Lubicon Lake Indian Nation
Little Buffalo Lake, AB
3536 - 106 Street
Edmonton, AB T6J 1A4
April 6, 1993
(The following up-date on the legal situation of the Lubicon 13 was prepared by Elaine Bishop. Elaine is a voluntary service worker for the Mennonite Central Committee on assignment to the Lubicons. She attended the involved hearings and took extensive notes on the proceedings.)
On Monday, March 8, Judge Elizabeth McFadyen of the Alberta Provincial Court of Queens Bench declared a mistrial in the jury trial of Lubicon defendant Reinie Jobin. The mistrial is the latest development in the legal battle which ensued following events that took place November 24, 1990 at the Buchanan Logging Camp in traditional Lubicon territory.
The trial took place against the background of the long running Lubicon land rights dispute. The roots of the November 24 incident go back to announcement that a huge new pulp mill was going to be built by Japanese forestry giant Daishowa a few kilometres north of the town of Peace River just to the west of traditional Lubicon territory.
In February 1988, after announcing the construction of the Daishowa pulp mill, it was learned that the Alberta government had agreed to sell to Daishowa the rights to the trees in an area of about 12,000 sq. miles which completely blankets the traditional Lubicon territory. Responding to nation-wide protests a meeting was held March 7, 1988 between the Lubicon and Daishowa Canada. At that time a commitment was made to Chief Bernard Ominayak that Daishowa would not log the 4,000 sq. mile traditional Lubicon territory until Lubicon land rights were settled and an agreement negotiated between the Lubicons and Daishowa respecting Lubicon wildlife and environmental concerns.
In the fall of 1990 Daishowa indicated its plans to proceed with the clear-cutting of trees on traditional Lubicon territory through four logging companies either owned directly by Daishowa or contracting for Daishowa. The Lubicon were initially informed of these plans when an Alberta Forestry Ranger gave Lubicon Chief Bernard Ominayak a document entitled "Proposed Timber Harvesting Activities 1990/91". As a result of meetings with the Lubicon one of the four companies, Boucher Brothers, announced they would not log on Lubicon land during the 1990/91 winter. Boucher Brothers said that they had not known of the 1988 Daishowa commitment to the Lubicon until meeting with the Chief September 24.
Through meetings with Daishowa, its logging companies and contractors the Lubicon reminded Daishowa of its commitment not to log Lubicon land until a land rights settlement had been reached and a wildlife and environmental protection agreement negotiated. Daishowa responses varied from denial that such an agreement had been made to statements that it was keeping the agreement but that its contractors or subsidiaries were not bound by the agreement. The Lubicon repeatedly said that they would not tolerate logging on their territory until there was a settlement of Lubicon land rights and an environmental and wildlife management agreement put in place.
As the logging companies proceeded to implement their plans to clear-cut trees on unceded Lubicon territory, on November 8 Chief Ominayak issued a warning on behalf of the Lubicon Nation that resource extraction projects taking place on unceded Lubicon territory without proper Lubicon authorization would be "subject to removal at any time without further notice". On November 24 a surprise raid took place at the Buchanan logging camp, north of Red Earth, in the Lubicon territory. An empty dormitory trailer and some vehicles and logging equipment were burned. Media estimates of damage were most frequently put at between $20,000 and $25,000.
The response by the RCMP to the events at the logging camp was immediate and massive. Teams of officers interrogated Lubicon members for up to five hours. Marked and unmarked police cars cruised around the Lubicon community of Little Buffalo Lake causing increased tension. On December 12 the RCMP issued a press release stating that they were charging 13 men from the Little Buffalo area with four offenses: arson, mischief in causing damage over $1,000, possession of an explosive and wearing a mask while committing an indictable offence.
Throughout this period and during the subsequent pre-trial hearings and trial Lubicon lawyers maintained that the constitutional rights of the Lubicon were violated during the investigation. The recent findings made by Justice McFadyen support that position.
Pre-trial legal action
The first appearance of the Lubicon 13 was January 7, 1991 before the Provincial Court in Peace River. Many subsequent court appearances took place between then and January 4, 1993 when proceedings against Lubicon defendant Reinie Jobin began in Edmonton before Justice McFadyen.
A key Lubicon position during the legal proceedings has been that Canadian courts do not have jurisdiction on unceded Lubicon territory. Consequently those charged have always "stood mute" before the court. They have stayed silent when asked to make a plea on any charges. The plea of "not guilty" was entered for Jobin by the court on his behalf when he stood mute in court.
