The appeals of several of those convicted in the Ts'peten (Gustafsen Lake) trial have been adjourned by the British Columbia Court of Appeal.
Native rights lawyer Dr. Bruce Clark submitted in writing the appeals of Wolverine a.k.a. William Jones Ignace, James "OJ" Pitawanakwat and Shelagh Franklin, in tandem with the appeal of Lil'Wat traditionalist Tsemhu7qw a.k.a. Harold Pascal, who is advancing a civil case challenging the jurisdiction of the BC courts over unceded, sovereign Lil'Wat territory.
Wolverine and Pitawanakwat remain incarcerated.
The unexpected adjournment is best understood from the correspondence between Clark and the Crown Counsel:
Bruce Clark, LL.B.,M.A., Ph.D.
By Fax And Mail
September, 22, 1997
William F Ehrke Crown Counsel,
Ministry of the Attorney General
Criminal Justice Branch, Criminal Appeals
800-865 Hornby Street,
Vancouver, BC V6Z 2G3
In answer to your letter dated 11 September 1997 please be advised that:
(a) The address for service is unchanged;
(b) Ignace and Pitawanakwat are in custody at Matsqui [S.I.S.I.S. note: OJ Pitawanakwat has since been moved to a prison in Mission, B.C.];
(c) I act pro bono for the appellants Ignace, Franklin and Pitawanakwat so far as preparation of their documents is concerned;
(d) They appeal pro se because the bench and bar of British Columbia will not allow me to appear as their counsel;
(e) The reason that the bench and bar of British Columbia will not allow me to appear as their counsel is, as the ground of appeal states, that the bench and bar of British Columbia are not willing to address the law which substantiates the ground of appeal, and I am the only lawyer in Canada who is ready, willing and able to raise and defend that law;
(f) Delivery of the Appellants' Factum, Appeal Book and Casebook was completed 8 July 1997;
(g) For the reason identified in the Appeal Book no Transcript is required;
(h) Their Motion to expedite was adjourned indefinitely on 23 July 1997 in response to which I now appear on their behalf as counsel in the Supreme Court of Canada on Application for Leave to Appeal number 26185.
Very truly yours,
RUSSELL & DUMOULIN - Barristers & Solicitors
2100-1075 West Georgia Street,
Vancouver, BC., Canada
Tel:(604) 631-3131 / Fax: (604) 631-3232
September 25, 1997
Shelagh Anne Franklin
Joseph William Ignace
James Allan Scott Pitawanakwat
Matter No. ATT49490
Direct Line: (604) 631-4789
Re: R. v. Ignace, No. CA023439 R. v. Franklin, No. CA023440 R. v. Pitawanakwat, No. CA023441
On July 23, 1997, your applications came on for hearing before Madam Justice Huddart. At that time, we advised Madam Justice Huddart that other defendants who may be appealing their convictions may also be advancing the same arguments that you wish to argue on the appeal, that is, that the court has no jurisdiction over you. In the circumstances, we submitted to Madam Justice Huddart that your application for an expedited appeal date should be adjourned generally until all other defendants have been canvassed to determine whether or not they would be participating in the argument you wish to advance.
We have written separately to other defence counsel or defendants in order to obtain their positions and will advise you once we have received a reply from them.
Yours very truly,
Charles F. Willms
Russell & Dumoulin is an Independent Law Partnership
That Includes Law Corporations.
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Bruce Clark, LL.B.,M.A.,Ph.D
Box 32, Route 22
Granville, New York 12832
October 1, 1997
Charles F. Willms
Russell & DuMoulin
Re: Pascal v. Walker CA022072; Pascal v. Walker SCC26186; Ignace v. R. CA023439; Franklin v. R. CA023440; Pitawanakwat v. R. CA023441; Ignace, Franklin and Pitawanakwat v. R. SCC26185
Dear Mr. Willms:
Please note my new address. I have for reply your 3 letters dated 25 September 1997. Crown Counsel Mr. Ehrke had also written, relative to Jones, Franklin and Pitawanakwat, and thus there seems to be some overlap between you and him, which I ask the two of you to sort out. A copy of my response to Mr. Ehrke accompanies this letter.
The essential reason for the decision of Huddart JA on the Pascal motion to expedite his appeal was her view that there is no possibility of the appeal succeeding in the Court of Appeal. Even though she did not address the law put forward by Pascal, based upon past experience there can be no doubt that she is right: for regardless of what the law says, there is no prospect whatever that the judges of British Columbia will address the law, at least not publicly.
For the law says that the British Columbia judges have no jurisdiction relative to natives upon yet-unceded territory and that the common judicial assumption to the contrary prima facie has constituted misprisions of treason and fraud and arguably has constituted complicity in genocide. And events have established beyond a doubt that there is no prospect that the judges are going to acknowledge the law indicting their crimes. If, therefore, the law is ever to be addressed it will have to be an independent and impartial third-party adjudicator, which, exactly is the legal point of the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut, which precedent and legislation has been blindsided not only by Huddart JA but by every single other of the 30 or so judges of British Columbia judges before whom I have attempted to raise that authority from 1990 to the present.
There may be a possibility of success in the Supreme Court of Canada, if only because that Honorable Court and the public are becoming sensitized to the issue of third-party adjudication because of the Quebec Succession Reference. But in any event of the prognosis for success in the Supreme Court of Canada, it is plain that there is no prospect for success in the courts of your province.
My apprehension is that your proposals - to put Pascal's appeal back on the rails in the Court of Appeal and to canvas others convicted along with Ignace, Franklin and Pitawanakwat as to whether they wish to join to be added to Ignace et al's appeal - are not made in good faith, but, rather, for the purpose of delay. I may be wrong. If so please prove me so, specifically by agreeing to expedite the disposition of all appeals in the Court of Appeal, and to recommend that the Court of Appeal grant leave to appeal in the Supreme Court of Canada. Only in this way, so far as I can see at any rate, will it be possible for the law to be addressed and the genocide apprehended in a timely manner.
In short, if your principal [Attorney General of B.C.] is now ready to address rather than to stonewall the law let us in effect agree to do so, on consent, as soon as can be arranged, before the Supreme Court of Canada. To that end my clients would be willing not to oppose a motion by your client in the Court of Appeal for summary judgment on the jurisdictional point of law alone in relation to all of the above matters, provided leave to appeal be granted.
It is crucial, in my view at least, to the integrity of the rule of law in our country that the Supreme Court of Canada address the jurisdictional point of law alone before it disposes of the appeal in Delgamuukw v. AGBC and the Quebec Succession Reference. I feel sure that you understand.
Very truly yours,
Copy: William F. Ehrke, Crown Counsel Ministry of the Attorney General
More information on Clark's legal position: