Court File and Parties

Court File No.: Central West - Brantford 16-1177 Date: 2017-10-20 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Lester Green and William Monture

Before: Justice P.N. Bourque

Counsel:

• E. Slater, for the Crown
• A. Furgiuele, for the defendants

Reasons for Judgment

Released on October 20, 2017

The Facts

[1] On its face, this matter is not complicated. On April 26, 2016 the complainant (Robert Aaron Detlor) was at a meeting. Several persons came into the meeting and after some words were spoken, the complainant was manhandled out of the room and indeed out of the building. He was assaulted by the various grabbing and pushing of his person which caused him some minor injuries.

[2] Two of the persons who were part of a group (at least 5 persons) were identified by the complainant and have been charged with assault.

[3] The apparent simplicity of this event ends at this point.

[4] The complainant (a self-identified First Nations person) was a lawyer and was counsel to the Confederacy Chiefs Counsel of the Haudenosaunee people. He maintained an office in the building where these events happened. The building was located on the Six Nations Reserve #40. The meeting was with several directors of the Haudenosaunee Development Institute and a group of accountants. The defendants are First Nations people of the Haudenosaunee, and represent a faction known as the Men's Fire. This altercation happened in the context of some wider political issues between these groups.

[5] Ultimately the defence put forth involves an understanding of the underlying dispute and section 35 of the Criminal Code. It also involves some understanding of the system of traditional governance of the Haudenosaunee people.

Crown's Case

Robert Aaron Detlor

[6] ...is a lawyer and of First Nations heritage (Mohawk). He testified that he has been a lawyer for First Nation issues for some 20 years and for the past 10 years, has been the lawyer for the Haudenosaunee Development Institute ("HDI"). They are the largest community in the Six Nations who reside in and outside the reserve lands near Brantford, Ontario. He describes that the HDI have a building at 16 Sunrise Court, Ohsweken. It is a multi-use building which includes offices and meeting rooms. He stated that the HDI allow him to use an office in the building and he occupies that space when he is doing HDI business. He maintains an office at another location.

[7] He states that on April 26, 2016, he was preparing to attend a meeting with several of the Chiefs and Clan mothers. Invited to the meeting were representatives of the accounting firm KPMG.

[8] He stated that he went into a meeting room and sat down at the conference table. As people were gathering in the room, he noticed some five other persons come into the room. A man named Brian Dolittle was sitting on his right. The defendant William Monture, came up to him and told him he had to leave. The witness in his statement to the police stated that Monture told him that he was being "evicted" although the witness did not use this word in his evidence in-chief. When confronted with this discrepancy, the witness stated that Monture could have used the word "Evicted". I find as a fact that Monture did use this word and did so more than once.

[9] The witness also in one exchange with defence counsel indicated that in response to the question of whether these events took place on First Nations Lands (meaning the reserve property) the witness indicated that all of this country's lands are First Nations lands.

[10] The witness indicated that this exchange went on for a minute or so and as he made no move to leave, Monture came up to him and pulled on his arm in an attempt to get him up and out of his chair. The defendant resisted. Another person came up and tried to pull on the other side. Eventually, several persons joined in and the witness was literally carried out of the room. In the hallway the witness regained his feet and was escorted down some stairs. I note that in his evidence, the witness stated that he was also punched. In his statement to the police, he did not indicate that he was punched. I find as a fact that he was pulled and shoved and manhandled, but I do not find that he was "punched". I also find that the picture, which is Exhibit 2, shows the witness grabbing one of the person's around him, not throwing a punch at him.

[11] At one point, the witness grabbed onto a pole and one of the persons (Wilf Davie) handed him a letter. It was filed as Exhibit 1. While it is dated April 24, 2016 and purports to have been mailed to the witness's business address, the witness had never seen that letter before. It sets out some matters where a group known as Men's Fire (of which each of the two defendants are expressed members) has a serious disagreement with the witness and accuses him of breach of an agreement with the Men's Fire (which the witness denies).

[12] It also makes reference to a McClung Properties project, which was a development project on the reserve which the Men's Fire group objected to. I point out now that I never had any detailed evidence of any of the allegations made against Detlor. For the purpose of this judgment, I am not able to make any determination as to whether anyone had any legitimate grievance against Detlor. For the purpose of the judgment, I note only that there were expressed grievances.

[13] The witness then spoke to the persons around him and asked to return to his office and this was refused. He asked for some things out of his office and they were brought to him. The witness then walked out to his car while "escorted" by several of the men and he got in, and eventually drove to the police station and there made a complaint and gave a statement to the police. After that was complete, he drove off the reserve and was followed by cars driven by men of the Men's Fire.

[14] The witness gave a great deal of evidence concerning some of the history of the Six Nations people and several aspects of their past and a present organization. He stated that the Six Nations formed a confederacy and lived outside of and on reserves in Ontario, Quebec and some northern American States. The structure moves upwards from the family, to the clan, to each nation and then to the confederation. He described the Clan Mothers as leaders of the families whose authority was over issues of hearth and home. The Chiefs were the leaders of clans. It was his view that the Clan Mothers had certain authority and on occasion they would meet.

[15] He was cross-examined about the role of the Men's Fire. He denied that this group was a historical part of First Nations governance, and stated it was first seen in the mid-18th century and indeed its real existence only arose from the 1970s. He adamantly denied that the group had any legitimacy in First Nations governance either historically or in recent times. He did acknowledge that there were groups who self-identified as the Men's Fire and that the two defendants identified themselves as part of this group.

[16] He was cross-examined about his status and reputation in the Six Nations community and he acknowledged that there were a small minority of people who believed that he and the HDI had mismanaged funds and he was the subject of rumors and negative press reports about his billing practices.

[17] At the end of his testimony, defence counsel attempted to get him to admit that he was not punched or kicked and indeed was merely pushed and pulled out of the meeting room and the building. He was adamant that he was punched and really felt that these defendants may have been planning a more serious attack upon him.