During the two years between January 1991 and January 1993 various legal actions were taken. The Provincial Government, in pursuing its case against the accused, divided the Lubicon 13 into five different groups for trial. This allowed the Government to issue subpoenas to try and force people in one group to testify against those in the other groups. The Government also subpoenaed four "unindicted co-conspirators" to try and force them to testify. Lubicon lawyers have fought this tactic on the part of the prosecution on the basis that it violates the constitutional right to remain silent and not incriminate oneself.
In August 1991 a defence application to have the subpoenas stuck down by the court as unconstitutional was rejected by Mr. Justice Ronald Berger of the Alberta Court of Queen's Bench. However, his ruling did suggest that any testimony by people so subpoenaed may violate the right to remain silent. The Supreme Court of Canada has granted the Lubicon the right to appeal the decision not to strike down the subpoenas.
Tensions in the Lubicon community increased when police claimed that one of the co-accused was a "confidential police informant". This led to people wondering "Who?" and made it difficult for people to trust anyone. It contributed to a further legal roadblock thrown at the Lubicon: the requirement that each of the 13 co-accused be represented by different lawyer. Initially all thirteen were represented by Lubicon lawyer Bob Sachs. However, the tactic of subpoenaing the co-accused to testify against each other and the supposed presence in the group of a so-called "confidential police informer" put the co-accused in a potential conflict relationship with each other. It also put Lubicon lawyer Bob Sachs in a potential conflict of interest because one of his clients supposedly had different interests than the rest. The
government demanded separate lawyers for each accused. The major problem of finding 13 legal aid lawyers to represent the co-accused had not been solved by the time Jobin went to trial.
In December 1991, the Lubicon asked for a postponement of the preliminary hearing because legal aid lawyers had not yet been found for the 13 defendants, because Judge Berger's decision on the constitutionality of the subpoenas was being appealed to the Supreme Court and because Sachs had a conflict with another important aboriginal rights case. Although postponements are routinely granted under such circumstances this request was refused by Judge Richard MacIntosh and Sachs was ordered to proceed.
Another legal case had to be prepared before Legal Aid accepted responsibility for the costs of the lawyers required. The next week the Government proposed to put off proceeding on the charges until the new year on the condition that the eight Lubicon then before the court waived (gave up) their right to a preliminary hearing. The eight Lubicon defendants agreed to waive their right to a preliminary hearing based on the advice of their lawyers at that time.
Other legal proceedings during this time recognized the right of the Lubicon to have court proceedings translated into Cree and established the responsibility of the court to provide the translator.
In the fall of 1992 a change of venue (location) hearing for Jobin's trial was successfully argued. Defence lawyers argued that the large number of people with links to Daishowa through family or friends would make it difficult to select an unbiased jury in Peace River. Consequently the trial was moved to Edmonton.
Throughout the pre-trial period Lubicon lawyers had been pursuing the right of the accused to full disclosure of any information relevant to the charges against them. This right, guaranteed under the Canadian Charter, requires the Government lawyers to fully disclose (hand over) to the defence all material relevant to enabling the accused to provide a full and effective response to the charges. A defence motion about disclosure had been dropped in April, 1991 when Government lawyers made a commitment to provide full disclosure. Continued attempts to have this right respected resulted in the delivery of 700 pages of material to Mike Marcovitch, Jobin's lawyer, on December 29, 1992 -- one working day before the trial was to begin in Edmonton.
To Trial But Not to Trial
Monday, January 4, 1993 the trial was to begin. Judge McFadyen ordered a publicity ban on matters heard without the jury present. This is usual in jury cases to reduce the risk of jury members being influenced.
Disclosure immediately became an issue. As a result of the 700 pages Marcovitch had a list of other materials considered relevant by defence lawyers which they wanted prosecution lawyers to provide.
The defence lawyers also raised the issue of the so-called "confidential police informant". Marcovitch spoke about the difficulty caused by the presence of such a person whose name was still unknown. As well as making it difficult to work with their clients (the Lubicon continue to perceive the 13 as a group), Government lawyers were using the presence of the "confidential police informant" to withhold some of the information requested by the defence. Marcovitch indicated that the defence wanted the information revealed, even if the name of the so-called "confidential police informant" was not revealed. Over time arrangements were made to have information that might reveal the name of the so-called "informant" edited by Government lawyers and approved by the Judge so that the person's identity would not be revealed but the information could be given to the defence. The Judge also ordered that the name of the so-called "confidential police informant" be given to the defence lawyers in confidence before any evidence was given to the jury.
The struggle to receive full disclosure continued. Days were taken up in court with defence lawyers providing lists of documents wanted and Government lawyers arguing why the defence should not receive them. With very few exceptions, sometimes edited as mentioned above, the documents requested by the defence were eventually provided but it required continuing vigilance, persistence and much court time to force the prosecution to provide legally required full disclosure. The judge had to make many rulings about what must be disclosed. The defence then had to ensure that it in fact received the mandated material.
The disclosure process was lengthened when the Government lawyers objected to defence lawyers receiving a series of RCMP files. The judge was then forced to review over 50 files to decide whether or not they could be disclosed. An editing session between the judge and Government lawyers was arranged to protect the identity of the so-called "informant". In this special situation Marcovitch agreed that Jobin did not need to be in court. Full disclosure still had not been achieved at the time the mistrial was declared.
Tuesday, January 12 jury selection took place. Owen Young, known for his defence of some of the accused from Kahnawake in the Oka crisis, represented the Lubicon during this 10 hour process. A jury pool of over 300 people was brought in. Young asked each potential juror a series of questions. The issue was not whether they had prior information about the Lubicon land dispute but whether they felt they could put aside their opinions to make their decision only on the evidence they heard in court. The jury consisted of 10 women and two men. They were sworn in and ordered to return to begin hearing evidence February 1.
The hearing in a trial at which the admissibility of evidence is considered is called a "voir dire". Prior to commencement of the trial Lubicon lawyers had planned to raise questions about the admissibility of Jobin's statement to the RCMP during a voir dire. Lubicon lawyers maintained, as they had throughout the investigation, that RCMP actions violated the constitutional rights of the accused. The voir dire could not take place, however, until after full disclosure. This caused delays in holding of the voir dire.
Types of Informants
Wednesday, January 20 the judge, having reviewed prosecution evidence, ruled that there were two types of so-called "confidential police informants". One type was called a "police informant who was a material witness" -- someone with direct evidence related to the situation whose identity would be disclosed before any evidence went before the jury. The other was "persons with no personal knowledge" of the event but who provided general information to the RCMP about the Lubicons. The judge ruled that the identity of "persons with no personal knowledge" did not need to be disclosed since their information was third party and did not come from contact with the accused or others involved in the event.
That same day defence lawyer Mike Marcovitch made a brief statement to the court indicating that an article in a local paper making accusations about him regarding another legal matter might lead him to withdraw from the case. He was concerned that jury members might be influenced by the article. Marcovitch then did decide to withdraw and was replaced by Owen Young and Ken Staroszik. There was several days delay while the two other lawyers prepared for their new roles on the defence team. A publication ban was issued on the withdrawal of Marcovitch so as not to influence the jury.
Friday, January 29 defence lawyers made an undertaking to waive (give up) the voir dire on the admissibility of the Jobin's statement to the RCMP. They did this because they wanted the conditions under which the statement was given to be explored fully before the jury.
Thursday, Feb. 4 the defence lawyers were able to inform the court that the Supreme Court of Canada had granted the Lubicon the right to appeal whether the prosecution subpoenas issued to the co-accused and the unindicted co-conspirators contravened the constitutional right to remain silent and not incriminate oneself. The intent of the subpoenas was to force the co-accused to incriminate each other. As a result of this Supreme Court decision Government lawyers indicated that they would not call the 16 subpoenaed Lubicon witnesses to testify pending a decision by the Supreme Court as to the constitutionality of the subpoenas.
Between February 4 and 16 further time was spent on the issue of full disclosure and on preparation by Lubicon lawyers for their new roles.
The Trial Begins
February 16 saw the jury return for first day of evidence. Government lawyers began by outlining the three parts of their case: physical evidence of the events that took place at the Buchanan logging camp; a statement by Jobin to the police, and eye witnesses accounts from Buchanan employees present at the camp at the time of the incident.
Immediately before calling the first witness a short recess was called so that the Government lawyers could inform the defence of the identity of the so-called "confidential police informant". The judge ordered that Lubicon lawyers not reveal the name to the Lubicon.
Two RCMP officers testified that first day. The first was Corporal Brown who had identification responsibilities. He testified about a series of photographs he had taken of the area of the logging camp, about evidence of molotov cocktails used and about the damaged equipment. He also testified about photographs he had taken at a cabin at Fish (Haig) Lake.
Brown acknowledged in cross examination by Owen Young that he had been called at 1:55 AM November 25 by an RCMP officer who said that "the natives had struck". Brown confirmed that this meant the Lubicon and that this was not unexpected given the disagreement between the Lubicon and the Government over land and jurisdictional issues. Brown said, of his investigation at Fish Lake, that he had not seen the search warrant although he believed someone else had it. He said that the police had gone in through the window at the Fish Lake cabin and acknowledged, although he did not remember, that the search warrant was in Reinie Jobin's name. In later testimony he was asked about a phrase used in RCMP minutes of a November 29, 1990 RCMP meeting that indicated that Jobin would be set up as the "fall guy" and his name used on the search warrant. The RCMP minutes indicated that officers could use Jobin's name.
The second witness was Constable Cardinal of the Red Earth detachment. Cardinal was the first RCMP officer at the Buchanan logging camp after the incident. He testified that he received a phone call from the Peace River RCMP on November 24 advising that something -- a tire burning or road blockade -- would be going on that night at the Buchanan logging camp. He was unable to get to the camp until about 1 AM, after the incident had taken place. When he arrived some of the equipment was still burning. Cardinal was asked to describe the damage done.
Under defence questioning Cardinal produced notes he had taken at the time which had not previously been disclosed to the defence. Cardinal said he did not have a good understanding of the Lubicon conflict with Daishowa but did know that the Lubicon had asked the Buchanan company to stop clear cutting their land.
Wednesday, February 17 the jury heard from four expert witnesses and the RCMP officer responsible for managing the file on the case.
The first witness, Gordon Cairney, was an expert on the cause and origin of fires and burn patterns. He described the damage he had seen at the logging camp. With some of the equipment the burning was so severe that he could not tell if the fire had started inside or outside the vehicle. Under defence questioning he acknowledged that he could not determine the cause of the fires in the bunk house, the skidders or the truck.
Sergeant Calvert of the RCMP was the second witness. He was assigned to General Investigative Services (GIS) and was assigned to help the Peace River subdivision in the Lubicon case. He was responsible for maintaining the files collected during the investigation.
When questioned by defence lawyers Calvert indicated that the investigation of the arson at the Buchanan camp was a "full scale investigation". RCMP officers from outside the area were brought in to assist. Five teams of two officers each were assigned to question suspects. Twelve to fifteen officers were directly involved in the investigation as well as the senior Government attorney in Peace River. Calvert confirmed that by November 27 he was aware of the RCMP having talked to someone and that the names of 24 men were mentioned as having been involved in the incident.
Calvert acknowledged that on November 28 he had appeared before a judge in Peace River to get a search warrant for the Fish Lake cabin. In getting the search warrant Jobin's name was used and the offence of mischief was cited. This was then linked to the comment in the November 29 RCMP minutes about Jobin being the "fall guy". The cabin, in fact, belonged to Chief Ominayak.
The final three expert witnesses testified about various aspects of the material evidence. One testified that cloth found in "molotov cocktail" wicks matched cloth found at the Fish Lake cabin. Another testified about the gasoline found in some of the beer bottles left at the Buchanan logging camp. The third testified about a yellow residue that had been collected at the logging camp which turned out to be gasoline. Under defence questioning all three expert witnesses acknowledged that they could not link this physical evidence to any particular individual or group.
Two other things happened this day. Defence lawyers filed a motion calling for a stay of proceedings. Also that afternoon, and by accident, Lubicon lawyers learned that there had been a secret, "in camera" meeting held on January 18 involving the judge, prosecution lawyers and one of the police witnesses. This became an important aspect of a defence motion for a mistrial which was argued on February 24. Before ending the day the lawyers for both sides met with the judge without the jury while the defence raised some issues about the issue of the so-called "confidential police informer".
