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gary mason

Rarely has a judge been as blunt and outspoken in his condemnation of police and government and their reluctance to enforce the rule of law in this country. In fact, B.C. Supreme Court Justice Mark McEwan is so frustrated with the RCMP's unwillingness to end an aboriginal blockade in the northern part of the province, he compared the situation to one of the most notorious native standoffs in Canadian history – Caledonia.

And underlying the judge's remarks is the often tenuous relationship that exists between first nations and a common law that can be foreign to their way of doing business.

Mr. Justice McEwan made his pointed observations at a recent hearing into the occupation of the offices of the Gitxsan Treaty Society – the ruling body of the Gitxsan First Nation – that has been under way in Hazelton, B.C. since Dec. 5. It was ignited over an endorsement of the planned Enbridge pipeline project that a society member unilaterally entered into with the company.

Upset with the move, a group of Gitxsan chiefs decided the society no longer had the authority to represent them. They had the group's offices boarded up and have since refused to allow any society member from entering. On Dec. 7, the society got an injunction against the occupation – one that gave the RCMP "operational discretion" in terms of how and when it moved in to end the standoff.

Five months later, the RCMP still hadn't done anything, which is how the matter ended up in front of Judge McEwan, who quickly expressed his exasperation over how the matter has been handled to this point.

And it was early on that he invoked memories of Caledonia, the infamous Six Nations occupation of an Ontario housing development that police and government allowed to drag on for more than four years.

Judge McEwan said that by not wading in and making their presence felt in continuing protests of this nature, governments are simply avoiding hard decisions. And what the hands-off policy does, he insisted, was compound the problem.

"If the court's order then is stuck in somebody's back pocket, which is what seems to happen, you know, then what have you got?" asked the judge. "You've got the court stamping its feet and nobody bothering to enforce it. That's what happened in Caledonia. Caledonia is a disgrace."

When one lawyer referenced the anger the Ontario Court of Appeal expressed over the hesitation by police to end the Caledonia occupation, Judge McEwan said: "That's what we've got here." He added that he was concerned about "being Judge [David]Marshall," the jurist who ended up at the centre of much of the Caledonia dispute.

Judge McEwan didn't stop there.

He asked the lawyers before him whether they understood how "demoralizing and undermining to the whole idea of the rule of law it is to have people carry on in a community flagrantly in violation of both the Criminal Code and a court law – and a court order." He dismissed the RCMP's concerns about moving in and inciting violence.

"The police give you this huge, 'Oh, no … it will be horrifying … it will be terrible if they just go in and do their job," said the judge. "Often it isn't." He said that policing in Canada is in a "dire condition" if the order to end the Hazleton occupation can't be carried out because of the resistance of a handful of protesters.

And on it went. Judge McEwan sounded like a man at wits' end. Or rather, a judge fed up with people looking to the courts to do the job of others. In this case, the lawyers for the society are asking the court to effectively rule the occupiers in contempt – before the RCMP have even tried to enforce the order.

Nor did the judge have much sympathy for the occupiers. When a lawyer representing the group suggested the court needed to be careful in dealing with the matter because the Gitxsan adhered to a different governance model than the one that existed in the non-aboriginal world, the judge snapped.

"I'm up to my eyeballs in Gitxsan governance," he said. "Once you lose control of a situation and you're stuck with coming to court, it's got to have some shape that the court can address."

The hearing continues next week.

It's refreshing when judges speak their mind and don't attempt to hide their feelings behind legal bafflegab. In this case, Judge McEwan is absolutely right: The courts have given the RCMP the authority to end the occupation and it should do just that. If it takes some nudging, gentle or otherwise, from B.C.'s justice minister to get the RCMP to overcome its shyness and do its job, then so be it.

It shouldn't be a judge's responsibility.

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