Judging an Anti-Aboriginal Ruling of BC’s Chief Judge

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THE CANADIAN GOVERNMENT’S CRIMINAL ABORIGINAL POLICIES PUT ON TRIAL IN THE CASE OF KWITSEL TATEL

Some readers will recall my essay published in VT in January entitled “The Canadian Ministry of Justice’s Anti-Aboriginal Policies Exposed.” A new court ruling on the substance of the issues raised in that widely-circulated article highlight the role of federal Crown prosecutor Mr. Finn Jensen Q.C.. Judge Thomas J. Crabtree’s ruling is published below in plain text along with a critical commentary in italics. The January essay, together with a series of earlier articles highlighting Idle No More and the case of Kwitsel Tatel, have helped draw international attention to the accelerating assault by the government of Canada on Indigenous peoples and their remaining Aboriginal estate. The attacks on Indigenous peoples domestically within Canada are quite consistent with the Harper government’s support for all manner of attacks against the Indigenous peoples of Israel/Palestine as well as other zones throughout the world where Aboriginal title to lands and resources is hotly contested. This current round of destruction continues the oldest strain of human rights violation in the Western Hemisphere. Where many would like to present Canada as a champion of human rights in the international arena, the election-fraud government of Stephen Harper in fact betrays this ideal systemically through its abysmal treatment of First Nations domestically.

In section 35 of Canada’s Constitution Act, 1982, the “existing Aboriginal and treaty rights of the Aboriginal peoples of Canada” are formally “recognized and affirmed.” Rather than living up to this commitment to recognize and affirm Aboriginal and treaty rights, the Canadian government systematically denies and negates these rights, including through the positions it takes in court on Aboriginal matters. One of the so-called “experts” hired regularly by Canada’s litigious Ministry of Justice is the Calgary-based professor, Tom Flanagan. A mentor, teacher, co-author, campaign manager, and close political adviser of Prime Minister Stephen Harper, Professor Flanagan has made history through his role in helping to re-engineer Canada’s political landscape culminating in Harper’s seizure of Canada’s top job. Professor Flanagan’s views on child pornography came up in the context of an assembly where Kwitsel Tatel on behalf of Idle No More condemned the Calgary School’s main patriarch for the anti-Aboriginal policies he has promoted unrelentingly in court and throughout the inner circles of Mr. Harper’s Ottawa. The aim of these publicly-financed federal interventions in court, as advanced by Prof. Flanagan and other modern-day Indian fighters disguised as jurists, is to diminish the scope of judicial interpretation of Canada’s recognition and affirmation of Aboriginal and treaty rights. The aim is to accelerate the centuries-old process of pushing Aboriginal peoples away from their Aboriginal titles to lands and resources so that obstacles can be removed to corporate incursions emanating especially from Chinese resource companies these days. This more general pattern of federal antipathy towards section 35 of Canada’s constitution is well demonstrated in the document published below. In it the Chief Judge of British Columbia’s Provincial Court, Thomas J. Crabtree, denies Kwitsel Tatel’s request that the federal Crown prosecutor in her case, Mr Finn Jensen, Queen’s Counsel (Q.C.), be removed from the case because of his personal conflict of interest in the second and constitutional stage of the proceedings. To reiterate, the ruling itself is published in plain text whereas the commentary appears in italics.

File Number: 47476

Registry: Chilliwack

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

(With the stamp “Chilliwack Registry, April 5, 2013”)





THE QUEEN AND KWITSEL TATEL

Versus

THE GOVERNMENT OF CANADA

RULING OF THE HONOURABLE CHIEF JUDGE OF THE PROVINCIAL COURT OF BRITISH COLUMBIA, THOMAS J. CRABTREE

Counsel for the Federal Crown:  Mr. Finn Jensen, Q.C.

Counsel for the Defendant: Self-Represented (Kwitsel Tatel/ Patricia Kelly)

Place of Hearing: Chilliwack British Columbia

Date of Decision: 3 April, 2013

Handwritten notes on original document

“placed in mail slot, Mailed 5 Apr 2013, 4:14 p”[The hard copy, received by Kwitsel Tatel on April 16, was post-marked April 9]

The Queen and Kwitsel Tatel versus The Government of Canada  

[1]  This is an application brought by Kwitsel Tatel/Patricia Kelly (”the Applicant”) during the course of a trial which involves the prosecution under the Fisheries Act. [sic] This stage or part of trial commenced with the hearing of evidence in June 2010 and for various reasons has been adjourned from time to time. The trial is scheduled to resume May 10, 2013. [sic, the trial is scheduled to start May 9]

[2]  The matter was scheduled for an interim appearance on January 14, 2013 to address any applications in advance of the continuation of the trial.