Motion for Stay of Proceedings
Thursday, February 18 saw an abrupt change in the trial. Before the jury came in defence lawyers spoke to their motion calling for a stay of proceedings which would have halted the trial. The defence lawyers had learned the name of the so-called "confidential police informant" two days earlier, just before the first evidence was heard by the jury. When the name was revealed it became clear that the police claim that this person was a "confidential police informant" was untrue. He was one of the young Lubicon who had given the police a statement -- no more. There really was no "confidential police informant". If the defence lawyers had known this before the trial began their plans would have taken a different direction including a changed position about allowing the Jobin statement to go before the jury. The voir dire would not have been waived. Lubicon lawyers also raised concerns about the conduct of Government lawyers respecting full disclosure.
Government lawyers argued that defence attorneys had voluntarily waived the voir dire and by so doing conceded (agreed) that the statement was voluntarily given and that no constitutional violations had taken place when it was given. They noted that they had already mentioned the RCMP statement to the jury so if it were found to be inadmissible there would have to be a mistrial. They argued that disclosure had already been dealt with by the judge.
In responding for the defence Owen Young said that if the Lubicon waived the voir dire they did so under a misapprehension (legal term for misunderstanding) about the presence of a "confidential police informant". Defense lawyers then again maintained that disclosure was incomplete.
Given the different perceptions of Government lawyers and defense lawyers the judge ruled that the transcripts were needed before matters could proceed. The jury was sent home until February 23. The judge also ordered that all communication between Government lawyers and defence lawyers take place in writing.
Monday, February 22 Government lawyers responded to the issues raised by defence lawyers on February 18.
Tuesday, February 23 Before any evidence was put before the jury defence lawyers called for a mistrial to be declared. Owen Young argued that for justice to function not only must justice be done but it must be seen to be done. Without challenging the judge he laid out that disclosure, so necessary to the defence to be able to fully respond to the charges, was still incomplete despite the judge's ruling that it must take place. He pointed out that there were repeated instances of material that should have been disclosed popping up in court, like the notes of Const. Cardinal.
Although Young raised serious questions about proceeding further with the trial until these issues had been resolved, the Judge ruled that the jury should hear the evidence of Brian Carifelle -- one of the employees at the logging camp at the time of the incident.
Mr. Carifelle, a skidder (used to haul logs) driver, was doing dishes about 9 PM when the incident began. When he went outside he saw some burning equipment, a person with a covered face holding a hunting knife, and about 10 people running around throwing bottles that he later learned had gas in them. He described the actions taken by the employees to put out the fires. He indicated that he felt afraid and that he did not know why the camp was not equipped with a radio.
Carifelle indicated that the trailer in which the crew ate and slept was not damaged or threatened by the raid. He said that the raiders did not harm it because they knew it was occupied. The crew were left with food and shelter. He also acknowledged that the crew was clear-cutting the land. He agreed that clear-cutting knocked down all the trees, hauling away the big ones. Carifelle stated he did not know he was on Lubicon territory or that the Lubicon objected to the clear-cutting on their land. He said he was just there to work.
The two other Government witnesses that were to appear that day did not show up so the jury was sent home until Monday, March 1.
The hearing continued without the jury. A decision was needed about how to proceed. Lubicon lawyers were asking to be released from their undertaking to waive the voir dire. So plans were made for Government lawyers and defence lawyers to argue the next day about whether or not to proceed with a voir dire. The question of whether defence lawyers had been misled about the presence of a so-called "informant" was also unresolved.
Thursday, February 24 the Government lawyer started by advising the court of his efforts "to put this case back together". He indicated that subpoenas had again been issued to bring various co-accused to court.
Defence lawyer Owen Young commented that the prosecution had "created a monster". Defence lawyers now had to write each time they wished to communicate with Government lawyers and Government lawyers appeared reluctant to respond other than before the judge. The battle for full disclosure continued.
Then there was the matter of the secret "in camera" hearing on January 18 about which defence lawyers had not learned until February 17. The judge had heard evidence from Sgt. Calvert, with Government lawyers present, about the so-called "confidential police informant" and whether any deals had been made. Neither the accused nor a defence lawyer were present. The defence was denied the ability to cross examine the witness and the accused was denied the opportunity to face their accusor. The defendants were not even represented by a specially appointed lawyer with no other interests in the case who could have represented defence interests and reported back while maintaining confidentiality where so ordered. Defence lawyers received the transcript of the hearing on February 23. If they had known about the secret hearing they could have raised issues from it in Calvert's cross-examination.
Young called for a mistrial on three bases: the secret hearing with Sgt. Calvert; the incomplete disclosure with respect to issues around the so-called "confidential police informant"; and failure to disclose Cst. Cardinal's notes. It was the objective of defence lawyers to get the trial back on track with full disclosure. What would be the impression of an informed public about the justice of this trial? The defence argued that with the best will in the world the public would assess the trial as having gone astray. The only way to re-establish credibility would be to hold a new trial.
Government lawyers argued that defence lawyers had in fact agreed to the secret hearing when they agreed in the pre-trial period that the accused need not be present while the judge and Government lawyers edited RCMP files to protect the identity of the so-called informant. Government lawyers also argued that disclosure was complete and that the matter of Cardinal's notes, which had not been disclosed prior to his coming to court because Government lawyers did not know about them, was a minor point.
Lubicon lawyer Young responded that one or two minor problems like Cardinal's notes could be dealt with by a short recess for defence lawyers to see the new material. But in this case minor points continued to show up. He argued that the trial had "run amuck" and was a "procedural nightmare". The appearance of evidence before the jury was so disjointed and interrupted that it could create the appearance of injustice. Disclosure continued to be a nightmare. In the interests of justice a mistrial should be declared.
The judge wanted to think about the matter over night. Before leaving for the day the judge reviewed with the lawyers the list of materials presented by the defence still awaiting disclosure. A briefing book mentioned in the November 29 RCMP meeting was amongst the items requested. Government lawyers claimed that the book did not exist.
Receiving transcripts continued to be a problem. Transcripts from an earlier hearing in Peace River were delayed because they had been sealed by the judge and had not been transcribed. Judge McFadyen ordered copies of the tape to be flown to Edmonton.
Thursday, February 25 Judge McFadyen ruled that she was satisfied that the trial had not yet reached the stage where a mistrial should be declared. She acknowledged that she had made three errors in the process:
McFadyen ruled that the defence should not be bound by its undertaking to waive the voir dire. She indicated the voir dire should proceed immediately. Should she find the statement inadmissible then the trial would end because Government lawyers had already mentioned the statement to the jury.
Next Judge McFadyen spoke about the steps to be taken to ensure full disclosure. On the first item on the defence list -- the briefing book which Government lawyers had claimed the day before didn't exist -- Government lawyers had to admit the briefing book had now been found. They argued that since the materials had been disclosed as parts of other files the briefing book should not have to be "re-disclosed". After various arguments the judge ordered that virtually all the information requested by the defence be disclosed -- the so-called "briefing book" and the contents of the sealed information that had been used to get the search warrant for the Fish Lake cabin.
The judge also ordered that the voir dire would begin March 1.
Monday, March 1 Before starting the voir dire the jury was sent home for two weeks but advised that they might be recalled earlier.
Lubicon lawyers indicated that the two issues in the voir dire were:
- was Jobin's statement given voluntarily?
- did the police violate Jobin's constitutional rights in getting the statement?
The first witness called was RCMP Cpl. Arsenault. Arsenault was the main officer taking the statement.
Arsenault described his involvement with the case. He described the November 29 RCMP meeting at which the investigating team was given a history of the Lubicon land dispute using the briefing book. He said he had been assigned with a partner to interview Reinie Jobin.
Arsenault then described his first interview with Jobin which took place November 29 in a police suburban after Jobin was stopped on the road about half way from Little Buffalo to Peace River. At the time Jobin was driving the Lubicon medical van taking five people to the hospital.
Jobin was kept in the back of the police suburban during the interview. As is RCMP practice, window and door handles had been removed from the doors so Jobin couldn't let himself out. Arsenault reported that at 3:02, almost 1½ hours after being stopped, Jobin asked if he was being arrested because he needed to take the five people to hospital. Arsenault said he let Jobin go about 10 minutes later -- a statement that later evidence proved to be untrue. Despite discussions at the November 29 RCMP meeting about the four charges that were to be laid against those allegedly involved in the incident, Arsenault stated he did not feel he had grounds to arrest Jobin on November 29.
Arsenault next described his second interview with Jobin after he arrested Jobin December 4 in Red Earth. After consulting a lawyer Jobin told Arsenault that he'd been instructed by legal counsel not to make a statement. Arsenault said fine but he still wanted to talk to Jobin. Arsenault then continued to interview Jobin without telling Jobin that anything Jobin said could be used in court. Arsenault used terms such as "talk to" and "interview" rather than "statement". When he later asked Jobin to make a written statement Jobin told Arsenault that his lawyer had advised him not to make a written statement. Arsenault then proposed to tape the "interview" instead. The resulting "interview" lasted about 2½ hours before Jobin was released.
