The following is a copy of the court transcript.
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Friday, February 15, 2008
Cunningham, J. (Orally):
Robert Lovelace and Paula Sherman, would you please stand. Do you
have anything to say at this time before I pass sentence?
MR. LOVELACE: No.
MS. SHERMAN: No.
Thank you. You may be seated. My unpleasant task this morning is to
sentence Robert Lovelace, Paula Sherman, and the A.A.F.N., in
connection with their admitted contempt of orders of Thomson, J.,
dated August 27, 2007, and of myself, dated September 27, 2007.
Harold Perry, for reasons outlined by his counsel on the record
yesterday, has given a permanent undertaking, the essence of which is
that he will fully comply with my September 27th, 2007 order, that he
will neither counsel, engage in, nor solicit further unlawful activity
at the subject property, and that he will forthwith remove his cabin
from Highway 509 and that it will be placed nowhere near the vicinity
of the entrance gate to the subject property, or the Robertsville
Furthermore, he undertakes not to bring any motions in connection
with my order until after contempt number two has been fully dealt
On the strength of this solemn undertaking, the moving party, F.V.C.,
will not be seeking sanctions against Mr. Perry for his acknowledged
I now turn to the remaining contemnors. Robert Lovelace, who gave
evidence, evidence that Mr. Reid and Mr. Lovelace confirmed was fully
supported by Mr. Perry and Ms. Sherman, testified that his contempt,
and theirs, was not only admitted but would continue should F.V.C.
proceed to bring drilling equipment onto the subject property.
Mr. Lovelace, who fully understood the notion of purging one's
contempt, stated he could not abide by the terms of my order because
to do so would be to put him in conflict with Algonquin law, more
precisely, the moratorium declared by elder William Commanda.
Unlike Chief Doreen Davis and Earl Badour Senior, and indeed at the
last moment, Harold Perry, neither Mr. Lovelace nor Ms. Sherman could
bring themselves to comply with an order of this court.
On their behalf, Mr. Reid spoke of their frustration with the Ontario
government, the Mining Act, and the courts process. He said their
disobedience was a last resort, that these people had respect for the
law and that it pained them to be doing this. He agreed, however,
that none of this amounts to a defence to their contemptuous
behaviour, behaviour, that although being prosecuted civilly, comes
perilously close to criminal contempt.
While I can appreciate their sense of frustration, unfortunately, to
adopt self-help in these circumstances flaunts not only my order, the
order of Thomson, J., but more significantly, the rule of law.
Despite what Mr. Reid may say about the indifference of the Ontario
government causing us to be here, it is the contemptuous conduct of
his clients that has caused this proceeding to be initiated. Not only
are Mr. Lovelace and Ms. Sherman unrepentant, they have made it
perfectly clear their illegal conduct will likely continue. Needless
to say, there has been no apology.
In any consideration of sentencing, certain principles come into
play. Here the principles of punishment, specific and general
deterrence, must be in the forefront. Not only must these individuals
be deterred from committing further unlawful acts, a clear, strong
message must be sent to all who might be contemplating similar action.
This motion is brought pursuant to Rule 60.11 and 60.12. The
provisions of Rule 60.11(5) are very broad, once, as here, a finding
of contempt has been made.
In complete defiance of the orders of this court, dated August 27 and
September 27, 2007, the A.A.F.N., Robert Lovelace, and Paula Sherman,
have not only engaged in a full scale occupation of the Clarendon
site, they have, as leaders of their community, counselled and
encouraged others to do so as well.
Compliance with orders of this court is not optional. I am persuaded
that the illegal activity at the Clarendon site is not limited to the
dates set out in the earlier agreement read into the record. Indeed,
it was occurring as recently as early February 2008, when masked First
Nation members at the site made it perfectly clear they would
physically block any drill from getting onto the property. Mr.
Lovelace's evidence confirms this intention.
As many of the cases cited by the plaintiff have reasoned, to permit
court orders to be wilfully disobeyed would only lead to anarchy.
Many Canadians daily, following the rule of law, turn to the courts
for relief. When one ignores orders of our courts, or takes the law
into one's own hands, respect for our court system evaporates, and our
entire society suffers.
As my colleague, Cumming, J., stated in Sussex Group Limited v.
Fangeat,  O.J. No. 3348,
It is integral to a free and democratic society like Canada that
citizens act pursuant to and under the rule of law. Court orders in
force must be respected and followed. The deliberate failure to obey
a court order strikes at the very heart of the administration of
If the remedies a court directs to be put in place through its orders
can be ignored with impunity, the road to civil anarchy is close at
hand. The thin veil of civilization that cloaks our community through
the rule of law is fragile and in need of constant protection.
Mr. Lovelace says that while he respects the rule of law, he cannot
comply because his Algonquin law is supreme. He says he finds himself
in a dilemma. Sadly, it is a dilemma of his own making.
His apparent frustration with the Ontario government is no excuse for
breaking the law. There can only be one law, and that is the law of
Canada, expressed through this court. One cannot be permitted as
Wood, J. stated in R. v. Bridges 61 D.L.R.(4th)154, at page four, "the
occasional anarchical holiday from the rule of law".
As he further stated,
…by seeking to change the law by deliberately disobeying it you
threaten the continued existence of the very instrument, indeed the
only instrument through which you may eventually achieve the end you
seek. Such conduct is not only illegal, it is completely
Recognizing that a sanction for contempt must be proportionate to the
nature of the contempt itself, as well as any mitigating or indeed
aggravating circumstances, and bearing in mind the sentencing
principles of punishment and deterrence, I sentence Robert Lovelace
and Paula Sherman to six months each in jail.
In addition to that, you will each be fined. Robert Lovelace, a
recognized leader and spokesman for his community, was on the site in
breach of the order on twenty-six occasions.