[3]  The Applicant indicated to the Court in September that she intended to make an application. In a [notarized] letter dated November 23, 2012, the Applicant wrote to the Court advising of her intention to proceed with the application and set out material on which the application was made. [In a letter to Judge Crabtree dated September 19 Kwitsel Tatel made a brief reference to Mr. Finn Jensen’s alleged conflict of interest. In the proceedings of September 25, where Professor Anthony Hall was recognized as an expert witness in case 47476, Judge Crabtree seemed prepared to accept this part of the September 19 letter as an application that Mr. Jensen should be removed. Mr. Jensen objected indicating the September 19 letter was not sufficient for such an application. Mr. Jensen then exited the proceedings of September 25 claiming his need to meet with his doctor. On this basis a January 14 date was set for a hearing on Mr. Jensen’s alleged conflict of interest. In the course of the September 25 proceeding Judge Crabtree responded to Kwitsel Tatel’s question about where we were at in the trial. In his precis, Judge Crabtree indicated that the proceedings to date had been dominated by looking at “the facts” of the case with respect to the regulatory infraction. Not once did Judge Crabtree mention the relationship of Aboriginal rights as recognized and affirmed in Canada’s constitution to the federal legislation and regulations at the core of the federal Crown’s case against Kwitsel Tatel.

 Kwitsel Tatel then prepared the November 23 notarized letter comprised of 143 typed pages of evidence, including evidence supporting 35 alleged infringements of section 35 of Canada’s Constitution Act, 1982. In the period between November 23 and January 14 the evidence was, in Judge Crabtree’s own words, “revised and amplified.” The more refined statement of evidence, initiating what Kwitsel Tatel understood to be the second and constitutional phase of the trial, became the basis for the core of a specially prepared book, Aboriginal and Treaty Rights in Canada. This book of evidence was submitted to Judge Crabtree and Mr. Jensen during the January 14 proceedings at the Chilliwack Law Courts. Essential to Kwitsel Tatel’s case is her insistence that the full weight of Canada’s efforts to criminalize her in a provincial court for continuing her ancestors’ Aboriginal fishery is taking place in a part of Canada where no treaty has ever been made; where the provincial and federal governments as well as their corporate extensions assert jurisdiction illegally because of their failure to live by the existing constitutional law of Canada, the imperial law of the British Empire, and the UN Declaration on the Rights of Indigenous Peoples to which the government of Canada belatedly adhered.

 In the January 14 proceedings Judge Crabtree described what was happening by way of an aside as something called “a pre-trial procedure.” The concept was not explained to Kwitsel Tatel as a layperson. In his defence of his actions and decisions on behalf of The Hon. Rob Nicholson, the Attorney-General of Canada, Mr. Finn Jensen referred to various “formulas” and ”stages” yet to come in the trial of Kwitsel Tatel. The effect was to create a jumble of confusion that put a cloud of obfuscation around the core matters of a case involving a self-represented accused carrying without professional legal advice or any financial backing whatsoever. As Kwitsel Tatel sees it, in spite of these harsh imbalance of power she is nevertheless carrying the responsibility to defend the honour of Her Majesty the Queen together with the Aboriginal and treaty rights of all the Aboriginal peoples of Canada.

 Based on Kwitsel Tatel’s more than two-hundred days of court time since July 14 of 2004, and based on the outcome in this ruling responding to her allegation that Mr. Finn Jensen is in a conflict of interest in the current stage of this trial, Kwitsel Tatel is more convinced than ever that existing Aboriginal and treaty rights are systematically denied and negated at every turn by irresponsible and unaccountable Crown officials, including Mr. Finn Jensen and his supervisors. Judge Crabtree’s ruling published here on Mr. Finn Jensen’s conflict-of-interest demonstrates in itself the pervasiveness of conflicts of interests in matters such as this one.  The proceedings and the outcome demonstrate the enormous inequality separating the parties on both sides of this farce of due process. On the positive side, by refusing to back down in the face of the huge combined force of coercion as manifest in the coordinated actions of the Canadian Ministry of Justice, the RCMP, the federal Department of Fisheries and Oceans, the federal Ministry of Aboriginal Affairs and Northern Development, Crime Stoppers, the BC Ministry of Child and Family Services, and the BC Sheriffs, Kwitsel Tatel is bringing to light the endemic misconduct and deeply embedded system of conflict of interest that plagues many aspects of Canada’s so-called law enforcement system in a host of palaces of injustice such as the Chilliwack Law Courts.