Government lawyers then played the tape of the Jobin "interview" in court. In various places Jobin was unwilling to answer questions. At the end of the tape Arsenault used the word "statement" for the first time. After a long pause Jobin asked if the tape could be used in court. Arsenault responded with an evasive and confusing "yes" saying that he had warned Jobin at the time of the arrest that anything he said could be used in court.
After the tape was played Arsenault testified that towards the end of the "interview" he had been given a note that lawyer Bob Sachs had phoned the Red Earth detachment wanting to talk to Jobin. After allowing Jobin to talk to Sachs Arsenault drove Jobin back to Little Buffalo.
Tuesday, March 2 defence lawyer Owen Young cross-examined Arsenault. Before Arsenault appeared, however, two Lubicon who had been subpoenaed by the Government and who had missed days of work to come as directed, were told that they were not needed until March 17.
During cross examination Arsenault said he thought he had always been "straight" with Jobin. He confirmed that there were three police vehicles around Jobin's vehicle when he was stopped November 29. Arsenault confirmed there were no handles in the back of the police suburban and that Jobin needed help to get out. Lubicon lawyer Young suggested that if Arsenault had been "straight" with Jobin he would have told Jobin that he could go any time.
Young asked why the reports written about the events at the logging camp were headed "Lubicon Dispute" rather than Buchanan arson. Arsenault responded that it was "the same thing". Young also asked about comments in the November 29 RCMP meeting instructing RCMP officers to interview the Lubicon in vehicles and to arrest them if this was not possible. Arsenault claimed that these were not "instructions" although he had noted them in his notebook. Arsenault claimed the interviews in the cars were for the convenience of the Lubicon. He did not remember the comment of the Staff Sergeant recorded in the November 29 RCMP meeting minutes that the constables were to "Grind them good."
Lawyer Young also asked, since Arsenault knew that Sachs was the Lubicon lawyer representing the Lubicons charged with arson -- and that Sachs was in Peace River at the time -- why Arsenault did not suggest that Jobin contact Sachs when Jobin was having trouble contacting a lawyer. Instead Arsenault suggested a legal aid lawyer. Arsenault denied that Jobin had told the arresting officers to contact the Chief and Bob Sachs.
Arsenault stated that he did not think Jobin's constitutional rights had been violated -- an assertion which was soon to be corrected by Justice McFadyen's ruling that Jobin's rights were in fact violated. He acknowledged that Jobin had an absolute right not to talk to police when under arrest. And he admitted that he did not give Jobin a caution reminder before starting to tape.
Wednesday, March 3 the court heard from the two officers who were Arsenault's partners the two times Jobin was stopped.
Corporal Stuart was Arsenault's partner on November 29 when Jobin was first stopped. He described Jobin being stopped and getting into the back of the RCMP suburban. Stuart took some notes while Arsenault spoke with Jobin. Stuart noted Jobin's question about whether he was arrested and needing to get people to hospital as coming at 2:11 rather than 3:02 as claimed by Arsenault. It was therefore clear that Jobin was held for over an hour without being charged after being asked to be released so that he could take the five people in his care to the hospital -- not the ten minutes earlier claimed by Arsenault.
In cross examination the defence asked Stuart about his training in giving cautions to people arrested and informing them of their right to legal counsel. Stuart confirmed that at the RCMP meeting November 29 the RCMP had fairly specific information about the incident including names of people involved. Stuart acknowledged that Jobin had struck him as a person with a lot of life experience but not a lot of formal education -- an average person in a northern Native community. Stuart also confirmed no caution was given to Jobin on November 29.
The second officer to testify was Cpl. Dumas, Arsenault's partner on December 4. He reported that Arsenault had been the key person dealing with Jobin. He saw Arsenault arrest Jobin and heard him read Jobin his constitutional rights. He left the interview room in Red Earth after about half an hour to make it easier for Arsenault to talk to Jobin. At 8:30 he passed along the message that Bob Sachs was trying to reach Jobin.