Although apparently only illegally present on two occasions, Paula
Sherman is the current chief of the A.A.F.N. Her illegal presence at
the site would only serve to send a signal and to encourage others.
I have carefully considered the evidence concerning ability to pay,
and reference has been made by me to the suggested factors set out in
my brother judge's reasons, Justice Stinson, in Oakley Manufacturing
Inc. v. Bowman,  O.J. No. 1641, at paragraph 69, and by Ferrier,
J. in Boucher v. Kennedy,  O.J. No. 1612, in my determination of
the fine to be imposed. I am satisfied that each along with A.A.F.N.
has the ability to pay.
Accordingly, as to Robert Lovelace, in addition to the period of
incarceration just pronounced, you shall be fined $25,000.00. Ms.
Sherman is fined $15,000.00, and A.A.F.N., $10,000.00.
Going forward, and in order that these respondents comply with the
order, which by the way is to continue, they shall each, along with
A.A.F.N., be subject to a fine of $2,000.00 per day for any failure to
As requested, the statement of defence on behalf of these
respondents, pursuant to Rule 60.12, is hereby struck, and no other
motions or applications to this court may be made by them until their
contempt has been purged.
This, in my view, is not only proportionate to the wrongdoing, but is
necessary in order to control the courts process.
However, should these respondents decide to purge their contempt by
undertaking on a permanent basis to comply with my order, then I may
be spoken to by way of a motion to vary or discharge this custodial
In the meantime, I intend to endorse the warrant of committal that
the sentences I have imposed are not subject to remission of any kind
unless ordered by this court.
The police, that is to say the O.P.P. or otherwise, are directed to
immediately enforce the warrant of committal.
THE COURT: As to the matter of costs?
MR. SMITHEMAN: Your Honour, we'd ask for costs on a substantial
indemnity basis. And there's one other matter, Your Honour.
THE COURT: Yes.
MR. SMITHEMAN: If I might just address the warrants … the Jane and
John Doe warrants. There may have been some confusion yesterday. The
request is to have those issued by this Court to assist the police in
the event of a further obstruction.
THE COURT: They shall be issued.
MR. SMITHEMAN: Thank you.
THE COURT: Do you wish, counsel, a time to make written submissions
with respect to costs?
MR. SMITHEMAN: Yes, Your Honour. What I would suggest is to make
that returnable for March 18th as well.
THE COURT: Mr. Reid?
MR. REID: That's fine, Your Honour.
THE COURT: Written cost submissions will be exchanged, and delivered
to me, and brief written submissions no greater than three pages each,
by March 18th, 2008. Thank you.
COURT CLOSED 9:45 A.M.
COURT RE-OPENS 10:30 A.M.
MR. SMITHEMAN: Your Honour, we have reached some accommodation with
my friend, Mr. Reid, and I want to say that it's been motivated mainly
on compassionate grounds, and we are agreeing to an undertaking that
we've worked out with my friend, Mr. Reid, on behalf of his client,
Ms. Paula Sherman. And it relates only to the term of incarceration,
the terms of which will be read in by Ms. Pratt. Thank you.
THE COURT: Is that correct, Mr. Reid?
MR. REID: It is.
THE COURT: Thank you.
MR. REID: And I think I should say in open court what I said in
chambers, Your Honour, that what Mr. Smitheman was alluding to about
compassionate grounds, the simple fact is that Chief Sherman is the
sole supporter of three children, and she will lose them if she goes
MS. PRATT: So, the terms of the undertaking are as follows: One,
that Dr. Sherman will comply with the letter and the spirit of the
September 27, 2007 order of Associate Chief Justice Cunningham. Ms.
Sherman will not attempt to re-secure or in any way occupy the
Clarendon mineral site and exploration property.
Next, she will not engage in any activity that directly or indirectly
blocks Frontenac Ventures Corporation's representatives from bringing
a drill on the Clarendon mineral site and exploration property.
She will use her best efforts to ensure that Ardoch Algonquin First
Nation community members will comply with the September 27, 2007 order
of Your Honour, including not coming within 200 metres of the gate of
the Clarendon mineral site or the exploration property, with the
exception of bona fide hunting, trapping, or fishing activites during
the applicable season, in groups of four people or less, and with the
exception of travel in the normal course on Highway 509.
She will use her best efforts to ensure Ardoch Algonquin First Nation
community members will comply with the September 27, 2007 order of
Your Honour, by not attempting to re-secure the property and not
blocking Frontenac Ventures Corporation from bringing a drill on the
She will not solicit or encourage third parties to engage in any
activity prevented by the September 27, 2007 order of Associate Chief
Justice Cunningham. And in this regard, third parties include members
of the Shabot Obaadjiwan First Nation, other First Nations, including
Six Nations and Mohawks, settlers, including members of C.C.A.M.U.,
and environmental groups.
And finally, she will post a transcript of the undertakings that she
has personally given to the Court in this matter in the Ardoch
Algonquin First Nation Band office or the equivalent, and on the
Ardoch Algonquin First Nation website.
THE COURT: Thank you. Ms. Sherman, are you prepared to abide by
MS. SHERMAN: Yes, I am.
THE COURT: Thank you. Accordingly, I will discharge the custodial
portion of my order with respect to Paula Sherman. Anything further?
MR. SMITHEMAN: Nothing.
THE COURT: Thank you.
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
I, Pamela Juneau certify that this document is a true and accurate
transcript of the recording of:
Frontenac Ventures Corp v. Ardoch Algonquin First Nation et al
In the Ontario Superior Court of Justice, held at 5 Court Street,
Kingston, Ontario, taken from Recording No. 911-A036/08, which has
been certified in Form 1.
Date: February 21, 2008