 In the hearings of January 14 Judge Crabtree made a commitment to send a written ruling to Kwitsel Tatel on March 15. On April 5, when Kwitsel Tatel had received no such ruling, she wrote to Judge Crabtree asking for a postponement of the proceedings of May 9, 10, 13, and 14 because of problems in preparing evidence without knowledge of who would be representing the federal Crown in the forthcoming 47476 proceedings. On Friday April 12 a member of the Chilliwack Court registry telephoned Kwitsel Tatel to ask her to join Judge Crabtree and Mr. Jensen on April 15 for a phone meeting on her April 5 request for a postponement. The Chilliwack official then sent Kwitsel Tatel Judge Crabtree’s court ruling by E-Mail. The ruling was registered at the Chilliwack Law Courts on April 5.  The final sentence of the ruling indicates, “The second phase of the proceedings will continue on the dates scheduled in May 2013.” The hard copy of the ruling arrived in Kwitsel Tatel’s mailbox on April 16. Although the hand written notes on the scanned copy indicate the ruling was sent from Chilliwack on April 5, the unsealed envelop in which the conflict-of-interest ruling was mailed is stamped with the date of April 9, 2013]

[4]   A subsequent letter dated December 19, 2012, filed with the Court on January 7, 2013, was a revised and “amplified” version of the earlier letter. In this [notarized] letter the Applicant seeks to have the Federal prosecutor, Mr. Finn Jensen Q.C. removed as counsel having conduct of the case. Attached to the letter is a 143-page [notarized] document which sets out a submission which in part relates to the current application before the Court.

[5]  This matter was heard on January 14, 2013

[6]  The Applicant requests an order that the Federal prosecutor be removed from the presentation of this case as he is in a conflict of interest and lacks objectivity [and Mr. Jensen QC has a personal stake in “stage two” of this trial given that it is to deal with Kwitsel Tatel’s allegations involving the actions and decisions of Mr. Finn Jensen who has dishonoured the Crown on behalf of the Federal Minister of Justice, Mr. Rob Nicholson. This dishonouring of the Crown arises because Mr. Jensen, a private contractor for the Ministry of Justice, has denied and negated rather than recognized and affirmed the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada as articulated in section 35 of Canada’s Constitution Act, 1982]]

[7]  Briefly, by way of background and summary, this trial involves the allegation that the Applicant was in possession of fish caught in contravention of the Fisheries Act or Regulations. [sic. This trial also involves the allegations introduced by the Applicant in the notarized letter of Novemebr 23 that the government of Canada is denying and negating section 35 of its own Constitution Act, 1982. This denial and negation is made especially evident in the way Federal Crown prosecutor, Mr. Finn Jensen, has marshaled the enormous resources of the federal government to help it achieve its political objectives through the criminalization of Kwitsel Tatel and others like her for an integral exercise of her Aboriginal rights. In the Fraser Valley of British Columbia Aboriginal rights start with salmon tied to the ability of Aboriginal peoples to exercise continuity with their Aboriginal fisheries.]

[8]  The case has proceeded in a similar manner to the regulatory matters where an Aboriginal right is raised as a defence. The procedure is based on the decisions of Regina vs. Sparrow [1990] S.C.R. 1075, Regina v. Van der Peet [1996] 2 S.C.R. 507 and a series of rulings in R v. Dennis Carmichael John (unreported Campbell River registry. [but unlike other cases, Kwitsel Tatel is going beyond the presentation of a defence for possessing her fish to putting the government of Canada on trial for denying and negating Aboriginal rights with respect to Aboriginal fisheries in her Aboriginal territory where no Crown-Aboriginal treaty exists. The Queen and Kwitsel Kwitsel Tatel are putting the government of Canada on trial based on that provision of the Sparrow decision which reads, “Federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies Aboriginal rights. A classic expression of such an unjustified infringement is section 4 of the Aboriginal Communal Fishing Licenses Regulations which unilaterally and without consultation centralizes all power over Aboriginal fishing in the federal Minister of Fisheries. One of these licenses forms the basis of the federal Crown’s case against Kwitsel Tatel in spite of a proviso on the document that “this license does not define an Aboriginal right to fish or its scope.”]

 [9]  At present this trial is at the stage of determining whether the applicant was acting pursuant to an Aboriginal right and whether there is a prima facie infringement of that right. In the event the Aboriginal right and the infringement[s] are established then the onus would fall to the Crown to justify the infringement and whether the Crown has fulfilled its obligation of consultation and accommodation. [This account of the trial’s present stage contradicts a statement made by Judge Crabtree in section 34 of the same ruling. In section 34 below Judge Crabtree writes of the Crown’s admission that “the Applicant has an Aboriginal right to fish for food, social and ceremonial purposes.” Why does Judge Crabtree indicate in section 9 that the Aboriginal right has yet to be established when he indicates in section 34 that the Aboriginal right is already established? With the Aboriginal right to fish already established in this trial the process should move automatically to Kwitsel Tatel’s 35 alleged government infringements of Aboriginal rights, many of which involve centrally Mr. Finn Jensen Q.C. who is in a serious conflict of interest by continuing his efforts to defend his actions and decisions, a process he began in the proceedings of January 14.]

