A. Cameron Ward Barristers and Solicitors » Opinion
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The six Vancouver Police Department members convicted of eighteen counts of assault face a sentencing hearing in British Columbia Provincial Court on December 16 and 17, 2003. The prosecutor’s submissions may shed more light on the terms of any plea agreement negotiated with the police officers’ lawyers.

On November 24, 2003, the six men pleaded guilty to eighteen charges of assault arising from an incident that occurred on January 14, 2003. According to an agreed statement of facts negotiated between the officers’ lawyers and the prosecutor, the six VPD members apprehended three civilians in downtown Vancouver at 4:30 a.m. and put them in a paddy wagon. The paddy wagon and three squad cars then drove to Stanley Park, a large wooded area adjacent to the city. There, the civilians were taken out of the paddy wagon one by one and assaulted. The civilians were not charged with any offences. The incident only came to light when a seventh officer, a new recruit, reported it to superiors.

These cowardly criminal acts were an appalling abuse of police power and breach of the public trust. One can only imagine how terrifying the experience must have been to the three victims who were assaulted in the darkness by six burly uniformed policemen.

Surprisingly, the officers remain on paid leave while they await sentencing in December and a disciplinary hearing in January. Amazingly, the VPD’s spokesperson has suggested that each officer may ultimately retain his job.

There can be no doubt that the six officers and their lawyers made a favourable plea bargain with the prosecutor. The agreed statement of facts minimized the severity of the conduct, including phrases like “P.C. Kojima contacted [one of the victims] with his police-issue baton in the vicinity of his knee” and “P.C. Kojima prodded [another victim] with his boot”. When the guilty pleas were entered, charges of assault with a weapon and attempting to obstruct justice (in relation to an alleged coverup) were stayed.

Whatever punishment may be imposed by the court, these six officers are no longer fit to wear the City’s badge and uniform, in our opinion. They abducted three people and perpetrated premeditated assaults on them in a dark, private location. In so doing, they showed contempt for the law they were sworn to uphold. They do not deserve to be employed by the citizens of Vancouver.

*Pride, Honour, Respect: the first three words in the Vancouver Police Department’s promotional videotape entitled “The Promise”.

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The Commission for Public Complaints Against the RCMP has issued a “scathing” report condemning the Royal Canadian Mounted Police for tactics used in Quebec City in dealing with anti-globalization demonstrators. It is apparent that the RCMP does not appreciate its legal obligations in dealing with crowds and continues to abuse citizens who take to the streets to exercise their democratic right to dissent. Many of the force’s mistakes at APEC ’97 in Vancouver were repeated in Quebec City in 2001.

The disturbing thing about this is that the RCMP is our national police force, sworn to uphold the law. Instead, it is repeatedly violating the law and trampling on the fundamental constitutional rights of Canadians. Even more distressing, if that is possible, is the Commission’s conclusion that the RCMP’s internal investigation amounted to a whitewash.

Canadians deserve better.

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On October 14, 2003, Betty Krawczyk, a seventy-five year old author, activist, former political candidate and great grandmother was sentenced to serve a further six months in prison, in addition to the 4 1/2 months she had already spent in jail awaiting trial. What motivates such a person to spend her 75th birthday, Thanksgiving, Christmas and New Year’s behind bars? Betty’s speech to the judge, slightly edited, is reproduced below:

I would first like to speak to my sentencing from the point of view of being an elder.

I turned seventy-five in prison last August 4th and I decided I really liked the term ‘elder’. ‘Elder has a ring of dignity about it that ‘Senior Citizen’ doesn’t have.

In prison I have been learning to drum and sing native songs with the Native Sisterhood, and I have noted that the respect afforded elders is still alive and breathing in their society, even in prison.

Elders were respected in most ancient societies. We are told by anthropologists that elders bridged the gap between generations, and as the human race would not have survived without them, there was power and prestige in being an elder.

We all know that’s no longer true. The job description for elders has changed. We are no longer thought to be necessary for survival. Computers have taken the place of elders as repositories of information. So today, because being an elder no longer invests one with power or prestige, almost nobody wants to be one, or even to be one when they are one. But I would like to shout this message to the heavens if I could…

What good will high tech computers be to us when the earth’s waters are so polluted and dried up that children sicken and die everywhere, and not just in third world countries, when our food has become so industrialized and chemicalized that it is more a chemical gumbo than food, when our forests are all gone and the remaining top soil washed away – what good are high tech computers then?

