Law Times

PAGE 6 COMMENT Law Times Group Publisher ......... Karen Lorimer Associate Publisher ........ . Gail J. Cohen Editor .............. Gretchen Drummie Associate Editors .......... .Helen Burnett . . . . . . . . . . . . . . . . . . . . . . . . . . Robert Todd Copy Editor .............. Matt LaForge CaseLaw Editor ......... Jennifer Wright Art Director ............ Alicia Adamson Production Co-ordinator ..... Mary Hatch Electronic Production Specialist ................ Derek Welford Advertising Sales ........ Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ............. Sandy Shutt No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. ©Law Times Inc. 2008 All rights reserved. Editorial Obiter T the comic actor of Saturday Night Live fame — who melted into the system's cracks and languished in jail for more than 800 days awaiting trial on a single charge of criminal harassment — was on track for some sunnier skies. The gifted Rosato had received the ap- hat black cloud over Tony Rosa- to's head hasn't gone anywhere. Eight months ago it seemed as if propriate placement from the criminal court in what was hailed as a unique con- clusion that effectively reintroduced the concept of mental health capping provi- sions in criminal law. He was confined to a psychiatric hospital for a fixed time instead of being warehoused indefinitely as NCR. And, it was thought by his laywer Ro- sato would be speedily before the consent and capacity board for a determination of whether he has the ability to make a deci- sion about treatment, and if not, order it. He was placed on a probation order for MAY 12/19, 2008 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca Publications Mail Agreement Number 40762529 • ISSN 0847-5083 CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-713-4340 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Still no laughing matter a maximum of three years requiring him to live at a Kingston psychiatric facility, and if the mental illness is not under control by the end of the term, Rosato will leave the criminal system and be recommitted civilly. But, if it's decided at any point that he is well, he can leave. And, maybe, if things had gone the way of the script, Rosato could have been back to mental health already, says his lawyer Daniel Brodsky. Instead, he remains untreated by drugs, or surgery if needed, and he has not appeared before a tribunal, says Brodsky. The trouble with Tony is that he suf- fers from Capgras syndrome which causes him to believe loved ones have been re- placed with imposters, which is what gave rise to the charge. But this tragic ill- ness had a very sudden onset, on top of which a brain scan showed an abnormal- ity that could suggest he had a stroke or tumor, Brodsky tells Law Times. "You've got a guy with a good progno- sis if he has treatment, or maybe some- thing like a tumor that is operated on, so you would think, given the court thinks he has mental health problems, you'd take the case to a mental health tribu- nal for determination of whether he has the capacity to make the decision if he should be treated, and if not then order he be treated," says Brodsky. Rosato firmly refuses treatment. And so far he will not agree to ask for a tribunal hearing. As an example of how he thinks these days, even though a transfer to To- ronto's Centre for Addiction and Mental Health is available, and Rosato does want to return to his hometown to be closer to family and friends, he won't agree because of the name of the facility, says Brodsky. Rosato insists he doesn't have an addic- tion or mental health issues and fears if he goes there he's admitting he does and will be stigmatized. But, if the name is changed back to the Clarke Institute, he'll move. "An adjudication has to be made," says Brodsky. "They have not had the hearing, or even scheduled it and there's this black cloud over his head . . . What's taking so long? Nobody has an answer for that and I get e-mails from his friends who just don't understand it." Brodksy adds that "everyone expected he would go to a hearing, he' not capable of deciding and then get treat- ment and let the chips fall, with the prem- ise that there was urgency based on what the doctor said. Instead he's been sitting for eight months . . . My client wants the black cloud over his head taken away . . . He can ask for the hearing but he won't. It's detrimental to both [Rosato] and the public to leave this in limbo any longer." The worst that can happen is Rosato's mental health stays the same, he adds. But there is a ray of hope. — Gretchen Drummie d be found one from Queen's Park, canoed