 [10]  The Applicant’s submission is divided into four parts

[11]  Part 1 is a commentary from the historical perspective which discusses the Constitutional history as it relates to Aboriginal peoples. In this part, there is discussion relating to the importance of the Royal Proclamation [of 1763] as well as some of the policies impacting Aboriginal peoples and the assertion [and violations] of their rights and title[s].

[12]  At pages 22 to 28, the Applicant asserts and particularizes a number [35] infringements by the federal government of her Aboriginal rights and titles as they are “recognized and affirmed” in s. 35 of the Constitution Act, 1982. [Even though Judge Crabtree’s provincial court lacks legitimate jurisdiction to deal with the inherent and Crown-protected Aboriginal human rights of the accused, with this single affirmative statement the provincial magistrate apparently accepts the validity of Kwitsel Tatel’s list of 35 alleged infringements of section 35. Judge Crabtree can be seen here to accept that the listed infringements are real and therefore must be justified by the federal government who thereby becomes answerable to the Queen and Kwitsel Tatel. Given this affirmation by Judge Crabtree the process must go forward in an appropriate jurisdiction where the federal Crown is called upon to reconcile federal power by presenting “justification of any government regulation that infringes upon or denies Aboriginal rights.” The infringements that Kwitsel Tatel details affect the exercise of not only her Aboriginal rights, as Judge Crabtree states, but the Aboriginal rights of all the Aboriginal peoples of Canada.]

 [13]  Part 2 is focused on the particularization of the infringements of s. 35 of the Constitution Act, 1982. As the applicant herself states on page 29:

In particular I alleged that some of the procedures, regulations, treatment and laws imposed on me through the Crown’s process of criminalizing me for fishing in my Aboriginal waters are are inconsistent with s. 35 of the Constitution Act, 1982. Moreover, specifically, I shall make the case that the actions of Crown officials, but especially the [federal] Crown prosecutor, in criminalizing me for illegally possessing fish caught in our Aboriginal fisheries along the Fraser River fails to meet the legal requirements set out in May of 1990 in the case of Ronald Edward Sparrow v. The Queen.

[14]   Part 3 of the her submission is a further articulation of the infringements that the Applicant asserts by the Crown failing to adhere to s. 35 of the Constitution Act, 1982. [Judge Crabtree reiterates his affirmation that the infringements Kwitsel Tatel outlines are valid and judiciable]

 [15]  Part 4 is titled “Resolutions?” and as the Applicant notes under s. 4—5, “The Way Ahead” and the request to have the Federal prosecutor, Mr. Finn Jensen Q.C. be ordered or directed to withdraw from continuing to prosecute the case on behalf of the Federal Crown. [sic.  S.4.1-4.6 is part of the notarized document referred to repeatedly by Judge Crabtree in this ruling. What does Judge Crabtree mean by section 5? Is Judge Crabtree referring to the essay “From the Royal Proclamation, to the Indian Act, to Dan George’s Centennial Speech, to Idle No More, to the case of Kwitsel Tatel: Explorations in the Contextualization of History.” The essay is by Prof. Anthony J. Hall. The essay appears in a short book submitted to Judge Crabtree and to Mr. Finn Jensen on January 14 as part of the evidence of the Applicant and the accused. The book, prepared especially for the case, is by Patricia E. Kelly with Anthony J. Hall. It is entitled Aboriginal and Treaty Rights in Canada: The Government of Canada on Trial in the Case of Kwitsel Tatel. (Lethbridge: Blue Grama Publications, 2013).

By putting Dan George’s Centennial speech in context the author of the essay draws attention to the importance of acknowledging some statements by Aboriginal elders as a major source of genuine Aboriginal law. By pointing out the juridical character of Chief Dan George’s words, some balance is brought to our close attention on the laws, constitutions, and regulations of the powers that have colonized and continue to colonize Indian Country and Indigenous peoples. In BC this colonizing process, which drives the federal government’s zeal to criminalize Kwitsel Tatel for trying to keep her Aboriginal fishery alive, is pushed forward without the consent of Aboriginal peoples. This regime of denial and negation of the Aboriginal and treaty rights of the Aboriginal peoples of Canada is pushed forward outside the requirements of constitutional, imperial and domestic law and outside the international law of the UN Declaration on the Rights of Indigenous Peoples. Indeed the criminalization since 2004 of Kwitsel Tatel for possessing fish and the federal government’s subsequent persecution of her in a provincial court underlines the criminal nature of Canada’s current Aboriginal policies as formulated on contract by the likes of Professor Tom Flanagan, Dr. Alexander von Gernet and their patrons in the federal Ministry of Justice and the federal Department of Aboriginal Affairs and Northern Development.]

