FRIDAY, FEBRUARY 15, 2008

Cunningham, J. (Orally):

Robert Lovelace and Paula Sherman, would you please stand. Do you have anything to say at this time before I pass sentence?

MR. LOVELACE: No.
MS. SHERMAN: No.

Thank you. You may be seated. My unpleasant task this morning is to sentence Robert Lovelace, Paula Sherman, and the A.A.F.N., in connection with their admitted contempt of orders of Thomson, J., dated August 27, 2007, and of myself, dated September 27, 2007.

Harold Perry, for reasons outlined by his counsel on the record yesterday, has given a permanent undertaking, the essence of which is that he will fully comply with my September 27th, 2007 order, that he will neither counsel, engage in, nor solicit further unlawful activity at the subject property, and that he will forthwith remove his cabin from Highway 509 and that it will be placed nowhere near the vicinity of the entrance gate to the subject property, or the Robertsville Road.

Furthermore, he undertakes not to bring any motions in connection with my order until after contempt number two has been fully dealt with.

On the strength of this solemn undertaking, the moving party, F.V.C., will not be seeking sanctions against Mr. Perry for his acknowledged contempt.

I now turn to the remaining contemnors. Robert Lovelace, who gave evidence, evidence that Mr. Reid and Mr. Lovelace confirmed was fully supported by Mr. Perry and Ms. Sherman, testified that his contempt, and theirs, was not only admitted but would continue should F.V.C. proceed to bring drilling equipment onto the subject property.

Mr. Lovelace, who fully understood the notion of purging one’s contempt, stated he could not abide by the terms of my order because to do so would be to put him in conflict with Algonquin law, more precisely, the moratorium declared by elder William Commanda.

Unlike Chief Doreen Davis and Earl Badour Senior, and indeed at the last moment, Harold Perry, neither Mr. Lovelace nor Ms. Sherman could bring themselves to comply with an order of this court.

On their behalf, Mr. Reid spoke of their frustration with the Ontario government, the Mining Act, and the courts process. He said their disobedience was a last resort, that these people had respect for the law and that it pained them to be doing this. He agreed, however, that none of this amounts to a defence to their contemptuous behaviour, behaviour, that although being prosecuted civilly, comes perilously close to criminal contempt.

While I can appreciate their sense of frustration, unfortunately, to adopt self-help in these circumstances flaunts not only my order, the order of Thomson, J., but more significantly, the rule of law.

Despite what Mr. Reid may say about the indifference of the Ontario government causing us to be here, it is the contemptuous conduct of his clients that has caused this proceeding to be initiated. Not only are Mr. Lovelace and Ms. Sherman unrepentant, they have made it perfectly clear their illegal conduct will likely continue. Needless to say, there has been no apology.

In any consideration of sentencing, certain principles come into play. Here the principles of punishment, specific and general deterrence, must be in the forefront. Not only must these individuals be deterred from committing further unlawful acts, a clear, strong message must be sent to all who might be contemplating similar action.

This motion is brought pursuant to Rule 60.11 and 60.12. The provisions of Rule 60.11(5) are very broad, once, as here, a finding of contempt has been made.

In complete defiance of the orders of this court, dated August 27 and September 27, 2007, the A.A.F.N., Robert Lovelace, and Paula Sherman, have not only engaged in a full scale occupation of the Clarendon site, they have, as leaders of their community, counselled and encouraged others to do so as well.

Compliance with orders of this court is not optional. I am persuaded that the illegal activity at the Clarendon site is not limited to the dates set out in the earlier agreement read into the record. Indeed, it was occurring as recently as early February 2008, when masked First Nation members at the site made it perfectly clear they would physically block any drill from getting onto the property. Mr. Lovelace’s evidence confirms this intention.

As many of the cases cited by the plaintiff have reasoned, to permit court orders to be wilfully disobeyed would only lead to anarchy. Many Canadians daily, following the rule of law, turn to the courts for relief. When one ignores orders of our courts, or takes the law into one’s own hands, respect for our court system evaporates, and our entire society suffers.

As my colleague, Cumming, J., stated in Sussex Group Limited v. Fangeat, [2003] O.J. No. 3348,

It is integral to a free and democratic society like Canada that citizens act pursuant to and under the rule of law. Court orders in force must be respected and followed. The deliberate failure to obey a court order strikes at the very heart of the administration of justice.

And further,

If the remedies a court directs to be put in place through its orders can be ignored with impunity, the road to civil anarchy is close at hand. The thin veil of civilization that cloaks our community through the rule of law is fragile and in need of constant protection.

Mr. Lovelace says that while he respects the rule of law, he cannot comply because his Algonquin law is supreme. He says he finds himself in a dilemma. Sadly, it is a dilemma of his own making.

His apparent frustration with the Ontario government is no excuse for breaking the law. There can only be one law, and that is the law of Canada, expressed through this court. One cannot be permitted as Wood, J. stated in R. v. Bridges 61 D.L.R.(4th)154, at page four, “the occasional anarchical holiday from the rule of law”.

As he further stated,

…by seeking to change the law by deliberately disobeying it you threaten the continued existence of the very instrument, indeed the only instrument through which you may eventually achieve the end you seek. Such conduct is not only illegal, it is completely self-defeating.

Recognizing that a sanction for contempt must be proportionate to the nature of the contempt itself, as well as any mitigating or indeed aggravating circumstances, and bearing in mind the sentencing principles of punishment and deterrence, I sentence Robert Lovelace and Paula Sherman to six months each in jail.

In addition to that, you will each be fined. Robert Lovelace, a recognized leader and spokesman for his community, was on the site in breach of the order on twenty-six occasions.

