Sunday, November 14, 2004

Protesters’ appeals are dismissed

by Robert Koopmans for the Kamloops Daily News

Three provincial court judges made no errors when they found nine people who blocked the highway to Sun Peaks Resort guilty of criminal acts, a B.C. Supreme Court judge ruled Friday.

However, he questioned whether their sentences should be imposed.

Justice Frank Cole dismissed the appeals against conviction of the protesters, saying his examination of the judges’ reasoning failed to turn up errors sufficient to overturn the convictions.

He said all the judges properly rejected the “colour of right” defence put forward during the trials by lawyers for the accused, correctly weighing the legal principles as they did so.

Cole frequently quoted from the reasons for conviction from the trial judges, who said while the protesters argued they believed their actions were lawful, the evidence suggested they knew otherwise.

The judges said deeply held beliefs about aboriginal title are not the same as a sense of ownership.

The convictions for intimidation, mischief and blockading a highway stemmed from two roadblocks in August and December 2001. In both instances the highway to the resort was closed for short periods of time. In the August incident, an excavator was also surrounded and prevented from working.

During the trial, lawyers argued the defendants violated no criminal laws because they honestly believed Canadian law gave them aboriginal ownership of the land in question.

After dismissing the appeals, Justice Cole questioned whether the protesters need to be punished in the fashion ordered by the trial judges, adding sentences that may have seemed fit at the time of conviction may no longer be appropriate.

Some of the protesters were given jail terms of up to 45 days, or handed conditional sentences or probation.

Cole asked prosecutor Don Mann if there is a need to proceed with two planned sentence appeals, suggesting the protesters may have already been sufficiently punished.

“These people have had their liberty restrained for three years,” said Cole, referring to bail conditions imposed after their arrests and after the sentences were set aside pending the appeals.

“What more does the Crown want? What concerns me is these matters are three years old. The passage of time affects sentence. What was appropriate three years ago may not be appropriate today.”

Mann said there must have been good reason for the judges to impose the penalties they did, and to simply overturn those sentences now may send the wrong message.

“One has to be mindful of general deterrence,” said Mann.

Cole, with hesitation, agreed to adjourn the question of what to do about the sentences for the convicted blockaders to allow lawyers to prepare arguments. A hearing is expected in December.

In the hallway outside the courtroom, Art Manuel, chief of the Neskonlith Indian Band at the time of the blockades, said regardless of the outcome, the protesters delivered their message.

“It’s a very political decision,” said Manuel. “Sun Peaks is putting a lot of pressure on the government and the courts to stop blockades.

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