 Legal Test

 [16]  With respect to an application of this nature, does the Court have jurisdiction to make an order removing counsel? In R v. J.C., [1998] B.C.J. No. 3277, Associate Chief Judge Stansfield [as he then was] noted there was no specific provision of the Criminal Code to address such an application. However, it was noted in MacDonald Estate v. Martin [1990] 3 S.C.R. 1235 that the courts have inherent jurisdiction to remove a lawyer from the record for conflict of interest. The jurisdiction to do so rests with the fact that the lawyers are officers of the Court; as a result, their conduct is subject to the scrutiny of the Court in which they are appearing in [sic]. In other words, the Court maintains a supervisory jurisdiction over counsel appearing in the Court by reason of the Court’s inherent jurisdiction to control its own proceedings.

[17]  The MacDonald Estate case is the leading case on the standard to be applied in deciding whether a lawyer or a law firm should be disqualified from continuing to act in litigation due to a conflict of interest. The test to determine whether a disqualifying conflict of interest exists is:

a.     1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

b.     2. Is there a risk that this confidential information will be used to prejudice of the client.

[18] While the MacDonald estate case involved the application to remove a lawyer for a conflict of interest, the supervisory jurisdiction or inherent jurisdiction to control its own proceedings also permits a Court to address an application to remove the Federal prosecutor because he lacks objectivity. [From where does Judge Crabtree pull this reference to “objectivity”? Why does Judge Crabtree stress this word while simultaneously ignoring the main argument put forward by Kwitsel Tatel that Finn Jensen is in a personal conflict of interest during this stage of the trial because he has a personal interest in defending the appropriateness of his personal actions and decisions as they have figured in many of the 35 infringements of section 35 Kwitsel Tatel has already brought forward in her evidence.]

 [19]  In a regulatory prosecution, the prosecutor or the Crown is understood to fulfill a quasi-judicial role in the prosecution of the case. The prosecutor or the Crown is viewed as a “minister of justice.” This view was expressed by Rand J. in Boucher v. The Queen [1955] S.C.R. 16 at 23-24 where he stated:

It cannot be over emphasized that the purpose of a criminal prosecution is not to obtain a conviction. It is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must be done fairly. The role of the prosecutor excludes any notion of winning or losing: his function is a matter of public duty then which in civil life there can be none charged with greater personal responsibility. [surely this solemn public duty on the part of a Crown prosecutor, one for which “there can be none charged with greater personal responsibility,” is even stronger when it comes to the prosecution of an Aboriginal person for activities that are arguably protected by section 35 of the Constitution Act, 1982. Why does Judge Crabtree not address the special fiduciary responsibilities that necessarily fall on a Crown prosecutor in a case such as that of Kwitsel Tatel]

[20] In R v. Regan [2002] 1 S.C.R. 297 it was held that Crown objectivity is one of a number of elements of the judicial process which must be safeguarded. [How can Mr. Jensen be genuinely objective in this phase of the trial when the process involves arbitration of the personal actions and decisions he made in prosecuting Kwitsel Tatel for possessing fish?]

 [21] In order for the Crown to fulfill its role as “minister of justice,” it must, throughout the process, maintain an objective stance or position. In the event the Crown loses objectivity, they [sic] should be removed from the prosecution of the case.

[22]  In my view, the relevant questions to be resolved at this stage are whether the Federal prosecutor is in a conflict of interest or whether he is unable to fulfill his role objectively.

Discussion

 [23]  The Applicant’s submission is based on the following:

1.     The events of July 25, 2012 which took place at the courthouse in Chilliwack resulting in the Applicant being taken into and appearing from custody on the day scheduled for the continuation of the trial and presentation evidence to be called by her. [Kwitsel Tatel was arrested and brutalized in the Chilliwack Law Courts on July 25  for attempting to drum and sing her evidence into court according to Aboriginal custom. Kwitsel Tatel’s son, Kwiis Hamilton was also assaulted and taken into custody after attempting verbally to defend his mother. In the process of the Chilliwack sheriffs’ arrests the evidence of Kwitsel Tatel’s proposed expert witness was vandalized by Crown officials and no chain of custody papers were presented when Prof. Anthony Hall later retrieved the vandalized package of evidence, with some rare documents missing, at the Chilliwack RCMP station]

2.     A Crime Stoppers notice which appeared in a local Chilliwack newspaper which contained a photograph and name of the Applicant and information relating to outstanding matters before the Court;

3.     The more general allegation that the Federal Crown has engaged in a series of infringements to what the Applicant asserts to be her Constitutional rights which she asserts are contained in s. 35 of the Constitution Act, 1982. [Aboriginal and treaty rights are recognized and affirmed in section 35, not “contained” within section 35. The rights spring from Aboriginal sources far deeper than Canada’s constitution. They come from sources outside Canada’s constitution. Aboriginal rights spring from tens of thousands of years of organized human life on lands and waters that have been subject to various European claims for at most hundreds of years. Section 35 does not therefore create Aboriginal and treaty rights. That understanding is essential to any accurate judicial interpretation of the words “recognize and affirm” in section 35 of the Constitution Act, 1982.]

