The Ontario government has been ordered to pay four aboriginal people $390,000 after the prosecution decided at the last minute to withdraw illegal-logging charges the men had faced for eight years.
In an unusual decision, Ontario court judge Romuald Kwolek found the prosecution’s behaviour justified the costs award to the members of the Batchewana First Nation.
“Such an award is appropriate to express the court’s denunciation of the Crown’s actions in the circumstances of this case while providing reasonable indemnification,” Kwolek said in his judgment released this month. “This delay by the Crown in reaching a decision to withdraw the charges … was ‘a marked and unacceptable departure from the reasonable standards expected of the prosecution’.”
The judge did reject a request for $150,000 in punitive damages.
The four men were initially charged in 2008 with logging in a public forest without a licence. They made their first appearance in November of that year. However, it took until September 2015 for their arraignment at which they pleaded not guilty. They were ordered to be tried together at a two week hearing scheduled for May 16, 2016.
However, 10 days before the trial was set to start in Sault, Ste. Marie, Ont., the prosecution said it would not be pursuing the case — despite its contention that a reasonable prospect of conviction existed. It asked the court to allow it to withdraw the charges, arguing among other things that proceeding was not in the public interest and the issues in play were best addressed outside of a prosecution.
For their part, however, the accused opposed the Crown’s action as just another stall tactic.
“Normally, defendants are more than happy to consent to a withdrawal of charges as that would terminate proceedings against them and they would no longer be in jeopardy of criminal or pseudo-criminal sanctions,” Kwolek said in his 28-page ruling. “However, this prosecution, it was argued by the defendants, had much greater significance to the litigants as they hoped to address issues of treaty and aboriginal rights.”
The 3,000-strong Batchewana First Nation are Ojibway whose traditional lands run along a large stretch from Sault Ste. Marie west along eastern Lake Superior. The band maintains an 1850 treaty gave its members the right to harvest timber, and those rights were not invalidated by the subsequent “Pennefather Treaty” of 1859.
The Batchewana people saw the case as a means to an end — a process by which “wrongs that were committed against them and their lands would finally be righted,” Kwolek said, adding the Crown knew from the start that significant aboriginal issues were in play.
Batchewana Chief Dean Sayers, one of the men who were charged, said the band would now litigate the validity of the 1859 treaty.
“We will continue to take the high road as we seek redress in the pursuit of our aboriginal and treaty rights,” Sayers said in a statement.
Kwolek urged the province to negotiate a fair sharing of the Algoma forest and disputed lands with the indigenous people, but said he did not have the jurisdiction nor ability to force those discussions.
“The court is hopeful that the withdrawal of these charges will mark the beginning of timely negotiations in accordance with the ‘honour of the Crown’,” Kwolek wrote.
One of its councillors, Stacey Tijerina, said the ruling emphasizes that negotiations must take place on a nation-to-nation basis.