[18] With regard to Exhibit 2, (referred to above), it sets out some of the justification by the defendants (and others) as to why Detlor was being expelled by the Men's Fire. It is somewhat disjointed in all of the things that it refers to, but in the first sentence it states that the letter is being served upon him "Pursuant to Rule Notice to Trespassers and Squatters". It then cites some historical treaty law and goes on to state that the defendant is somehow in breach of a "Non-Compete Agreement with Hodisdeagahda Men's Fire".

[19] It also refers to some agreements with Empire Homes and a development referred to as "McClung Properties". Finally, it accuses Detlor of soliciting on the Six Nations Territory of the Grand River and directs him to cease doing so.

Hazel Hill

[20] ...is the Director of HDI, and was present in the Great Building (16 Sunset) at the offices of HDI. She stated that HDI leases these offices from the trustees of the building. She was not aware of any ownership of the building beyond the common ownership of the Haudenosaunee people.

[21] She stated that she was preparing for a meeting that morning with Aaron Detlor and the accountants and others. She was in her office right beside the boardroom. She saw Bill Monture walk by with two other people. She did not think anything untoward, as Monture had been to the offices several times before. She was aware he was a leader of the Men's Fire movement.

[22] She stated that she began to hear voices and they were rising in volume. She heard the voice of Aaron Detlor and the voice of Bill Monture. She heard Detlor saying "No" and "No, I'm not". She went into the room and saw Monture attempting to pry Detlor out of his seat. There were others around Detlor trying to do the same thing. She asked someone what they were doing and was told that Detlor was being removed. She at first thought it was a joke but she was told they were serious. They were intending to take him off the "territory" which she understood to be the reserve. She ran down the hall and directed the receptionist of HDI to call the police and she called their communications consultant (their paid consultant runs a newspaper that prints articles supportive of the HDI and the Confederacy).

[23] She stated that she saw that Detlor was being carried out of the meeting room and into the hall. She heard Monture state that they were taking Aaron out. There was a great deal of confusion and Detlor was struggling and holding onto the doorways and eventually grabbed onto a post in the hall. One of the men said that the Clan Mothers had directed them to do this. The witness asked which mothers and he said "you will see". At one point, she saw both of the defendants with their hands upon Detlor carrying him out. She never saw anyone punch or kick Detlor but Detlor was struggling. They then went downstairs.

[24] At one point, Monture came to her and asked her to get Detlor's briefcase and some other things from his office. She did so and gave them to Monture. The acting director Lorie From confronted some of them and they said they were acting under the direction of some of the Clan Mothers.

[25] Detlor then left in his car and several vehicles driven by the Men's Fire members followed him.

[26] The witness spoke of a continuing disagreement between the Chiefs, the Confederacy and HDI on one side and the Men's Fire and some Clan Mothers on the other, about issues concerning the handling of development issues inside the reserve lands. The two newspapers on the reserve were on each side. The witness was aware of the continuing disagreements about how the development was to take place and the details of the finances of the HDI.

[27] With regard to the Men's Fire, this witness was aware of it and on some occasions had supported their initiatives. Indeed the HDI and Chiefs had sometimes supported them. She was reluctant to give them status in Six Nations governance, but she admitted that they believed that they were acting upon instructions of several Clan Mothers and they subscribed to the Haudenosaunee way of life. She described a previous group of the "young men" whose duty was to carry out the wishes of the clan.

[28] She described several of the Clan Mothers (one of whom was Janice Henry) who were concerned about the finances of HDI and sought financial information from her.

[29] She stated that the issues HDI was dealing with involved a great deal of money and there was a real difference of opinion between the HDI and the Men's Fire (and some Clan Mothers) about these issues.

Misty Hill

[30] ...was a secretary at the HDI offices. She was there on April 26, 2016. She saw Monture and several other men with Men's Fire jackets on going up the hall to the meeting room. She heard some commotion and saw Detlor being carried down the hall. She confirms several aspects of Hazel Hill's evidence.

Janice Bomber

[31] ...was also a secretary working at the HDI offices on April 26, 2016. She recalls seeing the defendant Monture coming up the stairs and moving towards the board room. He was with 4 or 5 other men. They were members of the Men's Fire. She then heard some raised voices with the voice of Monture saying: "Come on Aaron, we're here to remove you from this office". She heard Aaron say "No". She heard Monture say this more than once. At one point, she heard Monture say, "Go and get more guys". She heard much scuffling and moving of furniture. She could not hear much else of what was being said.

[32] In cross-examination, it was pointed out that she did not tell the police that Monture say anything other than "Come on, Aaron". She insisted that Monture said these other things. I note that she has spoken to many other people about this matter in the meantime (including Detlor and Hazel Hill). I will accept what she said to the police some two days after these events as her best evidence of what transpired that day.

[33] She then saw, about 5 to 10 minutes after they first went in, Detlor being carried out of the room and down the hall past her office. She stated that both defendants were carrying him. She also stated that Detlor was looking dishevelled and his shirt was ripped.

Tracey General

[34] ...was the receptionist at the HDI office on April 26, 2016. She recalls that Monture and 4 other men walked past her that morning back towards the meeting room at the HDI offices at about 10:00 a.m. She knew Monture as a member of the Men's Fire. He asked her if Aaron was there. The next thing she remembers is Hazel Hill came out and told her to call the police. She called and when they answered, she handed the phone to Hazel. She saw them carrying Aaron Detlor out of the office.

Brian Doolittle

[35] ...is a director of the HDI and he attended at the HDI offices that morning for a meeting with Aaron Detlor, Hazel Hill and the accountants from KPMG. At just after 10:00 a.m., he was sitting in the boardroom with Aaron Detlor. He had met Aaron Detlor about 10 years before when he had been consulted about a land deal concerning the Six Nations.