[24]  The infringements outlined by the Applicant in the body of her submissions are allegations and have yet to be established. To the extent that these infringements are relevant to the case, they will be considered upon completion of the evidence adduced at trial. [Judge Crabtree creates confusion with his inconsistent comments about the current character of this litigation. Just as with section 9 Judge Crabtree seemingly contradicts his statement in section 34 that the Aboriginal right has already been established, so the provincial magistrate creates similar confusion with his lack of clarity about what stage of the trial we are at. Kwitsel Tatel has been under the impression that a second and constitutional phase of the trial was to have begun on July 25, 2012. In section 1 of his ruling, however, Judge Crabtree notes that “this stage of the trial commenced with the hearing of evidence in June of 2010.”

 The trial proceedings between June of 2010 and July of 2012 were dominated by various applications brought by Kwitsel Tatel with the assistance of now-Dr. Wenona Victor aimed at making the playing field less uneven with the ingredient of financing to facilitate bringing forward the accused’s relevant constitutional arguments. The fact that Mr. Jensen drew so prolifically on the resources of the federal state to prevent an equalization of the playing field forms an important part of the evidence of his failure to honour the Crown by living up to the Queen of Canada’s fiduciary obligation to see that Kwitsel Tatel and others in her shoes get a fair trial. Why did Judge Crabtree completely ignore this aspect of Kwitsel Tatel’s case that Mr. Finn Jensen Q.C. is in a conflict of interest in the second and constitutional phase of this trial? Why did Judge Crabtree ignore section 3.7 of the case Kwitsel Tatel developed to demonstrate the conflict-of-interest of Mr. Finn Jensen? The title of that section reads “Mr. Finn Jensen’s Tactics on Behalf of the Federal Crown to Deny and Negate Section 35 through Plea Bargaining and through the Manipulation of Police Powers to Criminalize, Impoverish, Dispossess, Harrass, and Intimidate the Accused.”

 Because of the physical and legal assault of Crown officials on Kwitsel Tatel and her son on July 25 she was in no sound position to lead the evidence as she had planned on doing. The fact that she was able to take part at all in the proceedings of July 26 is a testament to her grit and perseverance under the conditions of the cruel and unusual punishments repeatedly heaped on her and her offspring because of Kwitsel Tatel’s unwillingness to bend to the will of her persecutors by pleading guilty to the Crown’s ruthless policy of systematically denying and negating in court the Aboriginal peoples of Canada’s section 35 rights. It was not until November and December of 2012 that Kwitsel Tatel sufficiently recovered from her ordeal to be in a position to lead the evidence now that Judge Crabtree seemed finally to have provided a coherent opening to exploring in a considered and systemic fashion the section 35 arguments that she attempted with mixed success to raise again and again from the moment in the summer of 2004 that DFO officials mobbed her while the Aboriginal fisher was sitting on her fish tote at the Sundance Seafood Company of Mr. Mike Denike.

 Beginning with her notarized submission dated November 23 and its subsequent refinement and amplification, Kwitsel Tatel has led the evidence in this phase of the proceedings by making her Sparrow case “demands” of the federal Crown through the listing of 35 alleged infractions of section 35 of the Constitution Act, 1982. Her submissions include evidence and discussion backing all these 35 allegations of unjustified infringements. Rather than deal with the problems inherent in Mr. Jensen’s continuing role in the upcoming processes, Judge Crabtree has chosen to clutch onto discredited old legacies of judicial colonialism by attempting to hold in obeyance the new evidence and arguments. In many instances the new submissions merely bring fresh language to positions that Kwitsel Tatel and her witnesses introduced long ago into the proceedings against the concerted attempt of Mr. Jensen and the Ministry of Justice to win the case rather than live up to the heavy public duties that fall on them in advancing what appears to many to be a concerted attempt to criminalize a legitimate exercise of Aboriginal rights as recognized and affirmed in section 35 of the Constitution Act, 1982. The alleged infringements are already firmly on record as part of the evidence that must be addressed. Judge Crabtree therefore seemingly reverts to old habits by characterizing the new evidence as matters “to be considered upon completion of the evidence adduced at trial.” This approach puts a new twist on the original criminalizing of the accused before allowing the constitutional phase of the proceedings to go forward. The rule at play here seems to be that the onus of proof must always fall on the accused and never fall where it most urgently should, that is squarely on the federal government. This approach sabotages what was intended by the authors of the Sparrow ruling in their efforts to lay out a strategy for reconciling federal power with federal duty.     

