Formal complaint filed against Ontario judge who issued injunctions to end CN Rail blockades

By Kenneth Jackson
APTN National News
A First Nation activist has filed a judicial complaint against an Ontario judge hoping to have him barred from presiding over cases involving the Canadian National Railway and Aboriginal peoples alleging his previous work as a lawyer with the railway puts the judge’s impartiality in question, APTN National News has learned.

Ron Plain of Aamjiwnaang First Nation filed the complaint last week by registered mail with the Canadian Judicial Council against Justice David Brown, a Superior Court judge in Toronto.

Plain, through his lawyer Peter Rosenthal, wrote in the complaint that Brown’s previous work with CN Rail as a lawyer, both in a courtroom and as a witness in the United States in regulatory matters, should have been enough for Brown to recuse himself from CN’s attempts during the Idle No More movement to obtain court injunctions to end multiple rail blockades.

The judicial council is mandated under the federal Judges Act to investigate complaints.

Plain was found guilty of contempt last July for ignoring two injunction orders made by Brown at CN’s request to end a nearly two-week blockade of a spur line on Aamjiwnaang territory, in late December 2012, within Sarnia, Ont. city limits. The blockade began Dec. 21 and ended Jan. 2.

Brown later issued another injunction for CN to end a rail blockade Jan. 5 near Tyendinaga Mohawk Territory, about 20 km east of Belleville, Ont.

Brown never advised any of the people he issued injunctions against of his previous work history first reported by APTN.

“In this complaint, Justice Brown’s hearing of these injunction orders, and the reasons he gave in supporting them, are impugned on the basis of his previous relationship with the plaintiff CN,” the complaint says. “His failure to disclose this potential conflict of interest would lead a reasonable, fair minded and informed person to be concerned that the proceedings might be biased.”

Rosenthal said in his view the judicial council should investigate Brown for breaching Ethical Principals for Judges based on his “unprecedented previous involvement” with CN before being called to the bench by Prime Minister Stephen Harper in 2006.

Rosenthal wants the judicial council to order Brown to apologize to Plain, but also go a step further.

“I would request that you notify Justice Brown that it is your view that it would be inappropriate for him to hear any future cases in which CN is requesting any orders against Aboriginal people,” the complaint says.

None of the court orders made by Brown were enforced by police in either jurisdiction much to disdain of Brown who publicly criticized police in his decision released after the Tyendinaga blockade. It was a decision he made on a Saturday night verbally on behalf of CN.

“Saturday night I made a time-sensitive order because the evidence showed that significant irreparable harm resulted from each hour the blockade remained in place, yet the OPP would not assist the local sheriff to ensure the order was served,” wrote Brown. “As a member of one part of our system for the administration of justice, I remain puzzled why another part – our police agencies and their civilian overseers – does not make use of the tools given to it by our laws.”

The blockade ended a few hours after it started at the volition of the protesters and the OPP said by not moving in on the protesters they made the right call. In fact, OPP Commissioner Chris Lewis issued a statement on Youtube defending his officers.

In the case of the Aamjiwnaang blockade, Brown also questioned Sarnia police for not enforcing his orders.

“With all due respect to the Sarnia Police, local police agencies cannot ignore orders under the guise of contemplating how to best use their tactical discretion,” said Brown. “It appears the Sarnia Police are looking for some way to resolve the public misconduct of the protesters other than by enforcing the order.”

Police said at the time they wanted a peaceful ending and negotiated one the night of Jan. 2 when people gathering for a pipe ceremony to signal the end of the blockade.

Rosenthal applauded each police force for respecting the findings of from the Ipperwash Inquiry that judicial considerations of First Nations blockades involves sensitive and political issues.

“It is essential that injunction applications by CN against Aboriginal people be adjudicated by judges whose impartiality is apparent, both from their backgrounds and from reading of their judgments,” he said.

Plain was the only person charged even thought others were named in the court injunctions.

Plain has maintained he was simply the spokesman of the blockade and worked to have it peacefully drawn to a close.

A call to the judicial council wasn’t immediately returned.

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