The Ontario Court of Justice convicted the accused on counts of criminal assault and possession of a weapon for a purpose dangerous to the public peace. The charges arise from events in February 2012 related to the Caledonia unrest.

The Court referred to the occupation of property in Caledonia, in February 2006, by people belonging to or associated with the Six Nations Grand River.  They saw it as a reclamation of their land. Residents of Caledonia saw it as an illegal occupation, and were not satisfied with the response of the Ontario Provincial Police (OPP). A demonstration was organized in February 2012 by the Canadian Advocates for Charter Equity (CANACE). They intended to walk down Surrey Street in Caledonia to establish that anyone had the right to march there peacefully. By doing so, they wanted to “show up” the OPP.

Gary McHale is a member of CANACE. The Court reviewed a video of him walking down Surrey Street with the other members. The accused Teresa Jamieson called Mr. McHale “rude and profane” names, and tried to impede his progress. She picked up a piece of plastic pipe and swung it at McHale, but another person got in the way thereby preventing her from striking him.

The Court was satisfied that the elements of ss. 265(1)(b) and 267(a) of the Criminal Code had been established. Ms. Jamieson’s defence appeared to be that the Court did not have jurisdiction and she was exempt from prosecution. During questioning of witnesses, she referred to the Two Row Wampum (Treaty of Albany) of 1664 and the Nanfan Treaty of 1701. Harris J. rejected any defence relating to jurisdiction. In cases like Sparrow and Pamajewon, the courts have consistently held that sovereignty and legislative power are vested in the Crown.

The Court also rejected any argument that Ms. Jamieson was preventing a trespass, and therefore able to rely upon the defence of real property. Section 41 of the Criminal Code provides such a defence. As noted by the Alberta Court of Appeal in R. v. Born With A Tooth (1992), there are four elements to this defence including that the accused must be in peaceable possession of the land, and the victim of the assault must be a trespasser. This defence was not open to Ms. Jamieson. She was not in “possession” of the property within the meaning of the criminal law. Further, any possession by her was not “peaceable” as it was challenged by CANACE and the police. Harris J. also held that Ms. Jamieson may have genuinely believed that the property is Haudenosaunee land, but the defence of “mistake of fact” is not open to her. She knew that the possession of the land was seriously challenged by persons like Mr. McHale.

The Court therefore convicted Ms. Jamieson on both counts.
http://canlii.ca/en/on/oncj/doc/2013/2013oncj662/2013oncj662.html

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-640-4029
SKerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law