[25]  July 25 and 26, 2012 were days set aside to complete the hearing of the evidence relating to this matter. [What matter? The matter of the whole trial from 2004 to July of 2012? Was an old phase of the trial coming to an end or was a new phase of the trial about to begin?]  The matter did not proceed as scheduled. On the morning the matter was set to continue there was an incident at the Chilliwack Courthouse which culminated in the Applicant appearing before the Court in custody. The details of what occurred have not been put before me. [The major point in raising this mater was not to argue that Mr. Finn Jensen somehow engineered the incident as Judge Crabtree carelessly indicates. The point was, rather, to underline that the Hon. Thomas J. Crabtree, Chief Judge of British Columbia— the very provincial judge currently hearing the case of Kwitsel Tatel— bears some responsibility to make it possible for those who choose or who are required to appear before him, to arrive at his courtroom with some assurance that public safety and security will be respected and protected by court staff, including the BC Sheriffs. Clearly such a promise of safety and security was not on offer to those seeking to convene in the Chilliwack Law Courts to take part in the proceedings in the Kwitsel Tatel case on July 25, 2012. Many of those who gathered to be with Kwitsel Tatel on July 25 ended up spending much of the day at the Chilliwack RCMP station where they were initially refused repeated attempts to give eye witness evidence of what they had seen on the entrance stairwell of the Chilliwack Law Courts. Eventually the RCMP officer “investigating” the matter relented on the advice of a superior. The investigator then took testimony from several eye witnesses, some of whom were traumatized by what they had seen and experienced in the wide circle of disruption generated by the violent incident. The fact that this incident began with a sheriff’s on-the-spot prohibition on Aboriginal drumming and singing– with an allegation by this Crown official that a sacred drum might be a “weapon,” points to the lack of any cross-cultural sensitivity in the Chilliwack Law Courts where the iconography of BC’s colonizing society apparently holds a monopoly that is not in keeping with the needs and requirements of a multicultural society. Like Mr. Jensen with the Crime Stoppers incident, Judge Crabtree demonstrates a decided lack of curiosity to look into a matter that involves the integrity, credibility, and viability of the Provincial Court of BC over which he presides. Why, for instance, were BC sheriffs assembled at the Chilliwack Law Courts in larger-than-usual numbers on July 25. Why were some sheriffs brought in from Vancouver on that day?]

[26]  As a result of the Applicant being taken into custody the matter was unable to proceed. The Applicant was subsequently released and appeared before the Court on July 26. An application was brought to have Dr. Anthony Hall, qualified as an expert providing expert evidence. A ruling was subsequently issued setting out various terms on which Dr. Hall’s testimony would be received.

[27]  It is unclear as to the series of events that led up to and resulted in the Applicant being taken into custody on July 25, 2012. With that being said, there is no evidence that the Federal prosecutor was involved with respect to the particular incident.

[28] The Crime Stoppers incident relates to the fact that the Applicant’s name, photograph and details relating to outstanding matters before the Court appeared in a local newspaper.  There is no evidence before this Court that the Federal prosecutor had any role to play in the publication of the Crime Stoppers information. In fact, in his submission, Mr. Finn Jensen, Q.C., explained that neither he nor his office had any involvement in this matter whatsoever. [This statement misrepresents the submission and testimony of Kwitsel Tatel. The Crime Stoppers ad appeared not once but several times both locally and in the Vancouver-Victoria area. It was the subject of some reported attention among some Aboriginal political representatives. The Chilliwack RCMP’s Crime Stoppers notice misrepresented the charges against Kwitsel Tatel claiming she was wanted for selling or purchasing or possessing fish contrary to provisions of the Fisheries Act and its attending regulations. According to Mr. Jensen, Kwitsel Tatel was only charged with possessing fish, not selling or purchasing fish. The criticism of Mr. Jensen is not as stated by Judge Crabtree. The criticism is that Mr. Jensen did not assume his professional and fiduciary responsibility to correct the wrong information once it was published by the Chilliwack RCMP. As the chief prosecutor in the case of Kwitsel Tatel, as the “minister of justice” in this matter, Mr. Jensen had a clear responsibility to be aware of how his prosecution on behalf of the federal Crown was interpreted by Canada’s federal police force for wide public consumption. Mr. Jensen had an obligation to do due diligence to make sure the information published in Crime Stoppers was at least accurate. Moreover, as the federal Crown prosecutor with a clear obligation to represent the Queen of Canada’s fiduciary responsibilities in these matters, once the RCMP began to publish inaccuracies on the content of the charge the responsibility fell on Mr. Jensen to correct the Crown’s disinformation which has defamed Ms. Kelly in her community and curtailed her ability to secure gainful employment. The publishing of the Crime Stoppers ad essentially advanced the position that Ms. Kelly is guilty until proven innocent, a position that has prevailed ever since DFO officials sold her fish the day after their apprehension even before she was charged, let alone convicted, of any crime.]