Elders have perspective because we were there, a long time ago, and while politicians may have been just as corrupt as they are today and the wars just as brutal or more so, and greed was rampant everywhere in high places – at least the the earth itself and the earth’s waters, were all okay.

That’s no longer true. The earth is not okay. And it’s not okay in ways that fill many of my generation with absolute terror because we are aware of how this is already affecting the health of our grandchildren, and this one overriding fact fills us with increasing alarm and sadness. My immune system and most of those of my generation, is stronger than the immune systems of my grandchildren, and the grandchildren of other seventy year olds.

This is because we enjoyed a blessing our grandchildren will never know – that of growing up in a largely chemical free environment. And the chemicalization of industry has spread everywhere and the logging industry is no exception.

Clear-cutting, recently renamed ‘retention logging’ by forest companies, require massive amounts of herbicides and pesticides on replanting. These chemicals contain compounds that mimic the female hormone estrogen. These compounds lodge in topsoil and seep into ground water and are being linked by an increasing number of medical researchers to the fifty percent drop in male sperm count and the highly unusual prevalence of diseases that were previously only associated with old age, like breast cancer and prostate cancer, showing up in alarming numbers in very young people. These trends are documented in books on the market such as: Our Stolen Future, Living Downstream, and the Feminization of Nature, plus many articles and CBC documentaries.

So it has seemed to me for a long time that the men in charge of the world’s affairs have not been willing to approach the earth’s environment in a respectful manner, and it was a year ago that I, along with a group of like-minded women, came together and formed a collective we called ‘Women in the Woods’. And if I may I would like to read the first paragraph of our Mission Statement:

“We, Women of the Woods, have come together as a group in order to facilitate our understanding and protection of the Public Forests of British Columbia.

We declare that women, as mothers, grandmothers, daughters, sisters, nieces, aunts and friends, have a special interest in the preservation of our life support

Systems as women are, and have been, historically speaking, moderators of society and stewards of the land.”

“And it is in this role of moderators and stewards that we struggle to protect what is left of the public forests of British Columbia from privatization and devastation by provincial governments, the logging companies, and the indifference, if not actual collusion, of the Courts of British Columbia.”

Sir, our collective does the usual things that most environmental groups do, we write letters, petition government, call and visit MLA’s and speak anywhere we are invited to speak.

But when we first read Gordon Campbell’s ‘Working Forest’ Initiative and understood the ramifications of the proposed legislation and what this would mean to every man, woman, and child in BC, and indeed, in all of Canada, and that for whatever reasons, the Times Colonist, the Vancouver Sun and the Province – the three largest local newspapers in BC – seemed unable or unwilling to try to explain to the public just what these proposed changes would bring to us all, then we women of Women in the Woods decided to launch our own campaign to alert the public.

And here I would like to return to the Women in the Woods mission statement, page 2, paragraph 2, and I quote:

“We, Women in the Woods, do not disdain using peaceful civil disobedience as a tool to bring attention to the plight of the public forests of British Columbia as we are aware of the long and honourable history that peaceful civil disobedience has played in the evaluation of law in this country and on this continent.”

“We recognize that peaceful civil disobedience, far from being in opposition to the law, is part and parcel of the law and we, Women in the Woods, declare our right to engage in participatory democracy”

So, last Valentine’s Day, on February 14th, in order to raise public awareness of what was actually in Gordon Campbell’s proposed Working Forest legislation, Women in the Woods blocked the right turn lane on Government Street in Victoria that leads to the front of the Parliament Buildings.

We chatted up the motorists with chocolate kisses and information sheets and it all went very well. The people of British Columbia, and tourists, too, love the public forests of BC, and want to talk about them. But of course the police appeared shortly and told us in no uncertain terms to take our Valentine placards, our chocolate kisses, and ourselves out of the middle of the road.

I refused, was taken to jail, charged with obstructing a police officer, spent two weeks in jail and that was that. Everybody, including me, felt that justice was served. And I felt that justice had been served because I was arrested and charged as any other person blocking a public road would have been – under the Criminal Code.

However, when Women in the Woods went out to the Walbran in May and June, we found we couldn’t take the Criminal Code with us. At least not as far as Weyerhaeuser’s Tree Farm Licence No. 44. In fact, when our Criminal Code, which serves the nation so well in all other circumstances, hit the border of that powerful, U.S. based, transnational logging corporation, well, the Criminal Code was just knocked out cold. It just lay there on the ground, unconscious, gasping for breath, and we had to go on without it.