[36] About 5 men came into the room led by Bill Monture and Monture says "Come on, you're leaving". Aaron says he is not leaving.

[37] That keeps up for a little while. Monture then grabs Aaron by the arm and another person named Gun grabs his other arm. They were trying to get him out of the room but could not get him up. Monture called for more people to come in and several other men came into the room. They carried Detlor out of the room. The witness stayed in the room and did not see anything else. The witness was of the opinion that no one could give Monture any authority to evict Detlor from the building. Detlor was struggling as they carried him out. They did not assault him in any other way.

Admission

[38] ....the defendant Lester Green spoke to a police officer at the scene and told him that Lester Green said that he and other members of Men's Fire grabbed Aaron and picked him up and removed him from the workplace and took into hallway and escorted him outside to his vehicle.

The Defence

Tekarontake (aka Paul Delaronde)

[39] ...was certified by me as an expert on Six Nations traditional pre-Columbian history and governance. As I indicated in my ruling (Appendix "A" to this judgment), his knowledge was from the oral history that he grew up with and his continuing study of that history since. He lived in several locations in Canada and the United States both on and off the reserves. He had been certified as an expert in a case in New York State and has spoken to many government and non-government agencies in North America and Europe.

[40] The history of these people is not without complexity, and in reciting the gist of his evidence, I am aware that some of the distinctions drawn are very subtle, and the language of the Haudenosaunee does not always translate directly into concepts that the English language can express accurately.

[41] At the centre of their tradition is the land which, because it is indivisible, is not subject to our notions of ownership and division. He made that point that exclusion from the land is rare and happens only when a person is misusing it in some fashion.

[42] The central organization runs from the family, which was called "clans" by the Europeans. The first authority of the family appears to be matriarchal, although it is not so much as "authority" as a mechanism for bringing "problems" to the attention of other families.

[43] As a further complication, the concept of "Nations" (i.e., the Six Nations) is not something that the Haudenosaunee ever applied to themselves. For convenience, groupings of families were given names usually based on some descriptor of the land they were occupying. The names we describe these "Nations" are entirely given by the Europeans. For example, they never described themselves as "Mohawks" or "Senecas".

[44] There is a concept of the "Great Peace" or as the witness called it "The Great Path". This seemed to consist largely of procedural issues that describe a method of governance where issues came to the attention of the whole, by first coming to the attention of a family, who would then bring it to a wider grouping depending upon the consensus. If the families believed it needed a wider discussion, it could eventually come to a grand council.

[45] With regard to the Clan Mothers, it was the view of the witness that they did not call meetings among themselves. When larger meetings were called, the Clan Mothers role was to attend with the Chief and oversee his activities, and remind him of the collective will of the family.

[46] He described all men and women as having their respective "Fires". The men collectively would be the Men's Fire and the women the Women's Fire. The women would take part in domestic issues and the men were involved in external issues.

[47] The witness was adamant that these respective "Fires" had a long history and was not just a recent creation of political movements of the 70's or 80's. In that sense, he was in conflict with the witnesses called by the Crown.

[48] He was asked what would happen if a Clan Mother felt that someone should be expelled from the community. The witness stated that this is not something that a Clan Mother would initiate but she would be speaking after there was some consensus in the family. He spoke of a series of "warnings" which should be given to the individual and this could be followed by an expulsion. I had the impression it was a very rare event and not to be taken without some real justification. This issue was explored in cross-examination. The witness believed that there were certain situations where the actions were so egregious, that action could be taken without seeking a wider consensus. I had the impression that these were situations of violence and perhaps "espionage". He gave as an example the historical killing of several Jesuit priests, who had been executed because they had betrayed information (which led to attacks by soldiers). I did note however that even in this situation, he described that there had been a "trial".

[49] The witness agreed that many of his people do not follow the way that he has described as they have lost the knowledge for many reasons, including the loss of their language over the years.

William Monture

[50] ...is 61 years of age and is a resident and member of the community in the Six Nations reserves. He is married with children and grandchildren. He has worked several occupations including as a contractor and merchant. He was exposed by his grandfather to the ways and traditions of his people. He was and is a member of the Men's Fire and believes that all male persons of the community are entitled to be members but he believes that there are about 50 active members of the Men's Fire.

[51] He spoke of several issues concerning the aspects of development in the lands claimed by his people. When the HDI was fist instituted in the mid-2000s, he believed it was a good thing in that it would make sure that development took place which was of benefit to all.

[52] He met Aaron Detlor about this time and came to know him. Detlor acted for him on a successful appeal of a fine he had received for operating a quarry.

[53] As time went on, he became dissatisfied with the lack of transparency in the governance structure of the HDI. He believed that the members of the board should be selected by the community and not by the people (including Detlor) who were running HDI. He was also unhappy with some of the specific development issues and HDI'S handling of them.

[54] He stated that in November of 2015, he also became unhappy with Detlor as he had purported to represent him in a land claims issue but took steps which were not in accordance with the witness's instructions.

[55] In March, 2016, at a meeting of the Men's Fire, two Clan Mothers brought to the attention of the Men's Fire their dissatisfaction with the lack of transparency in the operations of the HDI and specifically, their belief that Detlor was largely responsible. They requested that something be done. The witness stated that he and other members of the Men's Fire considered this for several weeks before taking the action that they did on April 26, 2016. The witness spoke of Detlor being in breach of his contract to take steps on behalf of the community with regard to specific land transactions.

[56] He led the organization of Men's Fire to the Great Building on April 26, 2016. He stated that one Will Davies had drafted a letter to Detlor setting out their demands. He signed it along with the defendant Green.