 [29]  To the extent that there is some evidence before the Court by way of notarized submission [finally a reference to the notarized document] of the Applicant, there is no evidence to link the Federal Crown, Mr. Finn Jensen Q.C., to the specific incidents to which the applicant submits give rise to a basis upon which to consider the Federal Crown prosecutor’s removal from the case.

[30]  With respect to the question of whether the Federal prosecutor is in a conflict of interest, there is no evidence to establish that he received confidential information in the course of a solicitor and client relationship relevant to the case before the Court. As a result, it cannot be said that the Federal prosecutor is in a position to use information to the prejudice of the Applicant. [Strangely, Judge Crabtree opts to put the main test advanced in the The MacDonald Estate case at the very core of his ruling. Because Kwitsel Talel is a self-representing defendant, the intricacies of solicitor-client relations are irrelevant to the most basic matters of this case. What is relevant are the jurisdictional deficits of Judge Crabtree’s provincial court in matters such as this one. As this ruling attests, the main function of BC’s provincial courts in supposedly arbitrating federal prosecutions dealing with federal Indians, federal fish, the federal Fisheries Act and such seems to be to give political cover to the criminal Aboriginal policies of the Dominion of Canada’s government. The decision of Judge Crabtree to ignore the fiduciary role of the Queen of Canada’s lawyer in this case cannot be emphasized enough. Mr. Finn Jensen has dishonoured the Crown repeatedly in consistently refusing to take Section 35 of Canada’s Constitution Act, 1982 into consideration. Now Judge Crabtree has made himself a partner in crime with Mr. Finn Jensen, who represents the Attorney-General Rob Nicholson but not Queen Elizabeth II. The honour of representing Her Majesty falls on Kwitsel Tatel who has not deviated from insisting that the Queen’s promises must be respected by Canada rather than denigrated as the Harper government is currently doing on behalf of its patrons. While making so much of this supposed test– this solicitor-client red herring– Judge Crabtree does not even raise the fiduciary responsibilities of the federal Crown as emphasized in the Guerin ruling, the Sparrow ruling and in the evidence Kwitsel Tatel presents to demonstrate Mr. Finn Jensen’s unremedied conflict of interest.]

 [31]  Furthermore the Applicant has not established that the participation of the Federal Crown, Mr Finn Jensen, Q.C., gives rise to a loss of objectivity. The Applicant has not provided any evidence pointing to a loss of objectivity towards the Applicant, by the Federal prosecutor.

[32] Finally, the Applicant asserted that the the position taken by the Federal prosecutor is inconsistent with the Federal Crown. There is nothing in the material before me to suggest that this is the case. While the Applicant takes a different view of how the proceedings should be conducted which in part arises from her interpretation of and the meaning she ascribes to the Constitution Act, 1982, and in particular s. 35, that does not in itself establish a lack of objectivity or acting contrary to the Instructions of the Federal Crown. In this regard, the Crown has made a number of admissions at the commencement of the second stage of the trial to facilitate the process and to alleviate the applicant from having to establish the right which has been previously recognized including the admission that the Applicant has the Aboriginal right to fish for food, social and ceremonial purposes.

Ruling

 [33]  For the reasons set out above, the application to remove the Federal prosecution from the prosecution of this case is dismissed.

[34]  The second phase of the proceeding will continue on the dates scheduled in May 2013.

Signed

T.J. Crabtree

Chief Judge of the Provincial Court of British Columbia

 

Author Details
Anthony Hall is Professor of Globalization Studies at University of Lethbridge in Alberta Canada where he has taught for 25 years. Along with Kevin Barrett, Tony is co-host of False Flag Weekly News at No Lies Radio Network. Prof. Hall is also Editor In Chief of American Herald Tribune. His recent books include The American Empire and the Fourth World as well as Earth into Property: Colonization, Decolonization and Capitalism. Both are peered reviewed academic texts published by McGill-Queen’s University Press. Prof. Hall is a contributor to both books edited by Dr. Barrett on the two false flag shootings in Paris in 2015. PART I The American Empire and the Fourth World: The Bowl with One Spoon, Part One (McGill-Queen’s Native and Northern) PART II Earth into Property: Colonization, Decolonization, and Capitalism: The Bowl with One Spoon (Mcgill-Queen’s Native and Northern Series) Part II was selected recently by The Independent in the UK as one of the best books of 2010. The journal of the American Library Association called Earth into Property “a scholarly tour de force.” One of the book’s features is to set 9/11 and the 9/11 Wars in the context of global history since 1492.
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