So it took almost two and a half weeks for me and Jen Bradley to be arrested in the Walbran compared to less than thirty minutes in Victoria, for essentially the same action, blocking a public thoroughfare.

The reason it took so long in the Walbran – well, it took time for Weyerhaeuser and their contractors and lawyers and the Attorney General and the courts to start meshing together so that the entire rigamarole of herding protesters into that one legal straighjacket, that one black hole of special arrest and charge category that would guarantee that worried citizens who peacefully join a blockade in their own public forests to protest their destruction will be deprived of any of the protections of the Criminal Code that even the most violent murderers have access to – and it takes time for all of this rigamarole to get going so the RCMP can be instructed by the Attorney General not to arrest until all of the proper papers are ready that will make certain that any citizen who seriously challenge the powerful logging companies of one day’s profit (for after all, one old growth tree can mean up to $100,000 to a logging company like Weyerhaeuser), that any citizen who dares interfere with this plunder of our public forests must be imprisoned with the legal process reserved just for them, that will make sure they have no legal defence because they will be charged with that archaic, unreasonable, undemocratic, entirely political charge of contempt of court, and will be faced with potential financial ruin and lengthy prison sentences.

But even this almost total legal protection and insulation from possible public protest isn’t enough to quell the fears of potential investors in the BC logging industry. Gordon Campbell invited the CEOs of the largest companies into his government to tell him of their greatest need, and they told him in no uncertain terms their greatest need was for certainty. No capitalist risk taking for these guys. They demand absolute certainty. And one way to achieve absolute certainty is to declare that the public forests of British Columbia are no longer public and to change the very name to something else.

This is how our public forests became the ‘working forest’ in Gordon Campbell’s recent legislation. And how simply by an order in Cabinet under Stan Hagen, who is Minister of Sustainable Resource Management, our public forests as they were then, now Campbell’s working forest, which comprises one half of the province, can now not only be logged unmercifully, but the very land itself can be made private through a simple order in Cabinet with Stan Hagen playing the primary role and I quote on page 14 of the government paper “A Working Forest for British Columbia”:

“the accountabilities for decisions to transfer working forest land to private land status, with the Minister of Sustainable Resource Management playing the primary role…”

And again on page 15, same government document:

“Generally, the Minister of Sustainable Resource Management or senior regional ministry will have authority for decisions to withdraw land from the working forest for conversion to private land…”

We are talking here about half of the land mass of British Columbia in the hands of Gordon Campbell and Stan Hagen who are intent on making the public lands and forests of British Columbia not only open to private investment, but giving absolute assurance to private investors that our lands and forests will be theirs for the taking as soon as Gordon Campbell can get his ‘working forest’ bill to become law.

But once our public lands and forests become private they will never be public again and NAFTA is there waiting to protect private foreign investment.

Sir, these are huge issues and they were much on my mind when I went out to the Walbran. And I know that the issuing of injunctions in protest situations troubles at least some of the Supreme Court judges of BC.

Mr. Justice Williamson expressed concern about using injunctions in protest situations in his judgment (Alliford Bay Logging v. Myjchajlowyz) on January 17, 2001, Mr. Justice Vickers expressed similar concerns when he lifted the injunction in the Elaho valley in 2001, Mr. Justice Mark McEwan when he subpoenaed an RCMP Staff Sergeant to explain why the RCMP didn’t just arrest the protesters in a blockade involving Slocan Forest Products in June of 2000, and Mr. Justice Pitfield on July 25, 2000 concerning an application for a new injunction in the Elaho by Interfor said in his reasons:

“There appear to be adequate provisions in the Criminal Code to permit the Attorney General to ensure the required protection. If the Attorney General doubts the adequacy of the criminal law, the legislature should search for other means to ensure that the rights it has lawfully created are not abrogated by actions taken by members of the public. The responsibility to devise a means of ensuring that protection should not be delegated to the courts.”

And again it was Mr. Justice Pitfield who in his oral reasons for a refusal of a stay in my application in this case changed the injunction:

“Now I am going to make some changes in relation to the injunction itself. The changes that I am going to make are within the inherent jurisdiction of the court and I do not need an application from anyone. The names of Ms. Krawczyk and Ms. Bradley will be deleted from the Order. The following will be added to the conclusion of paragraph 1; ‘provided that this order shall not bind either Betty Krawczyk or Jenna Bradley, each of whom shall be and remain liable to prosecution for any offence of whatsoever nature or kind and wherever committed by either of them in contravention of any provision of the Criminal Code of Canada or of any statute or regulation of the Province of British Columbia.’

