John Cutfeet's Constitutional Challenge-Extracts

Court File No. 06-271

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NOTICE OF CONSTITUTIONAL QUESTION

The Defendant, JOHN CUTFEET, intends to question the constitutional validity of Rule 60.11 and Rule 16.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the process for finding defendants in contempt of court.

The question is to be argued on May 5, 2008 at 10:00 a.m., at 277 Camelot Street in Thunder Bay, Ontario.

THE FOLLOWING ARE THE MATERIAL FACTS GIVING RISE TO THE CONSTITUTIONAL QUESTION:


On December 7, 2008, the contempt of court motion was heard. Chris Reid appeared as counsel, purporting to do soon behalf of all of the defendants, and did not contest the finding of contempt. Following a brief submission by counsel for Platinex Inc., John Cutfeet and the other defendants were found to be in contempt of court. This finding was based solely on the unchallenged affidavit evidence of James Trusler. The proceeding was adjourned to January 25, 2008 for disposition.

John Cutfeet was not present at the December 7, 2008 contempt of court hearing. John Cutfeet did not retain Chris Reid and did not give any instructions to Chris Reid or receive any legal or other advice. In particular, John Cutfeet did not instruct Chris Reid to not contest the contempt finding.

On January 4, 2008, the Court granted a consent motion for advanced costs for all of the defendants in the amount of $25,000 to assist Kitchenuhmaykoosib Inninuwug and the individual respondents – including John Cutfeet – with the cost of legal counsel and other costs associated with their attendance in court in Thunder Bay for the disposition hearing of January 25, 2008.

On January 25, 2008, John Cutfeet attended the disposition hearing and advised the Court that he had not instructed Chris Reid to not contest the contempt proceedings. He stated that he wished to retain his own counsel and challenge the contempt finding. The Court directed that John Cutfeet’s case be addressed separately from the other defendants.

On February 18, 2008, the remaining six individual defendants were sentenced to six months in custody for civil contempt of court. Further, this Honourable Court ordered a stay of the proceedings as against Kitchenuhmaykoosib Inninuwug and the six individual defendants, in the underlying action until further order of the court.

John Cutfeet’s contempt trial is scheduled to be heard on July 2-4 and 7, 2008.

THE FOLLOWING IS THE LEGAL BASIS FOR THE CONSTITUTIONAL QUESTION:

Rule 60.11 of the Rules of Civil Procedure sets out a procedure for obtaining a contempt order. A contempt order is criminal or quasi-criminal and contempt of court proceedings are penal in nature. A person who is the subject of a civil contempt proceeding under Rule 60.11 is a person charged with an offence, which must be proven beyond a reasonable doubt.

It is the position of the defendant, John Cutfeet, that Rule 60.11 is unconstitutional, and that in particular it violates the Canadian Charter of Rights and Freedoms