Although apparently only illegally present on two occasions, Paula Sherman is the current chief of the A.A.F.N. Her illegal presence at the site would only serve to send a signal and to encourage others.

I have carefully considered the evidence concerning ability to pay, and reference has been made by me to the suggested factors set out in my brother judge’s reasons, Justice Stinson, in Oakley Manufacturing Inc. v. Bowman, [2005] O.J. No. 1641, at paragraph 69, and by Ferrier, J. in Boucher v. Kennedy, [1998] O.J. No. 1612, in my determination of the fine to be imposed. I am satisfied that each along with A.A.F.N. has the ability to pay.

Accordingly, as to Robert Lovelace, in addition to the period of incarceration just pronounced, you shall be fined $25,000.00. Ms. Sherman is fined $15,000.00, and A.A.F.N., $10,000.00.

Going forward, and in order that these respondents comply with the order, which by the way is to continue, they shall each, along with A.A.F.N., be subject to a fine of $2,000.00 per day for any failure to comply.

As requested, the statement of defence on behalf of these respondents, pursuant to Rule 60.12, is hereby struck, and no other motions or applications to this court may be made by them until their contempt has been purged.

This, in my view, is not only proportionate to the wrongdoing, but is necessary in order to control the courts process.

However, should these respondents decide to purge their contempt by undertaking on a permanent basis to comply with my order, then I may be spoken to by way of a motion to vary or discharge this custodial order.

In the meantime, I intend to endorse the warrant of committal that the sentences I have imposed are not subject to remission of any kind unless ordered by this court.

The police, that is to say the O.P.P. or otherwise, are directed to immediately enforce the warrant of committal.

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THE COURT: As to the matter of costs?
MR. SMITHEMAN: Your Honour, we’d ask for costs on a substantial indemnity basis. And there’s one other matter, Your Honour.
THE COURT: Yes.
MR. SMITHEMAN: If I might just address the warrants … the Jane and John Doe warrants. There may have been some confusion yesterday. The request is to have those issued by this Court to assist the police in the event of a further obstruction.
THE COURT: They shall be issued.
MR. SMITHEMAN: Thank you.
THE COURT: Do you wish, counsel, a time to make written submissions with respect to costs?
MR. SMITHEMAN: Yes, Your Honour. What I would suggest is to make that returnable for March 18th as well.
THE COURT: Mr. Reid?
MR. REID: That’s fine, Your Honour.
THE COURT: Written cost submissions will be exchanged, and delivered to me, and brief written submissions no greater than three pages each, by March 18th, 2008. Thank you.

COURT CLOSED 9:45 A.M.
COURT RE-OPENS 10:30 A.M.

MR. SMITHEMAN: Your Honour, we have reached some accommodation with my friend, Mr. Reid, and I want to say that it’s been motivated mainly on compassionate grounds, and we are agreeing to an undertaking that we’ve worked out with my friend, Mr. Reid, on behalf of his client, Ms. Paula Sherman. And it relates only to the term of incarceration, the terms of which will be read in by Ms. Pratt. Thank you.
THE COURT: Is that correct, Mr. Reid?
MR. REID: It is.
THE COURT: Thank you.
MR. REID: And I think I should say in open court what I said in chambers, Your Honour, that what Mr. Smitheman was alluding to about compassionate grounds, the simple fact is that Chief Sherman is the sole supporter of three children, and she will lose them if she goes to jail.

MS. PRATT: So, the terms of the undertaking are as follows: One, that Dr. Sherman will comply with the letter and the spirit of the September 27, 2007 order of Associate Chief Justice Cunningham. Ms. Sherman will not attempt to re-secure or in any way occupy the Clarendon mineral site and exploration property.

Next, she will not engage in any activity that directly or indirectly blocks Frontenac Ventures Corporation’s representatives from bringing a drill on the Clarendon mineral site and exploration property.

She will use her best efforts to ensure that Ardoch Algonquin First Nation community members will comply with the September 27, 2007 order of Your Honour, including not coming within 200 metres of the gate of the Clarendon mineral site or the exploration property, with the exception of bona fide hunting, trapping, or fishing activites during the applicable season, in groups of four people or less, and with the exception of travel in the normal course on Highway 509.

She will use her best efforts to ensure Ardoch Algonquin First Nation community members will comply with the September 27, 2007 order of Your Honour, by not attempting to re-secure the property and not blocking Frontenac Ventures Corporation from bringing a drill on the property.

She will not solicit or encourage third parties to engage in any activity prevented by the September 27, 2007 order of Associate Chief Justice Cunningham. And in this regard, third parties include members of the Shabot Obaadjiwan First Nation, other First Nations, including Six Nations and Mohawks, settlers, including members of C.C.A.M.U., and environmental groups.

And finally, she will post a transcript of the undertakings that she has personally given to the Court in this matter in the Ardoch Algonquin First Nation Band office or the equivalent, and on the Ardoch Algonquin First Nation website.

THE COURT: Thank you. Ms. Sherman, are you prepared to abide by that undertaking?
MS. SHERMAN: Yes, I am.
THE COURT: Thank you. Accordingly, I will discharge the custodial portion of my order with respect to Paula Sherman. Anything further?
MR. SMITHEMAN: Nothing.
THE COURT: Thank you.

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FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Pamela Juneau certify that this document is a true and accurate transcript of the recording of:

Frontenac Ventures Corp v. Ardoch Algonquin First Nation et al

In the Ontario Superior Court of Justice, held at 5 Court Street, Kingston, Ontario, taken from Recording No. 911-A036/08, which has been certified in Form 1.

Date: February 21, 2008

Signature:______________________