Court File and Parties

Court File No.: Cayuga - 1111-998-12-99-00 Date: 2013-11-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Teresa Jamieson

Before: Justice D.A. Harris

Heard on: July 3, 2013 and August 28, 2013

Reasons for Judgment: November 27, 2013

Counsel:

• D. King, for the Crown
• Teresa Jamieson, the accused, in person

Reasons for Judgment

HARRIS J.:

Introduction

[1] Teresa Jamieson was charged with assaulting Gary McHale with a weapon, to wit a plastic pipe, and with possessing a weapon (the plastic pipe) for a purpose dangerous to the public peace. These events were alleged to have occurred on February 18, 2012.

[2] Crown counsel elected to proceed summarily. Ms. Jamieson represented herself and entered pleas of not guilty to both charges.

[3] Two Ontario Provincial Police officers, Peter McHarg and Dan Gutenberg, testified as Crown witnesses. So did Mr. McHale. A videotape of the events was entered as an exhibit. No witnesses testified for the defence.

[4] After hearing the witnesses and watching the video, there is no doubt in my mind that Ms. Jamieson picked up a plastic pipe and tried to hit Mr. McHale with it. Crown counsel has made out the necessary actus reus with respect to both charges.

[5] In order to fully understand and determine certain other issues, however, it is necessary to review some local history.

Background

[6] The events of February 18, 2012 occurred against a backdrop of protest and social unrest that has its origins in aboriginal land claims. This situation goes back many years but has grown much more intense over the past seven years. The Haudenosaunee or the people of Six Nations Grand River have asserted numerous land claims against the federal government over many years. They claim entitlement to the Haldimand Tract, a 950,000 acre parcel of land, which extends six miles on either side of the Grand River, from the river's source to Lake Erie. This area would include the Town of Caledonia. The Canadian government has taken the position that the disputed lands were surrendered lawfully.

[7] This dispute heated up on February 28, 2006, when a group of people belonging to or associated with the Six Nations occupied property known municipally as Douglas Creek Estates and blocked the roadway entrance to the property by parking cars on the streets. They did so to try to stop, or at least disrupt, further development of the subdivision. They also erected barricades on the streets surrounding Douglas Creek Estates – Argyle Street, Thistlemoor Drive, Surrey Street and Highway 6 – and on the local railway line owned by RaiLink Canada Ltd. The protest and the blockades were followed by acts of civil disobedience, vandalism, thefts and assaults in and around Douglas Creek Estates.

[8] These actions were seen by members of the Six Nations as a reclamation of their land. They referred to the property as Kanonhstaton, or "the protected place".

[9] Many residents of Caledonia saw it as an illegal occupation. They continued to refer to the property as Douglas Creek Estates or DCE.

[10] Throughout the events that followed, the Ontario Provincial Police managed to satisfy neither side, and in fact alienated both as the natives accused them of being too aggressive in their enforcement of the law, while non-native Caledonians accused them of doing nothing to enforce the law. There have been numerous confrontations over the past seven years, during which each side accused the other of being the instigator and neither side was happy with the performance of the police.

[11] The Ontario government eventually purchased the property from the developers who owned it, but disputes over the land have yet to be resolved.

The Facts of This Case

[12] Demonstrations and protests continue to be held by a number of groups. One of these is the Canadian Advocates for Charter Equity (CANACE). Mr. McHale is a member of that group. He and other members of CANACE were demonstrating or protesting at DCE/Kanonhstaton on February 18, 2012.

[13] According to Mr. McHale their intention was to walk down Surrey Street in order to establish that anyone had the right to march there peacefully. This was the first time that the Ontario Provincial Police allowed them to do so.

[14] Mr. McHale stated that his dispute was not with the people of the Six Nations but rather with the provincial government and the police. His intention that day was to show up the police.

[15] He and others were therefore walking down the paved street with that purpose in mind. Several people were carrying Canadian flags. Other people were also present. Some of these people appeared to be opposed to the presence of Mr. McHale and his group. Others appeared to be spectators, possibly members of various media groups. Many people appeared to be recording the activities with cell phones or other cameras. Finally, there were several Ontario Provincial Police officers present.

[16] Ms. Jamieson can be clearly seen and heard on the videotape that was shown to me. She called Mr. McHale names. Many of those names were rude and profane. She accused him of trespassing. She was clearly trying to impede his forward progress but failing in this attempt. Eventually she picked up a piece of plastic pipe from the ground nearby. She moved toward Mr. McHale and swung the piece of pipe at him. Another person got in the way and prevented her from actually striking Mr. McHale. She was arrested and taken away. She was charged with assault with a weapon and with possession of a weapon for a purpose dangerous to the public peace.

