Ontario Superior Court File No. 06-0271
COURT OF APPEAL FOR ONTARIO
BETWEEN:
PLATINEX INC.
Plaintiff,
Defendant by Counterclaim,
Respondent on Appeal
- and –
KITCHENUHMAYKOOSIB INNINUWUG FIRST NATION, DONNY MORRIS, JACK MCKAY,
CECILIA BEGG, SAMUEL MCKAY, JOHN CUTFEET, EVELYN QUEQUISH, DARRYL
SAINNAWAP, ENUS MCKAY, ENO CHAPMAN, RANDY NANOKEESIC, JANE DOE, JOHN
DOE, and PERSONS UNKNOWN
Defendants,
Plaintiffs by Counterclaim,
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Third Party
- and -
KITCHENUHMAYKOOSIB INNINUWUG FIRST NATION, DONNY MORRIS, JACK MCKAY,
CECILIA BEGG, SAMUEL MCKAY, JOHN CUTFEET, EVELYN QUEQUISH,
DARRYL SAINNAWAP, ENUS MCKAY and BRUCE SAKAKEEP
Defendants,
Plaintiffs by Counterclaim,
Respondents on Contempt Motion
- and -
KITCHENUHMAYKOOSIB INNINUWUG FIRST NATION, DONNY MORRIS,
JACK MCKAY, CECILIA BEGG, SAMUEL MCKAY, DARRYL SAINNAWAP and BRUCE
SAKAKEEP
Appellants
NOTICE OF APPEAL
The appellants appeal to the Court of Appeal for Ontario from the
sentences imposed on March 17, 2008 for contempt of court by the
Honourable Mr. Justice Smith, Ontario Superior Court of Justice.
THE APPELLANTS ASK that the sentence be set aside or that the sentence
be varied as follows and as counsel may advise and this Honourable
Court deems just.
THE GROUNDS OF APPEAL are as follows:
1. The motions judge erred in giving undue weight to the sentencing
principles of general and specific deterrence and failing to consider
relevant mitigating factors in determining appropriate sentences for
the appellants, including:
a) the perspective of appellants as Aboriginal persons, including the
fact that the appellants were motivated in all of their actions by a
sincere and well founded belief that they were exercising their
inherent jurisdiction over their traditional territory and acting in
accordance with the laws of their First Nation which require them to
protect their traditional territory;
b) the fact that despite clear judicial authority that the Crown has a
duty to consult and accommodate Aboriginal communities before approving
activities which could impact on their asserted rights under section
35(1) of the Constitution Act, 1982, mineral claims and leases were
granted by Ontario to the plaintiff without any consultation with the
appellants, and the claims and leases were then enforced by the
plaintiff through injunction and contempt orders obtained in
proceedings in which the Crown abdicated its responsibilities as a
fiduciary for Aboriginal peoples;
c) the fact that the appellants addressed every issue and every
question put to them in the contempt proceeding with utmost candor and
forthrightness and that the appellants did not contest the contempt
against them, essentially pleading "guilty" and accepting
responsibility for their actions;
d) the fact that the appellants committed no violence or property
damage, have heretofore obeyed both the laws of Ontario and the laws of
their First Nation, have never previously participated in activities
which could be considered law-breaking or contempt of court, and do not
have criminal records.
2. The motions judge erred in ordering sentences which violate the
principle of proportionality, including failing to consider
alternatives to incarceration and failing to consider the particular
circumstances of the appellants.
3. The motions judge erred in assuming that the principle of general
deterrence could only be satisfied by the maximum sentence in
circumstances where the appellants were the first to be sentenced in
respect of an ongoing proceeding.
4. The motions judge erred in assuming the principle of specific
deterrence could only be satisfied by the maximum sentence in the
circumstances of first time offenders.
5. That the period of incarceration is overly harsh in the
circumstances.
6. Such further and other grounds as counsel may advise and this
Honourable Court permit.
THE BASIS OF THE APPELLATE COURT'S JURISDICTION IS section 6(1) of the
Courts of Justice Act and that the sentence is a final order of the
Superior Court of Justice.
March 27, 2008 CHRISTOPHER M. REID
Barrister & Solicitor
154 Monarch Park Ave.
Toronto, ON M4J 4R6
LSUC # 27827R
Tel: (416) 466-9928
Fax: (416) 466-1852
Counsel for the Appellants.
TO: Neal Smitheman and Tracy Pratt, Counsel
Fasken Martineau DuMoulin LLP
66 Wellington St. West
Suite 4200
T.D. Bank Tower P.O. Box 20
Toronto, ON
M5K 1N6
Tel: (416) 366-838 l
Fax: (416) 364-7813
Counsel for the Plaintiff
AND TO: The Attorney General of Ontario
c/o Owen Young and Ria Tzimas, counsel
McMurtry-Scoot Building
720 Bay Street
Toronto, Ontario
M5G 2K1
Tel: (416) 212-5027
Fax: (416) 326-4181
AND TO: Falconer Charney LLP
8 Prince Arthur Avenue
Toronto, Ontario
M5R 1A9
Counsel for John Cutfeet