[57] He stated that he went into the meeting room and stood across from Detlor. He stated that he asked him to leave some five times. He was not clear in his evidence about whether the leaving was for the building or for the entire reserve. In any event, men of the Men's Fire did escort him to the edge of the reserve territory. He stated that the defendant smirked at him and clenched his fist and pushed his chair (which he was sitting in) back against the wall. He stated that he went up to Detlor and he alone lifted Detlor out of his chair. He stated that others came up and Detlor was lifted out of the room. He saw him being carried some 75 yards to the stairs when the defendant regained his feet and was given the letter by Will Davies. The witness went up to Detlor, who asked for his things and the defendant went and spoke to the witness Hazel Hill and he got them and gave them to Detlor. He said that Detlor was walked out of the building and Detlor went to the nearby police station to file a complaint.

[58] It was the substance of this defendant's evidence that the actions he took were for the good of the community as understood by him and as expressed to him by two Clan Mothers at the March, 2016 meeting. He never stated that anyone "authorized" him to carry out these actions. It was his assertion that as a member of the Men's Fire, he had a "responsibility" to carry out this action in furtherance of his responsibility to protect the community.

[59] In cross-examination, the Crown took the defendant through the letter of April 24th. He admitted reading and signing it but not writing it. He stated that the letter did not list all of the grievances he had with Detlor and indeed did not speak specifically of the need to remove him to protect the community. Rather it spoke of a breach of some sort of agreement with the Men's Fire and Detlor's interference in agreements between a developer and the Men's Fire. In the course of this line of cross-examination, the witness stated that he and others had commenced a lawsuit against Detlor and others for millions of dollars for the damages he says were done to their community.

[60] In cross-examination, it was put to him that he clearly was confronting Detlor by telling him to leave, but the witness disagreed. The witness stated over and over again that he was merely asking Detlor to leave.

[61] The witness admitted that while he was an adherent of the Men's Fire movement and indeed the traditional governance of the Haudenosaunee, there were many others in the community who took a different view. He was of the view however that if these contrarians fully understood the history of their people, they would be in agreement with him.

[62] The defendant was asked whether this remedy of taking someone out of the territory was something that had ever been done before. He prevaricated in his answer and gave examples (where people were committing crimes of violence) but could not say it had ever happened in his lifetime. He was strongly cross-examined about what would the effect of the action be and he agreed that Detlor could probably still carry out his activities from off the reserve site, that is, be the solicitor to the HDI. As a final, and I believe somewhat telling final answer to this question, the defendant said: "When he was removed from the territory I hoped that he would not come back and people would smarten up and realize what is going on here…".

[63] I can only assume from this response was that he was trying to impress upon his own people that this person should not be handling their affairs. In other words, it was a call to his people as opposed to taking an action to rid the territory of a dangerous person.

Lester Green

[64] ...is a resident of the Six Nations reserve and is also a member of the Men's Fire. He gave evidence similar to that of William Monture, as to the purpose and works of the Men's Fire organization. He also spoke of a couple of occasions when the Tribal Council (and specifically Hazel Hill) supported various actions taken by the Men's Fire in furtherance of the objectives of the residents of the Six Nations.

[65] He stated that there had been a concern for about two years about the actions of Detlor. He also stated that this was a subject of meetings of the Men's Fire. He explained that these meetings were usually with about 20 to 40 individuals. At two meetings on March 9th and March 16th of 2016, two or three Clan Mothers were present who expressed their concerns about Detlor and the Chief's Council. Their concerns were about not being able to get documents from HDI and about being treated dismissively by the Council. In the witness's words, "They wanted us to do something but did not tell us exactly what to do".

[66] He stated that for about one and-a-half months following, there were attempts to get more information and to discuss amongst the Men's Fire, what action to take and it included discussions of expulsion of Detlor from the territory. By the 24th of April, they had decided to take Detlor out of the territory. A letter (Exhibit 1) was drafted by another person but the witness signed it (along with the other defendant). After much prodding by the Crown, he admitted that a lot of the concerns that they had about Detlor were not contained in the letter. He also admitted that he refers to civil remedies to be taken against Detlor if he returns, including applying to civil courts for injunctive relief and damages.

[67] With regard to the actual incident, the witness did not witness any blows being struck against Detlor. He also said that he did not see Detlor strike any blows but then stated that he saw him cock his arm as if to make a blow. The Crown after much prodding also got the witness to admit that Detlor did not leave the meeting room and building under his own free will and indeed at the close of his testimony, stated that Canadian criminal law did not apply upon the reserve. Indeed the witness stated that the point to taking action against Detlor was to eventually take action against HDI.

The Law

The Criminal Code

[68] Section 265(1) of the Criminal Code sets out the definition of assault:

265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

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

[69] There are several sections of the Code which excuse, what would otherwise be an assault because of certain extenuating circumstances including:

35(1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and,

(d) the act committed is reasonable in the circumstances.

35(2) subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

[70] The Crown generally has the burden of proving this offence beyond a reasonable doubt. The defendant admits that they applied force to Detlor without his consent. This trial therefore must be decided taking into account that the defendants assert that they were taking the action they did in the defence of their property.

[71] The defence of property defence, under section 35, will be successful if:

1. The defendant must show that all of the matters in 35(1)(a) to 35(1)(d) have an "air of reality" to them. (1-the items referred to within 35(1)(b) and 35(1)(c) are "disjunctive");

2. The Crown is unable to disprove any of the items from 35(1)(a) to 35(1)(d) beyond a reasonable doubt.

Findings of Fact

[72] As a result of all of the evidence heard in this case, I make the following findings of fact:

1. The acts complained of in this case took place upon the Six Nations reserve (#40) near Brantford, Ontario. The assault took place inside a building called the Great Building for which no individual ownership is assigned. The building is used as a centre for various cultural events and programs by and for the Haudenosaunee people and in the building there are offices;

2. All of the persons involved in this matter are identified as part of the Haudenosaunee people. As such, they have a claim to the land of the Haudenosaunee people;