and camped across northern On- tario negotiating Treaty 9. Over the next 25 years, the remaining First Nations bands of the James Bay watershed, some 235,000 square kilometres, gradually ad- hered to the treaty. On March 17, for defending the terms of that treaty in face of a court order, six councillors and staff of the Kitchenuh- maykoosib Inninuwug First Nation (KI to most of us), 600 km northwest of Thunder Bay, were jailed for six months. Platinex, a mining exploration I n 1905 and 1906, three In- dian Affairs commissioners, two representing Ottawa and Reading Treaty 9 a century on That's mitted to in those treaties more than a century ago? Back in 1905, most First Na- tions of northern Ontario wel- comed Treaty 9. For years, their land had been invaded by white trappers, miners, loggers, and others. They looked for a deal that would secure their rights and interests. The treaty com- missioners assured them again and again that the treaty guaran- teed their continued use of all the land in question, particularly their hunting and fishing there. Missabay, leader at Osnaburg, History By Christopher Moore release, surrender and yield . . . for- ever, all their rights titles and privi- leges whatsoever to the lands," it says, and the treaty entitles Canada to undertake "settlement, mining, lumbering, trading and other pur- poses" in those territories. The First Nations got re- company, wants to explore on their hunting territories; the KI leaders take their stand on rights they in- sisted on in the early 1900s. As a result, a judge has given them each six months for contempt of court. I don't practise law in this col- umn, but I do practise history, and I have to say, what the hell? Don't we yet accept what we — Canada and Ontario — com- expressed his people's concern about losing their fishing and hunt- ing privileges (one rather doubts he called them "privileges.") The commissioners assured him that "their fears . . . were groundless." As commissioner Duncan Camp- bell Scott wrote, it was vital to de- velop the idea that "the king is the great father of the Indians, watch- ful over their interests." The treaty language as writ- ten is certainly blunt about what Canada and Ontario were getting. The said Indians "do hereby cede, serve lands, annual cash pay- ments, educational benefits, and other considerations. But the First Nations also got — their minimum requirement — "the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered." And this, of course, is what Platinex cannot help but threaten. Modern mining explora- tion doesn't coexist well with tradi- tional hunting and trapping. So. We got . . . well, we got Canada, 235,000 square kilome- www.lawtimesnews.com the First Nations have a pretty good response: "Uh, you signed a treaty. You acknowledged our entitlements. Sorry." Wouldn't that be nice, to see the law actually work for First Nations rights! Or, as Premier McGuinty recently said, "We've got a prob- lem with our Mining Act." But another clause turns up in Treaty 9. It allows the Crown to "take up" land for settlement, min- ing, lumbering, trading, or other purposes. That is the clause being used to allow Platinex to override the KI hunting rights. On the strength of the taking up clause, Justice Patrick Smith ordered the KI leaders to consult with Platinex on the company's exploration plans, and jailed them for their refusal to do so. tres of it, anyway. They got guar- anteed hunting, fishing, trap- ping, and so on, in perpetuity. So far, Treaty 9 seems like it could be a defensible exchange. When Ontario blithely applies the Mining Act, which gives mining exploration free entry to Crown land, it would seem treaty process a century ago, and it does not seem like rocket sci- ence. The one thing the First Na- tions insisted on was their hunting right. The treaty commissioners insisted that fears on that point were groundless. The treaty must be a meaningless fraud and the whole process back in 1905-06 merely settlers' law and settlers' justice, if the Crown or a mining company can obliterate the right more or less at will. But the courts said they can. Look at the treaty and the In fact, Smith said the sanctity of the justice system and of the rule of law required the jailing of Chief Donny Morris, Jack McKay, Cecelia Begg, Samuel McKay, Darryl Sainnawap, and Bruce Sakakeep. It's not just the Mining Act we have a problem with. LT Christopher Moore is the author of McCarthy Tétrault: Build- ing Canada's Premier Law Firm and other works in legal history. His web site is www.christopher moore.ca

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