CITATION: R. v. Williams, 2023 ONCJ 393

DATE: June 29, 2023

Information Nos. 1111-998-20-455-00;

1111-998-22-46-00; 1111-998-20-528-00;

1111-998-20-454-00; 1111-998-20-455-00; 1111-998-22-46-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING

v.

SKYLER WILLIAMS

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE G. B. EDWARD

on June 29, 2023, at CAYUGA, Ontario

APPEARANCES:

G. Settimi Counsel for the Crown

J. Frost Counsel for Skyler Williams

EDWARD, J. (Orally):

Skyler Williams pled guilty to one count mischief and two counts of failing to comply with an undertaking.

The narrow issue on sentencing Mr. Williams is whether I grant a discharge as requested by defence or a suspended sentence as requested by the Crown.

The question the Court struggled with was the interpretation to be given to Section 730 of the Criminal Code which says an accused may be discharged absolutely or on conditions if the court "considers it to be in the best interests of the accused and [and my emphasis] not contrary to the public interest."

It is this last phrase the Court focused on, "not contrary to the public interest". Did that mean the Haudenosaunee public interest, the settler community public interest or both?

In answering this question, the Court was grateful for the defence calling two eminently qualified experts, Dr. Richard Monture, an English professor at McMaster University who has read, researched and listened to those who have understood the history of Six Nations; and Dr. Beverly Jacobs, dean at the University of Windsor Law School who spoke about Haudenosaunee legal traditions.

Near the end of Dr. Jacobs evidence, the Court posed this question at page 150 of the transcript of evidence:

Q. ...you will know that recommendation 42 of the Truth and Reconciliation Commission [calls to action] talks about the implementation of aboriginal justice systems and in fact previous recommendations talk about the importance of teaching aboriginal law in law schools. How does this court begin to incorporate concepts of aboriginal law in this particular dispute ...

A. Well, I think what's happening now with... myself and Dr. Monture being able to educate. I think that needs to happen all over. That's actually, the conclusion of my PhD dissertation is actually the judiciary needs to be educated about Indigenous law because it's never been taught.

In this series of cases involving Skyler Williams and Deryl Porter this court will attempt to fashion a sentence that incorporates Haudenosaunee legal traditions.

But first, a history lesson courtesy of Dr. Monture. Any errors in the telling of the Six Nations story are mine based on my re-reading of Dr. Monture's transcript of evidence heard on November 14 last. This 151-page transcript of the evidence of Dr. Monture and Dr. Jacobs will be made available at the court office here in Cayuga at the end of next week.

Dr. Monture speaks of the five nations – Mohawk, Oneida, Onondaga, Cayuga, Seneca and joined by the Tuscarora in 1712 living in what is now New York state.

These five nations established a confederacy of peace about a thousand years ago under the guidance of the peace maker.

The confederacy referred to themselves as the Haudenosaunee meaning "we build the house".

The traditional stories always placed the Haudenosaunee in the Adirondack region of upper New York state. However, the movement of the Haudenosaunee to the Grand River in 1784 was precipitated by the American Revolution.

Dr. Monture tells us that, although the Haudenosaunee had villages in New York, they also had villages in what is now Ontario pre-1784.

The Mohawk were the most easterly of the Haudenosaunee in the Adirondack region. Then moving westerly, the Onieda, the Onondaga, the Cayuga and Seneca.

These nations morphed into different linguistic groups, hence the different names for the nations, but according to Dr. Monture, "our cultures, our ways of living, our general belief systems were identical across the initial five nations."

Dr. Monture tell us the Two Row Wampum was first struck in 1636 between the Dutch and the five nations to reflect an understanding between the two. Other agreements were entered into between the five nations with the British and the French. In fact, the allyship between the five nations and the British goes back to the 17^th century.

So circling back to the American revolution, Dr. Monture tells us the revolutionary war was fought in part on land occupied by the Six Nations. It was decided the Six Nations would side with the British, given their longstanding agreements.

At this juncture, we are introduced to Joseph Brant. Dr. Monture tells us he was not a condoled chief, but rather a pine tree chief, meaning he was not a hereditary chief chosen by the clan mothers but rather he was recognized as a leader with limited powers.

Brant fought in the French Indian Wars in the 1750s and had distinguished himself as a good warrior and a good soldier. He so impressed the British that they arranged for his continued education at Dartmouth College. Obviously then a literate man, Brant's inquisitive spirit saw him become a free mason, an Anglican, a British officer.

Brant's leadership qualities allowed him to convince his people to side with the British because of their longstanding agreements.

Unfortunately, the American Revolution turned out badly for the British and by extension the Six Nations.