3. The organization called Haudenosaunee Development Institute is an organization set up and answerable to the Haudenosaunee people. It does not appear to have any corporate status (under any federal or provincial legislation). The evidence is unclear as to who "controls" it beyond the wishes of the Confederation Chiefs. It has several directors (of which Hazel Hill and Brian Dolittle are two). Its ostensible purpose is to represent the Confederation Chiefs in any development issues which involve the reserve or its people. It clearly has a mandate within the confines of the reserve, although I am not sure if it also acts outside the confines of the reserve. I say this because there were several references in the evidence to certain actions by band members outside the reserve, and there was discussion of the Haudenosaunee having active claims to lands well outside the reserve boundaries;

4. At the time of these incidents, Aaron Detlor was a lawyer and was occupying space within the space leased to HDI (although he had no formal lease arrangement with anyone), which he used when he was acting as legal counsel to the HDI;

5. There is conflict among many of the people as to the role, duties and responsibilities of several active groups including the Confederation Chiefs, the Clan Mothers, the Men's Fire, and others. This is exemplified by the fact that in the reserve, there are two newspapers, one of which is critical of the HDI and the other which is funded by and supportive of the HDI. That the HDI felt it necessary to fund a newspaper to get its "views" across to the Haudenosaunee people speaks of the level of conflict and disagreements among the various factions. At the heart of the disagreement (as evidenced by the letter which is Exhibit 1) are issues of developments upon the reserve lands. I never had any real evidence about these issues and can make no findings as to the specific role of Detlor in any of them other than that fact that he was counsel to the HDI. The people who are involved in the legislative mandated structure of the reserve are dismissive of the Men's Fire. They do not give it any real authority or power. By the same token, the Men's Fire is dismissive of any body which is legislated by the "settler governments" (i.e., Canada) and does not feel that they have any legitimacy as they do not represent the traditional governance structure, and thus, do not represent the "people". Cleary this is a recipe for political conflict;

6. There was evidence that at least one Clan Mother had attended at the HDI offices shortly before these events to obtain financial statements concerning the activities of HDI. She was not satisfied with the response she received;

7. On April 26, 2016, Aaron Detlor was at the HDI offices and engaged in HDI business. He was preparing for a meeting between himself, several directors of HDI and their accountants from KPMG. He was sitting in the boardroom with Brian Dolittle. The defendant William Monture entered the boardroom with at least three other persons. William Monture told Aaron Detlor that he had to leave. He used the word "evict". Aaron Detlor protested and indicated that he was not going to leave. A short conversation of approximately a minute ensued. The request to leave was made several times. Aaron Detlor asked several times why he was being asked to leave but no explanation was given at that time. Aaron Detlor remained seated in his chair. William Monture went up beside Aaron Detlor and placed his hands upon Aaron Detlor and attempted to lift him up from the chair. Aaron Detlor passively resisted. A second person (identified by some witnesses as Gun) came to the other side of Aaron Detlor and placed his hands upon him and attempted to assist Monture in the removal of Aaron Detlor from the chair. There was further resistance from Aaron Detlor and he remained in the chair. Monture called for more help and several other persons (who had arrived with Monture) including the defendant Green came into the room. The persons eventually succeeded in removing Aaron Detlor from his chair and carried him out of the room. At this point the defendant Lester Green was part of this group and assisted and indeed placed his hands upon Aaron Detlor;

8. Aaron Detlor was carried out of the room struggling. He attempted to impede their progress by grabbing onto the door frame, but to no avail. He was carried into the hall. At one point, he was able to grab onto a pole in the hall and his progress was stopped and he regained his feet. At that point, he was handed a letter (Exhibit 1) and that was the first time he was given any indication as to the reasons for his expulsion, although I find he was clearly aware of the many issues which was causing criticism of him by several persons in the Haudenosaunee community. Even though he had some knowledge of discontent, I specifically find that he was not given any warning that this action was being contemplated against him. In that regard, I find that the expert's evidence that people facing expulsion would be given warnings, was not followed in this instance. After a short time, Aaron Detlor asked to go to his office and this was refused but Monture agreed that he would have his briefcase and some other items from his office. Monture obtained these items for him. He was then escorted from the building to his car. He went to the police station to give a statement. When he was finished, several cars with persons who had been part of the group demanding his "eviction", followed him in their cars to the boundaries of reserve 40. I also find that when the defendant's Green and Monture made reference to the "territory" that was an area greater than just the boundaries of reserve 40;

9. William Monture and Lester Green were self-identified members of a group called the Men's Fire. During this altercation, they and several others wore jackets with these words upon them. I find that upon the evidence, the Men's Fire was made up of a small group of men on the reserve. The defendant Green described meetings of between 20 and 40 men and on very special occasions (with other persons present) would be up to 100 men and women. I find that as constituted at this location, the Men's Fire has a very small active membership and there is no evidence at all that this group consulted with the larger group of Clan Mothers or Clan Chiefs;

10. Detlor had been the lawyer to these two men in the past (in separate matters) and had been lawyer to other residents of the reserve. For several years, both had become unhappy with Detlor's role with the HDI and other legal issues. Other people were also unhappy. For at least two years, Detlor had been the topic of conversation in the Men's Fire group. Two or three of the Clan Mothers (a small percentage of the Clan Mothers on the reserve) came with complaints on March 9th and 16th. I find that was a meeting which led to the discussions within the Men's Fire and the taking of the decision to banish Detlor from the reserve. I specifically find that there was no attempt made to consult outside of their group and in any way engage in the larger group discussion and consultation as stated by the expert in traditional governance. I also find that the act of banishment was a serious and not often followed procedure. Green said it had happened in Ontario at least once in his lifetime. Monture could not say it had ever happened in his lifetime;

