By Kenneth Jackson
APTN National News
The judge who signed court injunctions to end two different rail blockades in support of Idle No More used to represent CN Rail as a lawyer and also acted as a witness for the company in the United States according to documents obtained by APTN National News.
This has some questioning whether Justice David Brown of Ontario’s Superior court should have recused himself on these injunction requests.
CN asked Brown to put in place injunctions to end blockades on the Tyendinaga Mohawk Territory in January and in December against Aamjiwngaang First Nation, both in Ontario.
That includes Ron Plain who faces a contempt of court charge for refusing to end the Sarnia blockade in December when Brown ordered him to do so.
Plain was the spokesperson for the Aamjiwnaang First Nation blockade that lasted nearly two weeks before a peaceful conclusion was reached Jan. 2.
Plain told APTN he didn’t know about Brown’s prior representation of CN Rail.
“I’m angry,” said Plain.
Brown issued the first injunction against the Sarnia blockade Dec. 21, which was served on Dec. 22, and again, indefinitely, Dec. 27. When it came before the courts a third time Jan. 2 a Sarnia judge presided over the case.
Mohawks of Tyendinaga near Belleville, Ont. launched their own rail blockade on Saturday Jan. 5.
CN was able to reach Brown that night and have him verbally issue a court injunction but the Ontario Provincial Police, much like Sarnia police, delayed enforcing it, preferring to seek a peaceful resolution.
When learning of this Brown blasted police departments for not following through on a court ordered injunctions.
“Such an approach by the OPP was most disappointing,” Brown said in his decision. “I don’t get it.”
Instead of serving the injunction the OPP decided to wait and see if the Mohawks would leave, which they did at about 11:30 p.m. that night.
“We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions against demonstrators who will not voluntarily cease unlawful activities, such as those carried on by the protesters in this case,” Brown said.
APTN learned of Brown’s former work as a lawyer acting on behalf of CN Rail in a court case he is currently presiding over, CN vs. Holmes. In court records, Brown states at the beginning that he may have a conflict of interest.
“When I practiced law I had acted for CN on some tax litigation and served as a witness for CN in some U.S. regulatory proceedings,” Brown wrote in his decision.
He told the lawyers representing the defendants to discuss the matter and come back to him if they had a problem. No one did.
Matthew Moloci represents one of the defendants in the Holmes case and said he didn’t think Brown had a conflict of interest.
“He said in a prior role as a lawyer he had done some work on behalf of CN that was certainly unrelated to anything that was going in the proceeding,” said Moloci. “As far as I was concerned I wasn’t concerned.”
When asked if his attitude has changed towards Brown throughout the on-going proceedings Moloci said he wasn’t prepared to comment any further.
Toronto lawyer James Morton called the case unusual and that typically judges step aside when these cases come up.
“There’s two issues when it comes to impartially of a judge. There is actually partiality, the judge is biased one way or the other and then there’s the perception of partiality. Either one is enough to remove a judge from a case,” said Morton.
But in a situation where the defendants don’t have an opportunity to waive perceived bias, like in the cases of Sarnia and Tyendinaga, it’s more problematic.
The court injunctions were issued without any word from the defendants.
“You can certainly see individuals feeling that justice was not completely impartial if they saw that the judge had been the lawyer for one of the parties in the past and they weren’t given an opportunity to say they were comfortable with it or not,” said Morton.
The other issue, Morton said, is picking a judge like it seems CN did.
Morton said it’s usually luck of the draw and you get whatever judge you get.
“It is unusual that lawyers for CN would be able to contact the judge presumably at home on a Saturday night,” said Morton, which is believed to be the case in Tyendinaga. “Now obviously they had his contact information…but this is certainly unusual let’s put it that way.”
APTN contacted the office of Brown and requested an interview. Brown said “no.”