In defence cross examination Dumas said that he had been in Peace River for the 1988 Lubicon blockade and was vaguely familiar with the Lubicon struggle. Dumas confirmed that the only caution given to Jobin was in the police car immediately after he was arrested. He also confirmed that his and Arsenault's intention on December 4 was to arrest Jobin and get a statement from him that could be used in court. Dumas acknowledged that he and Arsenault kept on talking to Jobin despite Jobin telling them that he had been advised by legal counsel not to give a statement, knowing, and not telling Jobin, that they could use what Jobin said in court.
Thursday, March 4 the lawyers argued the issues. Government lawyers argued that Jobin's statement was voluntary. They conceded that the police had violated some of Jobin's constitutional rights on November 29 when he was detained and not allowed to talk to a lawyer. They argued that even if this might have created an impression of oppressiveness it did not affect the statement made December 4 which was five days later. They claimed further that Jobin, when he asked at the end of the tape if the tape could be used against him in court, was looking for an opportunity to make a political statement -- not asking for information.
The defence lawyer reviewed the four charges laid against the accused (mischief, arson, possession of an explosive and wearing a mask during the commission of an indictable office). He indicated that when Jobin was arrested on December 4 and read his rights only the least serious of the charges, mischief, was mentioned. Yet the statement given covered all four of the charges without further cautions being given by the police.
Defense lawyers raised four issues. Was the statement voluntary? Was the constitutional right to remain silent and not incriminate himself respected? Was the right to be informed promptly of the reason for arrest respected? Was the right to promptly retain and instruct a lawyer respected?
Lubicon lawyer Young pointed out that Arsenault was very precise in his use of words. He did not use the word "statement" until the end of the December 4 interview. Whether or not he had intended to deceive Jobin, Young argued, Arsenault's language undermined both the voluntary nature of the statement and Arsenault's credibility.
Young argued that Jobin clearly stated his intention to remain silent but this was not respected by the police. He also argued that when Jobin consulted a lawyer he was only informed of the least serious charge and not more serious charges. Jobin therefore did not consult a lawyer about these more serious charges as the statement proceeded.
Young concluded that the statement was not given voluntarily. Jobin's constitutional right to remain silent was not respected. Jobin's right to be promptly informed of the charges against him was violated as was his right to promptly retain and instruct a lawyer.
Friday, March 5 Judge McFadyen gave her decision. She found Jobin's statement to be inadmissible.
She ruled that the charter breaches of November 29 did not affect the December 4 statement. She was satisfied that Arsenault did not mention the more serious charges to Jobin when he was arrested.
She found that Jobin tried to activate his constitutional right to silence and against self incrimination throughout the interview. Yet Arsenault did not tell Jobin that what he was saying could be used in court.
She ruled that Jobin didn't understand that he could be seen as giving up his right to legal counsel by talking with Arsenault.
She said that she was convinced that Jobin did not understand that he was giving a statement that could be used in court.
As a result of McFadyen's decision defence lawyers moved for a mistrial. The jury had to be present before a mistrial could be declared.
Monday, March 8 the mistrial was declared before the jury. Judge McFadyen did not explain the reasons to the jury because of her concern that spreading information about the reasons for the mistrial may make it even more difficult to select a jury for the next trial.
Where to from here
Jobin is to return to court April 14 in Edmonton for another court date to be set. One of the factors that will be considered in setting that date is the appeal currently before the Supreme Court of Canada which will see a charter challenge to the section of the Canada Evidence Act that allows co-accused to be subpoenaed against each other and forced to testify. The Lubicon argue that this deprives the accused of the constitutional right to remain silent and to be protected from having to incriminate oneself. This is expected to be argued either in June or September.
Once the new trial date is set there are still several motions before the court that must be decided. One is the defence motion for a permanent stay of proceedings. Defense lawyers have already filed an affidavit on the effect of the false Government contention that there was a "confidential police informant", arguing that this resulted in a violation of the Lubicons' constitutional right to retain the lawyer of their choice.
The other 12 Lubicon defendants return to court in Peace River April 13 for trial dates to be set. If Government lawyers don't agree to a change of venue to Edmonton, defense lawyers will need to argue this for the other 12 defendants as they previously did for Jobin.
It is not known at this time whether the Government will wait until after Jobin's case is finished before deciding what to do about the other 12 defendants.
The matter of legal defence funds remains a critical one for the Lubicon. There are six lawyers working on the case. The expenses are partially covered by one legal aid certificate in Alberta. The Indian Association of Alberta has opened a legal defence fund in support of the Lubicon.