11. The defendants state that their purpose was to remove Detlor from the reservation lands. Green expressed it as cutting off the head of the organization known at HDI. Monture expressed it as an act that "would smarten people up and they would know what is going on around here". They could give no explanation other than the above as to how this would achieve the goal especially since Detlor's advice to HDI could certainly continue from beyond the borders of the reserve or whatever constituted their definition of "territory". There was no specific act of Detlor which was taking place at this time and there was certainly no evidence led that there was any "emergency" such that there was some danger that had to be remedied right away;

12. I take from the expert's evidence the following, insofar as it impacts upon the issues that I must decide in this matter:

    (a) The governance structure of the Six Nations was traditionally (before any requirements imposed by the Indian Act) based upon a structure of families with a matriarchal focus. Clan Mothers were responsible for the family matters and insofar as issues went beyond the immediate family, the Chiefs would become involved. It was a system of consultations with a matter proceeding to a wider body when needed. The Chiefs and Clan Mothers, were not "Leaders" in our sense of the word. They were to represent the consensus of their families. The individual adults of each family were divided into gender groups or Fires. Each had a responsibility to support and carry out the wishes of the families.

    (b) Several issues of the governance were unclear. The witness spoke often of the need to act upon the will of the people. Ascertaining the "people's will" was not always an easy task. The other issue which was not fully explained was the method of resolving disputes. However I find that "consensus" in the community is an important element of traditional Haudenosaunee governance;

    (c) For the purpose of the issues in this trial, the witness spoke of the responsibility of the Fires to "remove" dangerous people and things from the group. Where there was some case of obvious emergency, then the Fires could act upon their own without further consultation. What the witness did not do in my opinion, was to provide any guidance as to what constituted an emergency. He did say however, that when actions were taken without full consultation, the parties taking the action would be responsible for the consequence.

    (d) As a final matter, the evidence of this witness, while speaking to traditional governance, it did not speak to the governance as it is practised today, with the overlapping requirements of the Indian Act. He did make one comment which might be appropriate in that it was his opinion that these Criminal proceedings were not the appropriate way to deal with what happened. He believed that the Haudenosaunee community should deal with it. I may have some sympathy with that view, but as this matter is properly placed before me, I must deal with it.

Analysis

[73] At the outset of my legal analysis, I do not make any findings as to what is the appropriate governance upon the Six Nations reserve. I find that there is clearly a dispute between the elected band Council and the traditional Chiefs. I also accept the evidence of the expert and the details of the traditional governance before the intervention of the Europeans. I also find that he and others are attempting to return their community to that type of governance. I do not find that they have done so on the Six Nations Reserve. The Men's Fire on this reserve is a very small (no more than 100 people) and is thus hardly as representative of the "people" that they claim to speak for. That may happen in the future.

[74] The Crown argues that section 35(2), at the outset, ousts any further considerations under section 35(1). I disagree with that assertion. Section 35(2) in my opinion speaks of the presence of two legalities, namely, that the defendant has no right to the property, and the complainant has all the right to the property. It states that you cannot stake out a false right to someone else's property (even if you believe it is true) and then assert it against the rightful owner. In this case, clearly these defendants have some type of proprietary right to the property of the reserve. What I have to determine is the actual rights of the complainant and indeed whether the rights that the defendants have, gives them the right to commit an assault in these specific circumstances. I adopt the statement of the law with regard to section 35, as set out in R. v. Cormier, 2017 NBCA 10 at para. 47:

As for the defence of property provisions, these appear to be very broad. Section 35 applies to a wide range of offences and to any type of property. The provision establishes the types of interference with "peaceable possession" of property that can trigger a defensive response. The defence is triggered upon a reasonably based belief of peaceable possession of property and of another person's specific actions regarding that property, i.e. either: (1) about to enter, entering or having entered to the property without lawful entitlement; (2) about to take, taking or having just taken the property; or (3) about to damage or destroy or in the process of damaging or destroying the property or making it inoperative. Upon the defence being triggered, an act committed to prevent the triggering event is justified provided it is "reasonable in the circumstances". The defensive purpose requirement is to be assessed subjectively. On the other hand, the reasonableness of the response is objectively assessed. However, unlike the enumeration of factors to aid assessing this in self-defence cases (s. 34(2)), s. 35 offers no legislative guidance.

[75] I will review each of the provisions of section 35(1)(a) through (1)(d) to determine if there is an "air of reality" to the assertions and whether the Crown has proven beyond a reasonable doubt that any of these provisions have been negatived.

Section 35(1)(a)

Did these defendants either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property?

[76] The central issue here is the definition of "peaceable possession". Under the previous provisions of defence of property it contained the same phrase. The cases under the previous legislation may be instructive. In R. v. George, the court adopted the definition of "Peaceable Possession as contained in Black's Law Dictionary:

"…such as is 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."

[77] The court went on to say: In R. v. Born with a Tooth, 1992 ABCA 244, the Alberta Court of Appeal elaborated on this definition by stating (at p. 178) that the word "peaceable" is not synonymous with "peaceful". Instead, the court stated that "peaceable" means possession that is "not seriously challenged by others" and any challenge to the possession should be "unlikely to lead to violence".

[78] The court went on to state:

The demand that the possession be "peaceable" greatly limits the defence. That word is not synonymous with peaceful…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.

[79] In the George case, the matter involved the occupation by aboriginals of a park which had originally been part of an aboriginal land grant but had been expropriated by the federal government. When violence occurred between the occupiers and the OPP, the court held that the aboriginal defendant's defence of property claim was not made out as the occupation of the park by the aboriginals was clearly being "challenged" from the outset. The evidence also disclosed that the defendant was aware of this challenge, he did not have any "honest but mistaken belief in the nature of the band members' possession of the park."

