0315 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. have developers who have abso- lute title based on what the prov- ince tells them is their land, and yet the OPP say to them, 'We're not going to help you to get rid of these trespassers' — no mat- ter what claims that they're mak- ing — then they have to resort to the courts and spend tens of thousands of dollars and face all this uncertainty. Or you have homeowners who can't sell their homes because people aren't sure what's going to happen. Th e state exists to protect both sides, not just one side." In Brown and Chatwell's case, it wasn't just property rights that were at stake but also their safety and security. Th e govern- ment, however, maintains it has upheld the rule of law in Cale- donia. "Th ere is one law that applies equally to all Canadi- ans," Ministry of the Attorney General spokesman Brendan Crawley wrote in an e-mailed response to questions. "In all www.lawtimesnews.com 'The traditional rule of law says my home is my castle,' says John Evans. provinces, the administration of justice has a number of dimen- sions that include respect for minority rights, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, and respect for the separation of the executive, legislative, and ju- dicial branches of government. Th e rule of law takes all of these dimensions into account." Evans, however, has another view: "I suppose what troubles us, and to me what is an inter- esting aspect of our trial on the rule of law, was that what hap- pened here was an occupation by natives of property, 70 acres of developed property. Th ere is abuse of the [Douglas Creek] people's right of ownership and use of their property; however, the countervailing view is this is a First Nations land occupancy. Th ose apparently are competing interests. Th e traditional rule of law says my home is my castle." He adds: "In our case, the evidence which we fi led [includ- ed] sworn testimony from the commissioner of the OPP Mr. [Julian] Fantino, his superinten- dent in London, as well as his commander in Cayuga [that] ac- knowledged that the conduct of the men and women, particularly the men, coming off the [Doug- las Creek] site and causing harass- ment, damage, and trespass to our clients were unlawful acts. "Of greater importance, they acknowledged that none of those acts had anything to do with the native occupation, lawful or unlawful. It wasn't an occupation of land. Th ese were acts of lawless conduct." But with the lack of public information about the govern- ment's settlement with Chatwell and Brown, it's unclear what impact the case will have on fu- ture litigants bringing such cases against the state. For its part, the government says the case has oth- er implications. "Caledonia has shown the importance of seeking ways to build partnerships and relationships at the local level and that locally proposed solutions are often the best solutions," Crawley wrote. "Using negative comments to divide the community does not help to resolve the situation. We need actions and people that help to heal the community and bring it together." LT W ard Branch W ith contributions from: Caroline Abela, Steve Doak, Paul D. Guy Editors: Bryan Finlay Q.C., Marie- Stephanie L. Turnham, David Vitale and John Wilkinson Andrée Vermette and Michael Statham , Nikiforos Iatrou,

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