[17] I will address the law with respect to both of these offences.

The Law

Assault with a Weapon

[18] The relevant parts of section 267(a) of the Criminal Code provide that:

267. Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof

is guilty of … an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

[19] Section 265(1)(b) of the Criminal Code sets out various definitions of "assault" including the following:

265. (1) A person commits an assault when …

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

[20] Ms. Jamieson clearly attempted to apply force to Mr. McHale and she had the present ability to effect her purpose.

[21] The next issue then is whether the piece of plastic pipe was a weapon.

[22] Section 2 of the Criminal Code provides the definition of "weapon" as follows:

"weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm; …

[23] It was clear from the evidence that Ms. Jamieson was angry with Mr. McHale. She did not want him to be present. She very much wanted him to leave. She tried to convince him verbally to do so. She appealed to the police officers who were present to stop him. When those measures failed, she picked up the piece of plastic pipe and approached Mr. McHale and attempted to hit him with it. It was obvious that she did so for the purpose of threatening or intimidating him.

[24] I am satisfied that the Crown proved beyond a reasonable doubt that Ms. Jamieson assaulted Mr. McHale and at the time thereof used or threatened to use a weapon.

Possessing Weapon for Purpose Dangerous to Public Peace

[25] Section 88(1) of the Criminal Code provides that:

88. (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

[26] I have already determined that the piece of plastic pipe was a weapon.

[27] The next issue was whether Ms. Jamieson possessed it for a purpose dangerous to the public peace.

[28] In R. v. Cassidy, the Supreme Court of Canada set out the test for possessing a weapon for a purpose dangerous to the public peace:

Section 85 [now s. 88] requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. There must at some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking of possession and will continue as possession is taken.

[29] The Supreme Court went on in para. 10 to cite with approval the Ontario Court of Appeal judgment in R. v. Proverbs, supporting the conclusion that proof of the dangerous use of the weapon standing alone was not sufficient to constitute the offence, although the formation of the unlawful purpose may be inferred from the circumstances in which the weapon was used.

[30] Durno J. provides a very helpful analysis of this test in R. v. Kumar.

[31] As I stated above, it was clear from the evidence that Ms. Jamieson was angry with Mr. McHale. She did not want him to be present. She very much wanted him to leave. She tried to convince him verbally to do this. She appealed to the police officers who were present to stop him. When those measures failed, she picked up the piece of plastic pipe, approached Mr. McHale and attempted to hit him with it.

[32] I am satisfied that the Crown proved beyond a reasonable doubt that Ms. Jamieson picked up that piece of pipe for a purpose dangerous to the public peace.

Defences

[33] Ms. Jamieson did not call evidence. During her submissions, she tendered a number of newspaper articles about CANACE and the activities of its members. I entered these as exhibits. They are not evidence however. In any event, the information contained in them was pretty much common knowledge to everyone in the criminal courts in Haldimand County.

[34] Ms. Jamieson never clearly articulated any formal defence.

[35] She did however ask certain questions of the Crown witnesses and make certain comments to me that made me believe that she might be advancing certain arguments in her defence. In light of the fact that she is not represented by counsel, I intend to address those issues as if she had advanced them as arguments in her defence.

Jurisdiction

[36] The first issue is whether this court has the jurisdiction to try Ms. Jamieson.

[37] She repeatedly told me during the trial that "I do not recognize your laws".

[38] She asked Crown witnesses if they knew anything about the "Two Row Wampum" or the "Nanfan Treaty".

[39] I was able, with the assistance of several textbooks, to refresh my memory with respect to the following information.

[40] In 1664, the Haudenosaunee entered into an agreement with the British King's agents called the Treaty of Albany or the Two Row Wampum or the Kaswehntha (the River of Life). In its simplest form, the resulting relationship was symbolized by a ship and a canoe which were moving separately but in the same direction.

[41] This relationship of two separate nations agreeing to work together was reaffirmed in subsequent agreements, especially the Royal Proclamation of October 7, 1763 and the Treaty of Niagara in 1764.

[42] The Nanfan Treaty ceded title to certain lands to the Crown in return for perpetual hunting rights being retained by the Haudenosaunee.