[80] In their evidence, these defendants clearly believed that they were acting upon the instructions of people who believed that they had some authority of the band property. As stated in R. v. Fleming, 2014 ONCJ 26, the reasonableness of this belief is to be assessed on a subjective basis; that is, that they must be in peaceable possession, that the property is at risk and the actions in question must be subjectively for the purpose of protecting the property against theft, damage or trespass. The question however, is whether the defendants truly had the subjective belief that their possession was "peaceable" as against the other claimant, namely the HDI and the groups they represented. To put it plainly, I find that there was clearly a "power struggle" going on between these groups. They were acting, in my opinion, pursuant to their political aims, that is to diminish or remove Detlor's influence upon HDI and indeed HDI'S influence upon the Haudenosaunee people.

[81] I believe that even if there is an air of reality to the peaceable possession, it has been proven beyond a reasonable doubt that there is no subjective belief that they believed they were in "peaceable possession" of the territory and lands of the people they purport to represent.

Section 35(1)(b)

Do they believe on reasonable grounds that another person is about to enter, is entering or has entered the property without being entitled by law to do so?

[82] With regard to section 35(1)(b) (the three items contained therein), there is no air of reality to the assertion that Detlor had no entitlement in law to be on the property. He had some right by his stated heritage, but more importantly, he was there at the express request of the board of HDI and through them the elected band council. There is also no air of reality to the assertion that he was about to "take property" or "damage the property". It is so farfetched to make the case that because of his legal advice (by the way no evidence was lead on any real specific issue in this regard) some piece of property was in danger, or he was going to somehow misappropriate someone's property. If I were to give an air of reality to this assertion, I would be implicitly saying that any group (not just indigenous peoples) that objected to any political decision, had the right to commit "an assault" to prevent such political decision from going forward. I do not believe that this is the purpose of section 35 of the Criminal Code.

[83] The defence argues that I must assess this entitlement solely on the basis that on April 26, 2016, he was told by the Men's Fire that he must leave the territory. At that instant, he lost any and all rights he had to remain. That does not fit with the words of the section. The defendants would have had to take this action on the edge of the territory as the section speaks of being "about to enter" or "has entered the property without being entitled by law to do so". The defendant was already on the property, when they purported to revoke this right.

Section 35(1)(c)

Is the act which constitutes the offence committed for the purpose of removing the person from the property?

[84] With regard to 35(1)(c), I would agree that their direct purpose in committing the assault upon Detlor, was to remove him from the reserve property. In that sense, it falls under 35(1)(c) (i) and has the air of reality. I find that while this was an assault, it was not designed to inflict harm (other than psychological). I am not in agreement that there is any air of reality to the allegation in 35(1)(c)(ii). No evidence was led that he was taking action upon any property. I have no evidence that any specific piece of advice was leading to the damage of any property.

Section 35(1)(d)

Is the act committed reasonable in the circumstances?

[85] Even if I were to find that the defendants had an honest subjective belief that they were in "peaceable possession" of the property, I must still consider whether the Crown can disprove beyond a reasonable doubt that in all of the circumstances of this case, the actions (based on a modified/objective test) were "not reasonable". In this regard, would a reasonable person in the position of the defendants come to the conclusion that Detlor had to be physically removed from the property?

[86] At the end of the day, I must decide whether Section 35 allows the defendants to use force in this situation. For the reasons enumerated below, I find beyond a reasonable doubt, that they were not justified in using any force, and thus the force used was unreasonable:

(i) Detlor was an invitee of the HDI and indeed, himself had some prima facia entitlement to be on the reserve property. I do not find that the words of Monture at the HDI offices telling Detlor to leave, and giving him about a minute to decide his position, automatically (for the purposes of section 35) converted it to no right to be there. There was no reason that Detlor should not have been allowed a "real" period of time to consider his position;

(ii) The struggle between the various groups on the reserve was a political struggle for control of a common property, not a struggle of inclusion or exclusion. In that sense, I believe that both defendants believed that the act of eviction was largely symbolic. There was no necessity for a physical removal. A verbal (or written) statement of their intentions would clearly have sufficed;

(iii) The letter delivered to Detlor at the time he was being removed was clearly intended to include warning. It also spoke of "legal action" which could be taken. It did not speak of the summary actions of the defendants that day. How could the defendants feel they were justified in taking this violent action when they had clearly phrased their letter with the need to get a "restraining order in district court" against the defendant if he returned? Both defendants agreed that even off the reserve property, Detlor was still in a position to provide any advice that HDI contracted him for. I find that awareness existed at the time they took their action. I am further confirmed in this belief by the fact that the defendant (and others) have commenced a lawsuit against Detlor (and others) seeking a large sum of money in damages for what they feel have been his transgressions. Applying the traditional governance model, this action was not needed and not necessary as the options noted above were clearly available to the defendants;

(iv) By no stretch of the imagination could it be said that there was any emergency. The date of April 26, 2016 was picked because the defendant would be present. The defendants did not speak of any upcoming decisions or deliberations which affected their people;

(v) While the amount of force used was limited to removing Detlor from the building and the reserve, I find that pursuant to this section, no force would be justified in these circumstances.

Conclusion

[87] The defence asks me to consider this case on the basis of their traditional ways. I believe I have given consideration to their "traditional governance". What I don't accept is that in the circumstances of this case, there was any consensus of the people that Detlor needed removal. In that sense I find that the traditional means of discerning consensus was not followed. This was the action of a small group of individuals. Even if they were sincere in their belief that only they understood the true ways of the people, I believe that does not excuse them from not getting consensus. I also do not feel that this action in these circumstances was like any situation ever related by any of the witnesses at any other time. They did not speak of any emergency situation. There was none.

[88] The removal, as I have already stated, was in the context of a larger political struggle in the community. The assault and removal were to diminish Detlor's influence over the HDI and perhaps to diminish the influence of the HDI.

[89] In assessing both defendants and their respective roles and in their individual evidence, they were both largely in agreement in their actions and in their motivation. Monture stated that they "wanted to wake the people up" and Green stated they wanted to "cut off the head of HDI" by removing Detlor. Both of the defendants stressed that they were concerned with the lack of "transparency" in the activities of the HDI and their disagreement with how its directors were appointed. This speaks to a common political objective and there will be a common result.