Mr. Justice Pitfield went on to say how Mrs. Bradley and I might be arrested under the Criminal Code should we go back out and blockade in the Walbran again, and he gave the offences of mischief and intimidation as examples.

It’s really difficult to know what to make of these changes. Does it mean that if Mrs. Bradley and I go back out to the Walbran to blockade again along with two others willing to be arrested, that Mrs. Bradley and I will be arrested under the Criminal Code while the two others will be arrested under a court-ordered injunction that would lead to a charge of contempt of court?

This would be blatantly unjust and it wouldn’t do anything to elevate the prestige of the justice system. But with all due respect, Sir, it’s because of the prevalence of SLAPP suits and court ordered injunctions, that in my opinion give rise to contradictions and these kind of confused rulings. And with this kind of confusion from the Bench I don’t think anybody should be doing time over anti-logging protests, certainly not until the judiciary in general can come to more of an agreement. I personally think it’s miserable to hear judges say they disapprove of the SLAPP suits and injunctions but then keep giving them out anyway.

…..

Sir, I refuse the charge and conviction of criminal contempt of court. I believe it to be a political charge and not a true one, I do not own it, I will never admit it and I refuse to internalize it no matter how long I stay in jail.

I want a correct legal description and charge for what I did in the Walbran, which was block a public road on Weyerhaeuser’s Tree Farm Licence No. 44. I deserve this as a citizen of this country, as a citizen of this province, and I refute what appears to me to be a two-tiered justice system, one for ordinary folks and one for wealthy, powerful corporate giants.

And I must add, Sir, as a taxpayer, it annoys me no end that Weyerhaeuser, this US corporate giant, does not even have to pay for a lawyer for this trial because the Attorney General, by elevating my charges to criminal contempt of court, allows the Crown to take up Weyerhaeuser’s complaints and then BC taxpayers pay. We are all here today paying for the privilege of having a foreign corporation strip our old growth public forests of our most valuable trees.

Sir, if a private person acted in the way Weyerhaeuser does, with no concern for the property of others, if a private person took the most valuable items out of a public holding, and then trashed what was left behind, they would be thrown in jail almost as fast as I usually am.

And yet Weyerhaeuser, who is a corporation, is afforded all of the rights and privileges of a private person but with none of the responsibilities of a private person – while I, who actually am a private person and citizen, am judged to have no standing in this matter, that is, no right to try to prevent in a non-violent way, the destruction of my own property as a co-owner of the public forests of British Columbia.

And just as we, Women in the Woods, declare that a temporary tree farm licence is not a transfer of public property to private – a tree farm licence is a lease, nothing more. And we refute this notion that a temporary lease allows Weyerhaeuser all of the privileges of private property while, once again, none of the responsibilities.

Sir, nobody ever argued for the abolition of slavery on the grounds that slavery wasn’t legal. Slavery was legal in the countries and states that had slavery because the men of wealth and power in those places made sure the laws suited their practices.

So the abolitionists didn’t argue points of law centred around whether slavery was legal or not, but instead, that slavery was immoral.

And the arguments used to contest child labour laws, or the lack of child labour laws, didn’t focus on the existing laws themselves, but the immorality of hiring little working class kids to toil and die early deaths in manufacturing plants and in the mines.

And the struggle over women’s right to vote didn’t concentrate primarily on existing laws – the focus of argument was whether or not it was right and moral to keep over half the population from voting.

Sir, all of the great struggles in the evolution of law and society in the so-called civilized world in the past two centuries, all of these great issues surrounding slavery, child labour, women’s rights, union organization, racial equality…all of these great issues were not argued by the men and women trying to change unjust laws, that the laws as they stood weren’t legal. The underlying focus of argument always centred on the growing perception of a large number of people that slavery, child labour, a nation of disenfranchised women, semi-starving workers and racial inequality was – well, immoral, and I believe, Sir, along with the women of my collective that the plundering of the earth’s life support systems in general, and the plunder of BC public rainforests in particular is equally an issue of morality.

We believe that it is grossly immoral conduct for huge, transnational corporations, wrapped in legality, to steal the life support systems of future generations.

I’m very aware, Sir, of past rulings by the BC Supreme Court on this allegation of immorality coming from people like me. The courts have consistently said that the question of morality or immorality of the destruction of our ancient public forests, that the morality or immorality of how protesters are charged and prosecuted is not the business of the court, and that the only thing the courts should look at in protest cases is whether or not the accused broke an individual judge’s order.