[43] All of these agreements have previously been cited in support of arguments raised by various accused persons to the effect that the Crown in Right of Canada has no criminal law jurisdiction over aboriginal persons, especially members of the Haudenosaunee. These arguments have consistently been rejected by courts whose decisions are binding on me.

[44] In R. v. Sparrow, the Supreme Court of Canada stated that:

It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that the sovereignty and legislative power, and indeed the underlying title to such lands vested in the Crown.

[45] In R. v. Pamajewon, the Ontario Court of Appeal stated that Sparrow "plainly established that sovereignty and legislative power are vested in the Crown".

[46] The Court of Appeal reached a similar conclusion in Ro: Ri: Wi: Io v. Canada (Attorney General).

[47] In R. v. David, R. v. Francis and R. v. Gibson, three separate Justices of the Ontario Superior Court of Justice all rejected the argument that members of the Haudenosaunee were exempt from the application of Canadian criminal law.

[48] Accordingly, I also reject any argument that Ms. Jamieson is exempt from prosecution here as a result of her status as a Haudenosaunee woman.

Defence of Real Property

[49] Ms. Jamieson also asked several witnesses if they heard her complain that Mr. McHale was trespassing prior to her picking up the plastic pipe.

[50] While watching and listening to the video which was played before me, I certainly heard her complain that Mr. McHale was trespassing.

[51] From this I concluded that she might be arguing defence of real property.

[52] The relevant section of the Criminal Code at the time was section 41(1) which stated:

41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

[53] The Alberta Court of Appeal summarized the elements of this defence in R. v. Born With A Tooth:

The defence contains four elements. This means that, before an accused can benefit from it, the jury must have at least a doubt about all four. If a jury is convinced beyond any reasonable doubt that any one element is missing, the defence must fail. The four elements are these: the accused must be in possession of land, his possession must be peaceable, the victim of the assault must be a trespasser, and the force used to eject the trespasser must be reasonable in the circumstances.

[54] The Ontario Court of Appeal agreed in R. v. George "that in the above passage, the Alberta Court of Appeal correctly set out the elements of s. 41(1)".

[55] In Born With a Tooth, the Alberta Court of Appeal went on to deal with the element of possession:

As to the first, the word "possession" has here its usual meaning in criminal law. See R. v. Beaver, [1957] S.C.R. 531. The defence will fail if the accused, in fact or in law, has no control over the land in question. See R. v. Spencer (1977), 38 C.C.C. (2d) 303 (B.C.S.C.). But, for possession, control need not be exclusive. See R. v. Dillabough (1975), 28 C.C.C. (2d) 482 (Ont. C.A.) and Re B.A. Oil Co. & Halpert, [1960] O.R. 71, 21 D.L.R. (2d) 110 (Ont. C.A.). Because control is largely a matter of fact, this element includes a question of fact to be decided by the jury.

[56] The Alberta Court of Appeal then dealt with the need for possession to be peaceable.

The demand that the possession be "peaceable" greatly limits the defence. That word is not synonymous with peaceful. It is not enough for the accused to show he kept the peace while on the land. Historically, it meant a possession that did not provoke a breach of the peace. See Stephen, A History of the Criminal Law of England (London: MacMillan and Co., 1883) Vol. III at 13-14. In real property law, peaceable possession means a possession "… acquiesced in by all other persons, including rival claimants, and not disturbed by any forcible attempt at ouster nor by adverse suits to recover the possession of the estate" [H.C. Black, Black's Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990)].

For the purpose of the Code, the term must mean a possession not seriously challenged by others. If it were otherwise, then every property dispute could be resolved legitimately by force. The evident object of the law is the exact opposite: the defence should be available only to those whose possession has not been seriously questioned by somebody before the incident in question. It is not necessary for us to make a definitive statement how serious and immediate must the challenge be before the defence is lost. That is a question to be decided on the precise facts of each case. We put aside, as not necessary for decision, the question whether one can invoke the defence against a trespasser totally unaware that one's possession is under challenge from some third party.

[57] The Ontario Court of Appeal in George agreed with the Alberta Court of Appeal's definition of "peaceable."

[58] The final element of a successful defence under s. 41(1) is that the amount of force used must be reasonable in the circumstances.

[59] The Ontario Court of Appeal stated in R. v. Baxter that:

The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used, is not disproportionate to the injury or harm it is intended to prevent.

[60] The issue then is whether I am satisfied beyond a reasonable doubt that any one of the following four elements is missing:

1. Was Ms. Jamieson in possession of the property?
2. Was her possession peaceable?
3. Was Mr. McHale trespassing?
4. Did Ms. Jamieson use no more force than was necessary?