[90] I find both defendants guilty of the offence of assault.

Signed: "Justice P.N. Bourque"

Released: October 20, 2017

Appendix "A"

Reasons for Ruling – Voir Dire

Released June 21, 2017

BOURQUE J: (Orally)

[1] I am dealing with the matter of R. v. Green and Monture.

[2] A voir dire has been brought by the defendant who wishes to have the evidence of a witness accepted as expert evidence in accordance with the rules of the court. Specifically, he wishes that I accept the evidence of the witness as an expert in the issues surrounding the history of and traditional First Nations governance.

[3] The witness is Tekarontake (a.k.a. Paul Delaronde). I note with interest the witness did not like the word tradition. He made the distinction that tradition is something that just gets repeated over time. What he wants to talk about is not just things that get repeated over time, but understanding the reasons why certain things get repeated over time.

[4] This case, as I have heard various bits of the evidence, involves an allegation of assault upon the person of Mr. Aaron Detlor, who had been retained by the Haudenosaunee Development Institute, and was removed forcibly from a meeting of the H.D.I., which was taking place at the Great Building, which is located within the boundaries of what we know as the Six Nations Reserve here in Southern Ontario.

[5] The defence specifically raised in this case is one of defence of property, and that is set out in Section 35 of the Criminal Code.

35 (1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

[6] There has been evidence given in this case already, and I think there will be more, about a dispute about the way certain decisions, and the decision-making process of this group known as the H.D.I., and others which included advice given, and the role perhaps of the complainant in providing his advice to the H.D.I.

[7] The defence wishes to have the evidence of an expert on historical governance of the Six Nations people in order to assist me in determining whether any of those issues which I have set out and part of Section 35 have been met.

[8] The witness proffered that his proper name is Tekarontake. He has given evidence of his qualifications, and understanding, and explaining the historical governance of the larger group of First Nations peoples, but specifically the Six Nations people.

[9] His knowledge is person based, that is, it is based upon the oral histories of the people. He has explained that he grew up in several locations in Ontario, Quebec, New York State, where Six Nations people live. He has spoken of the histories that he received from his grandparents who largely raised him, and not just them, but his other relatives, and indeed, the wider group of people with whom he has been associated over most of his 64 years.

[10] He has made a point that indeed he has made it his life's work so that he will understand through these and other oral histories of his people, to understand the history of his people, to understand the history of their governance. But indeed, it is clear to me part of his work has been the larger issues of understanding creation as he understands it in the larger sense, and the role of his people, and what his people can teach all people in this continuing process we call life. He appears to me to be extremely knowledgeable about these issues.

[11] He has given evidence as an expert in these matters in courts in New York State on apparently two different occasions. He has spoken to many different government and non-government organizations in Canada and the United States, and indeed, throughout the world about these and other issues.

[12] Filed as an exhibit in this matter is a very brief statement of his work in that regard, and I quote:

The areas in which he has spoken about and helped organize include exposing communities to the Iroquois worldview, the philosophy of the Iroquois public relations First People, claiming land for various Territories, sovereignty, and responsibilities, and duties of members in the individual community governance system, the Iroquois constitution teaching Native and non-Native communities about Iroquois society, bringing economies into Territories, and the Inquiry into Missing and Murdered Indigenous Women.

[13] The law relating to expert evidence has been set out many times in many different books.

[14] The leading cases in this matter indicate that there are essentially four different things, preconditions for me to accept expert evidence.

[15] First of all, it has to be relevant to the issues; clearly, that's the case here. Secondly, is there a necessity in accepting the evidence in assisting the trier of fact? It is clear to me that issues of First Nations governance clearly are an important matter for which my knowledge is totally deficient, and for which an expert's opinion would be useful. Thirdly, the absence of any exclusionary rule; I cannot think of any rule of exclusion. Then fourth, the properly qualified expert.

[16] I quote extensively from the book, the Law of Evidence in Canada by Sopinka, Lederman and Bryant (2d):

With respect to matters calling for special knowledge, an expert in the field may draw inferences and express his opinion. An expert's function is precisely this, to provide the judge, and indeed the jury, where necessary, with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate.

[17] There is also the law that says that even if those four requirements are met, I have a certain discretion to allow or disallow it. I have a discretion to exclude the evidence, if what we call the probative value of the evidence is overcome by its prejudicial effect, the evidence is potentially misleading, or its admission consumes an inordinate amount of court time, which is disproportionate to its evidential value.

[18] The Crown Attorney has raised a very important issue, and that is as part of his cross-examination, it is clear that this witness has, and indeed, feels a deep point of view with regard to many of these issues. However, having said that, and I thank the Crown Attorney for exploring these issues, it is my feeling that his feelings with regard to certain of these issues, and the opinions which he comes by, are not such that they determine, in my mind, what the answer is to these questions I have to ask myself, as I have already set out to you. In any regard, our Crown Attorney is a skillful and careful cross-examiner, and he will bring these issues to light in the course of his cross-examination, and indeed, I certainly expect the examination in-chief to cover some of these issues as well.

[19] I take the view that with regard to anything I have to understand, that while this gentleman is opinionated, he is not an advocate, he has not expressed an advocacy for specific issue in this trial. He may advocate for specific issues that are extremely important to the First Nations people of this area, but that is different from the issues that I have to decide in this specific trial.

[20] He is here to provide his expertise on the historical ways and traditions, and as I have said, I note he does not like that term 'of his people'. I feel this information will be of assistance to the court, and I am satisfied that the witness has met the criteria set out in our case law, which would allow him to give expert evidence on these issues of the governance and the historical traditional governance of the Six Nations people in this area.

[21] I feel that I can weigh all of the evidence, be it proffering of opinions or otherwise, in arriving at my determination in this matter. So, I will allow him to give expert evidence.