Taking a respectful view of contempt
July 9, 2008
Ontario's highest court has reduced to nothing the 60-day contempt
sentences imposed on Queen's University professor Robert Lovelace and
six other native protesters in Eastern Ontario, and cut their
substantial fines nearly to nothing. Although the decision comes too
late in some ways - Mr. Lovelace had already served 14 weeks, and the
others 10 weeks - it points to a humane and sensible approach in
difficult circumstances. The rule of law is not merely a hammer to be
wielded by the courts in an automatic or reflexive way.
Some will criticize the decision for offering a separate standard of
justice for native offenders, and to the extent that the court offered
as a rationale the Criminal Code's separate sentencing clause for
natives, that criticism is justified. But there was a good reason
beyond nativeness in and of itself to support the ruling's thrust. The
initial sentence of 60 days and fines of $10,000 to $25,000 was too
harsh.
Ontario has a mining law that virtually invites aboriginal protests.
Though the province is asking Michael Bryant to oversee a Native
Affairs Ministry that will address legitimate native concerns, it
allows mining companies to stake claims on and explore lands in which
native groups have made unresolved claims. The Court of Appeal clearly
doesn't like this "remarkably sweeping law." It pointed out that, while
Frontenac Ventures Corp., the mining company, acted within the law, the
response of Mr. Lovelace and the others was "grounded, at a minimum, in
a respectable interpretation" of the aboriginal-rights clause of the
Canadian Constitution. The court, of course, needs to apply the law,
but it needs to use some wisdom in sentencing. Jailing Mr. Lovelace and
other community leaders simply emphasized "the gulf between the
dominant culture's sense of justice and [the Ardoch] First Nation's
sense of justice." That won't help spread respect for the rule of law
in that community.
Those who engage in civil disobedience should expect to pay a penalty,
and the court does not recommend impunity. What it did was find some
nuance in a situation that seems not to allow for much. Reasonably, it
said the rule of law includes respect for minority rights and
reconciliation of aboriginal and non-aboriginal interests through
negotiations. Given a deeply rooted conflict, the protesters' lack of
criminal records and their history of community "leadership in
demonstrating respect for Canadian law," the appeal court was willing
virtually to cancel the sentence (it ordered a $1,000 fine against Mr.
Lovelace). That seems reasonable.
Print Edition - Section Front
Mr. Lovelace's acts in ignoring a court injunction barring his protests
were deserving of rebuke. But he is no Shawn Brant, the self-appointed
disrupter who cloaks criminal acts as civil disobedience with blockades
of railway lines.
In these circumstances, the appeal court suggests it is unwilling to
act as a tough enforcer. The Ontario government should take the hint
and change the mining law.
