The Ontario Court of Justice convicted the accused on counts of
criminal assault and possession of a weapon for a purpose dangerous
to the public peace. The charges arise from events in February 2012
related to the Caledonia unrest.
The Court referred to the occupation of property in Caledonia,
in February 2006, by people belonging to or associated with the Six
Nations Grand River. They saw it as a reclamation of their
land. Residents of Caledonia saw it as an illegal occupation, and
were not satisfied with the response of the Ontario Provincial
Police (OPP). A demonstration was organized in February 2012 by the
Canadian Advocates for Charter Equity (CANACE). They intended to
walk down Surrey Street in Caledonia to establish that anyone had
the right to march there peacefully. By doing so, they wanted to
"show up" the OPP.
Gary McHale is a member of CANACE. The Court reviewed a video of
him walking down Surrey Street with the other members. The accused
Teresa Jamieson called Mr. McHale "rude and profane"
names, and tried to impede his progress. She picked up a piece of
plastic pipe and swung it at McHale, but another person got in the
way thereby preventing her from striking him.
The Court was satisfied that the elements of ss. 265(1)(b) and
267(a) of the Criminal Code had been established. Ms.
Jamieson's defence appeared to be that the Court did not have
jurisdiction and she was exempt from prosecution. During
questioning of witnesses, she referred to the Two Row Wampum
(Treaty of Albany) of 1664 and the Nanfan Treaty of 1701. Harris J.
rejected any defence relating to jurisdiction. In cases like
Sparrow and Pamajewon, the courts have consistently held that
sovereignty and legislative power are vested in the Crown.
The Court also rejected any argument that Ms. Jamieson was
preventing a trespass, and therefore able to rely upon the defence
of real property. Section 41 of the Criminal Code provides such a
defence. As noted by the Alberta Court of Appeal in R. v. Born With
A Tooth (1992), there are four elements to this defence including
that the accused must be in peaceable possession of the land, and
the victim of the assault must be a trespasser. This defence was
not open to Ms. Jamieson. She was not in "possession" of
the property within the meaning of the criminal law. Further, any
possession by her was not "peaceable" as it was
challenged by CANACE and the police. Harris J. also held that Ms.
Jamieson may have genuinely believed that the property is
Haudenosaunee land, but the defence of "mistake of fact"
is not open to her. She knew that the possession of the land was
seriously challenged by persons like Mr. McHale.
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