…Because an individual judge’s order stands paramount, and because an individual judge’s order in the form of an injunction will take precedence in the Supreme Court of British Columbia over all other considerations – over the right to a fair trial, which is impossible under the contempt of court charge, over the rights of citizens to try to protect their public property in ways that doesn’t require millions of dollars that they don’t have to try to sue the government and the logging companies – this injunction appears to be more important to the Supreme Court of British Columbia than due process and democracy itself. And this, Sir, in my opinion, is immoral.

Sir, I have never suggested that I shouldn’t take responsibility for my own actions. In fact, I insist on taking responsibility for my own actions.

That’s why I prefer to remain in jail after arrest rather than sign a promise not to go back into the forest. In a very real sense I feel this would be tantamount to signing away my responsibility, a tacit admission that perhaps I had been doing something I shouldn’t have been doing when I was arrested.

For me to sign such an agreement of compliance would mean that Weyerhaeuser, through the courts, could command me to police myself to their requirements which would serve to persuade me to embrace an internal control that would tempt me to lose faith in my own inner sense of purpose and responsibility.

But however you find me on sentencing, Sir, I have been incarcerated continuously since June 24 and I was held for three weeks without charge in May.

Sir, to be held three weeks without charge is almost unheard of in Canada, except perhaps lately, with suspected terrorists.

I want to assure the court that I am not a terrorist and I highly resent being treated like one. My sentencing is in your hands, Sir, but with all due respect I ask that you not impose conditions attached to my sentence.

Freedom consists of the ability to choose freely between the courses of thought and action presented to one. And I exercise this freedom wherever I am. In prison I consider myself a political prisoner and conduct myself accordingly.

My body is in prison but my spirit is not. And neither, while in prison, do I think of myself as being separated from my children and grandchildren, from my friends and colleagues and supporters and from the old growth public forests of British Columbia.

I carry all of these in my heart, they are part of me, and I will never bargain or condition away one iota of my freedom or theirs, or my utter belief in equality under democracy and the rule of law.

If this court imposes conditions on my sentencing I will not feel honour bound to abide by them because I will not agree to them. I must repeat here what I advised Mr. Justice Parrett before he sentenced me for blockading in the Elaho Valley in 2001;

Sir, you must lock me up or let me go.

Thank you.

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CBA fee dispute unseemly

October 15, 2003 in Opinion

On October 27, 2003, British Columbia lawyers will vote on whether to approve the fee resolution submitted by the Benchers (governors) of the Law Society, or whether to amend it to include mandatory payment of a Canadian Bar Association fee.

The mandatory CBA fee has been the subject of five separate lawsuits and numerous debates. Prior to 2003, lawyers had to join the CBA in order to practise law in British Columbia. In 2003, they could opt out of membership, but were obliged to pay a fee ‘equivalent to membership’.

Although the CBA is an independent voluntary advocacy organization, and eleven other Canadian jurisdictions do not force lawyers to financially support it, British Columbia’s CBA proponents continue to fight to retained compelled support.

If a lawyer chooses not to join the CBA, why should he or she pay the fee?

With respect to those who feel differently, there is no good answer. It really comes down to money. British Columbia lawyers pour about $4 million a year into CBA coffers, which is used for various purposes, including offices, salaries, travel, parties, seminars, etc. The CBA doesn’t want to lose any of this revenue.

It seems most unfortunate, and unseemly, for lawyers to stake out a position based on financial considerations in preference to a position that is fair, just and right. Surely its unfair, unjust and wrong to force any member of the profession to financially support an interest group that he or she chooses not to join. It is time to bury the outdated idea of a mandatory CBA fee and let all of our colleagues be free to make their own decisions on whether to support this organization.

The CBA will be stronger, and better, for it.

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More than 600 people are being detained indefinitely without charge at “Gitmo”, an American military base located in Guantanamo Bay, Cuba. They were apprehended in Afghanistan in late 2001 or early 2002 by coalition troops fighting the “War on Terror”. They have been denied access to lawyers, consular officials and family members. Twenty-one have attempted to commit suicide.

The continued detention of this group of people, which includes citizens of Great Britain, Australia and Canada, is a gross violation of fundamental human rights and international law. It is appalling and more than a little ironic that the perpetrator of this abuse is the self-proclaimed bastion of liberty and justice, the United States of America.

To take action, call, write or e-mail the Minister of Foreign Affairs and International Trade. The Hon. Bill Graham can be reached at 613-992-5234 (tel.), 613-996-9607 (fax) or graham.b@parl.gc.ca (e-mail).

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