The Clinton Sullivan campaign of 1779 was literally a scorched earth policy to raise the crops and villages of the Six Nations in upper New York state. This resulted in Brant making clear to the British that the Six Nations allyship during the revolutionary war had to be recognized and so it was that the British offered to possible tracts of land in Upper Canada – the Bay of Quinte region or the Grand River Valley. The Six Nations chose the Grand River and the Haldimand Treaty gave effect to this agreement. The agreement saw the British grant the Six Nations six miles on either side of the Grand from its source to its mouth. This was estimated by Dr. Monture at roughly a million acres. And so it was in 1784, Brant and some 2,000 of his followers took up residence on the Haldimand Tract.

As Dr. Monture emphatically states at page 35 of his transcript:

... remember under the terms of the Haldimand deed we felt and still feel that this was our sovereign territory... This was our new homeland to replace that we had lost fighting for the British ...

Brant's idea for the development of this vast swath of land was to lease land for 99 years to non-Indigenous farmers to develop. But of course, the land did not revert back to the Six Nations after the 99 years. When the leases were up, Canada was a nation with absolutely no appetite to give land back to Native people.

In addition to this tract of land, the Six Nations were given significant sums of money by the British to facilitate the Six Nations' resettlement in Ontario. Unfortunately, as recounted by Dr. Monture, numerous examples such as the Grand River Navigation Company bore testament to how the Six Nations were swindled out of this money.

All of this culminated in the supposed surrender of the Plank Road Tract which incorporates land now the subject of this current land dispute.

The Plank Road Tract was to facilitate an overland route between Port Dover and Hamilton. This dispute stems from the absence of any documentation that proves that there was an actual surrender by the Six Nations of this tract of land.

As Dr. Monture concludes:

I think people in the modern age want to forget these things because it's in their best interest. It makes them feel uncomfortable. [it makes me feel uncomfortable] And ... our people, the Haudenosaunee people have been made to feel uncomfortable for centuries now. You know... we fulfilled our obligations as treaty partners with the British Crown, we fought wars alongside the British, we upheld the Two Row [wampum] and the Friendship treaty...even though the British did not honour their part ...

And later:

... when you're talking about ... people like Skyler and many ... others [that do that, that is land protests] ... there's a reason we do that. And I think they shouldn't feel that, you know let it go. No, we're not letting it go ...

And later:

Mr. Williams knows his history and he's one of you know hundreds, thousands of us who know that too that take it upon themselves to ... educate and push back because it's an injustice ... There's, there needs to be lands given back to us that are rightfully ours.

As indicated Dr. Beverly Jacobs spoke of Haudenosaunee legal traditions including the great law of peace and the Two Row Wampum "kuswentah" which literally translated means river of life.

She explained the kuswentah at page 121 of her testimony:

So if you think of this as a river [and at that point she is holding the Two Row Wampum] and there's two vessels. So one of the purple lines represents our canoe along this river of life, and the other ... represents their ship along this river of life.

And the later at page 122, Dr. Jacobs continues:

So it was a ... nation to nation relationship. So what we held in our canoe was all of our laws, our beliefs, our language, our culture, everything that made us who we are. And in their ship was their laws, their customs, their beliefs, their language, everything that made them who they are. And that we wouldn't interfere in each other's but we that we knew that we were going to live in these territories together with healthy relationships, not interfering in each other's way of life.

And yet Dr. Jacobs opines that with Section 91(24) of the British North America Act, the federal government has declared it has control over Indians and lands reserved for Indians.

Put differently, legislation created in their ship has taken away the nation-to-nation relationship and made Indigenous people wards of the Crown.

In short, says Dr. Jacobs, we are being forced into their ship.

As Dr. Jacobs concludes as page 139:

[under] Haudenosaunee law we have land protectors, we have water protectors. We have always had people who have taken care of the land, who have looked after the land, who have taken responsibility for protecting the land and that's what I see as Skyler and everyone else. You call them protestors, we call them protectors of land and territories.

To which Dr. Jacobs earlier stated:

To make sure that we have lands and territories for our people and for the future for our children, for the faces that we don't see yet.

In this Court's struggle to answer "to what public" under Section 730 of the Criminal Code, I am prepared to rely on the application of Haudenosaunee law. In this instance the application of Kuswentah, the Two Row Wampum.

Skyler Williams was carrying out his actions as a land protector in the context of these Haudenosaunee laws contained metaphorically within the canoe. Therefore, the public are the Haudenosaunee people. And this Court concludes that community would not conclude his actions in protecting their land was not in their public interest. Nor do I believe conditions need to be attached to the discharge as Mr. Williams clearly expressed the view any further attempts to develop contested lands would be revisited by him. Therefore, conditions would simply set him up for a breach.

For these reasons, Skyler Williams will be granted an absolute discharge.

You are free to go, sir.

... WHEREUPON THESE PROCEEDINGS CONTINUED

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Renee Imre certify that this document is a true and accurate transcription of the recording of R. v. Williams in the Ontario Court of Justice held at 55 Munsee Street, Cayuga, ON taken from Recording No. 1111 1 20230629 094323 6 EDWARDGET.dcr which has been certified in Form 1.

July 6, 2023

(Date) (Signature of authorized person)

ACT - 5961089413

Ontario, Canada