[61] With respect to questions (1), (2) and (3), I go back to a fact stated earlier. The events of February 18, 2012 took place against a backdrop of disputed aboriginal land claims.

[62] The Haudenosaunee rely on the Haldimand Proclamation in support of their claim that these events took place on their land. This decree was issued by Frederick Haldimand, Governor General, on October 25, 1784. It granted certain lands in perpetuity to members of the Six Nations as compensation for the lands they had lost as a result of their support for the British King during the American Revolution.

[63] The Canadian government recognizes the Haldimand Proclamation. The government disagrees however as to the extent of the land covered by that decree. The government also takes the position that certain lands, including DCE/Kanonhstaton, were lawfully surrendered by the Haudenosaunee since the original grant.

[64] The government position is that Surrey Street, where Mr. McHale was walking, is public/municipal property.

[65] It certainly appears to be a paved municipal street.

[66] In the circumstances, I am satisfied beyond a reasonable doubt that Ms. Jamieson was not in possession of the property, within the meaning of the criminal law.

[67] I am also satisfied beyond a reasonable doubt that any possession by her was not peaceable, in that it was seriously challenged by Mr. McHale and his group and by the police who permitted them to walk there, and by various levels of government.

[68] I have no doubt that Ms. Jamieson genuinely believed (and still believes) this to be Haudenosaunee land. I have no doubt that she genuinely believed that Mr. McHale was trespassing. I have no doubt that she genuinely believed that she was protecting the land from him.

[69] I cannot however find that she was legally justified in acting on her beliefs.

[70] Nor can I find that she can advance a defence of mistake of fact.

[71] In that regard I again refer to the decision of the Alberta Court of Appeal in R. v. Born With A Tooth, supra:

In sum, the defence is available to an accused when the jury has at least a doubt whether the accused has a measure of control over the land, whether that assertion of control has been seriously challenged, whether the challenger has a right to come on the land, and whether, objectively speaking, the force used was reasonable in the circumstances.

As regards the first two elements, and the factual content of the third element, the defence of mistake is also available. That defence requires the honest belief by the accused in a set of facts which, if true, would afford a defence. See R. v. Pappajohn, [1980] 2 S.C.R. 120. An accused might, honestly but mistakenly, believe that he has a measure of control over the lands, or that his supposed control is unchallenged, or he might believe in a set of facts which, if true, makes the victim a trespasser. But honest mistake of fact appears not to be enough for the last element, because that requires that the reasonableness of the force meet an objective, not just a subjective, test. See R. v. Scopelliti, (1981), 63 C.C.C. (2d) 481.

Nor does honest but mistaken belief about entitlement trigger the defence. The general criminal rule, stated in section 19 of the Criminal Code, R.S.C. 1985, c. C-34, is that all citizens of Canada have a duty to inform themselves correctly about the law, and failure to do so is no defence to a charge. A defence based on an error of law is not available on any of the charges before the Court because none require, as a necessary element of the mens rea, that the accused be aware that he is interfering with the legal rights of others. In the result, the opinion of the accused about the merit of his title claim, or that of his victim, is not directly relevant to the defence.

Nor, of course, does an honest opinion about the rightness of one's cause offer any justification, under Canadian criminal law, for violent acts. No doubt many criminals persuade themselves that their crime is somehow justified. But the principles of civil disobedience dissociate civil protest from other crime, and from revolution, by ready acceptance of the legal consequences of action forbidden by the state.

[72] At the very least, Ms. Jamieson knew that her possession of the land that day was seriously challenged by Mr. McHale and his group and by the police who permitted them to walk there. So she cannot claim to have been mistaken as to that fact.

[73] Even if she could, I cannot find that she used no more force than was necessary to remove Mr. McHale from the property. She tried to hit him with a piece of plastic pipe. That was more force than was necessary. It was especially so when I consider the fact that there were several police officers present. It was their duty to remove Mr. McHale if he was breaking the law. Ms. Jamieson should have relied on their discretion rather than taking matters into her own hands.

Conclusion

[74] I am satisfied that I do have jurisdiction to decide this case.

[75] I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Jamieson committed both offences.

[76] Finally, I am satisfied that the defence of real property is not applicable here.

[77] Accordingly, I find Ms. Jamieson guilty of both assault with a weapon and possession of a weapon for a purpose dangerous to the public peace.

Released: November 27, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris